PAGENO="0001" OPTOMETRY HEARINGS BEFORE SUBCOMMITTEE INO. 5 OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA HOUSE OF REPRESENTATIVES NINETIETH CONGRESS FIRST SESSION ON H.R. 595, H.R. 732, H.R. 1283, ILR. 10075, ll.R0 12251, ll.R0 12276, and ILR. 12297 TO REGULATE THE PRACTICE OF OPTOMETRY IN THE DISTRICT OF COLUMBIA ~`~`c or r,~ ~ T ~` CRy COLLEGE OF SOUTH ~L~JE UNIVERSiTY cAMDEN f~ ~LR~EI~~ U.S. GOVERNMENT PRINTING OFFICE 82-7M WASHINGTON: 1967 O~ ~)-rL~ p AUGUST 14, .15, AND 18, 1~G7 I DOU~ PAGENO="0002" COMMITTEE ON THE DISTRICT OF COLUMBIA JOHN L. McMILLAN, South Carolina, Chairman THOMAS G. ABERNETHY, Mississippi WILLIAM L. DAWSON, Illinois ABRAHAM J. MULTER, New York JOHN DOWDY, Texas BASIL L. WHITENER, North Carolina B. F. SISK, California CHARLES C. DIGGS, JR., Michigan G. ELLIOTT HAGAN, Georgia DON FUQUA, Florida DONALD M. FRASER, Minnesota BROCK ADAMS, Washington ANDREW JACOBS,. JR., Indiana E. S. JOHNNY WALKER, New Mexico ANCHER NELSEN, Minnesota WILLIAM L. SPRINGER, Illinois ALVIN E. O'KONSKI, Wisconsin WILLIAM H. HARSHA, Ohio CHARLES MCC. MATHIAS, JR., Maryland FRANK HORTON, New York JOEL T. BROYHILL, Virginia LARRY WINN, JR., Kansas GILBERT GIJDE, Maryland JOHN M. ZWACH, Minnesota SAM STEIGER, Arizona JAMES T. CLARK, Clerk CLAYTON S. GASQUE, ~S'ta.ff Director HAYDEN S. GARBER, Counsel SUEc0MMIrrEE No. 5 B. F. SISK, California, Chairman BASIL L. WHITENER, North Carolina FRANK J. HORTON, New York G. ELLIOTT HAGAN, Georgia WILLIAM H. HARSHA, Ohio ANDREW JACOBS, JR., Indiana GILBERT GUDE, Maryland E. S. JOHNNY WALKER, New Mexico JOHN M. ZWACL Minnesota II PAGENO="0003" CONTENTS H.R. 1283 (Sisk), to revise existing law relating to the examination, licensure, registration, and regulation of optometrists and the practice Page of optometry in the District of Columbia 1 H.R. 595 (Fuqua), identical bill 1 H.R. 732 (Hull), identical bill 1 H.R. 10075 (Springer), identical bill 1 H.R. 12251 (Anderson), identical bill 1 H.R. 12276 (Sisk, Dole, Adams, Teague, Fuqua, Walker, Skubitz), revised bill 12 H.R. 12297 (Nelsen, Clausen), revised bill 7 Staff memorandum 18 Study of proposed legislation and section analysis (Library of Congress) - - 24-32 STATEMENTS American Optometric Association: Hofstetter, Dr. Henry W., Director of the Division of Optometry, Indiana University 35 Judd, Dr. W., Chairman, Committee on Legislation 35 Kohn, Harold, General Counsel 35 District of Columbia Government: Heath, Dr. F. C., Deputy Director, 1)epartment of Public Hea1th~ 312 Moyer, Thomas, Esq., Assistant Corporation Counsel 312 District of Columbia Medical Society: Albert, Dr. Dan, Past President 151 Alper, Melvin G., President, Section on Ophthalmology 131 Kling, Dr. Robert, Program Director, Ophthalmology Service of Georgetown University Hospital Medical School 151 Magee, Warren, Counsel 151 Perraut, Dr. L. Edward, Immediate Past President, Section of Ophthalmology 151 District of Columbia Public Health Association, Leo Goodman, Chairman, Legislative Committee 329 Fuqua, Hon. Don, Representative in Congress from the State of Florida_ 21 Guild of Prescription Opticians of America, Guild of Prescription Opti- cians of Washington, D.C., and the District of Columbia Association of Dispensing Opticians: Burton, Robert W., Counsel 233 Miller, Jerry A., Executive Secretary 233 Stoutenburgh, Joseph, Special Counsel 233 McLeod, William N., representing Sterling Optical Company, Kay Jewelry Stores in Washington, Kinsman Optical Co., and Vent-Air Contract Lens Specialists 179 Metropolitan Washington Board of Trade, Osby L. Weir, Secretary 224 Missouri Optometric Association, Inc., Albert E. Schoenbeck, CounseL - - 324 National Association of Optometrists and Opticians, Inc., Dr. Galen E. Rowe, Jr., President 285 Optometric Society of the District of Columbia: Berlin, Dr. Marvin, President 121 Corns, Dr. Robert G., Lowell, Indiana, Member, Legal Affairs Com- mittee, American Optometric Assn., Inc 121 MacCracken, Mr. William P., Jr., Attorney 121 Warren, Dr. Evart F., Arlington, Virginia 121 Sears, Roebuck & Co., Osby L. Weir, General Manager, Washington area - 224 Sisk, Hon. B. F., a Representative in Congress from the State of Cali- fornia 19-21 Sterling Optical Company, Alvin M. Stein, General Counsel 179 III PAGENO="0004" IV CONTENTS United Optical Workers Union, Local 408, International Union of Electrical Workers, ~FL-CIO, New York City: Page Golia, John, Business Representative 93 McKinnell, Henry, Administrative Assistant 93 Weinmann, Richard A., Attorney 93 MATERIAL SUBMITTED FOR THE RECORD Amendments: Differences between H.R. 1283 and H.R: 12276 64-92 District of Columbia Government_ 313 District of Columbia Medical Society 153, 165 Guild of Prescription Opticians 235 Metropolitan Washington Board of Trade 225 Sterling Optical Company 180 United Optical Workers Union 94,98 Barstow, Ralph, letter dated March 9, 1967 to Chairman McMillan 357 Contact Lens Society of America, Frank B. Sanning, President, letter dated August 25, 1967 to Chairman McMillan 358 District of Columbia Government: Analysis of H.R. 595, H.R. 732 and HR. 1283 313 Letter dated May 18, 1967, from Walter N. Tobriner, President, Board of Commissioners, to Chairman McMillan 313 Federation of Citizens Associations of the District of Columbia, Dr. Edward A. Kane, Chairman, Health Committee, and Mrs. Edward B. Morris, Secretary, submitting resolution 356 Library of Congress, Robert M. Ujevich, Legislative Attorney, American Law Division, letter dated June 8, 1967 to the Committee, study and analysis of proposed legislation, and comparison with present law 24-32 National Newspaper Association, Theodore Serrill, Executive Vice Presi- dent, statement 355 Oil, Chemical and Atomic Workers International Union, Anthony Maz- zocchi, Citizenship-Director, statement 283 State laws, resume of pertinent sections of 333 Texas Optometric Association, Charles M. Babb, attorney, statement - - - 330 United Optical Workers Union, correspondence~_ - - 112-113 Washington, D.C. Publishers Association, Henry C. Gronkiewicz, Ex- ecutive Director, letter dated June 2, 1967 to Chairman Sisk and state- ment PAGENO="0005" OPTOMETRY MONDAY, AUGUST 14, 1967 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ~N o. 5 OF TIlE COMMITTEE ON THE DISTRICT OF COLUMBIA, Washington, D.C. The Subcommittee met at 10:00 a.m. in Room 1310 Longworth House Office Building, the Hon. B. F. Sisk (Chairman) presiding. Members Present: Mr. SI5K (Chairman), Mr. WHITENER, Mr. JACOBS, Mr. WALKER, Mr. HORTON, Mr. HARSHA, Mr. GUDE, and Mr. ZWAOH. Also Mr. FUQUA. Also Present: James T. Clark, Clerk; Hayden S. Garber, Counsel; Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk; Leonard 0. Hilder, Investigator. Mr. SISK. Subcommittee No. 5 will be in order. The Subcommittee has met this morning to begin hearings on a series of bills regarding the licensing, registration and regulation of optometrists to practice optometry here in the District of Columbia. (The bills referred to follow, together with staff memorandum thereon:) H.R. 595, 90th Cong., 1st sess., by Mr. Fuqua, H.R. 732 by Mr. Hull, and ILR. 1283 by Mr. Sisk on January 10, 1967; H.R. 10075 by Mr. Springer on May 17, 1967; and H.R. 12251 by Mr. Anderson (Tenn.) on August 10, 1967 A BILL To amend the Act of May 28, 1924, to revise existing law relating to the examina- tion, licensure, registration, and regulation of optometrists and the practice of optom- etry in the District of Columbia, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of 4inerica in Congress assern~bled, That the Act entitled "An Act to regulate the practice of optometry in the District of Columbia", approved May 28, 1924, as amended (D.C. Code, secs, 501-522), is amended to read as follows: "SEo'rIoN 1. This Act may be cited as the `District of Columbia Optometry Act'. "SEc. 2. Optometry is hereby declared to be a profession. The practice of optome-~ try in `the District of Columbia is hereby declared to affect the `public health, wel- fare, and safety, `thus requiring regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of optometry be limited to qualified persons, admitted to the practice of optometry in the District of Columbia under the provisions o'f this Act. "SEC. 3. As used in this Act- "(1) `Commissioners' means the Board of Commissioners of the District of Columbia or its designated agents; "(2) `practice of optometry' means, without `the use of drugs, any one, any combination, or all of the following acts or practices: (a) the employment of any objective or subjective means for the examination of the human eye. including its appendages; (`b) the measurement of the powers or range of human vision; (c) `the `determination of the accommodative and refractive powers of the human eye; (d) the determination of the scope of the functions of the human eye in general; (e) the prescription of lenses, prisms, or frames for the aid of the human eye; (f) the adaptation, utilization or furnishing of 1 PAGENO="0006" 2 OPTOMETRY lenses, prisms, or frames for the aid of the human eye; (g) the prescribing, di~recting the use of, or administering vision training or orthoptics, and the use of an~ optical device in connection therewith; (ii) the prescribing of con- tact lenses for, or the fitting or adaptation of contact lenses to the human eye; and (i) the identification of any departure from the normal condition or func- tion of the human eye, including its appendages; "(3) `optometrist' means, except as otherwise provided in this Act, an individual licensed to engage in the practice of optometry in the District of Columbia; "(4) `person' means any natural person, corporation, association, com- pany, firm, partnership, or society; "(5) `individual' means only a natural person; and "(6) `State' means the States of the United States, the Commonwealth of Puerto Rico, and the territories of the United States. "SEc. 4. The Commissioners shall issue a license to practice optometry in the District of Columbia to any individual who- "(1) is at least twenty-one years of age; "(2) is of good moral character; "(3) is mentally competent; "(4) has satisfied the Commissioners that he has had a preliminary edu- cation equivalent to the completion of a four-year course of study in an ac- credited high school; "(5) has completed a preoptometric course of at least two years at college level; "(6) has graduated from a school or college of optometry approved by the Commissioners after completion of a course of study of not less than four years; "(7) has passed written, oral, and practical examinations as prescribed by the Commissioners in the following subjects: geometric, physical, and physiological optics; theoretic optometry and optics; anatomy, physiology, and pathology, especially as they relate to the eye and to vision; general practice of optometry; special practice of optometry; practical optometric dispensing and such other subject matters as are taught in the schools and colleges of optometry and which the Commissioners deem necessary to de- termine the applicant's competence to practice as an optometrist. The Coin- missioners may accept the results of written examinations given by the National Board of Optometry, but shall conduct their own oral and practical examinations; and "(8) has paid all the required fees. "SEC. 5. (a) The Commissioners are authorized to issue a reciprocity license to an individual who holds a license to practice optometry in another State. An applicant for a reciprocity license may, at the discretion of the Commissioners, be licensed without a written examination but he must be given and pass a practical and oral examination. A reciprocity license shall be granted only if- "(1) The State in which the applicant's license has been granted accords like privileges to the holder of a license to practice optometry in the District of Columbia: "(2) the license of the applicant shall not have been suspended or re- voked by any State for any cause which is the basis for suspension or revoca- tion of a license under this Act (other than for nonpayment of fees) unless such license has been reinstated by such State and is in full force and effect at the time of the application for a reciprocity license under this section; "(3) the applicant for a reciprocity license has not failed to pass an exam-. ination for a license under this Act in the District of Columbia after his ad- mission to practice in another State. "(b) If an individual holding a reciprocity license granted under this section fails to actually practice optometry in the District of Columbia within one year after such license has been granted. the Commissioners may revoke such license at any time before such individual actually begins the practice of optometry in the District of Columbia. "SEC. 6. Every license issued in accordance with the provisions of this Act, subject to the provisions of Sec. 7 of this Act, shall automatically be rene'~ved annually upon application by the holder of the license and payment of the annual renewal fee. Such annual renewal fee shall be fixed by the Commissioners. If the holder of a license fails to renew his license in accordance with this section, such PAGENO="0007" OPTOMETRY 3 license shall be suspended and such Individual shall not thereafter practice opto- metry in the District of Columbia until such license shall be reinstated or ~ new license issued to him under this Act. If such individual thereafter ap~dies for rein- statement of his license, it shall automatically be reinstated upon payment cf all intervening renewal and other fees. If such individual fails to have his license reinstated within five years after the date it Is suspended under this section, he shall not thereafter be licensed to practice optometry in the District Of Columbia until he shall have passed a practical examinatiOn given by the ~ommission~rs and paid all intervening renewal and other fees. "SEC. 7. (a) The Commissioners are authorized (A) to refuse to renew, or rein- state any license authorized by this Act, and (B) to suspend or revoke any license issued under authority of this Act, for any of the following causes- "(1) the use of any title or any other word or abbreviation indicating that the licensee is engaged in the practice of medicine or surgery; "(2) conviction of a crime involving moral turpitude; "(3) willful violation or repeated violations of any provision of this Act or any of the regulations promulgated by the Commissioners under this Act; "(4) gross incompetence; "(5) chronic or persistent inebriety, or the habitual use of narcotics; "(6) affliction with a contagious or infectious disease which, in the opin- ion of the Commissioners, renders the practice of optometry by the licensee or applicant for a license, dangerous to the public health; (7) conduct which disqualifies the licensee from practicing optometry with safety to the public; "(8) advertising directly or indirectly the performance of optometric serv- ice or any part thereof, including the furnishing of ophthalmic or optical material, in any form, manner, or way, or through any medium whether it be printed, audible, visible, electronic, or in any other fashion, except as au- thorized by regulations issued under section 10 of this Act: "(9) practicing or offering to practice optometry under any name other than that under which he has been duly licensed; "(10) soliciting patients by offering free examinations or other gratuitous services, bonuses, premiums, discounts, credit, or any other inducements for the purpose of obtaining patronage; "(11) the display of any spectacles, eyeglasses, or spectacle frames or mountings, goggles, sunglasses, lenses, prisms, spectacle or eyeglass cases, ophthalmic material, optometric instruments, diagnostic devices,, optical tools, or machinery, or any merchandise, material, or advertising in a manner so as to make it visible from the street or the public corridor of a building; "(12) the display of his license, diplomas, or certificate, in such manner that they may be seen from the outside of the premises where he practices; "(13) except as provided in section 9, the use of the words `clinic', `in- firmary', `hospital', `school', `college', `university', or `institute' in English or any other language in con~ ~ne~c'tion with any activIty which is essentially the practice of optometry; "(14). to cause or permit the use of his name, profession, or professional title by or. in conjunction with the advertising of his professional services in any form or manner by any person; "(15) holding himself forth by any means or manner of possessing pro- fessional superiority or the ability to perform professional services in a superior manner; "(16) the employment of or any arangement, written or oral, with persons who use their efforts or influence to direct patronage to the optometrist; "(17) practice optometry in any retail, mercantile, or commercial store; "(18) except as provided In section 9, the practice of optometry as an employee of and pursuant to any written or oral arrangement with any person other than a duly-licensed optometrist; "(19) any other unprofessional conduct as defined by the Commissioners in regulations issued pursuant to `this Act. "(b) The denial, suspension, or revocation of a license issued under this Act shall be made only upon specific charges in writing and after notice and hearing (unless such heaving is waived). A certified copy of any such charge and a notice of hearing, specifying the time and place thereof,. shall be served upon the holder of or applicant for such license to practice as an optometrist in the `District of Columbia, at least twenty days before the hearing. The respondent PAGENO="0008" 4 OPTOMETRY may waive the requirement of hearing contained in this subsection but only in w~'iting. The respondent shall be entitled to counsel and to call witnesses in his defense. "(c) Upon written application and after hearing, pursuant to notice, the Com- missioners may reinState a license which has been previously revoked, except that no application for reinstatement of a license shall be accepted for consideration prior to the expiration of at least one year following the date on which the applicant's license was revoked. "SEC. 8. (a) It shall be unlawful for any person- "(1) to engage in the practice of optometry in the District of Columbia without a valid license issued under this Act so to do; "(2) to practice or offer to practice optometry under the name of any company, association, corporation, trade name or business name, or any other name, except his own proper name as appears on the license issued to him under this Act by the Commissioners; "(3) (A) to sell or fraudulently obtain or furnish any diploma, license, or record required by this Act or required by the Commissioners under authority of this Act, or aid or abet in the selling, fraudulently obtaining, or furnishing thereof; "(B) to practice optometry as an optometrist under cover of any diploma, license, or record required by this Act or required by the Commissioners under authority of this Act, illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation; "(C) to use in connection with his name any designation tending to imply that he is an optometrist licensed to practice under this Act if he is not licensed to practice under this Act; or "(D) to practice optometry as an optometrist during any time his license issued under this Act shall be suspended or revoked. "(4) with the exception of non-prescription sunglasses or non-prescrip- tion protective eyewear, to sell or offer to sell to the public eyeglasses, spectacles, or lenses, or to fit or duplicate lenses, without a written pre- scription from a licensed physician or optometrist; "(5) with the exception of non-prescription sunglasses Or non-prescrip- tion protective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mountings, or ophthalmic articles or devices; "(6) to solicit patients or cause patients to be solicited by means of free eye examinations or other gratuitous services, bonuses, premiums, discounts, credit, or any other inducements for the purpose of obtaining patronage; "(7) if he writes a prescription for another, to receive any part of the sum paid or other valuable considerations paid by such person to a third person for filling such prescription; or for such third person to pay to the person writing a prescription any part of the sum paid or other valu- able considerations received by such third person for filling of such prescription; "(8) other than an optometrist to utilize the services of an optometrist on a salary, commission, lease, or any other basis, or to engage or under- take to engage, directly or indirectly, in aiiy manner whatsoever, in the practice of optometry; "(9) to display any sign offering ophthalmic materials for sale in violation of any regulation of the Commissioners issued under authority of section 10 of this Act; "(10) to practice optometry without conspicuously displaying his license and his current annual renewal registration where he practices. "(b) A violation of any of the provisions of this section shall constitute a mis- demeanor and shall be punished for the first offense by a fine of not more than $500, and upon a second or subsequent conviction thereof, shall be punished by a fine of not more than $1000. or by imprisonment in the District jail for not more than one year. or by both such fine and imprisonment. "Sac. 9. (a) This Act shall not apply- "(1) to any bonn fide student of optometry in the clinic rooms of a school of optomotry approvod by tlio Commissioners; PAGENO="0009" OPTOMETRY 5 "(2) to any commissioned officer in the armed services who is engaged in the practice of optometry in the District of Columbia insofar as such practice is in the performance of his military duties; "(3) to an individual licensed in another jurisdiction who is in the District of Columbia to make a clinical demonstration before a professional society, convention, professional association, school, or college, or agency of govern- ment. "(b) This Act shall not be deemed to require a physician or surgeon licensed under the laws of the District of Columbia for the practice of medicine or surgery to have a license under this Act to perform those services defined `by this Act as the practice of optometry. "(c) This Act, other than section 8, shall not apply to any person who fills the written `prescription of a physician, surgeon, or an optometrist, or who repairs or restores eyeglasses or spectacles to their previous condition of usefulness, or who practice optometry as defined in Sec. 3(2) (f), and who does not otherwise prac- tice optometry, but this subsection shall not be deemed to authorize suc'h a person to fit contact lenses. "(d) Nothing in this Act shall be deemed to prevent- "(1) an optometric clinic approved by the Commissioners from being conducted on a nonprofit basis by a school or college of optometry or by an association of optometrists; "(2) an optometrist from being empl'oyed by or associated with any hos- pital, clinic, group health practice, nonprofit health service, health expense indemnity corporation or group, or any department, agency, or instrumen- tality of the Government of the United States or of the government of the District `of Columbia, or as an employee of any person to render optometric service and care solely to employees of such person; "(3) the executor or administrator of the estate of a deceased optometrist from employing a licensed optometrist to carry on the practice of such de- ceased licensee during the administration of the estate, or the legal repre- sentative of a mentally disabled optometrist from employing a licensed optometrist to carry on the practice of such licensee for a period not to exceed one year; "(4) vision screening programs conducted under the direction or super- vision of a licensed optometrist or physician. "(e) Nothing in this Act shall be deemed to prohibit an optometrist from using the title `doctor' or any ab'breviation thereof except that if be uses such title or such an abbreviation it must be with such qualifications as may he necessary to clearly indicate to the public that he is an optometrist. "Szc. 10. (a) The Commissioners from `time to time shall prescribe and adopt such rules and regulations as may be necessary to carry out this Act and govern the practice of optometry and the sale of ophthalmic materials which shall include but not `be limited to rules and regulations governing the number, size, location, and illumination of signs offering the services of (1) an individual as an optometrist and (2) ophthalmic materials for sale. With respect to the `offering of services of an individual as an optometrist, such regulations shall limit the offering thereof to the carrying or publishing of a modest professional card and the display of a modest window or street sign a't the location of the individual's practice, which professional card or window or street sign shall display only the name, address, `profession, office hours, telephone connection's, and if the practice is so limited `the specialty practiced by the individual, and in the case of change of address or the starting of practice, to modest announcements thereof. With respect to the offering for sale of ophthalmic materials, such regulations shall limit the offering for sale thereof `to a modest window or street sign at the location of the person's place of business and other modest advertisements. Noth- ing in this section shall be `deemed to authorize any optometric service or ophthal- mic materials to be advertised in any manner which includes or con'tains any price, cost, or reference thereof. "(`b) (1) `T'he Commissioners are authorized and em'powered, after public hearing, to establish, abolish, increase, or decrease, from time to time, such fees and charges as are necessary to defray the approximate cost of administer- ing the provisions of this Act. "(2) All funds derived from fees and charges collected in connection with the administration of this Act shall be paid into the Treasury of the United States to the credit of the District of Columbia. PAGENO="0010" 6' OPTOMETRY `(c) The Commissioners shall design and adopt a seal to be used for authenti- cating records and `papers pertaining to the licensing and regulation of optomet- rics in the District of Columbia. Copies of all records and papers duly certified and authenticated by such seal shall be received in evidence in all courts of the District of Columbia equally and with like effect as the original. Records kept by the Commissioners pertaining to the licensing and regulation of optometrists in the District of Columbia shall be open to public inspection under reasonable rules and regulations prescribed by the Commissioners. "SEc. 11. The Commissioners may make such inspections, studies, and investi- gations, and obtain or require the furnishing of such information under oath or affirmation or otherwise, as they deem necessary or proper to assist them in pre- scribing any regulation or order under this Act, or in the administration or en- forcement of this Act and any regulations or rules or orders thereunder. For such purposes, the Commissioners may administer oath and affirmations, may require by subpena or utherwise the attendance and testimony of witnesses, and the pro- duction of documents at any designated place within the District of Columbia. In the event of contumacy or refusal to obey any such subpena or requirement under this section, the Commissioners may make application to the District of Columbia Court of General Sessions for an order requiring obedience thereto. Thereupon, the Court. with or without notice and hearing, as it, in its discretion, may decide, shall make such order as is proper and may punish as a contempt, any failure to comply with such order in accordance with section 11-982 of the District of Columbia Code. "SEC. 12. Whenever, in the judgment of the Commissioners, any person has en- gaged in or is about to engage in any act or practice which constitutes or will constitute a violation of any provision of this Act, the Commissioners may make application to the District of Columbia Court of General Sessions for an order either temporarily or permanently enjoining such act or practice, and upon show- ing by the Commissioners that such person has engaged in or is about to engage in any such act or practice, an injunction, restraining order, or such other order as may be appropriate shall be granted by the court, without bond. "SEC. 13. (a) Prosecutions for violations of any of the provisions of this Act shall be conducted in the name of the District of Columbia in the District of Columbia Court of General Sessions by the Corporation Counsel or any of his assistants. "(b) An optometrist licensed under this Act shall be considered competent after qualification by the court to present testimony relating to the practice of optometry as defined in this Act. Certificates of visual condition, acuity, and effi- ciency issued by any duly licensed optometrist under this Act, shall be accepted as qualified evidence of the visual condition, acuity, and efficiency of the person to whom such certificate shall relate, by officers or employees of the government of the District of Columbia in the performance of their duties. "SEc. 14. No officer or employee of the District of Columbia shall, in the admin- istration of any law applicable to the District of Columbia, deprive any person of his right to exercise his freedom of choice of an optometrist or a physician. "Sue. 15. The Commissioners are authorized to delegate to the Board of Optom- etry established `by Reorganization Order No. 59 all or any part of the powers, duties, and functions vested in them by this Act. The `Commissioners are au- thorized to delegate to any other officer or employee of the government of the District of Columbia `all or any part of such powers, duties, and functions. Any `delegation made under authority of this section shall `be for such `periods and subject to such conditions as the commissioners determine necessary." Sue. 2 Every license to pra'ctice optometry in the `District of Columbia which Is valid on the effective date of this Act shall continue to `be valid under the District of Columbia Optometry Act, as amended' by this Act, until such date within one year of the effective date of this Act as the lThmmissioners of the District of Columbia fix as the date for the automatic annual renewal for such license under the District of Columbia Optometry Act, and *any such license which would `have expired between the effective date of this Act and the annual renewal date fixed for such license by the Commissioners under this section shall continue in effect until such renewal date, unless sooner suspended or revoked in accordance with the District of Columbia Optometry Act. SEC. 3. `Subsection (a) of section 11-742 of the District of Columbia Code is amended (1) `by striking out "and" at the end of paragraph `(9); (2) `by strik- *ing `out the period at the end of paragraph (10) and inserting in lieu thereof a semicolon; and (3) by adding at the end thereof the following new paragraph: PAGENO="0011" OPTOMETRY 7 "(11) final decision and orders of the Commissioners of the District of Columbia denying, suspending, or revoking any license, denying any re- newal of a license or reinstatement of a license, pursuant to the District of Columbia Optometry Act." SEC. 4. This Act shall take effect on the ninetieth day after the date of its enactment. ll.R. 12297, 90th Cong., 1st sess., by Mr. Nelsen and Mr. Clausen,on August 10, 1967 A BILL To amend the Act of May 28, 1924, to revise existing law relating to the examina- tion, licensure, registration, and regulation of optometrists and the practice of optom- etry in the District of Columbia, and for other purposes Be it enacted by the ~S~enate and House of Representatives of the United States of America in Congress assembled, That the Act entitled "An Act to regulate the practice of optometry in the District of Columbia", approved May 28, 1024, as amended (D.C. Code, sees 501-522), is amended to read as follows: "SECTION. 1. This Act may be cited as the `District of Columbia Optometry Act'. "SEC. 2. The practice of optometry as a professionin the District of Columbia is hereby declared to affect the public health, welfare, and safety, thus requiring regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of optometry as a profession be limited to qualified persons admitted to the practice of optometry in the District of Columbia under the provisions of this Act. "SEC. 3. As used in this Act- "(1) `Commissioners' means the Board of Commissioners of the District of Columbia or its designated agents; "(2) `practice of optometry' means, any one, any combination, or all of the following acts or practices as they are included in the curriculuni of recognized schools and colleges of optometery: (a) the employment of any objective or subjective means for the examination of the human eye, in- cluding its appendages; (b) the measurement of the powers or range of human vision; (c) the determination of the accommodative and refractive powers of the human eye; (d) the prescription of lens, prisms, or frames for the aid of the human eye; (e) the adaptation, utilization, or furnishing of * lenses, prisms, or frames for the aid of the human eye; (f) the prescribing, directing the use of, or administering vision training or orthoptics, and the use of any optical device in connection therewith; (g) the prescribing of contact lenses for, or the fitting or adaptation of contact lenses to the human eye; and (Ii) the identification of any departure from the normal condition or function of the human eye, including its appendages: "(3) `optometrist' means, except as otherwise provided in this Act, an individual licensed to engage in the practice of optometry in the District of Columbia; "(4) `person' means any natural person, corporation, association, company, firm, partnership, or society; "(5) `individual' means only a natural person; and "(6) `State' means the States of the United States, the Commonwealth of Puerto Rico, and the territories of the United States. "SEc. 4. The Commissioners shall issue a license to practice optometry in the District of Columbia to any individual who- "(1) is at least twenty-one years of age; "(2) is of good moral character; "(3) is mentally competent; "(4) has satisfied the Commissioners that he has had a preliminary educa- tion equivalent to the completion of a four-year course of study in an ac- * credited high school; "(5) has completed a preoptometric course of at least two years at college level. "(6) has graduated from a school or college of optometry approved by the Commissioners after completion of a course of study of not less than four years; "(7) has passed written, oral, and practical examinations as prescribed by the Commissioners in the following subjects: geometric, physical and PAGENO="0012" 8 OPTOMETRY physiological optics; theoretic optometry and optics; anatomy, physiology, and pathology, especially as they relate to the eye and to vision; general practice of optometry; special practice of optometry; practical optometric dispensing and such other subject matters as are taught in the schools and colleges of optometry and which the Commissioners deem necessary to deter- mine the applicant's competence to practice as an optometrist. The Coni- missioners may accept the results of written examinations given by the National Board of Optometry, but shall conduct their own oral and practical examinations. The Commissioners are authorized and empowered to alter, amend, and otherwise change the educational standards at any time, but in altering, amending, or changing said standards, the Commissioners shall not be permitted to lower the same below the standards herein set forth; and "(8) has paid all the required fees. "SEc. 5. (a) The Commissioners are authorized to issue a reciprocity license to an individual who holds a license to practice optometry in another State. An applicant for a reciprocity license may, at the discretion of the Commissioners, be licensed without a written examination but he must be given and pass a prac- tical and oral examination. A reciprocity license shall be granted only if- "(1) the State in which the applicant's license has been granted accords like privileges to the holder of a license to practice optometry in the District of Columbia; "(2) the license of the applicant shall not have been suspended or revoked by any State for any cause which is the basis for suspension or revocation of a license under this Act (other than for nonpayment of fees) unless such a license has been reinstated by such State and is in full force and effect at the time of the application for a reciprocity license under this section; "(3) the applicant for a reciprocity license has not failed to pass an examination for a license under this Act in the District of Columbia after his admission to practice in another State. "(b) If an individual holding a reciprocity license granted under this section fails to actually practice optometry in the District of Columbia within one year after such license has been granted, the Commissioners may revoke such license at any time before such individual actually begins the practice of optometry in the District of Columbia. "SEc. 6. Every license issued in accordance with the provisions of this Act, subject to the provisions of section 7 of this Act, shall automatically be renewed annually upon application by the holder of the license and payment of the annual renewal fee. Such annual renewal fee shall be fixed by the Commissioners. If the holder of a license fails to renew his license in accordance with this section, such license shall be suspended and such individual shall not thereafter practice optom- etry in the District of Columbia until such license shall be reinstated or a new license issued to him under this Act. If such individual thereafter applies for reinstatement of his license, it shall automatically be reinstated upon payment of all intervening renewal and other fees. If such individual fails to have his license reinstated within five years after the date it is suspended under this section, he shall not thereafter be licensed to practice optometry in the District of Columbia until he shall have passed a practical examination given by the Commissioners and paid all intervening renewal and other fees. "SEc. 7. (a) The Commissioners are authorized (A) to refuse to renew, or re- instate any license authorized by this Act, and (B) to suspend or revoke any li- cense issued under authority of this Act, for any of the following causes- "(1) the use `of any title or any other word or abbreviation indicating that the licensee is engaged in the practice of medicine or surgery; "(2) conviction of a crime involving moral turpitude; "(3) willful violation or repeated violations of any provisions of this Act or any of the regulation promulgated by the Commissioners under this Act; "(4) gross incompetence; "(5) chronic or persistent inebriety, or the habitual use of narcotics; "(0) affliction with a contagious or infectious disease which, in the opinion of the Commissioners, renders the practice of optometry by the licensee or applicant for a license, dangerous to the public health; "(7) conduct which disqualifies the licensee from practicing optometry with safety to the public; "(8) `advertising directly or indirectly the performance of optometric serv- ice or any part thereof, including the furnishing of ophthalmic or optical PAGENO="0013" OPTOMETRY 9 material, in any form, manner, or way, or through any medium whether it be printed, audible, risible, electronic, or in any other fashion, except as au- thorized by regulations issued under section 10 of this Act; "(9) practicing or offering to practice optometry under any name other than that under which he has been duly licensed; "(10) soliciting patients by offering free examinations or other gratui- tous services, bonuses, premiums, discounts, credit, or any other induce- ments for the purpose `of obtaining patronage; "(11) the `display of any spectacles, eyeglasses, or spectacle frames or mountings, goggles, sunglasses, lenses, prisms, spectacle or eyeglass cases, ophthalmic `material, `optometric instruments, diagnostic devices, optical tools, or machinery, or any merchandise, material, or `advertising in a man- ner so as to `make it visible from the street or the public corridor of a building; "(12) the display of his license, diplomas, or certificate, in such manner that they may `be seen from the `outside of the premises where he practices; "(13) except as provided in section 9, the use of the words `clinic', `infirm- ary', `hospital', `school', `college', `university', or `institute `in English or any other language in connection with an activity whic'h is essentially the practice of optometry; "(14) to cause or permit the use of his name, profession, or professional title or in conjunction with the advertising of his professional services in any form or manner by any person; "(15) holding `himself `forth by any `means or manner of possessing pro- fessional superiority or the ability to `perform professional services in a superior manner; "(16) the employment of or any arrangement, written or oral, with persons who use their efforts or influence' to direct patronage to the optometrist; "(17) practice optometry in any retail, merëantile, or commercial store; "(18) except as provided in section 9, the jyracticing of optometry as' an employee of and pursuant to any written or oral arrangement with any person other than a duly licensed optometrist; "(19) any other unprofessional conduct as defined by the Commissioners in regulations issued pursuant to this Act. "(b) The denial, suspension, or revocation of a license issued under this Act shall be made only upon specific charges in writing and after notice and hearing (unless such hearing is waived). A certified copy of any such charge `and a notice of `hearing, specifying the time and place thereof, shall be served upon the holder of or applicant for such licen'se to practice as an optometrist in the Dist'rict of Columbia, at least twenty `days before the hearing. The respondent may waive the requirement of hearing contained in this subsection but only in writing. The respondent shall `be entitled to counsel and to call witnesses in `his defense. "(c) Upon written `application and `after `hearing, pursuant to notice, the Com- missioners may rein'state `a license `which ha's been `previously revoked, except that no application for reinstatement of a license shall `be accepted for consider- ation prior to the expiration of at least one year following the date on which the applicant's license was revoked. "SEc. 8. (a) It shall be unlawful for `any person- "(1) to engage in the practice of optometry in the District of Columbia without a valid license issued under this Act so to do; "(2) to practice or offer to practice optometry under the name of any company, association, corporation, trade name, or business name, or any other name, except his own proper name as appears on the li'cense issued to him under this Act by the Commissioners; "(3) (A) to sell or fraudulently obtain or furnish any diploma, license, or record required by this Act or required by the Commissioners under au- thority of this Act, or aid or abet in the selling, fraudulently obtaining, or furnishing thereof; "(B) to practice optometry as an optometrist under cover of any diploma, license, or record required by this Act or required by the Commissioners under authority of this Act, illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation; "(C) to use in connection with his name any designation tending to imply that he is an optometrist licensed to practice under this Act if he is not licensed to practice under this Act; or PAGENO="0014" 10 OPTOMETRY "(D) to practice optometry as an optometrist during any time his license issued under this Act shall be suspended or revoked. "(4) with the exception of nonprescription sunglasses or nonprescription protective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or con- tains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mountings, or oph- thalmic articles or devices; "(5) to solicit patients or cause patients to be solicited by means of free eye examinations or other gratuitous services, bonuses, premiums, discounts, credit, or any other inducements for the purpose of obtaining patronage; "(6) if he writes a prescription for another, to receive any part of the sum paid or other valuable considerations paid by such person to a third person for filling such prescription; or for such third person to pay to the person writing a prescription any part of the sum paid or other valuable considera- tions received by such third person for filling of such prescription; "(7) other than an optometrist or a physician or surgeon licensed under the laws of the District of Columbia to utilize the services of an optometrist on a salary, commission, lease, or any other basis, or to engage or undertake to engage, directly or indirectly, in any manner whatsoever, in the practice of optometry; "(8) to display any sign offering ophthalmic materials for sale in viola- tion of any regulation of the Commissioners issued under authority of section lOof this Act; "(9) to practice optometry without conspicuously displaying his license and his current annual renewal registration where he practices. "(b) A violation of any of the provisions of this section shall constitute a misdemeanor and shall be punished for the first offense by a fine of not more than $500, and upon a second or subsequent conviction thereof, shall be punished by a fine of not more than $1,000, or by imprisonment in the District jail for not more than one year, or by `both fine and imprisonment. "SEc. 9. (a) This Act shall not apply- "(1) to any bona fide student of optometry or medicine in the clinic roo~ns of a school of optometry or medicine approved by the Commissioners; "(2) to any commissioned officer in the armed services who is engaged in the practice of optometry in the District of Columbia insofar as such prac- tice is in the performance of his military duties; "(3) to an individual licensed in another jurisdiction who is in the District of Columbia to make a clinical demonstration before a professional society, convention, professional association, school, or college, or agency of government. "(b) This Act shall not be deemed to require a physician or surgeon licensed under the laws of the District of Columbia for the practice of medicine or surgery to have a license under this Act to perform those services defined by this Act as the practice of optometry. "(c) This Act, other than section 8, shall not apply to any person who fills the written prescription of a physician, surgeon, or an optometrist, or who repairs or restores eyeglasses or spectacles to their previous condition of usefulness, or who practices optometry as defined in section 3(2) (f), and who does not otherwise practice optometry, but this subsection shall not be deemed to authorize such a person to fit contact lenses. "(d) Nothing in this Act shall be deemed to prevent- "(1) an optometric clinic approved by the Commissioners from being conducted on a nonprofit basis by a school or college of optometry or by an association of optometrists; "(2) an optometrist from being employed by or associated with any hos- pital, clinic, group health practice, nonprofit health service, health expense indemnity corporation or group, or any department, agency, or instrumen- tality of the Government of the United States or of the government of the District Of Columbia, or as an employee of any person to render optometric service and care solely to employees of such person; "(3) the executor or administrator of the estate of a deceased optometrist from employing a licensed optometrist to carry on the practice of such de- ceased licensee during the administration of the estate, or the legal repre- sentative of a mentally disabled optometrist from employing a licensed optometrist to carry on the practice of such licensee for a period not to exceed one year; PAGENO="0015" OPTOMETRY 11 "(4) a person from acting as an assistant under the direct personal super- vision of a person licensed to practice optometry or medicine and surgery provided that such assistant does not perform an act which would require professional judgment or discretion; "(5) vision screening programs conducted under the direction or super- vision of a person licensed to practice optometry or medicine; "(6) persons from supplying spectacles or eyeglasses on prescription from any licensed optometrist or physician; "(7) a person from selling nonprescription sunglasses or nonprescription protective eyewear. "(e) Nothing in this Act shall be deemed to prohibit an optometrist from using the title `doctor' or any abbreviation thereof except that if be uses such title or such abbreviation it must be with such qualifications as may be neces- sary to clearly indicate to the public that he is an optometrist. "(f) Nothing in this Act shall be construed as conferring upon the holder of any license issued by the Commissioners the right to perform surgery upon or to treat diseases of the human eye by the use of drugs or medicine or to write or issue prescriptions for the obtaining of drugs or medicine in any form for the treatment or examination of the human eye. "SEC. 10. (a) The Commissioners from time to time shall prescribe and adopt such rules and regulations as may be necessary to carry out this Act and govern the practice of optometry and the sale of ophthalmic materials which shall include, but not be limited to, rules and regulations governing the number, size, location, and illumination of signs offering the services of (1) an individual as an optometrist and (2) ophthalmic materials for sale. With respect to the offering of services of an individual as an optometrist, such regulations shall limit the offering thereof to the carrying or publishing of a modest professional card and the display of a modest window or street sign at the location of the individual's practice, which professional card or window or street sign shall display only the name, address, profession, office hours, telephone connections, and if the practice is so limited the specialty practiced by the individual, and in the case of change of address or the starting of practice, to modest announce- ments thereof. With respect to the offering for sale of ophthalmic materials, such regulations shall limit the offering for sale thereof to a modest window or street sign at the location of the person's place of business and other modest advertisements. Nothing in this section shall be deemed to authorize any optometric service or ophthalmic materials to be advertised in any manner which includes or contains any price, cost, or reference thereof. "(b) (1) The Commissioners are authorized and empowered, after public hearing, to establish, abolish, increase, or decrease, from time to time, such fees and charges as are necessary to defray the approximate cost of administering the provisions of this Act. "(2) All funds derived from fees and charges collected in connection with the administration of this Act shall be paid into the Treasury of the United States to the credit of the District of Columbia. "(c) The Commissioners shall design and adopt a seal to be used for authenticating records and papers pertaining to the licensing and regulation of optometrists in the District of Columbia. Copies of all records and papers duly certified and authenticated by such seal shall be received in evidence in all courts of the District of Columbia equally and with like effect as the original. Records kept by the Commissioners pertaining to the licensing and regulation of optometrists in the District of Columbia shall be open to public inspection under reasonable rules and regulations prescribed by the Commissioners. "SEC. 11. The Commissioners may make such inspections, studies, and investi- gations, and obtain or require the furnishing of such information under oath or affirmation or otherwise, as they deem necessary or proper to assist them in prescribing any regulation or order under this Act, or in the administration or enforcement of this Act and any regulations or rules or orders thereunder. For such purposes, the `Commissioners may administer oath and affirmations, may require `by subpena or otherwise the attendance and testimony of witnesses, and the production of documents alt any designated place within the District of Columbia. In the event of conltumacy or refusal to obey any such su'bpena or requirement under this section, the Commissioners may make application to the District of Columbia Court of General Sessions for an order requiring obedience thereto. Thereupon, the court, with or without notice and hearing, as it, in its PAGENO="0016" 12 OPTOMETRY discr~tion, may decide, shall make such order as is proper and may punish as a contempt, any failure to comply with such order in accordance with section 11- 982 of the District of Columbia Code. "SEc. 12. Whenever, in the judgment of the Commissioners, any person has en- gaged in or is about to engage in any act or practice which constitutes or will constitute a violation of any provision of this Act, the Commissioners may make application to the District of Columbia Court of General Sessions for an order either temporarily or permanently enjoining such act or practice, and upon showing by the Commissioners that such person has engaged in or is about to engage in any such act or practice, an injunction restraining order, or such other order as may be appropriate shall be granted by the court, without bond. "SEC. 13. (a) Prosecutions for violations of any of the provisions of this Act shall be conducted in the name of the District of Columbia in the District of Columbia Court of General Sessions by the Corporation Counsel or any of his assistants. "(b) An optometrist licensed under this Act shall be considered competent after qualification by the court to present testimony relating to the practice of optometry as defined in this Act. Certificates of visual condition, acuity, and efficiency issued by any duly licensed optometrist under this Act, shall be ac- cepted as qualified evidence of the visual condition, acuity, and efficiency of the person to whom such certificate shall relate, by officers or employees of the gov- ernment of the District of Columbia in the performance of their duties. * "SEC. 14. No officer or employee of the District of Columbia shall, in the ad- ministration of any law applicable to the District of Columbia, deprive any per- son of his right to exercise his freedom of choice of an optometrist or a physician. "SEC. 15. The Commissioners are authorized to delegate to the Board of Op- tometry established by Reorganization Order Numbered 59 all or any part of the powers, duties. and functions vested in them by this Act. The Commis- sioners are authorized to delegate to any other officer or employee of the govern- ment of the District of Columbia all or any part of such powers, duties, and func- tions. Any delegation made under authority of this section shall be for such periods and subject to such conditions as the Commissioners determine neces- sary." SEC. 2. Every license to practice optometry in the District of Columbia which is valid on the effective date of this Act shall continue to be valid under the District of Columbia Optometry Act, as amended by this Act, until such date within one year of the effective date of this Act, as the Commissioners of the District of Columbia fix as the date for the automatic annual renewal for such license under the District of Columbia Optometry Act, and any such license which would have expired between the effective date of this Act and the annual renewal date fixed for such license by the Commissioners under this section shall continue in effect until such renewal date, unless sooner suspended or revoked in accordance with the District of Columbia Optometry Act. SEC. 3. Subsection (a) of section 11-742 of the District of Columbia Code is amended (1) by striking out "and" at the end of paragraph (9) ; (2) by striking out the period at the end of paragraph (10) and inserting in lieu thereof a semicolon; and (3) by adding at the end thereof the following new paragraph: "(11) final decision and orders of the Commissioners of the District of Columbia denying, suspending, or revoking any license, denying any renewal of a license or reinstatement of a license, pursuant to the District of Colum- bia Optometry Act." SEc. 4. This Act shall take effect on the ninetieth day after the date of its enactment. H.R. 12276, 90th Cong.. 1st sess., by Mr. Sisk (for himself, Mr. Dole, Mr. Adams, Mr. Teague of Texas, Mr. Fuqua, Mr. Walker, and Mr. Skubitz) on August 10, 1967 A BILL To amend the Act of May 28, 1924, to revise existing law relating to the examina- tion, licensure, registration, and regulation of optometrists and the practice of optom- etry In the District of Columbia, and for other purposes Be it enacted by the Senate and House of Representatives of the United Statef of America in Congress assembled, That the Act entitled "An Act to regulate the practice of optometry in the District of Columbia", approved May 28, 1924, as amended (D.C. Code, sees. 501-522), is amended to read as follows: PAGENO="0017" OPTOMETRY 13 "SEcTIoN 1. This Act may be cited as the `District of Columbia Optometry Act'. "SEc. 2. The practice of optometry as a profession in the District of Columbia is hereby declared to affect the public health, welfare, and safety, thus requiring regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of optometry as a profession be limited to qualified persons admitted to the practice of optometry in the District of Columbia under the provisions of this Act. "SEc. 3. As used in this Act- "(1) `Commissioners' means the Board of Commissioners of the District of Columbia or its designated agents; "(2) `practice of optometry' means, any one, any combination, or all of the following acts or practices as they are included in the curriculum of rec- ognized schools and colleges of optometry: (a) the employment of any ob- jective or subjective means for the examination of the human eye, including its appendages; (~b) the measurement of the powers or range of human vision; (c) the determination of the accommodative and refractive powers of the human eye: (d) the prescription of lenses, prisms, or frames for the aid of human eye; (e) the adaptation, utilization, or furnishing of lenses, prisms, or frames for the aid of the human eye; (f) the prescribing, directing the use of, or administering vision training or orthopties, and the use of any optical device in connection therewith; (g) the prescribing of contact lenses for, or the fitting or adaptation of contact lenses to the human eye; and (h) the identification of any departure from the normal condition or function of human eye, including its appendages; "(3) `optometrist' means, except as otherwise provided in this Act, an in- dividual licensed to engage in the practice of optometry in the District of Columbia; "(4) `person' means any natural person, corporation, association, company, firm, partnership, or society; "(5) `individual' means only a natural person; and "(6) `State' means the States of the United States, the Commonwealth of Puerto Rico, and the territories of the United States. "SEC. 4. The Commissioners shall issue a license to practice optometry in the District of Columbia to any individual who- "(1) is at least twenty-one yearsof age; "(2) is of good moral character; "(3) is mentally competent; "(4) has satisfied the Commissioners that he has had a preliminary edu- cation equivalent to the completion of a four-year course of study in an ac- credited high school; "(5) has completed a preoptometric course of at least two years at college level; "(6) has graduated from a school or college of optometry approved by the Commissioners after completion of a course of study of not less than four years; "(7) has passed written, oral, and practical examinations as prescribed by the Commissioners in the following subjects: geometric, physical and physiological optics; theoretic optometry and optics; anatOmy, physiology, and pathology, especially as they relate to the eye and to vision; general practice of optometry; special practice of optometry; practical optometric dispensing and such other subject matters as are taught in the schools and colleges of optometry and which the Commissioners deem~ necessary to deter- mine the applicant's competence to practice as an optometrist. The Commis- sioners may accepts the results of written examinations given by the Nation- al Board of Optometry, but shall conduct their own oral and practical exami- nations. The Commissioners are authorized and empowered to alter, amend, and otherwise change the educational standards at any time, but in altering, amending, or changing said standards, the Commissioners shall not be per- mitted to lower the same below the standards herein set forth; and "(8) has paid all the required fees. "SEc. 5 (a) The Commissioners are authorized to issue a reciprocity license to an individual who holds a license to practice optometry in another State. An applicant for a reciprocity license may, at the discretion of the Commissioners, he licensed without a written examination hut the must be given and pass a prac- tical and oral examination. A reciprocity license shall be granted only if- 82-754------67----2 PAGENO="0018" 14 OPTOMETRY "(1) the `State in which the applicant's license has been granted accords like privileges to the holder of a license to practice `optometry in the District of `Columbia; "(2) the license of the applicant shall not have `been suspended or re- voked by any State for any cause which is the basis for suspension or revocation of a license under this Act (other than for nonpayment of fees) unless such a license has been reinstated by such State and is in full force and effect at the time of the application for a reciprocity license under this section; "(3) the applicant for a reciprocity license has not failed to pass an examination for a license under this Act in the `District of Columbia after his admission to practice in another State. "(`b) `If an individual holding a reciprocity license granted under this sec- tion fails to actually practice optometry in the District of Columbia within one year after such license has been granted, the Commissioners may revoke such license a't any time before such individual actually begins the practice of optom- etry in the District of Columbia. "SEC. 6. Every license issued in accordance with the provisions of this Act, subject to the provisions of section 7' of this Act, shall automatically be renewed annually upon application by the holder of the license and payment of the annual renewal fee. Such annual renewal fee shall be fixed by the Commis- sioners. If the holder of a license fails to renew his license in accordance with this section, such license shall be suspended and such individual shall not thereafter practice optometry in the District of Columbia until such license shall be reinstated or a new license issued to him under this Act. If such individual thereafter applies for reinstatement of his license, it shall automatically be reinstated upon payment of all intervening renewal and other fees. If such individual fails to have his license reinstated within five years after the date it is suspended under this section, `he shall not thereafter `be licensed to practice optometry in the District of Columbia until he shall `have passed a practical examination given by the `Commissioners `and paid all inter- vening renewal and other fees. "SEc. 7. (a) The Commissioners are authorized (A) to refuse to renew, or reinstate any license authorized by this Act, and (B) to suspend or revoke any license issued under authority of this Act, for any of the following causes- "(1) the use of any title or any other word or abbreviation indicating that the licensee is engaged in the practice of medicine or surgery; "(2) conviction of a crime involving moral turpitude; "(3) willful violation or repeated violations of any provisions of this Act or any of the regulations promulgated `by the Commissioners under this Act; "(4) gross incompetence; "(`5) chronic or persistent inebriety, or the habitual use of narcotics; "(6) `affliction with a contagious or infectious disease which, in the opinion of the Commissioners, renders the practice of optometry by the licensee or `applicant for a license, dangerous to the public health; "(7) conduct which disqualifies the licensee from practicing optometry with safety to the public; "(8) advertising directly or indirectly the performance of optometric service or any part thereof. including the furnishing of ophthalmic `or optical material, in any form, manner, or way, or through any medium whether it be printed, audible, visible, electronic, or in any other fashion, except as authorized by regulations issued under section 10 of this Act; "(9) practicing or offering to practice optometry un'der any name other than that which he has been duly licensed; "(10) soliciting patients by offering free examinations or other gratuitous services, bonuses, premiums, discounts, credit, or any other inducements for the purpose of obtaining patronage; "(11) the display of any spectacles, eyeglasses, or spectacle frames or mountings, goggles, sunglasses, lenses, prisms, spectacle or eyeglass cases, ophthalmic material, optometric instruments, diagnostic devices, optical tools, or machinery, or any merchandise, material, or advertising in a manner so as to make it visible from the street or the public corridor `of a building; PAGENO="0019" OPTOMETRY 15 "(12) the display of his license, diplomas, or certificate, in such manner that they may be seen from the outside of the premises where he practices; "(13) except as provided in section 9, the use of the words~ `clinic', infirm- ary', `hospital', `school', `college', `university', or `institute' in English or any other language in connection with an activity which is essentially the practice of optometry; "(14) to cause or permit the use of his name, profession, or professional title or in conjunction with the advertising of his professional services in any form or manner by any person; "(15) holding himself forth by any means or manner of possessing profes- sional superiority or the ability to perform professional services in a superior manner; "(16) the employment of or any arrangement, written or oral, with persons who use their efforts or influence to direct patronage to the optometrist; "(17) practice optometry in any retail, mercantile, or commercial store; "(18) except as :provided in section 9, the practicing of optometry as an employee of and pursuant to any written or oral arrangement with any person other than a duly licensed optometrist; "(19) any other unprofessional conduct as defined by the Commissioners in regulations issued pursuant to this Act. "(b) The denial, suspension, or revocation of a license issued under this Act shall be made only upon specific charges in writing and after notice and hearing (unless such hearing is waived). A certified copy of any such charge and a notice of hearing, specifying the time and place thereof, shall be served upon the holder of or applicant for such license to practice as an optometrist in the Dis- trict of Columbia, at least twenty days before the hearing. The respondent may waive the requirement of hearing contained in this subsection but only in writing. The respondent shall be entitled to counsel and to call witnesses in his defense. "(c) Upon written application and after hearing, pursuant to notice, the Commissioners may reinstate a license which has been previously revoked, except that no application for reinstatement of a license shall be accepted for consider- ation prior to the expiration of at least one year following the date on which the applicant's license was revoked. "SEC. 8. (a) It shall be unlawful for any person- "(1) to engage in the practice of optometry in the District of Columbia without a valid license issued under this Act so to do; "(2) to practice or offer to practice optometry under the name of any company, association, corporation, trade name, or business name, or any other name, except his own proper name as appears on the license issued to him under this Act by the Commissioners; "(3) (A) to sell or fraudently obtain or furnish any diploma, license, or record required by this Act or required by the Commissioners under author- ity of this Act, or aid or abet in the selling, fraudulently obtaining, or furnishing thereof; "(B) to practice optometry as an optometrist under cover of any diploma, license, or record required by this Act or required by the Commissioners under authority of this Act, illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation; "(C) to use in connection with his name any designation tending to imply that he is an optometrist licensed to practice under this Act if he is not licensed to practice under this Act; or "(D) to practice optometry as an optometrist during any time his license issued under this Act shall be suspended or revoked. "(4) with the exception of nonprescription sunglasses or nonprescription protective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mountings, or ophthalmic articles or devices; "(5) to solicit patients or cause patients to be soliciated by means of free eye examinations or other gratuitous services, bonuses, premiums, discounts, credit, or any other inducements for the purpose of obtaining patronage; PAGENO="0020" 16 OPTOMETRY "(6) if he writes a prescription for another, to receive any part of the sum paid or other valuable considerations paid by such person to a third person for filling such prescription; or for such third person to pay to the person writing a prescription any part of the sum paid or other valuable considerations received by such third person for filling of such prescription;* `(fl other than a person licensed to practice optometry, medicine, or osteopathy under the laws of the District of Columbia, to utilize the serv- ices of an optometrist on a salary, commission, lease, or any other basic, or to engage or undertake to engage, directly or indirectly, in any manner whatsoever, in the practice of optometry; "(8) to display any sign offering ophthalmic materials for sale in viola- tion of any regulation of the Commissioners issued under authority of. section 10 of this Act; "(9) to practice optometry without conspicuously displaying his license and his current annual renewal registration where he practices. "(b) A violation of any of the provisions of this section shall constitute a misdemeanor and shall be punished for the first offense by a fine of not more thau $500, and upon a second or subsequent conviction thereof, shall be punished by a fine of not more than $1,000, or by imprisonment in the District jail for not more than one year, or by both fine and imprisonment. "Sue. 9. (a) This Act shall not apply- "(1) to any bona fide student of optometry, medicine, or osteopathy in the clinic rooms of a school of optometry, medicine, or osteopathy approved by the Commissioners; "(2) to any commissioned officer in the armed services who is engaged in the practice of optometry in the District of Columbia insofar as such practice is in the performance of his military duties; "(3) to an individual licensed in another jurisdiction who is in the Dis~ trict of Columbia to make a clinical demonstration before a professional society, convention, professional association, school, or college, or agency of government. "(b) This Act shall not be deemed to required a physician or surgeon licensed under the laws of the District of Columbia for the practice of medicine or osteo- pathy to have a license under this Act to perform those services defined by this Act as the practice of optometry. "(c) This Act, other than section 8, shall not apply to any person who fills the written prescription of a person licensed to practice optometry, medicine,. or osteopathy, or who repairs or restores eqeglasses or spectacles to their pre- vious condition of usefulness, or who practices optometry as defined in section 3(2) (f), and who does not otherwise practice optometry, but this subsection. shall not be deemed to authorize such a person to fit contact lenses. "(d) Nothing in this Act shall be deemed to prevent- "(1) an optometric clinic approved by the Commissioners from being conducted on a nonprofit basis by a school or college of optometry or by an association of optometrists; "(2) an optometrist from being employed by or associated with any hos- pital, clinic, group health practice, nonprofit health service, health expense indemnity corporation or group, or any department, agency, or instrumen- tality of the Government of the United States or of the government of the- District of Columbia, or as an employee of any person to render optometric service and care solely to employees of such person; "(3) the executor or administrator of the estate of a deceased optometrist from employing a licensed optometrist to carry on the practice of such de- ceased licensee during the administration of the estate, or the legal repre- sentative of a mentally disabled optometrist from employing a licensed op- tometrist to carry on the practice of such licensee for a period not to exceed one year; "(4) a person from acting as an assistant under the direct personal su-~ pervision of a person licensed by the District of Columbia to practice op- tometry, medicine, or osteopathy provided that such assistant does not per- form an act which would require professional judgment or discretion; "(5) vision screening programs conducted under the direction or super- vision of a person licensed to practice optometry, medicine, or osteopathy; "(6) persons from supplying spectacles or eyeglasses on prescription from a person licensed to practice optometry, medicine, or osteopathy; PAGENO="0021" OPTOMETRY 17 "(7) a person from selling nonprescription sunglasses or nonprescription proctective eyewear. "(e) Nothing in this Act shall be deemed to prohibit an optometrist from using the title `doctor' or any abbreviation thereof except that if he uses such title or such abbreviation it must be with such qualifications as may be neces- sary to cleary indicate to the public that he is an optometrist. "(f) Nothing in this Act shall be construed as conferring upon the holder of any license issued by the Commissioners the right to perform surgery upon or to treat diseases of the human eye by the use of drugs or medicine or to write or issue prescriptions for the obtaining of drugs or medicine in any form for the treatment or examination of the human eye. "SEC. 10. (a) The Commissioners from time to time shall prescribe and adopt such rules and regulations as may be necessary to carry out `this Act and govern the practice of optometry and the sale of ophthalmic materials which shall include, but mid be limited `to, rules and regulations governing the number, size, location, and illumination of signs offering the services of (1) an individual as an optometrist and (2) `ophthalmic materials for sale. With respect to the offering of services of an individual as an optometriSt, such regulations shall limit the offering thereof to the carrying or publishing of a `modest professional card and the display of a modest window or street sign at the location of the individual's practice, which professional card or window or stree't sign shall display only the iname, address, profession, office `hours, telephone connections, and if the practice is so limited the specialty pradticed by the individual, and in the case of change of address or the starting of practice, to modest announcements thereof. With respect to the offering for sale of ophthalmic materials, such regulations shall limit the offering for sale thereof to a modest window or street sign at the location of the person's place of business and other modest advertisements. Nothing in this section shall be deemed to authorize any optometric service or ophthalmic materials to be advertised in any manner which includes or contains any price, cost, or refer'ence thereof. "(b) (1) The Commissioners are auth'orized and empowered, after public hear- ing, to establish, abolish, increase, or decrease, from `time to time, such fees and charges as are necessary to defray the approximate cost of administering the pro- visions of this Act. "(2) All funds derived from fees and charges collected in connection with the administration of this Act shall be paid into the Treasury of the United States to the credit of the District of Columbia. "(c) The Commissioners shall design and adopt a seal `to be used for authenti- cating records and papers pertaining to the licensing and regulation of `opto- metrics in the District `of Columbia. Copies of all record's and papers `duly certified and authenticated by such seal shall `be received in evidence in all courts of the District of Columbia equally and with like effect as `the original. Records kept 1y the Commissioners pertaining to the licensing and regulation of optometrists in the District of Columbia shall be open to public inspection under reasonable rules and regula'tions `prescribed by the Commissioners. "SEC. 11. The `Commissioners may make such inspections, studies, and investi- `gations, and obtain or require the furnishing of such information under oath or affirmation or otherwise, as they deem necessary or proper to assist them in prescribing any regulation or order under this Act, or `in th'e administration or enforcement of this Act and any regulations `or rules or orders thereunder. For such purposes, the Commissioners may administer oath and affirmations, may require by subpena or otherwise the attendance and testimony of witnesses, and the production of documents at any designated place within the District of `Columbia. In the event of contumacy or refusal to obey any such subpena or requirement under this section, the Commissioners may make application `to the District of Colum'bia Cou'rt of General Sessions for an order requiring obedience thereto. Thereupon, the Court, with or without notice and hearing, as it, in its discretion, may decide, shall make such order as is proper and may punish as a contempt, any failure to comply with such order in accordance with section 11-982 of the District of Columbia Code. "SEc. 12. Whenever, in the judgment of `the Commissioners, any person has engaged in or is about to engage in any act or practice which constitutes or will conStitute a violation of any provision of this Apt, the Commissioners may make application to the District `of Columbia Court of General Sessions for `an order either temporarily or permanently enjoining such act or pradtice, and upon show- PAGENO="0022" 18 OPTO~TRY ing by the Commissioners that such person has engaged in or is aboift to engage in any such act or practice, an injunction restraining order, or such other order as may be appropriate shall be granted by the court, without bond. "Szc. 13. (a) Prosecutions for violations of any of the provisions of this Act shall be conducted in the name of the District of Columbia in the District of Columbia Court of General Sessions by the Corporation Counsel or any of his assistants. "(b) An optometrist licensed under this Act shall be considered competent after qualification by the court to present testimony relating to the practice of optome- try as defined in this Act. Certificates of visual condition, acuity, and efficiency issued by any duly licensed optometrist under this Act, shall be accepted as qualified evidence of the visual condition, acuity, and efficiency of the person to whom such certificate shall relate, by officers or employees of the government of the District of Columbia in the performance of their duties. "SEC. 14. No officer or employee of the District of Columbia shall, in the admin- istration of any law applicable to the District of Columbia, deprive any person of his right to exercise his freedom of choice of an optometrist or a physician. "SEc. 15. The Commissioners are authorized to delegate to the Board of Optom- etry established by Reorganization Order Numbered 59 all or any part of the powers, duties, and functions vested in them by this Act. The Commissioners are authorized to delegate to any other officer or employee of the government of the District of Columbia all or any part of such powers, duties. and functions. Any delegation made under authority of this section shall be for such periods and subject to such conditions as the Commissioners determinC necessary." SEC. 2. Every license to practice optometry in the District of Columbia which is valid on the effective date of this Act shall continue to be valid under the District of Columbia Optometry Act, as amended by this Act, until such date within one year of the effective date of this Act, as the Commissioners of the District of Columbia fix as the date for the automatic annual renewal for such license under the District of Columbia Optometry Act, and any such license which would have expired between the effective date of this Act and the annual renewal date fixed for such license by the Commissioners under this section shall continue in effect until such renewal date. unless sooner suspended or revoked in accordance with the District of Columbia Optometry Act. SEC. 3. Subsection (a) of section 11-742 of the District of Columbia Code is amended (1) by striking out "and" at the end of paragraph (9); (2) by striking out the period at the end of paragraph (10) and inserting in lieu thereof a semi- colon; and (3) by adding at the end thereof the following new paragraph: "(11) final decision and orders of the Commissioners of the District Of Columbia denying, suspending, or revoking any license, denying any renewal of a license or reinstatement of a license, pursuant to the District of Columbia Optometry Act." SEC. 4. This Act shall take effect on the ninetieth day after the date of its enactment. STAFF MEMORANDUM RE BILLS To REGULATE THE PRACTIcE OF OPTOMETRY, H.R. 1283 (SI5K), HR. 595 (FUQUA), HR. 732 (Hm~L), H.R. 10075 (SPRING~) PURPOSES OF BILLS To amend 1924 D.C. Optometry Law (approved May 28, 1924, 43 Stat. 177, D.C. Code, Title 2, Sees. 501-522) and set up new and improved standards to conform to those in the fifty states and territories which now require higher qualifications than the District of Columbia. MAIN PROVISIONS OF BILLS (1) The bills limit the practice of Optometry as a profession to qualified persons admitted under the Act (Sec. 2)-and declare the practice of optometry to affect the health, welfare, and safety of the public, thereby requiring regulation. Present Law: Optometry is defined as application of optical principles through technical methods and devices (2-501). PAGENO="0023" OPTOMETRY 19 (2) Practice of Optometry is defined by listing specific acts, or practices in- cluded in curriculums of recognized schools and colleges of optometry (Sec. 3(2) )-and expands and extends definition to bring it up to date with def- initions of other states. Present Law: Optometry is defined as application of optical principles through technical methods and devices (2-501). (3) Requirements for licensure (Sec. 4)-requires high school diploma plus two years college level courses preparatory to professional study and four years professional training at accredited institutions. Present Law: Requires two year high school course and graduation from a course in optometry of not less than 1000 hours (2-511). (4) Reciprocity with other states (Sec. 5)-provides reciprocity privileges to an individual licensed to practice in another state who passes a practical and oral examination. Present Law: Does not require examination of applicant for reciprocity license (2-518). (5) Revocation, suspension and refusal to grant licenses (Sec. 7)-pro- hibits advertising, displays, signs (other than modest announcements) by holders of license, and similar arrangements to solicit or induce patronage. Also prohibits practice as an employee of a person other than a duly licensed optometrist. Present law: Specifically names the following reasons only for suspension, re- vocation, cancellation or refusal of a license: crime involving moral turpitude or habitual use of narcotics. (6) Unlawful for other persons to engage in practice of Optometry (Sec. 8)- prohibits the advertising of optometric services or materials which contain price, cost or reference thereto; rebates or kickbacks; other inducements to in- duce patronage; the payment for the services of an optometrist except by another optometrist; and deceptive practices. Provides penalties for such unlawful acts. Present law: Is limited to the following: practice of optometry without a license prohibited-misrepresentation-false impersonation-penalties. (7) Ecoemptions from the Act (Sec. 9)-sets forth a series of exemptions. It provides that a physician or surgeon shall not be required to have a license under the optometry law. Opticians are permitted to fill the written prescription of a physician or an optometrist. Present law: Physicians, surgeons, persons selling spectacles or eye glasses are not goverened by the Act. (8) Power of injunction (Sec. 12)-Commisioners have right to invoke an in- junction to restrain a violation. Present law: No provision for injunction. (9) Freedom of Choice (Sec. 14)-persons with visual problems related to the practice of optometry cannot be denied their right to obtain the services of an optometrist by any agent or employee of the District of Columbia. Present law: Does not contain any provision relating to the deprivation of a person's freedom to select between the licensed disciplines who provide vision care. (10) Current licenses continue to be valid (Sec. 15)-holders of licenses on the effective date of the Act continue to be in effect. Mr. SIsK. I might say that several Members have introduced bills on this subject: H.R. 595 by the gentleman from Florida, Mr. Fuqua; H.R. 732 by the gentleman from Missouri, Mr. Hull; H.R. 10075 by the gentleman from Illinois, Mr. Springer; H.R. 12297 by the gentleman from Min- nesota, Mr. Nelsen, along with the gentleman from California, Mr. Clausen; and also as cosponsors of my bill, H.IR. 12276, we have the gentleman from Texas, Mr. Teague; the gentleman from Florida, Mr. Fuqua; the gentleman from New Mexico, Mr. Walker; the gentleman from Kansas, Mr. Skubitz; the gentleman from Kansas, Mr. Dole; and the gentleman from Washington, Mr. Adams. PAGENO="0024" 20 OPTOMETRY BACKGROUND The Chairman would like to make a brief statement, prior to hearing testimony this morning, in order to give a little background on this particular legislation. During the 89th Congress, Subcommittee No. 4, under the chairman- ship of the Honorable John Dowdy of Texas, held detailed hearings on similar legislation in March and May 1966. The printed hearing record on optometry before Mr. Dowdy's subcommittee contains almost 400 pages. That record will be incorporated by reference with the testi- mony which is presented before this subcommittee on the pending bills. During the last Congress, this Committee received testimony, pro- fessional data and exhibits, and arguments from essentially every professional or other occupational group, organization and person directly or indirectly interested in the practice of optometry. Although the record on this legislation is quite complete, the Committee is hold- ing these additional hearings to receive any new and important in- formation which may not already be in the evidence before the Committee. I strongly suggest that the witnesses who will appear this morning devote themselves to any new information they desire to present to the Committee, and to avoid unnecessary duplication of material al- ready a part of the Committee record. Let me make it very clear at this point, and I believe I speak for every Member of the Committee, that our concern in these hearings is the visual health of the citizens of the Nation's Capital. Good vision is probably the most important element in the health, safety, and welfare of the people of the community. The public should be assured that the eye care available to the public in the District of Columbia will offer the highest standards and professional skills. The attention of this Committee will be directed toward progress in this public health area as we consider the statements and testimony on the bills before us today. The public is entitled to the assurance that any person engaged in the practice of optometry achieves his patronage from his skill, ability, and the reputation he creates for the excellence of his professional service and the good visual hea.lth of his patients. PRESENT LAW The present law governing the practice of optometry in the District of Columbia was enacted in 1924. (Act of May 28, 1924, 43 Stat. 177; D.C. Code Title 2, Sec. 501 et seq.) This Act has not been amended by the Congress since that date. During the 43 years since that law was enacted, every other State in the Union and our territories have amended their laws relating to the practice of optometry or in other ways improved the laws governing such practice to bring them more closely into conformity with modern education and new technical skills developed in the practice of optometry. The la.ws relating to the practice of optometry for the District of Columbia need to be modernized and improved. The Board of Optometry receives numerous complaints concerning unethical prac- PAGENO="0025" OPTOMETRY 21 tices and the quality of eye care received in some instances. The ifies of these complaints indicate use of unethical practices and revolving door techniques which were outlawed many years ago in connection with other health related professions. The public is enticed into some eye care establishments on rep- resentations of high professional skills, excellent quality of `optical goods, and refunds or adjustments if the patient cannot be fitted or is not satisfied with the service. When these inducements are not realized by the patient, and he is entitled to a refund or an adjustment, he may be advised by the local establishment which extracted the fee for service that he will `have to arrange for any refund or adjustment with the home office in New York City. The patient is astonished that such practices exist in the District of Columbia-he is more astonished when he finds that the officials of the District of Columbia, the Board of Optometry, and the prosecuting officers of the District are power- less to act. Yet, this has `been and is now going on in the Nation's Capital. The Congress has recognized Optometry as one of the health pro- fessions which is critically short of manpower by including it in the Health Professional Educational Assistance Act in 1963, and again in the Allied Health Professions Personnel Training Act of 1966, which provided for the training of medical technologists, optometric technologists, dental hygienists, the three types of health auxiliaries most needed for health care of the Nation's population. Following the action by Congress this year in extending the Universal Military Training Act, the President singled out optometric students along with medical and dental students `for special deferments from the draft in an executive order to implement the draft extension. Further, the Armed Services recently issued a special call for optometrists to serve the vision needs of our fighting forces. It is the hope of th'e Committee that we may be able to complete the receiving of testimony on the pending bills today. If not hearings will continue tomorrow. To accomplish this I am asking witnesses to limit their oral testimony to ten minutes per witness and to file any longer and more amplified statements with the Committee if they do so desire. Your cooperation in this respect will be appreciated. I might say there are several members of `Congress who have intro- duced legislation on this subject, so at this time it is the Chair's intention to recognize any Member of Congress for such brief state- ment as he might desire to make. I believe the gentleman from Florida, Mr. Fuqua, who will be sitting with U's part of the time, though not a member of the Subcommittee, does have a statement to make. The `Chair recognizes the gentleman at this time. STATEMENT OP HON. DON PUQUA, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP FLORIDA Mr. FUQUA. Thank you very much, Mr. Chairman and members of the Subcommittee. Mr. chairman, I am pleased that this committee is starting work on this bill to regulate optometry in the District of Columbia. I for PAGENO="0026" 22 OPTOMETRY one agree wholeheartedly with you that such regulation is indeed a matter for careful consideration by this subcommittee a.nd the House District Committee. As you know, I have had concern in this area for some time, and introduced a bill last year, as well as H.R.. 595 in this Congress, for the purpose of correcting the present antiquated 1924 District of Columbia Optometry Law. My bill, I might add, Mr. Chairman, is virutally identical to your bill, H.R. 1283. I asked the Library of Congress to supply us with a point by point comparison of H.R.. 595 and the existing District Optometry Law. Careful study of that comparison has convinced me of the need for passage of a revised optometry law at the earliest possible moment. Our foremost consideration should be the good of the public. I would like to submit for the record the Library of Congress analysis of H.R.. 595 for the Committee's reference. To quote briefly from this analysis: H.R. 595 would substantially modify the present provisions of 2-501-522 of the District of Columbia Code. The purpose of the modifications is the imposi- tion of exacting requirements over the profession and practice of optometry in the District of Columbia. The comparison further points out that the present law concerns itself primarily with establishment of `a Board of Optometry whose principal functions are the conduct of examinations for licensure to practice optometry and the conduct of hearings to revoke, cancel or suspend licenses. The Library of Congress report `also states, "H.R 595 makes substantial improvements on a Code which has `not been significantly amended since its enactment on May 28, 1924 (43 Stat. 177) ." The comparison notes, one of the effects of these various amendments, partic- ularly the definition of the term "the practice of optometry", is to take the adaptation and fitting of contact lenses out of the hands of opticians and placing it exclusively in the hands of physicians and licensed optometrists. The Library of Congress summarizes the need for a new law. It says: Significant effects of the bill's provisions setting up a code of conduct and defining unlawful acts with respect to the practice of optometry are: (1) the elimination of price-cost and other bait advertising techniques and practices; (2) the elimination of fee-splitting, rebating or other commission arrangements offered as inducements to obtain patronage; (3) the guarantee of an absolute freedom of choice of a practitioner on the part of the person needing the services of an optometrist with respect to the administration of any law of the District of Columbia; (4) the confinement of advertising of professional services to modest professional cards and announcements, and to modest street or window signs at the place of business; (5) the confinement of the practice of optometry to a professional office by prohibiting its practice in retail, mercantile or com- mercial stores or premises that are not exclusively devoted to the practice of optometry or other health professions. This genera.l description clearly outlines the need for and intent of H.R. 595 or similar legislation which we will consider today. The comparison also points out that no provision in the bill would work to abolish the Board of Optometry. The District Commissioners could continue to delegate all or any part of their powers and authority to such a Board upon whatever terms and conditions as may appear necessary and proper. PAGENO="0027" OPTOMETRY 23 The proposed bill clearly spells out what constitutes the practice of optometry, by defining under Section 3 a number of terms used in the Act. These specifics reflect the wide range of procedures for ex- amination and correction of conditions of the eye as currently taught in recognized schools and colleges of optometry and as described in State laws governing, the practice of the profession. Section 4 of the bill establishes much more stringent requirements for licensing to practice optometry in the District of Columbia. The existing law fails to set forth many of the necessary requirements. To mention just one or twO for which the new bill provides, the applicant for a license must be mentally competent; must have completed a two- year pre-optometric course at the college level; must pass a written, oral and practical examination in five different fields of scientific knowledge and skills . . . three of which are not spelled out in the `present law. These are just a few points which will work to improve `the practice of optometry in the District if this bill is enacted into law. There are some 41 additional points in the bill which are not contained in the existing law. I will mention at this point, that in the Great State of Florida, *the profession of optometry is held in high regard. The continuing legislative improvement of our State laws governing the practice of optometry helps to maintain the high quality of the professional practice. It is usually agreed that Florida has one of the better opto- `metric laws in the United States, and we are proud of it. By comparison with Florida optometric laws, the District of Co- lumbia is far behind in proper control of the practice of professional optometry. Action can and should by now have been taken to clear `for passage a vastly-improved optometric law for the District. I would like to ask permission at this time to make the analyses by `the Library of Congress part of the record, Mr. Chairman. Mr. SIsK. Without objection, the request is granted and it will be- come part of the record following your remarks. Mr. FUQUA. As you mentioned, Mr. Chairman, it has been since 1924 that there has been any change in the law of optometry in the District of Columbia. The present law provides mainly for the establishment of `a Board of Optometry and that is about the extent of its procedure. One of the things that I think the new bill provides is the elimina- tion of the price., cost, and other bait advertising techniques and practices, and the elimination of fee splitting and rebating, and other commission arrangemen1~s as an inducement to obtain customers, and it also provides for the guarantee of absolute freedom of choice of a practitioner on the' part of the person needing the services of an optometrist with respect to the administration of this proposed law. Then there are changes in advertising and other thin~rs. It provides and clearly spells out what constitutes the pra'ctice of optometry and also relates to contact lenses. I think it is very significant that we have this legislation. (The Library. study and analysis referred to follows:) PAGENO="0028" 24 OPTOMETRY THE LmRARY OF CONGRESS, Washington, D.C. Jitne 8, 1967. To: House District of Columbia Committee, Attention: Honorable Don Fuqua~ From: American Law Division. Subject: Comparison and Analysis of H.R. 595, 90th Congress with Correspond- ing Provisions of the District of Columbia Optometry Act. Pursuant to your request, there is enclosed herewith a section analysis and comparison of H.R. 595, 90th Congress, with comparable provisions of the Dis- trict of Columbia Code. As constructed, H.R. 595 would substantially modify the present provisions of §~ 2-501-522 of the District of Columbia Code. The purpose of the modifications is the imposition of exacting requirements over the profession and practice of optometry in the District of Columbia. Under the present provisions of the D.C. Code, the concern is primarily with. the establishment of a Board of Optometry whose principal functions are the con- duct of examinations for licenses to practice optometry in the District of COlum- bia, and the conduct of hearings to revoke, cancel or suspend licenses for any of the following causes: (1) conviction of a crime involving moral turpitude: (2) habitual use of narcotics, or other substances impairing the intellect and judgment to an incapacitating extent with respect to optometric duties; (3) a conviction for falsely representing oneself as a licensed optometrist; falsely representing one- self as capable of examining the human eye; and, the impersonation of, or claim- ing to be, a person duly licensed under the Code. ER. 595 makes substantial improvements on a Code which has not been signifi- cantly amended since its enactment on May 28, 1924 (43 Stat. 177). In this latter regard, section 2 of the bill declares optometry to be a profession subject to regulation in the interest of public health and welfare, and limits its. practice to persons meeting the substantial qualifications and requirements pre- scribed in the bill. From this declaration, the bill i~aturally progresses to a dé~fi- nition of the key term "practice of optometry", the educational prerequisites for taking the prescribed written, oral and practical examinations (the latter two being not presently required), and, an outlining of the code uf conduct, and the prohibitions, which must be strictly adhered to, and followed, under penalty of revocation, suspension or cancellation of a valid license. One of the effects of these various amendments-particularly, that of the deffni- tion of the term "practice of optometry"-is to take the adaptation and fitting of contact lenses out of the hands of opticians and placing it exclusively in the hands of physicians and licensed optometrists. Significant effects of the bill's provisions setting up a code of conduct and de- fining unlawful acts with respect to the practice of optometry are: (1) the elimi- nation of price cost and other bait advertising techniques and practices; (2) the elimination of fee-splitting, rebating or other commission arrangements of- fered as inducements to obtain patronage; (3) the guarantee of an absolute freedom of choice of a practitioner on the part of the person needing the services of an optometrist with respect to the administration of any law of the District of Columbia; (4) the confinement of advertising of professional services to modest professional cards and announcements, and to modest street or window signs at the place of business; (5) the confinement of the practice of optometry to a pro- fessional office by prohibiting its practice in retail, mercantile or commercial stores or premises that are not exclusively devoted to the practice of optometry or other health professions. While the bill speaks in terms of vesting powers and authority in the Com- missioners of the District of Columbia. nevertheless, there appears to be no provisions therein that would work an abolishment of the present D.C. Optometry Board, nor is its abolishment likely in view of the fact that specific provisions in the bill authorize the Commissioners to delegate all or any part of the powers and authority therein granted to said Board upon any terms and conditions as to them may appear necessary and proper. There follows a comparison of the bill with its corresponding provisions. if any, of the D.C. Code. ROBERT M. U,TEvIcH, Legislative Attorney. PAGENO="0029" COMPARISON OF HR. 595 AND PRESENT LAW H.R. 595 TITLE 2, D.C. CODE Sec. 1-cites the Act as the "District of Columbia Optometry Act". See. 2-declares optometry to be a profession subject to regula- tion in the public interest. Limits its practice to persons quali- fied and licensed under this Act. Sec. 3-defines certain terms used in the Act. The most significant definition is that of "practice of optometry", which is defined in functional terms as: (1) an examination of the eye and its appendages by objective or subjective means; (2) the measure- ment of the eye's power or range of vision; (3) the determina- tion of the eye's accommodative and refractive powers; (4) the determination of the eye's scope of functions, in general; (5) the prescribing of eye lenses, prisms or frames; (6) the adapt- ing, utilizing or furnishing of the latter to aid the eye; (7) the prescription, application, or direction of visual training or orthop- tics, and the use of related optical devises in connection there- with; (8) the prescribing, fitting, or adapting contact lenses for the eye; (9) the identification of abnormal conditions and func- tions of the eye. No comparable provision. § 502-prohibits unlicensed persons from practicing optometry. No comparable provision respecting professional status, and need for regulation, of the practice of optometry. §~ 501, 502-section 501 defines the "practice of optometry" as the use of ". . . optical principles through technical methods and de- vices. . . ." to examine the eye for visual defects, and adapt lenses for the aid and relief thereof. Section 502 appears to clarify the above definition in making it unlawful to attempt to examine the eyes to determine the kind of eyeglasses needed- unless licensed to do so under the Code. 0 PAGENO="0030" COMPARISON OF ll.R. 595 AND PRESENT LAW-Continued lIlt. 595 Sec. 4-establishes the requirements for licensing under the Act. In this respect, prospective hcensees must: (1) be at least 21 years of age ; (2) be of good moral character; (3) be mentally conll)etent ; (4) have completed high-school, or its equivalent (5) have completed a 2 year, college level, preoptomnetric course (0) have completed a 4 year course of study at an approved school of optometry ; (7) have passed required written, oral and practi- cal exantinations in : (a) geometric, physical, and physiological optics ; (b) theoretic optometry and optics ; (c) anatomy, phys- iology and pathology especially as they relate to the eye and Vision ; (d) general and special optometry practice; (e) practical optometric dispensimig ; (f) such other subjects as may he deemed necessary; (8) pay the required fees. (NOTE: The results of writ- ten examinations given *by the National Board of Optometry may be accepted in lieu of the written examination required above. The oral and practical examinations, however, may miot be waived. There is no similar provision in the present D. C. Code.) Sec. 5(a)-~authorizes the issuance of reciprocity licenses to appli- cants if: (1) their licensing state accords like privileges to licensed Dis- trict of Columbia applicants; (2) their current license is in full force and effect; (3) after licensing in another state, they have not failed an examination under this Act; TITLE 2, D.C. CODE § 511-a comparison of the Code provisions with those of the pro- posed Act is as follows: (1), same (2) same (3) not spccilically stated (4) same (5) No comparable i~rovision (0) requires graduation from an approved school of optometry offering a 5 year course of study at college level (7) must pass a written examination only, covering the sub- jects of: V (a) physiologic optics-geometric and J)hysical not stated (b) same (c) sante (d), no comparable provision (e) no comparable provision (f) see § 512 authorizing the Board of Optometry to change the educational standards (8) same. (NOTE: Examination subjects not stated above or included in the proposed Act are: theory and practice of orthoptics and visual training; theory and practice of contact lens fitting). § 518-authorizes issuance of reciprocity licenses to applicants if: (1) same; (2) same; (3) they have not previously failed to pass the District o~ Columbia examination; 0 H PAGENO="0031" (4) they pass the District of Columbia oral and practical examinations. (b)-authorizes revocation of reciprocity licenses if grantee fails to practice optometry in the District within one year of its issuance. Sec. 6-requires annual renewal of all licenses issued hereunder upon payment of fees to be prescribed. Non-payment results in suspension. Suspended licenses may be reinstated-up to 5 years -upon payment of all intervening renewal and other fees. After 5 years, reinstatement requires payment of all intervening renewal and other fees, plus the taking and passing of the practical ex- amination authorized in this Act. Sec. 7(a)-sets up 19 causes for the suspension, revocation, and refusal to renew or reinstate licenses under this Act. Briefly they are as follows: (1) use of records, abbreviations and titles indicating licensee practices medicine or surgery; (2), conviction of a crime involving moral turpitude; (3) willful or repeated violations of the Act, and regulations; (4) gross incompetence; (5) chronic or persistent inebriety; the habitual use of drugs; (6) affliction with a contagious or infectious disease danger- ous to public health; (7) unsafe professional conduct; (8) unauthorized advertising of services; (9) practicing, or offering to practice, under a name other than that under which he was duly licensed; (10) soliciting by means of gratuitous offers, discounts, etc; (11) displaying trade materials, devices, instruments, or ad vertising in a manner making them visible from the street or public corridor of a building; (4) no comparable provision. (NOTE: In addition to the above, the licensing state's standard of requirements must be equal to that of the District. No similar provision is to be found in the proposed Act.) No comparable provision. § 514-requires annual renewal of licenses upon payment of the prescribed fee, the non-payment of which may result in a revoca- tion upon expiration of the required 60 day notice. Renewals of such licenses may be had upon payment of the renewal fee plus a $5 penalty. Revocations caused by non-payment, due to retire- ment, may be reinstated, up to 5 years, upon payment of the re- newal fee. § 516-sets up the causes for the suspension, cancellation, revoca- tion, or refusal to grant, a license. A comparison `of these causes with those in the proposed Act follows: (1) § 519 contains an identical prohibition, and extends further to prescribing, diagnosing and treating for diseases or in- juries to the eye; (2) same; (3) no comparable provision; (4) no comparable provision;' (5) use of narcotics, or other substances, to an extent impair- ing intellect and judgment; (6) no comparable provision; (7) no comparable provision; (8) no comparable provision;. (9) no comparable provision; (10) no comparable provision; (11) no comparable provision; 0 0 H PAGENO="0032" COMPARISON OF H.R. 595 AND PRESENT LAW-Continued HR. 505 Sec. 7 (a)-Coiitinued (12) displaying licenses, diplomas or certificates to outside viewing; (13) using certain unauthoriEed words in connection with the practice of `optometry; (14) `permitting or causing unauthorized advertising of serv- ices by any person; (15) claiming professional or service superiority; (10) employing or arranging with others for the solicitation of patronage; (17) practicing optometry in any retail, mercantile, or com- mercial store; (18) practicing optometry, or an employee or `otherwise, with anyone other than a duly-licensed optometrist; (19) such other unprofessional conduct as may be defined iii regulations issued pursuant to' this Act. (b) -permits supervision or revocation only upon specific written charges and after notice and hearing. Respondent may waive the hearing, and `may have counsel and witnesses at `any hearing. (c) -authorizes reinstatement of revoked licenses u'pon expiration of one year from date of their revocation. Sec. 8 (a ) -makes it unlawful for persons to: (1) practice optometry without a valid licen'se; (2) practice optometry under other than the proper name ap- pearing on their license; (3) (A) aid, abet, or engage, in selling, furnishing or fraudul- ently obtaining diplomas, records, or licenses required `by the Act; (B) practice under diplomas, records, or licenses illegally or fraudulently obtained or signed, or issued unlawfully or under fraudulent representation; (C) append any designation to his name that implies lie is licensed when, in fact, he is not; No comparable provision. § 502-makes it unlawful for persons to: (1) same; (2) no comparable provisions; (3) (A) no comparable provision; (B) no comparable provision (0) substantially similar in that it prohibits one from repre- senting himself to `be licensed when, in fact, lie is not, or, to im- personate a licensee; TITLE 2, D.C. CODE § 510-Continued (12) no comparable provisiOn; (13) no comparable provision; (14) no comparable provision; (15) no comparable provision; (10) no comparable provision; (17) no comparable provision; (18) no conmparable provision; (19) no comparable provision. § 517-same. 0 PAGENO="0033" (D) practice under a suspended or revoked license (4) sell prescription eyewear `without a `written prescription from a licensed physician or optometrist; (5) cause to be advertised, or to advertise the price cost of any optometric or ophthalmic material, `whether related to eye examinations, the cost or price of lenses, glasses, mountings or ophthalmic articles or devices; (6) offer free examinations, services, bonuses, premiums, dis- counts, credits, etc.; as inducements to solicit, or cause the solicitation of, patients; (7) receive rebates or commissions on prescriptions, or to give the same; (8) be gainfully employed by a person who is not an optom- etrist; (9) display signs offering ophthalmic materials, for sale, in violation of regulations promulgated pursuant hereto; (10) fail to conspicuously display license and renewal certifi- cate in his business premises; (b)-prescribes a $500 fine for conviction of a first violation here- under; a fine of $1000, imprisonment for not more than 1 year, or both, for a second or subsequent conviction. Sec. 9(a)-provides that the Act shall not apply: (1) to bona fide optometry students in approved optometry schools; (2) to armed services optometrists whose practice is in the performance of their military duties; (3) to individuals licensed elsewhere while making clinical demonstrations in the District; (b)-to physicians or surgeons, licensed under D.C. laws, perform- ing services herein defined as the practice of optometry; (c ) -to persons filling written prescriptions of physicians, sur- geons and optometrists (if Sec. 8 hereof is complied with), and persons repairing or restoring eyeglasses or spectacles, and adapt, utilize or furnish lenses or prisms or frames. But such persons may not fit contact lenses; (D) no specific provision, but may be implied ~roni revocation, etc. provisions of § 516 (4) no comparaible provision (5) no comparable provision (6) no comparable provision (7) no comparable provision (8) no comparable provision (9) no comparable provision (10) § 513 requires the license to be conspicuously displayed in his principal office or place of business; (b)-~ 502 prescribes a $500 fine for conviction on a first. offense; a fine of not less than $500 nor more than $100, imprisonment for not less than 3 months nor more than one year, or both, for subsequent offenses and convictions. § 520-provides the Act shall not apply: (1) no comparable provision (2) no comparable provision (3) no comparable provision (b)-same;. (c)-Sec. 520(b) makes the Act inapplicable to persons selling eyeglasses or spectacles if they do not directly or indirectly adapt them to the eye, and do not practice or profess to practice op- tometry; 0 C PAGENO="0034" COMPA1~JSON OF I-LR. 595. AND PRESENT LAW-Continued U.R. 595 TITLE 2, D.C. CODE See. 9-Continued. § 520-Conti nue(i ((1)-provides that nothing herein shall be deemed to prevent: (d) no comparable provision. (1) time conduct of approved non-profit clinics; (2) employment as an optometrist with hospitals, clinics, group health practice, nonprofit health service, health ex- pense indemnity corporation or group, or any department, agency or instrumentality of the Federal and District gov- erninents ; (3) emnploymeiit of an optometrist by the representative of a deceased or mentally disabled optometrist to carry on such licensee's practice for a period not in excess of 1 year; (4) Properly conducted vision screening programs (by licensed physicians and optometrists). Sec. 9(e)-use of the title "Doctor" when such use clearly indicates user is an optometrist. Sec. 10(a)-~authorizes regulations necessary to carry out the pur- § 505-empowers the Board of Optometry to make all by-laws and poses of this Act. Requires regulations: regulations necesary to carry out their duties properly. No other (1) limiting advertising of services to a small professional provisions in the Code are comparable to remainder of Sec. 10(a). card (contmiiniimg name, . phone, address, specialty,, office hours), to modest street or window signs at place of busi- ness, and to mO(lest announcements of the removal of offices to a new address, or the opening of a practice; (2) limiting advertising (not including references to prices, cost, etc.) of opthalmic devices, for sale, to a modest window or street sign at the place of business; (b) (1)-authorizes, after public hearing, the increase, decrease, or § 514-establish set fees for licenses, renewals, amid examinations. abolishment of fees and'charges hereunder; No autho$ty granted to change or abolish the set fees. (Z) requires all receipts of fees and charges to be deposited in the No comparable provision, the 11,5, Treasury to the credit of the District; PAGENO="0035" (3) requires the adoption of a seal to certify and authenticate docu- ments. Provides that certified copies of documents shall be re- received in all courts in the District, and requires records to be open to public inspection. Sec. 11-authorizes inspections, investigations and studies to gather information for needed regulations, or for the administration and enforcemen,t of the Act. Grants authority to administer oaths and affirmations in this area, issue subpoenas for documents and wit- nesses, and to apply to the District of Columbia Court of General Sessions for orders to force `compliance with subpeonas. Sec. 12~-grants authority to apply `to the District Of Columbia Court of General Sessions for temporary or permanent injunctions to re- strain threatened or actual violations of this Act. Sec. 13(a) -requires the Corporation Counsel tO prosecute viola- tions hereof in the aforesaid Court of General Sessions; (b)-provide that licensed optometrist, under this Act, shall be con- sidered, after qualification by the Court, competent in their pro- fes'sion for testimonial purposes, and their certificates relating to visual acuity, condition and efficiency shall be accepted as qual- ified evidence by officers and employees of the District govern- ment in the performance of their duties. Sec. 14-prohibits officers and employees of the District government from interfering with a person's freedom to choose his own optom- etrist, if `the services of one is required in connection with the administration of any law applicable to the District, 515-requires the Board of Optometry to adopt a seal and li- cense. § 508 require~s Board records to be open to public inspection. No specific provisions as to evidentiory quality of certified copies, but as a matter of court practice and rules, certified copies are ac- ceptable in evidence, and § 14-501, D.C. Code provides that a docu- ment under seal of the keeper thereof is sufficient proof of `the fact of the record, and is prima fade evidence of that fact. No comparable provisions. No comparable provisions. (a)-~ 502 is `the same, but carries no reference to the court. (b)-no comparable provisions. No comparable provisions. PAGENO="0036" COMPARISON OF H.R. 595 AND PRESENT LAW-Continued u.n. 595 TXTLS 2, D.C. CODE Sec. 15-authorizes and provides that: No comparable provisions. (1) all functions hereunder may be delegated to the present Board of Optometry, or to any officer or employee of the Dis~ trict government, upon such terms and conditions as may be desirable or necessary. (2) licenses currently in effect shall remain in effect until the newly declared renewal date, unless sooner revoked or sus~ pended. (3) amends § 11-742, D.C. Code so as to rest jurisdiction in the District of Columbia Court of Appeals to review orders and decisions denying, suspending revoking, or failing to renew or reinstate any license to practice optometry. (4) sets the effective date of the Act (90 days after its enact' ment). PAGENO="0037" OPTOMETRY 33 Mr. SIsK. Are there any other statements? Mr. HARSHA. I would like to ask Mr. Fuqua a question, if I may. Is there any difference between your bill, H.R. 595, in the 90th Con- gress and the one you introduced in the 89th? Mr. FUQUA. Yes. Mr. HARSHA. There are changes? Mr. FUQUA. Yes. As a result of those hearings, we tried to correct some objections that certain individuals had expressed. There are some minor changes in H.R. 12276 that the Chairman and I introduced last week. Mr. HORTON. In that connection, could we have a breakdown from the staff for our purposes of the various bills regarding the differences between these bills and those introduced in the last Congress? Mr. SI5K. I think a breakdown is available. To the extent it is not, we shall provide that. At this time, then, I would like to call to the witness stand our first witnesses, from the American Optometric Association, Dr. W. Judd Chapman, Chairman, Committee on Legislation, and with him Dr. Henry W. Hofstetter. At this time 1 again recognize the gentJem~n from Florida who has some comments with regard to Dr. Chapman. Before you testify, Dr. Chapman, I would like also to recognize our colleague, Congressman Jacobs, to make some comments. Mr. FUQUA. I have a distinct honor this morning, gentlemen, in the opportunity to introduce Dr. W. Judd Chapman, an optometrist from Tallahassee, Florida, whom it has been my privilege to know for many years. Dr. Chapman has attended the University of Florida, preparatory to his graduate work at the Northern Illinois College of Optometry in Chicago, where he was awarded the O.D. degree in 1949. Typical of the modern-day professional optometrist, Dr. Chapman has re~ turned to well-respected schools of optometry to further his education on a post-graduate basis since entering practice, including post- graduate work in the contact lens field at the University of Houston School of Optometry. Within the past decade, Dr. Chapman has served as President of the Florida State Board of Examiners in Optometry, and he knows very well the laws of our state governing practice of the profession. Within the framework of professional optometric organizations, he is a Fellow in the American Academy of Optometry, and a member of the Ameri- can Optometric Foundation, as well as an active member of the American Optometric Association which he represents here today. Indicative of the esteem of his fellow practitioners is the fact that he was chosen by them to serve as President of the American Optometric Association in 1964, and he served the profession with distinction as an outstanding spokesman for optometry and for the improvement of the profession through better education and improved standards of ethical practice. Dr. Chapman has also given freely of his time in the service of his country, and is currently serving as National Consultant in Optometry for the U.S. Air Force. PAGENO="0038" `34 OPTOMETRY 1 irnow Dr. Chapman's testimony here today will be most enlighten- ing'to the subcommittee, and I feel sure he will welcome any questions you may wish to direct to him. It is a pleasure for me today to present to the Committee to enlighten us regarding some of the provisions of this bill my good friend, Judd Chapman. Mr. SIsK. I would like to recognize Mr. Jacobs for some comments. Mr. JACOBS. As a representative from Indiana, I would like to under- score how privileged I think we are today to have with us a gentleman who has distinguished himself in this field of optometry in many ways. He graduated in 1942 from Ohio State University with a Ph.D in Physiological Optics. Dr. Henry W. Hofstetter is Director of the Division of Optometry at Indiana University in Bloomington, Indiana. His leadership in this important area of study has brought honor to the University, certainly in matters dealing with this profession. While'Dr. Hofstetter is a native of Ohio we are pround to claim him as a full-fledged Hoosier for both his past and present contributions at Indiana University. Having taught elementary school in the Middlefield, Ohio public schools prior to starting his optometric education, Dr. Hofstetter very early in his career gained a keen firsthand awareness of the importance of good vision, especially as it. applied to the. ability of students to live and work in an increasingly complex world. His later positions as instructor and professor of optometry in some of the Nation's top optometry schools and Dean of the Los An- geles College of Optometry prepared him well for his present position with our now famous and growing Division of Optometry at Indiana University. I might say that is my own alma mater, Mr. Chairman. Dr. Hofstetter is one of the most requested speakers on the opto- metric circuit for post-graduate lecture courses around the Nation. He is one of the most published of all American optometrists, writing on a wide range of subjects relating to the scope of modern optometric education and optometric practice. His work includes an important reference work, the Dictionary of Visual Science, as well as 126 other papers, reviews, books and literature on such important aspects to Optometry as Vision of the Aging Patient., Night Drivers' Vision, Careers in Optometry, Industrial Vision, and numerous other tech- nical subjects. Dr. Hofstetter has served in responsible positions within recognized organizations at the local, state and national levels ever since his graduation from optometry college. Currently he serves as President- elect of the American Optometric Association, an organization of over 14,000 professional optometrists, and will succeed to the AOA presi- dency next June. He is a man who also has given generously of his time for the visual welfare of the Nation. For example, he recently completed a term as a member of the Advisory Council for the Education of the Health Professions, under appointment by the Public Health Service of the Department of Health, Education, and Welf are. He is currently a consultant to the Division of Physician Manpower, Bureau of Health Manpower of the Public Health Service. PAGENO="0039" OPTOMETRY 35 Dr. Hofstetter is here to supply any additional technical or general information that any committee members may desire after hearing the testimony of Dr. Chapman. I am sure the committee will benefit considerably from questioning Dr. Hofstetter, particularly with reference to the affluent training of his students in optometry which they receive at Indiana University and the country's other respected schools and colleges of optometry. I might say, Dr. Hofstetter, both literally and figuratively it is a pleasure to see you here this morning. Mr. SISK. Thank you. The committee will be glad to hear from you gentlemen now. I understand you have `a substantial statement which, without objec~ tion, will be made part of the record. STATEMENT OP DR. W. JUDD CHAPMAN, CHAIRMAN, COMMITTEE ~ON LEGISLATION `OP THE AMERICAN OPTOMETRIC ASSOCIATION; ACCOMPANIED BY DR. HENRY W. HOFSTETTER, DIRECTOR OP `THE DIVISION OP OPTOMETRY, INDIANA UNIVERSITY; AND `HAROLD KOHN, `GENERAL COUNSEL, AMERICAN OPTOMETRIC ASSOCIATION Mr. SIsK. You may proceed to make any other statement you desire. `(Dr. Chapman's prepared statement follows:) STATEMENT OF W. JUDD CHAPMAN, O.D'., ON BEHALF OF THE AMERIcAN O~ro~1ETI~Io AssoCIATION Mr. Chairman, members of Subcommittee Number Five, of the House District Committee, it is a pleasure to appear before you today and to speak in support of H.R. 1283. I am Dr. W. Judd Chapman, practicing optometrist from Tallahassee, Florida, and Chairman of the American Optometric Association's Committee on Legislation. PURPOSE OF BILL The purpose of the bill is simple. It elevates the practice of optometry in the District of Columbia to the level of a profession as recognized in the other states and territories of our Union. By doing so, it takes away from the unlicensed, the unqualified and the unscrupulous the power to use the license of an optometrist for selfish profit-motivated purposes. It also places some limits on those who would lure the public to a commercial establishment for the primary purpose of selling them a pair of glasses `at a profit. Those who oppose this bill do so because it limits their ability to make a gain from the practice of optometry. I submit, Mr. Chairman, that the usual rule of the market place should not apply to the practice of optometry. The classical, free market, supply-and-demand system of economics, cannot, by itself, effectively control or regulate today's practice of optometry. An essential feature of a free market operation is wide open competition to contain prices and to promote quality of the product. We, of the American Optometric Association, recognize the great value of the American system of free competition. We are an organization of competing individuals but we have banded together for the purposes of better service to the public and we recognize that there must be limitations placed on the manner and scope of our competition for the protection of the public. The consumer finds it far more difficult to judge the quality of health service he receives than he does the quality of other types of services `an'd products' of the market place. He usually `has only a vague and often erroneous understanding of the kind of optometric service he need's, and a very inadequate basis for judging the qualities of service he receives. Usually in the fields of medicine `and dentistry he can at least judge whether there is less or more pain or discomfort PAGENO="0040" 36 OPTOMETRY following the services received. This is not generally true in the field of optometry where there is rarely any pain connected with the abnormalities or deficiencies requiring correction. We submit there is need for greater regulation of the prac- tice of optometry than in most of the other health services and that there is less of it in the District of Columbia than in the other states and territories. The end product of optometric service-good vision-is essential to the every day work, education and pleasure of the consumer. The only real competition is among its providers who compete with each other for a larger sale of nearly guaranteed sales (almost everyone needs vision care at some point in a lifetime).. This type of competition does little to contain costs; frequently it tends to drive costs up rather than down. Moreover, there is little cause-and-effect relation between the quality of the usual end product of service-eyeglasses or contact: lenses-and the price to the consumer. Mr. Chairman, eyeglasses have no resale value to a consumer as have most of the marketplace products. I would not give you a dime for any eyeglasses you may be wearing and you probably would not give me one red cent for mine.~ Their value is unique and individual to the consumer and tied to the quality of the examination and prescription which lies within them. Any possible other value would have to lie in the gold or precious metal content of the frame or in any valuable stones such as diamonds or rubies that might be imbedded in the frame. This is why, early this year, in the AOA's testimony to the Senate Sub- committee on Anti-Trust and Monopoly, holding hearings on "Medical Restraint of Trade," we agreed with the view that a doctor should not profit from the `sale of products to patients'. It is the position of the American Optometric Asso- ciation that its members should supply any material items required by their patients at the actual laboratory cost charged optometrists by their suppliers. The Association's "Manual of Professional Practice for the American Optome- trist" `states: "The optometrists' records should show clearly that his net income is based on fees for professional service, not on markup of ophthalmic materials." We challenge any of those opposing this bill last year or this year to show that they have a comparable policy. The most stringent of the regulations over the providers of optometric service are in Section 7 `of the bill beginning on page 6. Since this section relates only to how an optometrist's license can be suspended, revoked, renewed or reinstated it pertains solely to members of my *profession. Mr. Chairman, many of our members in the District of Columbia will `have to change their mode of practice, and in some instances it will be expensive for them to do so, yet all agree that for the protection of the public these restrictions should be placed upon their practice. There are those opposing this bill who `have said that Section 7 is `all right be- cause it restricts only the optometrists of the District. They oppose any restric- tions, however, which are in other parts of the bill. Mr. Chairman, I `submit that if it is important to regulate optometrists in the practice of optometry, how much more important it is that those not possessing the six years of training in opto- metric schools and colleges be regulated. They are not examined or licensed as are our members each year. The Act exempts them from these requirements yet they may engage in all or part of the practice which is dedicated to care of God's most priceless gift to us-our vision. This description may help you understand why we in the AOA feel so strongly about protecting the consumer from exploi- tation by poorly trained, non-licensed entrepreneurs who would reap an un- necessary profit from the distress of the visually needy. Government intervention is necessary if appropriate controls are' to be effective. It is indeed unfortunate that voluntary control's are inadequate but such is the case and it will always be so because of the differences between the "health industry" and other indus- tries, and especially because of the essentiality of good health to human endeavor and progress. Among all the goods and services in today's marketplace, vision care is the most difficult for the ordinary customer to shop for intelligently. The practice of optometry as defined in Section 3 on page 2 is limited to acts or practices that are included in the curriculum of recognized schools and colleges of optometry. There are ten of these schools and colleges accredited by the Council on Optometric Education through the National Commission on Accrediting which is recognized `by the U. S. Office of Education for that purpose. Each grants the Doctor of Optometry degree upon completion of the course. The length of pro- PAGENO="0041" OPTOMETRY 37 fessional curriculum is the same four years required for medical, osteopathic, dental, veterinary and podiatry doctors, with an additional two years of pre- optometry training at the collegiate level. You will find that we have as many or more years of actual professional training than any other professional discipline and the curriculum is as difficult if not more difficult than most. Yet, there are many of those opposing the bill who oppose it on the basis that it recognizes optometry as a profession thereby expanding the scope and definition of the practice of optometry. This is probably the most important question before your committee. Is optometry `a profession with all that word implies in terms of `responsibility for the public welfare? LEGAL OPINIONS Recently the Corporation Counsel for the District of Columbia in the brief for appellee in Norman Fields v. District of Columbia, quoting the United States `Court of Appeals in Evers v. Buwbaum (1958) 102 U.S. App. D.C. 334, 235 F. 2d 356, stated that the primary aim of Congress in enacting the optometry statute * * was to insure that the service would be rendered by competent and ii- ~ensed persons and thereby to protect the public from inexpertness." We of the American Optometric Association, concur with this statement `but believe it is not sufficiently stated. The care of vision requires the use of pro- fessional judgment and discretion and should be limited to professional persons whose education has been accredited as that required for members of a health profession by the nationally-recognized accrediting authorities. We prefer the statement made by Justice Heher, speaking for the New Jersey Supreme Court, in the matter of Abelsons, Inc. v. N.J. Board of Optometrists, 5 N.J. 412, 418 (1950), "~ * * optometry is not a mere trade or craft; rather it is `an applied branch of the science of physiological optics, directed to the im- provement of visual acuity through the correction of refractive errors.' Thus, the practice of optometry is subject to regulation for the protection of the public against ignorance, incapacity, deception, and fraud, `equally with the practice of ophthalmology and other learned professions.'" Id., at p. 419. Of all the arguments set forth before this Committee we are most distressed by the opposition from Walter N. Tobriner, President of the D.C. Board of Commissioners, who must administer and enforce this Act. We. `believe the argu- ments Mr. Tobriner makes are based on antiquated and outworn decisions coupled with those he has received from medical and optical friends. To help him and you determine the professional status or lack of it for optometry in the District I would like to refer you to `the statements he has made in opposition to this bill and, hopefully, to counter them. First let me state that the characterization of optometry as a profession serves more than a merely honorific purpose. It carries with it significant legal con- sequences. Recently the Supreme Court of Georgia handed down a ruling against the commercial employment of optometrists by noting that the legislature had declared optometry to be a learned profession [Pearle Optical of Monroeville, Inc., et al v. Georgia ~State Board of Ecoaminers in Optometry, (1963), Case No. 22109, Docket No. 611.] A case upholding a prohibition of "bait" advertising be- fore the Supreme Court of Michigan turned on the finding that optometry was a profession, despite the lack of any express legislative statement to that effect. (~eifert v. Buhi Optical Co., 275 Mich. 692, 286 N.W. 784.) Dven where the courts have not explicitly referred to optometry as a learned profession, they have shown no hesitance in thrusting upon optometrists the responsibilities and liabilities which are derived from this legal category. The extent of the optometrist's duty to recognize ocular pathology serves as a case in point. A definite responsibility in this area commensurate with the status of mOdicine, has been created by the rulings in state courts within the past thirty years. (Hampton v. Brackin's Jewelry and Optical Co., 237 Ala. 212 [1939]; Liebman v. Conn. state Board of Eceaminers in Optometry, 130 Conn. 344 [1943]; State v. Standard Optical Co., 182 Oregon 452 [1947]; Evers v. Baucobaum, 102 App. D.C. 334, 253 Fed. 356 [1958].) It is interesting to note that this trend of decisions coincides, with the tendency, originating at the same time, to define optometry as a profession, by legislation. PAGENO="0042" 38 OPTOMETRY Mr. Tobriner's statement in opposition to this bill begins with a court decision [Silver v. Lansburgh and Bros. et a!., 72 App. D.C. 71, hiP. 2d 518 1940)]. The key paragraph in that decision which has given the most difficulty is the one which states: "We find nothing in this statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the services would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. * * *" I `break the quotation at this point to say that this is about all that can be accomplished for the public under the present law. The problem this bill attemtps to attack is how to also protect the public from the unscrupulous. To continue the quotation: "* * * That purpose may be fully accomplished, though the person rendering the service is employed by a corporation." The American Optometric Association believes this decision is one of the biggest obstacles to protecting the public from those who would employ the license of an optometrist primarily for their own selfish gain. The court in Silver v. Lansburgk said further: "Appellants, in the main, have their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a corporation or non-optometrist. * * * "The [trial] court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part of medicine. The court was, therefore, of opinion that neither defendant is engaged in the practice of optometry contrary to the statute. * * Mr. Chairman, we believe the court in this case was not adequately informed of the scope of optometry or its training and erred in its judgment that optometry is solely a mechanical art using mechanical instruments and appliances. The defi- nition is one dating before 1924. The decision further appears to be predicated upon the wording of the definition of optometry as contained in the 1924 Act and not upon the modern day practice of the profession. To buttress `its case, the Court stated that optometry is not a part of the practice of medicine. We agree. Optometry is an independent coordinate health profession and it is so recognized by the U.S. Department of Health, Education and Welfare. With this statement you will find a letter addressed to the Hon. Henry Heistoski, Congressman from the Ninth District of New Jersey, from Dr. Philip H. Lee, Assistant Secretary for Health and Scientific Affairs. I wish to quote only one sentence from that letter which comes under the heading "H. Acceptance of optometry as a coordinate discipline and profession:" "The profession of optometry is accepted by the Department as a legitimate and essential health profession which is performing highly useful functions in promoting solutions to the eye health needs of this Nation." Following its statement that optometry is not a part of medicine, the court then reasoned that optometry might therefore be "subjected to commercialization and exploitation" in the following line of argument: ~ * * In the recent case of United States v. American Medical Association (decided March 4, 1940) [72] App. D.C. [12 hOP. 2d, 703, we pointed out that the practice of medicine in the District of ColunThia is subject to licensing and regu- lation. and we stated that, in our opinion, it might not be lawfully subjected to commercialization and exploitation. We cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs li- censed physicians to treat patients, itself receives the fee, and the profit objective is its main purpose, the arrangement being such as to divide the physician's loyalty and destroy the well recognized confidential relation of doctor and patient. This `brings us, then, to consider whether this rule applies to the practice of optometry. "Many states have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the PAGENO="0043" OPTOMETRY 39 cases, and are of the opinion the best considered adopt the view that optometry is not `one of the learned professions'." May I break in here again, Mr. Chairman, to say that despite the court's statement in the Silver v. Lansburgh case, there is ample legal authority for the proposition that optometry is a profession rather than a narrow technical calling or trade as defined in `the 1924 District of Columbia Optometry Law. A sig- nificant number of jurisdictions have enumerated this idea as a principle of judge-made or statutory law. The Colorado law is an example of such a statutory expression of policy: "The practice of optometry in the State of Colorado is hereby declared to affect the public health and safety and is subject to regulation and control in the public interest. Optometry is hereby declared to be a learned profession and it is further declared to be a matter of public interest and concern that the practice of optometry as defined in this article be limited to qualified persons admitted to the practice of optometry in the State of Colorado under the provisions of this article. This article shall be liberally construed to carry out these effects and purposes in accordance with this declaration of policy." A judicial example to the same effect is State en ret. Standard Optical Company v. Superior Court for Chelan County, (135p. 2d 839, 841, 17 Wash. 2d 823). In its holding that Court stated: "~ * ~ The legislative intent to place optometry in the same general category as the profession of law, medicine and dentistry clearly appears. Beyond ques- tion, the practice of optometry affects the public health and welfare. "The Su- preme Court of Massachusetts, in the case of MeMundo v. Getter, 298 Mass. 363, 10 N.E. 2d 139, followed many cases cited in the opinion, held that optometry is a profession rather than a trade. With thi's holding we are in entire accord." In the case of State en rel. Beck v. Goldman Jewelry Co., 142 Kan. 881, 51 p 2d 995, 1001, 102 A.L.R. 334, the Supreme Court of Kansas held: "It is our judgment that under our statutes, the legislature, having in mind the' protection of eyesight is just as important as the protection of property rights and advice thereon, as the protection of the teeth, as the protection against improper and unauthorized methods of healing, by the enactment of the statutes with reference to optometry, recognized it as a profession and accordingly reg- ulated it, and an examination of those statutory regulations conclusively shows that the practice of the profession is limited to individuals, and that corporations cannot be chartered to engage therein. Not only is the holding a necessary con- sequence of our statutes, but it is in accord with the weight of authority. * * *" "Stronger language might be used to characterize them, but as we view them, the contract of employment and the lease in connection with it are devices to avoid the provisions of our statutes with reference to practicing optometry, and cannot avail the defendants." The approach to the practice of optometry by these authorities is far more more modern than that of the U.S. Court of Appeals in Silver v. Lansburgh. The court quoted a 1929 history of optometry as the expert source of its infor- mation about our profession. As quoted by Commissioner Tobriner in his letter to the Chairman of this Committee the Silver v. Lansburgh court said: "Optometry is said by a well known writer on the subject not to be a part of medicine `either by inheritance, basic principles, development of practice.' It `is `an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, ft accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye.' Arrington's History of Optometry, p. 24 (1929) "* * * There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though uni- versally all are deemed professions. "* * * We think the lower court was right in denying injunctive relief, and the decree is, therefore, affirmed with costs." We have leen informed, Mr. Chairman, that it will take an Act of `Congress to PAGENO="0044" 40 OPTOMETRY overcome the judgment of the court in Silver v. Lanshuryli. That is why we are here before you again today. In response to the Court's argument in that case, we also point out that ac- countants, architects, or engineers, although members of laudable professions, are not engaged in the field of health as are optometrists. :1 submit, Mr. Chairman, that the optometrist is in a special position to safe- guard public health. Every year millions of people receive eye examinations by optometrists. It is safe to assume that the great majority of these do not suspect the existence of physical ailments and would not ordinarily have an examina tion for symptoms of ill health. But, among these millions are many whose eyes reveal incipient pathological conditions which special attention might check or cure. Every vision examination should be initiated by a careful examination of the eyes with the sole purpose of determining the exact status of those eyes in re- gard to the presence or absence of pathology. Optometry has done this for many years and their educational centers have taught optometrists to make the neces- `sary diagnostic tests and even more important have taught them to do the skill- ful diagnostic work necessary to differentiate the normal eyes, free from pathol- ogy. from the abnormal pathological ones. Tests to investigate and study the interior of the living eye by means of an instrument called the opthalmoscope are taught to every optometrist. He is also taught to make a searching examination or inspection of the interior or outer portion of the eye using high magnification and focal illumination to assist him in this portion of this investigation. He is taught to explore the visual fields by means of perimeters and tangent screens, a form of diagnostic technique of value in certain cases of serious involvements. These are all tests used to deter- mine the presence or absence of disease. In fact, all of the diagnostic tests which can be made of the living eye are taught optometrists who are then examined by state boards of optometry on their proficiency in making these tests. The majority of pathology affecting the eyes is revealed by use of the ophthal- moscope. The medical student receives only a few hours in the use of the ophthal- moscope whereas an optometry student uses an ophthalmoscope clinically for two years before he graduates. and all during this time he is studying ocular pathol- ogy as well as general pathology. Mr. Chairman. I would like, at this point, to submit for the record of your hearing a paper entitled "Optometric Training in Detection of Ocular Pathology." In the text book The Optometrists' Handbook of Eye Diseases written `by two eminent physicians, Joseph I. Pascal, M.D. and Harold C. Noyes, M.D., printed by C. V. Mosby Company, the authors `on page 19 stated the following: "In any survey of the care of the eyes in civilized communities, it will be found that the great majority of citizens depend for the relief `of their common visual disturbances on refracting opticians, ophthalmic opticians, and, in America, optometrists. This means that the first line in detecting early disease processes and frequently in preventing blindness is held by these practitioners. Hence, the great importance of learning (is) to detect signs which point to derangements of the eyes or to the body in general * * The authors state in their preface: "* * * The importance of the subject can be appreciated from the fact that the optometrist in the course of `his professional work is bound to come in con- tact with eyes which may `be diseased. In fact, he may `be the first to come across diseases of the eye which, because of their unobtrusive nature, that is, lack of .sta'rtling objective or subjective symptoms, may send the patient to the optome- trist first: e.g., glaucoma simplex. dia'betic retinopathy. Sometimes the eyes `he sees may be in a stage of active inflammation, or they may present the sequela of some previous disease which has already run its course. "Thus, the optometrist is the `most important member of the healing profes- sion with regard to the patient getting the quickest medical or surgical serv- ice. To perform this service successfully, he need only know, sometimes merely suspect, pathological deviations from the normal. This is his principal concern. Of course. he `must also be safficiently familiar with the physiological deviation from the normal so as to know when a referral to the medical practitioner is necessary and when it is not. Differential (pathological) diagnosis is only of secondary interest to him. PAGENO="0045" OPTOMETRY 41 "Differential diagnosis is a large and `difficult field. A medical specialist with all his training in this direction, with many facilities for making all kinds of auxiliary tests, is sometimes unable to `make a differential diagnosis." The Commissioner expressed the view that the prohibitions relating to `ad- vertising by optometrists do not serve the best interests of the general public and should be deleted from the bill. The Commissioners testified for deletion of th'ose provisions of the bill relating to advertising and the hiring of an optometrist by anyone other than another optometrist. We do not `believe the Commissioners would have made the same recommendation if the bills `before you were to regulate either the practice of medicine or dentistry. We do not understand their objection when the issue is the regulation of the practice of optometry. Because of the highly personal nature of services rendered and the unique individual needs of each patient, adequate vision care is a highly complex service which does not lend itself to production line methods. The advice of efficiency experts and the short-cuts resulting from time-motion studies do not lend them- selves to an environment where professional services are rendered according to individual needs and where each patient must have as much time as required in order to adequately care for his particular vision problems. Section 4 of the Oklahoma Optometry Act reads as follows: "No person, firm, or corpo'ration engaged in the business of retailing merchandise to the general public Shall ren't space, sublease departments, or `otherwise permit any person purporting to do eye examinations or visual care to occupy space in such retail store." In upholding this section of the Oklahoma Optometry Act, the U.S. Supreme Court in Williamson v. Lee Optical said in part, and I quote: "It seems to us that this regulation is one the same constitutional footing as the denial to corporations of the right to practice dentistry. It is an attempt to free the profession, to as great an extent as possible, from all taints of com- mercialism. It certainly might be easy for an optometrist with space in a retail st'ore to be merely a front for the retail establishment. In any case, the oppor- tunity for the nexus may be too great for safety if the eye doctor is allowed inside the retail store." The members of the American Optometric Association subscribe to and abide by the Rule,s of Practice as adopted by its House of Delegates on June 2S, 1950, among which are rules: "(B) No member shall practice in or on premises where any materials other than those necessary to render his professional services are dispensed to the public. "(J) No member shall use other than his professional card on or in any pub- lication or in any public display; said card shall not exceed two (2) columns by two (2) inches, and it shall not contain any more than his name, profession, address, telephone number, office hours, eye examinations by appointment, practice limited to * * * (any one optometric specialty). Educational materials may be published only when it has been specifically approved by the Executive Committee of the respective state association. "(K) No member shall use `bold face type or in any other manner attempt to attract special attention to himself in any telephone or other public directory. "(L) No member shall display any merchandise, ophthalmic material or advertising of any kind in windows or in any room of his office for the purpose of inducing patronage." In the mercantile atmosphere, the level of vision care is lowered to the level of the average marketplace where the philosophy of caveat emptor (let the buyer beware!) prevails. The hallmark of this type of operation is big-splash adver- tising claiming "low prices,"; "easy credit,"; "fast and accurate' service." An article appearing in REDBOOK magazine, November, 1952, was titled the "Racket in Eyeglasses." `It reported: ` "Featuring for the m'ost part, low prices and speedy service, these unethical practitioners attract the very patients who can least afford to tamper with their eyesight-young people just starting their careers, young marrieds just beginning to shoulder enormous responsibilities, and-this perhaps, is the most serious of all-an alarming number of young children. In all I visited more than 50 eyecare PAGENO="0046" 42 OPTOMETRY shops-those with the biggest signs, the biggest advertisements, those that seemed to be getting the bulk of the trade. "The routine with small variations was the same-a quickie examination leading inevitably to a pair of glasses * `~. A complete eye examination on an initial visit requires an hour or more. Yet the longest examination received lasted fourteen minutes and the rest averaged about eight minutes * * *. If (the optometrist) is a mere employee in a mass production eye-care shop and has a profit-minded boss urging him to rush the patients through, he cannot possibly do a competent job, even if he wants to." GOOD HOUSEKEEPING in its April, 1959 issue wrote: "As a rule, cut-rate eyeglass dispensers have examiners on the premises. The examination they give rarely takes more than 15 minutes. Most ophthalmologists and optometrists say a complete examination requires at least 45 minutes." An article in SCIENCE DIGEST. September, 1900, said: "One firm, for example, claims that it can fit (contact) lenses for $29.95 in one sitting with `satisfaction guaranteed' * A third concern says about its con- tacts: `We wear them UI) to six months without removal.'" TIME MAGAZINE reported on February 8, 1960: "Get-rich-quick operators swarmed into the (contact lenses) field, advertising directly to eyeglass wearers through the lay press and classified telephone direc- tories * * * In an uphill fight to crack down on these fringe operators, the Federal Trade Commission found most of their claims untrue." Dozens of articles have `appeared in our na;tion's leading magazines, such as those just highlighted, which sound a warning to the public of the dangers of unscrupulous operators in the field of vision care. The problems involved with unethical practices in this area are: (1) "bait" advertising, (2) the lack of adequate time for thorough examination and serv- ice. (31 the lack of quality materials and (4) consideration of profit motive above consideratjon of the patients best interest. The materials used in spectacles from commercialized eyecare shops are usually rejects of such a low quality that no ethical professional person would think of prescribing them for a patient. This would be comparable to a physician prescrib- ing rejected drugs or medicines. These reject glasses wholesale for about $1.00 per paid and are "retailed" for about $15.00. Unfortunately, many `thousands of our elderly citizens, attempting to save on their pensions, are baited into mercantile and unethical establishments hoping to save a few- pennies on their vision care for a rainier day. Many of them lose their vision because of unsuspected pathological conditions which went undetected during the quickie examinations they received. Changes in vision in the elderly may be symptomatic of eye conditions or bodily diseases, most of which w-ould be disclosed by a thorough eye examination and many of which could be corrected if discovered and given early treatment. No one questions the professional status of lawyers, physicians or clergymen. They w-ould not he confident in these professions, however, if they found that their religious services, legal advice, or medical care were advertised or marketed by a mercantile establishment. Similarly, the specialized health care practiced by optometrists is suspect in such locations. So far we have described the legal status of optometry as a profession accord- ing to the determinations of courts or legislatures. I should point out `here that at least five states qualify optometry as a "learned" profession in their state statutes. But, it is not necessary to rely on the citation of bare legal authority to establish that optometry is a profession. There is extra-legal basis for this view. An analysis of a profession would show the following as key factors: 1. The professional defines the need of `his patients, rather than does the re- cipient of the services. 2. There is a proper rapport between .the professional person and the recip- ient of his services. Thus the efforts of a physician, a clergyman, or a lawyer are very ineffective if the one requesting the service has rio confidence in `his ability. 3. Generally, the professional person gives services which are terminal and conclusive, while the tradesman `can repeat his service or sale `if there is error. PAGENO="0047" OPTOMETRY 43 4. The trades usually can create subdivisions of labor or services as represented by assembly-line techniques. The professional must be a generalist, with overlap- ping and only general divisions possible. Only menial aspects are tielegable. 5. The criteria of excellence and satisfactory service in the trades are usually related to material products, while in the professions these criteria are most characteristically in the physical or spiritual factors of life, itself. 6. Usually, the tradesman can make use of the actual number of clock hours of work or the profit on the quantity unit of the material product as a basis of computing his earnings, whereas the income of the professional person usually is based on a multiplicity of factors not so clearly related to the immediate sales value of his services. 7. The most extensive educational programs are found only among the pro- fessional, and the shortest ones among the trades. The objective of the trade or technical occupation is production. In the professions there is characteristically a broad foundation course which precedes a program of integration of the sciences related to the profession and a program of indoctrination related to the functions of the profession. S. Another differentiation criterion of some merit is the related freedom of judgment in making decisions and in the choice of techniques accorded the pro- fessional man as compared to the technician. 9. It is easier for a lay person to evaluate the quality of the service rendered by a technician or a tradesman than that of a professional because it is predi- cated upon intangibles such as the character, qualifications, and the judgment of the professional. 10. Professional skill is not improved by mere repetition; it generally requires supplementary study or research in technical work. The experience gained in doing the work itself constitutes the major basis for developing further or superior skills. If you will apply the criteria just given to the field of optometry I believe that you must classify optometry among the highest levels of the professions. It is quite apparent that the recipient of vision care does not prescribe the service he is to receive. The diagnosis, the "evaluation of the actual vision needs," must be made by a protessional person. An effective accomplishment of the neces- sary service, successful vision care, depends to a great extent upon the relation- ship between the optometrist rendering the services and the person receiving them-an all-important empathy. The important element in the service of the optometrist is the process, the evaluation, through the exercise of professional judgment. Unlike the services of a technician who is engaged in a mechanical art, the servicc's of an optometrist c~o not culminate in an end to the process it- self. The vision services are comprehensive. They overlap, without an assembly- line allcsmtion possible, as in a technical process. The process of examination, diagnosis, and rare depends upon the skill, character and education of the optom- etrist. That is why the optometrist does not place a price tag on the appliance that he dispenses, but instead charges on the basis of the intangibles that go into his professional service. Vision care requires a broad educational background, interdisciplinary in scope, coupled with theoretical, laboratory, and clinical training. The basic decision before your committee is whether optometry in the District of Columbia in this year of 1967 is an independent co-ordinate health profession to be regulated in the same fashion as the other health professions such as medi- cine, osteopathy and dentistry or whether it is simply a mechanical art as de- scribed in the Act of 1924. Mr. Chairman, we have faith that the judgment of this Subcommittee will be for optometry as a profession and that it will favorably act upon the bill before it making only minor'amendments to clarify its intent which is to improve the practice of optometry in the District of Columbia for the benefit of persons who reside therein or visit our Nation's Oapital City. If there are any questions, both Dr. Hofstetter and I will be pleased to attempt to answer them. Thank you for giving me this opportunity to speak on behalf of the American Optometric Association. PAGENO="0048" 44 OPTOMETRY ATTACHMENT I DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, WashIngton, August 1, 1966. Hon. HENRY HELSTOSKI, House of Representatives, Washington, D.C. DEAR MR. HELSTOSKI: This is in further reply to your letter of March 22, 1960, addressed to Secretary Gardner, concerning a brief prepared by the Amer- ican Optometric Association, dated February 18, 1904, charging the Department of Health, Education, and Welfare with discrimination against the profession of optometry. I have reviewed the brief prepared by the American Optometric Association and in this letter will deal with the conclusions contained in the brief. A. Recommendation. that the Department, and its member agencies, avoid discrimination against the profession of optometry.-This conclusion pertains to the American Medical Association Resolution Number 71 (June 1955), * * * pr~ vides that associations between doctors of medicine and optometrists are un- ethical * * * that physicians faithful to the ancient tenets of the medical profession, are ever cognizant of the fact that they are trustees of medical knowl- edge and skill and that they must dispense the benefits of their special attain- ments in medicine to all who need them, that it is a futile gesture to consult on a professional level with one who does not possess the same knowledge, training, experience and ideals as the doctor of medicine." The American Medical Association is an independent organization and does not request Departmental consultation on its actions. Resolutions passed by the American Medical Association are not binding upon either the Department or its employees. Since 1950 the provisions of Title X of the Social Security Act authorizing grants to States for aid to the blind have required that State plans for this program "provide that, in determining whether an individual is blind, there shall be an examination by a physician skilled in diseases of the eye or by an optome- trist, whichever the individual may select." The Public Welfare Amendments of 1902 established Title XVI of the Social Security Act authorizing grants to states for aid to the aged, blind, or disabled, or for such aid and medical assist- ance for the aged. Identical language with that contained in Title X is included in this new title. The Social Security Amendments of 1965 included a new Title XIX of the Social Security Act authorizing grants to States for medical assist- ance programs. Section 1905. which defines the term "medical assistance" includes. the language "eyeglasses prescribed by a physician skilled in diseases of the eye or by an optometrist, whichever the individual may select." Thus, in the determination of blindness as a factor of eligibility for public assistance payments and in the prescription of eyeglasses under the new medical assistance program the Federal law requires States to give an individual his free choice of an optometrist or a doctor of medicine. While such a requirement does not exist with respect to other aspects of public welfare programs, the silence of the Federal statute in no way limits the freedom of States to use optometrists in such other ways as they may find appropriate. B. Frecdo;n of choice in selection, of a. practitioncr.-The Department agrees that the American public should continue to have freedom of choice in the selection of a practitioner to care for vision problems. C. Training of ophthalmic assistants or technicians.-The Public Health Serv- ice has funded two pilot projects for the training of ophthalmic assistants. The primary reason for considering the training of various types of professional assistants and technicians in general is to extend the effectiveness of profes- sional personnel who are in short supply by relieving those professionals of certain routine duties which can be adequately carried out by individuals with lesser training. Assistants and technicians may be useful in the offices of any eye specialist. The two projects mentioned were undertaken as pilots and a care- ful evaluation of them is to be carried out before other similar projects are considered. D. Departmental publications.-Publications of the Department will continue PAGENO="0049" OPTOMETRY 45 to be reviewed for fairness and consistency in statements concerning optometry.. The Department has no desire to favor one profession at the expense of another. E. Employment of optometrists.-The Department recognizes the need for the full utilization of all health disciplines in meeting the health needs of all people in this country. The Surgeon General, in his address before the White House Conference on Health, spoke of the great need for upgrading the status of and' providing vertical mobility to allied health and medical manpower. In this address he also mentioned the existence of artificial barriers separating one stratum of the health manpower pyramid from another, and the need to devise methods and techniques for the utilization of existing trained personnel. At this time the Public Health Service is actively studying ways in which optome- trists can be used more effectively in accomplishing its medical care responsibil- ities. In preparation for their greater utilization, the Service has recently' modified the standards for the Health Service Officer category to include the appointment of optometrists to the Commissioned Corps. One optonietrist is now employed by the National Institutes of Health, and several others will be em- ployed by the Public Health Service later this year. F. Technical review eommittees.-The Public Health Service uses a wide variety of persons from `the professions and from the general public as consult- ants and members `of review committees and panels. At `the present time there are six optometrists serving on three Public Health Service advisory review bodies.. These advisory groups `a:re: 1. Construction of Schools of Optometry Review Committee. 2. National Advisory Council on Education and Health Professions. 3. National Advisory Council for Medical, Dental, Opto'metic and Podiatriy Education. The Department is continually evaluating review committees and representa- tions required to provide necessary technical competence. As the need for addi- tional optometrists is manifested, most certainly they will be asked to serve. G. Establishment of optometric advisory committees.-The Department and its agencies have established advisory committees which deal with many of the complex health, welfare, and education problems of this country. These com- mittees are set up on an interdisciplinary basis. It is generally undesirable to' constitute broad based service and service training committees having only one common discipline. One of the programs of the Public Health Service is now planning a `discussion meeting by vision experts on standards for preschool vision screening of children. It is my understanding that optometrists will be included in this discussion group. Optometric consultants `have been requested to assist in Public Health Service project site visits and to `assist in the review of certain vision projects. H. Acceptance of optometry as a coordinate discipline and profession.-The profession of optometry is accepted by the Department as a legitimate (sic) and essental health profession which is performing highly useful functions in pro-' moting solutions to the eye health needs of this Nation. Sincerely yours, PHILIP R. LEE, M.D., Assistant secretary for Health and ~Scientiflc Affairs. OPTOMETRIC TRAINING IN DETECTION OF OCULAR PATHOLOGY The optometry student enters optometry school with approximately the same preparation as students entering medical and dental schools. Subjects entering students must complete for admission include chemistry, bacteriology, physics, psychology, physiology and biology. In optometry schools, courses in general anatomy, physiology or pathology furnish only the background necessary for the study of vision.' The mccli- cal student's first contact with `ophthalmology (science of the eye) also comes through coursas in general anatomy, physiology and pathology. Students in both medical and optometry schools are exposed to the same materials on the eye in these basic science courses. 82-754-67--------4 PAGENO="0050" 46 OPTOMETRY Because the same material is taught in these courses in both schools, the con- tent varies little. The difference comes not with content, but rather with the rela- tion to overall curriculum. Optometry deals with the science of vision; medicine deals with the science of preserving health. The medical student learns of the eye as it relates to the entire human system; the optometry student learns of the entire human system as it relates to the eye as the means of vision. The optometry school curriculum is concerned solely with the eye, approached from the perspective of the visual system. All subject-matter relevant to the eye has its place within the optometry school curriculum. The optometry student considers the eye as an anatomical structure, as a topic of pathology, as a physi- ological mechanism, as an organ of the human system, and as the vehicle which en- dows the human being with the capacity of vision. The medical school curiculum is oriented toward detection of bodily disorders and their manifestations in all parts of the body including the eye, rather than concentration on abnormalities of the eye itself. Rarely does the formal class instruction on subject-matter on the eye exceed fifteen class hours in medical school curriculum. The optometry student in his first year studies general human anatomy, anat- omy of the eye and surrounding structures, general physiology and physiology of mammals. During his second year, classes include the formation and functions of the eye, introductory pathology, plus manifestations of disease and pharmacology as influences on disease and body function-especially as they relate to the eye and vision. The third year optometry student is instructed in ocular diseases and their detection, symptoms and signs of ocular disease including external and internal examination of the eye. Further study encompasses systematic study and clas- sification of ocular diseases and their differentiation. Class room instruction on anatomy and pathology is augmented by weekly labo- ratOry participation. In the fourth year of optometry school the student applies in a supervised clinical situation his class room and laboratory theory learned in the preceding three years. Detection and recognition of ocular diseases occupy a prominent place in the student's clinical training. By the time the student com- pletes his fourth year of optometry school he possesses both the training and experience to recognize abnormal conditions of the eye. As with other practitioners who provide service to the public, the optometry school graduate must demonstrate his knowledge and competence to serve the public before he is allowed to practice. The optometry bill for the District of Columbia currently under consideration requires written, oral and practical examinations. The District of Columbia Board examination for optometrists includes anatomy, physiology and pathology, especially as they relate to the eye and vision. Each of the several States require an examination for licensing to practice and 24 of the States accept passage of a uniform examination given by the National Board of Examiners in Optometry as a substitute for their own examination. The bill for the District of Columbia allows certification by the National Board for the written examination. A review of the National Board examination reveals some of the subjects in which applicants are expected to be proficient. The section dealing with anatomy of the eye, for example, requires descriptions, functions, blood and nerve supplies of all parts of the eye and surrounding areas. Another section deals with diseases of the eye itself and general diseases which manifest in the eye. Some of the areas covered in the section are knowledge of diseases, congenital defects and anomalies of the eye and ability to differentiate and recognize each. Because 24 states accept the National Board Examination passage, graduates from all the schools of optometry take the examination. Therefore, the areas of information covered in the examination are the areas of instruction taught at all optometry schools and colleges. A topical outline made from a National Board Examination follows. The areas covered in the outline are designed to be very specific and exacting. The practice of optometry is very specific and exacting. Only those individuals who successfully complete such an examination can be entrusted to practice optometry in the Dis- PAGENO="0051" OPTOMETRY 47 trict of Columbia. The public deserves to be protected from inferior practitioners who are unable to meet adequate standards. The emphasis given anatomy and diseases of the eye in optometry school instruction constitutes a sizable portion of the curriculum. Training in both the classroom and the clinic equip the optometry student to recognize eye conditions which deviate from the normal. Exacting examination assures the public that the licensed optometrist possesses this training and ability. ExHrnITs NATIONAL BOARD OF EXAMINERS IN OPTOMETRY-TOPICAL OUTLINE' ANATOMY OF THE EYE (PT. 1, SEC. IH) 1. The bones of the orbit and accessory nasal sinuses.-Orbital foramina and structures transmitted. 2. Fibreous tunic.-Cornea: General description, minute anatomy, physiology, nerve and blood supply, function; limbus; sclera; canal of sclemn, pectinate ligament, seleral spur. 3. Vascular tunic.-Choroid; ciliary body; iris; general description, minute anatomy, nerve and blood supply function. 4. Neural tunic.-Retina: General description, location, histological structure, blood supply, function. 5. Anterior and posterior chambers-Aqueous formation, circulation and drainage. 6. The lens.-General description, location, histological structure, function physiology of the lens; zonule of Zinn. 7. Vitreous humor. 8. The appendages of the eye.-Eyelids: General description, location, histo- logical structure, blood and nerve supply, function, medial, lateral; eyebrows; Conjunctiva: Histology and gross anatomy, glands, blood and nerve supply caruncle, plica semi lunaris; lacrimol apparatus. 0. The extrinsic muscles.-Origin, insertion, primary action, secondary action, nerve and blood supply, reciprocal innervation, synergistic and antagonistic actions, yoke muscles, detection of impaired muscle actions; lavator palpebrae superioris, tenon's capsule, check ligaments, orbital fat. 10. Cranial nerves, II, III, IV, V, VI, VII nerves-Nucleus of origin, course, components, consequences of its impairment, ciliary ganglion. 11. Automatic nervous system-Path of light reflex, near reflex, Argyll-Rob- ertson pupil. 12. Visual pathway, minute anatomy, fiber distribution. 13. Vessels of the eye. 14. Development of the eye.-Organogeny of the nervous system, differentia- tion of the component parts of the eyeball. THEORY AND METHODS OF OPTOMETRY 1. Refractive status.-Hyperopa, myopia, astigmatism; causes, classification, prevalence, hereditary influences, eye changes, etc. 2. Functional status.-Accominodation, convergence, anisometropia, anisei- konia, presbyopia; norms, relationships, classifications, prevalence, etc.; test procedures and significance. 3. Examination procedures.-History, external ocular, ophthalmoscopy, field charting. Norms, significance, relation to systemic, occupational and aging in- fluences. Specific techniques and instrumentation. 1 The topical outlines provided by the national board are intended merely as a guide. not as a rigorous plan of examination. The individual topics and subtopics serve only to suggest the general coverage and possible areas of emphasis in each examination. In the design of the examination, attempts are made to word the questions, and to allow sufficient choice of questions to be answered, so as to compensate for differences In cur- riculum emphasis and recognized differences in doctrines prevailing in the different schools and colleges. PAGENO="0052" 48 OPTOMETRY Ophthalmometer, retinoscopy, static and dynamic, subjective routines, phorometry. Techniques and instrumentation; evaluation, significance, and compari- sons. Analysis and prescription. Specific case applications, comparisons; isolated procedures and signif- icance; problems of prescription, such as prism problems, etc.; lenses anft multifocal selection. Strabismus, orthoptics, visual training. Training procedures; diagnostic and diffrentiating techniques and im- plications. (a) Paralytics from functional cases. (b) Correctable functional indications from noncorrectable indica- tions, etc. Fitting of contact lenses. Aids to subnormal vision. Occupational and industrial vision problems. DISEASES OF THE EYE (PT. II. SEC. IV) 1. The eyelids-Congenital defects; diseases of the lid margin; diseases of the glands of the lid; diseases of the skin of the lid; diseases of the cilia of the lid; tumors of the lid; injuries of the eyelid. 2. The orbit.-Congenital anomalies, displacement of the eyeball, periostitis,. celluitis, thrombosis of the cavernous sinus, ocular manifestations of accessory sinus diseases. 3. The lacrimal apparatus-Diseases of the lacrimal gland and ducts. 4. The conjunctive.-Pinguecula, concretions, subconjunctival hemorrhage, chemosis, dry catarrh, anomalies of circulation. Types of conjuctivitis: Catarrh- al purulent, membranous, inclusion, trachoma, phdyctenular, vernal, allergic. angular; symblepharon, pterygium; differential diagnoses; tumors; injuries of conjunctiva. 5. The cornea.-Congenital anomalies; degenerative processes-arcus senilis, dystrophies, keratoconus, etc. Inflammation of the cornea-ulcers, superficial keratitis, deep keratitis; foreign bodies on cornea; wounds of the cornea. 6. The sclera.-Pigmenation; ectasia and staphyloma. Infiammations: Schle- ntis, episcleritis; injuries. 7. The iris, ciliary body, and pupil.-Congenital anomalies; reactions of iris and ciliary body. Inflammations of iris and ciliary body; types of endogenous uveitis; diagnosis of specific types of iridocyclitis; tumors; sympathetic ophthal- mia; disturbances in pupillary reaction. S. The choroid and vitreous body.-Congenital anomalies of the choroid: de- generations of the choroid; infiammations of the choroid; tumors and injuries ; fluidity, opacities, muscle volitantes, hemorrhages, abscess, foreign bodies in vitreous. 9. The lens-Congenital anomalies. Cataract: Symptoms, types, differential diagnosis, secondary involvements; dislocation of the lens. 10. Giaucoma.-Intraocular pressure. Types of glaucoma; Primary, secondary, open-angle glaucoma, congenital; visual field changes; differential diagnoses. 11. The retina.-Congenital anomalies, injury, inflammations, circulatory disturbances, degenerations, detachment of the retina; tumors; retroletal fibroplasi. 12. The optic nerve-Inflammatory changes, hyperemia, papilledema, toxic amblyopias, optic atrophy, tumors of nerve and sheaths, injuries, visual field defects. 13. Ocular manifestations of general disease-Syphilis, tuberculosis, rheurna- tism, nephritis, diabetes, arteriosclerosis, cardiac affections, diseases of metab- PAGENO="0053" OPTOMETRY 49 *olism, chronic intoxications, infective diseases, diseases of the central nervous system, head injuries. 14. Disturbances of ocular motility.-Paralysis of ocular movernents-supra- muscular paralysis, of individual ocular muscles paralysis of the III nerve: The ophthalmoplegias. 15. Ocular therapeutics-Local anesthetics, antiseptics, mydriatics, cyclo- -phgics, miotics, staining agents, eyewashes, use of ACTM. DISEASES OF THE EYE 1. The eyelids-Congenital defects; diseases of the lid margin; diseases of the glands of the lid; diseases of the skin of the lid; diseases of the cilia of the lid; tumors of the lid; injuries of the eyelid. 2. The orbit.-Congeriital anomalies, displacement of the eyeball, periostitis, celluitis, thrombosis of the cavernous sinus, ocular manifestations of accessory sinus diseases. 3. The lacrimal apparatus-Diseases of the lacrirnal gland and ducts. 4. The conjunctive.-Pinguecula, corcretions, subconjunctival hemorrhage, * chemisis, dry catarrh, anomalies of circulation. Types of conjunctivitis: Catarr- hal, purulent, membranous, inclusion, trachoma, phlyctenular, vernal, allergic, angular; symblepharon, pterygium; differential diagnoses; tumors; injuries of conjunctiva. 5. The cornea-Congenital anomalies; degenerative processes-ardus senilis, *dystrophies, keratoconus, etc. Inflammation of the cornea-ulcers, superficial keratitis, deep keratitis; foreign bodies on cornea; wounds of the cornea. 6. The sclera.-Pigrnenation; ectasia and staphyloma. Inflammations: Schle- ntis, episcleritis; injuries. 7. The iris, ciliary body, and pupil.-Congenital anomalies; reactions of iris and ciliary body. Infiammations of iris and ciliary body; types of endogenous uveitis; diagnosis of specific types of iridocyclitis; tumors; sympathetic ophthal- mia; disturbances in pupillary reaction. 8. The choroid and vitreous body.-Congenital anomalies of the choroid: dc- generations of the choroid; infiammations of the choroid; tumors and injuries; fluidity, opacities, muscle volitantes, hemorrhages, abscess, foreign bodies in vitreous. 9. The lens-Congenital anomalies. Cataract: Symptoms, types, differential diagnosis, secondary involvements; dislocation of the lens. 10. Glaucoma.-Intraocular pressure. Types of glaucoma; Primary, secondary, open-angle glaucoma, congenital; visual field changes; differential diagnoses. 11. The retina-Congenital anomalies, injury, infiammations, circulatory disturbances, degenerations, detachment of the retina; tumors; retroletal fibroplasi. 12. The optic nerve.-Infiammatory changes, hyperemia, papillederna, toxic amblyopias, optic atrophy, tumors of nerve and sheaths, injuries, visual field defects. 13. Ocular manifestations of general disease-Syphilis, tuberculosis, rheuma- tism, nephritis, diabetes, arteriosclerosis, cardiac affections, diseases of metab- olism, chronic intoxications, infective diseases, diseases of the central nervous system, head injuries. 14. Disturbances of ocular motility-Paralysis of ocular movements-supra- muscular paralysis, of individual ocular muscles paralysis of the III nerve: The ~ophthalmoplegias. 15. Ocular therapeutics.-Local anesthetics, antiseptics, mydriatics, cyclo- phgics, miotics, staining agents, eyewashes, use of ACTM. PAGENO="0054" COURSES REQUIRED FOR ADMISSION TO MEDICAL SCHOOLS APPROVED BY THE AMERICAN MEDICAL ASSOCIATION [In semester hoursj Total pre- mcdi- cal years re- English or corn- post- tion Social sci- oncos Lan- guages Gee- oral math College algebra Trigo- corn- etry Inte- gral cal- culus Ana- lytic georn- etry Physics nor- ganic diem- istry Organic Quanti- chem- tativo istry analy. I; Bology Zoology Embry- ology Psy- chology quired 3 3 4 4 State University of Now York, Downstate_ Washington University 3 6 3 6 6 6 6 8 8 4 3 State University of New York, UPstate University of Mississippi Louisiana State University New York Medical College-Flower & 5th Avenue 3 6 3 6 3 9 3 6 6 8 6 6 8 8 8 8 6 6 3 6 6 6 6 University of Minnesota University of Cincinnati University of Nebraska 3 8 (1) 6 3 6 18 6 4 3 8 8 4 3 8 7 6 3 8 8 6 7 8 4 University of Texas, Southwestern Medical 4 12 3 3 8 8 6 4 12 Baylor University University of Vermont University of Texas, Galveston Yale Univorsity (1) 6 4 6 4 12 3 3 6 6 6 6 8 6 6 6 6 6 3 8 6 4 6 6 8 6 12 6 Georgetown University Western Reserve University University of Missouri Hahnemann Medical College 3 12 4 6 3 6 3 6 6 6 8 8 6 8 8 8 8 6 6 3 8 6 8 8 3 8 Temple University Indiana University University of Wisconsin Jefferson Medical College University of North Carolina 3 6 3 3 3 6 3 12 9 3 8 8 6 8 8 8 4 8 6 6 3 3 8 4 8 8 8 8 8 Ad- vanced scionce elec- tives 0 H 3 PAGENO="0055" OPTOMETRY 51 ~ ,~ 00 ~ ~ 0000 C~) 0000 ~ 00 ~ 000000 ~ 000000 00 00 ~ 00 (000 ~ oO 00000000 ~00 (000000000(0(000000000000000000000000000(0000003(000(00003 0 `C,, ``*`````````````````````` PAGENO="0056" COURSES REQUIRED FOR ADMISSION TO OPTOMETRY SCHOOLS APPROVED BY THE AMERICAN OPTOMETRIC ASSOCIATION Also 4 hr. of bacteriology. Source: Official course catalogs, 1962-64. Total pro- optom- etry years ro- English or corn- posi- lion Social sci- ences Lan- guage Gee- oral math College algebra Trigo- norn- etry Into- gral cal- culus Ana- lytic goom- etry Physics Inor- ganic chem- istry Organic Quanti- chem- tativo istry analysis Biology Zoology Embry- ology Psy- chology Ad- vanced science elec quired tivos- Pacific University College of Optometry (this school also requiros for admis- sion: 4 hr. of comparative anatomy of vertebrates; 3 hr. of human anatomy of vertebrates; 3 hr of human anatomy- 4 hr. of human physiology; and 2 hr. o( histology) 2 8 3 3 3 8 4 4 Pennsylvania Stats College of Optometry_ Indiana University Division of Optometry Ohio State University School of Optom- etry 2 2 2 6 5 6 6 3 6 3 2 3 2 2 6 8 6 6 8 10 6 6 14 6 3 4 Massachusetts College of Optometry_ - - - Illinois College of Optometry Los Angeles College of Optometry (this school also requires for admission: 3 hr. of bacteriology; 3 hr. of human physiology) University of California at Berkeley, School of Optometry (this school also requires for admission: 4 hr. of bac- teriology; 5 hr. of human physiology)_ University of Houston College of Optom- etry Southern College of Optometry (2) 2 2 2 2 2 6 6 6 6 12 6 12 8 3 3 3 3 3 3 3 3 3 3 3 3 8 6 8 8 8 6 8 6 8 9 4 6 34 6 3 6 8 4 3 6 6 3 1 And 3 hr. of comparative anatomy. 21 to4or2to3. PAGENO="0057" 0 0 L~l REQUIRED UNDERGRADUATE COURSES IN OCULAR PATHOLOGY AND OCULAR ANATOMY AND RELATED STUDIES IN THE OPTOMETRY SCHOOLS APPROVED BY THE AMERICAN OPTOMETRIC ASSOCIATION [In semester hours[ Ocular . Micro- biology Anat- amy Physi- ology General pa- thology Func- tional anat- omy Psy chology Ocular path- ology ~ anat- omy and physi- ology General histol- ogy Ocular histol- ogy Neurol- ogy General bacteri- ology Animal biology Genetics Bio- chem- istry Organic chem- istry Ohio State University College of Optom- etry Southern College of Optometry Massachusetts College of Optometry Pacific College of Optometry University of Houston College of Optom- etry University of California, Berkeley, School of Optometry Los Angeles College of Optometry Illinois College of Optometry Indiana University, Division of Optom- etry PennsylvaniaStateCollegeof Optometry 6 3 10 3 8 7 3 4 4 9 8 6 3 8 3 6 4 5 3 2 4 3 3 2 4 4 3 6 3 4 4 6 6 11 8 4 7 10 5 7 7 10 6 8 10 6 13 7 4 7 7 3 4 3 3 3 ~ 2 3 3 3 6 4 3 2 5 3 . 5 3 - 5 Source: Official course catalogs, 1962-1964. PAGENO="0058" 54 OPTOMETRY CLASS HOURS REQUIRED IN OPHTHALMOLOGY AT THE UNDERGRADUATE LEVEL IN MED- ICAL COLLEGES APPROVED BY THE AMERICAN MEDICAL ASsocIATIoN. Source: Official Course Catalogues 1962-63-04. Loyola University of Chicago (Stritcib School of Medicine) 14 hours of didactic lectures on anatomy and diseases of the eye. 6 sessions of 2 hours each at Cook County Hospital in practical ophthalmology. University of Paerto Rico 10 didactic lectures on diseases of the eye. 40 hours of practical demonstrations of examination of the eye. Tulane University Ophthalmology is given as one of 17 courses during the second year as part of a general physical diagnosis course. It is also a required course in trimester A of the third year. Duke University During the second year ophthalmology is given as part of a physical diagnosis course, where the student is exposed to the ophthalmoscope, perimeter, and other diagnostic instruments. In the fourth year the student receives 39 hours of clinical work as part of a surgery course. State University of Iowa 10 hours of didactic lectures on diseases of the eye are given during the second year. In the third year, the student takes a clinical course without credit for two of three trimester terms. Clinical work is also offered in sections during the fourth year. University of Wisconsin In the third year 8 didactic lectures plus 2 group meetings in a two-week period are offered the student. One week of clinical eye care is required in the fourth year. Indiana University The undergraduate medical student is required to take 12 hours of didactic lectures in diseases of the eye as well as 44 hours in the surgery clinic. Temple University In the third year the student attends 19 class hours of discussion type lectures on diseases of the eye, and instrumentation connected with eye examination. In the fourth year, the student works in the out-patient eye clinic. Halineman Medical College (Philadelphia) There is no special course in ophthalmology, except what may be learned as part of a surgery course. University of Alabama In the third year the undergraduate medical student has 10 hours of didactic lectures on diseases of the eye. In the fourth year the student is required to spend 72 hours in the eye clinic as part of a surgery program. Howard University Ophthalmology is undertaken as part of a series of surgery lectures during the ~third year. State University of New York at Buffalo During the third year the student undertakes out-patient work in eye care and observes surgery. Emory University During the second year the student is required to attend 7 class hours of lectures on ophthalmology of which 2 hours are devoted to the ophthalmoscope. During the third year the student undertakes 16 hours of clinical work in the eye. University of California at Los Angeles Ophthalmology is taught as part of a surgery course. In the second year the student is required to attend lectures in clinical medicine at which time his train- ing in opthalmology commences. In the third year he participates in out-patient surgery and in the fourth year in ward surgery. PAGENO="0059" OPTOMETRY 55 T]nivcrsity of North Carolina If anything is offered in ophthalmology, it is part of a course in the surgery department. $tanf ord University Fifth year conferences as electives in surgery are offered, but the course catalog omits mention of ophthalmological training as a requisite for the M.D. degree. Woman's Medical College of Pennsylvania 12 hours of didactic lectures plus ward recognition of pathology are given. University of Oklahoma The student takes 15 hours of didactic lectures on pathology of the eye. Vanderbilt University. 14 hours of didactic lecture are devoted to the eye followed by ward review work. Alarqvette University 98 hours of clinical-surgical clerkship are offered in the fourth year for the purpose of achieving a clinical mind. - University of Maryland ` In the third year, weekly section work is combined with lectures and clinical work discussing pathology of the eye and the use of the ophthalmoscope. In the *fourth year, ward rounds and clinical demonstrations are available. Mebarry Medical College ~ 22 hours of didactic lectures on systemic ophthalmology are offered in the third year. University of Pittsburgh .- `` 12 hours of didactic lectures on diseases of the eye are offered during the third year. In the fourth year, clinical work in eye care stressing diagnosis of eve dice~tses is offered University of Virginia 3 class hours of didactic lectures are presented in a surgery course in the second year. In the third year, 16 didactic lectures on pathology of the eye with lantern slides are required. In the fourth year, 36 hours of clinical work are given. University of ~S1outhern California During the third year, 9 hours of conferences are conducted in ophthalmology. In the fourth year, 1/2 day per week for 9 weeks are devoted to surgical ophthal- mology in out-patient clinics. University of California, $an Francisco Medical Center In the first year, 2 hours of didactic lectures are' devoted to anatomy of the eye. In the second year, there are 3 lectures of 1 hour each on neurology and surgery of the eye, plus 0 hours of clinical and sectional demonstrations. In the third year, 5 hours of a surgery course are devoted to diseases of the eye. University of Rochester There is no ophthalmology departnient. No courses in ophthalmology are listed University of Michigan In the third year, 32 class hours of didactic lectures and demonstrations are devoted to diseases of the eye, instruments used in examination of the eye, physiological optics, pathology the eye, and neurology of the eye. In the fourth year 80 class hours of clinical work are required. Medical College of Virginia In the third year combined lectures of the diseases of the eye are given and -clinical work which continues into the fourth year is commenced. University of Washington Fourth year clinical work is all that is required. PAGENO="0060" 56 OPTOMETRY Cornell University A third year clinical surgery course satisfies the undergraduate requirements. Tvfts University In the third year, 28 hours of didactic lectures on practical problems in eye care satisfy the undergraduate requirements. University of Miami There is no special course in ophthalomolgy, but the catalog declares that this subject matter is covered by lectures in anatomy, physiology, pathology, and physical diagnosis. A fourth year clinic on eye care is offered for a one-week period. University of Missouri There is no special course in ophthalmology. Whatever work in the subject acquired by the student comes in part of a surgery clinic. Western Reserve Universtiy There are no special courses offered in ophthalmology. However, the student is: exposed to such eye care as part of a surgery course and during his clinical work. Yale University During the second clinical year, students visit clinics 2 afternoons weekly,. for 6 weeks as part of a surgery course. University of Te~vas, Galveston, ~c1tool of Medicine There are no special courses in ophthalmology. This subject matter is deemed to be undertaken as part of a clinical course. University of Vermont Ophthalmology is taught in the second, third and fourth years by means: of lectures, ward rounds, and clinics. Jefferson Medical College In the second year the student is required to take 2 class hours of didactic lectures on diseases of the eye. 24 class hours of lectures and demonstrations are given in the third year, as well as 12 hours of eye clinical work University of Cincinnati In the third year the student takes 17 hours of didactic lectures on diseases of the eye. In the fourth year, 17 hours of clinical work are required. The student may also have 19 hours of ophthalmological surgery in his senior year. University of Minnesota The student has a total of 24 hours of didactic lectures on diseases of the eye. University of Mississippi There is no ophthalmology department. No special courses in the subject are listed in the course catalog. Baylor University In the second year 4 one-hour lectures are given on the eye as part of a physical diagnosis course. In the fourth year there are 24 hours of didactic lectures and demonstrations followed by a certain amount of clinical work. University of Tecas, Southwesterm Medical ~S'c1tool The only ophthalmological work undertaken is in the fourth year as part of a clinical clerkship at which time some lectures on eye care are given. Coivmbia University The only ophthalmological work given consists of 42 class hours, of which 30 hours are practical instruction at the eye clinic and 12 hours are straight didactic lectures. New York Medical College (Flower ~ 5tk Avenue Hospital) 23 hours of didactic lectures in ophthalmology are given during the third year.. In the fourth year clinical ward work is required. Louisiana State University In the third year 18 hours of lecture are devoted to the embryology, anatomy,. and physiology of the eye. This work is foliowed by 36 hours of clinical clerkship.. PAGENO="0061" OPTOMETRY 57 State University of New York, Downstate Medical Center In the second year, a student has an introductory lecture on diseases of the eye as part of a course in Minor Medicine. In the third year there are 10 one~hour lec- tures in diseases of the eye. A clerkship in ophthalmology is available in the fourth year. Washington University (St. Louis) 7 hours of lectures are devoted to diseases of the eye in the second year as part of a Conjoint Medical Course. In the third year the student takes 12 hours of lec- tures in ophthalmology, and in the fourth year, he has 18 hours of clinical work. State University of New York, Upstate Medical Center The student is required to take 9 hours of lectures and demonstrations on dis- eases of the eye in the second year. In the third year he has 24 hours of clinical work in ophthalmology. University of Nebraska The undergraduate medical student is required to take 17 hours of didactic lectures on diseases of the eye, 24 hours of clinical work in ophthalmology, and 48 hours in the eye dispensary. University of Pennsylvania In the first year, there are 2 hours of didactic lectures on physiology of the eye as well as 1 hour in the correlation clinic. In the second year, 9 hours are devoted to lectures in ophthalmology in a clinical diagnosis course. In the fourth year there are 11 hours of lectures in ophthalmology followed by 12 hours of practical out-patient clinical work. Medical College of South Carolina Clinical case studies are offered during the third and fourth years with some didactic instruction on diseases of the eye with lantern slides. In the out-patient department, students are taught how to make eye examinations, how to test the vision, and use of the ophthalmoscope. BosI~on University In the first year there is 1 class lecture on pathology of the eye and 2 class hours of lectures devoted to physiology and optics of the eye. In the third year, 6 class hours are devoted to lectures of diseases of the eye as well as 36 hours of out-patient case study and surgical observation. University of Chicago All work in ophthalmology is clinical, taking place during several quarters of the under-graduate years. University of Illinois There are 24 class hours of didactic lectures illustrating common diseases of of the eye which are given during the fourth year. University of Colorado In the second year the student takes 6 class hours in diagnosis of diseases of the eye at which time he is exposed to the ophthalmoscope. Also in the second year, the student takes 10 clinical lectures covering ocular diseases, injuries, refractive errors, and ocular movements. During the fourth year, clinical clerk- ships are available for case study. Yeshiva University (Albert Einstein, School of Medicine) In a third year 12 hours of lectures on the diseases of the eye are presented as well as 30 hours of clinical clerkship. Loma Linda University In the third year, the student takes 9 hours of didactic lecaures on diseases of the eye as well as 7 hours in the ophthalmology clinic. In -the fourth year, 36 hours of clinical work are required. University of Oregon 12 hours of didactic lectures are given in the third year. In the fourth year there are 12 hours of lecture on systemic pathology as detactable in the eye as well as 22 hours of out-patient clinic. There is also available a 52 hour clerkship as part of a surgery course in the fourth year. PAGENO="0062" 58 OPTOMETRY John,s Hopkins University - In the third year, lectures on ophthalmology are offered as part of a course in clinical physiology, and G class hours are given on eye care as part of a course in techniques of examination. In the fourth year, 12 full days are devoted to surgery of the eye in a clinical clerkship program. The five-year curriculum taken from the catalog of the Los Angeles College of Optometry and representing typical course requirements. First Semester Chemistry. College Algebra English - Foreign Language Physical Education `U.S~ History & Constitution FIRST YEAR Second Semester Chemistry Trigonometry English Foreign Language Physical Education Philosophy SECOND YEAR First Semester `Art, Music or Literature Psychology. General Physics Zoology or `Biology Physical Education Analytical Geometry First Semester Human Anatomy & Histology Ocular Anatomy & Embryology Geometric Optics Mechanical & Ophthalmic Optics Psychophysiological Optics History & Survey of Ophthalmic Pro- fession Second Scm ester Statistics Physiology of the Eye. Ocular Genetics Physical Optics Geometric Optics Mechanical & Ophthalmic Optics General Pathology Pre-Clinical Optometry Psychophysiological Optics FOURTH YEAR First Semester Neurology Mechanical and Ophthalmic Optics Dispensing Applied Ocular Pathology Practical Optometry Orthoptics Psychophysiological Optics Summer Session Clinical Orientation Fir$t Semester Vocational Vision Illumination Contact Lenses Dispensing Clinical Pathology of the Eye Clinical Optometry Orthoptics Second Semester . Mechanical & Ophthalmic Optics Dispensing Clinical Pathology of the Eye Applied Ocular Pathology' Practical Optometry Orthoptics , Vision and Reading Psychophysiological Optics FIFTH YEAR Second Semester Industrial Vision Contact Lenses Dispensing Histopathology of the Eye Clinical Optometry Orthoptics Socio-Economic &L~gal Aspects of. Optometry `Practice Management & DevelOpment" Second Semester Health Educ. (Hygiene) Bacteriology Psychology General Physics Human Physiology Physical Education `THIRD YEAR PAGENO="0063" OPTOMETRY .59 Dr. CHAPMAN. Thank you very much, Mr. Chairman, and my thanks also to my Congressman, Don Fuqua, and to Mr. Jacobs, for being here. Mr. Chairman and members of the Subcommittee No. 5 of the House District Committee: it is a pleasure .to appear before you today. to speak in support of H.R. 1283 and H.R. 12276. . As the Chairman has indicated, I do have a . full statement which has been su~bmitted for the record with attachments. The purpose of the bill is simple. It elevates the practice of optometry in the District of Columbia to the level of a profession as recognized in all other states and territories of our Un~on. By so doing, it takes away from the unlicensed, the unqualified and the unscrupulous the power to use the license of an optorneti ist for selfish profit motivated purposes It also places some limits on those who would lure the public to a commercial establishment for the. primary purpose of selling. pair of glasses at a profit. Those who oppose this bill do so because it limits their ability to make a gain from the practice of optometry I submit, Mr Chairman, that the usual rule of the market place should not apply to th~ pi~actk~e of optometry The consumer finds it far moi e difficult to judge the quality of the health service he receives th'tn the qu'thty of other types of services and products of the market place He usu'tlly has only `t v'igue and often erroneous understanding of the kind of optometric ,se~vice l~e needs, and a very inadequate basis for ~udgrng the quality of the service he receives The end product of optometric service-good vision--is essential to the every day work, education and pleasure' of the con~urner. Mr. Chairman, eyeglasses have no resale value to a consumer as have most commercial products Their v'due is unique and individual to the con sumer `md tied to the quality of the examination `mnd prescription which lies within them Any possible other v'mlue `c~ ould h'mve to lie in the precious met'il content of the frame oi in any v'mlu'mble stones that might be imbedded in the fr'mme Earlier this year, in optometry., statement to the Senate Subcommit- tee on Anti Trust `mnd Monopoly holding hearings on "Medical Re straint of Trade," we .agreed with the view that a doctor should not profit from the sale of products t.o patients. The Association's "Manual of Professional Practice for the American Optometrist" states: "The optometrists' records should show clearly that his net income is based on fees for professional service, not .on markup of ophthalmi~ mate- rials." We challenge any of those opposing this legislation either la~st year or this to show that they have a comparable policy. There are those opposing this bill who ha's e said that Section 7 is unobjectionabie because it restricts only the optometrists in. ,the District. They oppose, however, any restrictions contained, ,in other parts of the bill. If it is important to regulate optometrists .in the practice of optometry, how much more important it is that regulation be adopted for those who do not have the training given in optometric schools and colleges They are not exammed or licensed as are our members. . . . .. PAGENO="0064" 60 OPTOMETRY * Many oppose the bill on the basis that it recognizes optometry as a profession, thereby expanding the scope and definition of the practice of optometry. This is probably the most important question before your Committee. Is optometry a profession-with all that word implies in terms of responsibility for the public welfare? We emphatically maintain that it is. This characterization of optometry as a profession serves more than a merely honorific purpose. It carries with it significant legal con- sequences. LEGAL OPINIONS Recently, the Corporation Counsel for `the District of Columbia in the brief for appellee in Norman Fields v. District of Columbia, quoted the United States Court of Appeals in Evers v. Buxbaun~ which stated that the primary aim of Congress in enacting the optometry statute * * * "was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpert- ness." Even courts which have not explicitly referred to optometry as a learned profession, have hesitated in thrusting upon optometrists the responsibilities and liabilities derived from such legal status. The ex- tent of the optometrist's duty to recognize ocular pathology serves as an example. A definite responsibility in this area commensurate with the status of medicine has been created by state court rulings within the past thirty years. It is interesting to note that this trend of decisions coincides with the tendency, originating at the same time, to definite optometry as a profession by legislation. Of all the earlier arguments set forth before this Committee, we are most distressed by the opposition from Walter N. Tobriner, Presi- dent of the D.C. Board of Commissioners, who must administer and enforce this Act. We believe the arguments Mr. Tobriner makes are based on antiquated and outworn decisions coupled with opinions he has received from medical and optical friends. To help him and you determine the professional status or lack of it for optometry in the District, I refer you to statements he made in opposition to similar legislation last year and, hopefully, counter them. Mr. Tobriner's statement in opposition to this legislation deals with a 1940 court decision, Silver v. Lansbu.~qh and Bros. et al. The Ameri- can Optometric Association believes this decision is one of the biggest obstacles to protecting the public from those who would employ the license of an optometrist primarily for their own selfish gain. Mr. Chairman, we believe the court in this case was not adequately informed of the scope of optometry or its training, that it erred in its judgment that optometry is solely a mechanical art using mechanical instruments and appliances. Such a definition predates 1924. The deci- sion further appears to be predicated on the wording of the definition of optometry as contained in the 1924 Act, 43 years ago, and not upon the contemporary practice of the profession. Despite the court's statement in the Silver v. Lansburgh case, there is ample legal authority for the proposition that optometry is a. pro- fession rather than a narrow technical calling or trade as defined in the PAGENO="0065" OPTOMETRY 61 1924 District of Columbia Optometry Law. A significant number of jurisdictions have enumerated this idea as a principle of either judge- made or statutory law. We have been informed, Mr. Chairman, that it will take an Act of Congress to overcome the judgment of the court in Silver v. Lañ~- burgh; that is why we are here before you again today. The Commissioners last year testified for deletion of those provi- sions relating to advertising and hiring of an optometrist by anyone other than another Optometrist. We do not believe the Commissioners would have made the same recommendation if the bills under consid- eration were to regulate either the practice of medicine or* dentistry. We do not understand their objection when the issue is to regulate the practice of optometry. Because of the highly personal nature of services rendered and the unique individual needs of each patient, adequate vision care is a highly complex service which does not lend itself to production line methods frequently used in mercantile establishments. The hallmark of this type of operation is big-splash advertising claiming "low prices," "easy credit", "fast and accurate service." Dozens of articles have appeared in our nation's leading magazines which sound a warning to the public of the dangers of unscrupulous operators in the field of vision care. The problems involved with unethical practices in this area are (1) "bait" advertising, (2) the lack of adequate time for thorough ex- amination and service, (3) the lack of quality materials and (4) con- sideration of profit motive above consideration of the patient's best interest. The basic decision before your Committee is whether optometry in the District of Columbia in this year of 1967 is an independent coor- dinate health profession to be regulated in the same fashion as the other health professions such as medicine, osteopathy, dentistry and podiatry or whether it is simply a mechanical art as described in the 1924 Act. Mr. Chairman, we believe that the judgment of this Subcommittee will be for optometry as a profession. We have faith that the Com- mittee will act favorably on the bill before it and make only minor amendments to clarify its intent-to improve the practice of optom- etry in the District of Columbia for the benefit of those who reside here and those who visit our Nation's Capital City. Both Dr. Hofstetter and I will be pleased to attempt to answer any questions. Thank you for giving me this opportunity to speak on behalf of the American Optometric Association. Mr. Sisu. That completes your oral statement, Dr. Chapman? Dr. CHAPMAN. It does, Mr. Chairman. Mr. SIsK. Thank you for a very excellent statement, Dr. Chapman. I note your prepared statement here is a good deal more elaborate than what you presented orally. Mr. HORTON. Is Dr. Hofstetter going to testify, too, or do you appear together? Dr. HoFsii~r'rER. I have no statement., Mr. Chairman. Mr. JAcoBs. Dr. Chapman, with reference to the legislation which has been introduced, which I must confess I have not perused as com- pletely as I perhaps should have, it has been suggested to me that 82-754---67------5 PAGENO="0066" 62 OPTOMETRY prohibition would be made so that an optometrist could not practice his profession in a retail department store. Is that correct? Dr. CHAPMAN. That is correct, Mr. Jacobs. Mr. JACOBS. Would you elucidate as to the reason for that pro- vision? Dr. CHAPMAN. Yes, sir, I can. The *care of the human vision process is one of the most complex activities that a professional person can involve himself in. The proper caring of human vision and the total examination of a pair of eyes in all aspects is time-consuming, requires far more than just the brief refraction span which sometimes and most of the t.ime is used in the practices which you describe which we are t.rying to eliminate from this District. There is far more to this business of seeing than just the wearing of a pair of glasses. The optometrist of today in this modern age of practice will take 45 minutes to an hour to examine a patient adequate- ly and do far more than just a refraction. He will include within his procedures all of the many techniques which delve into the psychologi- cal element of seeing, which delve into the efficiency of seeing, the effectivene~s of it, and the comfort of it. It may demand far more than glasses. It undoubtedly would in many instances require the use of vision training in orthoptics. It may require the use of subnormal. vision aids, the determination of perceptual abilities of this patient to see. I could go on and on, Mr. Congressman, with a description of the * differences between t.he two types of practices I am describing, and particularly there is no way in the. world that anyone, no matter how capa~bIe or competent, can take a. patient and in five minutes make any determination whatsoever accurately of his vision status. This is the type of practice that is so common and which are ex- hibited in the District, of Columbia. which commercially exploit optometry and t.hst this bill is designed in part to eliminate. Mr. JACOBS. From your response I would gather and infer that it is the procedure. and not the geography which is objectionable, and therefore I would propound my next. question-as to whether the procedure. of the practice by a licensed optometrist should not be the subject of the. re~u]ation rather than the place where this occurs. Let me go further by saying this: In my own profession of law there * are some of us who practice with firms and some of us who practice, as I did, as a sort of country lawyer in general practice, and there are others who work for large corporations, so-called house lawyers. I am wondering-and I know the analogy is not apt so far as house lawyers are concerned beca.use they serve the corporation rather than the public in most cases-but my question in essence is this: Is the location of a reputable licensed optometrist what we a.re really getting at or the procedures followed in any given place? Dr. CHAPMAN. Particularly, Mr. Jacobs, we are keenly interested in this matter of geography. I could `make other comments al)Out your question but I think that the siThject is going to be answered in other testimony which will'be given by Dr. Berlin of the District of Columbia Society, and it might be more answerable at that time when you `hear it given in testimony, so if it is all right with you I would prefer we wait until then. PAGENO="0067" OPTOMETRY 63 Mr. JACOBS. I think it is a matter of great importance. Dr. CHAPMAN. It is. Mr. JACOBS. I might say to the Chairman that I appreciate very much your summarizing your statement and I appreciate your pre- pared remarks. Mr. SI5K. The gentleman from New York, Mr. Horton. Mr. HORTON. I have not had a chance to read this new bill, either, Mr. Chairman. I am not sure just how it ties in with others except as has been stated generally. I wonder if this bill does not give the optometrists a monopoly with regard to the sale of eyeglasses, sun glasses, and the like? Dr. CHAPMAN. No, sir, it does not. Mr. HORTON. It is a pretty restrictive bill in so far as the ophthal- mologists and the opticians are concerned. Dr. CHAPMAN. The bill is restrictive only in the sense that it is pro- tective to the general public which must use the services of the optom- etrists of the District of Columbia. Mr. HORTON. Under this bill, could any outlet sell sunglasses? Dr. CHAPMAN. Yes, they can. Mr. I-1ORTON. How about other glasses which do not require a prescription. Dr. CHAPMAN. The only others permitted under this bill would be those ~ hich are piote~tive and corrective eye wear which would be the safety type of glasses which could be dispensed. Mr. HORTON. That is quite different from what exists in the District now? Dr. CHAPMAN. Yes, that is quite different.. Mr. HORTON. And much more restrictive than what it is now, is it not? Dr. CHAPMAN. No, I think it is actually a bit more permissive in some areas-permissive in the sense, and I don't know how to get this across to you as I want to-permissive in the care of human vision. It is not restrictive except only as it applies to the caring of people sub- standardly, if that makes any sense at all. I use this type of statement only to indicate to you that the purpose in the bill itself is to insure that the public in the District can have as- surances that that which they receive in the vision care performance is accurate, is complete, is thorough, is sound for their human vision. Mr. HORTON. Does not this bill expand the definition of the profes- sion of optometry from statutes of other states? Dr. CI-IAPMAN. No, sir, it is less than in my state and less than a number of ot.her states. It would be an expansion over some other states as well, yes, but not generally so in my opinion. Mr. HORTON. How many states would you say have broader defini- tions than what is in this bill? You mentioned your own state. Dr. CHAPMAN. Yes, and I can think of several other states. I would be taking just a poor guess. I don't know all the laws that well. Mr. HORTON. What is the relationship between this bill which we have before us and as it pertains to the profession of optometry and the profession of ophthalmology? Dr. CHAPMAN. You will have to ask the first part again. Mr. HORTON. I am trying to get the relationship between the defi- nition of the profession of optometry and the profession of those who practice ophthalmology. PAGENO="0068" 64 OPTOMETRY Dr. CHAPMAN. I have for the record if you would like me to submit it, or I will answer it verbally, a breakdown of the differences between the two groups as they are defined. Mr. HORTON. If you do have this breakdown I think it would be helpful to insert it in the record. Dr. CHAPMAN. We have such a breakdown. Mr. HORTON. Ca.n that be supplied? Mr. SIsK. Without objection the statement will be made part of the record. (The statement follows:) THREE EYECARE VocATIoNS AND PROFESSIONS Some confusion exists with regard to the types of persons serving the vision care needs of the public. There are three such groups and they can be simply defined as follows: (1) An optometrist-is a person licensed to independently examine the eyes and related structures to determine the presence of vision problems, eye diseases or other abnormalities. He prescribes and adapts lenses, contact lenses, or other optical aids, and utilizes vision training to preserve, restore and enhance vision efficiency. His doctorate degree is O.D., an abbreviation for Doctor of Optometry. (2) An ophthalmOlOgiSt.-is a duly licensed physician who specializes and is certified by a Board of his peers in the pathological and surgical care of the eyes. His doctorate degree is either M.D. or D.O. These abbreviations stand for Doctor of Medicine or Doctor of Osteopathy. (3) An optician.-is a skilled technician, auxiliary to either the optometrist or physician, who grinds, supplies, and fits glasses or other optical appliances only on the doctor's prescription. Generally, the optician acquires his trade by apprenticeship in an optical shop or by training in a technical school. Only a few states provide for the licensing of opticians and generally this license can be acquired by the simple expedient of securing the signature of several physicians, who may be from the general population and who certify to his competency. This is the procedure used in California for example. An optometrist is required to have completed at least high school, two years of collegiate-level pre-optometric curriculum, and four years of graduate level professional training in one of the ten U.S. accredited schools or colleges of optometry. He must pass written, practical, and oral examinations to be li- censed in any one of the states or territories of the United States of America. An ophthalmologist acquires approximately sixty hours of specialized training in the eye by the time be graduates from medical school. The largest part of his specialty training is received when he is a hospital intern or resident follow- ing his graduation. Any physician, regardless of his medical specialty, can prac- tice in the field of vision care by his exemption from the optometry licensing requirements found in all state laws. Mr. HORTON. That is all I have at this time. Mr. SI5K. The gentleman from New Mexico, Mr. Walker. Mr. WALKER. I have no questions at this time. * Mr. SI5K. The gentleman from Ohio. * Mr. HAR5HA. Dr. Chapman, as I understood you, you said you were here in behalf of H.R. 1283 and H.R. 12276. Is that correct? Dr. `CHAPMAN. Yes, sir. Mr. HARSHA. What is the difference, if any, between those two bills? DIFFERENCES BETWEEN H.R. 1283 AND H.R. 12276 Dr. CHAPMAN. H.R. 12276~ was only just recently introduced and I cannot give you all the differences. There are several changes in that bill over H.R. 1283 but I do not Imow how I would be able to describe those to you unless I went page by page through the bill, Mr. Harsha. PAGENO="0069" OPTOMETRY 65 This bill 1-LR. 12276 has been considered and discussed and has been made as competent and as carefully planned as we can make it. As Mr. Sisk has been able to design it, the changes which are made in this current bill, over the H.IR. `1283, we feel will in most instances take care of numerous objections which were put against the bill in- troduced in the last session of Congress. There are changes in this recent legislation, the newest bill, H.R. 12286, as introduced by Mr. Sisk and others, which will in my opinion readily answer effectively and affirmatively some of the objections to the original testimony in the original bill we had. Mr. HORTON. Would you specify what changes are in this new bill? This was introduced on August 10 and I got a~ copy of it only today. Will you specify what those changes are and indicate to us what effect they will have? Dr. CI-iAri~IAN. Yes, I can. Mr. HORTON. You worked on the bill? Dr.CEIAr~rAN. I have read this bill several times, to say the least, yes. Mr. HORTON. Did you work with Mr. Sisk in making these changes? Dr. CHAPMAN. I personally did not. Mr. HORTON. I mean your orga~nization. Dr. CHAPMAN. Yes. Mr. HORTON. Can you tell us what those differences are? Dr. CHAPMAN. Yes, I can. Do you have the bill before you? Mr. HORTON. I have a bill. Dr. CHAPMAN. The first change was on page 2. Mr. HORTON. I am not talking about just technical changes. I am talking about substa:ntial changes. I don't mean changing the word "and" and so on. Dr. CHAPMAN. These would be substantial changes. These would be changes from H.R. 1283 now. On page 2- Mr. SIsK. If I may comment briefly to clarify this. H.IR. 1283 to which you refer, is substantially different from the original bill of the 89th Congress because the gentleman from New York will recall after considerable discussion we agreed to a number of recommendations. Then in this Congress I introduced H.R. 1283, and I believe my good friend from Florida introduced a similar bill. Then as we continued to work on it I introduced this latest bill, H.R. 12276, which you are now comparing; it does have some addi- tional changes. Mr. HORTON. That is why I asked earlier that we have a staff mem- orandum for the benefit of the mernbers.of the Subcommittee and also for the full Committee, if we get to the full Committee, to set out changes made between the 89th Congress bills that were the subject of the hearings before the Dowdy Subcommittee in the 8th Congress and these. Those printed hearings are before us and were held through May 31 of 1966. I want the differences between those bills and those introduced January 10 in the 90th Congress, and also the changes which have been made in H.IR. 12276 as they differ from H.R. 1283 which was the bill introduced in the early part of the 90th Congress. PAGENO="0070" 66 OPTOMETRY That is why I want something so we will have a pretty good analysis of what we are talking about here. I don't know how closely these witnesses are tied in with the dif- ferences but I thought Dr. Chapman could relate to us what some of these changes are and the position of his group with regard to them. Dr. CHAPMAN. I will be glad to try that. There have been several bills and I will do my best to quickly give you the salient points of the major differences in this newest one, but particularly as changed from the last one which you discussed here last year. On page 2, line 20, item (d), of H.R. 1283 the determination of the scope of the functions of the human eye in general, has been deleted. The current bill will not have- Mr. HORTON. What line? Dr. CHAPMAN. Line 20. Mr. HORTON. Item (d) has been deleted from H.R. 12276 ? Dr. CHAPMAN. Yes. Mr. HORTON. Determination of the scope of the function of the human eye in general? Dr. CHAPMAN. Yes, sir. There was some renumbering but that was incidental. Mr. HORTON. WTas this the recommendation of your organization? Dr. CHAPMAN. We are so very anixous in my Association to somehow bring the antiquity of optometry out of the dust from 1924 up to the modern day period that we have been perfectly willing to sit with and try as best we can to work out the objections to the origina.l bill. Where we could we were willing to accept the feelings of other groups inter- ested in this piece of legislation and we tried to cooperate as completely as we could. Mr. HORTON. This has to do with the definition of the profession of optometry in the District of Columbia. Do you have in your statement, which we have not had an opportunity to read, do you have anything in your statement which would cover the deletion of that part of H.R. 1283? Dr. CHAPMAN. No, sir, I don't believe there is reference made to deletions from the bill in my statement. Mr. HORTON. I meant with regard to the change of the definition of the practice of optometry. Dr. CHAPMAN. No, sir. Mr. HORTON. Do you have any comments to make with regard to the deletions and the effect of them? Dr. CHAPMAN. I think the effect would simply be that item (d) was not clear. It left a considerable amount of conjecture on the part of someone reading the words in it, and it was not definite enough to the point that people would be absolutely certain of just exactly what it included. Have you any further comment, Dr. Hofstetter? Dr. HOFSTETTER. Not at this time. Dr. CHAPMAN. The statement itself was not meaningful. It had various meanings to those who read it and it was eliminated. It is as simple as that. Shall I move to another? Mr. HORTON. Yes. Under this practice of optometry in the new bill are there any `additions? PAGENO="0071" OPTOMETRY 67 Dr. CHAPMAN. Not in the definition, no, sir. On page 4, at line 19, there is inserted the language that the Com- missioners are authorized and empowered to alter, amend and other- wise change the educational standards at any time, but in altering, amending or changing said standards the Commissioners shall not be permitted `to lower the same below the standards herein set forth. I am sure you remember at the conclusion of the hearings last time practically every group which testified had various amendments which they cared to make. The Commissioners were among `that group. This was one of the amendments they wanted to see in the `bill. On page 11 of H.R. 1283, at line 12, item 4 was deleted and reworded with the following language: "With the exception of non-prescription sun glasses" and this applies to- Mr. HORTON. Are you reading the new language now? Dr. CHAPMAN. Yes, sir, this is at page 11, line 8 of H.R. 12276. Mr. HORTON. What page is that on? Dr. CHAPMAN. Page 11, under Section 8 which has to do with the statement "It shall be unlawful for any person to do" these various things: (4) * * * With the exception of non-prescription sun glasses or non-prescrip- tion protective eye wear to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price, cost or any reference thereto whether related to any eye examination or to the cost or price of lenses, glasses, mountings, or ophthalmic articles or devices. Mr~ HORTON. Is the effect of that just to eliminate nonprescription. sunglasses and nonprescription protective eyewear? Is that the effect of it? Dr. CHAPMAN. Yes, sir; that is the effect of it. On page 12 at line 12, striking "optometrists," the new wording would be: "It shall be unlawful for any person other than a person licensed to practice optometry, medicine or osteopathy under the laws of the District of Columbia," and it continues, "to utilize the services of an optometrist on a salary, commission," and so forth. The language remains the same thereafter at that point. Mr. HORTON. Do you want to define these terms, other than a person licensed to practice optometry, as set forth in this bill? I am trying to determine what these definitions are. Do you want to read what you have in the language there? Dr. CHAPMAN. The one I just read? Mr. HORTON. The new language. Dr. CHAPMAN. "It shall be unlawful for any person other than a person licensed to practice optometry, medicine or osteopathy * * Mr. HORTON. What are medicine and osteopathy? Dr. CHAPMAN. It is a matter of exemption. Mr. FUQtTA. This was to clarify an objection, I believe. Dr. CHAPMAN. There was an objection to the original language of the bill which included only "other than an optometrist". This is exemptive language which was asked for. Mr. HORTON. What about an ophthalmologist? Dr. CHAPMAN. He would be included in the term "medicine". Mr. HORTON.. What is an osteopath? PAGENO="0072" 68 OPTOMETRY Dr. CHAPMAN. He is a doctor of osteopathic medicine. Mr. HORTON. Does that include the eyes? Dr. CHAPMAN. Yes, there are osteopathic ophthalmologists. Mr. HAR5HA. If I have my eyes examined by the ophthalmologist and he sends me to an optician to make my glasses, he is exempted under this provision? Dr. CHAPMAN. The ophthalmologist,, yes. Mr. HARSHA. How about the optician? Dr. CHAPMAN. The optician is permitted to fill prescriptions under the terms of this Act. Mr. HORTON. Go ahead to the next one. Dr. CHAPMAN. On page 13, lines 7 and 8 of H.R. 1283, place a comma after the word "optometry" and delete the word "or" before the word "medicine" and insert the phrase "or osteopathy" after the word "medi- cine" in both lines, so it would read as on page 12, line 24 of H.R. 12276: "This Act shall not apply (1) to any bona fide student of op- tometry, medicine or osteopathy in the clinic rooms of a school of optometry, medicine, or osteopathy approved by the Commissioners." The original language of the bill only said optometry, and the pur- pose was to make certain there would be no question about whether or not these students in these other disciplines could have the same privilege. On page 13, line 21 of H.R.. 1283 has been amended in H.R. 12276 to read: This Act shall not be deemed to require a physician or surgeon licensed under the laws of the District of Columbia for the practice of medicine or osteopathy to have a license under this Act to perform those services `defined by this Act as the practice of optometry. These are exemption clauses that have been asked for, a.nd that is what we are trying to provide in this change of language. On page 13, line 25, and page 14, line 1, delete the phrase "physician, surgeon, or an optometrist" and replace with the phrase "person licensed to practice optometry, medicine, or osteopathy". Mr. HARSHA. That change is at page 13, line 20, of H.R. 12276. Dr. CHAPMAN. Yes. Mr. FUQUA. It is somewhat rethmdant. You are putting in the word "osteopathy". Mr. HORTON. On line 20, page 13, of the new bill, H.R. 12276. Mr. SIsK. Dr. Chapman. there is apparently a little difference. Act- ually. it. goes back to line 20, page 13, of the new bill. Dr. CHAPMAN. Mr. Horton, I will be frank to admit I am using some original notes on other bills, and I am sure it is not as accurate as what you have before you in the new bill. I have it all compiled, but it is not numbered exactly `as you have it. Mr. HORTON. We will have to transcribe what you are saying from the old bill to the new bill. Dr. CHAPMAN. On page 15 is the area where the greatest number of changes, I think, will be found. There is a. new subsection (4) in- serted between lines 2 and 3, following the words "practice of such license for a. period not to exceed one year." We have reference, here again,' to nothing in this Act shall be deemed to prevent the following things from happening. There is a ~iew subsection (4) which reads PAGENO="0073" OPTOMETRY 69 as follows, immediately following the words "not to exceed one year." Mr. HORTON. That is shown starting on line. 22 of page 14 of H.R. 12276. Dr. `CHAPMAN (reading): (4) a person from acting as an assistant under the direct personal supervision of an individual licensed by the District of Columbia to practice optometry, medi- cine, or osteopathy, provided such assistant does not perform an act which would require professional judgment or discretion. That is the addition of a new subsection (4). Mr. `HORTON. Yes. Mr. HARSHA. On line 23 page 14 of the new bill, H.R. 12276, the phrase "direct personal supervision" appears. Does that mean the optometrist or the ophthalmologist, whoever it may be, has to be in the room overseeing what the nurse or the assistant is doing? Dr. CHAPMAN. I know the question is well asked. The point I would make here is simply that there has been a great deal of question, and in many instances court proceedings, regarding this question of direct per- sonal supervision. As applied to subsection (4), I would have to inter- pret this out of my own knowledge as to what I envision for the oph- thalmologist to have at his `disposal, the use of technicians and people within his office, that any act which literally did take professional judgment or discretion, he would be the only one able to do, and other * acts would be where he would have definite control over or overseeing what these people are doing. Whether it is in the same room, I cannot answer. In my understand- ing of words, I would say perhaps in the same room, bu't I understand, too, there is considerable question about direct supervision. Mr. FUQUA. I think it was intended this would be similar to the den- tal hygienist or nurse assisting the doctor, that they could not be 10 miles away in another branch. office making professional decisions with the doctor somewhere else; that `they would have to work under his direct supervision. I do not know whether it means in the same room. They probably could give certain eye chart readings or `something like that. Mr. HARSHA. Suppose you are conducting an examination of school students, an'd you have a nurse or assistant there who has not the de- gree of training that you have. Does it take medical judgment to inter- pret an eye chart? Dr. CHAPMAN. In that sense, it does not, and this bill provides that `the `screening system, and so `f'orth, utilized by nurses und;er super- vision, but under supervision only in `the sense that supervision comes from the direction of th'e program, `the design of the method, and so forth. No, there would not have to `be a professional man in attendance at that time, and this bill so provides. Mr. HORTON. How many more changes do you have, `Doctor? Dr. CHAPMAN. I shall have to follow the original bill. We are looking at the copy of the `bill you have. Vision screening programs, on page 15 line 3, of H.R. 12276, involves `the question you just asked about, Mr. Harsha. Mr. HORTON. That is simply. .a language change. That i's. now No. `(5') on line 3, page 15. Dr. CHAPMAN. Correct. Line 6 `subsection (6), on page 15 of H.R. 12276 is new: "persons from supplying spectacles or eye glasses on PAGENO="0074" 70 OPTOMETRY prescription from an individual licensed to practice optometry, medi- cine, or osteopathy". Mr. HORTON. That is new? Dr. CHAPMAN. Yes. And there is also a new item, (7), line 9, page 15 of H.R. 12276: "a person from selling nonprescription sunglasses or nonprescription protective eyewear." Mr. HORTON. That is lines 9 and 10 on page 15, section (7)? Dr. CHAPMAN. Yes. Then the final change will be item (f), line 16, in H.R 1283. Adding following "medicine," line 14, the words "or to write or issue prescriptions for the obtaining of drugs or medicine in any form for the treatment or examination of the human eye.." This is shown as lines 20 to 22 of H.R. 12276, page 15. Mr. HARSHA. How do you justify that when back on page 2, line 15, you say the practice of optometry means "(a) the employment of any objective or subjective means for the examination of the human eye, including its appendages"? Does that authorize you to use drugs to make an objective examination of the eye.? Dr. CHAPMAN. No, sir, it does not, Mr. Harsha.. In fact, that lan- guagé is in a great number of the statutes defining optometry through- out the nation. That is very common language. In optometry there are two basic systems. The. first is the objective method whereby you use instrumentation to make your judgment. It is a little more compli- cated than that, but that is the simplest way to say it. The second would be the subjective method where you a.re asking the patient and having the patient respond. No, sir, that does not include the use of drugs. Mr. HARSHA. Do you interpret this new subsection (7) you just added to limit this subsection (a) ? Does it make it quite clear you are not permitted to use drugs? Dr. CI-IAPMAN. This subsection is inserted for the purpose of indi- cating in the section that for the treatment or the handling of the individual patient, drugs or medicines are not to be used. Mr. HARSHA. Does not this sub-section (a.) on page 2 authorize you to get into the pathology of the eyes? Dr. CHAPMAN. Mr. Harsha, of course one of the prime responsibili- ties of the optometrist, because of the numbers of patients he sees, is the matter of the care of the patient professionally to make certain there is no pathology present. He is taught and trained in that area, as Dr. Hofstetter, who ca.n amplify if you want him to, can tell you. Because he is the very first line of defense against blindness for the great bulk of the American people, this is part of the responsibility that he must have. This the profession has recognized for a long time and has so trained its people to do. There is no intent in this Act to expand the philosophy of optometry into the drug field. Mr. HARSHA. On page 3, subsection (h) reads: "the identification of any departure from the normal condition or function of the human eye." You do not think t.ha.t would broaden your field or scope of inquiry? Dr. CHAPMAN. No, sir, I do not think so at all. I think this is an absolute necessity and requirement. PAGENO="0075" OPTOMETRY 71 Mr. HORTON. Would your Association agree to the elimination of subsections (a) and (h) under section 3 subdivision (2) ? Those are the two Mr. Harsha just read. Dr. CHAPMAN. No, sir, we couldn't, Mr. Horton. The optometrist sees approximately 70 percent of the patients who walk in his office for vision care, and he must be equipped to have at his disposal the methods that optometrists are trained in to determine the facts about the human eye. Mr. HORTON. I am concerned that there perhaps is some confusion here between the practice of optometry as defined here and the field of ophthalmology. I am not an expert, and that is why I am asking your opinion whether or not your Association would be willing to drop those two sections. Dr. CHAPMAN. No, sir, we couldn't possibly drop those two sections and still live up to the principles of what an optometrist is supposed to do and live up to the demands of the patient in coming to us for care. There is no intent whatsoever to use drugs for the purpose of treating the human eye. The optometrist is trained in the vision care of this patient, but he must in the original determine the health of this eye so he can then proceed with the techniques which are given to him to utilize. Mr. HORTON. When you get into that field, then you are getting into the field of medicines, are you not? Dr. Cn~w~tN. Which field? Mr. HORTON. What you just said. Dr. CHAPMAN. The recognition of pathology or the detection of it? `Mr. HORTON. Yes. Dr. CHAPMAN. No, sir, we do not consider that in the field of medi- cine at all. Mr. SIsK. As I recall the testimony last year, when the American Medical Association was before our committee they discussed the neces- sity of optometrists making referrals to doctors of medicine in cases where medical attention was required. Is that correct? Dr. CHAPMAN. Ye's, sir. Mr. SISK. How could you make a referral without the ability to detect some departure from the normal? Dr. CHAPMAN. There would be no way whatsoever. Mr. SI5K. I understand optometrists take care of around 70 to 75 percent of all Americans as far as their visual care is concerned. If the optometrist was not required to have the ability to detect such departure from the norm and that medical care was required, he would have no possible way of referring the patient to an ophthalmologist or a doctor of medicine. Dr. CHAPMAN. I would like to ask Dr. Hofstetter to amplify on this for a moment, if he will. Dr. HoFs~rm~'rER. Traditionally, medicine ha's not been peculiarly concerned with the detection but, rather, with the treatment and care of disease. The detection is largely anybody's business and, in fact, it is farmed out to all sorts of programs. The optometrist has the detection problem. If we do not permit the optometrist the legal privilege of detecting and making such tests as are necessary to detect pathology or pathological processes or inter- PAGENO="0076" 72 OPTOMETRY ferences with vision, then we will be creating a situation where the great mass of people who go to the. optometrist will have to go to two people in order to get the complete visual care. By removing these sections that are in question, it would be necessary then that each pa- tient who now goes to the optometrist and trusts him to make the necessary detection for pathology, would have to be cleared through a physician as well. This, I think, would be economically costly. Mr. HARSHA. Have you any more amendments or changes to offer? Dr. CHAPMAN. No, sir, I believe that is the final one. Mr. HARSHA. You said you urged the subcommittee to approve this bill or one similar to it. with certain minor amendments, as I remember your testimony. What additional amendments have you to offer? Dr. CHAPMAN. I have none, Mr. Harsha. I used that terminology only because I doubted very seriously that the bill as presently drafted would have all of the questions answered properly, and there might still have to be some clarifying amendments to it, but only in that sense. As far as I know, there are no major changes anticipated at all in H.R. 12276. Mr. HARSHA. I have one other question as to page 2, subparagraph (2) under section 3, "`practice of optometry' means any one, any combination, or all of the following acts or practices as they are in- cluded in the curriculum of recognized schools and colleges of optometry". Does this mean that a. school of optometry can change t.he law, so to speak, by changing its curriculum? In your definition, it is left to the curriculum of the school to deter- mine what optometry is. Every time the curriculum changes, so changes the definition of optometry, does it not? Dr. CHAPMAN. I will ask Dr. Hofstetter to answer that because it is a matter of education. Dr. HOFSTETTER. I do not know the legal interpretation of the phrase, but when I rea.d it I thought that. meant provided that these are taught in t.he curriculum. It. had not occurred to me tha.t it might be the other way. I really cannot answer that. I can only sa.y that had not occurred to me. I am sure that. is not. the intent. Mr. HARSHA. Then you would not. object to an amendment to clarify that. to make sure? Dr. HOFSTETTER. I would like t.o see it clarified. ~`Ir. HARSHA. That is all I have.. Mr. SI5K. The gentleman from Maryland, Mr. Gude. Mr. GUDE. On the first page of your testimony you say, "It elevates the practice .of optometry in the District of Columbia to the level of a profession as recognized in t.he other States a.nd territories of our T.Juion." Do you mean there all the States recognize optometry as a profession? Dr. CHAPMAN. Yes, sir. . . Mr. GUDE. The District of Columbia is the only jurisdiction which does not?. . .. Dr. CHAPMAN. As far . as I know, it is the only jurisdiction . that does not so identify it. . PAGENO="0077" OPTOMETRY 73 Mr. GTJDE. On page 11 of the new bill, H.R. 12276, it says, "with the exception of the nonprescription of sun glasses or nonprescription of protective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto," and so on. Should that not ibe rephrased? Is that not ambiguous? I do not believe that is what is intended. If it does not include the price, then you could advertise. That appears on page 11, subsection (4). It is unlaw- ful only if the advertising includes or contains the price. The inter- ence would `be if it does not include or contain the price, then you could advertise the things referred to. Mr. SIsK. As I understand his concern, interprets the language to say that if it does not contain the price then it could be advertised. Mr. GtTDE. "To advertise or cause to be advertised to the public any material of any character," is the language. I think it is just a matter of wording. Mr. SISK. In other words, you feel it should be more restrictive. Mr. HARSHA. I think what lie is trying to get at is that you do not include the price in the advertising. Is that not what he wants? Mr. SI5K. We will have to study this language. I agree with the gentleman, it should be studied if that is a loophole. Dr. CHAPMAN. That is probably the type of amendment that I had reference to that might come up. Mr. G-UDE. You made the statement that the recognition of symp- toms of illness was something that is farmed out by the professions of medicine and dentistry. Could you give examples of that? Dr. CHAPMAN. I believe Dr. Hofstetter made reference to the farm- ing out. I do not believe I said that. Dr. HoFs~rerri~R. I do not imderstand the question. Mr. GUDE. You made reference that recognition of symptoms of dis- ease is something that is farmed out by the professions, and very often it does not take a professional man to recognize the symptoms of disease. Dr. I-IoFsi'rn~rsR. I was referring to screening programs that are often done on the detection side, the work that is done in detection in T.B. screening, and that sort, of thing, where the work is done by tech- nical people without a physician being present. I made the remark that it is almost anybody's business. The fact remains that most of us de- tect our own illness before we call a physician. One does not have the privilege, particularly. A mother, neighbor, someone makes the as- sumption or the detection that all is not well. That is quite different from the recognition of the specific disease. Mr. GUDE. A dental hygienist, a person who cleans teeth, does not have to practice under a dentist. Dr. HOFSTETTER. I do not know. I would have to guess. I just don't know precisely. In the case of a nurse, the nurse frequently is called upon to make' judgments which require the calling of a physician, who leaves the hospital or the nurse with the patient and says, "Call' me if and when." This is what I mean by farming out the decision to detect anomalies or variations which call for medical `attention. This detection of varia- tions I think is almost a class of skill in itself as distinct from mak- ing diagnoses appurtenant to the treatment and care. PAGENO="0078" 74 OPTOMETRY Mr. GUDE. Why does optometry have to he a profession when they can carry out this farming-out function? Can they do this job with- out being in the status of a profession? Is it necessary to have pro- fessional status to carry out this function? Dr. HOF5TErrsR. I am not speaking legally now, but I suspect it is a matter of clarification of what one holds himself out to be able to do. In the case of the optometrist, as a part of his traditional practice and reflecting the decisions that have been made along this line for the better part of a century, it is, I think, so that he can first of all as- sume this responsibility. If this is not a part of the license or spelled out responsibility, then he has no obligation to assume it, but it is im- portant that he have this obligation assigned to him. Otherwise, we will have to create a clearance. That is to say, if he has no implied or spelled out obligation to detect pathology, then it becomes in the pub- lic interest important to make some other provision to take care of this. This is, I think, why it is important to put it in this licensing provision. Mr. GUDE. In other words, by having professional status, lie can better do this job? Dr. HOFSTETTER. Yes. Mr. GuiDE. Is that what you are saying? Dr. HoFsmrrER. Yes. Mr. GUDE. Thank you. Mr. HARSHA. The mere fact that you have professional status would not enable you to do the job better? Dr. HOFSTETrER. It would not enable him to do the job better. Mr. 1-IARSHA. It would depend upon his background and training. Dr. HOFSTETrER. No, the background- Mr. HARSHA. I mean the education. Dr. HOFSTETTER. The education that lie gets might be effective for a year or so, but the professor's influence diminishes very rapidly if the climate is not satisfactory. Mr. HARSHA. May I ask one other question, as to page 12, subsection (7) of the latest bill, RH. 12276, which reads: other than a person licensed to practice optometry, medicine, or osteopathy un- der the laws of the District of Columbia, to utilize the services of an optometrist on a salary, commission, lease, or any other basis or to engage or undertake to engage, directly or indirectly, in any manner whatsoever, in the practice of optometry. Apparently this is designed to eliminate the practice in stores like Sears Roebuck-I do not know whether Montgomery Ward does it or not-where they have an optometrist in their store and he prescribes and fits glasses right there, but he does it on a commission basis or salary basis. You are opposed to that practice? Dr. CHAPMAN. Yes, sir. Mr. HARSHA. Why, if he is a licensed optometrist.? Dr. CHAPMAN. Because the motivation for the practice that is evi- dent by this type of individual is purely from the profit-making side. His responsibility is not to the individual as a patient but, rather, to his employer. It depends upon speed, how fast it can be done, how many people can be seen. Statistics will prove the thOusands that are seen. There is not given the climate for thorOugh professional eye care under circumstances PAGENO="0079" OPTOMETRY 75 such as that. You are making a commercial product out of a pair of glasses, and they were never designed to be that. Mr. HARSHA. To the same degree that would occur with a person practicing in his own office. He did not get into the business of optom- etry because he was so deeply interested in my eyesight. He got into it primarily because it was a way of livelihood or a way of earning a living for himself. Dr. ~HAPMAN. Yes, sir. I would certainly say that. Mr. HARSHA. Of course, under your oath, if you have one-I assume in other States they would have one, or at least a code of ethics. Dr. CHAPMAN. Yes, sir. Mr. HARSHA. You do all that is humanly possible properly to treat the eye with that in mind, but I think it is a matter of degree. If you have a man of high morals, of high integrity, who cannot for financial reasons build up an office and equipment. of his own-in many cases he might be married, because a lot of us get married before we get out of school, so he has family responsibilities-could he not practice under these circumstances just as well? Dr. CHAPMAN. No, Mr. Harsha, I do not believe he could, by any stretch of the imagination, no more than I believe a medical practi- tioner or anyone else could do it on that basis. The only way that this young man with all of his problems-and this Association is designed and prepared to assist in every way it can to make certain he is suc- cessful in the practice of optometry-the only way that he can do that is to go into his office and learn and to give the best to the patient. In the commercial element, the only way the practice is developed is through the advertising. There is no concern with the patient. If the patient does not come back, it does not make any difference. So many other people are coming right behind, it is not of any signifi- cance at all. This profession is designed to render total vision care, and that young man is taught to do that. The professions are regulated. The legal profession and the medical profession are regulated, and certain demands are placed upon the practitioner. Demands are placed upon our practitioners throughout this country, but they are not placed on them here. I-Ic is in the market place with a commercial product. The people's needs are not uppermost in his mind. It just cannot be, under those circumstances. Mr. HARSHA. I do not quite agree with you on that, but let us take this case. Could he lease office space in there, regardless of his volume of business, and have no other connection with the firm at all? Let us say he wants to locate there because a lot of people move in and out of the store. He cannot advertise, as you want to prohibit advertising in this bill. Like any other professional man, he cannot advertise his profession or his availability, but he wants to locate in that store be- cause there is a volume of traffic there with which he may be able to do business. Would that be precluded under this bill? Dr. CHAPMAN. Yes, it would. Mr. HARSHA. Would you have the same objection to that as the man working on salary for the company itself? Dr. CHAPMAN. He cannot render professional care under that cir- cumstance, I do not believe, using that as the device by which people PAGENO="0080" 76 OPTOMETRY come to you as the practitioner. In other words, you have to render the service and you have to do it so well that that patient will go out and send someone else in. Mr. HARSHA. He could do that, too. You have to have the first patient. Dr. CHAPMAN. Medical doctors do not do that to start their prac- tice. Dentists do not do that to start theirs. Lawyers do not do that to start theirs. Mr. HORTON. It might not necessarily be someone starting out in practice. He might have been in practice for 10 or 15 yea.rs and go to Sears. Mr. HARSHA. That was the example I gave him. Dr. CHAPMAN. I would like to make this statement regarding cer- tain of the questions you have raised. Perhaps I should have said this sooner. In testimony to follow, which will be from our District of Columbia Society Board, I suspect other elaboration on your question in this area, particularly as applies to Washington, will be provided, and you will have the opportunity to question further exactly the statistics on the practice as carried on here in the District of Columbia when Dr. Berlin testifies. Mr. HARSHA. I do not find any quarrel with your efforts to elevate your profession, to make it more capable of serving the public, to the highest or best condition it should be, but I do not ascribe the same motives as you do to a man trying to do business in a Sears Roebuck store. Dr. CHAPMAN. It is not a. business, Mr. Harsha. Mr. HARSHA. Or profession, or whatever you want to call it. Dr. CHAPMAN. The very word "profession" connotes certain char- acteristics which this man must have. Our men are taught these things. Mr. HARSHA. That is my point. If he has these characteristics that you want him to have, I cannot see where he is going to be so changed by the fact that he is located in one of these stores. Dr. CHAPMAN. Do you want me to answer further? Mr. SIsK. I do not doubt a man could go to work for Sears Roebuck and be just as dedicated and sincere and do a job. However, evidence from last year indicated they do not last with Sears Roebuck because it does not pay off with a corporate entity. At least, that is what the evidence indicated. Dr. HOFSTETTER. I think I can answer in part in terms of the expe- riences of our own graduates. I am naturally close to the students and follow them for some time. If they go into clinical practice or private practice where they are free to serve the patient personally and to make their own judgment as to what is needed, their whole attitude is different than when they go into the employment of a lay corporation where they have to comply with the time limitation, the sales policies, a.nd so forth, of t.he organization which is geared toward the sale of frames and lenses. Mr. HARSHA. He works on a. commission basis, and the motivating force would be very strong. I can see that. Dr. HOFSTETTER. Our students are not angels, by any means. Optom- etrists are human, like anyone else, I would hope. The result is that within a very short time they a.re doing an extremely abbreviated exam- ination, omitting important parts of the professional procedure. PAGENO="0081" OPTOMETRY 77 Mr. HORTON. Along this line, is not the difficulty with regard to the present requirements for qualification to practice optometry and those that are enumerated in the new proposal? In other words, the proposal has more requirements for the practice of optometry rather than a definition of what it is. The problem in the District, as I understand it, is that there are not the requirements that are in the new bill. If you had the requirements for the practice of optometry which are in section 4 of the new bill-21 years of age, 4-year course of study in high school, completed a preoptometric course of at least 2 years at col- lege level, and then it goes on-this would raise the standard, would it not, over what the District requires at the present time? Dr. HOFSTETTER. That would raise the standard, but it would not solve anything in particular, I do not believe. Mr. HORTON. I do not know what the standard is at the present time, but I think without having anything other than just a college degree- Dr. HOF5TETTER. There is no other source of new optometrists ex- cept from the schools that provide these standards, so the stipulation of the educational requirements in the proposed law simply recognizes the present situation. Mr. HORTON. I am saying if you left in these requirements in section 4 of the new bill and eliminated the ones Mr. Harsha was talking about on page 12, eliminate section (7), to utilize the services of an optome- trist on a salary basis, by raising your standards you probably in the long run would solve this problem as set forth in section (7). Dr. CHAPMAN. I do not believe so, Mr. Horton. I do not believe there is that much time. In the first place, that does not help the situation at all for the protection of the public who is being worked into these practices. Mr. HORTON. It is claimed that the optometrists are not qualified as they would have to be under this Act. That is part of the objective, as I recall it. If the requirements are raised to a professional status, which is what you are asking here, then Sears Roebuck and the others would have to have someone who is qualified under this section, under section 4, and better, more competent, and more professional services would he provided at these stores. Dr. HOFSTETTER. I think this proposition assumes that the training will control the man's behavior throughout his career, and this is his problem. Our educational facilities are simply not so effective that we influence the behavior for 30 or 40 years. If the climate in which he can operate, if his freedom to exercise professional judgment, if his freedom simply to consume an extra 20 minutes on an individual patient without throwing a monkeywrench into the machinery of the organization, if that freedom is not allowed, he soon begins to abbrevi- ate the examination, to leave out large portions of his services, to eliminate offerings that patients want which it is not expedient to offer under the objectives of the corporation that he is working for, and he becomes unprofessional. Mr. HORTON. You are saying section (7) is for the protection of the neophyte optometrist, too, because if he is in that atmosphere he will be corrupted and will not do the job as well as he would if he were out in private practice. 52-754-67-----G PAGENO="0082" 78 OPTOMETRY Dr. CHAPMAN. In my opinion, that is exactly right. I do not know whether we have made this clear or not. We have tried. This may be the basic principle involved here. What we are talking about is not a commercial product here, a salable item in the sense that some piece of merchandise is salable. You would not give me anything for these glasses because for you t.hey are absolutely valueless, nor would I give you anything for yours because I could not see out of them. There is so much more to the understanding of human vision and the care of it than just the quick prescription of a pair of eyeglasses that might make you see a little better. Mr. HORTON. That may be perfectly true, and I would admit that, except we are going to have an optometrist in charge of this depart- ment, one of your own, a man who has this ability. Dr. CHAPMAN. But lie does not have the opportunity to utilize that ability. Why would lie want to utilize it whemi his patient load is com- ing in because of advertising, price, and so forth ? He has no reason to serve the patient well when he builds the practice on that basis. He has more patients generally than he can see. He has to see. them quickly and rapid to see the next oiie and the next one and on and on and on. This is a purely commercial operation owned by people who couldn't care less about human vision, who have no concern whatsoever for the welfare of the individual patient in his office. They are not set up on that basis. They were not designed that way. If you put this kind of product. in the market place with five min- utes' service, trade in your old eyeglasses and all of the many gim- micks that go into getting people into this place, there is no atmosphere or climate whatsoever for this optometrist, whoever he may be, to practice in the full, thorough way that he should to take care of the vision of the individual patient. You are dealing with the most precious possession we have, and you cannot deal with it in the market place. That is the purpose of this bill, among others, as it. is in my own State and many others where this is not allowed. Mr. GuDE. I have one more question. The requirements that you have outlined for the profession of optometry are lower than would be required for a physician. Dr. CHAPMAN. I do not think we have ever made an analysis of their level. There are differences. I do not think they are any lower, but they are different. Mr. C-UDE. The thrust of your argument is that the eye is probably one of the most sensitive organs in the body, and it requires the very best attention that a person is able to get, and for this reason the optometrist should be a professional man. Dr. CHAPMAN. There is no question about that. The only question- and it is not a question because you are absolutely right. Yet, we think so much more in terms of the vision care of the patient than we do of eye care as such, because that is not the field of the optometrist. I want to make that point., because so often they will say, "Are you an eye doctor as such?" Of course, we are deeply concerned with the eye, but more particularly our training is in the area of the vision problem after ascertaining the health of the eye. Mr. GuDE. It seems to me the thrust of your argument is that op- tometry should be just a branch of the field of medicine-for example, PAGENO="0083" OPTOMETRY 79 an eye, ear, nose and throat physician or a person treating some other area, some other specialty. Dr. CHAPMAN. Not really, at all, because optometry is fully intend- ing to stay independent and a coordinate profession along with the other health care fields, particularly because the whole emphasis of all of our training is dealing with the eye and vision. The systems and the methods and design of how we proceed with this thing are purely optometric in scope. It has been developed that way, and we are proud of where we are with it. It has gained the right to maintain itself as an independent, coordinate profession. We have no desire whatsoever to be a part of the medical team, because it is not in that sense that we operate. Mr. GnDE. Is not the eye so much a part of the body that you can- not separate it and treat it independently, any more than a person treating the throat? I cannot see why it should not be a branch of medicine. Dr. CHAPMAN. You do not see why it cannot be a branch of medicine? Mr. GUDE. Why it should not be branch of medicine. Dr. CHAPMAN. Do you want to amplify that? Mr. GUDE. It seems to me there are professional requirements. Dr. HOF5TETTER. I think the answer lies in the economy of educa- *tion in the sense that visual science contains in it a core of knowledge `that is not in the standard medical curriculum and requires a different emphasis. So, for the physician to `become familiar with visual science, `he would have `to take a great many courses, materials, and topics that are now included in the `optometry curriculum but are not in the `medical curriculum. For this to be a branch of medicine, which is a `perfectly reasonable question, would mean that on top of the medical `education, he would have to introduce a whole body of knowledge which he does not now have, the whole area of mechanical optics, ophthalmic optics, physical optics, environmental optics, and so forth, which are not included in the medical curriculum but are the heart of `the optometry curriculum. To oversimplify it just a little bit, let me say that the medical treat- ment of the eye can proceed without knowing what the eye sees. That is, the treatment of the eye may take place and the information on how well the eye sees or the visual skill of the person may be quite incidental to the treatment or the surgery involved in the care of the eye as an organism or as a tissue complex. The optometrist is concerned with the visual function, color vision, dark adaptation, image formation, diopters, `and so forth, as a' per- `formance of the eye which can be affected by pathological deviations. In that sense the optometrist must know incidentally the visual phe- `nomena related to pathological deviations. The physician, on the other hand, may be concerned with the visual phenomena incidental to the pathological deviations. Mr. GuDE. You were mentioning the specialty. Is it not true of every particular specialty in the medical profession that it takes additional `training and work to accumulate knowledge which pertains to, for ex- ample, ~iflergy, or a person who specializes in ear, throat or chest specialties? It requires additional training and additional knowledge. PAGENO="0084" 80 OPTOMETRY Dr. HOFSTETTER. It is true. In this situation I think there is an added~ distinction in that the training is not only added training, but very differently founded training, founded on optics, mathematics, and psy- chology as well as physiology, biology, anatomy, and so forth, which are not characteristically included in the medical training or in the selection of medical students. Mr. HORTON. Why, then, if there is such a concern with the practice of the profession, that those who are in the optometric field handle such~ a large volume of the sale of eyeglasses? Most of those in medicine tend~ to refer a person to opticians for eyeglasses. They write out prescrip- tions for them. Why do you have in the field of optometry such a con- cern about the sale of eyeglasses? This is not part of the profession as such. Dr. HOFSTETTER. Are you asking me? Mr. HORTON. Yes. Either one. By this bill you are creating a mo- nopoly for the optometrist to sell eyeglasses, and it does not seem to me it makes any difference who sells the eyeglasses, whether he buys them~ at Sears, the opticians, or where he gets them. If you are able to do the work that you have to do as a profession, what difference does it make who sells the eyeglasses? Dr. J-I0FsTETTER. To answer the second question first on the mo- nopoly, with the bill exempting the 1200 or 1500 physicians and osteo- paths in the District, I do not think the 60 or 70 optometrists would ever hope to have any monopoly in this area. To get to the question of why we are concerned about the lenses, this brings out the distinction I am talking about, the distinction between visual science as a science and the medical care of the eyes, or ophthal- mology as a science. The lens becomes a very integral part of the visual performance of the eye. Mr. HORTON. Do you grind the lens? Dr. HOFSTETTER. We can but we would at least specify how it is to be ground. We would specify the shape and character, the topology, and the details of the lens would be specified by the optometrist if he doe~s not actually grind it himself. Rarely does an optometrist actually do* the grinding. Mr. HORTON. Then why can't you refer the patient to some store, Sears or wherever it might happen to be? Dr. HOFSTETTER. It could be done. It would require a great deal of* specification of details which most of these places are not prepared- Mr. HORTON. Ophthalmologists do this, do they not? Dr. CHAPMAN. I am getting ready to answer that. Mr. HORTON. In my area where they practice that is the general pro- cedure, an ophthalmologist examines you, you get a prescription, you get to the optician, a.nd they grind the glasses. You never go back to* the ophthalmologist. Dr. HOFSTETrE~. This was true but it is not now. Most ophthalmolo- gists now provide their own dispensing. Dr. CHAPMAN. It would be unfair to say categorically one way or the other. Mr. HORTON. I don't agree with that, at least not as it applies to my area. PAGENO="0085" OPTOMETRY 81 Dr. CHAPMAN. I think the trend will be shown if we can get the statistics, and I think they are available at other places, that the trend is for the ophthalmologist dispensing through his own optician. That is true in my city. All of them do, as a matter of fact. Whether it is the majority over the nation it is another story, but historically the caring of human vision as cared for by the optometrist has been interpreted to require the use of the finest in optical systems and devices we can utilize for the purpose of correcting these problems, and therefore the training that the optometrist receives includes a great deal of this area as well as the other studies that are necessary to do this job as we think it should be done. Therefore you also have to remember, and this would make you talk in my language and that would be hard to do because you would have to be an optometrist to do it, that we don't think in terms of selling eyeglasses. It is not the sale of the eyeglass that is the important thing. It is what is in it. It is the prescription within t.hat eyeglass which is the important thing and what the optometrist is seling is vision and not eyeglasses. Mr. HoRTON. My constituent, Bausch and Lomb, is interested in sell- ing eyeglasses. Dr. CHAPMAN. He should be because I use a lot of his eyeglasses, too. Mr. HORTON. That is why I am asking this question with regard to the reference of your purchase of eyeglasses. What difference does it make what the frames look like or anything like that? As long as you get the prescription this can be referred to someone else. Why should you be concerned about the sale of eyeglasses as long as they have the proper prescription and so long as the prescription is controlled by an ophthalmologist or an optometrist? Dr. CHAPMAN. The concern of the sale of eyeglasses in this instance is the way they are being sold in the District of Columbia in the com- mercial establishments, and we have been through that. Mr. HORTON. Then we come back to what I said before-if we have somebody who has the training and ability what difference does it make? Dr. CHAPMAN. Because he doesn't utilize that training and ability as he should in these circumstances. Mr. HORTON. He would under this bill where you raise the standard. That is the point I was trying to make. Mr. GUDE. It would seem to me that you license pharmacists, you li- cense people who grind glasses to be sure they are doing an accurate job on the prescription of the optometrist. Mr. I-IORTON. That is the thrust of what I was getting at. Mr. GUDE. It would seem to me the most important thing is to be sure that glasses that are ground are ground according to the prescrip- tion of the optometrist. You don't expect a physician. to mix up the medicine he prescribes for a particular disease. Dr. CHAPMAN. As I indicated it is purely a matter of the philoso- phy of the practice of optometry which maintains that that part of the service is important enough that he makes that determination. That is the w'~y we st'irted `~t ~he beginnme Th~~t is ~ hy w e existed at the outset-to be able to take these deviceS and be certain they were PAGENO="0086" 82 OPTOMETRY ground and specified properly for the care of the patient and trained so to do. Mr. GUDE. Would you not reach the same end if you say that people who grind glasses on prescription be governed by certain regulations so they would follow the prescription? Dr. CHAPMAN. I don't think it is impossible for someone else to grind a pair of glasses to prescription and to have it done accurately and done well. I find no fault with that at all. Mr. SIsK. The gentleman from North Carolina. Mr. WHITENER. Would this bill permit a local optician to fill a pre- scription from an out of District optometrist? Dr. CHAPMAN. Yes, sir. Mr. WHITENER. The bill says "except as otherwise prescribed in this Act" he is not allowed to engage in the practice of optometry in the Dis- trict of Columbia. This is page 3, line 5, subsection (3) of JiB 12276.. Dr. CHAPMAN. Except as otherwise provided in this Act- Mr. WHITENER. Where is that "except. as otherwise provided"? Dr. CHAPMAN. I was afraid you would ask me t.hat. As I quickly look at it, Mr. Whitener, t.he exception I spea.k of does not prevent persons from providing eyeglasses on prescription from an individual licensed to practice optometry, medicine or osteopathy.. That is later on in the bill. Mr. WHITENER. Where is that? I have rea.d page 13 and I don't interpret it as you do. Dr. CHAPMAN. That is not what I have reference to, Mr. Whitener.. Mr. WHITENER. As I see it, the only exception you make is for mili- tary officers, and others shown here on pages 12 and 13. Dr. CHAPMAN. Would this statement satisfy what you are ques- tioning-and I can't find it in the new bill but it is in there just the same-"Persons from supplying spectacles or eyeglasses on prescrip- tion from an individual licensee to practice optometry, medicine, or osteopathy."? That is in the bill. Mr. HORTON. Page 15, line 6. Mr. WHITENER. My point is tha.t in the definition of optometry on page 3 the language is limited to an optometrist licensed and engaged' in the practice of optometry in the District of Columbia. I submit that there is nothing in the provisions on either page 13 or page 15 which goes beyond that specific definition. Mr. FHQUA. Would not "as otherwise provided" take care of that? Mr. WHITENER. It says nothing about that. Dr. CHAPMAN. If there is some doubt. we would be willing to clarify it for you. Mr. SISK. There is no question about our intent on this. Mr. WHITENER. But we are dealing now with language. We are not dealing wifli intent.. If we pass this bill the court will look at the lan- guage and not what might be. in the back of our minds. I don't think it is clear at all. Dr. CHAPMAN. There. is no que~'ion at all, ~ir. Whitener, about that fact. We hope we can have it clarified to take care of it for you. Mr. WHITENER. I suppose you have been into this, but the "adapta- tion" of a lens is referred to. What does that mean? PAGENO="0087" OPTOMETRY 83 Dr. CHAPMAN. You will have to tell me where you are, sir. Mr. WHITENER. Page 2, subsection (e), lines 21 through 23. Dr. CHAPMAN. The adaptation- Mr. WHITENER. We had an optometrist testify here last year that if' my glasses got twisted in some way that to bend them back so they would be comfortable would be an adaptation. I told him I bent mine many times and that perhaps would be in. violation of the law. Dr. CHAPMAN. You would not be violating this law. There is a provision in this law which permits that to be done with- out any question. Mr. WHITENER. "Adaptation" does not mean straightening the frame? Dr. CHAPMAN. Not in that sense, Mr. Whitener. Adaptation is more in the sense of the result of the examination, and therefore determin- ing wha.t lens is required from that examination, types of lenses you would use to adapt to the patient's visual needs. Mr. WHITENER. "Utilization of lenses" means what? Dr. CHAPMAN. You have to use lenses, prisms, or frames. Mr. WHITENER. I am utilizing my glasses when I put them on here to read. Dr. CHAPMAN. This means that the practitioner who sees the pa- tient will do these things, among others. Mr. WHITENER. It says the practice of optometry means "utilization. of lenses." That is the way I read it.. Dr. CHAPMAN. For the purpose of and for the aid of the human eye~ Mr. WHITENER. That is the only reason I wear these things. Dr. CHAPMAN. In the sense that it spells out those item's in section' (e) that is just another segment of the overall activity of optometry. Mr. WTIIITENER. What does "utilization of lenses for the aid of the human eye" mean? Dr. HOFSTETTER. I think your illustration comes within that defini- tion. Tha.t i's in fact optometry. Mr. WI-IITENER. Perhaps I am practicing optometry. Dr. HOFSTETTER. That is right, in that sense. This is the original use of the word "optometer." Mr. WHITENER. Perhaps we should look at that language a little. Dr. I-IOFSTETTER. This is the overall definition, and the law must provide for appropriate exceptions and privilege's. Mr. WHITENER. Going over to page 5, at the top of the page~ Mr. HARSHA. Would the gentleman yield? The next word is the one that `concerns me "or furni'shing of lenses, prisms, or frames." You will make the optician become an optometrist, then. All the optician does is to furnish the frame- Dr. CHAPMAN. There is no intent in that way. Mr. HARSHA. The practice of optometry means furnishing of lenses,. prisms, or frames. You will give the optician the same privilege? Dr. HOFSTETTER. This is all optometry, that is true. What the' optician does is also within the total definition of optometry, and' therefore it is important to spell out the exemptions in the' total definition. PAGENO="0088" 84 OPTOMETRY What we have to do is define what optometry is as a whole, what its activity is as a whole, and then make the appropriate exceptions. Mr. HORTON. The answer is whether or not they are exempt under the other provisions of the bill so that they can furnish frames- Dr. HOFSTETTER. This is the intent. Mr. HORTON. Is it there? Dr. CHAPMAN. We believe it is. Mr. WHITTENER. Over on page 5, at the top of the page-"An appli- cant for a reciprocity license may at the discretion of the Commis- sioners be licensed without a written examination but must be given and pass a practical and oral examination." That would make it more stringent than the local law for lawyers, medical doctors, and any other profession, would it not? Dr. CHAPMAN. More restrictive than those? Mr. WHITENER. I am a member of the District Bar by reciprocity. No such examination was required of me upon admission. Dr. CHAPMAN. I am not familiar with the restrictions in the Columbia Bar. This has been purely a matter of general understanding in the granting of reciprocity among optometrists throughout the United States. We thii~k from a practical standpoint that this is protection for the public of the District of Columbia. Mr. WHITENER. Is it really protection of the District or protection of the optometrists? Dr. CHAPMAN. I think it is protection of the public. Mr. WHITENER. At the bottom of that page, on line 21, you state that if he fails to actually practice optometry in the District for one year the Commissioners may revoke this license. That is more restrictive than any other professional rule in the District. I have been a member of the Bar of the District for seven years but I have never practiced here. Once I am licensed I am licensed forever. What is the purpose of that? Dr. HOFSTETTER. I don't know what the purpose is. I am not familiar with it. Dr. CHAPMAN. As I said earlier, the District of Columbia. Board will testify before this Committee, and there are a. number of questions which already have been raised on the subject pertaining to the Dis- trict which they would be perhaps better able to answer than we would. Mr. WHITENER. Suppose a yo~mg man were permitted to practice here under the reciprocity provision and went into the military service for three years and served in Vietnam? He came back. He would be subject t~ having his license revoked while he was gone, would he not? Dr. CHAPMAN. There is no intent in this Act- Mr. WHITENER. We are not talking about intent but what it says, what it states. That would be the practical application of the Act, would itnot? Dr. CHAPMAN. If you will give me a moment to read it over perhaps I can give you an answer. Mr. WHITENER. If an individual holding a reciprocity license granted under this section fails to actually practice optometry in the PAGENO="0089" OPTOMETRY 85 District of Columbia within one year after such license has been granted, the Commissioners may revoke such license at any time before such individual actually begins practice in the District of Columbia. Here is a young man off in Vietnam serving his country and the Commissioner just sits down here and as a matter of policy adopts a fixed policy to revoke all licenses after one year under this provision. Dr. CHAPMAN. It doesn't say "He shall" but it says "He may". I think the Commissioners- Mr. WHITENER. You are giving somebody a discretionary right to take away from this individual a very valuable thing without his even having any recourse to the courts. Mr. SIsK. Of course here we are talking about a human need and something having to do with perhaps the most precious thing we have, our eyesight. I think we can all recognize that an individual may have been out of practice. I don't think my colleague would want to send his children to someone who may have been out of practice for five years, unless he was fairly sure that that individual had not lost- Mr. WHITENER. It says nothing about five years. Mr. SISK. The point I make is that we are trying to be sure that the individual who presents himself to the public as capable of taking care of eyes can do it. Mr. WHITENER. This young man I am talking about may be over in Vietnam as a military officer practicing optometry every day on servicemen, or he may be in California or North Carolina practicing every day. Here you are giving the Commissioners the authority to just adopt a policy, if they want to, without anybody having any rights to ob- ject to the revocation of such licenses. Mr. HORTON. A doctor of medicine does not have his license re- voked if he does not practice here for `a year, does he? Mr. WHITENER. I don't believe so. A lawyer does not. Mr. HORTON. I think the gentleman `from North Carolina has a very good point. Mr. WHITENER. On page 7, lines 3 through 5, you give to the Com- missioners a right to take away a person's license in violation of any of the regulations promulgated by the Commissioners under this Act. What do you have in mind there? Can the Commissioners say lie souldn't wear a moustache? Maybe he is inclined toward havii~g some of these long hairdo's that some folks wear. Dr. CHAPMAN. I don't know how it is conceivable-and perhaps if there is a way we can attempt to do it-but how in every instance in each of these you can spell out a moustache or long hair or long finger- nails; I don't know. Mr. WHITENER. Going down to lines 13 and 14 you state "Conduct which disqualifies the licensee from practicing optometry with safety to the public." Maybe that is where the long hair would come in. Perhaps he has some other whim. ` It seems to me if you are going to take a man's license away you should spell out exact grounds in the statute. We had this discussion a year ago. PAGENO="0090" 86 OPTOMETRY Dr. CHAPMAN. There is extensive privilege, given in the bill to the practitioner who has before him the charge of qualifying himself to practice. He is given every alternative and every opportimity with the Board to give testimony to substantiate his case. Mr. WHITENER. Page 9, lines 4 and 5 "Practice optometry in any retail, mercantile, or commercial store." I don't know how it is in your town, but down my way I can name one town where there are three different lawyers who are friends of mine, and very ethical. One has an office in his father's building sup- ply store. Another is a banker and has his law office right in the bank- ing house, you go through the main banking room into his office. Another is an automobile dealer and he has his law office right in his automobile agency. It is all in one facility. `What is the evil with regard to a professional man having his office in a retail or mecantile store as long as he is a private practitioner of the profession? Dr. CHAPMAN. Because he utilizes the location and the geographic area where he is for the purpose of enticing people within his practice, and the purpose for being there is to have a great deal of traffic so they can see his place and come into it. Mr. WHITENER. Did you ever see a lawyer or an optometrist try to rent a corner office on a. lower floor of an office building in the square of town of 25,000 to 30,000 people, with windows on each side of the main street and side street? Dr. CHAPMAN. This is permissible. Mr. `WHITENER. Then he puts up a nice goldleaf sign on his window-"John Doe, Attorney at Law. John Smith, Optometrist." What is the purpose of that.? Dr. CHAPMAN. As long as they are not advertising that they are on that corner with flashing neon signs t.hey would be permitted to be in that location, depending upon t.he individual state, the law in- volved, and the requirements of it. He can practice in such a place in my own state as long as he does not advertise and as long as he maintains the rules and regulations of the Board of Optometry. What we are trying to do here is to make certain that the public is protected by jurisdiction of the optometrist by a board, simply try- ing to make the profession of optometry to be practiced in a way that it will be protective to the public in the District of Columbia. Mr. `WHITENER. There may be other reasons for being in that store. In the case of one of my lawyer friends the reason he is in the building is that this is his family business and he can practice law as a private practitioner, but yet he can be available to help his father and other members of the family run that business. This is not dragging people in off the streets because he is not on the main thoroughfare. There can be other reasons for being in the store. Dr. CHAPMAN. There may well be but in this particular instance our concern is with the blatant advertised, commercial environment ~or the practice of optometry which we believe- Mr. WHITENER. On page 11, line 11, you use the term "ophthalmic materials." `What are ophthalmic materials? Would that include Murine? PAGENO="0091" OPTOMETRY 87 Dr. CHAPMAN. No, sir, it does not refer to medicines or drugs. Ophthalmic applies to lenses, frames, prisms. Mr. WHITENER. You mean materials? Dr. CHAPMAN. It might be a case, an eyeglass cleaner. Mr. WHITENER. An eyeglass cleaner could not be advertised at a price? Under this bill could they advertise some of these little bottles of what you use to clean the glasses? Dr. CHAPMAN. It should not be unless it is used by the optometrist br the furtherance of his practice. Mr. WHITENER. This does not limit itself to the optometrist. It states it shall be unlawful for any person. Look at section 8, line 6. "It shall be unlawful for any person", and then go to line 8: "With the exception of nonprescription sunglasses or nonprescription pro- tective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mount- ings, or ophthalmic articles or devices;". If you mean to include these little eyeglass wipers such as Mr. Hor- ton has, or a plastic bottle which contains material you can squirt on your glasses in a drug store, this would be a little harsh, would it not? Dr. CHAPMAN. We have no intention of that at all in this Act. Mr. WHITENER. Why would not "optometric material" be adequate to cover your problem? You have "optometric or ophthalmic." Mr. SIsK. What is the definition of "ophthalmic material"? I have an idea what it is, but what is the actual definition? Dr. HOFSTETTER. In the legal framework, I am not sure. I rather suspect, off the cuff, that "optometric material" by itself would be ade- quate. I am not sure. Mr. Tm~r1~NER. When you say "optometric mateihd," we know you mean frames, lenses, and that type of thing. Dr. HOFSTETTER. I thilik so. Mr. WHITENER. When you say "ophthalmic material," we might mean Murine or eyeglass wash. I think we ought to give that some consideration. On page 13, line 13, I wonder if the language is adequate, "This Act shall not be deemed to require a physician or surgeon licensed for the practice of medicine or osteopathy," instead of making the statement that it does not require? What is the magic of time words "shall not be deemed"? Dr. CHAPMAN. Purely to clarify that portion of the Act, Mr. Whit- ener, where there was some question. Mr. WHITENER. "This Act does not require" seems to me to be a better piece of draftsmanship. Dr. HOFSTETTER. I am not sure of your question. Mr. WHITENER. You note in line 13 it says "This Act shall not be deemed to require a physician," and so forth. A little ahead of that, in section 9, at the beginning, it says, "This Act shall not apply to . Why should you not say, "This Act shall not apply to a physician. or surgeon licensed under the laws of the District of Columbia for the practice of medicine," and so forth? Dr. CHAPMAN. I think it could be. PAGENO="0092" 88 OPTOMETRY Dr. HOFSTETTER. I am not sure. I think there may be a distinction. Mr. WHITENER. I think this is something you might consider.. Frankly, I think it would be better draftsmanship, as I suggested. On page 14, lines 12 and 13, you sa.y that not1~ing in this Act shall be deemed t.o prevent "an employee of any person to render optometric service and care solely to employees of such person." ~That is the. pur- pose of that? Dr. HOFSTETTER. That. I believe, is to permit a. company to employ an optometrist to provide optometric services to its employees in the same way that he head of a family employs an optometrist to provide services to his family. Mr. WHITENER. You also give that right to nonprofit health services and to health expense indemnity corporations. Why is that so different from Sears Roebuck? Dr. HOFSTErrER. It is my understanding that is nonprofit health services, such as~ Mr. WHITNER. You have nonprofit health services. Then you have health expense indemnity corporation or group, which is a. form of in- surance. It is not really insurance, I guess. It is a. group health program in which the individual pays a fixed amount per month a.nd this gives him medical and health services. Dr. HOFSTETTER. As I understand it, such programs provide special arra.ngements for preventing the commercial exploitation of it. Mr. WHITENER. Suppose the. bill gave the right to the policyholder to have his eyes examined, but he still must buy glasses, would that be and different from, say, Sea.rs Roebuck giving a free examination? Dr. HOFsTETTER. Would you repea.t that? Mr. WHITENER. Let us say the Whitener-Hofstetter Health insur- ance Corporation had certain members, and we charged them a. fee for the over-all medical services, which they pa.y for on a. ~nenthly basis. In our contract we give our policyholders, such as Mr. Fuqua, the right to have his eyes examined, but then if our corporation finds he needs glasses, he must buy those glasses. What is the difference between that and a. private corpora.tion saying, "We will give you a free examination, but we a.re going to sell you the glasses"? Dr. HoEsTErTER. I think it. could be the same. As you describe it, I think it could present the same problem, but I do not Imow whether tha.t arrangement is permissible under the laws of most States. Mr. WHITENER. This is what is proposed to be the law, as I asked the question. Dr. HOFSTETTER. I think the law that controlled such insurance arrangements might preclude this. Mr. WHITENER. A health insurance policy may pay for a stay in the hospital. It may pay for a semi-private room. The contracts of in- surance differ. Dr. HOFSTETTER. But would the hospital be required to limit its price to $5, to the a.mount that you state? Mr. WmTE~ER. Of course it wouldn't. That is wha.t I am talking about right there. If the arrangement or agreement for the health ex- pense indemnity corpora.tion or group were confined solely to an eye examination and not to the appliances, then would you not have the ~me situation that you now complain about where some private mdi- PAGENO="0093" OPTOMETRY 89 vidual or group says, "We will give you a free eye examination, but if you need glasses, you must pay for them yourself"? Dr. HOFSTETTER. In this arrangement, are you proposing that the optometrist can only get that amount which the agency pays, or that the agency merely pays up to that amount? Mr. WHITENER. I am assuming, for the purpose of my question, that under the contract Mr. Fuqua has with the Whitener-Hofstett~r Health Group; Inc., he has the right tO hav~~his eyes examined. Of course, there would be other provisions. He would be entitled to out- patient treatment and hospitalization and other things, but let us limit our discussion to optometry. What would be the difference if you and I go out here and organize a health expense indemnity group? Dr. CHAPMAN. I would like to suggest at this point, Mr. Sisk and Mr. Whitener, I have others of our staff in the room. May I call upon them at this time to answer this question for Mr. Whitener? Mr. WHITENER. If someone could. Mr. SISK. If you want to ask someone to comment on that, go right ahead. Mr. MACCRACKEN. I am ashamed to say I did not get the question. Dr. CHAPMAN. It is pretty involved. Mr. HAROLD K0HN (General Counsel, American Optometric As- sociation). I did not quite hear the question accurately, but the pur- pose of that provision is in the event the Blue Shield wishes or Group Health Association or any similar organization, according to the pre- sent philosophy of. comprehensive health care, wishes to give an optometric examination, the optometrist be not precluded from join- ing that comprehensive health care merely because the organization happened to be in corporate form. Mr. WHITENER. He would be an employee. Mr. KOHN. No, sir, he is not an employee. In Group Health, that is true. It depends. Being employed by a group health organization or a hospital, that is true, because it is figured and believed by optometry that an optometrist has a place in a hospital, and he has. He is in hos- pitals. He does have a place in all of these health care programs. Mr. WHITENER. You are a good lawyer, Mr. Kohn. Is not a health expense indemnity corporation a private insurance company? Mr. K0HN. Not in my State, sir, no. A health indemnity group comes under the insurance law merely to give the superintendent of insurance or commissioner of insurance, as he might be called, the op- portunity of preventing exorbitant annual charges. That is about the only reason for its being insurance. It is not considered as being an in- surance corporation. It is entirely different. The insurance corporation furnishes money. If you have an accident and health policy, you get so much per day, and with that you can buy whatever you want.. Mr. WHITENER. I. have a family indemnity policy with the Govern- ment of the United State~, with Blue Cross~ or Red Cross or Aetna Life Insurance Company, and it is~ called health indemnity insurance. Mr. KOHN. Health indemnity insurance. . . Mr WHITENER That is right here in the District of Columbia, right through the office of the Sergeant at Arms of the House of Represent- atives. PAGENO="0094" 90 OPTOMETRY Mr. KOHN. In the District, health indemnity? What do they give you, sir? Mr. WrnTE~it They indemnify me for health expenses. Mr. KOHN. For health expenses they give you money? Mr. WHITENER. It is a private corporation. It is a health expense indemnity corporation. Mr. KOHN. Health expense indemnity corporation, in my respect- ful opinion, means the particular type of nonprofit corporation that is formed under the special statutes of the various States, of which there are many. Mr. WHITENER. We will have our staff look into that phase of it, and I think you would want to look into it, too. Mr. KOHN. The point is that we simply wish to have the optometrist free to be employed by a nonprofit corporation which gives comprehen- sive health care. Mr. WHITENER. Certainly you do not want to take away from a private corporation, such as the one that you mentioned here practic- ing optometry, tha.t right, and turn around and give it to insurance companies or groups that might set up some drumhead organization. Mr. KOHN. The philosophy is entirely different, because presumably Blue Cross and Blue Shield make no profit. Mr. WHITENER. On page 19, lines 7 through 13 state: Certificates of visual condition, acuity, and efficiency issued by any duly licensed optometrist under this Act, shall be accepted as qualified evidence of the visual condition, acuity, and efficiency of the person to whom such certificate shall relate, by officers or employees of the Government of the District of Columbia in the performance of their duties. When you say as qualified evidence, do you mean as conclusive evidence? Mr. KOHN. It is not conclusive. It is qualified. Mr. WHITENER. When you say "qualified evidence;" i interpret that as meaning it is evidence, which has a quality which could not be questioned. Mr. KOHN. Oh, no, sir. Mr. WHITENER. WThy not say "may be accepted"? Mr. KOHN. If that `b~ so, we will run against the same problem that we discussed last year and which we changed, if you notice, about the courts. Mr. WTHITENER. That was to make it subject to absolute acceptance. Mr. KOH.N. We changed that because your objection was very good. Mr. WTHITENER. Suppose that the Welfare Department has a certain visual standard, and if a person is found not to meet it, he is auto- matically entitled to aid to the blind. I do not believe you intend to do it, but under this language it seems that a District of Columbia official should not even question your certificate. If an optometrist certified it, they would ha.ve to accept it.. Mr. KOHN. There is no attempt to do that. That is merely accepted for face value as what it is. Mr. WHITENER. In other words, it may be accepted. Mr. KOHN. It maybe accepted. Mr. WHITENER. Section 14 is the one we deleted last time. PAGENO="0095" OPTOMETRY 91 Mr. KOHN. I do not recall that. Was section 14 deleted? Mr. WHITENER. I am looking at the hearings, page 134. You will find there that it was deleted. That is one about which we had a great deal of discussion. You still think it should be retained, do you? Dr. CHAPMAN. I will be glad to answer. We do think it should be retained, yes, sir. Mr. WHITENER. In view of the Virginia evidence we had last time, I wonder if you think it should be retained. Dr. CHAPMAN. The Virginia evidence? Mr. WHITENER. That the school folks over in Fairfax County sent a note home with the child to his parents to see his family physician about his eyes. Dr. CHAPMAN. This sèctiôn is in* there, not to create the problem for the patient to go and get care, but simply it is a matter that he be given freedom of choice to choose one or the other. Mr. WHITENER. Were you here last time, Dr. Chapman? Dr. CHAPMAN. Yes, I was here last time for most of it. Mr. WHITENER. On page 189 of the 1966 hearings of Subcommittee No. 4, it is stated that in Virginia they sent a little note to the parents reading: The results of the routine vision screening at school show that your child may need an eye examination. We suggest that you discuss this with your family physician and get his advice about an examination by an eye specialist. The Virginia Optometric Association wrote to Earl C. Funderburk, head of the schools in Fairfax County, and said: It is our sincere hope that the situation, if it does exist, will be remedied locally for we certainly do not wish to seek relief through the courts. Would you object to the principal or the director of health and physical education sending a note to the parents saying, "We suggest you discuss this with your family physician and get his advice about examination by an eye specialist"? Dr. CHAPMAN. Yes, sir, we do in that sense. We certainly do. Mr. WHITENER. Why? Dr. CHAPMAN. Particularly because the patient then is not given any freedom of choice in selection. Mr. WHITENER. Why isn't he? Your schools are turning out eye specialists, are they not, Dr. Hofstetter? Dr. 1-IOFSTETTER. It depends upon what you mean by eye specialists. In the vernacular, "eye specialists" is often interpreted as eye surgeons or a physician engaged in the treatment and care of the eyes. We are in perhaps a more meaningful sense general practitioners in vision, just to bring out the distinction. I think these advices on the part of school personnel, principals, nurses and others, specifically to send the child to a physician who in turn must almost in every instance refer him to an optometrist or an ophthalmologist, introduce one additioii al expense to the parent. I think it is not justifiable for a school official to do this unnecessary steering toward the general physician, because the general physician, as I pointed out earlier, has almost no specific training in the field of vision. Mr. WHITENER. I guess I am an average parent. I hope I am at least PAGENO="0096" 92 OPTOMETRY average. Three of my four children have been taken to an optometrist a number of times. I figure he is a specialist in determining what kind of glasses they need. Dr. JIOFSTETTER. If you are asking whether optometry is a specialty or not, I would certainly say it is a specialty by general definition. If you are thinking of it as a medical specialty- Mr. WHITENER. If you or I got that same note from a school official suggesting that our children had bone trouble going to the family physician, the chances are we would get on the phone and immediately call an orthopedic man or, if it was ear trouble, we would probably call the eye, ear, nose, and throat man. I do not see what you are quarreling about on this. Dr. HOFSTETTER. May I ask you a question? Mr. WHITENER. Yes. I do not know if I can answer it. Dr. HOFSTETTER. We are partners in this insurance firm, you know. Mr. WHITENER. That is right. Dr. HOFSTErTER. Would you see any objection to the school official who himself is neither an optometrist nor a physician- Mr. WHITENER. He may be a public health physician. Dr. HoFsm~R. He may be. Would you see any objection to the referral form stating simply that he is advised to seek professional attention, without naming a specific profession? Mr. WHITENER. I do not see any objection to that. I do not see any objection to seeing an eye specialist, either. Dr. HOFSTETTER. I think the distinction is that we would favor the expression "seek professional attention." This is what we want, but we do not like the steering feature of the phrase "see your family physician." I would hope he could direct them. Mr. SISK. Let me thank Dr. Chapman, Dr. Hofstetter, and also Mr. Kohn, for your contribution. We appreciate very much your testimony this morning. I think you have been very excellent witnesses. I think the committee will find the record will be fairly substantial with refer- ence to the positions you have taken. The committee will meet again in the morning at 10:00 o'clock for the continuation of the hearings in this room. I might say it is my understanding that there might be one or two individuals who, because of the fact that they are from some distance, would particularly like to be sure to get their testimony in tomorrow. I do not wish to shift this list any more than absolutely essential. Our first witnesses in the morning will be the District of Columbia Opto- metric Society, Dr. Berlin and Dr. Warren. However, I do wish to indicate on behalf of the committee that we will be as cooperative as possible. I have already had one individual from some distance away who would like to get his testimony in tomorrow, and we will certainly do our best to arrange that. With that, the committee stands adjourned until 10:00 o'clock in the morning. (Whereupon, at 1:00 o'clock p.m., the subcommittee adjourned, to reconvene at 10 :00 o'clock a.m., Tuesday, August 15, 1967.) PAGENO="0097" OPTOMETRY TUESDAY, AUGUST 15, 1967 HOUSE OF REPRESENTATIVES, COMMITTEE ON THE DISTRICT OF CoLu~n~Ia, SuBcoMMrrmE No.5, Washington, D.C. The Subcommittee met at 10:00 a.m., in Room 1310, Longworth House Office Building, the Hon. B. F. Sisk (Chairman of the subcom- mittee) presiding. Present: Messrs. Sisk (Chairman of the subcommittee), Whitener, Walker, Nelsen, Horton, Harsha and Gude. Also Mr. Fuqua. Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel; Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk; LeonardO. Hilder, Investigator. Mr. Sisi~. The committee will be in order. This morning, in order to accommodate one of our witnesses from out of town, we are making a slight change in schedule, and at this time the committee will hear from Mr. Richard Weinmann, an attor- ney, representing the United Optical Workers Union of New York City. I believe, Mr. Weinmann, you mentioned yesterday that you had a statement and that the other gentlemen would not be making a formal statement, but are here to answer questions, is that correct? STATEIVIENT OP RICHARD A. WEINMANN, REPRESENTING~ UNITED OPTICAL WORKERS UNION LOCAL 408, INTERNATIONAL UNION OF ELECTRICAL WORKERS, AFL-CIO, NEW YORK CITY, ACCOM- PANIED BY HENRY McKINNELL, ADMINISTRATIVE ASSISTANT, INTERNATIONAL UNION OP ELECTRICAL WORKERS, AND 30HN t+OLIA, BUSINESS REPRESENTATIVE FOR LOCAL `408 Mr. WEINMANN. That is correct, Mr. Chairman. What I have to say is somewhat different from what appears in my statement. Mr. SISK. Your full statement will be made a part of the record, without objection, and if you will proceed to summarize and keep your statement within ten minutes, we would appreciate it in order to expedite these hearings. At this time the committee will be very happy to hear from you. (The full statement referred to follows:) 93 PAGENO="0098" 94 OPTOMETRY STATEMENT OF RICHARD A. WEINMANN My name is Richard A. Weinmann. I am a partner in the law firm of Sipser, Weinstock & Weinmann, 50 Broad Street, New York City, counsel for the past 25 years to the United Optical Workers Union Local 408, International Union of Electrical Workers, AFL-CIO, located at 150 Fifth Avenue, New York City. We are also counsel to many pension and welfare funds. I am here today to testify in opposition to H.R. 1283 on behalf of the Optical Council of the Inter- national Union of Electrical Workers, AFL-CIO, the National Optical Workers Conference, and the United Optical Workers Union, Local 408. With me today, among others, are Henry McKinnell, Administrative Assistant of the International Union .of E1ectrical~ Workers and John Golia, Business Rep- resentative for Local 408 and a member of the Advisory Board for Vocational and Extension Education of the New York City Board of Education and of the Advisory Committee on Ophthalmic Dispensing of the New York City Community College. Our analysis of H.R. 1283 is that it is a bill inspired by the American Opto- metric ~ssociation heavily weighted in f'~vor of individual salon entrepreneur optometrists and against all others, including the public, ophthalmologists, opti- clans, employed' optometrists, corporations and `other employers of optometrists and opticians, `and. the unions which ,represent such employees, including Local 408. The main thrust of the bill is to outlaw the employment of licensed optometrists by firms and corporations, `and thereby to corner the eyeglass market for the optometrist. An optometrist is a hybrid which grew up in our national life, combining, pro- fessional and merchandising characteristics, with the accent heavily on the mer- chandising side. In other words, an optometrist is a semi-professional who makes his living selling eyeglasses. If one were to suggest to salon optometrists that they could be accorded real professional status ~provided they abandon the sale of eyeglasses, they would immediately withdraw their sponsorship and support of H.R. 128.3 and run for cover. Their raison d'etre is precisely the sale of eye- glasses, euphemistically referred to as "dispensing" in the optical field. In fact, optometrists studiously `ivoided involvement in the Hart Bill hearings before the United' States Senate (S. 260). The Hart Bill, as you may know, would pro- hibit practitioners as defined therein from the sale of drugs or eyeglasses. With the above in mind, we can proceed to analyze H.R. 1283 to see if it accords with the public interest. The guts of the bill are found on page 9, lines .7 through 12 (Section 7(a) subdivisions 17 and 18) on page 10 lines 14 through 18 (Sec tion8'(a') (2)') `and page 12, lines'12 through 16 (Section 8(a) (8)). These pro- visions would prohibit the practice of optometry anywhere except in a salon or office, would prohibit an optometrist from acting as such as an employee, and would prohibit the practice of optometry by~ a company, association or corpora- tion or by anyone else except inteiestingly by another optometrist What would `be the result of the passage of this bill? It would result in the elimination of low~cost optical care to many thousands of people of modest in- come in the District of Columbia precisely those who need it mo~t and it would greatly reduce the number of `trained individuals in the optical field who `could provide eye care. Further, it, would result in layoffs and the creation of a `block of unemployed optometrists, `opticians and, other employees of corporations and other employers, and would fercetrained emplOyed licensed optometrists to leavc the field and to give up valuable rights as employees. Moreover, it would drive the cost of eyeglasses and eye care up to new heights without any corresponding benefit to the public. , . ` `` It should' be noted that it ha's never been `demonstrated anywh~re that, the public `has suffered as a result of eye care administered by employed optometrists. This question, in fact, was litigated in the State `of New York and the Court of Appea'ls:there found: - ` , , . " ` although the corporate employment of optometrists, has existed for over half a' century in this state. no' instance ha's been cited where such employment caused injury to the public." (People V. Sterling Optical Co. Inc.. 11 NY 2d 970). Our union is particularly concerned because the passage of the in'slant bill `in the District of Columbia is intended as a forerunner for all 50 `states. It `corre- spond's with `simultaneous efforts in other states to ena'ct similar legislation. Such legislation, `for example, was passed in the final moments of the New York `State Legislature this year (Senate Intro 3335-A, Gordon) and was vetoed by Governor Rockefeller. His veto message is atta'ched hereto. Moreover, we are concerned `with the due process aspects of such a bill. We PAGENO="0099" OPTOMETRY 95: believe constitutional rights are being taken away Qoth from employed licensed Optometrists and from their corporate or other employers ~ well. The fo~rmer have a right to continue their working careers and to ~roteët their vested inter- ests in their job's. The latter have a right to continne in business, since no rationale exists to deprive them of it. ~ ~ ~ ~ The bill works to the disadvantage of o~hthalmologisijs arid the public health. * Page 2, lines 15 through 17 (Section 3 (2) (a) ) defines the practice of optometry as including the employment of any objective or subjective means for the exam- ination of the eye. This would include the glaucoma test and we say that this test, should, in the public interest, be given only by an ophthalmologist. The bill works to the `disadvantage of opticians in that if a corporation which employs optometrists and opticians must cease employing optothetri'sts,' it' will probably go out of `business and this would result in the loss of jobs to opticians. The bill also defines the practice of optometry on page 2, line 23 (Section 3(2) (f)) as the adaptation, utilization or furnishing of lenses, prisms or frames for the aid of the human eye. This is not the practice of optometry and never has: been, hut is rather the function of a `dispensing optician. It is true that on pages 13-14 (Section 9 (`c)) an individual who practices optometry solely a's defined in Section 3(2) (f) is exempted from the Act. If `so, then why define this practice as the practice of optometry? Furth~rmore, the provisions of Section' 8 would continue to apply to a dispensing optician, so that an optician could not, pur- suant to page 12, lines 17 to 20 (Section 8(a) (9)) exceed the stringent regula- tions regarding advertising of eyeglasses which would `be applicable to `optome- trists and could not, as set forth on page 11, lines 17 to 24 `(Section 8(a) (5)) ath ertise the price of his eyeglasses to the public In this instance the salon optometrist seeks to undeimine competition from opilcians and exposes the `dichotomy of his position, i.e., to at one and the same time ë~tab1ish himself as a member of a learued profession and as a businessman corneiing the market h oi the above re~~on~ ~ e must dissent from any de~crip on of toe practice of optometry in the hill as a profession, likened to a learned profession such as~ medicine. Such references appear at pkge 1, line 9 (Section 2), page 2~' line `5 (Section 2), pages 8-9, lines 20 to 24 and 1 to 3 (Section 7(a)(14) and (15)), where `the reference to professional is subtly taken for granted. Another objection `to the bill is that it gives to the Board `of Commissioners of the District of Columbia or its designated agents `too much power-in fact, a life-and-death hold over the right `to practice optometry. For example, a license could be revoked because of the violation of any regulation promulgated by the~ Commissioners, no matter how minor. (Section 7(a) (3)); for gross incompetence, not otherwise defined (Section 7(a) (4)); for practicing under any name other than that under which he has `been licensed, which could `be construed to preclude the practice of optometry as an employee of a firm or corporation (Section 7(a) (9)) ; or any other so-called unprofessional conduct as defined by the Commis- sioners (Section 7(a) (19)). Based on the above, one must conclude that the bill is bad for the following reasons: (1) It. will eliminate low-cost eye care for the general public and espe- cially for those who `need it most, without any corresponding benefit. (2) It will reduce the number of competent persons available to provide eye care. (3) `It is' unfair to ophthalmologists, and to `the public because it will permit ojtOmetrists `to encroach into the medical field. (4) It is bad for opticians because it would by definition give optometrists cOntrol of work which is properly the work of dispensing opticians. (5) It is bad for business because it will drive out all optometric firms and corporations, together, with all their. employees of all descriptions, thereby creating unemployment imnd undermining the `economic health of the District of Columbia. (6) The bill is had for the employees because: it w ill deprii e them of economic secuiny the right to union benefits and pensions and in general the right to work, and will force them to' `leave `the industry despite their training and license. (7) The bill is bad for the country as a whole because the Congressional imprimatur will have been placed upon a bill' which is intended to serve as a model in all 50 states by the real sponsor and sole* beneficiary, the American Optometric Association. We call upon the Subcommittee not `to lend itself to this scheme to enrich optometrists who sell eyeglasses, at the expense of the rest of the population of the District of Columbia, by elevating this inherently quasi-professional group to artificial "professional" status. We urge the rejection of HR. 1283 as a `bad bill for the low income consumer, government `employees and the public in' general. Finally, we note that `the House has now voted to reorganize the District of Columbia Government t'o make it more representative. The Chairman and others PAGENO="0100" 96 OPTOMETRY on this Subcommittee voted iii favor of that bill which is designed to afford more equitable representation to the large Negro population of the District. That in turn we presume will tend to alleviate some of the complaints of this segment of the population. H.R. 1283 is inconsistent with that bill to the extent that it will drive up the cost of optical care for this very population and will tend to heighten their economic disadvantage, instead of relieving it. VETO MEMO 214, MAY 2, 19(17 This bill would prohibit a corporation or other retail firm or store from em- ploying a licensed optometrist to provide optometric services to persons other than fellow employees. The bifi would also prohibit an optometrist from estab- lishing a practice in association with other licensed medical practitioners. It ap- pears `to require a prescription for optical instruments that `have no necessary relationship to the correction of any visual defect or deformity, such as binocu- lars, microscopes and telescopes. It appears to make `it illegal for an optometrist to open an office in any commercial office building or shopping center, since under the provisions of the bill such a building is a "place" where occupations un- related to the practice of optometry are carried on. "It attempts to permit those now employed `by a corporation or other firm `to continue this employment, but in another subdivision of the `bill, it makes it a misdemeanor to provide such employment." Moreover, the Insurance Department urging disapproval of this bill, has writ- ten to me as follows: * * the Department is concerned with the `bill since it could prevent union welfare funds and health centers regulated `by 111-a of `the Insurance Law from employing the services of optometrists, and hinder the right to choose optometric vendors, thereby increasing the cost of optometric services, with no foreseeable `~15neflts to members. In addition, ensurers who cover the cost of `optometric ma- terials would be faced with increased costs which would have to be ultimately reflected in the rates with no increase in the quality of services for the foresee- able future. * * * * * * * "The Department favors the highest quality optometric care, but this legisla- tion will not accomplish such result. The bill is penal in nature and violation of its vague provisions is a misdemeanor. Because of its defects and ineffectiveness, we urge that it `be vetoed." Also recommending disapproval of this bill are the Department of Commerce, the New York State AFL-CIO, Association of the Bar of the City of New York, and the National Association of Optometrists and Opticians, among numerous others. The bill is disapproved. By NELSON A. R0OKEFELLEE. Mr. WEINMANN. First, may I express my appreciation for the fact that you have rearranged this schedule for our convenience. My name is Richard A. Weiumann. I am a partner in the law firm of Sipser, Weinstock & Weinmann, 50 Broad Street, New York City, counsel for the past 25 years to the United Optical WOrkers Union Local 408, International Union of Electrical Workers, AFL-CIO, located at 150 Fifth Avenue, New York City. We are also counsel to many pension and welfare funds. I am here today to testify in opposi- tion to H.R. 1283 on behalf of the Optical Council of the Inter- national Union of Electrical Workers, AFL-CIO, the National Optical Workers Conference, and the United Optical Workers Union Local 408, Retail, Wholesale and Department Store Union, Flat Glass Work- ers International Union, United Automobile Workers Union, Building Service Employees International Union, Laborers International Union, all affiliated with the AFL-CIO. With me, among others is Henry McKinnell, who is sitting on your right, and whose name is incorrectly spelled in our formal statement. It should be M-c K-i-n-n-e-l-l. PAGENO="0101" OPTOMETRY 97 He is administrative `assistant of the International Union of Elec- trical Workers. Sitting to my right and your left is John Golia, Business Representa~ tive for Local 408, and also a member of the Advisory Board for Vocational and Extension Education of the New York City Board of Education and of the Advisory Committee on Ophthalmic Dispens- ing of the New York City Community College. Now, our analysis of H.R 1283, confirmed by what we heard here yesterday, is that it is a bill inspired by the American Optometric Asso- ciation heavily weighted in favor of what we call salon entrepreneur optometrists and against all others, including the public, ophthalmolo- gists, `opticians, employed optometrists, corporations and other em- ployers of optometrists and opticians, and the unions which represent such employees, their pension and welfare funds and employers who contribute to such funds. The main thrust of the `bill is to outlaw the employment of licensed optometrist by firms and corporations and thereby to corner the eye- glass market for the optometrist. In other words, this bill could be well called the "Great Eyeglass Swindle of 1967" on the part of the AOA, of course, and despite all the comments yesterday about behavior of employed licensed optome- trists and the length of time it takes them to perform an examination, we know that the salon optometrists will be giving even quicker exaini- nations if they pick up all the volume dropped by the corporate employers. We believe that the AOA, which should be concerned with clear vision, is taking a very myopic view of the needs of the public for low cost eye care. An optometrist is a hybrid which grew up in our national life, com~ bining professional and merchandising characteristics with the accent heavily on the merchandising side. He makes his living selling eye- glasses. If we were to suggest to salon optometrists they could be accorded real professional status provided they abandoned the sale of eyeglasses, they would immediately withdraw their sponsorship and support of H.R. 1283 and run for cover. Their raison d'etre is precisely the sale of eyeglasses, euphemistically referred to as "dispensing" in the optical field. All the high `sounding phrases in Dr. Chapman's statement yesterday to the contrary notwithstanding, 75 per cent of all the monies `earned by optometrists in this country is earned from the sale of eyeglasses. Optometrists studiously avoided involvement in the Hart Bill hear- ings before the United States Senate-S. 260. In fact, the American Optometric Journal itself warned its members of what it termed "in- herent dangers" in this bill. The Hart Bill, as you may know, would prohibit practitioners as defined therein from the sale of drugs or eye- glasses. H.R. 1283 and all its sister bills are the reverse of the Hart Bill. H.R. 1283 would professionalize the optometrist while then at the same time authorizing him to sell eyeglasses. We agree with the ethical premise of the Hart Bill. If there is a problem with regard to the quality of an eye examina- tion, it should not be difficult to fairly set minimum criteria for such examination, whether given by a salon optometrist or an employed optometrist. In fact, I think this is a point that was made by the Washington Publishers Association at the hearings last year and to that we say "Amen." PAGENO="0102" 98 OPTOMETRY * This could end the claim once and for all that examinations by ilicensed employed optometrists are inadequate in any way. With the above in mind, we can proceed to analyze H.R 1283 to see if it accords with the public interest. The guts of the bill are found on page 9, lines 7 through 12 (Section 7(a) subdivisions 17 and 18); on page io, lines 14 through 18 (Section 8(a) (2)); and page 12, lines 12 through 16 (Section 8 (a) (8)). These pr6visions would prohibit the practice of optometry anywhere except in a. salon or office, would prohibit an optometrist from acting as such a~ an employee, and would prohibit the practice of optometry by a company, associatiOn or corporation or by anyone else, even by an ophthalmologist, except, interestingly enough, by another individual optometrist. What would be the result of the pa~sage of thi~ bill? It would result in the elimination of low-cost optical care to many thousands of people of modest income in the District of Columbia, precisely those who need it most, because salOn opton~etiists charge fancy prices. It would also greatly reduce the number of trained individuals in the optical field who could provide eye care. Further, it would result in layoffs and the Creation of a block of unemployed optometrists, opticians and other employees of corpora- tions and other employers and would force trained employed licensed * optometrists to leave the field and to give up valuable rights as employees. * Moreover, it would drive the cost of eyeglasses and eye care up to new heights without any corresponding benefit to the public. It should be noted that it has never been demonstrated anywhere that the public has suffered as a result of eye care administered by em- ployed optometrists, despite Dr. Chapman's malarkey to the contrary. This question. in fact, was litigated in the State of New York and ~the Court of Appeals there found: * * * although the corporate employment of optometrists has existed for over half a century in this state, no instance has been cited where such employment caused injury to the public." (People v. * Sterling Optical Co. Inc., 11 NY 2d 970). Our union is particularly concerned because the passage of the in- * stant bill in the District of Columbia. is intended as a forerunner for all fifty states. It corresponds with simultaneous efforts in other states to enact similar legislation. This would be one of the first and not one of the last, as has been implied. Such legislation, for example, was passed in the final moments of the New York State Legislature t.his year. That was Senate Bill 3335-A by Senator Gordon, and was vetoed by Governor Rockefeller. A similar bill was vetoed previously by the then Governor Harriman. So it doesn't matter whether we have a Republica.n or Democratic Governor, on final consideration the bill was vetoed in both cases. We note the provisions of Section 8, H.R. 1283. would continue to apply to dispensing opticians so they could not, pursuant to page 12, 8(a) (9), exceed the stringent regulations regarding advertising of eye- glasses and could not, as set forth on page 11, lines 17 to 24, Section 8 (a) (5), advertise the price to the public. In this case he seeks to undermine the opticians and discloses the dichotomy of his position. That is, to at the same time establish himself as a member of a so-called learned profession and as a businessman cornering the market. There is no more reason to preclude an optician PAGENO="0103" OPTOMETRY 99 from advertisrng than to preclude a druggist from advertising They both fill prescriptions For the above ieasons we must dissent from `tny description of the practice of optometry in the bill as a profession, if it is mtended to be likened to a learned profession such as medicine Such references appear at page 1, line 9, Section 2; page 2, line 5, Section 2; pages 8-9, lines 20 to 24 and to 3, Section 7(a) (14) and (15) where the reference to professional is subtly taken f or granted. Dr. Chapman testified that all the states consider optometry a pro- fession. That i~iay be true in a sense, but the term is used very loosely in this connection. In many instances it was so described years ago at a time when the courts were upholding the state's rights to license optometrists possibly over the objection of some of the optometrists at the time. But at the same time, corporations are permitted to practice optom- etry in the very states which describe optometry as a profession, such as in New York, for example. New York describes optometry as a pro- fession, but it also permits corporations to practice optometry, show- ing the importance they attach to the term "profession." Baseball playing is a profession; prize-fighting is a profession. By the same loose definition they are all' licensed professionals and are doing very well. What is the test of a true profession? Under the common law there were only three learned professio:ns: divinity, the l'~w and medicine, and testing whether there is a product for sale, whether there is a higher ethic in the marketplace, we say that so long as opticians sell eyeglasses optometry cannot be a true profession. We note in this respect that two predecessors' of 11.11. 1283 which I think were introduced at the same time earlier this year, namely, H.R. 59~ and H.R. 732, declared optometry a profession by fiat. They ju~t said "We declare optometry to be a profession." }LR.. 1283 avoids getting into an argument about this by simply assuming optometry is a' profession, but a rose by any other name is `still a rose and so long as optometrists sell eyegh~sses and earn 75 per `cent of their income from such sales, optometry cannot be considered a profession. Based on the above, one must conclude that this myopic bill sho~uld not be passed for the following reasons: It will eliminate low-cost eye care for the general public and es- pecially for those who need it most, the Negro or theY working popula- tion of the District of Columbia, without any corresponding benefit. It will reduce the number of competent persons available to provide eye care. It will drive all the optometric firms and corporations together with all their employees of all descriptions thereby creating unemploy- ment and undermining the economic health of the District of Columbia. Next, it will deprive employees of economic security, the right to union benefits and pensions, some of which are vested rights and in general the right to work, and will force them to leave the industry despite their training and license, all without due process, without a grandfather clause. And next, the Congressional `approval will be placed on a bad bill intended to serve as a model in all fifty states by the real sponsor and sole beneficiary, the American Optometric Association. We know from our experience in New York with a sirnil ~r measure that hR 1283 is wh'at we call a corporate practice bill primarily PAGENO="0104" 100 OPTOMETRY designed to eliminate corporate employers of optometrists as exam- fliers. This is the heart of the matter. Leave that provision in and all the other provisions objected to by ophthalmologists, osteopaths, o~ti- cians and others would gladly be deleted or amended by AOA. I think Dr. Chapman indicated that in his testimony yesterday. A lot of things amended were satisfactory to him. On the other hand, make illegal the right of optometrists to sell eyeglasses and H.R. 1283 will be quickly abandoned by AOA. We call upon the subcommittee not to lend itself to this scheme to enrich optometrists who sell eyeglasses at the expense of the rest of the population of the District of Columbia by elevating this inherently quasi-professional group to artificial professional status while it con- tinues to sell eyeglasses in the marketplace which it claims to abhor. We urge the restriction of H.R.. 1283 as a myopic bill for the low- income consumer, government employees and the public in general, so long as it contains its main provision of outlawing the employment of licensed optometrists by corporations and firms. We support efforts to modernize the optometry law in the District of Columbia. However, this bill and all of its sister bills create far greater problems than they solve and I thank you for your attention. Mr. SIsK. Thank you, sir, for your statement. The gentleman from North Carolina? The gentleman from New York? Mr. HORTON. Mr. Weinmami, I note that you do have enclosed a copy of the memorandum veto of Governor Rockefeller of the bill that was apparently passed by the Senate and Assembly in the State of New York. Do you have a copy of that bill? Mr. WEINMANN. I will be happy to make it available to the sub- committee for study. Mr. HORTON. I would like to determine if the language in that bill is similar to the provisions in H.R. 12276. I note in the Governor's Message he made some reference to the provision of that bill which would make it illegal to open an office in a commercial office building or shopping center. If there is similar language in this-the gentleman from North Carolina yesterday was asking about that, on page 9, lines 4 and 5, which are prohibitions. Also line 7. The authority of the com- mission is to refuse and suspend a license where the practice of optom- etry is in any retail or commercial store. Mr. WEINMANN. Congressman Horton, you are absolutely correct and S. 3335-a did contain precisely the same language or similar language in connection with a prohibition in retail stores. I might add that the guts of both bills is still the prohibition of employment of optometrists by corporations and firms. This is the guts of both bills and I think that is readily perceptible and I would be very happy to make a copy of S. 3335-A available to this subcom- mittee. Mr. HORTON. We do have a copy of that, Mr. Chairman, and I wonder if we could make this copy part of the record. Mr. SIsK. I would like to have a copy of it for the record. Mr. HORTON. We do have one here. Mr. SIsK. Without objection, a copy of the New York Bill, S. 3335-A, and veto memorandum thereon, will be made a part of the record. (The documents referred to follow:) PAGENO="0105" OPTOMETRY 101 P)R IMMEDIATE RELEASE, WEDN~DAYD MAY 3, 1967 3 ( L~LIE SLOTE, PEPSS SECELTARY TO THE GOVERNOR STATE OP NE~i YORK EXECUTIVE CHAMBER ALBANY May 2, 1967 MEMORANDUM filed with Senate Bill Number 3335.A, entitled: #27k "AN ACT to amend the education law, in relation to the practice of the profession of optometry" NOT APPROVED This bill would prohibit a corporation or other retail firm or atore from employing a licensed optometrist to provide optometric services to persons other than fellow employees. The bill would also prohibit an optometrist from establishing a practice in association with any person not licensed as an optometrist.. This bill appears to embody conflicting and ambiguous provisions. The bill in its present form would make it illegal, for example, for an optometrist to practice his profession in association with other licensed medical practitioners, It appears to require a prescription for optical instruments that have no necessary relationship to the correction of any visual defect ox' deformity such as binoculars, microscopes and telescopes, It appears to make it illegal for an optometrist to open an office in any commercial office building or shopping center since under the provisions of the bill such a building ~s a "place' where occupations unrelated to the practice of optometry are carried on, It attempts to permit those now employed by a corp6x" ation or other firm to continue this employment, but in another subdivision of the bill it makes it a misdemeanor to provide such employment. Moreover, the Insurance Department, in urging disapproval ot thid bill has written to me as follows: * The Department in concerned with the bill since it could prevent union welfare funds and health centers regulated by Article 111a of the Insurance Law from employing the services of optometrists, and hinder the right to choose optometric vendors thereby increasing the cost of optometric services with no foreseeable benefit to members In addition, insurers who cover the cost of optometric materials would be faced with increased costs which would have to be ultimately reflected in the rates with no increase in the quality of services fox' the foreseeable future, * ~ P e r m a ~ ~ t "The Department favors the highest quality optometric care, but this legislation will not accomplish suob result, The bill is penal in nature and \~iolatjon of its vague provisions is a misdemeanor. Becausc~ of itS defects end ineffectiveness, we urge that it be vetoeclJ1 Also recommending disapproval of this bill are the Department of Coumweree. the New York State AFI~~IQ~ the Association of the Bar of the City of New York, and the National Association of Optómetristh and Opticians, among nuin~x'oua others, The bill is disapproved, (~gned) NEt~ON A, ROCKEFELLER PAGENO="0106" 102: OPTOMETRY STATE OF NEW YORK 3335A IN SENATE February 16, 1e67 hr 1u't'i by Mr. OO1~D0N~-i'cad twièe an4 or~créd pr~nt~1~ ~tiul when prnilerl ta ha c~mmltted to the C.o~mittea on .TJi~thc~ 1~tiUC~flf1Ofl AN ACT To amend the education law, in relation to the practice of the profe~tion of optometry The People of the $tafe of New Yor1~~,, represented in Sen~{~ an~ Assembly, do enact 03 foUo~vs: Se~t.ion 1. Declaration and purposes; The iegi~iaturc~ hereby 2 fin~is and declares that: ~ The prneti~o of the profe.~s~on of optometry ~ffcets the ~mhlic~ ~ health, safety aud welfare and because it protects, v~irree.te and conserves tho vision of tho public of the N!ate, ban far many years 6 been suh3ccted to 1iccns~ire, regulation and control in tim public 7 interest. It is a matter of public iutereet and concern that. th~ ~ profession of optometry continUe to merit and receive ~l:con~ fidence of the public; that the relationship between the optometrist io and the members nf the p~bii~ be on the higheat. level of ~rnzt, confidence and doctor-patient basis; that. the optometrist owes hin ~ ~`~` ~` ~ ~ t~ a~dtue. ~3 11 i~f;~ iTh ~ii PAGENO="0107" OPTOMETRY 103 2 1 solo ditty nud responsibility to his immediate patient; that the 2 optometrist in ministering to the vinual needs of his patient be 3 unfettered by ~tny obligations to a lay person or corporation who 4 or which is not or cannot be ~ducatecl, trained, examined, licensed, 5 regulated as an optometrist an~ tha~ the practice of optometry by 6 unlicensed persons or corporations ernployi ug optometristh, creates 7 i~ ~1UZtI responsibiUty for the optometrist With respect to hiS imrilOdi- 8 ate patient and to his my employer which is inimical to the public 9 health 8H(1 WCI~1rO, 10 § 2. Seetion ~evonty-ono hundred nine of the education law, is 11 hereby am~ndcd to read as follows: 12 § 7.109. [Sales of eyeglasses, Epeetacles and lenses at ~etnil~ 13 Regulation of practicó of optometry. 1. It shall ho unlawful ~for 14 any person, firm or corporation to soil, at retail, as merchandise, 15 in any store or established place of business in the state, any 16 spectacles, eyeglasses, or lenses for the correction of vision, unless 17 a duly licensed physician or duly qualified optometrist, licensed 18 under part one of tlis article, be in charge of and in personal 19 attendance at the booti; counter or place, where such articles are 20 sold in such store or established place of business~to ~cll, dispense, 21 furnish or supply any spectacles, eyeglasses or iCflSeS to the public, 22 for the aid or corrcctiin of vision, c~ocpt upon the wr~~~ prcecri~i- 23 iions of a duly ticcnsr~i pliysfciaa or c~ (Euly licensed optometrist. 24 This sluill not prohibit, however, a duly certified opthalmic dc~ 25 penser from sellin~, proviclhig, furnishing or adapting spc.ctheieri, 26 eegiasse~ or lenres ealy on prescription ef ~Thysieion~j a duly PAGENO="0108" 104: OPTOMETRY 3 d~ ~ ~ licensed physician or a ~ ~qua1iflcd *optometristj licensed 2 O))tofllctr?St or from duplicating 1eUSc8. ~ ~. it shall be unlawful for any optomclri4 to make an eye 4 examination, visual analysis, refraction, or condnct any part of ~ the practice of optometry, either directly or IndireCtly, as am 6 cmploiicc or associate of any person not licensed asan optometrist, 7 or (If ~"!/ firm, corporation, iay body, organization, or group; prarn 8 Vi(lCd, however, That this prohibition shall not be construcd ta 9 prrocnt tlio continuance by orG optometrist of any such contract tØ of rfltp1O~jHl(Ht or of any such ~ or other arrangement ~ existing at the time this sccti~n as hereby amended takes cffcct or 12 to prevent such an optometrist from making such a contract of 13 employment or a IiCW such association or a~'rangcnzcnt with or i~ for a new em ptoyer. 15 4. it Sl?f1fl he unlawful for any corporation, lay body, organfra- j~ tion, group or lay person in any manner to malta an examination, 17 visual analysts, refraction, or to conduct any p~rt of the practice 18 of optometry through the means of engaging the services on a 19 salary, commission or any other compensatory basis, directly or 20 indirectly, or an optometrist licensed under the provisions of this 21 article, provided that this pro72ibition shall not apply to any 22 nnivcr~i1y or school of medicine o~ of optometry, hoepitol, health ~3 confer, citnic or rtnitlar non.profii stitutio~ or to any public 24 or governmental agency; ~wr shall if prevent a duly liccnecd 25 optometrist from bci~g employed end compensated by a firm, 26 corporation, lay body, organi~atio~, or group for Ma purpose of PAGENO="0109" OPTOMETRY 105 .4 ~ rc7idcring optometric care to She employees of the firm, corpora tion, 2 lay body, organiuUo~~, or group by ~vhieh he is employed. ~ 4. 1 shalt be unlawful for an optometrist to practice optometrij 4 or any part thcrcof in any retail or commercial location, or in any 5 prcnth~es not exclusively devoted to the practice of optometry or 6 other health care professions, or in any place where any trade, 7 occupation or busincss, unrelated to the practice of optometry or 8 other health care profession is conducted; provided, however, that () tlzic prnhThitt'o~ sl~o7l not Pie con#ru~'.d So prevent the ran?inuiznre 10 by an optometrist of She practice of optometry in any such location ii or premises on the date when this section as 1tcrcb~y amended 12 taTces effect or to prevent such an optometrist from continuing the 13 practice of optometry in any new such location or premises for and H during thc period of ten years from the effective date of this section 15 as hereby amended. ~ (The peddling of] It 8hafl be unlawful topeddto spectacles, 17 eyeglasses or lenses or (the practicing of to practice optometry 18 or opthalmic dispensing from house to house or on the streets or 19 highways, (by any person also shall be nnlawfu1,~ notwithstanding 20 any law providing for licensing peddlers. This shall not prohibit; 21 however, an optometrist or physician from attending, prcscribin~ 22 for and furnishing spectacles, eyeglasses or lenses, or a certified 23 opthalmie dispenser from furnishing or adapting spectacles, eye. 24 g1asë~'s or lenses, to a person who by reason of illness, physical or 25 mental infirmity is confined to his abode. 26 § 3. This act sirnU take effect January first, nineteen lmndred 27 si'ty-eight PAGENO="0110" * 106 OPTOMETRY Mr. WEINMANN. In the Governor's Message, he also pointed out that low cost eye care was adversely affected by that bill. Mi~. HARSHA. I thought I understood you to say, Mr. Wéinmann, that 75 per cent of all the income of optometrists is acquired by sell- ing eyeglasses? Mr. WEINMANN. That is correct. Mr. HARSHA. How do you arrive at that? Mr. WEINMANN. I have seen that statistic and will be. happy to furnish the evidence of it to this subcommittee. Mr. HARSHA. Can you recall where you got this information ? :~i~ Tnjr~~ In a memorandum which I belie~ e w'~s s~ bmitted in a case which may now be pending in the State of. New For/c called People vs. Sterling, I believe, and I would be happy to submit that memorandum to this subcommittee. I think the basis for that figure is included in that memorandum. Mr. HARSHA. Is this a case involving optometrists? Mr. WEINMANN. No, it is a case involving corporations which prac- tice optometry. In fact, the main corporation involved in this case, Sterling, also is located in the District of Columbia. Mr. HARSHA. Does this involve the income of corporations involved in the practice of optometry or does it involve an individual involved in the practice of optometry'? Mr. WTEINMANN. The case primarily concerns itself with advertis- ing and the right of corporations to advertise. That is what the case is about. The corporation employs optometrists. In fact, those optom- etrists are represented by this union. Our union. Local 408, represents hundreds of optometrists. Mr. HARSHA. I don't see how you can quote a figure of 75 per cent of all optometrists' income is gained by the sale of eyeglasses. Mr. WEINMAXN. That is a correct figure. You can get that also from Medicare and Medicaid. both. Mr H~RSH ~ If th'~t fi~me s ~er~ f'tr oft it isn t a ~ ei~ ~i~hst'irtial statement. . * That is all I have. Mr. WEINMAXN. As a matter of fact, I think some of the other witi~esses who intend to testify against this bill will have much more data on it. Perhaps witnesses who are present in this room today. 1 see Sterling listed on~ the schedule of speakers, and I would assume that the speaker for Sterling will have some information onthat. Mr. SIsK. The gentleman from Maryland. Mr. GUDE. Thank you, Mr. Chairman. . * * Mr. Weinrnann, yesterda.y Dr. Chapman, speaking on behalf of the American. Optometric Association, stated that in regard to House 1283, the purpose of the bill is simple; to elevate the practice of op- tometry in the District of Columbia to the. level of professions recog- nized in the other states. Could you comment on that statement? Mr.~ WEINMANN. Yes. The State of New York, for example, does describe optometry as a profession. There is no dispute about that fact. At the same time. in that statute there is reference to the corporaft pract~ca of optometry, almost in the same paragraph. So that it is clear that by using the term "profession" in the statute, it is not meant to classify it as a learned profession such as the law, for example. Oh- PAGENO="0111" OPTOMETRY :107 viously: the term "profession" ha~ a different meaninginthat: context. So I don't attach any great significance to the fact that states describe optometry as .a profession. To me it is no different than calling prize- fighting a profession. It is. a basis for licensing. That is the reason for use of the term "profession" is as a basis for licensing and that is why you have so many cOurts in the old days-and 1. saw from last year's record- there are many cases, but many of them were old cases. They were cases which probably involved the licensing problem and in order to justify licensing they called optometry a profession and to that extent it' is. .1 think optometry should be licensed. I have no quarrel with that at all. Mr.. GUDE. Do optometrists in the State of New. York advertise? Mr. WEINMANN. No. Optometrists do not adver.tise in the State of New York. Opticians do. Mr. S~sK. We have sitting with us the gentleman from Florida, Mr. Fuqua, a member of the full committee, who is very much interested in this. Mr. FUQUA. Do you consider the 1924 law we are operating under in the District of Columbia to be a model law? Mr. WEINMANN. No, I do not. I think there is need for revision. I think there that the law should be updated. I commend the subcomit- tee for looking into this question. There is no reason why it shouldn't be updated. I would say many laws that are 40 or 50. years old require revision from time to time to keep up with the times. What I am objecting to is that the guts of this particular bill is not the professionalism. That is a cloak brought in here by the AOA. The Teal guts of the bill is to outlaw the practice of optometry by coipora tions. . . . . We in NeW York State have found-and this was litigated in the courts of New York-that in 50 ye'trs history there is no harm done to anybody, there has never been demonsti ated any harm to anybody so long as licensed optometrists are employed by corporations. We think that that is the crux of the matter. We are not quarreling with updating the law We are only quarreling with inserting l'tnguage which would enrich the salon optometrist at the expense of the general public,. .which would then be forced to pay the higher prices which the salon optometrist demands That is all it is as far `is we are con cerned It is a matter of competition Salon optometrists are out to drive out the low cost corporations which deal on an efficient and. volume basis. Incidentally, I would like to stand corrected on an observation I made a little earlier. I said that optometrists do not advertise in the State of New York. They don't in general, but they do on a limited basis. *That is what. the subject of the litigation is. They advertise, for example, in a store window. It is a mild form, of advertising.. A very mild form, but even that `has been subjected to attack by the Board of Regents. in New York and ultimately it will be determined. Mr. SIsK. Approximately how many optometrists does your union iepiesent~ Mr. WEINMANN. Hundreds. Qur, Local 408. alone represents hun- cireds of optometrists in the State of `New York.' PAGENO="0112" .108 OPTOMETRY Mr. SIsK. "Hundreds" is pretty indefinite. Is it several thousand? Mr. WEINMANN. Well, there aren't that many. I don't think there are 2,000 optometrists in the State of New York. I understand there are 1300. There are 1300 licensed optometrists in the State of New York. When I say we represent hundreds, it becomes a significant number. Mr. SISK. Do you have a record there of the employers with whom you have contracts? Mr. WEINMANN. I would be happy to furnish that, but we have contracts with hundreds of employers. We represent optical workers in every field of endeavor, not: only the optometrists. We represent dis- pensing opticians and shop men. Mr. Sisk. Furnish for the record a list of the employers with whom your union has contracts. Mr. WEINMANN. Yes. (Subsequently the following information was submitted:) Sipsan, WEIN5T0CK & WEINMANN, New York, N.Y., August 23, 1967. Re H.R. 1283 et al. Hon. H. F. Sisx, Chairman, £~ubcornmittee No. 5, District of Columbia Committee, Rayburn House Office Building, Washington, D.C. DEAn CONGRESSMAN SI5K: Thank you for the opportunity to appear before Subcommittee No. 5 in connection with the above bill. As requested, I am en- closing the following documents: 1. Senate 3335-A, the corporate practice bill recently vetoed by Governor Rockefeller. 2. A list of optical retailers under contract to Local 408. (Naturally, there are many many other optical firms under contract not only to Local 408 but to the various locals of other international unions forming the National Optical Work- ers Conference, and there are other local optical unions in.the International Union of Electrical Workers, AFL-CIO having similar contracts with employers). I have now had an opportunity to read the letter to which you referred in connection with labor opposition to H.R. 1283. The fact is that the letter re- ferred to from Thomas E. Andert "To Whom It May Concern", deals with an unethical practice in terms of purchasing cheap. lenses wholesale from Texas and has absolutely nothing to do with ethics in dealing with the public or in examining eyes, nor is there necessarily any fault in the cheaper lenses or any special reason why a salon optometrist could not also obtain these cheaper lenses. In fact, many of them do. The reference which I made to the sale of eyeglasses as constituting 75% of the income of optometrists was predicated upon testimony in the transcript in a case entitled sterling Optical Co. Inc. et al v. The University of the $`tate of New York et al pending before Honorable Waidron R. Herzberg, Supreme Court, Albany County, Index No. 5807/1963. I assume that my testimony will be forwarded to me for correction before printing in the Record. Very truly yours, RICHARD A. WEINMANN. American Eyesight Service, Inc., 5 Hill St., Newark, N.J. Philip Apifel & Co., Inc., 201 Fulton St., New York, N.Y. Associated Eyesight Specialists, Inc., 255 W. 34th St., New York, N.Y. Associated Group Optical Plan, Inc~, 125 Fulton St., New York, N.Y. Associated Opticians, 3002 Steinway St., I~ng Island City, N.Y. Bookhart & Smith, 290 Bloomfield Ave., Montclair, N.J. Dr. Stanley Bregman. 7 Hill St. Newark, N.J. BMT Opticians, 1688 E. 16th St., Brooklyn, N.Y. PAGENO="0113" OPTOMETRY 109 Bristol Opticians, Inc., 1643'Pitkin Ave., Brooklyn, N.Y. Bridge Opticians, George Washington Bridge Bus Terminal, New York, N.Y. John B. Boyd, Optician, 308 Bridge St., Springfield, Mass. John B. Boyd, Optician, 333 Bridge St., Springfield, `Mass. John B. Boyd, Optician, 7 Westfield St., West Springfield, Mass. Center Optical Co., Inc., 250 W. 57 St., New York, N.Y. Center `Optical Co., Inc., 72 Willoughby St., Brooklyn, N.Y. Cohen Optical Co., Inc., 117 Orchard St., New York, N.Y. Community Opticians, 47 W. 34 St., New York, N.Y. Community Opticians, 789 Broad St., Newark, N.J. Community Opticians, 509 Willis Ave., Bronx, N.Y. Community Opticians, 1140 E. Jersey St., Elizabeth, N.J. Consumers Eyesight Service, 86 W. Chippewa St., Buffalo, N.Y. Council Opticians, Inc., 34 Church St., Buffalo, N.Y. Council Opticians, Inc., 12 East Avenue, Lockport, N.Y. Council Opticians, Inc., 144 N. Union St., Olean, N.Y. Council Opticians, Inc., Elmira, N.Y. Council Opticians, Inc., Batavia, N.Y. County Optical Co., Inc., 9 Crary Ave., Mt. Vernon, N.Y. County Optical Co., Inc., 72 E. Post Rd., White Plains, N.Y. Crystal Opticians, Inc., 100 Nassau St., New York,N.Y. County Optiks, Inc., Walt Whitman Shopping Center, Huntington, L.I. DeLorme-Lehman-State Optical Co., 42 E. 23 St., New York, N.Y. Design for Vision, Inc.. Morrisville, Pa. Dean Opticians, 168 Flatbush Ave., BroOklyn, N.Y. Economy Optical, Co.. 133 W. 14 St.. New York. N.Y. Edwards Optical Go., Inc., 161 Franklin St., Buffalo, New York J. Ehrlich & Sons, 339 Madison Ave., New York, N.Y. Eye-Care Optical Co., Inc., 90 Canal St., New York, N.Y. Eye Center, Inc., 853 Broadway, New York, N.Y. Eye Service, Inc., 149 E. 60 St., New York, N.Y. Eye-Site Opticians, Inc., 49 Tarrytown Rd., White Plains, N~Y. Eye-Site Opticians, Inc., 116-57 Queens Blvd., Forest Hills, L.I. Eye-Site Opticians, Inc., 2374 Grand Concourse, Bronx, New York Family Optical Plan of Huntington, Inc., 374 New York Ave., Huntington, L.I., N.Y. F & G Opticians, Inc.,' 175-5th Ave., New York, N.Y. Flatbush Optical Plan, Inc., 1000 Church Ave., Brooklyn, N.Y. Globe-Baras Optical Co., 207 Canal St., New York, N.Y. Golden Bros., 201 Canal. St., New York, N.Y. Grand Opticians, Inc., 154 Montague St., Brooklyn, N.Y. Green Shield Opticians, Inc., 46 Station Place, Hempstead, LI., N.Y. Green Shield Opticians Mid-Island, Inc., 362A Mid-Island Shopping Center, Hicksonville, L.I., N.Y. Group Optical Plan, 200,Jackson St., Hempstead, L.I., N.Y. Group Optical Plan, 58 So. Ocean Ave., Patchogue, LI., N.Y. Group Optical Plan, 200 Carver St., Huntington, L.I., N.Y. Grand Street Consumers Corp., 500'Grand St., New. York, N.Y. Green Acres Opticians, Inc., Green Acres Shopping Center, Valley Stream, L.I.. N.Y. Dr. William D. Gellerman, Optometrist (formerly Main Optical), 102 Main St., White Plains, N.Y. Group Opticians of Queens, Inc., 86-15 Queens Blvd., Elmhurst, N.Y. Rudolph Katz Optical Company, Inc., 3819 Third Ave., Bronx, N.Y. Sidney B. Katz, O.D., 4405-13th Ave., Brooklyn, N.Y. King Optical Go., Inc., 93 Nassau St., New York, N.Y. Kingsborc Optical Services, Inc., 6411-18th Ave., Brooklyn, N.Y. King & Sobel, 40-23 Queens Blvd., Sunnyside, LI., N.Y. King & Sobel, 82-12 Northern Blvd., Jackson Heights, L.I. Sidney Q. Kuznetz, 855-6th Ave., New York, N.Y. S. H. Laufer, Inc., 88 Rivington St., New York, N.Y. S. H. Laufer Bronx, Inc., 122 East Fordham Rd., Bronx, N.Y. S. H. Laufer of Hempstead, Inc., 101 Main St., `Hempstead, LI., N.Y. S. H. Laufer of Queens~ Inc., 168-05 Jamaica Ave., Jamaica, L.I., N.Y. M & L Optical Co., Inc., 169-30 Jamaica Ave., Jamaica, LI. 82-754-67-8 PAGENO="0114" .110 OPTOMETRY Manhattan Optical Co., Inc., 191 Canal St.., New York, N.Y. Martin Bros. Opticians Brooklyn, Inc., 446 Fulton St., Brooklyn, N.Y. Martin Bros. Opticians Long Island, Inc., 161-19 Jamaica Ave., Jamaica, L.I. Dr. Maxwell Millman, 637 Grand St., Brooklyn. N.Y. Margo Optical Co., 20-28 Francis.Lewis Blvd., Whitestone, N.Y. E. B. Meyrowitz, Inc., 150 Broadway, New York, N.Y. E. B.. Meyrowitz, Inc., 1168 Madison Ave., New York, N~Y. B. B. Meyrowitz, Inc., 520-5th Ave., New York, N.Y.. Monroe-Union Optical Service, 585 Monroe Ave., Rochester, New York Moscot Opticians, 118 Orchard St., New York, N.Y. Ira S. Morgenthal Opticians, 41 E. 62 St., New York, N.Y. Montgomery-Frost-Lloyd's Co., Inc., 300 Washington St., Boston, Massachusetts Montgomery-Frost-Lloyd's Co., Inc., 414 Boyleston St., Boston, Massachusetts Montgomery-Frost-Lloyd's Co., Inc., 662 Beacon St., Boston, Massachusetts Montgomery-Frost-Lloyd's Co.. iflC., 5 Brattle St., Cambridge, Massachusetts Nassau-Fulton Group Optical Plan. 87 Nassau St.~ New York, N.Y. National Optical Plan, Inc., 51 E. 42 St., New York, N.Y. New R.ochelle Optical Plan, 480 Main St., New Rochelle, New York~ Optical City, Inc., 26 W. 14 St., New York, N.Y. Optical Service, Inc., 11 W. 42 St., New- York, N.Y. Parkchester Optical Co., Inc., 1615 Unionport Rd., Bronx, N.Y. Peerless Optical Co., Inc., 150 Fulton St., New York, N.Y. Penn Optical Co., Inc., 215 W. 34 St., New York, N~Y. J. H. Penny, Inc., 144 Joralemon St., Brooklyn, N.Y. J. H. Penny, Inc., 708 Lexington Ave., New York, N.Y.. Pildes Opticians, Inc., 80 Nassau St., New York, N.Y. Park Sher Optical Co., 1173 Sheridan Drive, Tonawanda, N.Y. Queens Bifocal Co., 144-42 Jamaica Ave.. Jamnica, LI., N.Y. Queens Bifocal Co., 93-01 Jamaica Ave., Woodhaven, L.I., N.Y. Rochdale Consumers Cooperative Society, Inc., 165-70 Baisley Bld.. Jamaica, LI., N.Y. Dr. Richard Rosenberg, 200 Market St.. Newark, N.J. Rueff Bros., Inc., 30W. 24 St.. New York. N.Y. John Scheidig & Co., Inc., 60 Nassau St., New York, N.Y. Silbe Optical Co., 153 B. 42 St. New York, N.Y. South Shore Opticians, Inc., 30 Midway Green Acres, Valley Stream, L.I. South Shore Opticians, Inc., 575 Eighth Ave., New York, N.Y. South Shore Opticians 34th St., Inc., 225 W. 34 St., New York, N.Y. Square Optical Plan, 1 Union Sq. West, New York, N.Y. Carl Steiner Opticians, 35-23 30th Ave., Astoria, L.L, N.Y. . Sterling Optical Company, Inc., 1aS.Fulton St., New York, N.Y. Sterling Optical Company, Inc., 1290 Broadway, New York, N.Y. SterlingOptical Company, Inc., I~30Jay Street, Brooklyn, N.Y. Sterling Optical Company, Inc. 206 Hempstead Turnpike, W. .Hempstead, LI. Sterling Optical Company, Inc., 125 Mamaroneck Ave., White Plains, N.Y. Sterling Optical Company, Inc., Cross County Shopping Center, Yonkers, N.Y. Sterling Optical Company, Inc., 259 Walt Whitman Rd., HuntingtOn, L.L Sterling Optical Company, Inc.. Bay Shore Shopping Center, Bay. Shore, LI. Milton Stern, 312 W. 34 St., New York, N.Y. : Seymour Strickberger, O.D., 4032 Seneca St., Seneca, N.Y. Stolper & Lemisch, Inc., 94 Canal St., New York, N.Y. Sic-Good Opticians, Inc., 6819 18th Ave., Brooklyn, N.Y. Suffolk Optical Plan, Inc., 10 S. Ocean Ave.,.Patchogue, L.I. Dr. Eli Shuman, 477 Lenox Ave., New York, N.Y. . Dr. Alvin Strully, 164-05 89th Ave., Jamaica, Li., N.Y. Terminal Opticians, Inc., Suburban Concourse, Port of Authority Bldg., 41st St. & 8th Ave., New YOrk, N.Y. Tupper Opticians, 41 W. Tupper St., Buffalo, N.Y. Tura, Inc. (House of Levoy), 130 Cutter Mill Rd., Great Neck, N.Y. Union Optical Plan, Inc., 143 Fourth Ave., New York, N.Y. Union Optical Plan, Inc., 39 W. 32 St., New York, N.Y. Union Optical Plan, Inc., 157 Remsen St., Brooklyn, N.Y. United Optical Group, 145 Nassau St., New York, N.Y. . . Union \Tl51011 Service; 3193 Cahuenga Blvd~, W. Hollywood, Calif. . Union Vision Service, 7150 Van Nuys Blvd., Van Nuys, Calif. PAGENO="0115" OPTOMETRY 111 Union Vision Service, 5049 Telegraph Rd., Los Angeles, Calif. Vision Center, Inc., 101W. 48 St., New York, N.Y. White Cross Opticians, i~301 Oneida St., Utica, N. Y. Dr. William Weissman, 1347 Broadway, New York, N.Y. Warbasse Consumers Cooperative Society, Inc., 499 Neptune Ave., Brooklyn, N.Y. Zimmet's Opticians, 805 8th Ave., New York, N.Y. Dr. Louis Zucker & Sons, 373 Jay St., Brooklyn, N~Y. V M. Ginsberg Opticians, 41 Commerce S., Newark, N.J. Mr. SIsK. Does your union operate only in New York or do you operate nation-wide? V Mr. WEINMANN. It is primarily in metropolitan New York but we ~o well beyond it. We haveV shops in Rochester and we have shops m the District of Columbia. I think the American Optical has a con- tract with Local 408 iight here in the District of Columbia Mr SIsK Do you ha~ e a contract with Sterling ~ Mr. WEINMANN. W~V have Va contract with Sterling in New York. :Sterling has a number of shops in New York, all of which are under contract with us and employ optometrists. V V Mr. SIsK. Is your union an international? V V Mr WDINMANN It is p'irt of the International Union of Electrical `Workers, AFL-CIO. V V V V V V V V V V The gentleman I introduced earlier, Mr. McKimi~ll, is the Admin- i~trative Assistant to the International Union of Electrical Workers Mr. SISK. Do V you happen to' have a contract with King Optical Company? Mr. WEINMANN.V No, we do not, Mr. Chairman. Mr. SIsK. You definitely do not h~tve a contract with King Optical? Mr WLINMANN Not ts tar as we know Mr. SIsK. Have you ever had a contract with King? V V V Mr. WEINMANN. V I understand it is quite possible some years ago we did have a contract n ith King Mr. SISK. Are you `familiar with any of the operations of King Optical ~ Mr. WEINMANN. I personally am not. V Mr. SIsK. You have no knowledge of some of their experiences in Michiga.n and some of the other states? Mr WEINM&NN No, I personally do not Our business man'iger, Mr. Ribaldô, who could not possibly be here today, is the representative who goes across country and is familiar, with operations throughout the country. He is not available, however. , V V V, V V Mr. SIsK. Are you familiar Vwith the United Optical Workers Union 878 in St Louis, Mr Weinmann ~ V Mr. WEINMANN. J~ is a sister local in the same International Union, tIle IUE. V V VV V V V V* ` V V V V V V V V V V VV V Mr. Sisic. Is it your understanding that all the United Optical Workers unions are unanimously opposed to this 9 Mr WEII~ M ~ici~ Mr Congressman, there are six or more local -unions, optical unions in the IUE, all of which today are strongly opposed. In addition to that, as I stated earlier, I am here on behalf of the National Optical Workeis Conference and that National Op -tical Workers Confeience consists of six Intern'ttional Unions That is international unions in addition to the IUE. `The Retail, Whole- sale and Department Stoie union, the Fl~~t (3-lass Workers union, PAGENO="0116" 112 OPTOMETRY the UAW-that is the United Automobile Workers-the Building Service Employees International Union, the Laborers International Union. All of these international unions have, as American labor history has developed, have local unions in the optical field and all of these are in opposition to a bill which would-to this bill, because of the fact that it primarily has concerned itself with the elimination of the corporate practice of optometry. They are all in opposition. Mr. SIsK. Are you saying that all these internationals have ta.ken a definite position by resolution against this bill? Mr. WEINMANN. Wrell, this National Optical Workers Conference, as far as I imow, has. I have been so advised. Mr. SIsK. Let me `briefly read some excerpts from a statement of the United Optical Workers Union No. 878, in St. Louis, Missouri, affili- ated IUE, AFL-CIO. I will just read some brief excerpts because I don't want to take a lot of time: For a period of more than ten years King, Lee and Douglas Optical Companies along with a few more "Cut-Rate" price advertising Retail Optical Houses have been a plague to the Optical industry generally. These companies are particularly harmful to the ethical Doctors of Optometry and the ethical Dispensing Opticians who are trying to provide good eye care and fair prices or fees for the public. The King, Lee and Douglas Cut-Rate price advertisers are also harmful to the Independent Optical Wholesaler because of the laboratory work of these companies is sent out of town to be fabricated. I understand they would be concerned about that. The struggle against the "Cut-Rate" retail advertisers is not just the problem. of Optical workers unions, but should be the concern of everyone in the optical industry. If the ethical Doctors and Dispensing Opticians do not believe this. is true time will teach them it is true. Unless there is an objection, I am going to ask that the full state- ment signed by Mr. Thomas E. Andert, President and Director of Local 878, be made a part of the record. (The document referred to follows:) AOA-H.R. 1283, ATTACHMENT #6 UNITnr OPTICAL WORKERS UNION No. 878, St. Loitis 1, Missouri, June 30, 1964. To Whom It May Concern: For a period of more than ten years King, Lee and Douglas Optical Companies~ along with a few more "Cut-Rate" price advertising Retail Optical Houses have been a plague to the Optical industry generally. These companies are particularly harmful to the ethical Doctors of Optometry and the ethical Dispensing Opticians who are trying to provide good eye care and. fair prices or fees for the pu,blic. The King, Lee and Douglas Cut-Rate price advertisers are also harmful to the* Independent Optical Wholesaler because of the laboratory work of the~e corn- panies is sent out of town to be fabricated. The shop people who work in the Optical Laboratories are `being harmed be- cause these outfits take work out of the shops of the companies that employ them. This applies to non-union and union workers alike. The Doctors of Optometry and Ethical Dispensing Opticians will get little help.. from the big national optical wholesalers. They do a ~ig business with Daltex and others who supply these "Cut-Rate Retailers" with merchandise at lower~ prices than you pay. This helps to make it possible for these "Cut-Rate" outfits. to beat the ethical Optometrists and Opticians into the ground. This affects the Independent Wholesaler and his laboratory workers, they too- are handicapped because they probably pay much higher prices than Dalte~ and~ others that supply these chiselers. PAGENO="0117" OPTOMETRY 113 The struggle against the "Out-Rate" retail advertisers is not just the prob- lem of optical workers unions, but should be the concern of everyone in the opti- cal industry. If the ethical Doctors and Dispensing Opticians do not believe this is true time will teach them it is true. This union has started a picketing campaign against King, Lee and Douglas Optical Companies and others in Kansas City and St. Louis. Lee Optical expects to open four or five more stores in the St. Louis Area. One will be in the vicinity of Gth or 7th and Olive Streets. At least that is the infor- mation that is being spread at the moment. No doi~bt Douglas will do the same in IKansas City and other Cities. Each of these Lee and Douglas Stores are geared to do about $100,000 worth of business a year. Divide the prices they get into their take. The total number of prescriptions involved is staggering. We need all the help we can get in our efforts. You can help by sending your w,ork to Optical Wholesalers in your area. If these "Cut-Rate Stores" are not in your area. It is only a matter of time when they will be. Unfortunately we start out under a handicap because we must divert some of our pickets to ~onw so called legitimate Doctors and Opticians who are now sending_their work out of town to "Cut-Rate Optical Wholesalers." We have a list of some of these people. Most of them bust their vocal chords screaming about Lee, Douglas and King. We see no difference between the two groups. When our pickets are placed in front of any Doctor or Store they will remain there indefinitely. There will be nothing we can do about it. One thing you can be sure of we are going to use every means at our disposal in our efforts to carry out our campaign against these chiselers. We are sending letters to over 1800 local unions in Missouri calling their atten- tion to the activities of these "Cut-Rate Non-Union Retailers." Your written comments would be appreciated. Not anonymous please. Yours truly, THoMAs B. ANDERT, President and Director. P.S. Members of this union are presently on strike at Bausch and Lomb Incor- ;porated in Kansas City, Missouri. AOA-H.R. 1283, ATTACHMENT No. 6 UNITED OPTICAL WORKERS UNION No. 878, 1S~t. Louis 1, Missouri, August 1960. DEAR DOCTOR: The letter you just read is being sent to some 5,000 local unions `in Missouri and Illinois. Our organization has consistently fought cut rate retail optical price adver- `tising in the interest mainly of the Optometrists and Opticians. Cut rate non-union wholesale houses such as Commercial and Daltex and others are juSt as much a blight on the industry and just as much unfair com- petition on the wholesale basis as the cut rate retail advertisers are to the decent Optometrists and Opticians. We are starting a program to promote the purchase of union made eyeglasses. The same unions will be contacted. There are about 300,000 union people in the state of Missouri and we suppose twice that many in Illinois. Just as the Optometrists and Opticians are trying to do something for them- selves we too are interes;ted in the well being of our union members. It would `be nice if the Optomertrists and Opticians whom we are trying to help would send their work to one of the union wholesale optical companies in St. Louis and Kansas City. In that way they would be helping us to help them with legislation and in other ways too. Some of these union wholesale houses have prices comparable with the non-union wholesale houses. We are enclosing a list of union wholesale houses in St. Louis and Kansas City for your information. Remember Lee and Douglas optical companies are subsidiaries of Daltex in Texas. Soon now our union label advertisers will appear before all King, Lee, Dougllis and other non-union retailers throughout the States of Missouri and Illinois, also Nebraska. With sincere best wishes. We are, THOMAS B. ANDERT, Pvesident and Business Representative. PAGENO="0118" 114 OPTOMETRY AOA-H.R, 1283, ATTACHMENT No. .6 UNImu OPTICAL WORKERS UNION No. 878, St. Louis 1,Missonri, July 24, 1958. To ALL LABOR UNIONS: You recently received a package letter from the King Optical Company. This letter offered very cheap eyeglasses to nil union members and. their families. Mr. Ritholz owner of King Optical Company, is a noted union hater. He is well known to the Chicago Federation of Labor. He is a braggart and brags openly that he destroyed the Dental Workers union affiliated with the A. F. of L., in Chicago away back in 1930. Oh, yes. He used to sell mail order dentures too. In fact an. organizer for the Chicago Federation of Labor was.shot to death in that fight. Mr.. Ritholz also brags he destroyed the Optometrists Union A. F. of L., also back in the early thirties. There is no question about that he really did do it. In 1936 or 1937 while this writer was helping the Chicago Optical Workers. Local Mr. Ritholz locked out 130 A. F. of L., Optical Workers and the lockout lasted over four years. The case went through the Labor Board. The decision of the board was~ against Mr. Ritholz and the Ritholz Optical Company. That was not enough for Mr. Ritholz he dragged the matter through every court in the land~ Finally the court ordered him to deal with the Chicago LocaL That is how he finally gained a union shop. More recently in the City of Detroit King Optical Company again owned by i\Ir. Ritholz destroyed the union in his Detroit King. shop. . Mr. Ritholz loves to disrupt and destroy. He is also ~n apostle of the belief. that everyone regardless of their station in life has a price. In fact he was con- victed in Michigan for trying to bribe a member of the State Board of Optometry.. That incident happened just a few years ago. Mr. Ritholz started his Kings store by hiring broken down Medical Doctors to examine peoples eyes. In some instances these were ex Venereal Doctors. Apparently the Medical Association put a stop to that. Now he hires registered Optomertrists. These Optometrists usually have an office on the same floor as the King Optical Company. They are not supposed to be connected to King Optical Company. However they do not fit glasses as all other Optometrists do but they send patients to King Optical Com- pany. There is a law against price advertising of optical goods in the State of Missouri. So King gets around the law by these methods. No language we can use is strong enough to condemn the practices of King Optical Company. King Optical Company in the State of Missouri is 100% Non- Union. For best eye care for you and your families go to any Occultist (Medical Doctor) Registered Optometrist or Optician. They are all listed in the phone book. There you can be sure of proper care and attention. Later on we will send you a list of the Union Optical Houses in the St. Louis. Area. Fraternally yours, THoMAs E. ANPERT. President, United Optical Workers Local 878. IUE-~-AFL-CIO. [AFL-CIO News, July 12, 1958. Page 3] FIRM ASKS LABOR HELP AFTER BUSTING Uxiox DETROIT-The King Optical Company an interstate chain with a record of union-busting and Labor fighting, is now trying to soft-talk local unions into helping it sell eyeglasses to their members, according to Cass Suski, president and business representative of Optical WOrkers Local 932. The Local formerly held bargaining rights at the branch here. But it had to strike for four months and go to court because the company refused to live up to its contract, Suski said. The agreement expired while the litigation was still going on he added. and the company coerced enough employees into quitting the union to cost it, its bargaining rights. (The following letter was subsequently received for tile record:) PAGENO="0119" OPTOMETRY 115 UNITED OPTICAL WORKERS UNION I.U.E. LOCAL No. 878, Louis, Mo~,August 2~, lg67.. Re H.R. 1283. JAMES T. CLARK, Clerk, Uom~nittee on the District of Columbia, House of J~eprescntatives, Washington, D.C. DEAR Ma. CLARK: It has come to my attention that a "To Whom It May Con- cern" letter dated June 30, 1904 under my signature has been incorporated into the Record of the hearings of Subcommittee No. 5. The purpose of including this letter in the Record, I am informed, was to indicate that corporations that prac- tice optometry in the St. Louis area are guilty of improprieties, which would. not be the case if the corporate practice of optometry was outlawed and only individual optometrists were permitted to practice optometry. The above is a complete distortion of my.letter. The practice to which I objected was that 3 optical companies in St. Louis, namely King, Lee and Douglas were sending their work out of town, to Texas~ in order .to have it done more cheaply instead of having such work done locally. This has an adverse effect upon optical companies which do patronize local laboratories and opticians. The fact is that many individual licensed optometrists also engage in this prac- tice of obtaining cut-rate lenses and optical services from Texas. Individual optometrists are worse . offenders than some corporations. The form .of practice has nothing to do with the utilization of cut-rate out-of-town w-ork. We pointed; out in the second page of our letter that even some ophthalmologists and opti-. cians were sending their work out of town to the cut-rate wholesalers. There are many corporations practicing optometry in this country through the employment of licensed optometrists in a reputable fashion and under union con- tract. We have no quarrel with theni. We support the position of the Optical Council of the International Union of Electrical Workers, AFL-CIO, and also of the National. Optical Workers Conference, in opposition to HR. 1283. In view of the gross misinterpretation of my letter in the Record, I request that this letter also be made a part of the Record. Very truly yours, THOMAS E. ANDERT, President. Mr. WEINMANN. As I understand, that statement was made some~ seven years ago. I don't think it should be read generally but it should be applied to the specific corporations he was directing his attention to. We could very well make the same statement about two or three shops in the New York area which we consider to be unethical and we could make the same statement about. . salon optometrists who are unethical. Mr. SIsK. This statement is later than seven years ago, Mr.. Weinmann. Mr. WEINMANN. The fact is that . the taxicab driver who took us here today was complaining about unethical dealings that he had with an ophthalmologist in the District of Columbia who had a kickback arrangement with some optician. So that the fact that these particular places were cited, it might very well be these particular places were dealing unethically, but that has nothing to do with the general proposition. We have corporations in New York lTnder contract for many, many years which we consider to be perfectly ethical. Mr. SIsK. You mentioned you have a contract with Sterling Optical Company~ Mr. WEINMANN. Yes. . Mr. SIsK. You also mentioned in your statement that there was no case on record where corporate, practi cc of this type had been injurious and apparently the record was very clean. . PAGENO="0120" 116 OPTOMETRY Mr. WEINMANN. I sa.y the Court of Appeals in the State of New York so found after litigation, that there were no cases cited of injury to the public as a result of the corporate practice of optometry. Mr. SIsK. I want to read this comment here-and again I will ask unanimous consent this be made a part of the record, and without objection it will be. (The documents referred to follow:) STERLING OPTICAL OORP., Washington, 5, D.C., February 1964. DEAR STUDENT: Because you attend a Washington area school, you are eligible for Sterling Optical's new student plan for the fitting of Contact Lenses. The plan is simple. It is based on the fact that students in your age group are: 1. Most receptive to the idea of changing from spectacles to modern Contact Lenses and 2. Most valuable to Sterling Optical in a public relations manner. Because of these two factors, we have found it to be less time consuming to fit students with Contact Lenses. There is more psychological acceptance to Contact Lenses in people of your age group. This eliminates a time consuming factor which may be found in fitting other individuals. Sterling's student plan offers a ten per cent reduction to all students who come to Sterling Optical's Contact Lens information center in groups of three or more. To qualify, you need only make an appointment to visit Sterling's Contact Lens Department with two or more of your friends. You and your group will each be given a complete contact lens examination and all of your ques- tions will be thoroughly answered. This is available with no cost or obligation. Should two or more members in your group decide to order Contact Lenses, the student reduction will be in effect. To make arrangements for your Contact Lens enamination, simply telephone and convenient appointments will be made for you. Yours very truly, Dr. ALLEN KANSTOROOM, Contact Lens Specialist. MARCH 20, 1964. To WHOM IT MAY Coxcxxx: Several months ago I purchased contact lenses from the Sterling Optical Company in Washington, D.C. I was given instructions, which I followed very closely, as to how to wear the lenses and was told to report back to Sterling in approximately 30 days for a cheek-up. In the meantime I was experiencing considerable pain when wearing the lenses. I telephoned Sterling several times and told them of the trouble I was having. Their reply was that my complaints were normal and that I should wait the 30 days for the check-up. After wearing the lenses for approximately 2 weeks I experienced sharp, piercing pains in my left eye. I immediately went to the Emergency Room of the Prince Georges Hospital where I was treated, by Dr. George S. Malouf, for extreme abrasions of both corneas. Dr. Malouf continued treatment at his office for approximately 1 month, during which time both corneas showed improve- ment and eventually healed. Dr. Malouf examined both the contact lenses and my eyes. The examinations revealed that there was no risible workmanship defects in the contact lenses and that my vision was not poor enough to warrant the use of contact lenses. Dr. Malouf stated that Sterling should have made me aware of the fact that some people are not suited to wear contact lenses, and that in such cases the patients' money should be refunded. He also said Sterling should have given me immediate treatment when I notified them of the trouble I was having. Serious damage could have been done to my eyes because of Sterling's negligence and lack of professionalism. I feel the Sterling Optical Company was negligent in their practices and have asked them to refund the money I paid for the lenses and also to pay the doctor bills. Dr. Kanstoroom, the man who prescribed my contact lenses, refused any such refund of payments. Dr. Kanstoroom gave me the impression that the Sterling Optical Company is concerned only with making money and PAGENO="0121" OPTOMETRY 117 not in the health of their patients. I believe it is only fair that Sterling should reimburse me for the following expenses: (a) Contact lenses $95. 00 (b) Accessories 5~ 00 (c) Insurance 20.00 (d) Doctor bills 85. 00 (e) Time lost at work 42.00 Total 247.00 Attached is a letter and receipt from Dr. Malouf. Please contact me and/or Dr. Malouf for further information. Your help will be greatly appreciated. Sincerely, WILLIA~r D. WORRALL, 9904 51st Terrace, Coflege Park, Md. This statement is signed by Mr. William B. Worrall, who purchased contact lenses at Sterling Optical Company and was given the neces- sary instructions. As he experienced considerable pain when wearing the lenses he telephoned Sterling a number of times and explained his trouble. Individuals with Optical insisted that he wait for some thirty days. After wearing the lenses for approximately two weeks, he states, "I experienced sharp, piercing pains in my left eye. I imme- diately went to the Emergency Room of the Prince Georges Hospital where I was treated by Dr. George S. Malouf for extreme abrasions of both corneas. Dr. Malouf continued treatment at his office for approxi- mately one month, during which time both corneas showed improve- ment and eventually healed." In an attempt to get some correction from Sterling Optical-his cost in this was $247-he was finally referred to their headquarters in New York. Apparently this system is used by some of the local oper- ators here when a person comes back with a complaint. I only cite this as an example, Mr. Weinmann, and I might say we have a voluminous record on this `type of complaint. Sterling is not the only offender. As a matter of fact, some of the worst cases we have are from some other firms. These cases, of course, are the reason why I became interested in this legislation in the beginning. I am not interested in advancing the case for the doctors of optometry, or the American Optometric Asso- ciation. Nor am I interested in ophthalmologists precisely, because I think they can take care of themselves. Also, I am not interested particularly in your union or the opticians, because you have a job to do. This subcommittee, however, is interested in the care of the eyes of the American people, and that is our only concern. As I say, I want to cite these things to indicate some of the reasons why this subcommittee is concerned. I do believe some of our experi- ences with corporate practices in this field-that maybe the dollar sign became more important than the quality of the treatment. Would you agree with that? Mr. WEINMANN. Not with regard to corporations alone, but if you want to include the salon optometrists, I will go along with you. I think the dollar sign is with the salon operator and the AOA. Mr. ST5K. You don't think it affects the corporation at all? Mr. WEINMANN. In precisely the same way. In fact, perhaps even more so with the salon optometrist because there the salon optometrist PAGENO="0122" 118 OPTOMETRY is himself making the profit from the ghtsses.In the case of a licensed optometrist working for a corporation, he does not get any profit out of the sale of the eyeglasses. Therefore, an employed optometrist is even more likely to tell ~ pci son who comes in that he has no need for eyeglasses if he has no need for eyeglasses because so far as dollar signs are concerned, I think it is even greater. in the salon optometrist area. Incidentally, Congressman, in coiuiection with the contact lenses to which you referred, this is one reason why we have always insisted that ophthalmologists, or optometrists should be present, physically present, when Oontact lenses are inserted and that it is wrong for ophthalmologists to be permitted to write a. prescription and have an optician fill it.. From time to time you will be faced with pressures from opthal- mologists who want to ha.ve a contact lens bill. passed which will per- mit them to merely write a prescription a.nd have an opticia.n fill it. We are opposed to that. We think there should be physical presence. We are int.ere,sted primarily in the public health and welfare as well, and we have always been, and anything tha.t is good for tlm public a.nd for good eye care, our union will support. Anything opposed to it, we will be opposed to. Mr. SIsK. Do I understand you to say you feel the fitting of con- tact lenses should not be done except by a licensed optometrist or an ophthalmologist? Mr. WEINMANN. That is correct. It should not be done on t.he basis of prescription by an opticia.n getting a prescription from either an ophthalmologist or an. optometrist. We think the ophthalmologist should be physically present. In most of the states, as I understand, they now require the ophthalmologist to be present. From time to time in New York we have been faced with that kind of legislation also. New legislation whereby they could skip that step and just write a prescription and have the optician work on the contact lenses. We don't support that. We are opposed to that legislation as being con- trarv to the public interest. Mr. WHITENER. Mr. Weinmann, if you will look at the language on page 2 of the bill, H.R.. 12276, at lines 21,22 and 23: "The `practice of optometry' means * * * (e) the adaptation, utili- zation or furnishing of lenses, prisms or frames for the aid of the hinnan eye." What do you interpret that language to mean? Mr. WEINMANN. That an optometrist has a right of examining an eye, and after examining an eye, to prescribe a proper or appropriate glasses a.nd frames to correct a.ny vision that is correctable by a lens. Mr. WHITENER. Doesn't that try to define optometry a.nd limit it to things in subsection (e) for optometrists licensed in the District of Columbia.? Mr. WEINMANN. When you get into the question of (f), the ada.pta- tion, utilization- Mr. WHITENER. You must be looking at the wrong bill. Mr. WEINMANN. I am looking at H.R. 1283. Mr. HORTON. H.R. 12276 is t.he one you should have. Mr. WEINMANN. Yes. (e). That, as far a-s I `am concerned, is really the optic Ian's function. Certainly adaptation, t.he word "adaptation" PAGENO="0123" OPTOMETRY 119 means filling a prescription; Adapting. Adapting is an optical term for filling a prescription: That is just what an optician does. I don't believe this should be a definition as a practice of optometry because in effect when you do that you are saying that the optician is practicing optometry and he is not. He is practicing opticianry just by doing that. Mr. WHITENER. How do you interpret the word "utilization" as used there? Mr. WEINMANN. It is a very broad word. I really don't know what was intendedby it except that I would say this entire bill is drafted in such a way that it is to the advantage of the AOA membership and to the disadvantage of every other conceivable group of the population. In other wor~ls, there are areas here where there is an infringement of the optician's function. There is an area here which we believe is `an infringement of the ophthalmologist's functions. I haven't mentioned that in my statement here, although I think I did in my more formal statement, which was submitted to you. But, because I believe that the ophthalmologists and the AMA can take very good care of themselves, and I am sure they will pick up all of the items that I am talking about-but, as I say, this whole bill is drafted in such a way as to redound to the advantage of the individual optometrist at the expense of everyone else. For example, in (a) the employment of any objective or subjective ~neans for the examination of the human eye, including its appendages, I think that is going too far. That is encroaching on the field of medicine. I say that because, for example, that would include tA~e glaucoma test. The glaucoma test is administered' with anesthesia usually. I think they have some new electronic means, but generally itis done with anesthesia. I don't believe an optometrist should be permitted to perform a glaucoma~ test but under (a) he would be permitted to do it. This is just another instance of the broad provisions here; all running to the advantage of the optometrist. Maybe I shouldn't blame them for mak- ing a pitch, but as far as the public welfare of the District of Columbia :and its citizens are concerned, that is not this bill. Mr. HORTON. It also provides in (d). that the practice Of optometry is the furnishing of lenses, prisms or frames. Would it be your inter- pretation that the manufacturer of lenses or the manufacturer of eye- glass frames would be included in the definition for the practice of optometry? Mr. WEINMANN. It certainly might be so interpreted. I wouldn't necessarily interpret it that way, hut I think when you use broad words such as "utilization" and "furnishing" you run into the problem of interpretation and there is no telling how broadly it can be inter- preted. I could see that interpretation being given to it and, of course, that is one of the reasons why I don't believe that language should be in there, because it is too broad. Because it encompasses areas or could en- compass areas which are the domain of others. Yet that is described as the practice of optometry. Mr. HORTON. In this connection are you concerned with regard to subsection (4) on page 11, line 8 of H.R. 12276, which has to do with PAGENO="0124" 120 OPTOMETRY the advertising. It would seem to me this is a rather broad prohibition so that a manufacturer, or company which had eyeglass frames, would be restricted under t:hat subsection from advertising. Mr. WEINMANN. It seems to me that subdivision would restrict opticians from advertising also. Mr. HORTON. That is what I am getting at.. * Mr. WEINMANN. And I think that is all wrong. We know that druggists advertise. The newspapers are full of ads by druggists for aspirin or anything else. I see no harm in that. I think that is the American system of competition. It is a business. Mr. FUQUA. Do you have advertising for prescription drugs? Mr. WEINMANN. I think the druggists themselves advertise their products, whatever they may be. Items which are obtainable by pre~ scription may be advertised. Mr. FtTQUA. Does he say you can get phenobarbital a little cheaper at his drugstore? Mr. WEINMANN. I haven't seen advertisements like that myself, but that may be because it is rather difficult to advertise an item which is set forth in a prescription where generic names may or may not be used. The fact is that the druggist per se is not forbidden from advertis- ing, and what is the product in a case of an optician? It is a pair of eyeglasses. It is not any special compound. It is a pair of eyeglasses and there is no reason why an optician shouldn't be able to advertise as far as I am concerned. I see no harm to the public. Mr. WHITENER. Mr. Weinmann, there on page 11, Subsection (4),. line 11, you will note the use of the word "ophthalmic material." What does that term embrace? Mr. WEINMANN. That is about as broad as you can get when you talk about material. I think, Congressman, that your reference to Windex was about as apt a description of ophthalmic material as you could get. I think it could encompass that too. It could encompass almost anything. It is, again, another illustration of how broad this bill is drawn in favor of the optometrists and against anybody else. Mr. WHITENER. Do you think this language in Subsection (4) would be broad enough to prohibit a manufacturer of lenses, or of frames, from advertising in trade journals which might be given to the public or put on display in t.he Library of Congress? Mr. WEINMANN. It may be so construed. I certainly wouldn't want to go out on a limb and say it is impossible to construe that language that way at ail. Ophthalmic material could be anything remotely con- nected with the eye; any material whatsoever. You couldn't find a word broader tha.n "material." Mr. WHITENER. Do you think that makes advertising in a local news- paper a crime, if permitted by the advertising manager of a newspaper, if he causes to be advertised ophthalmic materials? Mr. WEINMANN. I think that is a. terrible possibility. Mr. WmTENER. Or such advertising by a radio station manager? Mr. WEINMANN. That is what this bill says. We would certainly be opposed to anything like that. Yet I think you are quite right. Yet a newspaper would be subjecting itself to criticism if it advertised ophthalmic material. PAGENO="0125" OPTOMETRY 121 Mr. WHITENER. They would be subject to a fine of $500 or $1,000 and imprisonment, under this bill (sec. 8). Mr. HARSHA. In that regard, would a Kleenex to clean off the lens be covered? Mr. WEINMANN. Sure it would, as ophthalmic material. I do not see how you could get around it. You would have to find a narrower range. Mr. WHITENER. I believe this would depend on whether the Kleenex people advertised it was good for cleaning glasses. You might find another paper product. Mr. WEINNMANN. May I add, apparently this bill anticipated that very thing because they did not just say "ophthalmic material", they said "ophthalmic material of any character". So I think you would have to be pretty careful when you switch from one kind of paper to another. Mr. SIsK. Mr. Weinmann, we have been speaking of the use of the word "ophthalmic", and I know the New York law mentions it. The law says "prescribes, provides, furnishes, or establishes prisms", et cetera. Ophthalmic is a rather common term used in all state laws. We appreciate your testimony here this morning and thank you very kindly. Mr. WEINMANN. Thank you for your courtesy. Mr. SISK. The next witnesses this morning will be representatives of the District of Columbia Optometric Society. Dr. Marvin Berlin, President of the Optometric Society, and Dr. Evart F. Warren. If you will take your places at the witness table, we will be happy ~o hear from you. Who is going to speak for the group? STATEMENT OF DR. MARVIN BERLIN, PRESIDENT, OPTOMETRIC SOCIETY OF THE DISTRICT OP COLUMBIA, ACCOMPANIED BY DR. EVART F. WARREN, ARLINGTON, VIRGINIA; WILLIAM P. MacS. CRACKEN, JR., ATTORNEY FOR DISTRICT OF COLUMBIA OPTO- METRIC ASSOCIATION; AND DR. ROBERT G. CORNS, LOWELL, INDIANA, MEMBER, LEGAL AFFAIRS COMMITTEE, AMERICAN OPTOMETRIC ASSOCIATION, INC. Dr. BERLIN. I am, Mr. Chairman. Mr. SISK. Before you begin, would you tell us how many members rare in your organization, whom you represent here and, if available, the number of practicing optometrists you represent. Your full statement will be made a part of the record and then we would appreciate it if you would restrain yourself within the ten- :minute period set aside for witnesses. You may proceed. (The complete prepared statement follows:) STATEMENT OF MARVIN BERLIN, O.D., ON BEHALF OF THE OPTOMETRIC SOCIETY OF THE DISTRICT OF COLUMBIA Mr. Chairman and members of the subcommittee, I am Dr. Marvin Berlin, ~an optometrist practicing in the District representing the Optometric Society of the District of Columbia of which I am President. I appreciate the opportunity to testify in support of revisions in the District of Columbia optometry licensing law. Accompanying me is Dr. Evart Warren, also a practicing optometrist here ~n Washington. As Immediate Past Secretary, District of Columbia Board of PAGENO="0126" 122 OPTOMETRY Examiners in Optometry, Dr. Warren agreed to join me should the Committee have questions dealing with optometry licensing and any difficulties experienced by the Board in enforcing the practice of optometry in the District. The Optometric Society of the District of Columbia estimates that today there are 67 full time practicing optometrists here in Washington for a population,. according to the 1960 Census, of 763,956. In 1924 when the Optometry Licensing Act became law, 92 optometrists registered under the law-92 optometrists for approximately 437,571 people, the 1920 census figure. During a 40 year period,. there are 27% fewer optometrists and 57% more people. The primary reason why the nation's capital fails to attract recent optometry school graduates is the poor environment for professional practice. The newly graduated optometrist holds high ideals and goals on which he wants to build his practice. Prospects for building such a practice here iii Washington amid crass commercialism are dismal. Rather than lower his standards, the young optometrist establishes his practice outside the District of Columbia. It seems to me a sad situation when only two optometrists under the age of 35, the draft age for optometrists, practice optometry in the District today. The out-dated optometry law affords little inducement to practice here. We of the District Optometric Society come to you gentlemen in Congi'ess to up-date that law. The present law allows the Board of Examiners in Optometry to examine ap- plicants prior to licensing, but affords little opportunity for enforcement. The Board can revoke or suspend a license for such extreme things as drunkenness, drug addiction or insanity, but it is almost impossible tO revoke or suspend a li- cense for conducting a shoddy, unprofessional practice. I know of only two con- victions for violation of the optometry. licensing law, and neither of the defend- ants was a licensed optometrist. One of the convictions occurred this past July 25 when the District of. Columbia. Court of Appeals upheld a conviction of practicing optometry without a license in a case relating to adaptation and fitting of contact lenses. Attachment number 1 filed with this statement gives you some background on this case, in the form of a letter to the editor of the Washington Daily News. Need for change in the District's optometry law has been recognized on many fronts. In 1964 the Senate's Special Committee on Aging-after investigating frauds and deceptions affecting the elderly-recommended that the Senate Dis- trict of Columbia Committee. examine the adequacy of present District laws on-" (a) widespread fixed-price advertising for regular glasses and contact lenses; (b) sale of over-the-counter, non-prescription glasses; (c) possible need for greater authority to the District Commissioners for regulation of `the corporate practide of optometry.'" In relation to these recommendations by the Senate Special Committee on Aging, I refer you to a clipping from the Washing- ton Evening Star of February, 1965, which quotes the Executive Director of the District Optometric Society concerning magnifying eyeglasses and the harm they can cause, as brought out in the work of that committee. This is attach- ment 1-A. Last year, the House District Committee requested the District Board of Examiners in Optometry to furnish mor.e information relating to selling of eyeglasses by a local jewelry store. On September 29, 1966, the Federal Trade Commission issued a complaint against the New York Jewelry Company charging~ use of false, misleading, unfair and deceptive acts in violation of Section 5 of the Federal Trade Commission Act. Among the items listed for sale were eyeglasses. In dismissing the complaint, the hearing examiner noted "If Section 5 w-as intended to cover matters of this type, it seems unlikely the Congress would be seeking special legislation to cover some of the practices alleged in the com- plaints." The hearing examiner also stated, " * * * the Federal Trade Commis- sion under Section 5 of the FTC Act does not have jurisdiction to regulate price controls or credit practices in the market place. `~" To give the committee further insight into this particular problem. we are submitting our attachment number 2 which shows, through statement of the charges, the extent to which some commercial firms will go to seek the patronage of the public. Mr. Chairman, optometric vision care should not be auctioned in the market place to the lowest bidder. No health care service should be, whether it be medi- cal, dental, or optometric. Price advertising has no place in the provision of health care. A health care practitioner should derive his income from services rendered for the benefit of the patient * not from mark-up on materials PAGENO="0127" OPTOMETRY 123 furnished. All of us would look with disgust on the advertiser were we to see a half-page newspaper ad offering ~`One Time . Special on Electrocardiograms, just $5.98, this offer good. through Friday only." For several years many of . us optometrists here in the District saved local newspaper ads offering, specials, discount prices and other "bargains',' on eye- glasses and examinations in the hope that the Board of Optometry could do something to prohi~bit them. We finally, stopped collecting those, ads after being told repeatedly that the present law in no. way, regulates such~ practices. At this point I refer you to our attached document number 3, which illustrates the type of advertising to which. I refer. .. . .. . . . . . . The advertisements in the classified telephone directory "Yellow Pages" are equally unbefitting health care services, and I ask that you note the content of ads shown in our attachment, number 4. such statements as "Moderate Prices- We keep our costs low by volume-Eyes Examined-Prescriptions Filled- Lenses Duplicated-Contact Lenses-Children's Eyes Examined-2-Hour Serv- ice," or "Eyes Examined-Glasses Fitted-Budget Terms Available-Discounts to Government Employees, Union Members, Diplomatic and Military Personnel and Families," confuse and frequently..mislead the public. . ` The companies which place such quarter-page directory ads, the largest size sold, sell eyeglasses. Their term "Eyes Examined" *pertains only vaguely to. the term "Vision Care". The so-called examinations they make are called "quickies" and rarely take more than 15 minutes, sometimes as few as five. minutes; a complete professional vision examination requires at least 45 minutes. Mr. Chairman, this business of the quickie eye examination from the unethical~ optometrist in the employ of a corporation doing extensive price advertising. deserves special attention. .. Let us assume that you, or any member. of the Subcommittee or members of their families might go to one of these~ establishments. What would `you en- counter? What meaningful. lessons might you draw from such .thi experience? First, you would be dealt with not as a patient but as a customer, usually a. poor-cousin customer. None. of the amenities we routinely expect from the physician, dentist, `or ethical optometrist will you receive. Second, there is little or no attempt,' really no time in this horribly hurried environment, to take a case history-a' history that may be vitally `significant~ to the prescription written or referral of the patient `who might have eye disease or other problems. ` . , , :`. , ` Third, there is ..no effort, again for lack of time, to examine the exterior of the eye for evidence of such common, often serious' diseases as conjunctivitis (a common form is the.contagious pink eye) orfor thë'pterygium, a growth on the outer surface of `the eye that can,' in extreme case, actUally obscure vision.' Fourth, and this is the most monstrous omission of all in the "quickie" eye exam-it is unlikely on ophthalmoscopy will be performed. This is the instrument most frequently used by optometrists and allied health professionals to examine the interior of the `eye for evidence of eye'or systemic disease. This one omission is enough to make a mockery of mod'ern eye care. ` , Fifth, the use of the retinoscope, an instrument for the objective measurement of `refractive error, is usually slighted' if not scorned completely. Again, the pro- cedure takes time. Time is one thing the employed "quickie" optometrist cannot~ give to `the person asking for ~his services. Such an optometrist is forced,' by `his employed status, to ignore the classic instruments of the eye examination: Nor' can he utilize such primitive though ~still often valuable procedures involv'ing trial lenses and the trial frame. All these, for precision, confirmation of initial' judgments, efficiency and validity of the ordered prescription, are not available to the' optometrist `who must be in a hurry, in order to make. a profit by selling. more eyeglasses.. ` ` ` . , ` .. . Sixth, a survey in April 1967 by the office of the Northern Virginia and Distriet of Columbia Optometric Societies disclosed that only 12 optometrists of 140' in Metropolitan Washington . . . or less than 10% . . . are in the category `of the unethical. Of these 12 unethical practitioners, whom your bill would touch and change in their mode Of practice, none were using up-to-date, sophisticated `and reliable instrumentation for the measurement of intraocular pressure within the eye, associated with dread eye disease glaucoma. Still again, Mr. Chairman, by virtue of how they practice optometry, where they practice optometry and `for whom they practice optometry-not for the patient, but. for the employer-they simply do not have time to apply these procedures which are essential for con-" tinued good vision and healthy eyes of their patients. PAGENO="0128" 124 OPTOMETRY Last, the optometrist I am describing most often cannot, due to his cor- porate relationship, refer his patients for other needed professional help. To my thinking. . . and I hope you will agree. . . he has no motivation, professional or otherwise, to send the child with a reading disability to someone-optometrist or another-who can help the child. And what greater problem, social or eco- nomic, do we have today than a child with a reading disability? Mr. Chairman, an optometrist whose sole motivation is to make his salary by selling a pair of glasses makes no contribution to the visual welfare of the community. As to the glasses these "discount" operations sell, there is a strong chance that something will be wrong with them. While that "something" could be minor eiiough to make little difference to the wearer, it could be enough so that glasses would aggravate rather than correct a vision problem, or even create totally new problems which in extreme cases could result in serious permanent damage to vision. The prescription may not be filled accurately. For example, In a pair of $7.25 glasses, while one lens may meet prescription specifications, the other lens may be so inaccurate that it fails to give the needed correction. Additionally, the lenses themselves frequently are other than first quality. Cut-rate operations often rely on inferior foreign-made lenses or on rejects and second or third-quality American-made lenses which can have various defects which may seriously affect light transmission. Anyone operating as an eyeglass merchant simply cannot devote more than minimal time to fitting the eyeglasses. A.s stated in one of the "Yellow Pages" ads, "We keep our costs low by volume." And volume depends on heavy traffic and fast turnover. A proper fitting cannot be accomplished in the minute or two allotted by the "volume" operator. The optical center or main point of focus on the lens, must be positioned properly in the frame for subsequent positioning to the eye. If either fitting is careless, the eyeglasses could fail to provide full benefit even though the lenses might meet the prescription. I should also note that cheap, inferior frames lose shape rapidly. In their effort to keep costs down, eyeglass discounters cut costs wherever possible, in- cluding the use of cheap and inferior frames. If glasses slide down your nose, you no longer see through the correct, intended optical center without strain. Should frames need adjusting or servicing, the discounter frequently cannot take the time to provide such service. In fact, it is not unsuail for the patient to find that the optometrist employed by a firm of this type has moved on * * * either to another discounter or into his own practice somewhere * * * and that patient's records have either been removed from the location where the original examination was done, or that the records have been "lost" or "mislaid" so that another examination is necessary. I'd like to call your attention at this time to attachment number 5. which will give you some idea of the quality of materials frequently purchased by eyeglass merchandisers. You will note that some of these materials are available to the eyeglass peddler at 300 a pair, when purchased in lots of 100 pairs. The suppliers of these ophthalmic materials are so sure these factory seconds are defective, they say "Guaranteed usable or replaced"-which obviously means that if the particular pair fitted to a patient's face is so unsatisfactory that patient com- plains, the lenses can be returned and some with less noticeable defects will be supplied to replace them. The cut-rate operator's objective is to sell glasses, not to provide service. Serv- ice is minimal at best. Optometric care includes more than refractive services. It includes examination of the eye for detection of pathological conditions. It includes visual training. The commercialist cannot afford to offer visual train- ing services because they require time which he can ill afford to spend if he is to maintain his high-volume business. In recent years research has shown that visual training can lessen some vision problems or eliminate them entirely. Not infrequently school children experience reading disabilities many of which can be overcome through visual training. Considerable attention is currently being given by various health care practition- ers and educators to dyslexia, a condition which causes letters or words to ap- pear backwards to the reader. I know of no way the discount operator could offer visual training services even if he were qualified to offer them. The mer- cantile setting does not lend itself to professional services. Flashing signs indi- cate selling; not servicing in a professional manner. PAGENO="0129" OPTOMETRY 125 Before her marriage, Luci Johnson Nugent worked with a local optometrist from whom she had received visual training. I can't imagine that her father would have approved of her working for an optometrist located in a retail store ablaze with neon lights offering "discount price" glasses. The "spec peddler" with his horse and buggy who travelled from town to town, a common sight in America in the late 1800's, belongs to history. The public has a right to expect contemporary vision care procedures just as it ex- pects modern techniques and practices in other areas of health care. Unfortunately the specs peddler did not go out with the 19th Century, he joined the 20th Century migration to the large cities. To the public's detriment, he merely changed his operation from a buggy to an attic or other low rent location and continued his eyeglass selling practices. The permanent spec ped- dler in many cases prospered because the unsuspecting public possessed little knowledge of what constituted proper vision care. The object of the specs peddler, in whichever century he `might operate, re- mains the same-sell glasses. The growing promotion of health benefits to un- ions provided the spec peddler additional sales outlets. Unions, attempting to provide additional services to their members, made arrangements with former spec peddlers (now termed optical companies or commercial optometrists) to "purchase complete single vision glasses at one low price of $8.00 and complete bifocal glasses for $13.00 . . . you will have your choice of more' than 100 `styles, shapes and colors to choose from. Phi's should appeal to the ladies * * * glasses * * * are comparable and in many cases superior to those selling else- where for $25.00 `to $45.00." The preceding is taken from a letter written on the stationery `of a Chicago, Illinois, `affiliate of the United Auto W'orkers Union. See attachment #6. The District Optometric Society frequently receives complaints about optom- etrists working in the types of corporate enterprises I have described. To give you some idea of the complaints we receive, I am submitting attachment number 7. Other similar complaints from victims of these entrepreneurs were delivered for the records of this Committee following last year's hearings on HR. 12937. There are those in opposition to this bill who wish to claim that it will inhibit "third party" practice of optometry and thereby be injurious to those relying upon third parties for their vision care. Mr. Chairman, the only prohibitions directed against "third parties" by this bill are directed against corporations or firms which would abuse the practice of optometry by making an ill-gained profit from the sale of merchandise in the guise of caring for the visual needs of the population. Third parties such as hospitals, clinics, group health practices, non-profit health services, health expense indemnity corporations, agencies of government or em- ployers providing optometric services solely to their employees are exempt from this proposed Act. The bills which you are considering do not prevent the employment of optom- etrists. They would only prevent such employment where the primary motive is profit from the sale of eyeglasses. They do not prevent union welfare funds and centers from employing the services of optometrists providing the motive for employment is that of providing vision care services rather than a profit from the sale of products. There are also arguments that a prescription would be required for the pur- chase of optical instruments such as binoculars, microscopes and telescopes. This Act does not regulate the sale of these devices. It regulates ophthalmic materials, not optical instruments. There are a number of union optical plans operating across the country which are thought to be operating on a not-for-profit basis and which, we understand, are in fact franchises from an office in New York State. In these plans, optom- etrists serve in somewhat the same "captive" relationship as do those optometrists who are employed by, or are under contract to, commercially-motivated retailers which we have described as operating here in the District of Columbia. The work- ing men and women of the District are, we believe, fortunate in the fact that none of the so-called "union optical plans" are active here, to the best of our knowledge. We have every reason to be fearful that union members in our city might be lured into seeking such franchised operations in the future, believing innocently that lower cost vision care is available through such a means. Lower cost in this instance means lowest-quality service and materials, and we believe this to be absolutely unconscionable in the health care field. 82-754-67-----9 PAGENO="0130" 126 OPTOMETRY The general aim of any legislation proposed for the improvement of the prac- tice of optometry in the District of Columbia should be to further protect the public against ignorance, incapacity, deception and fraud in connection with the care and preservation of our most priceless possession * * * the God-given gift of vision. While the 43-year-old District of Columbia Optometric Act has remained unchanged since its original date of enactment in 1924, other states have regu- larly enacted improving amendments. Such a state is New Jersey. Dr. E. C. Nurok, a veteran member of the New Jersey Board of Optometric Examiners and Chair- man of the Advisory Law Committee of the International Association of Boards of Examiners in Optometry has supplied me with the following historical informa- tion concerning the legal development of optometry in his state, and I will quote from it: "The first law licensing optomerists was enacted in Minnesota in 1902. Our law has been amended many times and the standards of practice now required by act of our legislature are higher than those of any other profession in the state, and, as far as 1 have been able to ascertain, higher than those of any profession in all fifty states. "In a matter heard in the Appellate Division of the Superior Court of New Jersey, the New Jersey State Board of Optometry vs. Hilda Koenigsberg, Judge Francis. in referring to the progress of optometry in New Jersey, stated, `The history of this legislation portrays a progressively broader concept of optomet- ical activities.' When the act was adopted in 1914, the practice was defined to be `the employment of any means, other than the use of drugs, for the measurement of vision and the adaptation of lenses for the aid thereof.' L 1914, e. 222 § 1. In 1919, the definition was amended to be `the employment of objective and subjective means for the examination of the human eye for the purpose of ascertaining any departure from the normal, measuring its powers of vision, and adapting lenses for the aid thereof.' L. 1919, c. 59, § 1. "The restriction `other than the use of drugs' was removed more than 40 years ago. "Judge Francis added `then in 1932 the present comprehensive statement as to what shall be deemed the practice of optometry was included.' L. 1932 e. 75 § 1. The right to use of drugs was permitted for examination and diagnosis. "In subsequent years, the Optometry Law was amended to prohibit all com- mercialism, such as neon signs, large signs, the display of glasses, advertising, corporate practice, practice in a mercantile establishment etc." This description of developments in New Jersey has not been paralleled in the District and many of the problems resolved by amending the optometry law in New Jersey continue in the District. We have made some gains, however, by voluntary action. Mr. Chairman, I am proud to report that another committee of our optome- trists is responsible for the formation of a "third party" organization to provide optometric services. This is known as the Optometric Center of Metropolitan Washington. It is a not-for-profit corporation through which members of the Opto- metric Society provide their services to the indigent and poor of the nation's capital. The Center's Board of Trustees is comprised of leading members of the community, including leaders from organized labor who contribute not only their valuable time in guidance and supervision, but in many cases provide funds for purchase of ophthalmic materials required to care for patients of the Center. I'm particularly glad to report that some of the larger donations have been made by the local Teamster's Union, a group w-hich has a prepaid vision program spon- sored by our Society through the not-for-profit corporation known as Vision Care Services. Another large contributor is the Distict of Columbia Public Health De- partment which contracts with the Center to provide services to a number of its beneficiaries. A news story about the opening of the Optometric Center of Metro- politan Washington is shown on attachment 9. When I. Philip Sipser, counsel for United Optical Workers Union Local 408 of the International Union of Electrical Workers, AFL-CIO, testified on behalf of that group in favor of S. 260, the "Medical Restraint of Trade" bill, his testi- mony closed with this statement: "~ * we see the Hart Bill as a necessary measure limiting doctors, including ophthalmologists, to the practice of medicine, and as a measure dampening their ardor for lucrative earnings in commerce by medical shortcuts, use of untrained personnel, business sales and otherwise. We urge that the bill be reported out favorably and enacted without delay." While Mr. Sipser did not mention the practice of optometry, we feel the same restraints PAGENO="0131" OPTOMETRY 127 should apply to its practice in the District of Colmnbia and we hope the United Optical Workers Union will join us in support of the bills you are considering to accomplish these purposes. Members of the Optometric Society ask that you bring our licensing law up to date. We ask you to recognize the developments and advances made in vision care since enactment of the existing 1924 licensing law. Some members of our Society will h'ave to modify their mode of practice when this bill is enacted. We have formed a committee to help the handful of optometrists who are currently employed in commercial establishments to set up practice elsewhere in the Dis- trict where their professional services are badly needed. We in optometry have policed our own insofar as the present law permits. Governmental intercession is now needed for the regulation of the practice of optometry if the residents of the District are to receive the necessary protection from the unscrupulous to' which they are entitled. The Optometric Society of the District of Columbia urges you to pass this legislation. [From the WTashington Daily News, Aug. 10, 1967] A CASE OF EYE TROUBLE I am deeply grateful to The Washington Daily News, Clare Crawford, the police and `the Board of Optometry for your efforts in getting a court ruling making it illegal for opticians to fit contact lenses. Even if the ruling is set aside, this publicity may alert the public to the danger. I would like to set forth my experience. Because of a poorly fitted lens, I am without appreciable sight in my right eye and am in almost constant pain from ensuing surgery and effects of the injury. I did not shop for an optician. I was sent by a prominent ophthalmologist to a firm that employed the doctor's wife's niece as a technician. This woman made the Keratomneter reading. Documented facts show that her training consisted of wearing lenses and working under or with a man who was in charge of the office. This man was himself untrained. Unfortunately, one cannot always be sure that one is safe when under the aegis of the medical profession. I won my court case against the fitters of the contact lenses and can understand the jury bringing in a "Not Guilty" verdict against the doctor. They, understandably, were overwhelmed by his contemnpo- raries filing in en masse to put the stamp of approval on his conduct, admitting that until a short time before testifying they had not seen or heard of me. There are other unsavory factors in this case which are shocking. I sent all pertinent information concerning the case to the AMA and asked that they check a complaint which I then filed separately with their office. I also sent personal correspondence to and from doctors showing disclosure of privi- leged information. I found that patients have lost, if they ever had it, the right to dissent. VICTIM. [From the Washington Daily News, July 26, 1967] Reporter's test case OPTICIANS CAN'T FIT CONTACTS, COURT RULES The D.C. Court of Appeals yesterday effectively barred opticians in the District from fitting contact lenses, a practice some local opticians even advertise. Ruling in a case brought to court by Washington Daily News reporter Clare Crawford, the appeals court skid opticians may grind or fabricate a contact lense, but must leave the sensitive fitting operation up to licensed optometrists or opthamologists. In January of 1900, Mrs. Crawford was fitted for a pair of contact lenses by Norman Fields, 42, of Embassy Opticians, 1301 Connecticut-av nw. He was later arrested by police and charged with violating the District's optometry code. Mr. Fields was convicted by Judge Harold Greene in May, 1966, but he ap- pealed. Yesteday the three-judge appeals court upheld his conviction. The Appeals Court found that when Mr. Fields fitted Mrs. Crawford he per- formed operations far exceeding the mechanical filling of a prescription from a licensed eye doctor. The court said `that "placing a foreign object on the cornea "could have conse- quences far more serious than simply prescribing or adaptive eye glasses worn PAGENO="0132" 128 OPTOMETRY quite far from the eyeball. Therefore, the court said. contact lenses should only be fitted by those trained and licensed to do it properly. Mrs. Crawford was working with the police and the Board of Optometry when she made her first approach to Mr. Field's store. As a result of his conviction and yesterday's Appeals Court ruling, police will have a clear-cut basis to arrest opticians who agree to fit contact lenses. [From the Evening Star, Feb. 1, 19551 TIGHTER OPTOMETRY LAW URGED IN SENATE RKPOET (By William Grigg) ~yeglasses are for sale by dime stores here and laymen own and operate optometry firms, a Senate subcommittee on fraud said in. a report today. It suggested that the District look into tightening its laws concerning these two practices and also look into a bar on the advertising of eyeglasses and con- tact lenses by price. Horace White, executive director of the District Optometric Society, agreed today that the laws here are lax. He said the same criticism can be made of Maryland, but that Virginia's laws are tighter. White said the society's grievance committee receives most of its complaints from patients who have gone to firms here that advertise and are owned by laymen. EXEMPTION A55AThED Magnifying eyeglasses-what the trade calls "glazed goods"-are sold both here and in nearby Maryland, White said. Their exemption from optometric regulations, he said, is a hangover from "horse-and-buggy" days. The Subcommittee on Frauds and Misrepresentations Affecting the Elderly brought the situations into focus in its report today. It suggested that the Senate District study the problem. White said a new law was submitted to the District Commissioners about three years ago. He said the Corporation Counsel asked that the changes be made as amendments, rather than as a whole new law. The District Board of Examiners in Optometry is now working on these amendments, White said. CITES OBJECTION The primary objection to laymen owning optometry firms is that they are guided by profit motives, Dr. Maurice G. Poster, chairman of the contact lens committee of the American Optometric Association, said. "A person who depends for his livelihood on the sale of merchandise is un- likely to give the patient the attention which is required to instruct and supervise the patient," Dr. Poster said. He said that in the District and all 50 States, only optometrists and physi- cians are licensed to prescribe contact lenses. "In actual practice, however," he said, "unlicensed and untrained and un- supervised laymen are fitting a staggering number of patients. We think this constitutes a `health hazard to the public." Other optometry officials called the District's law "antiquated" and "lax-" United States of America Before Federal Trade Commission [Docket No. 8715] IN THE MATTER OF VENT-AIR CONTACT LENS LABORATORIES, INC., A CORPORATION, AND LAWRENCE LEWISON, MARVIN SHORE AND SHIRLEY LEwIsoN, INDIVIDUALLY AND AS OFFICERS OF SAID CORPORATION. COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act and by virtue of the authority vested in it by said Act, the Federal Trade Commission, having reason to believe that Vent-Air Contact Lens Laboratories, Inc., a corporation, and Lawrence Lewison. Marvin Shore and Shirley Lewison, individually and as officers of said corporation, hereinafter referred to as respondents, have violated the provisions of said Act, and it appearing to the Commission that a proceeding PAGENO="0133" OPTOMETRY 129 by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: Paragraph one: Respondent Vent-Air Contact Lens Laboratories, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York, with its principal office and place of business located at 76 Madison Avenue, in the City of New York, State of New `York. Lawrence Lewison is President, Marvin Shore is Controller and Shirley Lewison is Treasurer of the corporation respondent. These individuals direct, formulate and control the acts, practices and policies of the corporate respondent, including those hereinafter referred to. Their business address is the same as that of the corporate respondent. Paragraph two: Respondents are now, and for some time last past have been, engaged in the manufacture, sale and distribution of contact lenses under the name Vent-Air Contact Lenses. Respondents distribute said contact lenses through wholly owned outlets and through franchised outlets. Contact lenses are designed to correct errors and deficiencies in the vision of the wearer, and are, devices, as the term "device" is defined in the Federal Trade Commission Act. Paragraph three: Respondents have caused and now cause the said devices, when sold, to be transported from their place of business in the State of New York to purchasers thereof located in various other states of the United States and in the District of Columbia. Respondents maintain and at all times men- tioned herein have maintained, a course of trade in said device in commerce as "commerce" is defined in the Federal Trade Commission Act. The volume of business in such commerce has been and is substantial. Paragraph four: In the course and conduct of their said business, respondents have disseminated, and caused `the dissemination of, certain advertisements concerning the said devices by the United States mails and by various means in commerce, as "commerce" is defined in the Federal Trade Commission Act, in- cluding, but not limited to, advertisements inserted in newspapers, magazines and other advertising media, for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase of said devices; and have dis- seminated, and caused the dissemination of, advertisements concerning said devices by various means, including but not limited to the aforesaid media for the purpose of inducing and which were likely to induce, directly or indirectly, the purchase o'f said devices, in commerce, as "commerce" is defined in the Fed- eral Trade Commission Act. Paragraph five: Among and typical, but not all inclusive, of the statements and representations contained in said advertisements disseminated as herein- above set forth are the following: "a new contact lens !" "VENT AIR IS EVERYWHERE !" ". . . For today you'll find Vent-Airs available-in authorized offices only-in more than 85 `cities in the `United States, `Canada, Mexico and other foreign countries !" "Every pair of Vent-Airs is registered at the `laboratory for your `lifetime pro- tection. In ease of loss, duplication or adjustment, this permanent prescription record permits the Vent-Air Laboratory to be of immediate `service . . . depend- able service that's available in offices the world over !" "So whether you winter in Florida, summer in `Canada or move to `Honolulu, your Vent-Air Guarantee Card is your `key to this exclusive `lifetime, worldwide service . . . at no extra cost !" "Now Vent-Air's No-Ri~k plan lets you Wear your own prescription lenses be- fore you're obligated to take them." PROFESSIONAL SEIIVIOES AGREEMENT "Vent-Air Grooved Contact Lenses are guaranteed to be optically perfect and precision `ground. The `fitting office below agrees to provide all services necessary to the accurate fitting of sai'd lenses and their comfortable, satisfactory wear; and the `fee fixed above [the cost o'f the lenses] will cover all additional fitting, adjustment. etc. which may become necessary to insure satisfaction to `the patient mentioned herein. Prescription changes will be made to the original lenses at no charge." You've asked: "How often should my lenses be checked?" PAGENO="0134" 130 OPTOMETRY A very good question indeed, for often no matter how comfortable they may be or how well you may be seeing with your ~en'ses, changes of which you are not aware may have taken place. What kind of changes? Changes in your eye's curvature, for one thing, which appear not to affect your immediate comfort (because you're so adjusted to your lenses) yet which require that your len'ses he reshaped. And what a difference when they're refitted properly, how much better they feel! Normal wear and tear on your lenses-due to handling, dropping, rubbing, *residue accumulation and normal eye secretions. Lenses become scratched, marred, and their clarity is dimmed-you're `so accustomed to it you com- pletely overlook it. except perhaps for a vague feeling of eyestrain. But once they're repolished and cleared up, what a relief! . . . everything's so much brighter it's as though a curtain had lifted! And of course changes in your optical prescription: An increased `difficulty in reading, because your lens prescription may be a bit strong for you now (your eyes sometimes improve with wearing lenses)-a simple reduction in strength will add a great deal to reading ease. A normal onset of astigmatism w-hich `can be remedied by `a change in your lens prescription. A `seeming increase of late in sensitivity to `light, of extra `discomfort in a confined, smoke-filled room. Tinting your lenses may be the answer. A heightened sense of strain and tiredness, or annoying sleepiness when doing `concentrated or close viewing, sewing, knitting or even watching tele- vision-due to needing more lens help or better muscular coordination. Recurrent headaches, eye aches or dizziness, otherwise unexplainable, and an inability to keep things in focus, definitely pointing to the need to verify your prescription. Unwarranted smarting or tearing which may be your eyes' reaction to excessive strain, or indicate hidden eye changes important to uncover. Some blurring or haziness in your distance viewing which can be cleared ~ip by simply regrinding your lenses to a stronger prescription. And other eye changes, some normal and some abnormal, which may be related to your general health and require a change in lens correction. All these are changes your lenses may need which can add greatly to your enjoyment of them and which are important for your better eye health. That's why the answer to your question is: "At least once `a year and preferably every six months." Most of these changes are covered by your Vent-Air Laboratory Guaranty, providing for no laboratory charge for prescription changes to your lens. But an important condition of this guaranty is that, for your own protection, you must have your eyes examined and your lenses checked at your Vent-Air office at least once a year. Otherwise the guaranty is cancelled. So, for the sake of your eyes' better health and your greater lens comfort, if it is almost a year since your last eye and lens check-up, make your appoint- ment now. Don't lose your Vent-Air Guaranty by putting it off! VENT-AIR GUARANTY CARD "This card when presented at any office where Vent-Air lenses are dispensed entitles you to lifetime service on your Vent-Air lenses." Paragraph six: Through the use of said statements and representations, and others similar thereto not specifically set our herein, respondents have repre- sented and are now representing directly and by implication: 1. That Vent-Air contact lenses are a new or recent discovery or develop- ment in contact lenses. 2. That Vent-Air contact lenses and services are available to the con- s~iming public in Vent-Air offices located in 85 cities throughout the United States and in offices in many foreign countries throughout the world. 3. That, without incurring any additional charges or fees, a purchaser of Vent-Air contact lenses is entitled to repair of, or services on, said lenses due to changes in eye curvation, normal wear and tear due to handling, dropping, rubbing, residue accumulation, marring, scratching, and changes in optical prescription. PAGENO="0135" OPTOMETRY 131 4. That respondents' guarantee or Professional Service Agreement given to purchasers of their contact lenses and (a) issued prior to 1964 (herein- after referred to as the "old" guarantee or agreement) is not subject to any conditions or limitations, or (b) issued from 1964 to the present (hereinafter referred to as the "new" guarantee) is subject only to the limitations or condition that purchasers of Vent-Air contact lenses have their eyes ex- amined and their lenses checked once a year; further, that all offices where respondents' contact lenses are available honor either guarantee without any charges to purchasers of said lenses. 5. That prospective purchasers of contact lenses can wear or use Vent- Air contact lenses made to their own optical prescription for an unlimited period of time to determine their suitability and can do so without incurring any charge or obligation to take or pay for the lenses under respondents' "no-risk plan". 6. That their "no-risk plan" and other offered services provided by them are exclusive with respondents in that no other seller of contact lenses has such a plan or provides the same services. Paragraph Seven: In truth and in fact: 1. Vent-Air contact lenses are not a new or recent discovery or develop- ment in contact lenses; they have been on the market for more than 10 years. 2. Vent-Air contact lens offices owned by respondents are located in less than 40 cities in the United States; franchised offices are located in less than 25 cities in the United States. 3. The owned and franchised offices do not all offer or adhere to the state- ment and representations made in respondents' advertisements concerning lens service and repairs; many offices impose varying fees and charges on the purchasers of Vent-Air contact lenses who return to have lenses serviced or repaired. 4. All of the offices where respondents' contact lenses are available do not honor either the "old" guarantee or agreement or the "new" guarantee. Many offices impose charges for any services or repairs rendered under the guarantee, as well as charging previously undisclosed fees for eye ex- aminations necessary to avoid cancellation of the guarantee; further, any and all guarantees given to purchasers of Vent-Air contact lenses fail to clearly and conspicuously disclose (a) the full nature and extent of the guarantee, (b) all material conditions or limitations which respondents impose, and (c) the manner in which respondents will perform thereunder. 5. There is a fee for examining the eyes of a prospective purchaser of Vent- Air contact lenses and grinding lenses to the proper optical prescription; trial or use of the contaOt lenses is restricted to brief periods of time and only in respondents' offices during times when such offices are open. 6. The services performed by respondents for purchasers of Vent-Air con- tact lenses are not exclusive with respondents; they are services usually and customarily offered by other sellers to purchasers of contact lenses. Therefore, the advertisements referred to in Paragraph Five were and are misleading in materilal respects and constituted and now constitute, "false advertisements" as that term is defined in the Federal Trade Commission Act; respondents failure to abide by the terms of certain of their guarantees con- stitutes unfair and deceptive acts and practices within the meaning of Section 5 of the Federal Trade Commission Act. Pai~agraph eight: The dissemination by the respondents of th~ false `adver- tisements and their failure to `abide by the terms `of certain of their guarantees, as aforesaid, constituted, `and now constitutes, unfair and deceptive acts and practices in commerce, in violation of Section 12 and 5 of the Federal Trade Commission Act. Wherefore, the premises considered, the Federal Trade Commission, on this 3rd day of October, A.D., 1966, issues i'ts complaint against said respondents. NOTICE Notice is hereby given to each of the respondents hereinbefore named that the 14th day of November A.D. 1966, at 10 o'cl'ock is hereby fixed as the time and Federal Trade Commission offices, 1101 Building, 11th & Pennsylvania Avenue, NW., Washington, D.C., as the place when and where a `hearing will PAGENO="0136" 132 OPTOMETRY be had before a hearing examiner of the Federal Trade Commission, on the charges set forth in this complaint, at which time and place you will have the right under `said Act to appear and show cause why an order should not be entered requiring you to cease and desist from the violations of law charged in this complaint. You are notified that the opportunity is afforded you to file with the Commission an answer to this complaint on or before the thirtieth (30th) day after service of it upon you. An answer in which the allegations of the com- plaint are contested shall contain a concise statement of the facts constituting each ground of defense; and specific admission, denial, or explanation of each fact alleged in the complaint or, if you are without `knowledge thereof, a statement to that effect. Allegations of the complaint not thus answered shall be deemed to have been admitted. If you elect not to contest the allegations of fact set forth in the complaint, the answer shall consist of a statement that you admit all of the material allega- tions to be true. Such an answer shall constitute a waiver of hearings as to the facts alleged in the complaint, and together with the complaint will provide a record basis on which the hearing examiner shall file an initial decision con- taining appropriate findings and conclusions and an appropriate order disposing of the proceeding. In such answer you may, however, reserve the right to submit proposed findings and conclusions and the right to appeal the initial decision to the Commission under Section 3.22 of the Commission's Rules of Practice for Adjudicative Proceedings. Failure to answer within the time above provided shall be deemed to con- stitute a waiver of your right to appear and contest the allegations of the com- plaints and shall authorize the hearing examiner, without further notice to you, to find the facts to be as alleged in the complaint and to enter an initial decision containing such findings, appropriate conclusions and order. The following is the form of order which the Commission has reason to be- lieve should issue if the facts are found to be as alleged in the complaint: It is ordered that respondents Vent-Air Contact Lens Laboratories, Inc., a corporation, and its officers, and Lawrence Lewison, Marvin Shore, and Shirley Lewison individually and as officers of said corporation, and respondents' repre- sentatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of contact lenses, do forthwith cease and desist from: 1. Disseminating, or causing the dissemination of, any advertisement by means of the United States mails. or by any means in commerce, as "commerce" is defined in the Federal Trade Commission Act, which advertisement represents directly or by implication that: (1) Their Vent-Air contact lenses are a new or recent discovery or develop- ment. (2) An examination, preparation and fitting of contact lenses to the optical prescription of a prospective purchaser of contact lenses is made without any cost or obligation on the part of said prospective purchasers; or that prospective purchasers may adequately try or use the contact lenses on a trial basis before purchasing the lenses. (3) Services and repairs on the contact lenses are available without cost at all of respondents' owned and/or franchised offices to purchasers of re- spondents' contact lenses. (4) Any of their contact lenses are guaranteed or that purchasers of contact lenses are guaranteed any services or repairs on their contact lenses without clear and conspicuous disclosure of: (a) the full nature and the extent of the guarantee. and (b) all material conditions or limitations in the guarantee which are imposed by the guarantor. and (c) the manner in which the guarantor will perform thereunder. (5) The services performed by respondents for purchasers of their con- tact lenses are exclusive with. or available only from respondents. II. Disseminating, or causing the dissemination of, any advertisement by means of the United States mails, or by any means in commerce. as "commerce" is defined in the Federal Trade Commission Act. which misrepresents the num- ber of offices owned or operated, the number of offices where service can be PAGENO="0137" OPTOMETRY 133 obtained by purchasers of respondents' contact lenses, or the nature and extent of the services offered by any office owned or operated or franchised. III. Disseminating, or causing to be disseminated, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the pur- chase of respondents' product, in commerce, as "commerce" is defined in the Federal Trade Commission Act, any advertisement which contains any of the representations or misrepresentations prohibited in Paragraphs I and II hereof. It is further ordered that respondents Vent-Air Contact Lens Laboratories, Inc., a corporation, and its officers, and Lawrence Lewison, Marvin Shore, and Shirley Lewison individually and as officers of said corporation, and respondents' representatives, agents and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of contact lenses or other products in commerce, as "commerce" is defined in the Federal Trade Commission Act, to forthwith cease *and desist from failing to perform any and all services, repairs or prescription changes which purchasers of respondents' contact lenses are entitled to by virtue of representations made by a Professional Service Agreement or any guarantee given heretofore or here- after to said purchasers at or contemporaneous~ with the time of their purchasing respondents' contact lenses. It is further ordered that respondents named herein shall mail copies of this order to all franchisees, licensees or distributors of respondents' products and/or services and that all of respondents' present and future franchisees, licensees or distributors shall be required to agree in writing that they will abide with the terms of this order as a condition to becoming or continuing with respondents as franchisees, licensees or distributors. In Witness Whereof, the Federal Trade Commission has caused this, its com- plaint to be signed by its Secretary and its official seal to be hereto affixed at Washington, D.C., this 3rd day of October, 1966. By the Commission. [SEAL] JOSEPH W. SHEA, Secretary. United States of America Before Federal Trade Commission [Docket No. 8715] In the Matter of VENT-AIR LENS LABORATORIES, INC., ET AL. ORDER AMENDING COMPLAINT Pursuant to the motion filed by counsel supporting the complaint to amend the Complaint herein so as to correctly name the corporate respondent, and, It appearing that the correct name of the corporate respondent is Vent-Air Lens Laboratories, Inc., instead of Vent-Air Contact Lens Laboratories, Inc., as erroneously stated in the complaint issued on October 3, 1966, Accordingly, It is ordered that said Complaint be amended so as to designate the corporate respondent ~y its correct name, Vent-Air Lens Laboratories, Inc. JOHN B. POINDEXTER, Hearing Ewarniner. In the United States District Court for the District of Columbia BENaAMIN D. RITHOLZ, SAMUEL J. RITHOLZ, MORRIS I. RITHOLz, FANNY RITHOLZ, SYLVIA RITHOLZ, SOPHIE RITHOLZ, ANNA BEDNO AND JACOB BEDNO, A PARTNER- SHIP T/A DR. RITHOLZ & SONS Co., 1148-1100 W. CHICAGO AVE., CHICAGO 22, ILLINOIS, PLAINTIFFS. V. LEWIS H. KRA5KIN, 900 F STREET, N.W., WASHINGTON, D.C., REX B. SHELBY, 1342 F STREET, N.W., WASHINGTON, D.C., DISTRICT OF COLUMBIA BOARD OF OPTOME- TRY, AN AGENCY OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND DISTRICT OF COLUMBIA OPTOMETRIC ASSOCIATION, A CORPORATION, 900 F STREET, .NW., WASHINGTON, D.C., DEFENDANTS. PAGENO="0138" 134 OPTOMETRY [Civil Action No. 3179-51] COMPLAINT 1. The plaintiffs, Benjamin D. Rithol,z. Samuel J. Ritholz, Morris I. Ritholz, Fanny Ritholz, Sylvia R.itholz, Sophie Ritholz, Anna Bedno and Jacob Bedno, a partnership t/a Dr. Ritholz & Sons Co., are citizens of the United States and resi- dents of Chicago, Illinois, and bring this action against the defendants, Lewis M. Kraskin, Rex B. Sheley, District of Columbia Board of Optometry. an agency of the Municipal Government of the District of Columbia, and District of Colum- bia Optometric Association, a corporation. The individual defendants are citizens of the United States and residents of the District of Columbia. The District of Colum~ia Optometric Association is a corporation organized under the laws of the District of Columbia. This action arises under the provisions of Sections 15 and 26 of Title 15, USCA and is for injunctive relief and for damages to compen- sate for injuries sustained by the plaintiffs in their business and property by reason of the commission by the defendants of acts forbidden by Section 3 of the Sherman Antitrust Act (Title 15, Section 3, USCA, as amended), and the Clayton Act as hereinafter more fully set forth. The plaintiffs, cause of action is also based upon upon the defendants' liability for malicious and wrongful injury to the plaintiffs' means of livelihood. 2. The plaintiffs are and have been engaged for many years in the business of manufacturing and selling eye glasses and contact lenses at prices and for fees considerably less than their competitors and they operate retail offi- ces in several cities in the United States and Canada. Since about November 1950, they have operated a retail office' in the Westory Building at 605-14th Street NW., in the District of Columbia. under the trade names of King Optical Company and D.C. Invisible Contact Lens Service. 3. The defendants Rex B. Sheley and Lewis H. Kraskin are President and Secretary-Treasurer respectively of the District of Columbia Board of Op- tometry, and the District of Columbia Board of Optometry is an agency of the Municipal Government of the District of Columbia, created by Title 2, Sec- tion 503. of the Code of Laws for the District of Columbia, its officers being' appointed by the Board of Commissioners for the District of Columbia and said officers control, direct, and manage the policy and operations of the Board of Optometry of the District of Columbia, including the examination and rating of examination papers of applicants for licenses to practice optometry in the' District of Columbia. 4. In the business of obtaining the patronage of purchasers of eye glasses and contact lenses in the City of Washington, District of Columbia. the plaintiffs customarily either employ or associate with themselves physicians or optome- trists, licensed and authorized by the District of Columbia to examine and prescribe eye glasses and contact lenses for persons desiring and needing eye correction. The plaintiffs extensively advertise their services and facilities and their reduced prices. The defendants Lewis H. Kraskin and Rex. B. Sheley, beginning on or about November 1950 and continuing thencefortb, combined and conspired between themselves and with other members of the District of Colum- Na Optometric Association in the District of Columbia, the names and identities of the others being at this time unknown to the plaintiffs, and they have con- tinued to combine and conspire to unlawfully restrain trade and commerce within the District of Columbia and to eliminate the competition of the plain- tiffs in the manufacture and sale of eye glasses and contact lenses and their purpose in so combining and conspiring has been to stifle the competition `of the plaintiffs and to fix, maintain, and keep at a higher price level eye glasses and contact lenses sold within the District of Columbia and in furtherance of such unlawful combination and conspiracy the defendants actively instructed licensed optometrists to refrain from obtaining employment or association in' any way with the plaintiffs at their office within the District of Columbia and that at meetings of the District of Columbia Optometric Association the usual order of business during the past ten months has provided for discus- sions in which the individual defendants sought suggestions and arranged, formulate means to injure the plaintiffs' business in the District of Columbia and their means of earning a livelihood therein. 5. The defendants Lewis H. Kraskin and Rex B. Sheley, District of Columbia Optometric Association. and the District of Columbia Board of Optometry acting throught its Secretary-Treasurer, Lewis H. Kraskin, and its president, Rex B. Sheley, and in furtherance of their unlawful conspiracy and combinatiOn and in PAGENO="0139" OPTOMETRY 135 order `to stifle competition conferred with and discussed with optometrists, who had been con'tacted by the plantiffs for the purpose of associating such persons or undertaking to enter into an employment arrangement with them, and in- formed such persons that their licenses `to practice optometry in the District of Columbia would be jeopardized and revoked, if they accepted association or em- pl'oyment with the plaintiffs. The defendants also informed certain persons who had `successfully passed and were otherwise entitled to licenses to practice op- tometry in the District of Columbia that re-examination of such persons' papers would be made which might result in a change of grading of their papers so that `they would not have passed said examination if such persons associated them- selves with or accepted employment from the plaintiff's. The defendants also promised other persons, with whom the plaintiffs were seeking to arrange for their employment or association with them, `to procure good jo'bs for `such persons if they refrained from working for the plaintiffs. In furtherance of the course of conduct pursued by `the defendants, on several occa'sions they cau'sed an employee of the plaintiffs to be forcefully, wrongfully, `and unjustly arres'ted and prosecuted in the Criminal Division of the Municipal Court, notwithstanding that the defend- ants well knew the employee so arrested had committed no offense and the pur- pose for the arrest, caused an'd directed by the defendants, was to embra'ss the plaintiffs and cause the plaintiffs unfavorable publicity and to harrass the plain- tiffs `and to frighten and intimidate optometrists from accepting employment or association with the plaintiff's in the conduct of the plaintiffs' business in the Di'strict of Columbia. By reason of the w'rongful conduct of the defendant's and of the matters, coin- plained of herein the plaintiffs' business has been seriously impaired by rea- son of their inability to adequately and fully staff their said office in the District of Columbia. The plaintiffs have sustained and continue `to sustain a considerable loss of business because `of the conduct of the `defendants and the persistence of the defendants in pursuing and continuing to pursue their course of harrassing the plaintiffs, of `stifling competition, and of preventing persons from accepting employment or `association with the plaintiffs. The conduct of the defendants have caused and will cause immediate and irreparable damage not adequately compensable by the payment of damages. WHEREFORE the plaintiffs demandjudgment as follows: 1. That a temporary and permanent injunction issue restraining and enjoin- ing `the `defendants and each of them from interfering and unlawfully and wrong- fully injuring the plaintiffs in their ability to earn their livelihood and from inter- fering with persons seeking to associate with or accepting employment from the plaintiffs. 2. That damages, `both compensatory and punitive, be awarded the plaintiffs against the `defendants and each of them. 3. That the plaintiffs recover treble damages for the injuries and damages which they have sustained t'o their business and property under the Sherman An'ti'trust Act and the Clayton Act. 4. That judgment be entered against the defendants in the `sum of Seventy-Five Thousan'd Dollars ($75,000.00) damages `together with reasonable attorneys fees a'nd costs and disbursements of this action. 5. And for such other and further relief as may appear appropriate and just. SCHWARTZ & FRIEDMAN. STERLING OPTICAL CORP., Washington, D.C., February 1964. DEAR STUDENT: Because you attend a Washington area school, you are eligible for Sterling Optical's new student plan for the fitting o'f Contact Lenses. The plan is simple: It is based on the fact that students in your age group are: 1. Most receptive to the idea of changing from spectacles to modern Contact Lenses, and 2. Most valuable to Sterling Optical in public relations manner. Because of these two factors, we have found it to be less time consuming to fit students with Contact Lenses. There is more psychological acceptance to Contact Lenses in people of your age group. This eliminates a time consuming factor which may be found in fitting other individuals. Sterling's student plan offers a ten percent reduction to all students who come to Sterling Optical's Contact Lens information center in groups of three or more. PAGENO="0140" 136 OPTOMETRY To qualify you need only make an appointment to visit Sterling's Contact Lens Department with two or more of your friends. You and your group will each be given a complete contact lens examination and all of your questions will be thoroughly answered. This is available with no cost or obligation. Should two or more members in your group decide to order Contact Lenses, the student reduc- tion will be in effect. To make arrangements for your Contact Lens examination, simply telephone nnd convenient appointments will be made for you. Yours truly, DENNISON MANUFACTURING Co.. Washi~ngton, D.C., May 9, i967. Mr. HORACE WHITE, Executive Director. Optometric Association of Virginia and District of Columbia, Washington, D.C. DEAR MR. WHITE: In October. 1966. my 11-year old daughter was examined by Dr. Michael L. Cohen of 3509 South Jefferson Street, Leesburg Pike Plaza, Bailey's Crossroads, Virginia, and found to be suffering from astigmatism. Dr. cohen prescribed and made corrective glasses for her. These glasses were very satisfactory and resulted in correction to normal vision. In January, 1967, she broke the frames to~ these glasses. With the false belief that I could save money by having the lenses reset in frames by a discount optical company. I took her to Sterling Optical Company, Inc., 520 Tenth Street, N.W., Washington, D.C., where they fitted her with new frames in which they placed her old lenses. Shortly thereafter she complained that her glasses were no longer improving her vision. Thinking that perhaps she was suffering from a deterioration of her optical condition, I returned to Dr. Cohen and found that Sterling Optical had merely reset the lenses without regard to the prescription. I am enclosing a copy of Dr. Cohen's letter describing his findings. I feel fortunate that this occurred with my oldest daughter rather than with my youngest who would not have been able to communicate on recognizing the optical discomfort. You can be assured of my support in your attempts to obtain greater regulations on optical companies of this type. Sincerely yours, MYLES S. FIsCHER. BAILEY'S CROSSROADS, VA., April 28, 1967. Mr. MILES FISCHER, 611 North Pegram Street, Alexandria, Va. DIZ~&R MR. FISCHER: The discomfort and strain that Jenny has been suffering as of late, can be directly blamed on the improper optics of her correction, resulting from a frame replacement. The discrepancies were due to astigmatic power being placed 19° off in the right eye and 15° off in the left. Jennies original ophthalmic measurement was 42/20, the replacement measured 42/19 decreasing the bridge size and displacing the optical center as prescribed. It is my feeling that the lenses were placed in the first available frame without thought as to size or original prescription. Sadly enough there are many people who can commiserate with you, due to this type of optical establishment. Sincerely, MICHAEL L. COHEN, O.D. FATRFAX, VA., June 1, 1967. AMERICAN OPTOMETRIC AssOCIATIoN, Washington, D.C. GENTLEMEN: I need help! Two years ago, I received a pair of lenses from Vent-Air Contact Lenses Specialists. Unfortunately, I was unable to wear the lenses without a lot of discomfort and was never able to obtain wearing time of any length of time. I just recently discovered the reason. PAGENO="0141" OPTOMETRY 137 I visited an optometrist who was astonished to discover the irregularity and defectiveness of the lenses which were prepared for me by Vent-Air. He sent them to another laboratory for their opinion, which is enclosed. I am very disturbed to realize that Vent-Air would allow me to walk out of their office with such irregular lenses, which could have adversely affected my eyes. I wrote to Vent-Air on 9 April and again on 5 May and requested a refund so that I could purchase a pair of lenses by a competent doctor. But, Vent-Air has avoided me and has refused to answer my letters. I am not only concerned about my immediate problem of getting a new pair of properly fitted lenses, but also the fact that other people are being fitted by this doctor and they may not be as fortunate as I have been-they may lose their sight. What can be done? Sincerely, JOAN MADISON. CAPITOL CONTACT LENSES, INC., Washington, D.C. DEAR DR. NELSON: The lenses you sent in to be adjusted for Mrs. Madison are in such poor shape mechanically that no further modification could remedy their poor fit. There are entensive lathe marks through the entire inside surface of both lenses and these cannot be eliminated. The peripheral levels on the OD lenses are deeply gouged and are completely irregular. We are sorry that we cannot repair them, and for the benefit of the patient are recommending a complete refit. Thank you for your patronage. GEORGE K. MEszARos. CONGRESS OF THE UNITED STATES, House of Representatives, Washington, D.C., June 26, 1967. Mr. H. W. WHITE, Jr., Ewecutive Director, Optometric S~ociety of the District of Columbia, Washington, D.C. DEAi~ MR. WHITE: As per our telephone conversation of this afternoon, I am forwarding a copy of my letter to Vent Air Contact Lens Specialists. I regret that our most pleasant conversation was in regard to such an unpleasant subject. For your information, I have made an appointment for July 12 with Dr. Marvin Berlin as you suggested. Thank you and please feel free to contact me at any time for further in- formation. Very sincerely, Mrs. ROBERT BORKENHAGEN. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., June 26, 1967. VENT AIR CONTACT LENS SPECIALISTS, Colorado Building, Washington, D.C. (Attention, Mr. Pierce.) GENTLEMEN: The gross inefficiency and rudeness of everyone I encountered associated with Vent Air shall not go unremember or unreported. Not only did I find your advertisements misrepresentational, but I feel that your actions have reflected an immensely unprofessional attitude toward prospective patients and toward your work. The following are a few examples upon which I shall be glad to elaborate at length: (1) Telephone information I received was incorrect in that I was specifically informed that I would have new lenses by the end of June. I gave the telephone PAGENO="0142" 138 OPTOMETRY receptionist pertinent background information and assumed, because she was employed, that her information would be correct. (2) I was repeatedly addressed as "Connie," a familiar term reserved only for my friends, rather than my correct business and legal name, "Mrs. Borken- hagen." (3) For undisclosed reasons I was not accepted as a patient at Vent Air despite my patience with the rudeness encountered and despite my attempts to be cooperative. (4) I found the strong preoccupation with immediate payment distasteful ~despite faultless credit references. I wondered at the time if that was not the niajor objective of the business, rather than adequate fitting of lenses. (5) The telephone receptionist stated that I could not have received in- correct information because my husband made the appointment. I can under- stand her unwillingness to accept responsibility for a mistake, but that she must. I personally made the appointment; I am fully responsible for all my activities; and my husband's attendance at school precludes his making any appointments. I am grossly insulted. I have never been treated discourteously to such a degree for most individuals respond to courtesy when it is extended. Your firm shall be slandered at every opportunity. Mrs. ROBERT BORKENHAGEN. [From the Herald-Journal, Apr. 10, 1907] (An editorial, permission of the New- York Post, Copyright 1967, New York Post Corporation) "A MATTER OF Visiox" "In the blind rush to pass legislation on a whol~sale basis, the New York State Assembly and Senate slipped through a bill on optical services that would hit more than half a million New- Yorkers right between the eyes. This bill w-ould inhibit "third party" practice in furnishing eyeglasses to those who presently can get this service on a high-quality low-cost basis. The bill is pure special interest legislation, an exact replica of the onetime efforts of the AMA to block "third party" medicine in America. It would not improve the quality of optical service, since at the present time all such care is handled in "third party" practice by licensed optometrists. It w-ould merely favor the private prac- titioner who can monopolize the practice at exorbitant rates and without quality supervision. What is most scandalous is that this important measure w-as allowed to slide through without hearing. w-ithout debate. w-ithout any chance to be exposed to public view or review. In all good conscience, Gov. Rockefeller must veto this bill not only for its danger to the consumer but also because of the sly. secret way it was whisked past the eyes of the public." We urge you to protect your own. interests. Please write to Gov. Rochefeller and urge h4m not to approve the legislation, which wonld amend the law in the practice of Optometry DEXTER OPTICAl,. [From the Washington Post, Oct. 24, 1964] EYE Cr~xic FOR D.C. POOR OPExED ny OPTo~rEmIsTs The previously unpublieized operation of an eye clinic for the poor here was announced yesterday by District and nearby Maryland and Virginia optometrists. Called the Optometric Center of the National Capital, Inc., the clinic at 421 4th st. flw-., began accepting patients on Aug. 1, after months of planning, fund ralsing and gathering of equipment. Jack H. Mericle, president of the nonprofit center, ~aid the clinic offers eye examinations, needed prescription eyeglasses or contact lenses and other allevia-~ tion of vision problems and conducts basic research in non-medical eye problems. The center ~ the eighth such facility in the Nation. Other ~re in New York City, Denver, Atlanta. Lansing, Newark, Richmond and Harrisburg. Staffing the local center are 101 volunteer optometrists in private practice in the Greater Washington area. Another 25 military optometry officers also are serving. *` PAGENO="0143" OPTOMETRY 139 Most persons examined at the center so far have been beneficiaries under the Manpower Development and Training Act. This is one of the key programs of the War on Poverty which takes unemployed heads of households and retrains them for profitable employment. Mericle said all area health practitioners and recognized agencies may refer patients to the center. He saild most of its patients come under the category of medical indigents and receive all services withoutc harge. They may or may not pay small admission and prescription fees. The clinic will not accept unreferred patients, but counsel on obtaining neces- sary referral can be obtained by calling offices of the Health arid Welfare Coun~il of the National Gapiltal Area, at DEcatur 2-7330, or the center itself at 628-8053. Dr. BERLIN. Mr. Chairman and members of the subcommittee,~ I am Dr. Marvin Berlin, an optometrist practicing in the District, represent- ing the Optometric Society of the District of Columbia of which I am President. I appreciate the opportunity to testify in support of revi- sions in the District of Columbia Optometry licensing law. Accompanying me is Dr. Evart Warren, also a practicing optom- etrist here in Washington. On my left I have Dr. Robert Corns from Indiana, Legal Admin- istrative Assistant to the AOA Committee, and next to him is Mr. Wil- han MacCracken, who is counsel for the District of Columbia Op- tometric Association. This is a summary of my full testimony, and with the permission of the Chairman, I would like to present my full statement for the record. As Immediate Past Secretary, District of Columbia Board of Exam- iners in Optometry, Dr. Warren agreed to j oin me should the coin- mittee have questions dealing with optometry licensing and any diffi- culties experienced by the Board in enforcing the practice of optometry in the District. The Optometric Society of the District of Columbia estimates that `today there are 67 full-time practicing optometrists here in Washing- `ton for a population, according to the 1960 Censñs, of 763,956. In 1924 `when the `Optometry Licensing A'ct became law, 92 optometrists reg- istered under the law-92 optometrists for approximately 437,571 peo- `plo, the 1920 Census figure. During a 40-year period, `there are 27 per- cent fewer optometrists and 57 percent more people. The primary reason why the nation's capital fails to attract recent optometry school graduates is the poor environment for professional practice. Rather than lower his standards, the young optometrist estab- lishes his practice outside the District of Columbia. It seems to me a sad situation when only two optometrists under the age of 35, the draft age for optometrists, practice optometry in the District today. The outdated optometry law affords little inducement `to practice here. This past July, the District of Columbia Court of Appeals upheld .a conviction of practicing optometry without a license in a case relat- `ing to adaptation and fitting of contact lenses. Attachment No. 1 filed with this statement gives you some indication of popular feeling about this case, in the form of a letter to the editor of the Washington Daily News. ` ` ` ` ` In 1964 the Senate's Special Committee on Aging-~after investigat- ing frauds and deceptions affecting the elderly-recommended that PAGENO="0144" 140 OPTOMETRY the Senate District of Columbia Committee examine the adequacy of present District laws on . . . "(a) widespread fixed-price advertising for regular glasses and contact lenses; (b) sale of over-the-counter, nonprescription glasses; (c) possible need for greater authority to the District Commissioners for regulation of `the corporate practice of optometry'." in relation to these recommendations by the Senate Spe- cial Committee on Aging, I refer you to a. clipping from the Washing- ton Evening Star of February 1965. This is attachment 1-A. For several years many of us optometrists here in the District saved local newspaper ads offering specials, discount prices and other "bar- gains" on eyeglasses and examinations in the hope that the Board of Optometry could do something to prohibit them. We finally stopped collecting those ads after being told repeatedly that the present law in no way regulates such practices. At this point I refer you to our at.- tached document No. 3, which illustrates the type of advertising to which I refer. The advertisements in the classified telephone directory "Yellow Pages" are equally unbefitting health ca.re services, and I ask that you note the content of ads shown in our attachment No. 4. Such state- .ments as "Moderate Prices-We keep our costs low by volume- Eyes Examined-Prescriptions Filled-Lenses Duplicated-Contact Lenses-Children's Eyes Examined-two-hour Service", or "Eyes Ex- amined-Glasses Fitted-Budget Terms Available-Discounts to Gov- ernment Employees, Union Members, Diplomatic and Military Per- sonnel and Families", confuse and frequently mislead the public. The companies which place such quarter-page directory ads, the largest size sold, sell eyeglasses. Their term "Eyes Examined" pertains only vaguely to the term "Vision Care". The so-called examinations they make are called "quickies" and rarely take more than 15 minutes, sometimes as few as five minutes; a complete professiona.l vision ex- amination requires at least 45 minutes. As to the glasses these "discount" operations sell, there is a strong chance that something will be wrong with them. The prescription may not be filled accurately. For example, in a pair of $7.25 glasses, while one lens may meet prescription specifications, the other lens may be so inaccurate that it fails to give the needed correction. Additionally, the lenses themselves frequently are other than first quality. Cut-rate op- erations often rely on inferior foreign-made lenses or on rejects and second or third quality American-made lenses which can have various defects which may seriously affect light transmission. Anyone operating as an eyeglass mercha.nt simply cannot devote more than minimal time to fitting the eyeglasses. As stated in one of the "Yellow Pages" ads, "We keep our costs low by volume." And volume depends on heavy traffic and fast turnover. I would like to call your attention at this time to attachment No. 5, which will give you some idea of the quality of materials frequently purchased by eyeglass merchandisers. You will note note that some of these materials are available to the eyeglass peddler at 30 cents a pair, when purchased in lots of 100 pairs. The suppliers of these ophthalmic materials are so sure these factory seconds are defective, they say "Guaranteed usable or replaced"-which obviously means that if the particular pair fitted to a patient's face is so unsatisfactory that the PAGENO="0145" OPTOMETRY 141 patient complains, the lenses can be returned and some with less notice- able defects will be supplied to replace them. The commercialist cannot afford to offer visual training services be- cause they require time which he can ill afford to spend if he is to main- tain his high-volume business. In recent years research has shown that visual training can lessen some vision problems or eliminate them entirely. I know of no way the discount operator can offer visual train- ing services even if he is qualified to offer them. The mercantile setting does not lend itself to professional services. Flashing signs indicate selling, not servicing in a professional manner. The object of the specs peddler, in whichever century he might op- erate, remains the same-sell glasses. The growing promotion of health benefits to unions provides the spec peddler with additional sales out- lets. Unions, attempting to provide additional services to their mem- bers, making arrangements with spec peddlers (now termed optical companies or commercial optometrists) to "purchase glasses at low cost." See attachment No. 6. The District of Columbia Optometric Society frequently receives complaints about optometrists working in the types of corporate enter- prises I have described. To give you some idea of the complaints we receive, I am submitting attachment No. 7. Other similar complaints from victims of these entrepreneurs were delivered for the records of this committee following last year's hearings on H.IR. 12937. There are those in opposition to this bill who claim that it will inhibit "third party" practice of optometry and thereby be injurious to those relying upon third parties for their vision care. Mr. Chairman, the only prohibitions directed against "third parties" by this bill are directed against corporations or firms which would abuse the practice of optometry by making an ill-gained profit from the sale of merchandise in the guise of caring for the visual needs of the population. Third parties such as hospitals, clinics, group health practices, non- profit health services,health expense indemnity corporations, agencies of government or employers providing optometric services solely to their employees are exempt from this proposed Act. There are a number of union optical plans operating across the country which are thought to be operating on a not-for-profit basis and which, we understand, are in fact franchises from an office in New York State. In these plans, optometrists serve in somewhat the same "captive" relationship as do those optometrists who are employed by, or are under contract to, commercially-motivated retailers which we have described as operating here in the District of Columbia. The working men and women of the District are, we believe, fortu- nate in the fact that none of the so-called "union optical plans" are active here, to the best of our knowledge. We have every reason to be fearful that union members in our city might be lured into seeking such franchised operations in the future, believing innocently that lower- cost vision care is available through such a means. Lower cost in this instance means lowest quality service and materials and we believe this to be absolutely unconscionable in the health care field. I am proud to report that a committee of our optometrists is respon- sible for the formation of a "third party" organization to provide op- 82-754---67-----iO PAGENO="0146" 142 OPTOMETRY tometric services, known as the Optometric Center of the National Capital, Inc. It is a not-for-profit corporation, providing vision serv- ices to the poor of the nation's capita.l. The Center's trustees, comprised of leading members of the community, include leaders from organized labor who contribute their valuable time in guidance and supervision and provide funds for purchase of ophthalmic materials required to care for patients of the Center. Some of the larger donations have been made by the local Teamsters Union, a group which also has a prepaid vision program sponsored by our Society through another not-for-profit corporation known as `\Tj5j011 Care Services, Inc. Another large contributor is the District of Columbia Public Health Department, which contracts with the Center for vision services for its beneficiaries. A news story about the opening of the Optometric Center of Metropolitan `Washington is shown on attachment 9. When I. Philip Sil)ser, counsel for the United Optical Workers Union Local 408 of the International Union of Electrical Workers, AFL-CIO, testified on behalf of that group in favor of S. 260, the "Medical Restraint of Trade" bill, his testimony closed with this state- ment: CC* * * we see the Hart bill as a necessary measure limiting doctors, including ophthalmologists, to the practice of medicine, and as a measure dampening their ardor for lucrative earnings in commerce by medical shortcuts, use of untrained personnel, business sales and otherwise." While Mr. Sipser did not mention the practice of optometry, we feel the same restraints should apply to its practice in the District of Columbia, and we hope the United Optical Workers Union will join us in support of the bills you a.re considering to accomplish these purposes. We in optometry have policed our own insofar as the present law permits. Governmental intercession is now needed for the regulation of the practice of optometry if the residents of the District of ~olum- Ma are to receive the protection to which they are entitled. The Opto- metric Society of the District of Columbia urges you to pass this legislation. Mr. Sisu. Thank you, Dr. Berlin. I might ask you, and I think I did to start with, your membership here in the District. How many members do you haYe in your Society? Dr. BEImIN. The District Society has 48 members and associate members. Mr. SIsK. The gentleman from New York, Mr. Horton. Mr. HoRToN. No questions. Mr. SIsK. The gentleman from North Carolina, Mr. Whitener. Mr. `WHITENER. How many licensed optometrists are there in the District? Dr. BERLIN. I would say there are 57 or 60 that are practicing here in the District. Maybe Dr. Warren can help me out. ~`Ir. WHITENER. How many are alive and licensed and actual resi- dents here in the District? Dr. WARREN. I think he meant 67 practicing. We have about 180 who are lieen~ed, but a great many of these have licenses in other States PAGENO="0147" OPTOMETRY 143 and are practicing in North Carolina, Virginia, Pennsylvania, and places like that. Mr. WHITENER. And you have how many members in your Society? Dr. BERLIN. Forty-eight members and nine associate members. Mr. WHITENER. What are associate members? Dr. BERLIN. Associate members are those optometrists who belong to the American Optometric Association in the neighboring states of Northern Virginia and Central Maryland. Mr. WHITENER. Thank you. Mr. SI5K. The gentleman from Ohio, Mr. Harsha. Mr. HARSHA. Dr. Berlin, you say there have been no changes in the law in regard to optometry since 1924? Dr. BERLIN. Yes. Mr. HARSHA. As I understand ftt, there is a Board of Optometry ap- pointed here by the Board of Commissioners, is there not? Dr. BERLIN. That is true; there is a Board of Optometry. Mr. HARSHA. Some five optometrists? Dr. BERLIN. There are five members on the Board. Mr. IHARSHA. And they are charged with the responsibility of licensing those who practice optometry? Dr. BERLIN. Yes. Mr. HARSHA. They also have the responsibility of drafting the edu- cational standards or improving them over and above what is written into the law, do they not? Dr. BERLIN. Yes, sir. Mr. 1-TAR5HA. They may make them more stringent at any time. The only thing they cannot do is lower them below the standards that are in the law. Why, if they are `so interested in upgrading the practice of optometry, has not this Board made significant changes in the educa- tional standards required for the practice of optometry in the District? Dr. BERLIN. I think `Dr. Warren could answer that for us, and I think `they have made changes through the years. Dr. WARREN. The one change-and any change has to be approved by the Commissioners of course. The one change has been I think in 1950 or 1951 when examinations were given in contact lenses. But the examinations are quite stringent, have always been, and we feel the examination we give is on a par with those throughout the nation. Mr. HARSHA. Is there any change in this latest bill, H.R. 12276, in the requirements that you presently operate under? Dr. WARREN. The purpose of this bill does not really change the re- quirements for taking an. examination. We feel the optometrists com- ing out of the schools today are quite adequately trained. The problem here is that once they are licensed in the District of Columbia, we have absolutely no control over doing anything with them regardless of what they might do. I have just finished serving a term on the Board and I am now no longer eligible to serve on the Board, which Mr. Whitener will be in- terested in, because last year at the hearing he said to be a member of the Board you have. to be practicing for a certain number of years. The District Commissioners have now added another regulation of their own, that you must be a resident of the District of Columbia before you can serve on the Boai d PAGENO="0148" 144 OPTOMETRY But anyway, the Board receives numerous complaints. The De- partment of Occupations and Professions flow has a form letter in which they say, "We are very sorry to inform you but the Board is not empowered to take any action." Mr. HARSHA. You feel that the regulations now or the educational requirements written into the law are totally adequate and in con- formity with the majority of the states in the Union? Dr. WARREN. I would say that is quite right. Mr. HARSHA. Then do we need the additional requirements that you have in these bills? Why are they in here then? Dr. WARREN. I think you will find our present law, the one which we are now operating under, and the proposed new requirements are fundamentally the same. Mr. HARSHA. Why are they in the bill if you are not going to make changes? Dr. WARREN. Because it has to be a whole new bill. I might say this came up in the previous testimony. This bill was originally written by the Department of Occupations and Professions because under the new enabling Act of the District of Columbia all of the powers of the Board are really given to the Commissioners and then the Commissioners in turn give them to the Board. So the department had to write the bill so that it would be in the proper form. So they decided that a whole new bill would be written. Now of course I will admit that our group has made numerous changes in it. Mr. HARSHA. You say under existing law you have no remedy such as revoking a license or suspending a practitioner for certain viola- tions? Dr. WARREN. For all practical purposes, none. Last week we had a man go into Sterling-the name has been mentioned so I will mention it-to have his eyes examined. From the time he walked into the door until he walked out of the examina- tion room with a piece of paper in his hand with a prescription on it was three minutes and 20 seconds. This was a complete eye examina- tion. He then went somewhere else and picked out a frame. The total bill was $38. Now this has been going on for years and I hear all of this, and I have been coming up here., sir, for 20-some years testifying on these things, and I see~ the discussion being sidetracked all the time. I am not an attorney and I do not know a.ll of the little facets of the turning of a word here or there as to what it does. But wha.t we want to do is to be able to protect the people of the District of Co- lumnbia who we think are being robbed. I think that some of the men of this city are using their license t.o steal. We only have about seven or eight bad apples but that is all it takes. Mr. HARSHA. You have no method under the existing law- Dr. WAr~RRN. Under the existing law we can take a license away from a man if he has been convicted of a crime involving moral turpitude or is a habitual drunkard-period. We do not even have the right to insist that they inform us where they are practicing. I remember 15 years ago when my dad was secretary. of the Board, suddenly we saw an advertisement in the paper of one of the fur- PAGENO="0149" OPTOMETRY 145 niture stores they are now examining eyes. We did not even know who was there. I went down to sort of snoop around to find out who was there. We do not even have the power to insist that they tell us where they are practicing. We have no power. Mr. HARSHA. Do you have in this bill a section that will give you the authority to crack down on a shyster like you outlined? I would like to know if we are going to meet the problem you de- scribe in this bill. Dr. WARREN. There are certain things in there like the department put in there that for grounds for revocation, if a man is found guilty, his license is revoked for a year. I think that is excessive. That means you are going to have a very difficult time to get a conviction. As any attorney will say, if you are going to put a man out of practice for a year, that will be almost impossible to get. So that should be possibly reduced we will say to 30 days or 20 days, I do not know. This is for the committee to decide. But the main thing that the Board wants is the power to stop these people from being enticed, and if you will read the record from last year you will see where we have testified to the effect that people are enticed in for a free eye examination, and one poor gal was sold two pairs of glasses for $144- enticed into a place by bait advertising and then sold a bill of goods basically with cheap materials, cheap frames, cheap lenses, and an examination that is not worth the name. What happens? They `cannot see with them, but they have only paid $5. But let them miss one payment and bingo, they haul them into court and their wages are- Mr. 1-JARSHA. The crux of what you are saying is to clamp down on the advertising. What about the fellow who conducts an eye exam- ination? And not being a sp~cialist in that field or having any train- ing, it is hard for me to se~ how could you get an adequate examina- tion of the eye in three minutes or five minutes. Dr., WARREN. You cannot. Mr. HARSHA. Is there anything in this bill to deal with unethical practices? Dr. WARREN. No, sir. Mr. HARSHA. Or rnalpractices? Dr. WARREN. Not in our present law. Mr. HARSHA. I mean in the new bill. `Dr. `WARREN. Yes, sir. , Mr.'HARSHA. Can you point that out to me? Dr. WARREN. In the first place there will be-there is .an awful lot of talk about this word "profession", and you have heard the word Silver v. Lansburgh mentioned yesterday. Back some years ago the Board, in an attempt, to stop some of the evils that were going on, initiated a suit against Lansburgh's Department Store and their optical department. Not that they were partici~iiarly bad, but that they were a corporation, because we feel that the corporate practice of optometry is not good because a man should practice in his own name. He has the license, he should be respoflsible to his own license and not be responsible through somebody else who he is working for, his employer.. This wa's overturned and one of the key words in this thing is the word "profession", and you are going to hear the medical people say PAGENO="0150" 146 OPTOMETRY we cannot. have this word in there at all, that optometry cannot be defined as a profession, it cannot be mentioned in the law. But we must have that one word "profession" because it is the one word- if "profession" is not in there, then we are a trade, and if you are a trade just like a plumber I can advertise, to have a sink put in your house for such and such sum of money. So it all hinges on this one word. In my book, if you would give us a law, just a few words that say "Optometry is hereby declared to be a profession", and the Board should be empowered to enforce it, in three lines, I think we could just about do it. Mr. HARSHA. Then should you establish a Code of Ethics and revoke or remand or suspend licenses based on this Code of Ethics? Dr. WARREN. I certainly could. Mr. HARSHA. You could deal with malfeasance and misfeasance and nonfeasance? Dr: WARREN. If we are declared to be a profession, I think we could, yes, sir. Mr. HARSHA. What you are telling the committe~ is, in substance, if we would just pass a simple bill that said for various reasons the prac- tice of optometry is hereby declared a profession and the Board of Commissioners is authorized to adopt rliles and regulations to govern that. profession, that would take care of your problem? Dr. WARREN. That would be the biggest hornet's nest we ever stirred up, sir. Basically, that is the crux, that is the nut of the whole bill, to have optometry declared to be a profession. That is the kernel there. Mr. HARSHA. That is all I have. Mr. 5IsK. Mr. Whitener. Mr. WHITENER. Let me ask you this, Dr. Berlin. On page 6, section 7 of H.R.. 12276, the Commissioners are given the authority "to refuse to renew, or reinstate any license authorized by this Act," and "to suspend or revoke" one if an individual uses "any title or any other word or abbreviation indicating that the licensee is engaged in the practice of medicine or surgery." I have a friend at home who practiced opto1netry for several years and then decided he wanted to be a. lawyer, and went to law school. So lie is now a licensed attorney, and lie is also a licensed optometrist. Suppose that an optometrist decided he would like to become a general practitioner of medicine and went to medical school, was duly licensed in the District of Columbia. but he felt that it would be advantageous to him to practice both general medical practice and optometry. 1 know this is not the sort of thing that happens often or would be likely to happen many times. But if it happened one time, this poor fellow could not even practic.e optometry, could he, even though he was a duly qualified licensed optometrist and physician, because of subsec- tion (1) ofsection7(a)? Dr. BERLIN. In the District we have two optometrists who are now M.D.s and they are practicing their profession as M.D.s. Mr. WHITENER. You mean you do have in the District two optome- trists who are duly licensed physicians as well? Dr. BERLIN. Yes, sir. Mr. WHITENER. And they are practicing both medicine and optometry? PAGENO="0151" OPTOMETRY 147 Dr. BERLIN. Yes, sir. Dr. WARREN. No. They are practicing medicine, practicing as oph- thalmologists, and hide the fact, of course, they are optometrists. Mr. WHITENER. Suppose they wanted to practice as a general prac- titioner of medicine and at the same time wanted to have an optometric practice. If we let this language stay in the bill they could not do that, could they? Dr. WARREN. I think we are getting into a legal terminology. Mr. WHITENER. Of course this is a legal operation. Dr. WARREN. But if you have an M.D.'s license, you are automatically entitled to practice optometry, as we have had on two different cases in the District of Columbia. Mr. WHITENER. But this says "the use of any title or any other word or abbreviation indicating that the licensee is engaged in the practice of medicine or surgery"? That is in direct conflict with the exemption of medical doctors. When the courts come to look at it, they might say yes, there is nothing in this law to prevent him practicing optometry, but the minute he puts on his letterhead that he is a licensed optometrist and a licensed physician the Commissioners have authority to revoke or suspend his license in optometry. In the one place you have the exemption of physicians, but then here you have a specific prohibition against the use of any word or abbreviation indicating that he is licensed to practice medicine. Dr. WARREN. Of course, neither one of these M.D.'s are licensed to practice optometry in the District of Columbia. Mr. WHITENER. But suppose they wanted to be and are qualified? Dr. WARREN. I think I would have to refer that to an attorney to find out. Mr. FTJQuA. Will the gentleman yield? * Mr. WHITENER. Yes. * Mr. FUQUA. I think this was put in to make sure there could not be any encroachment on this field by an optometrist. Mr. WHITENER. Then it is very easily handled by putting the words in there "unless in fact licensed to practice medicine or surgery". Mr. FUQtTA. This may clarify it. I think it was intended so no one could operate under the guise of being an M.D. Dr. WARREN. I have been passed a note that says the language is the same in the identical law we have today. Mr. WHITENER. That makes no difference. We have more bad law here than you can imagine. Dr. BERLIN. This would be acceptable to the D.C. Optometrical Association. Mr. WHITENER. I think in drawing legislation, we ought to be care- ful about what we say. You are dealing here with a very substantive right of human beings. I would think some of these things that appear to those of us not expert in the field would certainly appear to those who are more expert. Mr. MAOCRAOKEN. We will be very happy to accept the wording suggested by Mr. Whitener as far as the District Society is concerned.. Mr. SISK. Mr. Harsha. * Mr. HARSHA. On page 2 of this latest bill, H.R. 12276, you provide that the practice of optometry, subsection 2, means "(a) the employ- PAGENO="0152" 148 OPTOMETRY ment of any objective or subjective means for the examination of the human eye, including its appendages." In my limited knowledge in this field, an objective examination of the human eye is done in some cases by the use of drugs, is it not? Dr. BERLIN. There are many objective examinations. Usually the physician will use a drug for an objective examination, but he also uses visual acuity, part of the visual acuity examination. It is the way the individual turns his head, whether he squints, whether he tilts his head down, whether he turns his head, this can be an objective maimer in which lie recognizes some defect which would play a significant part in the examination. Mr. HORTON. I do not think you answered the question. The question as I understood it was whether you could use drugs in the examina- tion. Mr. HARSHA. What I am trying to get at is this: Does this authorize you in effect to use the method of ophthalmology because, suppose you put this medicine in to dilate the pupil, that is a drug, is it not? Dr. BERLIN. Yes, sir. Mr. HARSHA. Are you not then engaging in ophthalmology? Dr. BERLIN. This is for the determination purposes only and not -for the treatment. This aids in determining the total scope of a visual problem of the patient. Mr. HAR5HA. But whether it is for determination or examination, you still employ the use of drugs a.nd are you authorized to do that under the Jaw? Dr. BERLIN. Maybe Dr. Warren could answer that for you. Dr. WARREN. This has been-of course I heard the testimony yester- day-quite a bone of contention-objective or subjective means, and this has to be resolved, I would say, before we go much further. Optometrists do not use drops in examination of the eye. We have developed historical methods Qf making eye examinations and the results have been proven quite good over the years without the use of drops. Now I would be first to admit we are not in complete accord on this thing. I would say that the argument that has been given to me is that, well, 25 years ago we did not have satellites, atom bombs have changed things, progress, a.nd that it is difficult to come back to Congress to get a change, and that if at some future time something were developed in the way of a drop that would be advantageous, it would be nice to have them used. And it is possible that this could be turned around so that it could be "employment of a.ny objective or subjective means for the examination of the human eye." And it might well be that the committee should insert something else in there such as "not to include the use of drugs, medicine, or surgery". Mr. HAR5HA. One other question. I refer you to page 7, line 13, of H.R. 12276, subsection (7); this is in the subsection I was inquiring about. Section 7 states: "The Commissioners are authorized (A) to refuse to renew, or reinstate any license authorized by this Act, and (B) to suspend or revoke * * * for the following causes-". And this is subsection (7) : "conduct which disqualifies the licensee from practicing optometry with safety to the public". PAGENO="0153" OPTOMETRY 149 That covers a multitude of sins, does it not? Dr. WARREN. Sure, LSD and everything else., I guess. Mr. HAnsrrA. What do you specifically mean by that phrase? Dr. WARREN. I think what I just mentioned there, that here again you do not know what is going to happen. LSD we never heard of ten years ago. We certainly do not want to have people going mto an office where they are going to be endangered. Mr. HAR5HA. I do not think you do and we do not either, of course. Dr. WARREN. We have enough other things up here. We have chronic or persistent inebriety and narcotics. I think that could be stricken without a great deal of loss to the bill, without any loss really. Mr. HARSHA. Let's assume for argument's sake we strike that out. Is there enough remaining when we get to the example you cite where they gave an eye examination in two or three minutes, whatever it may be? Dr. WARREN. I think gross incompetence, covered by subsection (4), would be the thing ~e could hang him on. Mr. HARSHA. It would certainly be incompetence, but would it be gross incompetence? Dr. WARREN. I am not an attorney, sir. Mr. HARSHA. Then on page 11, line 8, subsection (4) provides it shall be unlawful for any person: "with the exception of nonprescription sunglasses or nonprescrip- tion protective eyewear, to advertise or cause to be advertised to the public any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mountings, or ophthalmic articles or devices ;" Does this mean if I take a prescription into an optician's office and he has a number of displays in his office, magnifying glasses, prisms of different kinds, different frames and with the prices listed, and the public can walk into that office, in effect to a degree he is advertising to the public or causing to be advertised to the public these prices? Is this example I cite prohibited by this language? Dr. WARREN. The use of the double word "optometric or Ophthal- mic" material could possibly be construed if the word "ophthalmic" were not used, if we said that a lens, this is an optometric material, then all the prescription opticians would be barred from using it and that of course would not be good. So I think that the word "ophthalmic and optometric" tie in together here without conflict. If you would use the word "ophthalmic" in the meaning that it is used when it is used basically-and somebody passed this up-"any material used to improve and/or restore human vision prescribed by medical, osteopathic, or optometrical practitioner." In other words, if you have something that is written to a prescrip- tion, this becomes an opthalmic material. As I said yesterday, the little cleaners, you do not write a prescrip~ tion to go in for cleaners or for Windex. It would be something that is written to a prescription. This becomes the ophthalmic material. Mr. HARSFrA. Then suppose the optician has listed on his wall the prices of different types of lenses or glasses. I think I~have "executive". I do not know why. PAGENO="0154" 150 OPTOMETRY Dr. WARREN. You have executive, sir; yes, sir. Mr. HARSHA. That is one product price listed, bifocals are another, or trifocals, or straight lenses. Would this preclude him from putting up that advertisement in his office? Dr. WARREN. WTe are here getting to talk a.bout things again. I think you can put a. price on something, but I think it must be in a. manner that would be like if you go into a. department store and you pick up a pair of stockings and you have the price on there, $1.95 or something like that. I would say that they would have to have the ability in their own office to have their prices on their frames. They have all of these great variety of frames. So that they could not tell the prices on the things. But I believe that it is intended that they would not be in the manner so it would tend to advertise them such as we generally use the word "advertise", something you could see 50 or 100 feet away. Maybe I better turn that over to an attorney also. Mr. HARSHA. Then it is your opinion that the optician would not be prohibited from thus advertising his products, whether they be strictly empty glass frames or whether they be the lenses? Dr. WARREN. No, sir; I did not say that.. Mr. HARSHA. I mean in his office. Dr. WARREN. I say he might put a price on his frame, but it would only be like on inside of a temple, maybe a half-inch high. That would be only if the patients want to pick up and look at it, that is the price. But to have a price sticking out maybe an inch or two or three inches high, then we feel this is going to allow a loophole given to people who will try to get around the law to try to entice people in by advertising the frames. Mr. HARSHA. I do not mean to appear argumentative, but I have just the opposite view. If he did not have it on the wall, he might charge me $25 for these or might charge the next guy $15, depending on what he thought the traffic might bear. But if I see the price there, of course he can always say to somebody else, I am going to give you a discount. I think if it were there where we could see it, the chance of getting a variation in the price might be less than if it were not. Dr. WARREN. From your point of view, I think that is a good argu- ment. Mr. FUQUA. I think you were talking about putting a price on them so if you came in and picked up such and such frames, there would be the price, whatever it was, on there. Mr. HARSHA. If he put it on the lens, but if he did not-I do not know whether he can put it on the lens with this. I am not sure. I am just trying to find out what some of the answers are. I have no further questions. Mr. SIsK. Gentlemen, we appreciate very much your appearance before the committee. Unless there are further questions, the witnesses are dismissed. Permit the Cha.ir to sa.y that we are hopeful of being able to meet at least for an hour and a half or two hours this afternoon. So, assum- ~ng permission is granted, the committee will reconvene at 1 :30 a.nd at that time I would like to request that the Medical Society of the Dis- trict. of Columbia, Dr. Alpert. and Dr. Cowan be available. We will PAGENO="0155" OPTOMETRY 151 hear the Medical Society people, then, at 1 :30 unless you are otherwise notified. I would suggest that about one o'clock the witnesses call the office here and speak to Mr. Clark or Mr. G-arver as they will then have the final information. The committee stands adjourned. AFTER RECESS Hearing resumed at 1 :30 p.m. in Room 1310 Longworth House Office Building Hon. B. F. Sisk (Chairman of the Subcommittee) pre- siding. Mr. SIsK. The committee will come to order. Subcommittee 5 will be in session for a continuation of the hearings following the recess for lunch. At this time the committee will be glad to hear from the Medical Society of the District, Dr. Dan Albert and such other members of your group that you wish to have. STATEMENT OP MELVIN G. ALPER, PRESIDENT, SECTION ON OPHTHALMOLOGY OP THE DISTRICT OF COLUMBIA MEDICAL SOCIETY; DR. L. EDWARD PERRAUT, IMMEDIATE PAST PRESI- DENT, SECTION OP OPHTHALMOLOGY `OP THE DISTRICT OP CO- LUMBIA MEDICAL SOCIETY; DR. DAN ALBERT, PAST PRESIDENT OF THE DISTRICT OF COLUMBIA M~DIOAL SOCIETY; DR. ROBERT KLING, PROGRAM DIRECTOR OP THE OPHTHALMOLOGY SERVICE OP GEORGETOWN UNIVERSITY HOSPITAL MEDICAL SCHOOL; AND WARREN MAGEE, COUNSEL, DISTRICT OP COLUMBIA MEDICAL SOCIETY Dr. ALPER. I am Dr. Melvin G. Alper and I am the President of the Section on Ophthalmology of the District of Columbia Medical Society. To my extreme left is Dr. L. Edward Perraut who is an immediate past president of our Section on Ophthalmology; Dr. Daniel Albert, who is a past president also, of the District of Columbia Medical Society. To my extreme right, Dr. Robert Kling, Program Director of the Ophthalmology Service of Georgetown University Hospital and Med- ical School. Our counsel; Mr. Warren E. Magee. Mr. SIsK. (xentlemen, you may proceed. I would appreciate it if you would more or less outline who you are representing here tQday and also within the bounds of what you can, try to keep to about ten minutes on your testimony. I might say that your full statements, will be made a part of the record and you may proceed as you wish Dr. Alper. (The statement referred to follows:) PAGENO="0156" 152 OPTOMETRY STATEMENT OF THE MEDICAL SOCIETY OF THE Dism.icT OF COLUMBIA ON H.R. 1283 AND RELATED Bu~Ls The Medical Society of the District of Columbia is the only medical society ever chartered by Act of Congress and it is the oldest scientific organization chartered by Congress having been founded in 1817. The Medical Society consisting of 2,433 members. is very much alarmed about numerous features of H.R. 1283, H.R. 732 and H.R. 595 similar bills dealing with the practice of optometry in the District of Columbia. if any of these bills are enacted it will in effect amend the Healing Arts Practice Act which we feel would not be in the public interest and which we believe would not be the intent of Congress. This state of alarm in the medical society is not solely limited to those mem- bers who are ophthalmologists (eye physicians and surgeons) but is shared by all members regardless of their specialty status or field of interest because these bills, as proposed, will prevent any physician or surgeon from using his nurse or any of his technicians in recording a patient's visual acuity, checking a patient's visual field, or performing any other technical task under his direction which the Healing Arts Practice Act now provides. These bills, will also grossly interfere with or eliminate some of the vital activities of our local hospitals' eye clinics, the Department of Public Health, school screening programs, and the eye departments of Georgetown University Medical Center, George Washington University School of Medicine, and Howard University School of Medicine. The professors of the above mentioned schools are concerned about these bills. Their concern is that proposed legislation will grossly interfere with the teach- lug program of their medical students, nurses, and the efficient operation of their eye clinics which serve thousands of District residents; the vast majority being indigent patients. The same restrictions proposed in these bills would also apply to all non-profit, government, or private hospitals and clinics in the District of Columbia. These bills will eliminate the nurses, teachers, PTA's, and other volunteer groups from the school eye screening programs and force these simple screen- ing procedures to be conducted only under the direction of an optometrist or physician. is this the intent of the authors of these numerous bills Screening programs should be excluded from the provisions of the bill. We wish to point out that even the District of Columbia Society for the Prevention of Blindness of the Metropolitan Area, a volunteer agency which has been in existence since 1936 and which makes a remarkable contribution in the prevention of blindness in this area by virtue of its screening programs, would be guilty of practicing optometry under the provisions of these bills. Under these bills the long established policy of vision screening applicants for motor vehicle operator's permits as adopted by the Director of Motor Vehicles of the District of Columbia would have to be modified to require an optometrist or a physician to perform this simple technical procedure presently being per- formed in a very efficient manner by a trained employee of the District of Columbia. On the principle of "Equal ,Tustice Under Law" it is inconceivable how either the courts or members of the bar could tolerate a situation whereby an expert witness could qualify by an Act of Congress by virtue of a simple license pro- cedure. Many members of Congress are also members of the legal profession and know that all expert witnesses, including medical, must qualify on the basis of their individual merits, and not on the basis of a licensing procedure. Further- more, such expert witnesses must be acceptable to the court and subject to cross-examination by both prosecuting and defense attorneys. We object to that provision of the bill (H.R. 732) which would require an individual to secure a written prescription from a physician or optometrist licensed in the District of Columbia to replace a broken frame or duplicate a broken lens because it serve no public good. Of the millions of visitors to the Nation's Capital every year there are thousands who carry on their person a prescription for their eyeglasses from "back home" for that very purpose. Un- necessary inconvenience and expense would be imposed upon persons in an emergency situation under the restriction of this bill. Any individual or official from another city while in Washington on pleasure or business would be forced to pay for a written prescription in order to replace a broken temple on his PAGENO="0157" OPTOMETRY 153 eyeglasses. Such a provision serves no useful purpose and would work hard- ships on visitors, and commuters to the District. The so called non-discrimination portion of these bills as stated in Section 14 which makes it unlawful for any employee of the District of Columbia to advise an individual as to the proper place to obtain eye care is certainly not in the best interest of the citizens of this city. To illustrate, suppose the school physician or school nurse is confronted with a child who sustained an injury to his eye or who had a severe infection' of his eyes which is obviously a medical problem. and beyond the purview of~ optometry. This bill would prevent `the nurse, school physician, or even the child's teacher from sending the child di- rectly to a physician, regardless of his speciality of medicine, for immediate and definitive treatment. By allowing this child to go to an optometrist under the parent's impression that the optometrist is an "Eye Specialist" `and is capable of rendering such treatment will at best act as an unfortunate delay `and un- necessary expense in obtaining proper medical care and, at worst, could result in the child going blind. The Medical Society of the District of Columbia is not prepared to accept the claim of the American Optometric Association that optometrists are capable of identifying and diagnosing diseases and of referring for proper medical care? Practicing physician's in all humility state that the most difficult diagnosis for a physician to make is that no disease is present. Our present law enacted by Congress clearly and properly defines optometry and has served the public interest of this community well over the past forty- three years. Under the Reorganization Act authority is properly given to the Board of Commissioners to regulate optometry in the best interest of the public. In fact the Commissioners have regulated optometry as late as 1951. Individual optometrists, the local optometric society, and the D.C. Board of Optometry have all the procedure tools necessary to recommend any justified changes in the practice of optometry under existing law. Any deficiencies under the present law can be corrected through the Board of Commissioners. The Medical Society of the District of Columbia recognizes the fact th'at optom- etry plays a role in .the vision care needs of this community. It takes no issue with optometry"s effort to improve their educational standards or to discipline its members. In fact, the Medical Society stands ready to support these laudable pursuits. However, one must not lose sight of the fact that optometry's role is, of necessity, a limited one and `any proposed legislation dealing with this subject must be kept in proper perspective if the public interest is to be served. The Healing Arts Practice Act for the District of Columbia requires a much higher level of training of the physician than it does of the optometrist. In keeping with this the law grants a much bro'ader authority to the physician, than to the optometrist. It `is in the public interest that this distinction be well known. The public has an inherent right to know that there is a difference if they are to procure the services they need. This distinction of licensing qualifica- tions is true of all physcians. In addition, the opthalmologist (eye physician) is required by the self-imposed standards of the medical profession and the stand- ard's maintained by the medical staffs and lay governing boards of local hospitals to have in addition several years training in the eye and related structures of the brain. . " PROPOSED AMENDMENTS The Medical Society of the District of Columbia does not believe that new legislation is necessary to regulate optometry in the District of Columbia. How- ever, after due consideration of the foregoing facts, if Congress in its wisdom still feels,that legislation in this field is necessary the Medical Society submits for the committee's consideration recommended changes in the bill. These changes were made after many hours of deliberation and study by the District Medical Society, medical educators representing the three local medical schools, staff members of local hospitals, and by allied organizations concerned with the public health. The Medical Society changes are shown on a copy of H.R. 1283 which is attached to this statement and are summarized briefly as follows: Section 2 `on page~s 1 and 2 of the bill should be amended as indicated to define optometry correctly. Optometry is a `skilled mechanical art involving human vision. It is not a learned profession. The last sentence in Section 1 should be amended by deleting,therefrom the words "admitted to the practice of optom- etry in the District of Columbia under the provisions of this act." This should PAGENO="0158" 154 OPTOMETRY be done because as the act is now drawn the practices covered by this bill can only be done by optometrists licensed under the provisions of this act. If not changed, this will eliminate the nurses and technicians working under a phy- sician's supervision and other areas of concern. Section 3 should be amended and optometry should be defined as it is now defined in the District of Columbia Code. As presently defined by law, "the prac- tice of optometry is defined to be the application of optical principles through technical methods and devices in the examinations of the human eye for the purposes of determining visual defects and the adaptation of lenses or prisms for the aid and relief thereof." The definition suggested also deals with the prescrib- ing of contact lenses or eyeglasses as presently wordeth These bills would authorize optometrists to engage in "the identification of any departure from the normal condition or function of the human eye in- cluding its associated structures". Such broad terminology will carry the optom- etrists into the field of practicing medicine. "Associated structures" in medical terms includes the brain, the lacrimal apparatus, the eye lids, the paranasal sinuses, the endocrine glands, and many other things which the optometrist should not be involved with at all. It has been brought out in past hearings on similar bills that an optometrist under the existing law cannot use drops, dyes, drugs or any other chemical which comes in contact with the human eye; therefore, Congress should make this clear by adding on page 6 of the bill a new subsection titles (la) "The use of drops, dyes, drugs, medicine, or any other chemical which comes in contact with the eye." We suggest that the word "profession" should be deleted from Section 7(a) (15) on page 9 of the bill and the word "optometric" be substituted. We also suggest that a new Section (20) should be inserted on page 9 of the bill and that this be paragraph (7) from page 12 of the bill. HR. 1283 should be clarified in order to provide that the adapting and fitting of lenses, prisms, and contact lenses be the only phase of the bill which requires a written prescription from a physi- cian or an optometrist licensed to practice medicine or optometry. Accordingly, Section 8(4) on page 11 of the bill should be so written as indicated. The requirement that the physician or optometrist be licensed to practice in the District of Columbia only, should be eliminated from the bill in order to afford the millions of visitors who come to the District of Columbia the right to have lenses, prisms or contact lenses made when they have a written prescription from a physician or optometrist licensed to practice outside the District of Columbia. Section 8(7) which appears on page 12 of the bill should be taken out of this section of the bill and be added as paragraph (20) to Sec. 7 of the bill as indicated earlier in this statement. Page 13 of the bill should be amended to read as follows: Sec. 9(a) (2)-"To any member in the armed services in the District of Col- umbia acting in the performance of his military duties ;" Sec. 9(b) should be amended to read as follows: "This Act shall not apply to a physician and/or surgeon practicing medicine or surgery under the laws of the District of Columbia, nor to nurses and tech- nicians acting under their direction." Sec. 9(c) pages 13-14 of the bill should be clarified and it should read as fol- lows: "This Act shall not apply to any person who fills the written prescription of a physician, surgeon or an optometrist." Page 15. Sec. 9(e) should be amended to read: "Nothing in this act shall be deemed to authorize an optometrist to use the title `doctor' or any abbreviation thereof except that if he uses such title or such an abbreviation it must be fol- lowed by the title optometrist. Page 15 Sec. 10(a) the word "ohphthalmic" should be deleted and "optometric" inserted in lieu thereof, and after the word "materials" insert "by optometrists." Line 22 "ophthalmic" should be deleted and "optometric" be substituted. The word "ophthalmic" also appears on lines S and 12 page 16 of the same sec- tion this word should be deleted and in its place the word "optometric" inserted in lieu thereof. On line 8 of the same page, the words "by optometrists" should be inserted after the word "materials." Section 13(c), page 18, should be deleted in its entirety. This Section of the bill attempts by legislation to make the optometrist an expert to testify by merely possessing a license and also attempts to have his certificates accepted as quali- fied evidence once he obtains a license under the act to practice optometry. PAGENO="0159" OPTOMETRY 155 Section 14 appearing on page 19 should be deleted in its entirely. Our one real objection to this so-called anti-discrimination provision is that it will prevent a public health physician, who determines that a medical problem is involved, fron~ sending a pupil in a public school to his family physician or medical specialist for examination and treatment. It's just that simple. Delay in referring and treating a diseased or injured eye could result in future eye damage and possible blindness. Therefore, Section 14 should read as follows "Every optometrist shall within ten days after the completion of an optometric refraction, refer to ~ physician or surgeon for a medical eye examina- tion every person whose visual acuity the optometrist does not improve to at least twenty over thirty Snellen in each eye. The optometrist shall not there- after prescribe, provide furnish or adapt lenses, prisms or ocular exercises for such person unless and until the optometrist receives written approval from a physician or surgeon. Failure to comply with this section shall constitute mis- conduct and shall also be a misdem~eanor and may be enjoined under Section 12 or prosecuted under Section 13, with the same punishment provided for in Section S of this Act." Such a provision will improve eye care for patients in the District of Columbia. Should the Committee not adopt the suggested amendment in lieu of Sec. 14, Congress should consider adopting a provision similar to the State of Colorado Statute relative to the optometric bill passed in 1961 which reads as follows: "1OZ-1-1G. Cause for revocation of license, procedure. (o) Failing to refer or direct a patient to a physician whenever it comes to the attention of the licensee that such a patient exhibits signs or symptoms of a disease requiring treatment by an ophthalmologist or other physician." On June 25, 1954 in Seattle, Washington the American Optometric Associa- tion passed resolution #4 which declared that "the field of visual care is the field of optometry and should be exclusively the field of optometry." This reso- lution further recommended to state optometric associations that they "make seriouS study of the optometry laws prevailing in their states to the end that exemption be restricted, limited, and ultimately eliminated, and that encroach- ments by untrained, unqualified and unlicensed persons into the exclusive field of optometry be prevented through the established enforcement agencies in the respective states." An optometrist has nothing to do with the care of the human eye. The func- tion of an optometrist is to attempt after an examination, of the eyes to alle- viate certain visual problems' in the eye at th~ tin~e of his examination. The optometrist is neither qualified nor competent to examine the eye for any pathology, to make a diagnosis of any conditions in the eye or to recommend any treatment or care of the eye. The sole function of an optometrist is to fuimish lenses and glasses to aid in `the vision area. He is not trained to treat the eye in any way. The proposed legislation in attempting to improve the care of the human eye in the field of optometry will not have any effect on the type of care nor will it improve the care of the eye. Eye care is primarily a function of the physician. Vision is a function of the optometrist. The eye `is part of the body which is in the province of medicine. The optometrist should merely be concerned with visual anomalies in the normal eye. The District of Columbia has a very progressive ophthalmological community. It has th'ree `universities which are training residents in Ophthalmology. It has several hospitals with active programs. At least forty residents in ophthalmology are `currently being trained by these jurisdi'cti'ons. These are the men who will be dealing with eye care. Washington has the facilities of the National Institutes of Health, the excellent facilities of the Army, `Navy and Veterans hospitals, an'd local hospitals which train men in eye care. `This eye care is all inclusive. The Medical Society of the District of Columbia believes that no new legisla- tion is necessary t'o regulate optometry in the District of Columbia. If `the Con- gress sees fit to change existing legislation that due consideration be given to the `suggested changes which are `substantially similar to those suggested by the Board of Commissioners of the District of Columbia by letter to the Chairman of the Committee of the District of Columbia, dated May 18, 1967, the Guild of Prescription Opticians, `the Bar Association of D.C., concerning HR. 1283, H.R. 595, and H.R. 732, so `that the fields of eye care and visual need's in the District of `Columbia can proceed in the public interest. `The Medical `Society expresses its thanks to this Committee for `affording it the opportunity to pres'ent its views concerning this proposed legislation. PAGENO="0160" 156 OPTOMETRY Dr. ALPER. I am the President of the Section on Ophthalmology of the Medical Society of the District of Columbia. The Medical So- ciety of the District of Columbia is the only Medical Society ever chartered by Act of Congress and it is the oldest. scientific organization chartered by Congress, having been founded in 1617. It consists of 2,533 members and most of the membership is very much alarmed about the numerous features of 1-LR.. 1283 and related bills. Mr. SIsK. Dr. Alper, if I could just stop you for a moment. Have you by any chance had an opportunity to peruse H.R. 12276? Dr. ALPER. Yes, sir. Mr. SIsK. My reason for asking is that there have been some changes in H.R. 1283, and in almost every instance they were made at the insti- gation of ophthalmologists and others of the medical profession. This was an effort to clarify the language as it concerned medical people. I wanted to call that to the attention of the committee and to you. We were hopeful that to some extent these changes would solve some of your problems. Dr. ALi~. The Medical Society of the District of Columbia rec- ognizes the fact that optometry plays a role in the vision care of this community. We take no issue with the optometrists' efforts to improve their educational standards or to discipline their own members. In fact, we stand ready to support these laudable pursuits. However, one must not lose sight of the fact that optometry's role, by education and training, is of necessity a limited one and any proposed legislation dealing with this subject must be kept in proper perspective if the public interest is to be served. We feel that if any of these bills are enacted, it will in effect amend the Healing Arts Practice Act which would definitely not be in the public interest and which we believe would not be the intent of this committee. Our state of alarm is not solely limited to those of us who are ophthalmologists, but is shared by all members of our District of Columbia Medical Society, regardless of their specialty, status or field of interest, because certain points of the amended bill, over the former 1283 bill, point out that any of our nurses or technicians, in recording a patient's visual acuity, visual field or other technical tasks for which they are trained and which the Healing Arts Practice Act now provides, would be limited in doing these by use of the term "direct supervision." These bills would also grossly interfere with or eliminate some of the vital activities of our local hospitals' eye clinics. The Department of Public Health, the school-screeninp programs and the eye departments of Georgetown University Medical Center, George Washington University School of Medicine and Howard Uni- versity School of Medicine. The professors and deans of the above- mentioned institutions were so concerned about this that we formed a subcommittee of university professors and Dr. Claude Cowan, who is professor and chairman of the Department of Ophthalmology at Howard University, was appointed as the chairman of this subcom- mittee. He was here but unfortuna.tely has been called away because of an emergency operation and I have his joint statement which 1 will submit, if this is all right with you, sir. Mr. SIsK. Without objection, his statement will be made a part of the record immediately following your statement. PAGENO="0161" OPTOMETRY 157 Dr. ALPER. Thank you. The Medical Society of the District of Columbia feels that no new legislation is necessary to regulate optometry in the District of Co- lumbia. If the Congress, however, sees fit to change existing legislation, we respectfully request that due consideration be given to suggested changes substantially similar to those suggested by the Board of Com- missioners of the District of Columbia by letter to the Chairman of the Committee on the District of Columbia dated May 18, 1967, the Guild of Prescription Opticians, the Bar Association of the District of Columbia, concerning H.R. 1283, 595 and 732-I realize, Mr. Chair- man, some of these have been changed already but we are going to sub- mit, if this is all right with you, our proposed or suggested amendments to H.R 1283. Mr. SIsK. If I may interrupt you, Doctor, would you state for the committee whether or not those proposed changes are identical or are they substantially different from what you presented to the com- mittee last year? Dr. ALPER. It is substantially different from that of last year and differs from the changes incorporated in H.iR. 12276. Mr. SI5K. The committee will want that to be made part of the committee files, since your proposed amendments are included in your prepared statement already included in the record. Dr. ALPER. It is our intent that these changes will be in the public interest in the field of eye care so thnt the visual needs in the District of Columbia can proceed in this public interest. Mr. Chairman, the Medical Society expresses its thanks to this com- mittee for according it the opportunity to present its views concerning this proposed legislation and I would like to introduce Dr. Robert; Kling, the Program Director of the Georgetown Umversity, for his statement, sir. Dr. KLING. Mr. Chairman and members of the committee, I have the honor to represent and to present a statement which is the combined statement of Dr. Albert Hardin, Dean of the College of Medicine at Howard University; Dr. John Rose, Dean of the School of Medicine at Georgetown University; Dr. John Parks, Dean of the School of Medi- cine at George Washington University; Dr. Claude Cowan, Chief of the Department of Ophthalmology at Howard University; Dr. James O'Rourke, Chief of the Department of Ophthalmology, Georgetown University, and Dr. John MeTigue, Chief of the Department of Oph- thahnology at George Washington University. Mr. SIsK. The complete statement will be included in the record at this point. (The proposed statement follows:) AUGUST 15, 1967. Re H.R. 1283 and H.R. 12276. SUBCOMMITTEE No. 5, HOUSE COMMITTEE ON THE DI5TRIC'r OF COLUMBIA, Was1~ington, D.C. JOINT STATEMENT Mr. CHAIRMAN, MEMBERS OF THE COMMITTEE: This bill has many fine features, and `the zeal of the optometrists to police their act is to be commended. However, this endeavor has led to the seeking through legislation a status which is only pos- sible through education. Being engaged in the training of ophthalmologists we are concerned when it is proposed to grant the same rights and privileges to any group with less training. We feel the health and welfare of the public is at stake. To become an ophthalmologist requires a college degree, four years in medical 82-754--67-------l1 PAGENO="0162" 158 OPTOMETRY school, M.D. degree, one year internship and a three-year residency in ophthal- mology. The doctor must then spend at least another year in some phase of oph- thalmology before he is eligible to take an examination in order to be certified by the American Board of Ophthalmology. For the foregoing reason we specifi- cally object to the first sentence of Sec. 2 which declares optometry to be a pro- fession and not a mechanical art. Traditionally, historically and by law there are only three learned professions, law, medicine and theology, none of which gained their position by legislation. We also specifically object to Sec. 3, (2), (a) which would permit the employment of any objective and subjective examination of the human eye. The term objective and subjective examination is so broad it encompasses practically every type of eye examination. It would permit an op- tometrist to extend himself beyond his training. In H.R. 12276, Sec. 9(d) (4), Page 14, line 23, we specifically object to the use of the term, "direct personal supervision", which we imply to mean the actual physical presence of an optome- trist, doctor of medicine or osteopathy, when an assistant performs such acts for which they are well trained. We would substitute the term under the "direction of". We also specifically object to Sec. 3, (2), (a) which would permit the em- ployment of any objective and subjective examination of the human eye. The term objective and subjective examination is so broad it encompasses practically every type of eye examination. It would on the one hand permit an optometrist to. extend himself beyond his training and on the other hand prevent such a simple procedure as a nurse taking vision or an ophthalmic technician (assistant) taking fields or measurements of the eye pressure under the direction of an ophthalmologist. This means that nurses would be prevented from performing such a simple task as visual screening in our schools, clinics and offices. As a result of these visual screening test thousands of children enjoy better vision. Many of us employ ophthalmic technicians (assistants) who do visual acuity, visual field and tonometric tests. Since 1957 Howard University College of Medi- cine has employed a glaucoma technician. Every patient over thirty-five entering the hospital is screened for glaucoma. If the measurement is suspicious, he is referred to the glaucoma clinic. A glaucoma technician is also employed to per- form similar duties in a research study to determine if there is a correlation `between glaucoma and diabetes. To conduct such a study in which it is necessary to examine a large number of patients an ophthalmic technician is vital. The technicians are under our direction and we are responsible for their actions. For the past four years Georgetown University, in addition to its four-year training program of 16 eye resident physicians, has been engaged in a pioneer program of training future ophthalmic assistants. The duration of each course is two years. This is not only the first Federally supported training program of its kind in our nation but it has also already served as a model for similar pro- grams in other countries. It was developed in recognition and acceptance of the responsibility of academic medicine to lead new ways toward still better and more comprehensive eye care of our population. It must be realized that the community-conscious efforts of Washingtoii's three medical schools are reflected not only in their eight affiliated major hospitals and eye clinics but also in the eye care of thousands of institutionalized senior citizens at D.C. Village and of minors at the District Training School. Finally, the entire Public School vision screening program, encompassing every year about 110,000 school children, is channelled into special eye clinics where all those children are seen who did not pass the screening. These eye clinics are professionally staffed by university resident physicans and qualified opthal- mologists who are aided, by ophthalmic assistant trainees (previously called technicians). While the Optometric Center laudably participates in providing refractions and glasses for these needy children the heaviest load is carried by the universities. Furthermore, definitive treatment of the many cross-eyed chil- dren, involving elimination of poor vision, orthoptics and surgery, is provided at university affiliated hospitals. These programs would be nearly or completely (e.g. orthoptics) impossible without the help of trained technicians. In the case of Certified Orthoptists the situation created by the proposed bill H.R. 1283 is almost unbelievably anachronistic. For over 30 years the American Orthoptic Council with its stringent criteria for training and certification of ôrthoptists has voluntarily rendered* an invaluable service to the American publië. Sc. 3, (2), (g) would make it illegal for any orthoptist to help a cross- eyed patient by using her special skills under the direction of an. ophthalmologist in the District of Columbia. : PAGENO="0163" OPTOMETRY 159 At the Children's Hospital of the District of Columbia unique research has been carried on for the past few years. In the operating rooms ophthalmologists have been able to fit infants after surgery for congenital cataracts with corneal contact lenses, saving one or both eyes from practical blindness. This research and its results have hitherto been unheard of in the world. Without the help of technicians this work cannot be carried out. During these very summer months, Georgetown University, in collaboration with the D.C. Health Department and the D.C. School Board and without any cost to the District of Columbia, is conducting a special school and pre-school children accelerated vision screening program which is for research purposes administered exclusively by ophthalmic assistants trained by that medical school. This study proceeds with the knowledge of, and without objections from, the D.C. Optometric Society. At its conclusion in fall the results and experiences will be made available to all interested organizations including the Optometric Society. Mr. Chairman, the responsibility of the three medical schools of the District of Columbia lies in training the best possible physicians for tomorrow. At the same time we are keenly aware of our moral obligations toward the health of our community. We would be remiss in these obligations if we would sanction tendencies or even legislative attempts to undermine existing and well-regulated ancillary medical occupations, such as orthoptists. But we would also be remiss if we would ignore the constantly changing picture. of the medical needs of our population. * The dire need of this country for increasing the available health manpower has been recognized and acknowledged by Congress with the passing of. the Allied Health Profession Personnel Training Act of 106G. A good illustration of some of the anachronisms hidden in HR. 1283 can be `obtained by reading the list of occupations eligible for Federal Training Grant support under this new Act which includes Ophthalmic Assistants. It was no surprise to us but it may not be known to all Committee members, that this Act includes also Optometric Technologists. We understand that Federal grant support has indeed already been extended to an Optometric Technologists training program at the mdi- `anapolis University. Finally, at the recent American Optometric Association Congress in Portland, Oregon, the Resolution No. 1 was adopted by their House of Delegates on July 1, 1967, which strongly urges development and further sup- port of training centers for Optometric Technologists aisci Ophthalmic Assistants. Today both ophthalmology and optometry recognize that even perfect. harmony between the two fields would not be sufficient to meet the eye care needs of the American public. Technicians, assistants, technologists or whatever term is preferred are needed in many aspects of eye care. To deny such need or to render impossible the use of such trained persons `would not only be extremely myopic but would also defeat the purpose of the amended Health Manpower Act. Moreover, such a step should also be contrary to optometry's own goals'. The deans of `the three medical schools of the District of Columbia join unanimously their Professors of Ophthalmology in `opposing H.R. 1283 in its present form and in supporting its revised form as submitted by the Medical Society of the District of Columbia. Respectfully submitted. CLAUDE L. COWAN, M.D., Chief, Dept. of Ophthalmology, Howard University. JAMES O'ROURKE, M.D., Chief, Div. of Ophthalmology, Georgetown University. JOHN W. MOTIGUE, M.D., Chief, Dept. of Ophthalniology~ The George Washington University. ALBERT K. HARDEN, M.D.. Dean., College of Medicine, Howard University. JOHN C. ROSE, M.D., Dean, ~ehool of Medicine, * Georgetown University. JOHN PARKS, M.D., Dean, school of Medicine, The George Washington University. PAGENO="0164" 160 OPTOMETRY Dr. KLING. Since this is a joint statement, you will see this was de- cided upon when H. IR. 1283 was being discussed. As a result some features of this letter are already out of date. I will attempt to delete those no longer applicable. This bill has many good features. The zeal of some optometrists to improve the quality of optometry practiced in the District of Colum- bia is, in our opinion, commendable. Can it be, however, that some would seek, through legislation, a status which is possible only through education? We who are engaged m the training of ophthalmologists are concerned when it is proposed to grant the same rights and privileges to any group that has less train- ing. We believe that the health and welfare of the public may be at stake. In order to become an ophthalmologist, one must have a college degree, an M.D. degree after four years training in medical school, one year or more of internship, and three years of residency training in ~ophthalmology. We do object, therefore, to legislation which attempts to equate optometric training with ophthalmological training as preparation for service in the field of eye care. We also specifically object to Section 3, paragraph 2(a) of the previ- ou~ bill which would permit the employment by optometrists of any objective and subjective examination of the human eye. This expres- sion encompasses every type of eye examination. It would, on the one hand, permit an optometrist to extend himself beyond his training. On the other hand, it would prohibit nurses and ophthalmic technicians from performing under the direction of an ophthalmologist such simple procedures as checking visual acuity, measuring visual fields and measuring intraocular pressure. As we understand it, it would prohibit nurses, parents and friends from performing visual screening in our schools. Many of us employ ophthalmic technicians who measure visual acuity, visual field and intraocular pressure. Since 1957, Howard lJni- versity College of Medicine has employed a glaucoma technician. A technician is also employed in a research study involving glaucoma and diabetes. Performing such large studies would be impossible with- out the help of ophthalmic assistants. For the past four years, George- town University, in addition to training eye physicians, has trained ophthalmic assistants. This federally-supported, two-year training program is well accepted in this country and is being imitated in other countries. It was developed in recognition of the responsibility of academic medicine to find new ways towards still better and more comprehensive eye care for our citizens. The efforts of Washington's three community-conscious medical schools are evident not only in the eight affiliated major hospitals and eye clinics, bift also in the eye care provided to thousand of institution- alized senior citizens at D. C. Village and of minors in the District Training School. The public school visual screening program, including about 110,000 school children each year directs children into special eye clinics which are professionally staffed by university resident physicians and by qualified ophthalmologists aided by ophthalmic assistants. jThe optometry center, laudably, participates in the cases of these children, but the heaviest load still is ca.rried by the universities. PAGENO="0165" OPTOMETRY 161 Definitive treatment of the many cross-eyed children involving the improvement of poor vision, and surgery is provided at university- affiliated hospitals. These programs would be nearly or completely nn- possible without the help of trained technicians. This treatment would be given by certified orthoptists by the proposed bill, H.R. 1283-and, incidentally, the newer version is unbelievably anachronistic. For over thirty years the American Orthoptic Council, with its stringent criteria for the training and certification of orthoptists has voluntarily yen- dered a valuable service to the American public. Section 3, paragraph (2) (g) of the earlier bill, not changed in the later bill, would make it illegal for any orthoptist to help a cross- eyed patient by using her special skills under the direction of an ophthalmologist in the District of Columbia. Unique research carried on during the past few years at the Chil- dren's Hospital of the District of Columbia has brought useful vision to infants who in early times could not have been helped. Incidentally, it also has brought more world renown to our Children's Hospital. The fitting of corneal contact lenses to these infants in the operating room after surgery for congenital cataract cannot be accomplished without the help of highly skilled technicians. During this summer Georgetown University, in collaboration with the D.C. Health Department and the D.C. School Board, without any cost to the District of Columbia, is continuing a special accelerated visual screening program for school children and pre-school children. This program is being administered by technicians who were trained at Georgetown University Medical Center. The three medical schools of the District of Columbia are doing their utmost to produce the best possible physicians for the future. They also are doing a very good job of training ancillary medical personnel. We would be remiss in our duty if we did not call to congressional and committee attention legislation which would tend to undermine the good work of these well-trained people. The serious need in this country for increasing the availability of health manpower has been acknowledged by Congress with the passage of the Allied Health Pro- fessions Personnel Training Act of 1966. A good illustration of some of the anachronisms hidden in H.R 1283 and not completely corrected by later version, can be obtained by reading the list of occupations eligible for Federal training grant support under this new act. It in- cludes ophthalmic assistants. It was no surprise to us, but it may not be known to all the com- mittee members that this act also includes optometric technologists. At a recent American Optometric Association Congress in Portland, Oregon, resolution No. 1 adopted by their House of Delegates on July 1, 1967, strongly urges development and further support of training centers for optometric technologists and ophthalmic assistants. The need and desire for eye care in the United States is more than enough to keep all our ophthalmologists, all our optometrists, technologists, technicians, assistants and volunteers, busy. To render impossible the use of such trained persons would be most uneconornicaJ and would tend to defeat the purpose of the amended Health Manpower Act. PAGENO="0166" 162 OPTOMETRY The deans of the three medical schools of the District of Columbia joined their professors of ophthalmology in opposing H.R. 1283 in its earlier form and in supporting the revised form as submitted by the Medical Society of the District of Columbia. In the name of our three deans, our faculties in ophthalmology and our attending staffs at the university hospitals and all our affiliated hospitals, I thank you for your kind attention. Mr. SIsK. Thank you, Dr. King. Dr. ALPER. Dr. Daniel Albert will read the next statement. Dr. ALBERT. Mr. Chairman and members of the committee, I am Dr. Dan G. Albert. I have practiced ophthalmology in the greater Washington area for the past 14 years. My educational and clinical experiences have been such that I believe I am qualified to present to the committee many of the numerous features of H.R. 1283-and I am sorry I cannot a.pply this statement to the new bill, ll.R. 12276. I haven't had a chance to peruse it-which have alarmed the medical society of the District of Columbia and practicing ophthalmologists generally in this country. We believe enactment of this bill would not be in the public interest. In 1934 1 entered one of the few schools of optometry that was as- sociated with a recognized university and in 1938 was graduated by the Ohio State University School of Optometry, receiving a BS degree. I practiced optometry in the State of New York for the next four years. During the last. year of my practice-which, I might add, was in the optical department of a jewelry store-I was careful in recording the number of patients who I saw who I felt i~eeded medical treatment and who were therefore referred to medical services. It wa-s the thirty percent of these people I saw that year who .1 felt I wa-s rncapable of servicing that added to my desire to obtain a medical degree. In 1942 I entered the Armed Services and during my four years in the Medical Corps of the Army 1 became increasingly aware that the limited education I had received in optometry school did not qualify me to render eye care that I felt the public should receive. After being discharged from the service, I entered Syracuse Uni- versity College of Medicine and received an M.D. degree from the university in 1950. Following a year of general internship in Rochester, New York, I took a three yea.r residency program at the old Episcopal Eye, Ear, Nose a-nd Throat Hospital here in Washington. There, under tile excellent guidance and teaching of many of Washington's fine ophthalmologists, I obtained the education that I thought was necessary to render complete eye care to the public. In comparing the four years spent in optometry school with the eight years that followed preparing me to be an ophthalmologist, a book could be written. Optometric training entitles one to deal with vision alone, while the ophthalmologist training enables one to provide the public with complete eye care. In 1953 I entered private practice with Dr. Frank D. Costa.nbader here in Washington a-nd in 1955 and `56 1 took special examinations in ophthalmology for certification in the American Academy of Oph- thalmology. Only ophthalmologists who have had similar training to mine are entitled to take this examination. PAGENO="0167" OPTOMETRY 163 * A very comprehensive written examination is taken. If passed, one is then entitled to be. examined by a Board of nationally famous oph- thalmologists who for three days give a very extensive oral exami- nation covering all phases of ophthalmology. In 1965 I was elected President of the Section of Ophthalmology of the Medical Society of the District of Columbia. This is an organiza- tion of over 120 members, all of who are members of the Medical Society of the District of Columbia, all who are either Board-certified or who will be eligible to take the Board. We feel very strongly that some of the proposals made in this bill under discussion do the public a disservice. It seems inconceivable to us why the practice of optometry, as defined in H.R. 1283, tries to equate optometry and medicine. As stated, the practice of optometry means the employment of any objective or subjective means for the examination of the human eye. This is completely all-inclusive. It would encompass methods and instrumentation that must be confined to those whose training and experience assure safety to the public. This same sentence then concludes by adding its appendages to the examination of the human eye. "An appendage is anything that is attached to any object by any means." This definition could mean that the optometrist could use any objective or subjective method that he would care to use for any part of the body. This would clearly be an infringement of the Medical Practice Act. Subsection (d) in the definition, the determination of the scope of the huma.n eye in general, is likewise objectionable to us. We are not attorneys, but it seems generalities like this should not be enacted into law. Further in the definition it states that the practice of optometry means the identification of any departure from the normal condition or function of the human eye, including its appendages. The bill would therefore not only make the optometrist operate as ophthalmological diagnosticians, but make them internists and put them into all other medical specialties. The practice of optometry, according to the bill, means any of the acts or practices as they are included in the curriculum of recognized schools and colleges of optometry. Congress then is not defining optom- etry but is allocating it to the dean of any school who might include any medical course in his curriculum. We suggest that optometry be defined as what it really is and not what they, the optometrists would like it to be, and suggest that the bill be amended to substitute the present definition in our existing law. As written, this bill not only infringes on the Medical Practice Act, but also restricts the rights, privileges and necessities of the medical practitioner. If this bill is enacted as written, our nurses could not take a patient's visual acuity. Visual field testing, ocular motility workup and other technical tasks could not be done by teclmicians working under the physician's direction which the Medical Arts Prac- tice Act now provides. I hope the statement just made by the Dean's Committee of the Medical Schools is well taken and it is apparent that this portion of the Act would be doing the public a disservice. We object to the portion of the bill which makes it unlawful for PAGENO="0168" 164 OPTOMETRY any person except a physician or an optometrist to sell frames or duplicate lenses without a prescription. We believe that opticians should not be discriminated against and deprived of the services which they have been rendering to the public for years. Section 14 of this Act makes it unlawful for any employee of the District of Columbia to advise an individual as to the proper place to obtain eye care. The professional judgment of school physicians and nurses would, therefore, be curtailed. They could not directly suggest that a child with an injured or infected eye procure needed medical attention. We believe that the bill should state in Section 7 that the use of drops, drugs, medicines and other chemicals which come in contact with the eye be grounds for revocation of an optometrist's license. A patient who visits an optometrist is completely at his mercy to detect any pathological state that may exist within his visual ap- paratus. Unfortunately, this is all too frequently not done or, if recog- nized, is not referred for definitive medical care, as many surveys in this area have shown. Under the existing laws, the optometrist is under no obligation to' diagnose or to refer morbid conditions. All ophthalmologists see un- fortunate patients who could have preserved priceless vision if the diagnosis and treatment ha.d not been delayed. To protect the public from these calamities, the Medical Society of the District of Columbia strongly urges a 20-30 clause be included as is stated in the substitu- tion submitted for Section 14, and I would like to read this proposed substitution, sir: "Every optometrist shall within ten days after the completion of an optometric refraction, refer to a physician or surgeon for a medical eye examination every person whose visual acuity the optometrist does not improve to at least twenty over thirty Snellen in each eye. The optometrist shall not thereafter prescribe, provide, furnish or adapt lenses, prisms or ocular exercises for such person unless and until the' optometrist receives written approval from a physician or surgeon. Failure to comply with this section shall constitute misconduct and shall also be a misdemeanor and may be enjoined under Sec. 12 or prosecuted under Sec. 13, with the same punishment provided for in Sec. 8 of this Act." I wish to thank the committee for this opportunity extended to me to present my views and those of the Medical Society of the District of Columbia. Mr. SIsK. Thank you, Dr. Albert. Dr. ALPER. Next is Dr. L. Edward Perraut. Dr. PERRAuT. Mr. Chairman and members of the committee, I am Dr. Perraut. I am t.he immediate past president of the Section of Ophthalmology of the District of Columbia Medical Society. I grad- uated from the University of Louisville School of Medicine in 1946. I took an 18-month internship a.nd then practiced medicine for six years in a small southeastern Kentucky town. I was called to the Army where I served the next two years. During this time I became interested in ophthalmology. After com- pleting my tour of duty I be~an my three-year residency at the Epis- copal Eye, Ear, Nose and Throat Hospital here in Washington and completed residency at the Washington Hospital Center. PAGENO="0169" OPTOMETRY 165 I then took intensive training in retinal detachments under Dr. `Harrell Pierce, the Johns-Hopkins Hospital, for the next six months. Following this I began practicing ophthalmology in Washington with Dr. E. Victor Simpson. During this same year I took~ the American Board of Ophthalmology examinations and became certified by the Board. During the past year as President of the Section of Ophthalmology, I became much more aware that optometry was trying to equate itself with medicine by legislation. This should only be done by education, not by legislation. Ophthalmologists have `a total of 12 years training after high school compared to six for optometrists. If Congress enacts an optometry law, the amendments submitted on behalf of the Medical Society of the District `of Columbia should be adopted by Congress. We state our reasons therefor briefly: Optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviation from the normal found in the human eye, but is not a profession and the courts in the District `of ~ölumbia have so held. In the Silver vs. Lansburgh Brothers case, the United States Dis- trict Court for the District of `Columbia held "optometry is not a learned profession comparable to law, medicine and theology, not- withstanding standards of education that are prescribed `by the statute and rules of the Board. It certainly has nothing in common with law or theology and until recently it never claimed to be a part of `medicine." In affirming so Fourth United States `Court of Appeals for the District of Columbia, in Silver vs. Lansburgh and Brothers, held that "Optometry is a mechanical art which requires skill and `a knowledge `of the use of certain appliances designed to record the errors and deviations from the normal in the human eye, but is not a learned profession comparable to law, medicine or theology. Optometry is not `a part of medicine." The provisions in the present bill would forbid doctors of medicine and their nurses and technicians acting under the doctors' direction from performing any of the procedures defined in the bill. Doctors have such rights and our District Court so held in Silver above. Physicians and surgeons may practice optometry without being licensed. Neither the medical profession nor the public questions the propriety and need for X-ray and laboratory technicians, dental as- sistants, nurses, physical therapists and many other vital ancillary medical assistants. This section of the bill is discriminatory as it forbids the utiliza- tion of technical assistants by doctors of medicine in rendering care. It would disrupt vitally needed teaching `and screening procedures `now being utilized and properly so in this community in schools, universities, hospitais and voluntary health programs. PROPOSED AMENDMENTS This provision in `the bill conflicts with the government's proposal to train a clditional paramedical personnel because of `the critical short- `age of trained medical personnel. We recommend amending Section 2 PAGENO="0170" 166 OPTOMETRY to read as so follows: "Practice of optometry is defined to be the application of optical principles through tecimical methods and de- vices in the examination of the human eye for the purpose of deter- mining visual defects and the adaptation of lenses or prisms for the aid and relief thereof, or the prescribing of contact lenses for, or the fitting or adaptation of contact le.nses to the human eye. "Such measurement of tile eye and modification of the light enter- rng the eye is optometry and this definition of optometry has been declared sound and correct by the courts in the Silver cases above." As drawn, optometrists could examine, use X-rays and other means of examination for pathology. This is the practice of medicine and would authorize medical procedures by optometrists which are f or- bidden by law. In the Silver case above, the Court held "Optometry is said by a. well known writer on the subject not to be a part of medi- cine, either by inheritance, basic principles. development or iractice. It is an applied arm of optical science resting upon the work and dis- coveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whethe.r in health or disease, `but adapts the light rays which enter the eye in accordance with optical prin- ciples so as to produce focused a.nd single vision with the least ab- normal exertion on the part of the eye." Our amendments are necessary to exclude the dispensing optician from being barred in filling written prescriptions of physicians. sur- geons and optometrists which is the optician's existing traditional function in the District of Columbia.. Actually these bills should be further amended to exclude from their provision persons ~v~ho sell spectacles, eyeglasses or lenses as merchandise a.s now provided in the preseiit optometry law, Section 20(h), and is now provided generally in optometrist laws throughout the U.S. Amend Section 9 to read "This Act shall not apply to physicians or surgeons practicing medicine or surgery under the laws of the District of Columbia, nor to nurses or technicians acting under their direction." Amend Section 9 to read as follows: "This Act shall not apply to any person who fills t.he written prescription of a physician, surgeon or optometrist." The last portion of Section 9 should be deleted. Section 9(c). Section 14 should be deleted and the following inserted in lieu thereof: "Every optometrist shall, within ten days after the completion of an optometrist's refraction, refer to a physician for a medical eye examination any person whose visual acuity the optometrist has not improved 20 over 20 Snellen in each eye. The optometrist shall not thereafter prescribe prisms or ocular exercises for such person unless and until the optometrist receives written approval from a physician." Optometrists state they are capable of recognizing eye diseases and do refer persons with such diseases to physicians for medical care. The North Carolina report casts doubt on these claims and state- ment.s of optometrists. With the low percentage of referrals as shown by the North Carolina report, is also shown by optometry's own sur- v~y of Dale F. Kitner, O.D. survey and in the testimony of Meredith WI Morgan, Jr.. O.D., Dean of the School of Optometry, University of Calif~rnia, `which show referrals of only 2.9 per cent of the grand total of patients seen by optometrists. PAGENO="0171" OPTOMETRY 167 The Canadian Royal Commission on Health Service, in its two volume report published in 1964 stated optometrists in Canada re- port that on the average 4.4 per cent of their patients are referred to ophthalmologists or other physicians; medical experience is that those patients who come in for refractions only almost half had an associ- ated disease and 13 per cent had a general disease affecting their eyes. The Canadian survey shows serious conditions of or manifested in the eye recognized by optometrists that could be detected by oph- thalmologists. The medical profession's objective is to assure that. the public obtain the best possible medical care and to prevent failure of referrals for needed medical treatment. There are over 1200 eye diseases listed in the nomenclature of eye diseases which affect vision. This amendment compels in the public interest what optometrists state they do in the matter of referrals and would go a long way in the right direction of protecting the public. We submit this committee does not intend to authorize optometrists who admittedly are not medically trained to practice medicine, con- cerning the 1200 known diseases of the human eye, which is an iii- tegral part. of the body as a whole. I wish to thank the committee for the opportunity to present the views of the medical society of the District of Columbia. Mr. Sisx. Thank you, Doctor, for your statement. Mr. Magee. Mr. MAGEE. I do not have a written statement. I desire to present certain information which the committee asked for in questions this morning. I would like to briefly refer to certain testimony produced before your committee and give certain facts and figures which the com- mittee asked for. Mr. Sisic. If you will do that as briefly as possible. Mr. MAGEE. I will try to be brief, Mr. Chairman. First, I do want to comment, as an attorney, on what is the practice of optometry. May it please the conimittee, as the cases have held and as history shows, optometry measures light waves as they go into the human eye. Now, this is done for the purpose of producing single, normal vision through two optics. This practice comes from the law of optics. If you have a jewel on your hand, a diamond or a ruby, refra.ctions were used in this field long before they were ever brought into the eye field to measure the light, waves as they entered into this object and as they come out. This is the function, Mr. Chairman, of op- tometry. It measures these waves and it adapts lenses in an effort to correct them. When they step outside of this field and get into an effort to either diagnose or treat any abnormal condition involving pathology, these gentlemen are in the field of medicine and the defini- tions in the present act put them there. The Medical Society submits that the present definition of optome- try is sound; it has been affirmed by the highest courts of Maryland a.nd in the District of Columbia, and a new definition of optometry is not needed. Now, the optometrists have stated that there is an eco- nomic problem and that persons do not come. to the District, of Coh~in- bia who are trained in optometry, Mr. Chairman, because of the conditions in the District of Columbia. PAGENO="0172" 168 OPTOMETRY Mr. Chairman, if you will return to the statement filed, and also given verbally by Marvin Berlin, ODS, he tells us on the very first page of this statement that there are "67 full-time practicing optome- trists here in the District of Columbia and they serve a population, according to the Census, of 763,956 persons." Mr. Chairman, according to the official survey made by the American Academy of Ophthalmology and appearing in the American Journal of Optometry, prepared by two ophthalmologists-and I will leave this with the committee-the ratio of optometrists to serve the public is adequate if it is one to twelve thousand persons. Now, when you utilize the figure 67 and compare it with 763,956, you will find that the number of optometrists serving the population of Washington according to Optometry's figures is more than adequate. I quote from the American Journal on Optometry, June, 1967 Re- port, Mr. Chairman. It reads as follows: "The ratio of one to 12,000 is adequate in civilian life at the present time," June 1967. A statement was made by Dr. Chapman that ophthalmologists gen- erally throughout the United States are tending to become dispensing ophthalmologists and fit contact lenses and eyeglasses. This is not so and testimony was adduced before the Hart Committee to this effect. The facts are that 42 per cent of all physicians in ophthalmology in- clude the service of fitting eveyglasses in their practice, while 58 dele- gates the fitting to the optician. This figure, Mr. Chairman, has been constant over ten to twenty years, and there is no trend which medicine knows today of ophthal- mologists increasing in the fitting of eyeglasses or contact lenses. Let us take the Dist.rict of Columbia. You have 67 full-time optome- trists operating in the District of Columbia according to Optometry's figures. We have over 120 ophthalmologists operating in the District of Columbia. Mr. Chairman, only one or two ophthalmologists that we know in the District of Columbia actually prescribe and fit. In other words, the fitting of all glasses and contact lenses in this area is performed by the opticians and by the optometrists themselves. So we know of no economic impact that is being visited upon these 67 optometrists who are practicing optometry in the District of Columbia. This bill, 1283 and related bills, obviously was designed and pre- pared, I think, as the representatives of optometry have stated to this committee, to elevate and to make the practice of optometry a profes- sion. Also, it is in keeping with the declared policy of the American Optometric Association to see what they call eye or visual care is conducted only by optometrists and I think a reading of the bill will show this, just as the representative from Labor testified, Mr. Chairman. The definitions in the bill do carry optometrists into the field of medicine. The attempt to equate optometry with the profession of ophthalmology raises serious legal problems. I won't go into great de- tail because I discussed this with your committee at the last hearing, Mr. Sisk, but the Commissioners have informed this committee last year a.nd this year that everything asked for in these types of legis- lation can be given by the Commissioners under existing legislation PAGENO="0173" OPTOMETRY 169 except for three things: The Commissioners have state.d they cannot, by regulation, declare optometry to be what they are really asking for, what they really want, a learned profession, not just a mere profession. (2) The Commissioners cannot bar advertising because our Court of Appeals has held that this is a calling, a skilled art, and people have the right to buy and sell services in this area and they may advertise and they may work for corporations. And (3) the Commissioners can- not make, by regulation, an optometrist an expert witness in a court of law or make his certificates evidence of what is contained within them. These are the three things which the Commissioners have said they cannot do. It was brought out in testimony this morning that the qualifica- tions of optometrists can be raised. At their request they were raised in 1~51 by the Board of Optometry under the jurisdiction of the Commissioners. Everything in this area and in this bill which tends to lift op- tometrists up and increase their qualifications by increasing the educa- tion they have `to acquire, can be done under existing legislation. Dr. Warren was very frank to admit that all he really needs is a right to police this calling; that if you just say "Call it a profession and give us the right to pass the rules and regulations, we don't need anything else `that is in this bill." This was an honest and fair statement and it is true. If these gentlemen, the optometrists, are seriously interested in doing what they say they want to, do-that is, lift what they call their pro- fession to the status of a profession-they must do it themselves. This gets into the field of ethics. Every profession has a code of ethics. These gentlemen can adopt codes of ethics; they can forbid advertising, and they can discipline their members in this area. The medical profession, the legal profession has done this over the years. We see no reason why optometry cannot do it also. Now, with respect to other provisions-for example, `advertising, this gets, as I say, into another field. Dr. Warren and Dr. Chapman seem to think, Mr. Chairman, there is no remedy in this field. This is incorrect. If optometrists circulate false advertising, if they make false claims of what they can or cannot do and if they advertise it, or if they send it through the mails, there are numerous statutes under which they can be controlled. The Federal Trade Commission can move in, the Food and Drug Administration can move in, and the Post Office Depart- ment can move in if these gentlemen are going to use these practices. The Medical Society's position on `Section 14 is deep-rooted, Mr. Chairman. Section 14 may bring about a delay between the time a patient, a child in school, is seen with a diseased condition in the eye, and the time when they first see a physician. We know of examples in the medical field. I could cite two. I won't name names. A situation occurred in West Virginia where a child was under the care of an optometrist for two years. The child had heredi- tary glaucoma. The child was not referred. The child~ when seen two years late, was rushed immediately to Johns-Hopkins Hospital, was operated upon and is totally blind today. The child's sister was two years younger-several years younger. The parents became alarmed and took that child to an ophthalmologist. PAGENO="0174" 170 OPTOMETRY The child immediately went to Jolrns-Hopkins and the sight was preserved. These are the things that concern medicine and all of us as citizens, Mr. Chairman, that there should never be a delay by the device of discrimination or equation or by nny other device, between the time when an eye which has pathology, is placed in a physician's care. You yourself have said sight is a priceless thing. Neglected sight, failure to send people with disease such as early glaucoma may mean the loss of that sight. I am sure that no member of this committee would want to be a party to that sort of procedure. This is precisely what Section 14 does. We imow it happened under this similar provision under the Social Security Act in the North Caro- lina survey. On behalf of Medicine, gentlemen, these bills as written, including the amended one, are not in the public interest and the Medical So- ciety of the District of Columbia opposes them. If Congress sees fit to enact legislation, they have worked long and late in making suggested changes on H.iR. 1283 which they feel they can live with and which are in the public interest and will promote health care in the District of Columbia. May I thank you, Mr. Chairman, for this opportunity to make this statement to you. Mr. Sisu. Thank you, Mr. Magee. There are a number of questions which I would like to ask. This committee, you may or may not Iniow, made an investigation into the background of the North Carolina situation. I think what you are basing your statement on was proved to be, we won't say false, but having less than a factual basis. I think your line of suggestion has been well covered. Mr. ~L~GEE. May I answer that, sir. We checked with the North Carolina authorities. We submitted certifications from the state that that survey was an official state certification and was correct, factually and otherwise. Mr. Sisu. We have evidence coming from North Carolina to dis- prove this survey. This was pretty amply taken care of last fall. There is a record on that. I do not particularly care to argue this question further. Dr. Albert, I would like to go back to your statement tha.t you would like certain language incorporated in this particular section. Unfortunately I do not have a. copy of what you were reading from. It would require, as I understood it, any patient who had seen an optometrist, and this patient had an eye problem which departs from the normal. Then that patient must see an ophthalmologist. Would you please clarify this? Dr. ALBERT. Yes. Most or practically all pathological states a.re reflected in the func- tioning of the eye., of the visual apparatus, so that if a pathological state exists, it is most likely to produce decreased ftmctioning as would be mamfest in reduced visual acuity. Mr. Sisu. Let me ask you, Dr. Albert, is such a statement included in any state law in the land? Dr. ALBERT. I will have to defer that to our counsel. PAGENO="0175" OPTOMETRY 171 Mr. MAGEE. I do not know. This was drawn up by the Medical So- ciety itself, Mr. Sisk, in an effort to bring about proper results. The medical physicians felt that when the tests reached this stage, medical need is needed medically. Therefore, the optometrists should be re- quired to refer and gave him a criteria. Colorado has gone this far. They have not put the criteria in their act. In Colorado the state legis- lature recently changed their htw to provide that if an optometrist failed to refer, whether he saw any medical problem in the eye, that was ground for revocation of their license to practice optometry. Mr. SIsK. That is considerably different from what I understood to be the case. We have available here in the committee every state law in the land. I have no record of such action as you suggest. I am curious to know if this has been proposed in the medical profession for some time. Mr. MAGEE. No, sir; it was proposed for the first time last year, be- fore your committee. This is new. Dr. ALBERT. I think Michigan now has- Mr. SISK. I would ]ike again, Dr. Albert, to ask you some questions with reference to the definition of optometry over in Section 3. Take for example the State of Florida. Have you had substantial problems in the State of Florida with existing law insofar as the profession of optometry is concerned? Has the medical profession found reason to find fault with that law? Dr. ALBERT. I am not aware of it one way or the other. Mr. Sisu. I will quote from that law, because I notice a great deal of emphasis being placed on this definition. This definition states that the practice of ol)tornetry, a profession, for the purpose of this chapter is defined as follows: "to be the diagnoses of the human eye and its appendages, the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eye, or any visual, muscular, neurological anomalies of the human eye." Also in New Jersey, again, I am just glancing at some of the state laws, optometry is defined as the employment of objective and sub- jective means, et cetera. Gentlemen, going back to one or two comments I made this morning, I said then and I mean it now: We are concerned with the care of the publ1c, the right of the public to have confidence in their doctors or whomever they go to for attention concerning human ills, whether eyes, ears, throat or heart. What percentage of the American people today are cared for by optometrists as opposed to those first contacting ophthalmologists or medical doctors? Do you have that figure? Dr. ALBERT. The Department of Commerce issued that figure a few years ago. I think it was something like 65 percent. Mr. MAGEE. We can get the exact figure for you. Mr. SIsK. We have a figure as high as 75 percent. Dr. ALBERT. I think that has been changed in recent years. Mr. SIsK. The point I am trying to make, Dr. Albert, is that I might have had difficulty getting an appointment with an ophthalmologist. I happen to see both an ophthalmologist and an optometrist, as I have a glandular problem. PAGENO="0176" 172 OPTOMETRY Do you take the position that ophthalmologists could take care of eye care to the exclusion of optometrists Dr. ALBERT. No, I surely don't think that we could take care of that.. Dr. Ar~eER. The point is that in your earlier statement you alluded to the diagnosis of disease and anomalies and abnormalities of the eye and its appendages. The eye is actually embryologically an outgrowth of the brain. We feel that by training, by education, the optometrist is not capable of rnakin~ the diagnoses which are required to properly differentiate abnormalities from the normal. We feel- Mr. SIsK. Doctors, did you expect the optometrist to make the cure? I believe that you are advocating a law. Dr. ALPER. We do. Mr. SIsK. How can an optometrist make a. referral if h~ is not per- mitted to make a determination of the departure from the norm? Isn't this one of the questions raised by the medical Profession? Dr. ALPER. This is why Dr. Albert advocated the 20/30 clause. Be- cause as lie stated previously, most disease of the eye will reflect itself in the visual acuity. So, if an optometrist, who is trained to measure rays of light as they enter and emerge. from the eye and change wave lengths by mechanical means, if he is unable by these means to bring the visual acuity to a. certain level, then there must. be something wrong with the eye, with the ocular structure. We feel that by his traimug he is not equipped to make a proper diagnosis. If and when lie reaches this level of 20/30, or can not get better than that acuity, the patient should be referred. We have any number of examples that we could cite where this has not been done' where eyeglasses have been changed a.nd errors have been made to the detriment of the public welfare. That is all that Dr. Albert is ta.lking about. Yesterday Dr. Hofstadder made the statement that medicine has- I am going to paraphrase him now, but as I understand him he said medicine has abrogated the field of diagnoses because of the screening tests, X-rays of the chest, diabetic screening tests, et. cetera. This is. not true. This is in the field of public health where we know that early detection is the best medicine, the best prevention for disease, early detection. So Dr. Albert's statement falls into early detection of disease. If an eye cannot be corrected to better than 20/30, then you better look for another cause than eyeglasses, which is what the optometrist does. He measures rays and light as they come in and out of the eye and changes them by means of lenses, optical means. If he ca.irnot get to a certain visual acuity lie should seek other reasons for the. failure of thisvision. Mr. SIsK. You will agree with me, will you not, that an optometrist does that. referral? Dr. ALPER. He does. Mr. SIsK. May I ask you a question? Am I correct in understanding' from your statement that you are not critical of this committee's. desire to upgrade eye care? Dr. ALPER. No, sir. we are not.. We are very much in favor of what you are attempting to do, and we think it is a wonderful work. Mr. SIsK. Do you have any record of the referrals by local optome-- trists here in the District to ophthalmologists? PAGENO="0177" OPTOMETRY 173 I am referring here to those licensed and practicing optometrists,~ members of the Optometric Society in lVashington, D.C., as against those referrals in so-called corporate practice. Dr. ALPER. I do not think we have any official registry of such a. thing. Mr. SIsK. Don't you feel that this information could be somewhat helpful to the committee? Dr. ALPER. I think it would be a good idea. I think this would be a very good idea; yes, sir. Mr. Sisn. Do you have a record of any referrals, or do any of you. know of any referrals from one of the corporate practice places? Dr. ALPER. I do not think anyone has every kept such records in the. Medical Society, to my knowledge. Dr. ALBERT. Could I speak personally? Mr. Sisn. Yes. Dr. ALBERT. I think half of the referrals I get from optometrists,. fifty percent of them, are from those who work in the corporate prac- tice and fifty percent in private practice. That is my personal- Mr. SI5K. Could you produce any figures? I said I think this would. be rather interesting if we had a factual survey on these referrals. I am sure, Dr. Albert, you agree with me that we have some, if I can use the word, atrocious cases. In fact, as recently as the last few days, and I guess this is news to some of our corporate friends, we checked certain places in Washington which sold glasses to people who, very frankly, are not in need of glasses. In other cases, there is a question as t.o whether or not they were properly fitted. Naturally, this creates concern in our minds as to the type and kind of care that people who come in off the street may receive. It becomes rather important to me to determine the health and assistance of the Medical Society in this area helping us to clean up some of this situation. It is my understanding that you gentlemen recognize the profession of optometry as being a necessary part of this practice here in this country, is that right? Dr. ALBERT. Yes, sir. Mr. Sisic. I have a number of questions, but first I will recognize my colleagues. Mr. SIsK. The gentleman from Maryland. Mr. GtJDE. Thank you, Mr. Sisk. You made the suggested amendment which Mr. Sisk referred to that optometrists be required to keep a registry of their examinations and to report those which are not correctable with a certain degree of- Dr. ALBERT. I think the essence of it was more than a requirement t.o refer for medical evaluation those patients whose visua.l acuity could not be improved beyond the 20/30 level. Mr. GUDE. In other words, you do not suggest that a registry necessarily be kept so that negative tests would ~dso be on such record? I am wondering, is it a proper requirement that a registered optome- trist keep a register and perform certain routine tests where individuals go to have their e.yes examined and unknowingly the~r feel that. they are getting their eyes checked and that everything is in order if they 82-754-O7-----i2 PAGENO="0178" 174 OPTOMETRY leave there and the optometrist says nothing to them about any problems? Would it be a possible amendment to the present law? Dr. ALBERT. I think it would be something that would be desired. Our interest is to protect the public so that the optometrist will not miss patients who have pathology. Perhaps some of these patients who have poorer than 20/30 vision, there is no pathology present. This is a very unlikelihood. Mr. G-UDE. It is very unlikely that a. person whose vision can be correctable has no pathology? Dr. ALBERT. It is not impossible, that is right. Mr. GUDE. In other words, this particular test will screen out the- Dr. ALBERT. The great majority of pathologic sta.tes which we feel are being missed. Mr. GUDE. Do you have, in the organization that you all represent any suggested amendments as far as the advertising area goes? Dr. ALBERT. We do not feel that that is in our province. The optome- trists themselves should be the ones who control this as we do with our code of ethics. It is as t.he law profession does and as the dental pro- fession does. Dr. ALPER. We feel so strongly about ethics in the District of Co- lumbia tha.t we passed a motion in our section of ophthalmology and it was issued to all members of the Medical Society that anyone who dispensed lenses, eyeglasses in the District., was considered an unethical act. As Mr. Warren Magee. stated a moment ago, there have been only one or two violations of that act since the motion was passed. We feel that we have a. very ethical community and we police ourselves. We feel that the optometrists can do the same. I think it is a. laudable thing that they want to do this. I do. Mr. GUDE. You gave us the specific language. You do have specific language in the amendment that you framed. Is this amendment the law in many States, this requirement of the referral? Dr. ALBERT. Not to our knowledge. Mr. GUDE. Thank you, Mr. Chairman. Mr. SIsK. I would like to question you a bit further. May I refer you to page 14, line 22, H.R.. 12276. Dr. Albert, in this language there you understand there are certain exemptions provided in the act which do not apply. Then going back to the bottom of page 12 it states: "Nothing in this Act shall be deemed to prevent- (4) a person from acting as an assista.nt under the direct personal supervision of a person licensed by the District of Columbia to prac- tice optometry, medicine, or osteopathy provided that such assistant does not perform an a.ct which would require professional judgment or discretion;". We are interested in seeing to it that there is no interference with the doctors' use of assistants, nurses, or screening procedures in schools. The members of the subcommittee would like very much to cooperate with you there in attempting to draft legislation with an interpreta- tion that legally would permit you the right to use assistants. How do you interpret this language on line 22, page 14? Do you interpret it as being still too restrictive? PAGENO="0179" OPTOMETRY 175 Dr. ALBERT. Yes, sir. Mr. 515K. What suggested changes would you make? Dr. ALBERT. We strongly object to the wording "under direct per- sonal supervision." Dr. Ohapman- Mr. SIsK. My own personal experience with doctors; ophthalmolo- gists and optometrists is that you do not use nonlicensed personnel or nonscientific personnel without some kind of supervision; do you? This subcommittee is interested in what kind of supervision you propose to have over these people that will be doing the work for you? Dr. ALBERT. Under our personal direction we would propose- Mr. SIsK. "A person acting as assistant under the personal direc- tion"? Dr. ALBERT. Under the direction, excuse me. We are legally respon- sible for all of the acts and actions of our assistants, the functions that sve have allocated to them we are responsible for. We feel that that responsibility in itself places the obligation on us to see that this work is done properly. Mr. SIsK. All right. Dr. ALBERT. Mr. Sisk, Dr. Kling has been intimately working in a program to train ophthalmic assistants under a Federal grant. Per- haps it would he well if he had something to say about that. Mr. SIsK. I would like for Dr. Kling to comment as we are most interested in vision and improving vision. You will notice in the very next section, No. 4, under subsection (d). Section 5 is visual screening programs. This is to be conducted under direction and supervision. Would you make a comment on this language? I am attempting sincerely to describe my opinion and what I believe to be the subcom- mittee's opinion on this matter of proper supervision. We want to see it is done right and not Obstruct the work that you are doing. Dr. KLINe. May I say that people who take a normal course to be an ophthalmic assistant are not kept in the course if they are not main- taining a standard of quality performance. They are not graduated until in the opinion of the faculty they can be depended upon to render quality care consistently. I think that it would be impossible to pawn off a nontrained, non- graduated technician to anyone because I don't believe anyone in prac- tice would accept the risk involved in having such a person working in his office. When a person takes such a one into his office, he does certainly re- quire some certification from the source of the technician's training, people who have a certificate bearing the signatures of the faculty who are stating that this person has indeed performed in a satisfactory manner, that he has given good evidence of good character, and so forth. If a practitioner were so imprudent as to employ a person who ren- dered poor quality care, I think it is likely that he himself would render poor quality care also and that he would obtain poor quality equip- ment, poor quality medicines, poor quality everything. It is practically inconceivable to me that a man who exercises normal prudence and caution, conscientious attention to details in other matters concerning his own education, his own equipment, own supplies, would accept for working under his direction anyone who was not known to render such PAGENO="0180" 176 OPTOMETRY quality care, particularly since as was brought out, he knows that he~ is in fact held legally liable for every act of the person working under him. This is quite a deterrent to carelessness in this matter. Mr. SIsK. I appreciate what you ha.ve said. I am inclined to agree with you. However, as to assistants working under supervision. you can understand where this can be broadly interpreted. We are seeking language that is clear, understandable, and yet will prevent someone who may be licensed to practice from sending assistants into remote areas to do things without any kind of supervision. I would not call that supervision; I would call it direction on occa- sion. We seek to avoid that kind of a loophole, and at the same time permit a legitimate type of supervision and direction. Dr. ALPER. In other fields. Cardiologists, a. nurse will take an electro- cardiogram and he reads this. A neurologist has a technician who does. an electroencephalo~ram, and an X-ray does the same thing. In glaucoma work we have technicians who take electric tonography. These are laboratories that are placed in our hospitals or offices. They read the results. Instruments do touch the eye in case of tonographv.. In the case of encephalography, instruments touch the scalp, skull. We doctors ta.ke responsibility for what our teclmicia.ns who are trained do. This direct personal supervision means to me personally, I am not a lawyer or a semanticist, but this seems to imply a physical presence in the room when the technician or assistant who is adequately trained. to do such acts performs adequately trained duties. That is why we object to this particular terminology. Mr. SIsK. If I could say this: I am not personally interpreting~ this to mean that the supervisor, in this case t.he doctor, has actually- to be in the room. I certainly would- Dr. ALPER. It sa.ys direct personal supervision. Mr. SIsK. That is why I believe this is language which the sub- committee will want. to consider and change. That is why, as I said, I was seeking from you suggestions that you might have for us. You are in a position where you work with assistants and nurses. You know about the kind of direction and supervision you should main- tain. We want to permit this but at the same time not leaving broad loopholes where we might have assistants out over the country without adequate supervision. Mr. MAGEE. Mr. Sisk. the Medical Society on this very language did suggest changes in the bill. They changed every section and have given your committee t.heir suggestions as t.o how they feel the section should read under which they can work and properly keep optometry~ out of the field of medicine. It is attached to the statement, Mr. Sisk. Mr. SIsK. I appreciate that.. We had the language last year. Let me say that no one has a higher respect for the medical profession than I do. However, I do not. always agree with some of their positions. Actually, t.oday I think it is quite well recognized that optometry is~ a profession. I happen t.o be on the Committee on Rules a.nd recently the chair-. man of the Armed Services Committee came before us and was dis- cussing professions in the health field. He mentioned the profession of optometry. I think today the optometrists a-re basically with you PAGENO="0181" OPTOMETRY 177 folks. I feel to the extent that you recognize this fact and help to *upgrade, let us say, allied or associated agencies of the profession; to that extent the public is certainly going to be served. I often think how long it was in my own State of California that *the medical profession looked down on osteopaths. Yet today they are practicing side by side in the same hospitals. We are not attempting to put optometrists into medicine. We are attempting to the extent optometrists have a responsibility in the visual care of our people, to see to it that they perform those functions and perform them to the best possible extent. Gentlemen, thank you very much for your appearance here today. `We appreciate your testimony and I assure you that the statements put in the record will be considered. Mr. MAGEE. Mr. Sisk, may I make one statement for the record? In your prior bill, H.R. 12937, which is similar to H.R. 1283 sub- mitted last year to organized medicine for their review, I don't lmow if you were aware of this. It was submitted to the House of Delegates of the American Medical Association last June. The House of Dele- gates voted that organized medicine should oppose his bill. It does put optometrists into `the practice of medicine. Mr. SIsK. Let me say that having served on the Veterans' Affairs Committee for a good many years and on the Hospital Subcommittee, I recognize and I have great respect for the medical profession, but 1 feel we have to open our minds and pride up a little bit at a time. You know what I mean. I appreciate your stand and I have very many fine friends in the medical profession. I recognize there are differences of opinion. We take these steps one at a time and we gain in the long run. Mr. MAGEE. Mr. Chairman, I might say this matter has been given thorough review by the Department of Health, Education, and `Wel- f are. You have q~uoted Dr. Lee. I think we should go to the Commis- sioner of Social Security, Mr. Robert M. Bali, who has c.arefully put the optometrists into the proper perspective. We say in the health field. I would like to submit their report regarding how optometrists should be used in the health-care field into this record as a next exhibit. Mr. SIsK. Without objection, the report will be made a part of the record. (The report follows:) DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. SoCIAL SECURITY ADMIN- ISTR.ATION, OFFICE OF THE COMMISSIONER, BALTIMORE, MARYLAND REPORT REGARDING THE COVEEAGE OF EYE CARE UNDER THE HEALTH INSURANCE PROGRAM Background Section 18G2(a) (7) of the law excludes from coverage routine physical checkups, eyeglasses, or eye examinations for the purpose of prescribing, fitting, or changing eyeglasses without regard to whether these services are furnished by a physician or by another practitioner. The term "physician" as defined for medicare purposes, includes a doctor of medicine or osteopathy legally author- ized to practice medicine and surgery by the State in which he performs such function or action. An ophthalmologist is a "physician" specializing in the dis- eases of the eye. Optometrists, however, are not included within the scope of the statutory definition of the term "physician," since they are not legally authorized to practice medicine and surgery. PAGENO="0182" 178 OPTOMETRY Present policy Since an ophthalmologist is a "physician," his medical services are covered in the seine manner as the services of any other medical doctor. Likewise, the services he performs which come within the exclusions relating to routine physi- cal examinations and examinations for the purpose of prescribing, fitting, or changing eyeglasses are not covered, just as they would not be covered if any other physician, furnishes eye care services to an eligible beneficiary, the pro- gram will cover the physician's services if the examination results in a patho- logical finding (other than refractive error) and/or treatment of an eye disease or injury. If no eye disease or injury is found, the physician's services rendered to the patient during that visit are excluded from coverage since the services would then come within the exclusions relating to routine physical checkups or examinations for the purpose of prescribing, fitting, or changing eyeglasses. Discussion ~ alternatives were explored in attempting to arrive at an equitable and administratively feasible policy with regard to the exclusions. After extensive consultation with professional associations representing ophthalmologiets and optometrists, specialists in the public Health Service, and many insurance com~ panies which presently administer similar provisions in their own health plans~ consideration was narrow-ed down to essentially two basic approaches: 1. Separate the services furnished by an ophthalmologist during an examina~ tion of a patient into two component parts-(a) refractive-type services and (b) all other services relating to the diagnosis or treatment of an eye disease' or injury. Exclude from coverage the refractive-type service performed by an ophthalmologist (or any other physician) during any given examination of a patient as services representing an "eye examination for the purpose of pre- scribing, fitting, or changing eyeglasses"; 2. Treat all the services furnished during any given examination by the ophthalmologist (or any other physician) as covered or excluded in their en- tirety depending upon the findings made and/or treatment provided as a result of the examination. For example, when the physician finds no eye disease or injury, treat the entire examination as an excluded service since it will essentially represent either a "routine physical checkup" or eye examination for the purpose of prescribing, fitting, or changing eyeglasses." On the other hand, where a disease or injury of the eye is diagnosed, treat the entire examination by the physician as a covered service. After careful and extended deliberation, the second approach was adopted. Among the more compelling considerations for adopting this approach are the following: Ophthalmologists have pointed out that, from a professional and practical point of view, there is no distinction made by the ophthalmologist in the type of services performed, that there are many situations where refractive- type services furnished by an ophthalmologist are an essential part of the diagnostic steps required in order to ascertain or confirm the presence of a patho- logical condition, that ophthalmologists have never treated any portion of their charges as relating specifically to a refraction, and that with respect to any given visit there is essentially no distinction made in charges regardless of whether or not a refraction is performed. Another practical consideration for adopting the second approach was the experience of the health insurance industry with this type of exclusion. The great majority of the insurance companies and Blue Shield plans which w-e have con- tacted and w-hich administer eye care provisions similar to those contained in the medicare law- use essentially the second approach in their ow-n programs. Moreover, since beneficiaries and physicians have had considerably more cx- perience with this method under private insurance plans. it can be expected that by using the same approach under medicare. beneficiary and physician under- standing of the policy would be enhanced. One additional significant considertiaon for adopting the "all or nothing'~ approach is that this approach would not create a situation which would he inequitable to optometrists since there would be no incentive for a beneficiary to go to an ophthalmologist for services which are in reality for the purpose of prescribing, fitting. or changing eyeglasses. An optometrist is not a "physician" under the medicare law nor are optometric services listed among the other health services covered by the medical insurance PAGENO="0183" OPTOMETRY 179 program. Therefore, those services performed by independently practicing optom- etrists which are not included within the coverage provisions of the law or which are contained in the statutory exclusionS are not reimbursable as covered expenses under the medical insurance program. Thus, optometrists' services performed in connection with prescribing, fitting, or changing eyeglasses are excluded from coverage. However, optometrists' services performed in connection with furnish- ing prosthetic lenses prescribed for the beneficiary by a physician are covered as are the prosthetic lenses themselves. (While eyeglasses are specifically excluded from coverage, a separate provision of the law covers prosthetic devices-other than dental-which replace all or part of an internal body organ. Thus, "eye- glasses" which replace an internal body organ (the lens of the eye), as for example after cataract surgery, are covered as prosthetic lenses.) ROBERT M. BALL, Commissioner of Social Security. Mr. 515K. We have to answer an automatic roll call. Mr. McLeod, I understand that you have a witness who was desirous of leaving town tonight or in the morning. Mr. MCLEOD. lie has to be in New York Thursday. Mr. SI5K. Could he be here Friday? Mr. 1~iIoLEoD. Yes, sir. Mr. SI5K. We will answer the roll call and come back and continue the hearing. This committee will take a temporary recess. (Recess taken.) AFTER RECESS Mr. SIsK. The committee will resume its hearing. Just prior to our recessing, the Medical Society had completed its testimony. Mr. McLeod indicated that he has a man who needs to return to New York so at this time we will hear the witness of Sterling Optical Company. STATEMENT OP WILLIAM N. McLEOD, REPRESENTING STERLING OPTICAL COMPANY, KAY JEWELRY STORES IN WASHINGTON, KINSMAN OPTICAL COMPANY AND VENT-AIR CONTACT LENS SPECIALISTS Mr. MOLEOD. I am representing Sterling Optical Company, Kins- man Optical Company and Kay Jewelry Stores here in Washington,~ and Vent-Air Contact Lens Specialists. I have been working with Alvin M. Stein, General Counsel with Sterling Optical Company of New York. Mr. Stein will make the statement. I will let his statement stand for other people I represent, if that is satisfactory with you. Mr. SIsK. MTithout objection their statements will be made a part of the record. (The statements referred to follow:) STATEMENT OP ALVIN M. STEIN, GENERAL COUNSEL, STERLING OPTICAL COIV[PANY Mr. S'nhIN. My name is Alvin M. Stein, a member of the firm of Parker, Chapman and Flattau on 53rd and Fifth Avenue, New York, New York; New York attorneys, General Counsel to Sterling Optical Company, and I appear in opposition to the bill. 1 have submitted to the committee a full statement, together with exhibits annexed, which opposes the bill in toto, and also a statement PAGENO="0184" 180 OPTOMETRY which recommends suggested changes in the bill if the committee deems legislation desirable. Mr. SIsK. Your first statement will be made a part of the record. The balance of this material we may attempt to put in the file. It is rather voluminous. At any rate, it will be made a part of the committee's file and the direct statement will be made a part of the record. (The documents referred to follow:) MEMORANDUM This memorandum. submitted on behalf of the Sterling Optical Companies, is intended to accompany the annexed copy of HR 12S3 marked to indicate sug- guested deletions and changes, if further legislation is deemed necessary or ap- propriate and to briefly explain the basis for each such change or deletion. It remains the position of the Sterling Optical Companies (hereinafter referred to as "Sterling"), however, that no further legislation is needed. The underlying * general policy objections to HR 1283 are more fully set forth in a separate memorandum simultaneously submitted herewith on behalf of Sterling. Section 2: This section assumes that the practice of optometry is a profession. * The United States District Court for the District of Columbia in Silver v. Lays- burgh ~ Bro. et al, 27 F. Supp. 682, aff'd, 111 F. 2d 518 has clearly held to the contrary. For other reasons more particularly stated in the Sterling Statement, it is submitted that optometry should not by this or other proposed legislation be dealt with as, or assumed to be, a profession. Section 3(2): This subsection would include within the definition of the practice of optometry acts or practices "as they are included in the curriculum - of recognized schools and cofleges of optometry." The statutory meaning of the term "practice of optometry" could therefore be changed without legislative ap- proval merely by virtue of changes in school curricula. It is conceivable that the introduction of courses in the field of medicine could, as a result of this statutory language, be deemed to sanction the practice of medicine by optometrists notwith- standing the provisions of Section 9(f), which is merely a limitation upon the construction of the Act itself. Such a delegation of power is clearly inappropriate. Moreover, the term "recognized schools and colleges of optometry" is not other- wise defined and is not even limited to schools or colleges "approved" by the Commissioners in accordance with the provisions of Section 4(6). Section 3(2) (a.): The vague and indenite language here used has no clear, certain or generally accepted meaning and could be deemed to authorize optome- trists to engage in acts or practices constituting the practice of medicine, which optometrists are not qualified or trained to perform. Section 3(a.) (d): The words "in general" imply authority to make determina- tions not limited to the measurement of refractive errors, which by definition of the United States Department of Health, Education and Welfare is plainly the limit of optometric qualification. Section 3(a) (f): The acts and practices here referred to have been and are now both within the District of Columbia and elsewhere, normally performed by * opticians and other optical workers rather than optometrists and ought there- fore not be included in the statutory definition of the "practice of optometry". The inclusion of this subsection would, in effect, extend the scope of the bill to activities which do not require the training or skills of an optometrist, and are plainly of a business or commercial nature. Section 3(2) (g): Although it is the optometrist's function to prescribe and direct or administer visual training or orthoptics, the use of optical devices in connection therewith has not heretofore been and should not now be confined to practitioners of optometry. Section 3(2) (ii): The fitting or adaptation of contact lenses in the District of Columbia and elsewhere is normally done by persons other than ophthalmolo- gists or optometrists, but under their supervision. Accordingly, subject to such continued supervision, the fitting or adaptation of contact lenses ought not be con- fined to practitoners of optometry. Section. 3(2) (i): This subsection would appear to authorize optometrists to diagnose pathology of the eye and its appendages. Optometrists are clearly un- qualified to engage in such activities, which manifestly constitute the practice of medicine. PAGENO="0185" OPTOMETRY 181 Section 4(7): The subject matter of the examinations for applicants to prac- tice optometry should be left to determination by the Commissioners. Since the Commissioners are vested with authority to prescribe examinations, they sim- ilarly ought to be authorized to determine the subject matter to be covered by such examinations. Section 7(a) (3): The grounds for refusal to renew or reinstate licenses or for license suspension or revocation should be specifically define:d by statute and limited to matters essential for the preservation of the public health and welfare. Section 7(a) (7) provides adequate public protection against licensing of one disqualified to practice with safety to the public. Accordingly, the phrase `of any of the regulations promulgated by the Commissioners under this Act" in Section 7(a) (3) is superfluous and represents an unfortunate and unnecessary delega- tion of authority. Section 7(a) (8): As more particularly set forth in the Sterling Statement, truthful cost or informational advertising, whether of optometric services or the sale or furnishing of ophthalmic or optical materials, has not been and cannot be shown to adversely affect the public interest, health or wellbeing. On the con- trary, the prohibition of such advertising will merely result in prohibitively in- creasing costs to the public. Accordingly, advertising ought not be a grounds for license suspension or revocation or refusal to renew or reinstate a license to practice optometry. Section 7(a) (9): To the extent that this subsection could be construed as pro- hibiting the practice of optometry as :an employee, or a member of an optometric group, it clearly does not serve the public interest (see Sterling Statement). Nor does it otherwise appear that the conduct referred to has any bearing on the com- petence of the licensee. Section 7(a) (10): The prohibition against the granting of credit or other in- ducements here referred to would not serve the public interest but would merely make eye care more costly or difficult to obtain, and work a severe hardship on the more indigent members of the public. Section 7(a) (11) The display of materials here referred to would serve to make alternative sources of supply of such materials more accessible to the public. The prohibition against display of such material cannot conceivably advance the public interest, but would serve only to create, or tend to create, an optometric monopoly on the part of licensed practitioners of optometry (see Sterling Statement). Section 7(a) (12) The display of an optometrist's license, diploma or certi- ficate in open view to the public would permit members of the public to select the source of such care on a more informed basis. Clearly, the prohibition against such a display can be of no meaningful benefit to the public. Section 7(a) (14) : The prohibition against advertising here contained, for reasons otherwise stated above and in the Sterling Statement, is not in the* public interest. Section 7(a) (15) : The prohibition here contained would prevent members of the public from having access to meaningful information required to make a better informed choice of the source of eye care and ophthalmic or optical materials, and would not serve the public interest. Section 7(a) (16) This subsection would prevent, among other things, ar- rangements designed to procure more economic eye care for members of unions or other fraternal organizations. There is no evidence that this prohibition would result in elevating the standards of eye care prevailing in the District of Columbia. Section `7(a) (17) : As more fully stated in the Sterling Statement, there is clearly no rational relationship between the quality of eye care and the ophthal- mic or optical materials sold or dispensed and the premises where these services or materials are supplied. Moreover, it has traditionally been the custom, both in the District of Columbia and elsewhere, for optometric services to be performed and ophthalmic or optical material to be sold or dispensed in stores or store-type establishments. The prohibition here contained would therefore merely serve the anti-competitive desires of certain privately practicing practitioners, and adversely affect the public and the vested rights of those presently engaged in providing eye care or selling ophthalmic or optical materials in stores or store- type establishments. Section 7(a) (18) As more particularly set forth in the Sterling Statement, the prohibition against employment here provided for would be adverse to the PAGENO="0186" 1S2 OPTOMETRY public interest and in no way tend to improve the level of eye care in the District of Columbia. Employed optometrists would be faced with loss of employment and other vested rights and benefits. Employers would be faced with the loss and destruction of valuable business and business interests.0 Notwithstanding the exception contained in Section 9, unions and health programs such as HIP, would be denied the opportunity to provide economic eye care to members. Even phy- sicians would be denied the right to employ optometrists. Since Section 3 (2) (f) defines the practice of optometry to include purely mechanical or commercial functions, the prohibition here contained would preclude the employment of optometrists to perform functions which could in no real sense be deemed of a professional nature. Clearly, the prohibitions here contained are not in the public interest. Section 7(a) (19) : The delegation of authority to the Commissioners here provided for is objectionable for the reasons set out with respect to Section 7(a) (3) above. Section 8(a) (2) : For reasons otherwise above expressed, (see comments to Section 7(a) (9)) to the extent that this subsection would prohibit the practice of optometry as an employee, or member of any optometric group, it would not be in the public interest. Section 8 (a) (4): There is no sound reason for prohibiting the duplication or fitting of lenses without a written prescription from a physician or optometrist licensed in the District of Columbia. Particularly in a society as transient as that which exists in the District, the prohibition here contained would merely cause inconvenience and unnecessary expense by requiring the services of a physician or optometrist to obtain the merely mechanical services referred to. Section 8 (a) (5): For reasons more fully set forth in the Sterling Statement and above, prohibition against advertising here provided for is unwarranted, and *contrary to the public interest. Section (8) (6): See comments to Section 7(a) (10) above. Section 8(a) (8): See comments to Section 7(a) (18) above. Moreover, the language here used is objectionable as being too vague, indefinite and uncertain, particularly since it purports to define standards of criminality. Section 8(a) (9): The prohibition against display of signs offering ophthalmic materials for sale would unduly curtail competition and result in increasing costs of procuring such materials without any commensurate gain or benefit to the public. The term "ophthalmic materials", furthermore, has no clear or definite~ meaning. This subsection is further objectionable as delegating to the Commis- sioners authority to provide standards of criminality by promulgating regulations under Section 10 of the Act. Section 9(c): Since the preamble of the Act indicates the desire to improve the practice of optometry, its scope ought not extend to acts or practices which are not solely within the ambit of the practice of optometry. In other words, the Act should in no way extend to activities clearly recognized as the function of opticians, optical workers or other persons who merely fabricate, sell, fit or dispense ophthalmic or optical materials. Since these activities are clearly of a business or commercial nature, the prohibitions contained in Section 8(a) (2), (5). (6), (9) are not applicable. Accordingly, this subsection should be amended to read as follows: "Sec. 9. (c) This Act shall not apply to any person who fills the written prescription of a physician, surgeon, or an optometrist, or who repairs or restores eyeglasses or spectacles to their previous condition or usefulness, or who adapts, utilizes, fits, sells or furnishes lenses." Section 9 (d) (1): The conduct of a non-profit optometric clinic should not be limited to a school or college of optometry or an association of optometrists and should not require the prior approval of the Commissioners since the rendering of optometric services in any such clinic could by law In any event only be per- formed by licensed optometrists. Section 9(d) (2): This subsection should be amended to read as follows: "Sec. 9(d) (2) an optometrist from being employed as an employee of any person to render optometric service and care ;" so as to clearly sanction the employment of optometrists (See Sterling State- ment). tThe bill contains no so-called "grandfather" clause. PAGENO="0187" OPTOMETRY 183 Section 9(d) (3): If subsection 9(d) (2) is amended as above suggested, this subsection, 9(d) (3), would be superfluous. Parenthetically, it is interesting to note that where the interests of optometrists are directly concerned, the pro- ponents of the bill find no objection to the employment of optometrists by un- licensed persons. Section 9(d) (4): This subsection should be amended to delete the phrase "con- ducted under the direction or supervision of a licensed optometrist or physician." There is no apparent reason why visual screening programs (i.e. eye chart read- ing) normally carried on in schools, places of employment and elsewhere, should require the added expense which the direction or supervision here provided for would entail. Section 9(e): As more particularly set forth in the Sterling Statemeni, the use of the title "Doctor" by optometrists has been seriously abused. This subsection would merely countenance and encourage such continued abuse, and in no way limit the use of the title to those who have lawfully earned the title. S1ection 10(a): This subsection should be amended to delete everything follow- ing the word "Act" on line 17. While the Commissioners should be vested with authority to adopt necessary rules and regulations to carry out the Act for the reasons set forth in the Sterling Statement and elsewhere above, there is no need for this atuhority to include the right to prohibit or limit advertising on the part of those who render optometric services and/or sell ophthalmic or optical materials. Section 13(b): The competency of an optometrist to give testimony should be left, without restriction to the court to which such testimony is proffered. Sim- ilarly, certificates here referred to issued by optometrists should not be deemed binding on the government officers or employees referred to except as they deem appropriate in their official judgment and discretion. Section 14: The judgment and discretion of officers or employees of the Dis- :trict of Columbia should not be circumscribed in the manner here provided for. There is no reason to believe that the exercise of judgment and discretion on the part of these officers and employees will be abused. Section 15: The first sentence of this section should be deleted. The delega- tion of authority which this sentence would provide for is clearly improper. The Board of Optometry would consist of optometrists who could, by the exer- cise of such delegated authority, promulgate regulations which would favor their personal and selfish interests at the expense of the public and retail sellers of eyeglasses with whom they compete and who would not be represented on the Board of Optometry. This sentence would be even more objectionable if the Commisisoners remain vested with power to promulgate regulations, the viola- tion of which would constitute crime or result in the refusal to renew or rein- statelicenses, or the suspension or revocation thereof. Re HR 1283; 595; 732. non. B. P. SIsK, Chairman, Subcommittee No. 5 of the House CommIttee on the District of Columbia, Rayburn House Office Building, Washington, D.C. This memorandum is submitted on behalf of the Sterling Optical companies which for more than fifty years have been engaged in the retail sale of eye- glasses. In connection with such sale of eyeglasses, the Sterling companies pro- vide eye examinations by employed optometrists who are highly qualified and duly licensed, unless the customer presents a prescription previously obtained from his personal physician or optometrist. The Sterling companies operate eleven retail stores in New York State and two in the District of Columbia where Sterling has engaged in business con- tinuously since 1955. Sterling also operates a modern, well-equipped laboratory and related service facilities. In these retail centers, laboratory and service facilities, Sterling employs approximately 200 persons, including 35 optometrists, at an annual gross payroll of about $1,500,000. The value of tangible assets, ex- cluding goodwill and leasehold items, used in the conduct of the business of the Sterling companies exceeds $1,500,000, of which approximately $500,000 represents the investment in plant and facilities in the District of Columbia alone. Approximately 300,000 pairs of eyeglasses are sold annually by the Sterling Companies, and in the District of Columbia in excess of 35% of Sterling's eye- glass sales are on prescriptions emanating from customers' personal physicians. PAGENO="0188" 184 OPTOMETRY More than 100,000 eye examinations are performed yearly by Sterling's employed optometrists. Sterling is believed to be the largest single source of eyeglasses sold to the public both in New York State and the District of Columbia. The cost of eyeglasses, excluding eye examinations, to persons whose eye- glass needs are supplied by the Sterling companies, is generally approximately 50% less than the cost of persons whose eyeglass needs are served by privately practicing optometrists. At no time has an optometrist employed by Sterling been the subject of any regulatory agency proceeding questioning the quality of the optometric services performed by such persons for the Sterling companies. In the leading case of People of the State of New' York-, plaintiff, vs. Sterling Optical Co., Inc., defend- ant, 26 Misc. 2d 412 (Sup. St., N.Y. Co. 1960) ; aff'd 14 A.D. 2d 838 (1st Dept. 1962), aff'd 11 N.Y. 2d 970 (1962), the trial court, whose opinion upholding Sterling's right to employ optometrists was unanimously affirmed on appeal by both the intermediate and ultimate Appellate Courts of the State of New York~ noted, at page 420: "Although the corporate employment of optometrists has existed for over half a century in this state, no instance has been cited where such em- ployment caused injury to the public." (Exhibit 1) Accordingly, it is submitted that Sterling for more than fifty years, and other retail sellers of eyeglasses similarly situated who employ optometrists, have rendered and are rendering a service of vital benefit to the public and, in par- ticular, to those persons in the more limited income group, including a very significant number of union employees whose eyeglass needs are supplied through these establishments under union welfare programs. It is manifest that HR 1283 and the companion bills of a similar nature would (a) deprive the public of this source for satisfying eyeglass needs; (b) create an optometric monop- oly and increase prohibitively the public's cost of eye care, with no com- mensurate gain or benefit to the public welfare or well being; (c) cause loss of employment and attendant vested rights and benefits of the employees, in-. eluding optometrists employed by Sterling and other firms similarly situated, and (d) unreasonably destroy the valuable business goodwill of Sterling and other firms similarly situated, as well as privately practicing optometrists pres- ently engaged in practice in store locations. HR 1283 would in general terms accomplish the following: (a) Prevent the employment of optometrists by firms such as Sterling, lay persons, physicians, health and welfare plans such as HIP and unions providing eyeglass needs for members. (b) Prevent truthful informational or price advertising, including such ad- vertisements with respect to optical and/or opthahnic materials. (c) Prevent the practice of optometry as broadly defined to include the sale of optomctric and ophthalmic materials "in any retail, n~ercantile, or com- mercial store". (d) Enlarge the definition of the practice of optometry in such a manner as to intrude and infringe upon the practice of medicine by persons unqualified. (e) Create an optometric monopoly and prohibitively increase the cost of eyeglasses and eye care in the District of Columbia. (f) Destroy business and employee relationships, with no protection for these presently existing valuable rights and interests. It is submitted that the sole beneficiaries of the proposed legislation would be less than 100 optometrists engaged in the so-called private practice of optom-- etry in the District of Columbia. Optometrists are not medically trained. By definition of the United States Department of Health, Education, and Welfare, Health Information Series No.. 64: "An Optometrist, a licensed, non-medical practitioner, measures refrac- tive errors-that is, irregularities in the size or shape of the eyeball or surface of the cornea-and eye muscle disturbances. In his treatment, the Optometrist uses glasses, prisms, and exercises only." A recent public opinion survey conducted by the Gallup Organization. Inc. for Research to Prevent Blindness, Inc., indicates, however, that the public is in large measure unaware of the limited training and qualification of optometrists and is misled into believing that optometrists who widely. and in some instances illegally, employ the title of "Doctor", are physicians with medical training. The air of professionalism employed hy a large segment of the privately prac- PAGENO="0189" OPTOMETRY 185 ~ticing optometrists, which would be perpetuated and enhanced by HR 1283, fos- ters further harmful confusion. Investigation reveals that the title "Doctor" employed by many optometrists was obtained as "quickie" or, in some instances, "mail-order" degrees. A recent mailing of the New York State Optometric As- sociation, Inc., dated April 21, 1967, discloses that the Massachusetts College of Optometry is offering the degree of "Doctor of Optomciry" upon a course of study consisting of two days' attendance a week during the period from July to the second week in September upon presentation Qf a dissertation and the pay- ment of a $500 tuition fee. There is annexed hereto as Exhibit 2 an article which appeared on April 15, 1965 in the "Optical Journal and Review of Optometry", the leading publi- cation of professional optometry, and a statement of "Professional Terminology" which appeared in the "Manual of Professional Practice for the American Op- tometrist" 1966 revision, published by the American Optometric Association (Ex- hibit 3) which indicate further continuous attempts on the part of the privately practicing optometrists to confuse the public and falsely pass themselves off as medical practitioners. It is additionally abundantly clear that it is presently the practice of sub- stantially all privately practicing optometrists in the District of Columbia to engage in the sale of eyeglasses at exorbitant profit (Exhibit 4). It is the general practice of privately practicing optometrists, when supplying eyeglasses to the public, to purchase from suppliers of eyeglasses fully assembled eyeglasses and to resell such eyeglasses to the public at more than two or three times the optom- etrists' cost in addition to a substantial "examination fee". Since it is rarely the practice of such optometrists to segregate the items of the total billing to the customer, the public is generally unaware of the excessive costs involved in dealing with such privately practicing optometrists. To the extent that HR 1283 would prohibit price advertising, the public could not conveniently make price comparisons necessary to determine the extent to which it is the victim of this practice. To the extent HR 1283 would prevent source advertising, the public would be denied information as to alternative more economical sources of supply~ There is among practitioners of optometry the respectable, although a minority, opinion that such profiteering in the sale of eyeglasses prevents optometry from achieving the dignity of a profession (Exhibit 5). There can be little question that since privately practicing optometrists derive so major a proportion of their income in the form of profits obtaining upon the sale of eyeglasses, these self. employed optometrists are "commercially motivated" and should not be pro- tected against reasonable price competition and competitive advertising. As vendors of merchandise, in the manner described, privately practicing op- tometrists are clearly distinguished from health care practitioners such as physicians and podiatrists whose canons of professional ethics prohibit profiteer- ing in the sale of merchandise (Exhibit 6 "Principles of Professional Conduct, Medical Society of the State of New York", Chapter 1, Section 6; Exhibit 7 "Code of Ethics of the Podiatry Association of the State of New York", VI(1)). It is further the custom of privately practicing optometrists to discourage their customers from purchasing eyeglasses from more economical retail sources, and to withhold from the customer whose eyes they examine any written prescrip- tion which would enable the customer to purchase eyeglasses from other avail- able retail sources. Since HR 1283 would permit optometric eye examinations to be made only by self-employed optometrists, the adverse effect upon competition and pricing which would ensue is manifest. (See Exhibit 8-the pertinent provisions of a report of the Anti-Trust Division of the Justice Department submitted to the United States District Court, Northern District of Illinois, Eastern Division, in the so-called "Optical Rebate Cases"~, concerning the effect of the judgment in those cases on the pricing of eyeglasses.) There is little question but that Sterling and other retail sellers of eyeglasses similarly situated, who provide eye examinations through employed optometrists, constitute the one factor most likely to stimulate wholesome competition with which the Justice Department was concerned in its report to the Court. In this *T]5 v. Bausch ~ Lomb Optical Co., at al., Civil Action No. 46C1332; U.S. v. American Optical Co., et a!., Civil Action No. 46C1333; U.S. v. House of T~ision-Belgard-Spero, Inc., et a!., Civil Action No. 48C607; U.S. v. Uhlmann Optical Co. of Illinois, et a!., Civil Action No. 48C608. While these cases involve primarily anti-competitive practices of oculists, the analogous prevailing practices of privately practicing optometrists make the report of the Justice Department referred to clearly applicable. PAGENO="0190" 186 OPTOMETRY respect, Arnold R. Wolfson, O.D., Garden Grove, California, in an article appear- ing in the March 15, 1967 edition of the "Optometric Journal and Review of Optometry" (Exhibit 9), adversely commenting upon the relentless condemna- tion of the employed optometrist by the professional optometric associations, noted: "We have been talking of higher fees, of raising the cost of eye care to the public * * * We have been doing this and condemning optometrists who attempt to bring the cost of eye care down * "Optometrists in discount houses, in union plans and in store-type offices. can, and in the most cases do, give adequate visual care; at the same time,. they promote optometry to the public. Physical surroundings do not indicate the quality of care the patient will receive and neither does the method used to get the patient into the office. It is about time we stopped equating only a `professional' office with ethical and professional treatment." As Dr. Wolfson observed, the physical surroundings wherein the optometrist carries on his practice does not determine the quality of the services rendered, as evidenced by the fact that the overwhelming majority of practitioners of~ optometry in the District of Columbia presently practice in store-front estab- lishments (Exhibit 10). There similarly is no evidence and no showing can reasonably be made that the employed optometrists in the District of Columbia are practicing in an unethical or unprofessional manner. On the other hand, whatever imperfections exist in the practice of optometry, whether by employed Or self-employed optometrists in the District of Columbia, may be remedied under existing legislation. The decision in District of Columbia v. Fields, Criminal Action No. DC 3628-66 (District of Columbia, Court of Gen- eral Sessions. Criminal Division. 1966) makes clear that contact lenses may not be provided by unskilled or unqualified persons. It is also manifest that the Commissioners are vested with authority to promulgate other appropriate or needed regulations (District of Columbia Code, Sections 47-2344; 47-2345). "Bait" advertising or advertising false in other material respects may be dealt with effectively under local law (District of Columbia Code, Sections 22-1411; 22-1413), or where appropriate, by the Federal Trade Commission (See FTCA, Sections 5, 12-16; Trade Practice Rules for the Optical Products Industry, pro- mulgated June 30, 1962). Conversely, it is submitted that the problems which may exist would not be appropriately dealt with by the elimination of advertising or the corporate employment of optometrists as provided for in HR 1283. In 1937. the Appellate Division of the Supreme Court of the State of New York, in Dickson v. Flynn,. 246 App. Div. 341, aff'd, 273 N.Y. 72 (1937) * (Exhibit 11), when construing 5~. tion 7100 of the State Education Law as sanctioning the corporate employment of optometrists, observed: "The statute was passed because the legislature believed it an aid to public health, and the courts have held it to be constitutional because of its relation to public health. The benefit was intended for the public, not the optometrist. Otherwise, the statute would have been unconstitutional. The legislature did not deem it necessary to create a professional optometrist monopoly. Poverty or the lack of ability to pay has relation to public health, and the legislature may well have believed that competition between op- tometrist and store would make for more reasonable prices and profits, and that public health would be benefited thereby and could not suffer with an eye specialist present in the store at the place of sale." During the last days of the recently concluded session of the New York State Legislature, a bill (Exhibit 12) sponsored by the professional optometric as-- sociations, similar in material respects to HR 1283, was favorably voted upon without hearing or meaningful discu~sion. This legislative action was immedi- ately met with an overwhelming public outcry in opposition by the news media (Exhibit 13), labor organizations (Exhibit 14), business and professional groups (Exhibit 15), and governmental agencies including the New York State Insur- ance Department, the New York State Department of Commerce and the Eco- nomic Council of the Mayor of the City of New York, to name only a few. *Clted with approval In Peovie of time State of Ycm'- York, plaintiff v. Sterling Optical Co., Inc., defendant, 26Mise. 20 412 (Sup. Ct. N.Y. Co. 1960), aff'd 14 AD. 20 838 (1st: Dept. 1962). affd, 11 N.Y. 20 970 (1962). PAGENO="0191" OPTOMETRY 187 As a consequence and as a result of a fuller exploration and consideration of the facts, the Governor of the State of New York vetoed the legislation, with a message (Exhibit 16) citing the opinion of the New York State Insurance Department that such legislation would "increase costs ~ * with no increase in the quality of services". For all of the foregoing reasons, it is respectfully urged that the Committee reject in all respects HR 1283. Respectfully submitted. STERLING OPTICAL Co., INC. SIDNEY WEINRIB, President. THE PEOPLE OF THE STATE OF NEw YORK, PLAINTIFF, v. STERLING OPTICAL Co., INC., DEFENDANT Supreme Court, Special Term, New York County, December 8, 1960. Corporations-optometry-corporation may employ licensed optometrists and opticians in connection with its sale of eyeglasses (Education Law, §~ 7100, 7120)-but issues of fact exist as to defendant corporation. 1. `Though a corporation is not a person who can be licensed to practice optometry (optometrist) or ophthalmic dispensing (optician), a corporation may employ licensed optometrists for the limited purpose of examining the eyes of its customers in connection with the sale of eyeglasses at retail, and for this purpose the corporation may utilize their skill to determine the neec1 for eye- glasses and the prescription to meet such need; and similarly, as a necessary incident to the sale of eyeglasses, the corporation may employ licensed ophthalmic dispensers (opticians) who read the optometrist's prescription and select the lens to conform w-ith such prescription and who adapt the eyeglasses to the customer's face. (Education Law, §~ 7109, 7120.) 2. Issues of fact exist, however, as to whether defendant `corporation repre- sents to the public that `it provides complete optical care and as to whether its optometrists and opticians thus perform other functions which would constitute the unlawful practice of optometry and ophthalmic dispensing by a corporation. Louis J. Lefkowitz, Attorney-General, for plaintiff. Freedman, Loewenste'in ~ Meyers for defendant. Gzozoz Tn~zzim, J. Motion by plaintiff for summary judgment. Cross motion for judgment on the pleadings, pursuant to rules 106, 111 and 112 `of the Rules of Civil Practice, as to the first and second causes of action, to strike `out the reply, and for judgment on the pleadings upon the first and second `counterclaims, or, in the alternative, for summary judgment on the action and counterclaims. The acti'on ~va's. commenced to annul the corporate charter of the defendant corporation upon the grounds that it `has engaged and still continues `to engage in the unlawful practice `of optometry and ophthalmic `dispensing; to enjoin said defendant from the continuance of such unlawful practice; and for the assess- ment of a fine pursuant to the provisions of section 1216 of the `Civil Practice Act. The defendant takes issue with many of the allegations stated in the com- plaint. However, sufficient pertinent facts are conceded upon which the court may determine whether, as a matter of law, the plaintiff is `entitled to the relief sought. The defendant maintains a st'ore where it has a `large stock of eyeglass frames and eyeglass lenses. It employs optometrists on a salary basis, whose functions are to examine the eyes of customers in order to determine whether such customers need eyeglasses at all, and, if so, what type of optical lense is required. In niaking the examination, the optometrist uses whatever optical instruments are necessary in the particular case, which instruments are `owned by the `de- fendant. The `optometrist sets out the particular optical properties of the lens required on a document commonly called a "prescription". The customer is in- structed to take such prescription to another part of the defendant's establish- ment where he or she chooses a frame, after which a duly licensed ophthalmic dispenser, also employed `by defendant on a salary basis, sees that lenses of optical qualities to conform to the optometrist's prescription are inserted, and that the frame with `the lenses so inserted is properly adapted to the customer's face. The lenses of `the required optical properties are cut to fit the shape of the frame. If the cust'omer desires to purchase the frame or lens separately, he may do `so. PAGENO="0192" 188 OPTOMETRY It is conceded that `the corporation is not a person to whom a license to practice optometry or ophthalmic dispensing can be issued under the laws of the State of New York. The People claim that such acts of the defendant corporation, as hereinbefore stated, constitute the practice of optometry and ophthalmic dispensing. The defendant started this particular business in 1914. Prior to 1908, the business of providing appropriate optical aid to human vision was not regulated in any way. In that year the first statute requiring the licensing of optometrists was enacted (Public Health Law, art. XIII, L. 1908, ch. 460). In essence, it provided that every person desiring to commence or to continue the practice of optometry after January 1, 1909, except as hereinafter provided, shall pass an examination and secure a certificate to practice. Exempted therefrom were persons who neither practiced nor professed to practice op- tometry, and those who sold spectacles, eyeglasses or lense either on prescription from physicians or from such duly qualified `optometrists; or as merchandise from permanently located and established places `of business. Such act curtailed the seller to a certain extent. Thereafter in 1928, sales were further curtailed under section 1432-a of the Education Law (now § 7109 of said law) as follows: "§ 7109. Sales of eyeglasses, spectacles and lenses at retail. It shall be un- lawful for any person, finn or corporation to sell, at retail, as merchandise, in any store or established place of business in the state, any spectacles, eyeglasses, or lenses for the correction of vision, unless a duly licensed physician or duly qualified optometrist, licensed under part one of this article, be in charge of and in personal attendance at the booth, counter or place, where such articles are sold in such store or established place of business. This shall not prohibit. how- ever, a duly certified ophthalmic dispenser from selling, providing, furnishing or adapting spectacles, eyeglasses or lenses only on prescription of physicians or duly qualified optometrists or from duplicating lenses. The peddling of spectacles, eyeglasses or lenses or the practicing of optometry or ophthalmic dispensing from house to house or on the streets or highways, by any person also shall be unlawful, notwithstanding any law providing for licensing peddlers. This shall not prohibit, however, an optometrist or physician from attending. prescribing for and furnishing spectacles, eyeglasses or lenses, or a certified ophthalmic dis- penser from furnishing or adapting spectacles, eyeglasses or lenses, to a person who by reason of illness, physical or mental infirmity is confined to his abode." The plaintiff stresses the words "as merchandise" in said section and con- tends that the sales are limited to "ready made" articles for which an optometrist is required to be physically present at the counter or booth during the sale to determine whether such "ready made" articles are sufficient to meet the needs of the customers. Defendant urges that under said section it has a right to employ optometrists for the limited purpose of examining the eyes of its customers in connection with the sale of eyeglasses at retail, and for this purpose to exercise as much of their skill as is necessary to determine the need for eyeglasses and the prescription therefor. It claims that it has no so-called ready-made spectacles or eyeglasses on dis- play, but merely frames and lenses. It then endeavors to show that the intent of the statute was `to assure that a customer was properly fitted with correct spectacles or eyeglasses and that since an examination would ordinarily be necessary and a prescription result, the law was to apply to made-to-order eye- glasses. Otherwise, it asserts, the purpose of the law would not be accomplished. In recommending the amendment to the statute, now section 7109, the Edu- cation Department stated that the law was aimed at that more or less un- scrupulous group of dealers who sold at retail spectacles and eyeglasses which were selected by their customers without adequate advice and which articles it was found often impaired or ruined the vision of the individuals so purchasing them. In interpreting section 7109, the United States Supreme Court in Roschen v. Ward (279 U.S. 337, 339), states: "When the statute requires a physician or optometrist to be in charge of the place of sale and in personal attendance at it, obviously it means in charge of it by reason of and in the exercise of his pro- fessional capacity. If we assume that an examination of the eye is not required in every case, it plainly is the duty of the specialist to make up his mind whether one is necessary and, if he thinks it is necessary, to make it." PAGENO="0193" OPTOMETRY 189 Section 7109, I conclude, was aimed at bargain counter reading glasses. The words "as merchandise", appearing in the section have special meaning. They were no doubt taken from that section of the Public Health Law of 1908 con- cerning those exempted from securing a certificate to practice optometry and were intended to distinguish between prescription glasses and glasses at hand. Thus, such new section is but another curtailment on the seller. Under said sec- tion a corporation is not only allowed to employ, but is required to use an op- tometrist. If such optometrist decides an examination is necessary, then it is his duty to make one (Rosehen case, supra). This without question is the practice of optometry by an employee in behalf of the employer. It is something which was not previously required but is now specifically mandated by law. Defendant's argument that section 7109 sanctions its employment of optome- trists as an incident to the sale of prescription glasses would be tenable if the law was aimed at other than ready-made glasses generally on the counter or sold by peddlers from house to house. As stated before, its intent was to prevent the sale at retail of eyeglasses as but another piece of counter merchandise. Section 7109 of the Education Law, the court finds, does not sanction the defendant's einplovnient of a licensed optometrist to the extent of permitting such optometrist to write prescriptions. Such conclusion as to the restricted purpose and intent of section 7109 of the Education Law is not dispositive nevertheless of the basic issue presented. Although required to hire an optometrist in the sale of counter eyeglasses, may a corporation employ a licensed optometrist for the additional purpose of exam- ining a customer and supplying a prescription, even though the Education Law prohibits a corporation from practicing optometry? Or, putting it another way, is such hiring an attempt to circumvent the law to enable the corporation to practice optometry indirectly which it cannot do directly? The issue is not the defendant's right to practice optometry as if it were a licensee or its right to sell the totality of an optometrist's services and functions. The question concerns the propriety of defendant's employment of optometrists for the limited purpose of examining the eyes of its customers in connection with the sale of eyeglasses at retail, and for this purpose to utilize their skill to determine the need for glasses and the prescription to meet any such need. The question of whether defendant's limited activities constitute the practice of a profession restricted to natural persons has not been directly passed upon by our appellate courts. Foreign decisions, moreover, are in conflict. The right to engage in a lawful occupation is a fundamental, natural, essential, and inalienable right, one of the privileges of citizenship. Like other rights equally fundamental, however, the right to engage in any legitimate trade, occupation, business, or profession, is not absolute, but is subject to a reasonable and neces- sary exercise of the regulatory powers of government in the public interest or welfare. The inalienable right of every citizen to follow the common industrial occupations of life does not extend to the pursuit of those professions which are subjeeted to supervision in the interest of the public welfare. As to what is a profession, the term connotes something more than mere proficiency in the performance of a task; it implies intellectual skill as contrasted with that used in an occupation for the production or sale of commodities. Originally, and his- torically, the word "profession" was applied only to law, medicine, and theology or divinity. From early times, moreover, the "learned professions" were given "exclusive rights and subjected to peculiar responsibilities." The practice of law or of medicine was not a business open to all, but a privilege conferred upon the individual engaged therein. A corporation, it was held some 50 years ago, could not practice law or medicine, nor might it hire lawers or doctors to act for it (Matter of Co-operative Law Co., 198 N. Y. 479, 484). As the appli- cations of science and learning were extended to other fields, other vocations became known as "professions". The liberalization of the term, however, to embrace chemists, editors, electricians, landscape architects, teachers, and short- hand reporters, among others, did not give to such "professions" exclusive rights nor subject them to peculiar responsibilities. If wrongs were practiced by mdi- viduals engaged in these calhings, a State might not seek to remedy such evils by imposing unreasonable and unnecessary restraints upon them. If it w~as felt that only natural persons should be authorized to carry on one of these voca tions, such. a statute would have to bear "a real and substantial relation to the public health, safety, morals, or some other phase of general welfare. * * A state cannot, `under the guise of protecting the public, arbitrarily interfere 82-754-67-------13 PAGENO="0194" 190 OPTOMETRY with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.'" (Liggett (Jo. v. Baidridge, 278 U.S. 105, 112-113.) A case in point was before our Court of Appeals in People v. Dr. Schoil's Foot Comfort Shops (277 N. Y. 151) where the defendant corporation was convicted of unlawfully practicing podiatry. There, FINCH, J., writing for a unanimous court, said (p. 156) : "It is contended, however, that the present statute, in providing that `no person' shall practice chiropody without a license, bars the employment of licensed chiropodists by a corporation; that a corporation is a person; that it cannot be licensed, and that, therefore, it cannot employ licensed practitioners. This construction involves an unjustifiable reading into the statute of terms which it does not contain. The statute does not mention corporations, and on its face has no applicability to corporations. Its obvious purpose is to protect the public health by prohibiting any one from treating or diagnosing foot ailments unless qualified, and by requiring such qualification to be shown by the possession of a license. Neither the context nor the object of the statute accords with the inter- pretation which would prevent corporations from employing licensed chiropo- dists." After pointing out that attempts to confine ownership of drugstores to licensed pharmacists or to corporations whose stock was owned solely by licensed pharmacists were declared unconstitutional on the ground that such a require- ment concerning ownership bore no real relationship to public health, and, there- fore, was unreasonable (Liggett Co. v. Baidridge, supra), the reasoning of Judge FINCH Ill the succeeding paragraph is particularly pertinent to the issue at hand (p. 157) : "The analogy between .the profession of podiatry or chiropody and those of optometry and pharmacy, is a close one, and in the absence of a clear expression of intention we should not hold that licensed practitioners of one may not be employed by a corporation when the Legislature permits such employment of the others." After the decision in the Dr. Schoil's case (supra), the Legislature in 1942 amended the law pertaining to podiatry and specifically prohibited the practice thereof by corporations with the provision that "it shall be lawful for corpora- tions organized and existing under the laws of the State of New York and which on Or before the first day of March, nineteen hundred forty-two, were legally in- corporated to practice podiatry to continue such practice through licensed and registered podiatrists" (Education Law § 1415-a, as added by L. 1942, ch. 785 [now Education Law, § 7009]; italics supplied). The Legislature, it must be ob- served, did not change or further limit the law with respect to employment by a corporation of optometrists or pharmacists. In fact, although some seven bills were introduced in the last three sessions of the Legislature to amend section 7109 of the Education Law to provide in essence that a corporation shall not practice optometry directly or through a licensed optometrist employed by it, all failed of passage. A further illuminating decision as to the defendant's right to sell eyeglasses and to employ optometrists for the purpose of examining the eyes of customers in conjunction with such sales, is that of Matter of Dickson v. Flynn (246 App. Div. 341, affd. 273 N. Y. 72). In that case a certificate of incorporation which specifi- cally provided for the right to employ optometrists to examine the eyes of custo- mers in connection with the sale of eyeglasses at retail was submitted to the Secretary of State, who refused to accept it. An order of mandamus requiring the Secretary to file such certificate was affirmed by the Appellate Division in an opinion by HILL, P. J., which reads as follows (p. 344) : "The business in which the corporation is to engage is the sale of eyeglasses, spectacles, and lenses at retail. It does not become the practice of medicine or optometry because of the presence of a physician of optometrist. However, for the sake of the argument, if it be determined that the employment of a physician or optometrist amounts to a limited practice of medicine or optometry, petitioners are still entitled to the relief they seek. All persons had the right to sell eyeglasses before the enactment of article 54 of the Education Law. The Legislature by section 1432-a of that article has explicitly recognized and reaffirmed that right and, in addition, has required that the selling be surrounded by safeguards." In answer to the argument of the Attorney-General that the statute (Education Law, § 1432-a, now ~ 7109, quoted above) does not confer upon a corporation the authority to employ optometrists for the purpose of examining the eyes of cus- tomers in connection with the sale at retail of eyeglasses by the corporation, Judge HILL said (pp. 343-344): "The statute was passed because the Legislature be- PAGENO="0195" OPTOMETRY 191 lieved it an aid to public health and the courts have held it to be constitutional becai~se of its relation to public health. The benefit was intended for the public not the optometrist. Otherwise the statute would have been unconstitutional. The Legislature did not deem it necessary to create a professional optometrist mo- nopoly. Poverty or the lack of ability to pay has relation to public health and the Legislature may well have believed that competition between optometrist and store would make for more reasonable prices and profits, and `that public `health would be benefited thereby and could not suffer with an eye specialist present in the store at the place of sale. Unless some constitutional right is invaded, the clear intent of the Legislature should be given effect." The Court of Appeal~s, as noted, affirmed the mandamus order (273 N.Y. 72). The plaintiff relies principally upon the decision of this court in Dickstein v. Optical Serv. (19 Misc. 2d 495). In the Diekstein case the court was not asked to summarily enjoin and annul the charter of a corporation. There was involved but a motion to dismiss a complaint under rule 106 of the Rule,s `of Civil Practice, which motion was decided upon the ground that the complaint stated a cause of action for a declaratory judgment. Moreover, the complaint there alleged that the defendant, through its employees, provided the totality of the optometrist's serv- ices and functions, including "ocular exercises" for the eyes of the customer. Thus the complaint averred that the optometrists employed by the corporation rendered services that had nothing whatever to do' with the sale of eyeglasses. On the mo- tion, of course, the court assumed the truth of the allegation,s of fact stated in the complaint. The court is advised that the Dicksteim action was discontinued by stipulation between the parties. I-Iere we are not concerned with the sale of an optometrist's functions, but with the sale of eyeglasses. The court, it must be emphasized, does not question that optometry is a personal profession and that a corporation cannot practice it. It: must hold, nevertheless, that while section 7109 orders that a corporation must employ an optometrist in connection with the sale of self-prescription glasses, the law of this State does not confine an optometrist in the employ of a corporation to the simple determination as to whether the customer should select ready-made glasses. Such a limitation bears no relation to the protection of the health, wel- fare or safety of the public. The public requires the same protection whether the' eyeglasses are ready-made or assembled to order, and the optometrist must exer- cise his art in `both instances to the same extent and for the same purpose, that is, to examine eyes to determine the proper prescription required to correct the vision. The public is not better protected if the sale of eyeglasses is confined to optome- trists and denied to corporations which employ optometri1sts to perform exactly the same function in connection with the retail sale of eyeglasses that an optome- tris't would perform as a storekeeper (Matter of Dickson v. Flynn, supra, p. 344). The plaintiff may iiot, in the guise of subjecting a profession to its responsibilities, arbitrarily interfere with private business. As one may select the savings of hav- ing a prescription filled in a drug chain store, another may insist on the individual attention of a neighborhood pharmacist; so, too, if a member of the public desires the attention of an individual optometrist, that is still his privilege. The circum- stance that the defendant has been successful in its busines,s may be said to indi- cate that in fact the public is `being better served. Indeed, although' the corporate employment of optometrists has existed for over half a century in thi~s State, no instance has been cited where such employment caused injury to the pu'blic. The court finds that the defendant is not prohibted from employing licensed optome- trists for the limited purpose of examining the eye,s ,of its customers in connection with the sale of eyeglasses at retail and for this purpose to utilize their skill to determine the need for glasses and the prescription to meet any such need. What has been sa'id with regard to the defendant's employment of optometrists applies as well to the defendant's hiring of ophthalmic dispensers. It was not until 1940 (L. 1940, ch. 097) that the Legislature enacted a statute requiring the certification of ophthalmic dispensers (now Education Law, § 7120 et s'qq.). In' the defendant's case, `the optometrist employed by it writes a prescription, which is then given `by the customer to the ophthalmic dispenser, or optician, `as he is popularly called, who read's it, selects the lens to conform with it, and adapts the eyeglasses to `the customer's face. Neither section 7109 of the E'ducation Law nor any other statute of this State prohibits corporations from employing optometrists and `opti~ians and `utilizing their services in the manner of defend- ant. The primary purpose of the statutes passed with respect to optometrists* and opticians was to insure that their `skills would be rendered by competent PAGENO="0196" 192 OPTO1~TRY and licensed persons and thereby to protect the public health. That purpose may be fully accomplished though the persons rendering the services are em- ployed by a corporation. In summary, defendant's activities as enumerated above do not constitute the unlawful practice of optometry or ophthalmic dispensing. Accordingly, the plain- tiff's motion for summary judgment is denied. Such determination is limited, as we have said, to the propriety of defendant's employment of optometrists and opticians a's a necessary incident to the sale of eyeglasses `at retail. The plaintiff further alleges, however, that the defendant represents to the public that it provides complete optical care. In this respect, issues of fact are raised as to whether the optometrists and opticians in the employ of defendant perform other functions which would constitute the practice of optometry and ophthalmic dispensing by the defendant. The presence of such issues precludes summary judgment in favor of the defendant and requires that the complaint and the reply be sustained. The defendant is entitled nevertheless to partial summary judgment, as indicated, to the extent of declaring that the employment of optometrists and opticians as a necessary incident to the sale of eyeglasses is not unlawful. Settle order. PaAcYrIcn MANAGEMENT-SEMANTICS IN OPTOMETRY (By Jack R. Hale, O.D., D.O.S.) Since optometry is a discipline of growing importance in the field of health, I wish to share my thoughts regarding the application of semantics. I do not anticipate complete agreement with my thesis; my only desire is to stimulate ideas that may result in a more positive approach to some of optometry's prob- lems. A well known story relates how George Westinghouse designed and patented a compressed air brake for railroad cars. One railroad tycoon remarked, "Do you mean to tell me with a straight face that a moving train can be stopped with wind?" Words are more than descriptions, they are evaluations. The behaviorist school of psychology even believes that all thought is subvocal speech. Grammar, in a sense, deals with word-to-word relations. Logic goes further, since sentences are assertions to logicians. Semanticists `state that words and assertions have meaning only if they are related in operation to referents. In general, semantics is of fundamental importance in the science of man. Gestalt psychology, psychiatry, cultural anthropology and various factors of human behavior are now assuming a growing importance. Both organizing and selecting factors have a positive relating importance to linguistic habits and the structure of language. Our culture demonstrates that both causes and effects arcs within man's evaluative mechanisms. WORDS IN ACTION Experience has demonstrated that there are segments or groups within or- ganized movements (or professions) who cannot be comfortable until they find a panacea. These people find fulfillment in supporting cults. Supporters of professional optometry should not associate with unscientific groups because skilled propagandists can use them. Beware of those who offer vague or undefined words which support a superstructure of semantic gobblede- gook! The scientific method, in approach, attitude and dissemintaion, is a hall- mark, of professionalism. CONTRASTING APPROACHES Misuse of words is apparent in the contrast of positive and negative ap- proaches- Negative: "I want to think about referring you to a doctor." Positive: "Our case findings indicate your best interests would be served by referral to a physician for additional professional attention." Use "physician," rather than "doctor." By choice of words, indicate that your skill and training is on a' comparable professional level. Substitute the term "ophthalmologist" for "physician" when indicated. \\Then asked if you use drops- Negative: "As a non-medical man, I can't use them." Positive: "Your refractive needs can be evaluated more efficiently without drops, and drops have bad carry-over effects at times." PAGENO="0197" QPTOMETRY 193 Avoid the term "non-medical" like the plague. It is a weapon of our adversaries. Are they not "non-optometric ?" When asked if you guarantee your work- Negative: "I don't know. Something might be arranged." Positive: "No real professional man ever gives a guarantee; besides, my pro- fessional ethics and also my insurance forbid such statements. We wfll do our best for you, which is the important thing, isn't it?" The positive approach affirms your professional status, and you gain rather than lose prestige. When asked, "How much are your frames and lenses?"- Negative: "Our prices are as cheap as any place in town." Positive: "It really is impossible to answer this. Lenses, in particular, vary for the needs of each patient." Alternate answer to shift emphasis: "What is your visual condition ?" Since the patient's question inquires basically about your office, you have every right to use the alternate answer. Frames and lenses are devoid of value without your professional care. INFLUENCE ON PATIENTS Phase One in influence is predicated on people (patients). The modern profes- sional optometrist recognizes more than the patient's need for a pair of glasses. Generally speaking, if primary needs were the basic criteria of importance, China and India would be the greatest nations in the world because of the great and perpetual needs of their masses. A successful professional equation requires more than just a patient needing something. Phase Two in influence is the optometrist himself. We must constantly watch our in-office language, since we may not be aware of its tremendous inherent power. Our professional language impresses and is automatically projected to patients, their friends, and acquaintances. An optometrist's greatest practical asset is his in-office semantics. His words and assertions have meaning and impact when properly used. The patient has sought him for advice and is willing to listen to his opinion. How he influences the patient by what he says and does directly equates his success in practice. "OPTOMETRY"-GOOD, BAD, OR NETJTRAL? Near the turn of the century certain opticians decided in assembly to use the words "optometry" and "optometrist." Naturally, not all those within the pro- fession thought that this terminology ~vas the bestpossible. Is the term "optometrist" good or bad? Actually, it is neutral in certain aspects, a word through whose use and identification members of the profession theoretically create an image. Does~ "optometry" have ~a national image? Other professions, some through use of TV, have clearly delineated professional per- sonalities. Is it possible to have professional prestige without a national image? In the last analysis, the profession is a composite of individuals. If the public is confused by the various modes of optometric practice,~ the best presentation for personal prestige is to project the highest personal standards. Effective pnblic relations radiates from a quality professional image. Think over this fundamental question: How many of your. patients know the educational qualifications of an optometrist? Can a professional image be built on sand? A careless projection or publication of qualifications may clash with state statutes and damage carefully nurtured prestige. At times the indirect presenta- tion of educational credentials is the most effective way. SUMMARY General semantics is concerned with language habits, such as how we talk and what attitudes we have toward our own remarks. How we act is determined by how we think, but sometimes we may act without thinking. Even when we sup- posedly act without thinking, our acts follow guides of thought patterns, which co-relate to the language we use. Language most often reflects intrinsic behavior or innate cultural patterns of an individual. One should study, think, act and talk professionally at all possible times. Management of the patient's visual needs in the most professional manner will reflect the highest interest of the practitioner and of the profession. PAGENO="0198" 194 OPTOMETRY A vision specialist attempting to practice in a commercial atmosphere is not true to himself, let alone to his patients. These surroundings indicate a schizo- phrenic4ike deterioration of patient interest. Intelligent practitioners now engaged in commercial practice should phase-out the trimmings and decorum of unprofessional practice and turn to the quality approach of professionalism. Up-to-date practice management techniques build a practice consistent with ethical standards and can be dynamic. The old- fashioned heavy advertiser is facing less and less return and needs emancipation from the snake pit of self-interest. The words and language of communication channels shape the content of the human psyche and the influence of that process on human behavior. Optometrists, in particular, should be vitally aware of the insights of today's public. Our surging, changing modern society finds np-to-date professional optometry in tune with its needs and desires. A larger and growing number of optometrists are building ethical large-volume practices. Last year, personal income in the United States rose to a record $4T8.S billion. Blind adherence to commercialized practice management techniques of years past may condition or prejudice some optom- etrists against 1965 professionalism. Objectivity is and always has been a rare talent. The umbilical cord of wishful thinking, vanity, and self-interest requires a decisive slash. Professional progress is a re-evaluating and upgrading of the tools and talents of one's occupation. However, postgraduate training and constant upgrading of professional materials are in vain without upgrading of professional semantics. Knowing more and acquiring better facilities are also in vain without meaning- ful communication to patients. Above all, we must be true to ourselves, our God, and our professional destiny in the service of mankind. [From the Manual of Professional Practice for the American Optometrist] ExnmIT "3" PROFESSIONAL TERMINOLOGY The public and particularly your patients will understand and appreciate your professional services only if what you say and do reflects professional thinking. The American Optometric Association recommends that all optometrists use the following terminology: A.O.A. recommended term~noZogy - ___instead of Business - instead of Customer instead of Price or Cost - instead of Optical Shop - instead of Shop Man instead of Wholesaler instead of Selling Glasses - instead of Optical Merchandise * _instead of Selling - instead of Jobber instead of Eye Examination or Eye Test * instead of Eye Care instead of Orthoptics instead of Office Girl - instead of Publicity - instead of Local Association instead of State Society * instead of National Society instead of Meeting - instead of Doctor - instead of Drivers' Vision instead of Optical instead of Convention Please use: Practice~. - Piitic'iit____ Fees Optical laboratory___. Optical technician__- Supply house Providing services__. Ophthalmic materials. Prescribing Visual examination or visual analysis - Vision care - Visual training Secretary or assistanL.. Public relations - Local society State association AOA Educational meeting.__ Physician Motorists' vision - National congress PAGENO="0199" OPTOMETRY 195 Prices Charged by Washington American Optometric Association Members * as of June 1907 for Glasses to be Duplicated (Cost of same glasses at Sterling Optical-$12.45). Total price Name (lenses and frame) Berlin, M ~23. 00 Campbell, F 27. 50 Couperthwaite, C 24. 50 Cowan, A 22.00 Dantzic, D 26. 00 Dosik, R 16. 50 Duff, W 20. 00 Ephriam, Z 20.00 Goldblatt, D 22. 00 Greenwood, J 24.00 Kale, D 18.00 Katz, H 26. 00 Katz, P 10.50 Keely, W 22. 50 Kershner, L 22.00 Lee, ~ 17. 00 Lyner, ~ 20. 00 Parmet, H 25.00 Pollack, H 22.00 Robbins, E 22. 50 Sheley, R 22. 50 Shelton, ~ 22. 50 Toman, J 21.25 Teunis, Ralph 25. 00 Teunis, Robert 25. 00 TJhler, C 26. 00 Warren, B 23. 00 DISCUSSION-THE CHALLENGE OF THE HART BILL: TAKE THE PROFIT OUT OF EYEGLASSES (By Samuel Drucker, O.D.) Regardless of its eventual fate, the Hart Bill * has raised a moral issue: Should a doctor be permitted to profit from a patient's illness or needs? In past decades, medicine often confronted optometry with the same issue. Medicine argued that optometri~ts profited from the sale of eyeglasses and could not, therefore, give an honest opinion on their need. In later years, ophthalmol- ogists began to dis~ense. The argument by medicine was quietly interred. If their original argument was valid, why did ophthalmologists turn to methods they had called "unethical" for optometrists? One reason was competitive. It was an attempt to answer the nagging question of why most people went to an optometrist. The answer lay in the unified Service of the optometrist. By com- bining dispensing with refraction, he was.offering what the patient wanted, in less time, with less effort, and generally at a lower cost. If the ophthalmologists had been content to dispense at laboratory costs, the changeover would have been ethical, and the end results might have been devas- tating to some optometrists. However, the commercial rewards of dispensing proved more attractive than the objective of stripping from optometrists the most accepted feature of their services. Like optometry, ophthalmology fell into the trap of commercialism and will pay the bill in eroded professional prestige. *Omlttecl from this listing are those optometrists listed as A.O.A. members in the Wash- ington Classified Directory who are deceased, are retired from practice, have temporarily closed their offices, and who do not duplicate glasses. *EDiT0R s No'rz: S. B. 2563, introduced in the U.S. Congress on Sept. 28, 1065, by Sen- ator Philip A. Hart of Michigan, is now awaiting hearings. The stated purpose of the bill Is: "to strengthen the antitrust laws by prohibiting the payment to or receipt by persons licensed to engage in the practice of medicine, of profit, rebates, refunds, commissions dis- counts, rentals or other valuable considerations In connection with the supplying to pa- tients drugs, devices, or other products prescribed by such licensees." Hearing In 1065 prior to introduction of the bill centered on the dispensing of eyeglasses by ophthalmolo- PAGENO="0200" 196 OPTOMETRY Prior to World War II, the income of optometrists depended entirely on profits from the sale of eyeglasses. Prescriptions were sometimes changed for trivial reasons. However, the profit was no more than the professional fee should have been, and ~the patient came out ahead with new lenses. On the other hand, the ophthalmologist has always charged a substantial exam- ination fee, and could always afford an honest opinion on the need for glasses. Any profit now derived from dispensthg must, therefore, be based on commercial considerations. Also, it is widely acknowledged that ophthalmologists are determined to knock out their optometric competitors-just as they are gradually knocking, dispensing opticians out of business. Monopolistic intent is clearly a factor to which Senator Hart's subcommittee could give due attention. The academic standards of optometry have escalated impressively in recent years. As a result, many oPtometrists now charge as much for an examination as do ophthalmologists. The rationalization is that the quality of our services is equal to, and sometimes superior to, the quality of the services of medical refrac- tionists. Therefore, optometrists can, and do, render an honest opinion on the need for glasses. However, there is still the serious, obstacle of the commercial profit from cosmetic frames. So, arguments in support of the Hart. Bill and against profit on materials by, ophthalmologists may apply equally to optometrists who do not observe a rigid fee system. When hearings on the Hart Bill begin, it is almost certain that opponents of optometry will seek an amendment to include all refractionists as "licensed personnel". Failure to do this might give the impression of professional discrimi- nation against ophthalmologists. Such an amendment might present a very difficult problem for optometry since the unified service is historically, inter- woven into our professional fabric. LIBERAL CONCEPT OF COSTS The crux of the matter is that the Hart Bill would not prohibit dispen~ing, but would, in effect, limit the charges niade for eyeglasses to labOratory costs. Since the approved AOA system ostensibly limits the dispensing fees to costs plus laboratory charges, there is no apparent conflict on the surface. However, some optometrists have a very liberal concept of "costs", and include time spent in frame selection, ordering, verification and adjustment. This is a concept with which Senator Hart is not likely.to agree. The fallacy in our reasoning is that w-e must charge professional fees for time spent in a service `that could easily be performed by a clerk or salesman. There are obviously two fees in the "fee system", and the fee for supplementary services will have to be made demonstrably smaller than the fee for purely professional services. Otherwise, it would seem that what we formerly recognized as a commercial profit has merely been relabeled as a dispensing charge. COMPETITION OF DISCOUNT HOUSES In large cities the examination fees of many optometrists and of some oculists, (non-certified medical refractionists) are often very low because the entire price structure is depressed by the competitive methods of discount houses. This factor' would make it correspondingly more difficult for refractionists to survive on the basis of the usual examination fee charged in such areas. Thus, there is often a greater degree of dependency on profits from the sale of eyeglasses than is compatible with the requirements of professionalism. Yet, even here, a broadened Hart Bill may offer more of a promise than a threat, for the alternatives posed by cut-throat competition may yet become devastating. TJrban and suburban refractionists need to see that the economic foundations of the unified service have been hopelessly breached by discount houses. Nothing. we can do will restore the status quo ante. Even if refraction services were separated from such houses by law and more stringent rules on "gross negligence" were promulgated, the discount house could still sell good quality lenses in a durable and attractive frame, and make a profit at a price that would be com- pletely impossible for the private practitioner to meet. Our patients would simply pay us for their prescriptions, and have them filled by a discount house. They could have the prescriptions filled personally in the same manner as they now do with industrial safety glasses, or even by mail. PAGENO="0201" OPTOMETRY 197 Our chief reliance for professional integrity must no longer be placed on the unified: fee* system which is rapidly becoming obsolescent, but rather on a sub- stantial examination fee, standing separate and aloof from all other charges. A substantial examination f~ can be commanded only in unimpeachable profes- sional environments, so that the store-type of practice will have to be relegated to an honorable place in our history. Although some 40 states have laws against corporate practice, New York State seems to have had more difficulty in this regard. Anti-corporate practice bills have been passed by the State Legislature twice, and twice they have suffered ~gubernatorial vetoes. On his own initiative, an attorney general recently began a suit against corporate practice of optometry, and a State Supreme Court justice declared corporate practice illegal. Yet, New York optometry still pur- sues this elusive phantom with a determination that has virtually become a crusade. The fact still evades many that the corporate practice of optometry exists only because the dispensing of ophthalmic materials is seen so closely into the fabric of the profession itself. Even today, no one in New York can obtain a certificate of incorporation to practice optometry, any more than one can get such a certificate to practice law or medicine. A corporation cannot be licensed to practice a profession. For this reason, suggestions that present corporations be so exempt, to prevent fu- * ture corporations from hiring optometrists, has always been bad advice. It needs to be clearly understood that the corporate employment of optometrists could not exist if optometry were, in fact, divorced from the dispensing of eyeglasses. Profit from eyeglasses is all that interests such corporations. The Hart Bill, if expanded to include optometrists, might offer us a rare op- portunity to cut loose from our commercial ties. From this point of view, it should be thoughtfully considered. In the final analysis, the bill simply confronts us with a challenge to "take the profit out of eyeglasses." If the bill is passed and is applicable only to ophthalmology, we can expect the charges of commer- cialism in optometry to be renewed with redoubled violence-and, perhaps, not without justification. We are at another dangerous crossroads. Drsoussiox-A DIVISION OF LABOR TO RESOLVE Oun CONFLICT WITH OPTICIANRY (By S. Drucker, O.D.) ~lhe iel'ttior ship of optometry with opticianry while never wholly satisfactory fell to new low s in 1 ecent years chiefly due to two factors flu st the de~ elopment or contact lenses second the squeeze by refracting physicians who `ire now dis i)ensinq eyeglns'ies w ith the approval of the American Medical Association Many ophthalmologists have expressed annoyance at the attitude of some opticians in efe iing to contact lens wearers as my patients Some optician~, have been w ondei ng whether their former relationship with ophthalmologists as an ancil lary medical group should not be altered in favor of a more independent stand that would involve a more friendly relationship with optometry. The recent suggestions by Senator Hart of Michigan that dispensing of eye- glasses be separated from diagnosis so that a physician would not profit from the sale of ophthalmic materials, seemed to be based as much upon ethical con- siderations as upon the monopolistic practices which his subcommittee was con- sidering. * * S Opticians can be expected to support the Hart proposals with enthusiasm just as they were encouraged two years ago by the action of the California legisla- ture prohibiting physicians from operating drug stores unless licensed sep- arately by the Board of Pharmacists. There seems no valid reason why states that license opticians cannot legally take similar action in dispensing. What is more difficult to understand is how any reasoning that may be appli- cable to physicians would not apply with equal force to optometrists. The fee system is ostensibly the accepted system of our own profession. If the system is observed in fact, as well as in print, severance of the dispensing of eyeglasses from their prescription should bring no serious hardship to pro- fessional optometrists. With safety glasses, and pro-paid plans that call for pro- vision of glasses to union members and others at cost, an increasingly larger percentage of our income is being derived solely from examination and other PAGENO="0202" 198 OPTOMETRY service fees. Against this the large number of cosmetic frames being marketed for profit has created a situation where the principle of the fee system is being threatened. There is little point to making a large investment in a jeweled or experimental frame and then giving it away at cost. Clearly, some new thinking is needed on this subject. In our relationship with opticianry, optometry seems to be making the same mulish errors that ophthalmology has made with us. This suggests that the same ignoble motives may be applicable in both cases. Like ophthalmologists, we refuse to recognize any degree of independent responsibility, in any phase of opticians' work, or to acknowledge their right to eventual professional status. The result has been increasing legislative pressure by opticians that can only aid those who thrive on controversy, disagreement and court actions. Clearly, some agreement based upon a division of labor ought to be considered before optometry is given the kind of treatment to which dispensing opth'almolo- gists were subjected in legislative committees. For example, most optometrists realize that in accepting broken lenses and frames for repair, a loss of profes- sional prestige takes place. The transaction immediately degrades the optome- trists to the level of a vendor or technician in the view of the client. Like most optometrists, I find the habit difficult to break. When I expressed this point of view to another practitioner recently, he gave this surprising reply: "Why do you accept it? I tell them I am not iii the business of repairing frames except as a service to my own patients. I advise them to mail their glasses to the place of origin, and I even offer to supply a mailing box. I stress that the repair of eyeglasses is either a job for a dispensing optician, or the respon- sibility of the original prescribing doctor." MORE THAN A GESTURE How many other such services could be delegated to opticians in the spirit of "quid pro quo ?" The delegation of minor and often annoying services to opticianry would constitute more than a gesture of amity. It would be an affirma- tive act clearly signifying our intention to pursue more rigid professional di- rections. It would also be an acknowledgement that while our profession is proudly rooted in opticianry, the time must eventually arrive to sever the um- bilical ties of the past. Other such services might be the dispensing of certified quality sunglasses, and adjustments and replacement of temples, screws, soldering, etc., for transients- all services performed chiefly in the degrading hope of attracting a future patient. All these traditional services are not performed (for transients) by oph- thalmologists and, therefore, present a challenge to our sense of professionalism. Perhaps the greatest challenge to our professional integrity is being made by the revolution in styling which has placed literally thousands of different frame models on the market. Cosmetic frames are sold entirely for profit. This intro- duces a time-and-risk factor in demonstration and adjustments, and requires compensation in the form of a commercial profit, which is incompatible with the requirements of the fee system. Furthermore, a sense of artistry is called for that many doctors with their unimaginative technical mentalities do not possess. From the types of frames misfitted to an increasing number of such patients, it is becoming obvious that some doctors were not cut out to be stylists. There is a need to seriously consider the idea of limiting sample frames in our offices to perhaps a dozen basic designs of a conservative style, and to refer to dispensing opticians those patients whose needs, desires and tastes are unusual or offbeat. If we thus establish some beginning of a division of labor, a budding friendly relationship may replace the present acrimonious one. There is a need to acknowl- edge that the division of labor which we so seifrighteously demand of ophthal- mologists can, and ought to, be matched by an equally generous offer to opticianry. Failure to consider a fresh point of view can `only tend to perpetuate a sense- less and increasingly expensve `conflict. More government participation in `health care is indicated for the future, and private health care by employers and unions is also increasing. The probability is that most optometrists will `have more ex- aminations than now seems apparent. We may need more, not fewer. dispensing `opticians if present health plans materialize. There seems no insuperable reason * why opticianry cannot become ancillary *to optometry, as well as to ophtLal- mology. PAGENO="0203" OPTOMETRY 199 POSTSCRIPT What effect~ will medicaid have upon opticianry? In states like New York, where a large percentage of the population will be covered, the effects might be serious. Yet, a forward-looking view would indicate that `since union plans for eyeglasses, visual eyecare `plans, as well as medicare and medicaid, cover most of the population, there is going to `be little more in dispensing than a small dispensing fee. The `survival of op'ticianry may thns `come to depend upon its success in~ ob- taining full control `over the market for cosmetic frames. Professional-minded optometrists, who willingly surrendered the market for cameras, magnifiers, and sunglasses many years ago, will receive such a suggestion with sympathy. The time for both `profession's to resolve their differences is not next year when the full force `of comprehensive health plans begin's to make its impact, `but now. Optometry must begin to look ahead to the future when a shortage of profes- sional health care personnel will make it virtually impossible for the public to receive adequate `ophthalmic `care without the aid `of opti'cianry. The unified- service theory of optometry is going to have to be reviewed. [From the Optical Journal and Review of Optometry] Editorial AT TIlE HEART OF THE CoNonEss-ArrEAcTroNs OR DIsTRAcTIoNs? The many attractions of `the coming Boston congress `show the detailed plan- ning by the AOA for its annual meetings. Education courses, exhibits, recreation, social features and allied `events are geared to draw the `greatest number of people possible. Yet the crowded program `often weakens the heart `of the con- gress-the House of Delegates. Time that could be spent in deliberation of policy is often lost. Although' the AOA administrative staff has `helped in streamlining reports and other `ordecs of `bu~siness, `the agenda of the House of Delegates are always full. The sessions next month will be no exception. Two proposed amendments to the constitution of the AOA may bring pro- longed debate. The first would make compliance with the AOA Rules of Practice a requirement for membership in the affiliated and constituent associations by 1970. Enforcement of the Rules o'f Practice has been an issue since their adoption by the AOA in 1950. Some states have argued for strict en'forcement and expul- sion of members who do not conform.. Others have urged caution to preserve the numerical strength of the associations and the AOA. The AOA trustees have generally pointed out that the matter of enforce- ment is in the hands of the state associations'. The AQA member, they point out, derives his membership indirectly-through membership in one of the state associations that make up the AQA. This same point was made when the rules were adopted 16 years ago. The dilemma remains. Also certain to draw debate is a second proposed amendment. This would raise the dues of active members from $55 to $100. The Board of Trustees has commented that the additional $45 is necessary because of the increased activities of the AOA, the results that have been obtained, and demands being made. The argument of the trustees is a strong one-especially in view of the higher dues paid in many other organizations. So'me associations know, however, that an increase may mean curtailment of sta'te or local programs, and possible loss of membership. Another dilemma for the House of Delegates. Many policy matters await possible consideration by the delegates. To name a few: national and state health care legislation, discrimination by state agencies, the feasibility study, relations with medicine, commercialism, dele- gation of authority to lay persons. * * * * * * In the hectic days of an AOA congress, many seek to' divide their time be- tween the sessions of the House of Delegates and the concurrent education courses or other attractions. Those who faithfully attend `all the sessions of `the House forego the education courses. PAGENO="0204" 200 OPTOMETRY Yet, even for those attending, there is not much time for real discussion in the House. Policy matters usually come up only if they are the subject of a resolu- tion. Debate, "new business" and "good and welfare" are usually lost in the lack.of time and the rush toward adjournment. In such an atmosphere; there is a tendency to leave things undone and deci- sions unmade. There is a feeling that things will take care of themselves for another year. High attendance and crowded programs are a way of life at conventions in many fields. However, for delegates the many features should be attractions, but not distractions. EYEGLASSES, PROFIT AND THE PUBLIC WELFARE BRONX, N.Y., APRu~ 18, 1966. Editor. Tuu OPTICAL JoURNAL-REvIEw: In the April 15th issue, Dr. Samuel Drucker's article "The Challenge of the Hart Bill" presented an interesting evaluation of optometry's position in our changing society. His suggestion that the profit be taken out of professionally dispensed eyeglasses is an excellent one, since Senator Hart's subcommittee will likely soon come to the same conclusion. The specter of governmental intrusion into the practice of health care is very distasteful to most optometrists. Nevertheless, we had better resign ourselves to the fact that the federal government is in the business of consumer protection to stay. The automotive industry recently discovered that it is no longer master of its fate when the safety and welfare of the public are concerned. It is highly probable that the health-care professions w-ill soon come to the same realization. It would, therefore, behoove the health professions to put their houses in order before the legislators do it for them. The chief flaw in the optometric structure is the practice of profiting from the sale of self-prescribed materials. It should be obvious to the Senate subcommit- tee that, this system encourages abuses by unethical practitioners. It will be surprising if steps are not taken to further protect the public. CODE OF THE MARKET PLACE The interprofessional Squabbles that have plagued the field of eye care will undoubtedly be brought out in the hearings. As a result, the onhthalmic profes- sions will be made to appear as self-interest groups rather than as profes- sional people concerned with the visual welfare of the public. We must realize that the privileges awarded to professional men by society may be retracted if *they conduct themselves* according to the code of the market place. If the ophthalmic professions would retain the confidence of the public, they must cease their bickering and eliminate practices inimical to the public welfare. Optometry must eliminate commercialism and restrict its activities to those professional services for which it is best trained. This does not include the grinding or dispensing of eyeglasses. Opticianry must abandon all claims to contact lens fitting and concentrate on lens grinding and dispensing of eyeglasses. A. rigid system of quality control on all ophthalmic materials should also be imposed. Ophthalmology must discontinue its efforts to monopolize the field of eye care `and must conduct its practices in a manner befitting eye surgeons. * A "summit conference" of leaders of the three disciplines would now be in order to clean up the back yard before Senator Hart does it for us. VINCENT P. LL-PICA, O.D. The following is taken from the Principles of. Professional Conduct of the Medical Society of the State of New York: PATENTS, Co~rMIssIoxs, REBATES, AND SECRET REMEDIES Secticm 6. An ethical doctor of medicine will not receive remuneration from patents on or the sale of surgical instruments, appliances, and medicine, nor profit from a copyright on methods of procedures. The receipt of remuneration from patents or copyrights tempts the owners thereof to retard or inhibit re- PAGENO="0205" OPTOMETRY 201 search or to restrict the benefits derivable therefrom to patients, the public, or the medical profession. The acceptance of rebates on prescriptions or appliances or of commissions from attendants who aid in the care of patients is unethical. An ethical doctor of medicine does not engage in barter or trade in the appliances, devices, or remedies prescribed for patients but limits the sources of his profes- sional income to professional services rendered the patient. He should receive his remuneration for professional services rendered only in the amount of his fee specifically announced to his patient at the time the service is rendered or in the form of a subsequent statement, and he should not accept additional com- pensation, secretly or openly, directly or indirectly, from any other source, except as provided in Article VI, Section 3, of Chapter III. The prescription or dispensing by a doctor of medicine of secret medicines or other secret remedial agents, of which he does not know the composition, or the manufacture or promotion of their use is unethical. The following is taken from the Code of Ethics of the Podiatry Society of the State of New York: SEC. VI-SPLIT FEES, COMMISSIONS, COMMERCIAL `ESTAELISHMENTS A. $plit Fees di Commissions: 1. It is unethical for podiatrists to pay or accept commissions in any form or manner on fees or professional services, references, consultations, pathological reports, radiograms, prescriptions, or on other services oi~ articles supplied to patients. The Society deplores the selling to patients of ready-made shoes, foot powders, lotions, medications, or other similar materials or articles. 2. Division of professional fees, or acceptance of rebates from fees paid by patients to x-ray, clinical or other laboratories, shoe stores, or other commercial establishments is unethical. 3. It is unethical for a podiatrist, directly or indirectly, to pay or to give con- sideration or a gratuity for the recommendation of a patient. The following appears in a report of the United States Department of Justice- Antitrust Department of the United States District Court, Northern District of Illinois Eastern Division V. DOCTOR DISPENSING AND ITS EFFECT ON PRICES One of the forces at work preventing the reduction in the price of glasses' to patients of doctors is the spread of the practice wherein oculists do their own dispensing ~of glasses to their patients. They. thereby use' the same procedure utilized by optometrists, except that the doctor, in addition to making the refrac- tion, and selling the glasses at a profit to himself, also charges the patient a professional fee for'making the refraction. If a doctor wishes `to sell glasses in his own office to his patients and make whatever profit he can on such sales in addition to engaging in his professional practice, he is not barred by the judgments so long as he is not acting collusively with others. A resume o'f the doctor's rights in this respect was set forth in the letter which accompanied the final judgments which were mailed to the class defendant doctors (Exhibit 4). , , , ` During what may be termed the rebate era, there were of course many oculists who opposed the rebate practice as being unethical and contrary to ~proper pro- fessional standards. Likewise, today there are many doctors who contend that according to proper ethical standards `the oculists should limit themselves to the `performance of purely professional services and should have nothing to do with the actual selling of glasses except in those areas where no optical dispens ing houses are available., This point of view was e~pre~seU by ,a North `Carolifla doctor in ans~ ering the questionnaire .`. I have always thought he [the doctor] should have no pecuniary interest in the glassçs he prescribes~ any~ more than any phys~cian should, ow~ an interest in a drugstore or any other medical or surgical appliance busitiess through which he would benefit financially A Florida dispensing optician who has seen much ~of his business vanish because most of the doctors in his area are now doing their own dispensing and refuse to give prescriptions to the patient to be filled outside, comments bitterly: they are trying to sit on two stools `at the same time by ptaeticing medi- cine `and selling merchandise at the same time. PAGENO="0206" 202 OPT'QMETRY A South Carolina dispensing optician, who states be has been unable to reduce prices because practically all of the doctors in his area are now doing their own dispensing at full prices, in addition to charging refraction fees, levels the following attack on these doctors: * . . the public now suffers from faulty fitting and adjustment, as well as a lot of time wasted, since the doctors handle their own Rx's, either doing the measuring and fitting themselves when they are not skilled and trained in so doing, or in some cases by hiring inexperienced, unqualified people to do this vital job. * .. the doctor should write his Rx, and be denied the privilege of selling the glasses in his own office, as in a majority of cases, the patient is the one who suffers. It is not, of course, the function of the Department of Justice to express any opinion on the question of whether or not doctors should do their own dispensing when independent and qualified dispensing houses are available. It is, however, the duty of the Department to report to this Court available facts relative to the effect which this trend toward doctor dispensing has been having on the price of the spectacles which the patients of doctors must buy. Approximately one-third of the doctors answering the questionnaires are now doing their own dispensing of glasses to their patients. Most of them have started this practice since these cases were instituted. The practice is especially prevalent in the smaller towns, in several of the Southern States, particularly Texas, Florida, and South Carolina, and in a num- ber of both large and small cities in Wisconsin, Michigan, and Ohio. The prac- tice appears to be "spotty" in so far as areas are concerned. One doctor in Arkansas stated that because the local dispensing houses had not reduced prices the doctors "started doing their own dispensing at a normal profit." On the other hand, another doctor in the same town stated that most of the local doctors were doing their own dispensing at no decrease in the price of glasses to the patients and, perhaps, an increase, although a local dispensing house had, in fact, reduced prices on prescription sales to patients. Most of the doctors who have turned to doing their own dispensing report they are charging "prevailing retail" prices in addition to refraction fees. A Washington doctor frankly stated that he was doing his own dispensing because he considered it a legitimate business "and a profitable one as well" and that he charged the "prevailing retail price." There appears, however, to be some variation in the prices the doctors charge. In some cases the doctors report they charge the wholesale price, plus a handling charge, and others a wholesale price, plus a fiat mark-up, but, in the main, the answers show that the price charged is substanially the same as the ones the patients paid when the rebate system was prevalent. This is probably to be expected, because it is doubtful whether the doctor would go to the trouble of doing his own dispensing in his own office for his own patients unless he could make a profit on the sale of the glasses in addition to charging a refraction fee. The questionnaires and other data received indicate that in many areas of the country doctors who have switched, or are contemplating switching to doing their own dispensing have shown signs of `hostility to local dispensing houses which either reduced prices on prescription sales to patients or proposed reduc- ing them. In many cases, the volume of prescription filling business available to such dispensing houses has been so materially reduced, because the doctors refused to release prescriptions to their patients, that the dispensing houses have encounted difficulty in maintaining the lower prices on `a reduced volume; and in some cases have been forced out of business entirely, or are reduced to doing `repair work almost exclusively. The impact of doctor dispensing on dispensing houses which reduced prices on prescription sales to patients is illustrated `by the experience of a Texas dis- pensing house which reports that in 1949 it advised the local doctors that it would thereafter make no rebate payments but would make prescription sales to their patients at wholesale cost, plus fitting fee. (This is what the dispensing houses retained out of the consumer price when rebates were paid.) The doctors then stopped referring patients to this dispensing house and began doing their PAGENO="0207" OPTOMETRY 203 own dispensing instead. The dispensing house makes the following c~bservations on its experience:* Glasses now cost the patient more than previously in most cases. Our business has definitely been hurt and we have lost patients who have traded with us for years because the majority of doctors refused to give the patients their prescriptions. . . . If the doctors charge a professional fee for refracting and turn the prescriptions loose we could still lower our prices 15 to 20% and operate on a volume,... You might be interested to know that most of the dispensers for the `doctors are paid a salary and a per cent. The dispenser makes the prices and, naturally, the more he charges the patient the more he makes. We feel this is unfair to the public. The same dispensing `house further stated in `another communication: the `oculists are now controlling their prescriptions far more than they ever did `before, as most of them absolutely refuse to give their patients their `prescription . . . They are determined to still make a profit on the glasses they prescribe. A dispensing house in another Texas city reported that in 1948, when it was doing a $6,000 a month business on prescription sales to patients of doctors on a rebate basis, it announced to the doctors it would thereafter discontinue the payment of rebates and would sell on prescription to patients at prices substan- tially under the consumer prices then charged. Its volume of business then dropped to $150 a week, as the doctors switched to doing their own dispensing. A similar experience is reported by another dispensing house in the same city which announced to the doctors that if the rebate system was outlawed by the local medical society the dispensing house would reduce prices on prescription sales to patients to the wholesale price, plus dispensing fee, `and thereby give the average y~atient a saving of $10 a pair on glasses. He reported shortly after the final judgments went into effect as follows: I have repeatedly offered to heavily reduce prices of glasses to the public if they [the doctors] would turn prescriptions loose; and was told that if I reduced prices, that every prescription I filled would be pronounced as inaccurate and that I would be forced out. In the same State another dispensing house reports a similar experience and states that 53 out of 65 local oculists are now doing their own dispensing. In still another Texas city, two dispensing houses each report that their business in prescription sales to patients of doctors has been almost wiped out because of doctors doing their own dispensing and that with this reduced volume of business and the refusal of doctors to release prescriptions to their patients, they are unable to reduce prices, even though the doctors charge the patients the pre-rebate price or more. In Michigan, one dispensing house with a number of branches stopped rebate payments in 1950, before the judgments were entered, and put into effect a substantial price reduction on all prescription sales to patients. One Michigan doctor referred as follows to the institution of this policy: This attempt to eliminate the practice is a grand step toward honesty and fair business. Unfortunately, the price reduction policy instituted by this dispensing house was not popular with numerous other doctors who then switched to doing their own dispensing and refused to release prescriptions to their patients. This so cut down the volume of prescription business available to the dispensing house that it was forced to close some of its branches which were located in the cities where ,the bulk of the doctors had switched to doing their own dispensing. Another Michigan dispensing house reported that although it reduced its prices one-third on prescription sales to patients, its volume of business in this field was reduced 80 per cent because practically all of the oculists in the area had switched to doing their own dispensing. In a large Wisconsin city, the doctors stated that a considerable number of dispensing houses had reduced prices substantially on prescription sales to patients. The reports from these companies confirmed this, but they complain bitterly of the fact that such a large number of oculists had switched to doing their own dispensing that on the reduced volume of business the optical houses are finding it difficult to keep the lower prices in effect. PAGENO="0208" 204 OPTOMETRY Numerous complaints have been received from Florida regarding doctors hav- ing switched to doing their own dispensing and of maintaining high prices for glasses. One optical house makes the following observation, which is typical: it was generally agreed in most sections of Florida [when the judg- ments went into effect] . . . that the prices of glasses would be reduced by the optician, and the Doctor would increase his refraction fee, thus enabl- ing him to be compensated for the lack of rebate. These two practices were put into effect. However, the low price of glasses was short-lived. Today the user of glasses is generally paying more over-all for a pair of glasses than prior to the discontinuance of rebate. Secondly, with the Doctors rapidly setting up the practice of selling and dispensing glasses in his own office, a monopoly is created as far as the patient is concerned. In' areas where a large percentage of the doctors have turned to the system of doing their own dispensing, their patients appear to have comiderably less hope of obtaining the price reduction on glasses made possible through the elimination of the rebate system than is the case of patients in areas where doctors do not generally do their own dispensing. Most doctors who have turned to' doing their own dispensing probably have no great incentive to reduce prices, because of the pecuniary interest which they have in the sale of glasses. Further- more, the dispensing houses in such areas may have difficulty in either reducing prices or in keeping price reductions in effect if the flow of prescription patients to these houses is blocked at the source-the doctors o~ce. It must not be assumed, however, that price competition is entirely lacking among the oculists in those areas where they do their own dispensing. These oculists purchase their completed spectacles from wholesalers who make up the glasses to prescription and sell them to the doctor at the Fix or w-holesale price. The doctor is then faced with the problem of determining n-hat the mark-' up on these glasses is to be in reselling them to the patients. In a majority of hi- stances, the doctors repOrt that they charge the prevailing retail price, but some report that they use mark-ups which result in a price which is less than that which prevailed under the rebate system. Furthermore, the doctor who does his own dispensing tends to place himself in more direct competition ~yith the optometrist who invariably dispenses to his patient but does not usually make a separate charge for the refraction service. In some cases, doctors have turned to doing their own dispensing because they resented the fact that local dispensing houses did not reduce consumer prices n-hen the rebates were eliminated. This is of course a danger which dispensing houses necessarily run if they do not reduce consumer prices to reflect the saving which is theirs through not having to pay debates on their prescrip- tion sales. What can be accomplished when doctors restrict themselves to professional practice and dispensing houses pass to consumers the benefits derived from the elimination of the rebate, is illustrated by the reports received from such places as a large city in Minnesota and a large one in Missouri. In these cities, the reports show that most, if not all, of the dispensing houses put substantial price reductions into effect. almost simultaneously with the entry of the judgments. They have been able to continue making prescription sales to .patients at the lower price level because almost none of the local doctors have turned to doing their own dispensing. With the volume of prescription business going to the dis- pensing houses remaining unimpaired, the elimination of the rebate has enabled them to continue to `sell at lower prices notwithstanding the increases which have occurred in material prices, labor, and other costs of operation during, the past few years. . In Chicago, reports have been `received concerning a considerable number of responsible dispensing houses which put substantial price reductions into effect on their prescription sales to patients when the judgments went into effect.' Relatively few doctors here have switched to domg their own dispensing during this period, complaints, of violation' of the judgments have been negligible, and there is little or no evidence of use of either the "charge and send" plan or of the group doctor ownership of dispensing houses. Patients of oculists in the Chicago PAGENO="0209" OPTOMETRY 205 * area, therefore, have ample opportunity to have their prescriptions filled at prices which reflect the elimination of the rebate system. Such patients may, of course, go to dispensing houses which have not reduced prices or may use expensive specialty frames which make for a high price for the completed spectacles, but the patient does have the opportunity of making a choice on a competitive basis. DIscussIoN-RECoGNIzE THE REAL ENEMY IN A WAR FOR SURVIVAL! (By Arnold R. Wolfson, O.D.) Dr. Sakler's address to, the American Association of Ophthalmology (Jan. 15, 1967 issue) was more than a mere reiteration of ophthalmology's attitude toward optometry over the past many years. This attitude has undergone periods of ebb and flow, deviating betwen bare tolerance and absolute subjugation of optometry. Dr. Sakler's speech indicates the present attitude is that optometry, as we know it, is to be eliminated. Dr. Sakier states that optometry is not an allied medical specialty, the ophthalmologist must be "Captain of the Team," and ophthalmologists must train additional "ophthalmic technicians" to assist them. These statements, when taken together, lead to the inescapable conclusion that ophthalmology wants complete charge of all eye care utilizing the services of technicians. Optometry, since it is not allied with medicine as an "allied medical worker", would then be completely ignored. Formerly, this would have posed no particular threat; this attitude is riot exactly, foreign tO us and all but the most idealistic and naive optometrists have been aware of it. But now, the entire concept of eye care, and medical care for that matter, is undergoing a drastic change. More and more, we are encountering goverilment participation, insuranëe plans, union plans, and prepaid plans. These rely on legislation and/or contracts between various groups and members of the eye care field to provide service. If medicine.can influence these groups, dominate the field, and restrict such services to care by physicians, optometry will be on the road to virtual elimination. That is the intent of medicine today. The threat becomes very real when we' consider the estimate that within five years almost 70 per cent of all glasses dispensed in California will be dispensed through such plans. . . So far what has organi7ed optometry attempted to do ~ Up to now our attitude has been :* enter into some agreement with ophthalmology, don't offend them, and certainly do not dare direct confrontation with the American Medical As- sociation. This attitude is no longer possible if optometry is to survive. For years, ophthalmology has aggressively tried to discredit us. Physicians have told patients directly that we are incompetent. Dispensing opticians, formerly the advertising mouthpiece of ophthalmology, have emblazoned their `advertising with "For better vision, see your eye physician"-or with similar statements implying the superiority of medical eye care. And all we have done about this is complain to each other and wring our hands in grief. We have continually emphasized that we are divided between the so-called "professional" and "commercial" factions. We have put most of our efforts into an unsuccessful and unnecessary attempt to eliminate the one faction that has been attempting to bring optometry into the public light. We have degraded the members of our profession who have been presenting optometry to the public. I am referring to the "commercial" optometrists, who by. their mode of advertis- ing, whether in newspapers, radio, TV, or location in high traffic areas (such as discount houses, department stores), have been exposing themselves to the public as optometrists and have been, exposing the public to their (and our) services. We have attempted to emulate the physician, to copy his mode of practice. We have indoctrinated our students with this idea;' we have told them that they should practice in medical-type surroundings and hide themselves behind their title "Doctor of Optometry". We have even said that if they must accept employ- ment, they should work for an ophthalmologist or one of the medically-oriented and medically-operated health plans-rather `than for a commercial optometrist and certainly rather than for an optometrically-opérated vision plan or discount 82-754-67---14 PAGENO="0210" 206 OPTOMETRY house. We have advocated a policy of non-exposure for optometry; we have harassed our colleagues (if we deign to call them colleagues) who attempt to present themselves to the public as optometrists. RAISING THE COST OF EYE CARE We have been talking of higher fees, of raising the cost of eye care to the public. This is the same thing medicine has been doing over the past years-to the point where the public has begun to rebel. Witness the advent of Medicare and other government and private plans to defray the direct cost to the public. `~\Te have been doing this and condemning optometrists who attempt to bring the cost of eye care down. And all this time medicine is attempting to destroy us. Do not misunderstand me. I am not saying that all optometrists who advertise, who practice commercially, or who organize union vision plans, are doing so primarily for the best interests of the profession. Of course, their prime motives are financial remuneration. But, in their own way, they have made known to the public that a profession of optometry exists, that it is not necessary to see a physician for an eye examination, that optometrists are qualified to furnish visual care. Optometrists in discount houses, in union plans, and in store-type offices can, and in most cases do, give adequate visual care; at the same time, they promote optometry to the public. Physical surroundings do not indicate the quality of care the patient will receive and neither does the method used to get the patient into the office. It is about time we stopped equating only a "professional" office with ethical and professional treatment. Ophthalmology and optometry have been at war for a long time, but we still keep arguing among ouselves. It is time we recognized our real enemy; make no mistake, medicine is our enemy and a state of war exists. In this war, any time an optometrist gains a patient who was formerly an ophthalmologist's patient, that is a small victory-regardle$s of the method used to bring the patient into hi~ office. Any time an organization contracts with an optometrist to provide visual care for its members, that is a victory. We must make very effort to increase the percentage of patients who receive optometric care vs. those who receive medical refractions (including those furnished by optometrists in an ophthalmologist's office). We must obtain effective optometric representation in any and all eye care programs, whether they are promulgated by the government or by private plans. We must institute an aggressive public relations program exploiting the superi- ority of optometric care over medical refractions. We must press for a complete divorce in the public's mind between visual care and medical and surgical eye care. In doing so, we must maintain the con- cept of complete visual care-including the proper selection and fitting of eye- wear, contact lenses, orthoptics and other facets of our profession which we have been tending to delegate to groups not under our control. TIME FOR THE INITL~TIVE It is time that optometry decided to raise its head high in its relations with the public and with medicine. For years, we have taken strictly a defensive posi- tion. Now is the time to take the initiative. Medicine has found that its public image has become tarnished and the physician is trying to restore that image to its former brightness. But now is the time for optometry to make its move. Actually, it is now or never. 6222 Anthony Aveiiue VOYEUR He was so shy, he looked askance If anyone dared say "romance," When at a pretty girl by chance He'd happen just to cast a glance. Yet faithfully his eyes did serve, And look he would, at every curve. Despite his shyness and reserve, He had a lot of optic nerve! GERTRUDE LEIGH PAGENO="0211" OPTOMETRY 207 PRIVATELY PRACTICING OPTOMETRISTS IN THE DISTRICT OF COLuMBIA (Those marked with an asterisk practice in a non-commercial or non-store front location). Aarons Hillyard, B. Pearlman Berlin Hillyard, F. Pels Binder ~:Hoff ~Perau Campbell Kale Pollack Couperthwaite ~Kaplan *Rein Dantzic °Katz, H. *Robbins :::Dosik Katz, M. Rogers Duff Katz, P. Rose, D. Ephraim Kaye *Rose ~Etz *Kraskin Rabin ~Failor King Samit *Farkas Kossoff Scot (Scot Optical) Feistein Kraskin Siegel Finn Kristai Silver Fishkin Lee Tabershaw Fox *Leese Teunis (see second cFranke Liebrand photo) Friedman MacDonald *Thompsljfl Gilpeer Marshall Toman Ginzberg *Mcyearny Tyner Goldblatt *Merielle *1Jffler (2) Greenberg *Nelson *Wagenheim Greenwood *Oberman *Wejnstejn Griffith *Osterman Witten *Higley Parmet EXHIBIT "10" In the Matter of the Application of ELIZABETH DICKSON and Others, Respondents, for a Pere~nptory Order of Mandamus against EDWARD J. FLYNN, as Secretary of State of the State of New York, Appellant, and OPTOMETRICAL SOCIETY OF THE Cir~ or NEW YoRK and Others, Interveners, Appellants. THIRD DEPARTMENT, MARCH 5, 193G Physicians and surgeons-optometrists-corporation may lawfully be organized to engage in sale of eyeglasses, spectacles and lenses at retail where certificate of incorporation specifically provides that duly qualified optometrists will be in charge of sales (Education Law, § 1432-a)-petitioners are entitled to peremptory order of mandamus directing Secretary of State to file and record such certificate on payment of proper tax and fees. A corporation may lawfully be organized for the purpose of engaging in the sale of eyeglasses, spectacles and lenses at retail, under section 1432-a of the Education Law, where the certificate under which the corporation seeks to operate specifically provides that duly qualified optometrists will be in charge and in personal attendance at the booth, counters and places in the established stores of the corporation where such articles are sold. The business in which the corporation is to engage is the sale of eyeglasses, spectacles and lenses at retail and it does not become the practice of medicine or optometry by reason of the presence of a physician or optometrist. Under the circumstances, the petitioners are entitled to a peremptory order of mandamus directing the Secretary of State to file and record petitioners' cer- tificate of incorporation conditioned on the payment by them of the tax and fees therefor prescribed by law. CRAP5ER, J., dissents. Separate appeals by the defendant and by the Optometrical Society of The City of New York and others, and by the New York State Optometric Association, Inc., from a peremptory mandamus order of the. Supreme Court, entered in the office of the clerk of the county of Albany on the 21st day of Septe~nber, 1935. The direction, conditional upon payment by the petitioners of the tax and fees therefor prescribed by law, was the file and record the original certificate of incorporation of the "Four-Boro Optical Corp.," pursuant to article 2 of the Stock Corporation Law. PAGENO="0212" 208 OPTOMETRY Herbert D. Harnm, for the respondents. John J. Bennett, Jr., Attorney-General [Dorothy U. Smith, Assistant Attorney- General, of counsel; Henry Epstein, Solicitor General, with her on the `brief], for the Secretary of State, appellant. Talley ~ Lamb [Alfred J. Talley of counsel; Edmund J. Dela1ny, Macswell Ross and James Flynn with him on the brief], for the interveners-appellants Optometrical Society of The City of New York. Bronx County Optometric Society and North Queens Optometric Society. Harold Kohn, for the intervener-appellant New York State Optometric Asso- ciation, Inc. Robert Rosenberg [?~T. Bernard Silberg with him on the brief], for the Retail Opticians of America. amidus curiae. Hill, P. J. Appeal from a peremptory order of mandamus which directs the Secretary of State to file and record petitioners' certificate of incorporation of "Four-Boro Optical Corp." That official bases his refusal upon the ground that the purpose clause in the certificate w-ould permit the corporation to practice optometry, and that a corporation may not be organized for such purpose. He found authority for his refusal in Matter of Stern v. Flynn (154 Misc. 609) and in opinions by two Attorneys-General (Opinions of Attorney-General, 1913, 401 ;` Matter of Rig/it to Form a Corporation. 21 State Dept. Rep. 75). The wording in the certificate which offended follows: "To carry on a general optical business; to sell at retail spectacles, eyeglasses and lenses for the correction of vision. provided that duly qualified optometrists be in charge of and in personal uttend- ance at the booths, counters or places where such articles are Sold in the respec- tive stores or established places of business of this corporation; to employ duly qualified optometrists for the purpose of being in charge of and in personal attendance at the `booths, counters or places where this corporation `sells at retail spectacles, eyeglasses and lenses for the correction of vision in the respective stores or established places of business of this corporation and for the purpose of examining the eyes of customers of this corporation where such duly licensed optometrists, while in charge of and in personal attendance at such booths, counters or places, deem the same to be necessary in connection with the sale at retail by this corporation of spectacles, eyeglasses and lenses for the correction of vision." The draftsman of this certificate followed meticulously section 1432-a of the Education Law (added by Laws of 1928, chap. 379) as construed by Rosclien v. Ward (279 U.S. 337). The statute makes it unlawful to sell at retail spectacles, eyeglasses or lenses for the correction of vision unless a duly licensed physician or duly qualified optometrist is in charge of and in personal attendance at the booth, counter or place where such articles are sold. The Rosehen case was brought for an injunction to restrain the enforcement of the statute upon the ground of unconstitutionality. It was determined that the act had definite re- lation to the public health and, therefore, was constitutional. In construing the statute, the opinion by the late Mr. Justice HOLMES states: "But the argument most pressed is that the statute does not provide for an examination by the optometrist in charge of the counter. This as it is presented seems to us a per- version of the act. When `the statute requires a physician or optometrist to be in charge of the place of sale and in personal attendance at it, obviously it means in charge of it by reason of and in the exercise of his professional capacity" (p. 339). Counsel for an intervener here advances the same argument answered in the quoted portion of the Rose/i en opinion, urging' that the statement there made is obiter. With this I do not agree, as the meaning and effect of a statute must be considered in determining its constitutionality. Until 1908 any person could sell spectacles or eyeglasses without let or hind- rance. In that year the Legislature enacted the initial statutes concerning the licensing of optometrists. By an amendment to the article (Laws of 1928, chap. 379) section 1432-a `was added. (Later amendments do not' affect our question.) "It shall be unlawful for any * * corporation'to sell. "at retail, as merchandise in any store or established place of business in the State, any spectacles, eye- glasses. or lenses for the correction of vision, unless a duly licensed physician or duly qualified optometrist, certified unter this article,' be in charge of and* per- sonal attendance at the booth', counter or place, where such articles are sold in such store or established place of business." Thus the right to do a lawful act was curtailed. However, the right, so cur- tailed, still remains. The legislative intent is too clear to support extended argu- PAGENO="0213" OPTOMETRY 209 ment. The statute was passedbecause the Legislature believed.it an aidto public health and the courts have held it to be constitutional because of its relation to public health. The benefit was intended for the public not the optometrist. Otherwise the statute would have been unconstitutional. The Legislature did not deem it necessary to create a professional optometrist monoply. Poverty or the lack of ability to pay has relation to public health and the Legislature may well have believed that competition between optometrist and store would make for more reasonable prices and profits, and that public health would be bene- fitted thereby and could not suffer with an eye specialist present in the store at the place of sale. Unless some constitutional right is invaded, the clear in- tent of the Legislature should be given effect. The business in which the corporation is to engage is the sale of eyeglasses, spectacles and lenses at retail.. It does not become the practice of medicine or optometi-y because of the presence of a physician or optometrist. However, for the sake of the argument, if it be determined that the employment of a physician or optometrist amounts to a limited practice of medicine or optometry, peti- tioners are still entitled to the relief they seek. All persons had the right to sell eyeglasses before the enactment of article 54 of the Education Law. The Legis- lature by section 1432-a of that article has explicitly recognized and reaffirmed that right and, in addition, has required that the selling be surrounded by safe- guards. The right to organize a corporation for the purpose of practicing a profession is considered in People v. Woodbury Dermatologieal Institute (192 N.Y. 454). I quote from the opinion: "The prohibition * * against the practice of medicine without lawful registration in this State or in violation of any of the provisions of the statute or against advertising by any person not a registered physician were not intended to apply and plainly could not reasonably be held to apply to corporate bodies which by the express provisions of other statutes are au- thorized to carry on the practice of medicine upon compliance with their pro- visions and without registration" (p. 457). "Thus, a hospital duly incorporated under the Membership Corporations Law unquestionably holds itself out as being able to diagnose, treat, operate and prescribe for human disease, pain, injury, deformity or physical condition * 0 * An institution of this character, possessing legislative authority to practice medicine by means of its staff of registered physicians and surgeons, comes under the direct sanction of the law in so doing" (p. 458). The Woodbury case is cited and commended upon in Messer Co. v. Rot hst em (129 App. Div. 215; affd, 198 N.Y. 532). I quote from the opinion in the Appellate Division: "The same court also held in the Woodbury Derrnatologieal Institute Case (supra) that as the Legislature authorized the formation of corporations for hospital purposes, such corporations would not be guilty of a crime if they should advertise to treat diseases, although not registered under the Medical Act, provided such treatment was administered by duly registered physicians" (p. 225). A Pennsylvania statute was determined to be unconstitutional by L4ggett Co. v. Baidridge (278 U.S. 105). It provided: "Every pharmacy or drug store shall be owned by a licensed pharmacist, *and no corporation, association, or co- partnership shall own a pharmacy or drug store, unless all the partners or members thereof are licensed pharmacists." A license as a pharmacist could be obtained only afteracourse of study quite as exacting as the New York statute prescribes for optometrists. The ground for the decision was that the ownership of a drugstore had no relation to the public health as other and constitutional laws required that none but a registered pharmacist should be in charge or be permitted to compound prescriptions. The court, in its opinion, states, concerning that statute, "It deals in terms only with ownership. It plainly forbids the exer- cise of an ordinary property right and, on its face, denies what the Constitution guarantees. * * * In the light of the various requirements of the Pennsylvania statutes, it is made clear, if it were otherwise doubtful that mere stock ownership in a corporation owning and operating a drug store, can have no real or sub- stantial relation to the public health" (p. 113). "If detriment to the public health thereby has resulted or is threatened, some evidence of it ought to be forth- coming. * * * The claim that mere ownership of a drug store by one not a pharmacist bears a reasonable relation to the public health, finally rests upon conjecture, unsupported by anything of substance" (p. 114). With the public health protected through the requirement that a physician or optometrist be in PAGENO="0214" 210 OPTOMETRY charge where eyeglasses are sold, by an analogy of reasoning if the right to own eyeglasses as merchandise and to sell them at retail was curtailed by statute, there would be a denial of that which the Constitution guarantees. The New York Legislature has attempted no such curtailment but, as earlier indicated, has reaffirmed the constitutional right to sell cyeglases at retail. The Secretary of State cited Matter of Go-operatives Law Co. (198 N.Y. 479) to sustain his position. Some of the statements in that opinion, taken from their setting and background, might seem to sustain his claim. The question under consideration there was whether "a corporation could be lawfully organized to practice law" under the authority "found in that part of the Business Corpora- tions Law which provides that `three or more persons may become a stock corpor- ation for any lawful business'" (p. 483). Then the opinion defines the meaning of the clause "lawful business" as follows: "This means a business lawful to all who wish to engage in it. The practice of law is not a business open to all." It was there decided that under the general authority of the Business Corporations Law a corporation might not be organized for the purpose of practicing law. Here we are dealing with a diffierent question. The Legislature has granted the right to sell eyeglasses at retail if a physician or optometrist be present at the sale. The writer of the Co-operative opinion cited with approval the TVoodbvry Dermatologleal Case (supra.), which decided that with statutory authority a corporation could lawfully be organized to practice medicine. Disregarding the fact that there is a statute which permits a corporation to practice optometry and none which permits the practice of law, still the general distinction between the professions of optometry and law makes the Co-operative case inapplicable. "Formerly, theology, law and medicine were specifically known as the pro- fessions; but as the applications of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professed attainments in special knowledge as distinguished from mere skill." (United States v. Laws, 163 U.S. 258. 266.) An optometrist is defined in the Education Law (~ 1425) as a person "who by any means or methods, other than by the use of drugs, diagnoses any optical deficiency or deformity, visual or muscular anomaly of the human eye, or prescribes lenses, prisms or ocular exercises for the correction or relief of the same." The New Jersey Supreme Court has defined optometrist (New Jersey State Board of Optometrists v. Kresge Co., 113 N.J. L. 287; 174 Atl. 353). "Oculists * * * pursue a calling quite distinct from that of optometrists. The first has relation to the practice of medicine and surgery in the treatment of diseases of the eye, and the second to the measurement of the powers of vision, and the adaptation of lenses for the aid thereof. [Saunders v. Swann, 155 Tenn. 310; 292 5. W. 458; Martin v. Badly, 249 Penn. St. 253; 94 A. 1001; MeNaughton V. Jolinsoit, 242 U.S. 344; Herzog's Medical Jurisprudence, § 120.] It is the primary function of the optometrist to employ means to determine the need of lenses for the correction of defects of eyesight, and the increase of the power and range of vision. He forms a judgment as to the need, and then provides the corrective lens." In the Co-operative Case (svpra) some of the obligations, requirements and duties incidental to the practice of law are mentioned. "The right to practice law is in the nature of a franchise from the State conferred only for merit. * * * It is attested by a certificate of the Supreme Court and is protected by registration. No one can practice law unless he has taken an oath of office and has become an officer of the court, subjeci to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal. * * * The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation and not to the directions of the client. There would be neither con- tract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant" (pp. 483,484). The relation between the vendor and vendee of eyeglasses differs so markedly from that between lawyer and client that even the language of the Co-operative case is without force in this matter. The order should be affirmed, with fifty dollars costs. PAGENO="0215" OPTOMETRY 211 RHODES, BLISS and HEFFERMAN, JJ., concur, ORAPSER, J., dissents on the ground that a corporation may not be formed for the practice of oj~tometry either through `agents or licensed optometrists or otherwise. Order affirmed, with fifty dollars costs and disbursement's. In the Matter of ELIZABETH DICKSON et al., Respondents, against EDWARD J. FLYNN, as Secretary of State, Appellant. OPTOMETRICAL Soonrr~ OF THE CITY OF NEW YoRK ET AL. INTERVENERS, APPELLANTS Corporations-optometry-_certificate of incorporation to carry on optical busi- ness and employ qualified optometrists to examine eyes of customers may not be properly construed as authorizing practice of optometry by corporation. A certificate of incorporation to carry on `a general optical business, employ qualified optometrists to attend to sales of spectacles, eyeglasses and lenses and examine the eyes of customers in connection with such sales, conforms with the provision of section 1432-a of the Education Law (Cons'. Laws, ch. 16) and may not be properly construed as authorizing the practice of optometry by the cor- poration. Matter of Dickson v. Flynn, 246 App. Div. 341, `affirmed. Argued January 4, 1937; decided January 12, 1937. APPEALS from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 28, 1936, which affirmed an order of Special Term granting a motion by petitioners for a peremptory order of man- damus to compel the Secretary of State to file and record a certificate of incor- poration of the Four-Boro Optical Corporation. The certificate provided that the purposes for which the corporation was to be formed were, in part, as follows: "to carry on a general optical business; to sell at retail spectacles, eyeglasses and lenses for the correction of vision, provided that duly qualified optometrists be in charge of and in personal attendance at the booths, counters or places where such articles are sold in the respective stores or established places of bushiess of this corporation; to employ duly qualified optometrists for the pur- pose of being in charge of and in personal attendance at the booths, counters or places where this corporation sells at retail spectacles, eyeglasses and lenses for the correction of vision in the respective stores or established places of business of this corporation and for the purpose of examining the eyes of customers of this corporation where such duly licensed optometrists, while in charge of and in personal attendance at such booths, counters or places, deem the same to be necessary in connection with the sale at retail by this corpora- tion of spectacles, eyeglasses and lenses for the correction of vision * * Upon the submission of such certificate of incorporation for filing the Secretary of State objected to the provisions thereof relating to the employment or placing in charge of sales of duly qualified optometrists. The objection, as it appeared in the affidavit of the acting chief of the division of corporations, was that such provisions purported `to confer upon a corporation authority to "employ duly qualified optometrists * * * for the purpose of examining the eyes of customers of this corporation where such duly licensed optometrists, while in charge of and in personal attendance at such booths, counters or places, dOem the same to be necessary in connection with the sale at retail by this corporation of spectacles, eyeglasses and lenses for `the correction of vision." Section 1432-a of the Education Law (Cons. Laws, ch. 16) provides, in part, that it shall be unlawful for any corporation "to sell, at retail, as merchandise, in any store or established place of business in the State, any spectacles, eyeglasses, or lenses for the correction of vision, unless a duly licensed physician or duly qualified optometrist, certified under this article, be in charge of and [in] personal at- tendance at the booth, counter or place, where such articles are sold in such store or established place of business." John J. Bennett, Jr., Attorney-General (Dorothy U. Smith and Henry Epstein of counsel), for Secretary of State, appellant. The authority under the certificate to sell at retail spectacles, eyeglasses and lenses for the correction of vision not being `expressly limited to the sale of such' articles as merchandise, the certificate is not in conformity with section 1432-a of the Education Law (Cons. Laws, ch. 16.) (Rosehen v. Ward; Kresge Co. v. Ward, 279 U.S. 337; Matter of Co-Oper- ative Law Co., 198 N.Y. 479; People v. Woodb'ury Dermatological Inst., 1.92 N.Y. PAGENO="0216" 212 OPTOMETRY 454; State v. Kindy Optical Co., 248 N. W. Rep. 332; State en rd. Harris v. Myers, 191, N. E. Rep. 99.) . Jay Leo Rothschild, Walter S. Beck. iia.rweil Ross and James Flynn. for Optometrical Society of the City of New York, intervener, appellant. Section 1432-a of the Education Law is a penal statute, which prohibits and makes criminal that which was lawful before. It does not enlarge the class of persons who may practice the profession of optometry. It merely eliminates the un- supervised sale of glasses for the correction of vision, and thus prohibits their sale as merchandise simpliciter. (People v. Woodbnry Dermatoiogical Inst., 192 N. Y. 454; Matter of Co-Operative Law Co., 198 N. Y. 479; Tesesehi, Mullins c~ Bellair v. Al at Ii is, 116 N. J. L. 1ST; State of Kansas en rd. Beck v. Goldman Jewelry Co., 142 Kan. 881; State. v. Kindy Optical Co., 216 Iowa, 1157; Risen- smith v. Bu/ti Optical Co., 178 S. E. Rep. 695; Funk v. State, 50 Pac. Rep. [2dJ 945; Matter of Stern v. Flynn, 154 Misc. Rep. 609; American Historical Society v. Glenn, 248 N. Y. 445; People v. St urgis, 121 App. Div. 401; People v. K. 1. C. F. 11. Co.. 25 Barb. 199; People v. Barton. 6 Cow. 290; Cot/teal v. Brouwer, 5 N. Y. 562; People v. Abraham, 16 App. Div. 58; U.S. Tel. Co. v. Western Union Tel. Co., 56 Barb. 46; Sickles v. Sharp, 13 Johns. 497; Matter of W. S. A. ci P. fl. ft. Co., 115 N.Y. 442; Hayden v. Pierce, 144 N.Y. 512; People v. Purdy, 154 N. Y. 439). The certificate authorizes the petitioner's corporation to practice optometry and is, therefore, outlawed by the statute. (Matter of Stern. v. Flynn, 154 Misc. Rep. 609.) Harold R. Medina, William F. McNntly and Harold Kohn. for New York State Optometric Association, Inc., intervener, appellant. Section 1432-a of the Educa- tion Law, which merely restricts the sale of glasses as merchandise, does not permit a corporation to practice optometry. (Alien. v. Stevens, 161 N.Y. 122; Ligqett Co. v. BaIdridge, 278 TJ.S. 105.). Herbert D. Hamm for respondents. The purpose clauses of the certificate of incorporation found objectionable by the Secretary of State are specifically pro- vided for under section 1432-a of the Education Law. (Bosch en v. Ward, 279 U.S. 337; Martin v. Home Bank, 160 N.Y. 190; Persky v. Bank of America iYat. Assn., 261 N.Y. 212; Matter of Lewis v. Harlem. Dental Co., 189 App. Div. 359: People v. Woodbvry Dermatological Inst., 192 N.Y. 454; Jaeckle v. Bamberger, 119 N. J. Eq. 126; 120 N.J. Eq. 201; Howe v. Regenaburg, 75 Misc. Rep. 132.) Robert Rosenberg and N. Bernard Siiberg for Retail Opticians of America, amicus curiae. The optometry statute cannot be construed so as to prohibit the employment of registered optometrists by corporations. If this is the construction then the statute is unconstitutional. (Liggett Co. v. Baldridge, 278 U.S. 105; TTorheis i-. Kindy Optical Co.. 251 N. W. Rep. 343; Selinaier v. Navarre Hotel ci Importation Co., 182 N.Y. 83; People v. Binge, 197 N.Y. 143; Sëadroa's Sons, Inc., v. Snsskind, 132 Misc. Rep. 406; People v. Rogers, 227 Ill. 151; Binfard v. Boyd, 174 Pac. Rep. 56; Jaeckle v. Bamberger ci Co., 181 Atl. Rep. 181; Dvorine v. Castle- berg Jewelry Corp., 185 Atl. Rep. 562; Missouri v. Gate City Optical Co., 91 5. W. Rep. 89.) Per Cnrian. The purposes for which the Four-Boro-Optical Corporation is to be organized, as set forth in its certificate of incorpOration, conform with the provisions of section 1432-a of the Education Law (Cons. Laws, ch. 16) (Ro.schën v. Ward, 279 U.S. 337), and the objectiOn by appellant nppearing in the affidavit of the acting chief of the Division of Corporations is not sufficient to warrant refusal to file and record this certificate. We do not construe the wording of the proposed certificate of incorporation as authorizing the practice of optometry. At this time we decide no other issue. If, in the future, questions relating to any violation of law by the corporation or by any optometrist employed by it shall arise, the courts can then deal with them. The order should be affirmed, without costs. CRANE, Ch. J. O'BRIEN, LOTJGHRAN and R~PEY, JJ., concur; HUBBS, J., dissents: LEHMAN and FINCH, JJ., taking no part. Order affirmed. Mr. STEIN. As counsel for Sterling, I think I am in an advantageous position to comment upon the claims and contentions of organized optometry for this one principal reason: I have recently concluded a seven-week trial in the Supreme Court, New York, in which the. PAGENO="0217" OPTOMETRY 213 New York State Optometric Association was our principal antagonist. I, believe that during the course of that trial a considerable amount of factual information, evidence, both oral and written, was intro- duced which I think would be of much interest to this committee and of great significance to this committee. That perhaps explains why my memorandum is perhaps larger than some, because I have at- tempted to include in that statement much of the material fact devel- oped during this seven-week trial and otherwise, Now, first with regard to optometry and, the private practice of optometry. Optometrists, we heard this morning, are not medically trained, a~s such. Nevertheless, in this action in Albany, which I will refer to as Sterling vs. Regents, the New York State Optometric Asso- ciation submitted to the court a~brief in which they argued that opto- metrists were capable of discerning and diagnosing the presence of incipient diabetes, brain tumor and glaucoma. As a matter of fact, * certain of the witnesses produced by the New York State Optometric Association urged to the court that optometrists were better able, perhaps, to discern the presence of such pathology than trained ophthalmologists. Other evidence adduced in the court in that proceeding established that in optometry-most optometrists use the title "Doctor." Evi- dence was adduced that members of the public are not really aware of the extended limitations* of training of optometrists and that the use of the title "Doctor" tends to increase such confusion. IVe discovered also that many optometrists employ the title "Doc- tor" as a result of a quickie doctorate degree. As a matter of fact. earlier this year the New York State Optometric Association urged to its members who did not have a doctorate degree and therefore did not lawfully have the right to use the title "Doctor" that they attend a 13-week course for two days a week, pa.y $500, write a thesis and get their :doctorate degree. * We also know, ahd it was proven in this case-and I am now talking about Sterling v. Regents, that some optometrists, including leading members of the New York State Optometric Association, use the title "Doctor" in dealing with their patients even though they do not l~ave have the semblance of right' to do so. Even though they do not have a "quickie" degree. This problem was put to the Administrative Direc- tor of the New `York State Optometric Association, one Dr. Ashley King, and it was pointed out to him that under the laws of'the State of New York this practice was illegal, expressly made criminal, and we asked him whether he regarded the use of the title "Doctor" in these circumstances as professional, even though illegal, and strangely enough this spokesman for the New York State Optometric Associa- tion stated that in his opinion it was professional, even though illegal. .1 might say that I have difficulty reconciling that standard of pro- fessional conduct with the high principles espoused by the New York State Optometric Association and the American Optometric Associa- tion `before these hearings. I have also appended to my submission as Exhibit 3 a suggested list of professional terminology originating with the American Optometric Association which I submit indicates that this confusion which I PAGENO="0218" 214 OPTOMETRY speak of is being incurred and engendered by the American Opto- metric Association. I also have included in our Exhibit an article ap- pearing by an optometrist by the name of Jack R. Hale, who is a mem- ber of the American Optometric Association. This article appeared in the April 15, 1965 edition of the Optometric Journal and Review. I believe that this article also expresses the view of the rank and file membership of the American Optometric Association. Let me show you what Dr. Hale says, which I believe further indi- cates the attempts made by organized professional optometrists, mem- bers of the Optometric Association, to further confuse and conceal the facts from the public. This article suggests lines of conversations with patients. It begins, "Mis-use of words are apparent in the contrast of positive and nega- tive approaches. The negative approach would be `I want to think about referring you to a doctor.'" In other words, optometrist Hale says, "Don't say that to your patients. Instead say the positive." "Our case findings indicate your best interests would be served by referral to a physician for additional professional attention. Use `physician' rather than `doctor.' By choice of words, indicate that your skill and training is on a comparable professional level. "Substitute the term `ophthalmologist' with `physician' when indi- cated. When asked if you use drops, negative." In other words, you are not to say "As a non-medical man, I can't use them." "Positive." "Your refractive needs can be evaluated more efficiently without drops and drops have bad carry-over effects at times." "Avoid the term `non-medical' like the plague." And again I am quoting and that was a quote. "It is a weapon of our adversaries. Are they non-optometrists?" He again continues: "When asked how much are your frames and lenses, negative. `Our prices are as cheap as any place in town.'" In other words, don't say that. "Positive. It really is impossible to answer this. Lenses in particular vary for the needs of each case. Alternative answer to shift emphasis: `What is your visual condition?'" I submIt that this demonstrates why optometry, organized optom- etry, is here so concerned about advertising, including truthful in- formational advertising. I believe, as the facts will later show, that they are concerned about the public Imowing the limitations of their training and knowing the extent to which they profiteer in the sale of eyeglasses. Now, incidentally, when we talk about the use of the world "Doctor," I refer to a specific provision of the bill, 1283, which has not hereto- fore been referred to, and particularly page 15, line 6-11, which con- fers upon optometrists, whether or not they have a doctorate degree, the right to use the title "Doctor," provided only they follow it with the letters "O.D." I can't imagine in dealing with patients they are going to introduce themselves as "Dr. Warren, O.D." I submit this confers upon the optometrists the ability-optometi'ists PAGENO="0219" OPTOMETRY 215 who do not have a doctorate degree-the ability to use the title legally without authority. Now, let's look at what this practice does. A privately practicing optometrist sells eyeglasses according to prescription which he himself issues. This is one of his functions. We have proven in the SterZing v. Regents case that it is extremely rare for an optometrist to voluntarily issue to a patient a prescription to permit that patient to seek his eye- glass needs from an optician or from a more economical source. In addition, many optometrists, including optometrists here in the District of Columbia, will fill prescriptions emanating from ophthal- mologists or other optometrists. In other words, in that respect an optometrist is nothing more than, or less than, an optician. He is a merchant in a sense, the same as a pharmacist, selling a product, be- cause in that latter instance he does not examine the eye; he merely duplicates lenses and fills prescriptions. As I say, most optometrists in the District of Columbia will fill not oniy their own prescription, but the prescriptions of others. In that regard, as I say, optometrists are really comparable to pharmacists. As a matter of fact, some less skill is involved for this reason: Opto- metrists usually, when they sell or dispense eyeglasses, do not fabricate the eyeglass. They don't grind lenses. They buy a finished product. Most eyeglasses-I am now talking about perhaps 75 or 80 percent of the eyeglasses supplied to the public by privately practicing or em- ployed optometrists, are glasses made from stock lenses so that the fabricator doesn't even have to surface-grind the lenses. In any event, optometrists rarely, in the District of Columbia, grind or assemble eyeglasses. They buy a finished product and deliver it to the customers. We have said that 75 percent of the income of optometrists is derived from the sale of glasses. Mr. Harsha, this morning, asked what proof we had of that and the proof is this: We have had a survey made here in the District of Columbia. We took a comparison shopper, gave her a pair of glasses which sell for $12.75 at Sterling and asked her to have them duplicated by the privately practicing optometrists in the District of Columbia. We have that survey. The survey indicated that the average price charged by the privately practicing optometrist for the same pair of glasses that Sterling charged $12.75 for would cost at the privately practicing optometrist approximately $25. Now, this morning Dr. Warren used the term "license to steal." I ask you who is exercising that license when I point out this following fact: That pair of glasses that the privately practicing optometrist charged $23 or $24 or $25 for cost that optometrist perhaps $7. No more. Let me say that the persons who made those charges are not the exceptions. As a matter of fact, among those persons who made those charges are the spokesmen for the District Optometric Society, in- cluding Dr. Berlin, who charged $23 for a $12.45 pair of glasses. Dr. Warren, who charged $23, also, for that same pair of glasses. A~nd I have here, and would offer into evidence, Dr. Warren's bill. Mr. SISK. Without objection it will be included in the record. (The bill referred to follows:) PAGENO="0220" 216 OPTOMETRY DR. EVART F. WARREN, Washington~ D.C. Mrs. DONNA WALTON, Thomas Drive, Shady Side, Maryl~nd For professional services rendered: Monday, July 3, 1067: Frame and Lenses $23. 00 Paid 3.00 Balance 20. 00 Mr. S~rEIN. Then we have it for a $7 pair of glasses, Dr. Warren, Dr. Berlin and their colleagues charged $23, which makes a profit of approximately $16. They might cha.rge $5 for an examination. $16 then is their profit from the sale of merchandise and $5 profit for the service rendered. I believe that comes pretty close to 75 per cent. In `addition the spread, or the profit derived from the sale of glasses increased as more expensive glasses are sold, and optometrists will generally sell a fair volume of their glasses for more than $23. In addition, as I pointed out before. these optometrists will sell eyeglasses at the profit mentioned even without rendering ref ractive service. In other words, if a person comes in and doesn't ask for an examination, merely asks to have glasses purchased, the optometrist will sell the glasses and make the $16 profit. That then indicates the proportion, or increases the proportion of the optometrist's income derived from the sale of merchandise. I submit that these figures substantiate the claim made by one of the spea.kers this morning that more than 75 per cent of the optome- trist's income is derived from the sale of merchandise. I believe, therefore, that in this instance, or because of this fact, an optometrist is more analogous to a pharmacist than a physician in that a physician does nOt normally sell a product. This morning the speakers for the Medical Society indicated that perhaps one or two out of more tha.n 100 or 120 ophthalmologists only sell eyeglasses. Therefore, ophthalmologists do not, as a general rule in the District of Colmnbia, sell a product. For that reason, optome- trists in the District of Columbia may not compare themselves, in their merchandising practices, with ophthalmologists. iRa.ther, op- toinetrists must be likened to pharmacists and therefore they must be ready to permit truthful informational and price advertising so that. the public will have the opportunity t.o buy glasses at the most eco- nomic source. I pointed out' also in my submission to this committee the fact that in the Optical rebate cases, the Justice Department submitted to the Federal District Court in Illinois a report which indicated that where refractors-in that case, ophthalmologists, also dispensed glasses, there was a tendency to monopolize the sale of eyegla.sses with a concomitant increase in cost. I submit that that is precisely the situation here in the case of the privately practicing optometrist and that. that situation will be per- petuated and increased by this legislation. I submit that if optometrists did not sell eyeglasses, this would be a different bailgame a.nd they might be entitled to the protection they claim under this statute. PAGENO="0221" OPTOMETRY 217 Now, I also point out that leaders of the profession of optometry, a Di'. Gordon Heath, who is a professor at the Indiana State Uni- versity, the same as Dr. Hofstetter, and a Dr. Wylie from Ohio State University, both of whom were witnesses for the New York State Optometric Society in Sterling v. Regents, testified that as long as optometrists sold eyeglasses they could not be regarded as profession- als. Now, let me turn to Sterling. Sterling has been engaged in the busi- ness of selling eyeglasses for fifty years. They employ licensed optom- etrists. They employ perhaps 35 licensed optometrists. They have eleven establishments in New York City and two here in the District of Columbia. In the case of People v. Sterling, Judge Tilzer of the Supreme Court of the State of New York and the Appellate Division of the Court of Appeals affirming his decision, stated that in the fifty years of commercial optometry in the State of New York there was no proof of any injury to the public. In the most recent case, Sterling v. Regents, the New York State Optometric Society said at the outset they would prove injury to the public. Quite the contrary. There was proof in that case that they employed three Burns detectives. They told them to falsely state that they had symptoms of pathology when they visited the establishments of Sterling and others similarly situated on some 21 cases. One detec- tive visited seven establishments and in six he was told he did not need eyeglasses and wasn't sold eyeglasses. In the case of others, they were given eyeglasses. The New York State Optometric Society has those eyeglasses; they had the opportunity to neutralize the lenses to determine whether or not those prescriptions were fair, accurate and suitable to the patient. There was not one shred of evidence that any single one of those pre- scriptions were inaccurate or inappropriate. As a matter of fact, one of the detectives, after he discontinued his services for the Optometric Society, on his own purchased a pair of glasses from Sterling and was perfectly satisfied with the quality of the prescription and the lense. So that in that case the most recent instance where the situation has been submitted to the crucible of truth, namely a trial, again the New York State Optometric Society was unable to provide proof of a single instance of improper prescription, even though they used paid investigators to seek out the evidence. Now, with regard to the curruptibility-I will finish up as quickly aslcan. Mr. SIsK. I am simply going to have to cut you off. You have gone 25 minutes and that is about twice as much as anyone else has had. Mr. S~rmN. I just have one or two more points I want to make. This question of the corruptibility of employed optometrists. A survey w~s made by the New York State Optometric Society which shows that a considerable number of privately practicing optometrists had once worked for commercial establishments. I believe they did not publish those figures, but I believe it ran perhaps as high as 40 or 50 per cent. There was no evidence that those persons had been corrupted. With regard to an optometrist being corrupted if lie works in a store, or retail establishment, I have here a photograph of the front of Marvin Berlin's place of business. It shows very obviously he works in PAGENO="0222" 218 OPTOMETRY a store and he shows-he has signs outside his establishment which plainly constitute advertising. I don't believe the optometric society would claim that Dr. Berlin has been corrupted. I should also refer to Governor Rockefeller's veto message of similar legislation in New York. Governor Rockefeller vetoed that legislation at the recommendation of the Department of Commerce of the State of New York, the Department of Insurance of the State of New York, the Mayor's Council of the City of New York, the AFL-CIO Central Trades Council and many others. In that message Governor Rocke- feller said that legislation such as this would merely increase costs with no commensurate benefit to the public. In conclusion, I shOuld merely like to say that if the optometrists are sincere in their desire to uplift the profession, Dr. Warren pro- vided the answer. Don't prohibit corporate employment, don't prohibit advertising, don't prohibit practice in a commercial location. Deal with the core of the problem. License optometrists and give the com- mission or the council or the board of optometry the right to revoke for certain stated meaningful reasons, such as unprofessional con- duct-that is, gross incompetence. Thank you. Mr. SIsK. Thank you, Mr. Stein, for your statement. I must say I am sorry we don't have more members of the committee here, Mr. Stein, because actually your statement, as I interpret it, is the best argument we have had for the bill. I appreciate your remarks, and and I hope my colleagues will read the record. It seems to me the whole purpose of your statement is really indicative of the fact that we need desperately to upgrade optometry fron'i the standpoint of the visual care of the people of our country. It does give me some real con- cern if the quality of a lot of our optometrists is as low and as poor as your statement would indicate. Do I understand that you actually oppose the use of the word "Doctor" even with the O.D. after his name? Mr. STEIN. May I respond to that and also to your first observation, Mr. Chairman? First, with respect to your question, I object to an optometrist using the title "Doctor" unless he has a proper degree from a recognized institution qualifying him to use the title "Doctor." Mr. SIsK. If I can just stop you right there, this is exactly what we hope to begin. I might say in my own state of California, optometrists wear with a great deal of pride the title "Doctor" and we are proud to refer to them as such because of the requirements. The qualifications in the States of New Jersey, Florida, Kentucky and a number of our States are high requirements and the optometrists have professional status. Unfortunately this apparently isn't true here in the District. I will not make any comments with reference to New York where appar- ently the situation could stand a little correction. Mr. STEIN. May I respond to this? In New York an optometrist may lawfully use the title "Doctor" if he has a degree, if he has a doctorate degree. And I submit that an optometrist in the District of Columbia should also be privileged to use the title "Doctor' if he has the degree. Page 15 of t.he bill 1283, however, would permit an optometrist to use the title "Doctor" even though he does not have a doctorate degree. PAGENO="0223" OPTOMETRY 219 Mr. SIsK. Are you speaking of the licensing procedure under the grandfather clause? Mr. STEIN. I hadn't gotten to that, but I submit, Congressman Sisk, that if we are going to have legislation here which threatens to put businesses out of business, notwithstanding their substantial invest- ment, there certainly ought to be a grandfather clause and there ought to be a grandfather clause for employed optometrists who have vested employee rights which they will lose if they are denied the opportunity to continue in their present employment. Mr. SI5K. I believe we do have that. The bill clearly has from the standpoint of present practicing optometrists. I think that was pretty well covered under the grandfather clause. Mr. STEIN. They are not permitted to continue in this employment. The employers are not permitted to continue employing them. Mr. SIsK. The witness may disagree with me but the intent of the bill is to eliminate corporate practice. I am sure the gentleman understands. I say without reservation because of the experiences we have had here in the District and in other areas where corporate practice has been, permitted. Do I understand, Mr. Stein, that you are discussing primarily optometry as you have experienced it in the corporate field? Mr. STEIN. And by virtue of the expansion of privately practicing optometry in the seven-week trial in Albany and other investigations I have made. For that reason, when you speak of correcting evils, I point out that this bill does nothing to prevent a Dr. Berlin or others like him from charging $23 for a $7 pair of glasses. Mr. SIsK. If I walked into Sterling Optical today and indicated that I was having a problem with my vision and asked for an exami- nation, do you mean to say that they are prepared to give me a proper examination and fit me with glasses for $7? Mr. STEIN. They will charge you $3 for an examination. Mr. SIsK. How much time are they going to spend on an examIna- tion? I just recenty had an examination out in California. I recall pretty vividly that examination. Mr. STEIN. As much or as little time as that optometrist feels neces- sary in his professional judgment. Under no circumstances at no time have any of the Sterling-employed optometrists been told how much or how little time they must give to an examination. I refer to the profession, to the canons of ethics of the American Optometric Asso- ciation which specifically states that no one can tell an optometrist what procedures he must use during an examination. Mr. SIsK. Mr. Stein, I don't want to argue with you. I can see you and I are probably far apart in our views. Mr. STEIN. I regret that. Mr. SI5K. I am concerned about the public. I am not concerned about the optometrists. They can take care of themselves. I am con- cerned about the care my grandchildren are going to get when they have some eye problem in school. I am concerned about the kind of care they will receive. I am sure that the mothers and fathers of the District of Columbia are, too. Does the gentleman believe a professional man qualified to render a service to the patient for the care of his eyes could adequately check PAGENO="0224" 220 OPTOMETRY a child or adult and properly know the condition of that person'~ eyes and fit glasses at a cost of $7 or even $12.45? I am not opposed to low prices to the extent we can get them there. Mr. Stein, we are concerned with patient care and the doctors' responsibility to the patient for the purpose of care of his eyes. I am not concerned about dollars and cents. This is really the guts, pardon my use of the word, the difference between your posi- tion and mine. Mr. SruIN. May `I respond to that? Mr. SI5K. Yes, sir. Mr. S1~nIN. Let me tell you this. I had a conversation with one of the employed optometrists for Sterling in the upper New York State area.. This man had been engaged in the private practice of optometry working for himself and a privately practicing optometrist. He had graduated with `honors from his school of optometry. He was the leading student in the class. I asked him why he entered that profes- sion. He said, "I worked for private practicing optometrists and this man's income depended upon pushing the sales of eyeglasses. He got big prices for them." He said, "Now I work for Sterling and it does not make a bit of difference to me whether I sell a pair of glasses or I don't." He said, "I had the opportunity recently of being able to provide a woman and her five children and she was a poor woman and with not very much funds or assets, but I was able to provide her and her children with eye examinations and eyeglasses, all six of them, for the cost that woman paid the year be.fore for herself." He was proud of the fact that he was rendering this kind of service to the public. I might also point out that the principal executive officer of Sterling Optical Company is a licensed optometrist in the State of New York who graduated from the Columbia School of Optome- try. He, too, is very zealous about his desire to serve the public. He feels most desirous, as the entire `Sterling organization does, to pro- vide the public the best eye care possible at the most economical prices. If we learned, if we were informed or if we were advised that any of our employed optometrists were not rendering service to the very best of their ability, ~ve would join with any enforcement agency to see tknt that optometrist `was appropriately disciplined. I can assure you that it is our desire and our pride to render the best service to the public and to be able to do it at a. price that they can afford. Mr. SIsK. I am sure, Mr. Stein, that dedicated men, because of ftna.nces, would find themselves working for some corporation. I am sure that in the medical profession and the profession of optometry or anywhere else you get a bad apple. They know these things are all true. I still come back to the fact that if your youngster in school was having eye problems, whether or not you would be satisfied to send that child to an establishment where glasses were being mer- chandised for $7 a pair after supposedly an examination. Maybe you would not. Mr. STEIN. Let me say this. I have turned the corner of forty re- cently when most people develop transmyopia. I got those eyeglasses at Sterling. I bought them upon examination by a Sterling-employed optometrist.. I feel that I have been perfectly well cared for. PAGENO="0225" OPTOMETRY 221 I think the proof in the Sterling Regents case indicates that under the most adverse circumstances, paid detectives giving false symptoms were properly prescribed eyeglasses by Sterling, indicates that it is not the length of the examination that controls. It is the ability of the examiner and his desire to give proper and appropriate service. There was not a single one of those 21 examinations which were proven in any way to have been inaccurate, inappropriate, or harmful to the public or any of the patients who came in to be examined. `What better proof could there be that we are rendering good, accurate, careful service to the public than that? Mr. SIsK. You heard me cite an excerpt from a case where an indi- vidual was recently fitted. I am not picking on Sterling. I might say that, frankly, I have had it said to me that among the corporate setups locally, there are some that, let us say, do not measure up to even Sterling's standards. Certainly we know of some, and because of experiences with the law and otherwise. `Were you in the room when I cited the case with reference to Ster- ling? The patients when dissatisfied were told they have to go to New York. This is a normal procedure for Sterling. If I go back and com- plain I can not get a recourse here in `Washington. It has to go through the channels in New York? Mr. STEIN. Congressman Sisk, let me say that as a lawyer I find it rather difficult to respond to a claim without having all the facts. I can tell you, however, that if any patient has any problem in any one of the 13 stores, the professionals in charge of that store have complete and absolute authority to deal fairly with that patient and are in- structed to do so. There is absolutely no practice requiring that person to go to New York. I might say that in thi's instance I should point out that the optometrist who did or does the contact lens work case in Sterling in the District of Columbia is probably the most competent contact lens specialist of any optometrist in the District of Columbia. He does that. He does that only. He does that every day. I might also say that this person is entering private practice now. His standards, I assure you, will not be any different in private prac- tice than they were in the course of his employment. He is highly qual- ified, highly competent, and no one else tells him how many contact lens cases he must do a day. He does as many as lie can completely do in the light of the requirements of the patient and his concern about giving that patient the best care possible. Mr. SIsK. Would you agree with me probably he will be in a much better position to serve the public in private practice than he would in, say, the employ of a corporation where profit is the only motive? Mr. S~ri~IN. Quite the contrary. In Sterling he has the aid and as- sistance of competent opticians, dispensers, laboratory personnel. He does not have to concern himself about paying next month's rent. Mr. SIsK. Those are available to all of them? Mr. STEIN. If they can afford it. If they can afford it. That may be the reason why some privately practicing optometrists tend to over- prescribe so they can meet obligations of rent, meet their obligations to satisfy the payroll that they have, or need to provide adequate service. 82-754-67-----15 PAGENO="0226" 222 OPTOMETRY Mr. SIsK. Those are the types that we are trying to weed out. Mr. STEIN. The bill does not do that, Congressman Sisk. Mr. SISK. We think it is a big step in that direction because if we can weed out the profit motive I think we will have made some gain in this area. Mr. STEIN. We have not weeded it out under this bill. Mr. SIsK. Counsel, do you have any questions? Mr. GA.imEit. Mr. Stein, one or two questions here along the line that we have been discussing. Any corporate group that is engaged in the practice of optometry, they are in business to make a profit primarily, isn't that right? Mr. STEn~. As the private practice optometrist, yes, sir. Mr. GARBER. In other words, if the corporation did not make a profit it would go out of business and there would be no reason for existence? Mr. STEIN. That is true. Mr. GABBER. Do you make a profit off of your examinations as a corporation profit? Mr. STEIN. I do not know. Mr. GABBER. Has it ever occurred to you that is a pretty important thing for a corporation to know, whether it is making a profit or not? Mr. STEIN. I think it is certainly important to know that the bottom line is in the black, yes. Mr. GABBER. Would you say that the principal profit made by the corporation is derived from the sale of glasses, frames, and lenses? Mr. STEIN. I don't know that but I would suspect that is true in the private practicing optometrist. Mr. GABBER. If the corporation could exist and do very well on the profits it makes from the sale of- Mr. STEIN. No, let me answer that. Fifty percent of our business, or perhaps 35 percent of our business is derived from prescriptions emanating from persons other than optometrists which we employ. Almost all of that comes from ophthalmologists, prescriptions. Ophthalmologists don't issue prescriptions. If we did not have ophthalmologists performing examinations, the only business we would get would be the 35 percent which we now derive from prescrip- tions emanating from ophthalmologists. That is the reason why I say that the crux of this matter is whether or not privately practicing opticians should sell eyeglasses. If they were not permitted to sell eyeglasses, we would be able to fill their prescriptions and remain in business. Mr. GARBER. Mr. Stein, you sa.y that you fill prescriptions for ophthalmologists? Mr. STEIN. Yes. Mr. GABBER. You fill prescriptions for optometrists, too, do you not? Mr. STEIN. If we can get them. The only ones we would get are optometrists that we employ. Mr. GARBER. Is there in this bill anyplace that precludes you in any respect from selling glasses, lenses, frames, in any respect what- soever? Mr. STEIN. Yes, in this sense- Mr. GABBER. Where is the language? PAGENO="0227" OPTOMETRY 223 Mr. S~c~IN. If we can not employ optometrists. Mr. GARBER. I am asking you whether or not there is anything in here that precludes you from selling frames and glasses. Mr. STEIN. Just the pragmatic workings of the bill. If we do not employ optometrists, if optometrists privately practicing can not sell eyeglasses that they prescribe, our business will be cut back 65 percent. We will be limited to the sale of glasses upon prescriptions from ophthalmologists. Mr. GARBER. In other words, your bread and butter depends on the employment of an optometrist in order to enable you to make a profit on the care of eyes of the community? Mr. STEIN. As the matter now stands in the District of Columbia, in order for us to continue in business it is necessary for us to employ optometrists, yes. I might also say in regard to a matter that was brought up this morning, this question of patieiit referral. I believe that the evidence given by Dr. Albert indicates the rate of referral for commercial establishments, commercially or employed optometrists, or ophthalmologists, is considerably higher than that of the privately practicing optometrist. Mr. SI5K. If the gentleman will pardon me, I questioned Dr. Albert at some length and he did not say that. He said that it might be about fifty-fifty. He did not state it would be higher. And upon further questioning lie said he didn't know. I asked the medical people if they could get some figures. They would be interesting. Mr. STEIN. If we take his figures at 50 percent, then the referral rate from the employed optometrists has to be greater. There are, we are told, approximately 70 privately practicing optometrists in the District of Columbia. I would say there are perhaps only 20 percent of that employed or 20 percent or 14 or 15 percent employed optome- trists in the District of Columbia. If those 14 are making 50 percent of the referrals and the seventy are making 50 percent of referrals, I think it stands to reason that the rate of referrals by the employed optometrists is considerably higher than the privately practicing op- tometrists. Mr. SIsK. Mr. Stein, I do not wish to pursue this further but that brings up another question. Do I understand from you that there are only some 15 employed optometrists by corpoDate interests here in the District? Mr. S'I~IN. I would suspect there are perhaps that number. Less than twenty in the District of Columbia. Yes. Mr. SISK. How many corporate optical places are there in the Dis- trict? Do you know any by chance? Mr. STEIN. I do not know. The reason I have a problem ascertaining that is that many of the so-called privately practicing optometrists also apparently own opticianary establishments. If I looked at the phone book I would see an opticianary establishment or an opto- metrist's phone number at the same address or the same phone number and the same address. I would not know whether that was a truly employed optometrist or whether that was a so-called privately prac- ticing optometrist who is his own opticianary corporate establishment there. c PAGENO="0228" 224 OPTOMETRY There is a considerable amount of that in the State of New York and I suspect it is true down here. I might say when it serves the pur- poses of the privately practicing optometrist, they seem to countenance corporate employment. Mr. SIsK. Where the law is as lax as it is here, I can understand that. Mr. STEIN. It is not that lax in New York and it still continues. As a matter of fact, we proved in that ca.se that the New York State Optometric Society itself organized a corporation known as Vision Services, Inc. That corporation employed lay persons to solicit busi- ness for the corporation so that members of the. Optometric Association could perform optometric services for a fee. That is as close to corpo- rate employment as I can imagine. I also discovered that the New York State Optometric Society had a contract with the Teamsters Union to provide optometric services. That is pretty close to employment. I also discovered that the Opto- metric Center in the City of New York, which is sponsored by the New York State Optometric Society and manned by prominent mem- bers of the New York State Optometric Society, performs optometric services and sells eyeglasses to the public. The optometrists who per- form those services get paid a fee. That is pretty close to corporate employment. Yet the opt.ometric societies countenance that kind of practice. As I say, it depends on whose ox is gored. Mr. SISK. Mr. G-ude from Maryland just came in. This is Mr. Stein representing Sterling Optical. Do you have any questions? Mr. GUDE. Not at this time. Mr. SIsK. All right, Mr. Stein, thank you for your statement. The committee appreciates your testimony. I believe we have gentlemen from the Board of Trade whom we have promised to hear this afternoon, Mr. Becker and Mr. Weir. If they will come forward to the witness stand, we will hear them now. I might say to other witnesses, upon the conclusion of this testimony the committee will have to adjourn for tonight and unless otherwise notified the committee will reconvene at ten o'clock next Friday morning. STATEMENT OF OSBY L. WEIR, GENERAL MANAGER, WASHINGTON AREA, SEARS, ROEBUCK AND COMPANY, AND SECRETARY OF THE METROPOLITAN WASHINGTON BOARD OP TRADE Mr. WEIR. Mr. Chairman and members, I am Osby L. Weir, General Manager, Washington Area, Sears, Roebuck and Company. I appear here today as the Secretary of the Metropolitan Washington Board of Trade, to voice that organization's opposition to H.R.. 595, H.R. 732, H.R. 1283 and H.R. 10075, also H.R. 12276 and H.R. 12297-all bills to amend the Optometry Law of the District of Columbia. In the interests of time, if you prefer, I will summarize it very quickly. If you have any questions I will be glad to answer them. Mr. SIsK. Your entire statement will be made a part of the record. If you can, please summarize it. (The statement follows:) PAGENO="0229" OPTOMETRY 225 STATEMENT OF OSBY L. WEIR FOR THE METROPOLITAN WASHINGTON BOARD OF TRADE BEFORE SUBCOMMITTEE No. 5, HOUSE DISTRICT COMMITTEE, AUGUST 14, 1967 Mr. Chairman and Gentlemen, I am Osby L. Weir, General Manager, Washing- ton Area, Sears, Roebuck and Company. I appear here today as the Secretary of the Metropolitan Washington Board of Trade, to voice that organization's opposi- tion to H.R. 595, H.R. 732, H.R. 1283 and H.R. 10075 also H.R. 12276 and H.R. 12297-all bills to amend the Optometry Law of the District of Columbia. These bills, except for slight variations in phraseology and ppnctuation, are similar in effect. The stated purpose of these bills is to re-write and up-date the Optometry Law of the District of Columbia. This would be accomplished by the repeal of the existing provisions of the Optometry Law and the enactment of an entirely new law within the District. At previous hearings the Medical profession, the Guild of Prescription Opticians of America, the Guild of Prescription Opticians of Washington, D.C., the National Association of Optometrists and Opticians, as well as the Metropolitan Washing- ton Board of Trade have opposed the proposed re-writing of the Optometric Law-on the grounds that it deprives the public of freedom of choice in the selec- tion of optical aids, at considerable expense and no corresponding benefit. The Metropolitan Washington Board of Trade directs its opposition to one par- ticular effect of these proposals, if enacted. The existing Optometric Law of the District of Columbia provides in Sec- tion 20- "That the provisions of this Act shall not apply- * * * * * (b) To persons selling spectacles and (or) eyeglasses and who do not attempt either directly or indirectly to adapt them to the eye, and who do not practice or profess to practice optometry." Bills HR. 595, HR. 1283, and H.R. 10075, on the contrary, not only eliminate this provision, but provide, in Section 8(a), subdivision (4) "It shall be unlawful for any person * * * with the exception of nonpre- scription sunglasses or nonprescription protective eyewear, to sell or offer to sell to the public eyeglasses, spectacles, or lenses to fit or duplicate lenses, without a written prescription from a licensed physician or optometrist." (H.R. 732 has a similar provision, Section 8(a) (4), but requires that the pre- scription come from a physician or optometrist licensed to practice in the District of Columbia.) POINT ONE. THE PROPOSAL TO ELIMINATE THE SALE OF READY-TO-WEAR READING GLASSES IS DESIGNED BY ORGANIZED OPTOMETRY TO ELIMINATE COMPETITION It seems quite illogical that men who seek to insure for themselves a "pro- ~ status should consider magnifying spectacles a source of competition. The usual cry of "pro bono publico" has been raised by the American Optometric Association, sponsors of these bills. In order to maintain this position, they would have to show (1) that the sale of these glasses is injurious, or (2) the pul)lic was deceived, or (3) that the public could obtain better or equal service from them at lesser cost. In none of these instances can they maintain their position. In fact, the con- trary is true. The public's purchase of ready-to-wear reading glasses serves a great human cause. First, these simple ready-to-wear magnifiers in convenient frames are aids to old-aged vision. Second, the cost is nominal, from $1.50 to $3.95 per pair as against purchasing the same from an optometrist for five to ten times more. Third, there is authoritative medical testimony that they "cannot effect any change in your eyes, let alone `ruin them.'" POINT TWO. READY-TO-WEAR MAGNIFYING SPECTACLES PLAY AN IMPORTANT ROLE IN THE COMFORT OF MANKIND Middle-aged farsightedness is as natural as gray hair. With the advancing years, the eye gradually loses its powers of accommodation for near vision because the eye lens becomes progressively harder. From the age of forty on, most people just cannot seem to hold things far enough away to see them clearly. Years of research have produced the simple answer for farsightedness. It is a pair of magnifying glasses for reading and close work. These magnifying PAGENO="0230" 226 OPTOMETRY lenses, in convenient frames, bring close objects into focus and enable you to see them clearly and easily. The cost is from one/tenth to one/fifth of what you would pay for a custom-made pair of prescription reading glasses. POINT THREE. THE5E GLASSES ARE SAFE TO WEAR Many millions of pairs of these glasses have been produced, distributed and purchased in the United States without causing harm or injury to the eyes. If magnifying spectacles help a person to see better they have accomplished the necessary goal of all spectacles. Attached hereto and made a part hereof are resolutions by the Medical Society of New Jersey and the New Jersey Academy of Ophthalmology and Otolaryngology, wherein they have disapproved of the enactment of legislation w-hich would have outlawed the sale of these ready-to- wear glasses even as the bills in the instant case propose to do. These are respectively marked, Exhibits A and B. Also attached hereto are exhibits C and D. POINT FOUR. THE MERCHANDISING AND WEARING OF THESE GLASSES IS APPROVED BY GOVERNMENT AUTHORITY In no State of the United States is the sale of these magnifying spectacles prohibited. Massachusetts, Minnesota, New York and Rhode Island, provide that the glasses may be sold if an optometrist is merely present at the place of sale. He is not required to participate in the sale, but to be available if guidance is needed. Attached hereto is a statement prepared by the Counsel of the Metropolitan Washington Board of Trade showing the State statutory authorizations to sell ready-to-wear reading spectacles. (Exhibit D) These glasses are and for many years have been freely sold in Maryland, the District of Columbia and Virginia. It is and has been the policy of the Board of Trade to seek and support uniform regulations in the Metropolitan ARea. The enactment of this proposed legislation eliminating the sale of ready-to-wear reading glasses would merely force residents of the District of Columbia to go into the two adjoining states to purchase their ready-to-wear reading glasses. Thank you very much for this opportunity to present our views. STATE STATUTORY AUTHORIZATIONS To SELL READY-TO-WEAR READING SPECTACLES ALABAMA: § 209. "Nothing in this chapter shall be construed to applying to resident merchants who sell eye glasses or spectacles as merchandise in perma- nently established places of business * * ALASKA: § 4 * * * "Nothing in this act shall be construed to apply to the sale of * * * completely ready-made spectacles and eye glasses sold as merchan- dise only ~ * ARIZONA: § 32.1721. "This chapter shall not * * prohibit the sale of spec- tacles and eye glasses as merchandise from a permanently established place of )jusiness.' ARKANSAS: § 16. "Nothing in this Act * shall prohibit the sale of ready- made eyeglasses and spectacles when sold as merchandise at any established place of business, where no attempt is made to practice optometry." CALIFORNIA: § 3043. "The provisions of this chapter do not prohibit the sale of * * complete ready to wear eyeglasses as merchandise by any person not hold- ing himself out as competent to examine, test or prescribe for the human eye or its refractive errors." DELAWARE: Chapter 1017 § 1017. "Nothing in this chapter shall be construed to prevent the sale of spectacles or eye glasses in the ordinary course of trade, provided no part of the Chapter is violated in making such sale." DISTRICT OF COLUMBIA: § 20. "That the provisions of `this Act shall not apply * * * (b) To persons selling spectacle's and (or) eyeglasses and who do not attempt either directly or indirectly to adapt them to the eye, and who do not practice or profess to practice optometry." FLORIDA: § 463.16. "Nothing in this chapter shall ~e construed to prevent the sale of * * ~ ready-made nonprescription glasses." GEORGIA: § 84-1108. "Nothing in this Chapter shall be construed * * ~ to prevent any person or persons selling glasses as articles of merchandise * * IDAHO: § 54-1515. "The following persons, firms and corporations are ex- empt * * * 3. Persons, firms and corporations who manufacture or deal in eye- PAGENO="0231" OPTOMETRY 227 glasses or spectacles in a store, shop or other permanently established place of business, and who neither practice nor attempt to practice optometry * * ILLINOIS: § 4. "Nothing contained in this Act shall be construed to apply to * `~- * persons, firms and corporations who manufacture or deal in eye glasses or spectacles in a store, shop or other permanently established place of business, and who neither practice nor attempt to practice optometry." IOWA: § 154.2 (1) Similar to the Illinois Optometric Law. KENTUCKY: § 320.200, subdivision (3). "* * * nothing in this Act relating to the practice of optometry shall be construed to limit or restrict, in any respect, the sale of completely assembled eye glasses or spectacles designed and used solely to magnify." LOUISIANA: § 1065. "The provisions of this Chapter shall not apply * * * to retail dealers selling glasses as merchandise in their established places of business." MARYLAND: § 384. Similar to the Illinois Optometric Law. MICHIGAN: § 7(e) "* * * nor shall such provisions apply to prevent persons selling spectacles or eyeglasses as an article of merchandise and not trafficking or attempting to traffic upon assumed skill." MISSOURI: § 336.120. (3) Similar to the Illinois Optometric Law. MONTANA: § 66.1301 (3169) Similar to District of Columbia Law. NEBRASKA: § 71.1134 Similar to District of Columbia Optometric Law. NEVADA: § 636.390 Subdivision (2) Similar to California Law. NEW HAMPSHIRE: § 12. "Persons excepted. Nothing in this chapter shall apply to * * ~ persons who neither practice nor profess to practice optometry, but who sell spectacles, eye-glasses or lenses * * * as merchandise from permanently located and established places of business." NEW MEXICO: § 67-7-14. Similar to District of Colum~ia Law. NORTH CAROLINA: § 90.127. "Nothing in this article shall be construed to * * prohibit persons to sell spectacles, eyeglasses, or lenses as merchandise from permanently located and established places of business." NORTH DAKOTA: § 43-1329 "Nothing in this act shall prohibit the sale of ready-to-wear glasses equipped with convex-spherical lenses, nor sunglasses equipped with piano lenses nor industrial glasses or goggles with plano lenses used for industrial eye protection, when sold as merchandise at any established place of business and w-here the selection of the glasses is at the discretion of the purchaser." OHIO: § 4725.14. "Exemptions. * * * (B) To persons selling spectacles and eyeglasses who do not assume to adapt them to the eye, or neither practice nor profess to practice optometry." OKLAHOMA: § 604-s 3. Similar to Ohio Optometric Law. OREGON: § 683.030. Similar to District of Colum~bia Law. PENNSYLVANIA: § XII Similar to California Law. SOUTH CAROLINA: § 56-1083. "Nothing in this chapter shall be construed to apply * * * (b) to persons who sell as merchandise from a regular established place of business ready-made eye glasses or spectacles if such person shall not aid the purchaser in the fitting thereof." SOUTH DAKOTA: Laws of 1957. Similar to North Dakota Optometric Law. MISSISSIPPI: § 8846. "The provisions of this chapter shall not apply to * * * merchants and druggists who are actually engaged in business in this state from selling and assisting purchasers in fitting spectacles and eyeglasses iii their place of business at time of sale." TENNESSEE: § 63-816. Persons and practices exempt,-Nothing in this chap- ter shall be contrued (3) To prevent a retail resident merchant, in a permanently located place of business to sell ready-to-wear spectacles and eye-glasses as mer- chandise, without advertising other than the price marking on same, after they have been selected by the customer alone, without aid, in person from trays or other containers', containing such merchandise (and any other method of sale or delivery shall be construed as practicing optometry) * TEXAS: § 4565e "Selling as Merchandise.-For the purpose of this Act the words `Persons who sell spectacles and eye glasses as merchandise' as employed in Article 4566, shall be construed to mean merchants who do not practice optometry, or offer to practice optometry, but who sell spectacles or eye glasses as merchandise, after they have been selected by their customers alone without aid from the merchant, either in person or indirectly, * * * other than the particular and complete and ready-to-wear spectacles or eye glasses selected by PAGENO="0232" 228 OPTOMETRY the customer in person from trays or other containers, containing such mer- chandise, and any other method of sale or delivery shall be construed as practic- ing optometry." UTAH: § 4 subdivision (c) Similar to Illinois Optometric Law. VERMONT: § 6883. Similar to California Optometric Law. VIRGINIA: Article 1. § 54-369. "~ * * nor ahall anything in Sec. 54-396, subsection (10) be construed to prohibit the sale of spectacles and eyeglasses, or any of such articles, as merchandise, from a regularly located and established place of business." WASHINGTON: § 18.53.040 Similar to District of Columbia Law. WEST VIRGINIA: §4. (d) Similar to District of Columbia Law. WISCONSIN: § 153.02 (2) "This section shall not apply to * * * the sale of spectacles containing simple lenses of a plus power only at an established place of business incidental to other business conducted therein, without ad- vertising other than price marking on the spectacles, if no attempt is made to test the eyes. The term `simple lens' shall not include bifocals." WYOMING: § 37.1802. Similar to California Optometric Law. LEGISLATIVE BULLETIN TO KEYMEN AND COUNTY SOCIETY SECRETARIES For easy reference we present this compilation of the official positions of The Medical Society of New Jersey concerning the following bills relating to the practwe of optonwtry: 5-209-To include under the scope of laws dealing with the practice of optometry any who offer und market for stile at retail to the general public spectacles or eyeglasses containing other than piano lenses. DISAPPROVED as unnecessary, because the vending of such glasses is not proper or exclusive to the practice of optometry, whose fundamental function (under law) is to examine for defects of vision and to prescribe corrective lens. This legislation would deny to the public access to low-cost eye-glasses of simple magnification, and thus is restrictive of free choice and is discriminatory. 5-210-To include in the practice of optometry any person who prescribes or dispenses to the general public spectacles or eye-glasses containing other than piano lenses. DISAPPROVED as unnecessary, because the vending of such glasses is not proper or exclusive to the practice of optometry, whose fundamental function (under law) is to examine for defects of vision and to prescribe cor- rective lens. This legislation would deny to the public access to low-cost eye- glasses of simple magnification, and thus is restrictive of free choice and is discriminatory. S-213-To provide that any person who practices ophthalmic dispensing in violation of the act governing regulation of the practice shall be liable to a penalty of not more than $200. DISAPPROVED, because it would deny to the public access to low-cost eyeglasses of simple magnification, and thus is restric- tive of free choice and is discriminatory. To the Honorable 2l1en~bers of the l~ew Jei-sey State Senate, Greetings: Whereas the Academy of Ophthalmology and Otolaryngology of the State of New Jersey, representing, among others, the leading eye physicians practicing in the State of New Jersey. have examined the legislative proposals known as Sen- ate Bills 209. 210, and 213, now before the Senate of the State of New Jersey; and Whereas each of these bills, though different in wording, is directed toward the same purpose; and Whereas Senate Bills 209, 210 and 213 are identical with Senate Bills 142, 335 and 336 of 1966, which were opposed by this organization; and Whereas the alleged purpose of Senate Bills 209, 210, and 213, is to protect the eye health of the public by compelling the purchasers and wearers of eye glasses to buy only under prescription from an ophthalmologist or an optome- trist, and thereby afford to such purchasers the protection of the discovery of eye disease and the diagnosis thereof, through the prohibition of the sale of ready-to-wear glasses: Now, therefore, be it Resolved, That the Academy of Ophthalmology and Otolaryngology of the State of New Jersey is opposed to the enactment of Senate Bills 209, 210 and 213 for the reasons: 1. Such legislation is unnecessary for the protection of the public health; 2. Such legislation will fail to accomplish its stated purpose in that optom- etrists are neither authorized by law nor qualified by education to admin- ister medicine, or diagnose diseases of the eye; PAGENO="0233" OPTOMETRY 229 3. Although the New Jersey Academy of Ophthalmology and Otolaryngol- ogy does not recommend the purchase of ready-to-wear reading glasses,'such legislation would deprive the public of the right to avail itself of cheap and harmless magnifying aids to assist in reading without the expense of eye examination by an ophthalmologist or optometrist. And, be it further resolved, That the Senate of the State of New Jersey is re- spectfully requested to reject the enactment of each of these bills. In Witness Whereof the Academy of Ophthalmology and Otolaryngology of the State of New Jersey has caused this Resolution to be signed by its Secretary- Treasurer this 5th day of February, 1967. JoHN SCILLIERI, M.D., Secretary-Treasurer. The following statement was made by Arthur C. TJnsworth, M.D., before a Joint Committee of the Senate and House of Representatives of the State of Connecticut. This was in opposition to a bill introduced by the optometrists to outlaw the sale of ready-to-wear magnifying spectacles. It will be noted that Dr. Unsworth is Senior Staff Member of the Hartford Hospital, a member of the American Medical Association, the American College of Surgeons, and has received many other honors. Particular attention is called to his statement- "It is the optometric group which has proposed this legislation, for which I believe the public good is not the real purpose of bill 984. It is an economic measure to bring the merchandising of all appliances relating to vision under their control. "As a person becomes older the accommodative power of the eye is less elastic and one's arms are just not long enough to read the telephone book and the newspaper. I do not believe that the public should be denied the right to go to a store and pick out a cheap pair of magnifying glasses to enable him to read. The public should not be compelled to pay for an examination by an eye specialist and then buy an expensive pair of reading glasses if be can do it just as well at a fraction of the cost by picking out a readymade pair of glasses which suit him. If in trying on glasses he finds that his vision is not satisfactorily corrected he can seek medical eye examination, be- cause the optometrist is not qualified to diagnose an eye disease anyway. "I might add that it is not true that the wearing of the wrong pair of glasses will permanently impair vision or produce a disease of the eye or cause blindness." The same statement is borne out `by Derrick Vail, M.D., who is the head of the Department of Ophthalmology at Northwestern University Medical School and Editor-in-Chief of the American Journal of Ophthalmology. During the war he was Senior Consultant in Ophthalmology to the United States Army in the European Theater of Operations. He has written a book entitled "THE TRUTH ABOUT YOUR EYES," a Medical Book for the Layman, in which he says, among other things- "But the wearing of wrong glasses will not lead to any organic (anatomi- cal) change in any part of the eye. It will not produce any permanent dis- eased condition. These dogmatic statements are based on the daily experience of many ophthalmologists. The fallacy of the statement that `your eyes can be ruined if your glasses are wrong,' used as scare-head. advertising, is a very common one. Don't believe it for one minute. Wrong glasses can blur your vision, make your eyes uncomfortable, bother you in many ways, such as causing burning and irritation o'f the lid margins, but they cannot effect any change in your eyes, let alone `ruin them'." (Page 54). Mr. WEIR. Thank you, sir. Our primary objection'is based on the ground that this bill does de- prive the public of freedom of choice in the selection of optical aids at considerable expense and, in our opinion, no corresponding benefit. There is no state in the union that prohibits the sale of such glasses, that is, eyeglasses, magnifying glasses put in a frame. We base this on four points: One, the proposal to eliminate the sale of ready-to-wear reading glasses so designed by organized optometry to eliminate competition. PAGENO="0234" 230 OPTOMETRY Second, the ready-to-wear magnifying spectacles play an important role in the comfort of mankind. Third, these glasses are safe to wear. Fourth, the merchandising and wearing of these glasses is approved by government authority. Mr. SIsK. Would the gentleman explain to which gla.sses he is referring? Mr. WEIR. These (pointing) are magnifying glasses that can be used for reading purposes but they are placed for convenience in frames, primarily used for the benefit of the aged. Mr. SIsK. I wanted to get that cleared up. Are they exempt as sun- glasses and other types? Mr. WEIR. I will show you the type of glasses that I mean (handing up samples.) These will merchandise from $1.95 to $3.50. They look like regular glasses. They are in all styles, "granny" type or regular type glasses. They really are magnifying glasses, not prescription glasses, merely placed in a frame for convenience. You could hold then~ out like this as you do many magnifying glasses or put them on your face. Referring back to one of the original reasons for the prohibition of the sale of these glasses, if they were provided for in the District of Columbia this would be at variance with the law as it exists in the State of Maryland and in the State of Virginia. That completes my ba.sic summary. This pair is for reading purposes only. Mr. SIsK. I do not know how anybody could wear these. I can't see my way around the room in them. Maybe somebody can. I don't know. Mr. WEIR. They are utilized for only the person that could. They go in the store and pick out any one. Use it as you would a magnifying glass. These glasses a.re manufactured by the same firms that manu- facture regular glasses you or I may wear, such as Bausch & Lomb, Pennsylvania Optical. Mr. SIsK. Have you completed your statement? Mr. WEIR. Yes, sir. Mr. SIsK. I really do not have many questions. I am a little con- cerned the Board of Trade would oppose what. we are thinking of doing here, that is, to protect the people locally from the standpoint of visual care. Having been here and dealt with the Board of Trade, I am rather astonished, Mr. Weir, they would take a position in oppo- sition to anything that would enhance and improve health care. Cer- tamly there is nothing in my opinion that we would be more concerned about than our eyes. I doubt there is anything more precious either to a child or adult.. I can understand that you might disagree with some portions of the bill but. not oppose upgrading the eye care in the District; that just doesn't seem to be of benefit. to the Board of Trade. That is about the only comment I can make. I would ask the gentleman this one question. Does the gentleman himself feel that permitting the sale of this kind of glasses is really in the best interests of the public? Mr. WEIR. Icertainlydo. PAGENO="0235" OPTOMETRY 231 Mr. SIsK. 1-lave you tried any of these? Mr. WEIR. As is evidenced by every state of the union, this type of sale is not prohibited. Mr. SIsK. I question that. I am not questioning your testimony at the moment but I think that there are some state laws in connection with this prohibition. It may be that I am in error. That is all I have. Does the gentleman from Maryland have any questions? Mr. GUDE. In looking at your testimony here, Mr. Weir, the state- ment, it says that the Metropolitan Washington Board of Trade di- rects its opposition to one particular aspect of these proposals. Is it that the Board of Trade is just considering one particular provision of this? Mr. WEIR. At this point this is the only position the Board of Trade has taken with reference to the buyer. Mr. GimE. It is just objection to this type of merchandise? Mr. WEIR. That is right. We feel this deprives from the public the privilege of purchasing this kind of merchandise. That is the only position we are taking in the statement. Mr. SIsK. Let me stand corrected then because I understood from your oral statement-unfortunately I hadn't read the written state- ment-that you were opposed to the entire bill. I was a little disturbed that the Board of Trade would attempt to take a position here on a rather comprehensive bill. I can understand the concern of the commercial establishments who might lose a few sales. I am not sure that this should be permitted. Mr. WEIR. You are permitted, of course, to buy magnifying glasses in other forms and this is merely an adaptation of that which permits the person to put on this if it suits their purpose. I might also say in the testimony further there is an indication that it is not damaging to the eye. It is not harmful to the eye. That has been proven medically. Mr. SIsK. Thank you, Mr. Weir, very much for your testimony. Your statement will be made part of the record. With that, the committee stands adjourned until 10:00 o'clock Fri- day morning, or as otherwise advised. (Whereupon, at 5:32 p.m., the subcommittee was adjourned, to reconvene at 10:00 a.m., Friday, August 18, 1967.) PAGENO="0236" PAGENO="0237" OPTOMETRY FRIDAY, AUGUST 18, 1967 HoUsE OF REPRESENTATIVES, SUBCOMMITTEE No. 5 OF THE COMMITTEE ON THE DISTRICT OF COLUMBIA, Washington, D.C. The Subcommittee met, pursuant to recess, at 10 a.m., in Room 1310 Longworth House Office Building, Hon. B. F. Sisk (chairman of the subcommittee) presiding. Present: Representatives Sisk, Jacobs, and Gude. Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel; Sara Watson, Assistant Counsel; and Leonard 0. Hilder, Investigator. Mr. SISK. Subcommittee No. 5 will come to order for the continua- tion of hearings on bills concerning the practice of optometry in the District of Columbia. On the last day of the hearings we skipped around on our witnesses list. Today, we want to hear in order those remaining on the list. Our first witness this morning will be Mr. Jerry A. Miller, Executive Secre- tary, Guild of Prescription Opticians of America, Incorporated, the Guild of Prescription Opticians of Washington, D.C., and the District of Columbia Association of Dispensing Opticians. We will be happy to hear from you now, Mr. Miller. The subcommittee wishes, if at all possible, to complete our list of witnesses today, and I am going to request that we follow the 10-minute~ rule. I understand, Mr. Miller, that you do have a statement here. With- out objection your entire statement will made a part of the record. You may summarize with the thought that the Subcommittee will consider your entire statement. You may proceed. STATEMENT OP JLRRY A. MILLER, EXECUTIVE SECRETARY, GUILD OP PRESCRIPTION OPTICIANS OP A.MERICA, INCORPO- RATED, APPEARING ON BEHALF OP THE NATIONAL ASSOCIA- TION AND ITS WASHINGTON APPILIATE, THE GUILD OP PRESCRIPTION OPTICIANS OP WASHINGTON, D.C., AND THE DIS- TRICT OP COLUMBIA ASSOCIATION OP DISPENSING OPTICIANS; ACCOMPANIED BY 3~OSEPH STOUTENBURGH, SPECIAL COUNSEL, AND ROBERT W. BURTON, COUNSEL Mr. MILLER. Mr. Chairman and members of the Subcommittee. I appear in opposition to H.R. 12276 and other substantially simi- lar bills relating. to the practice of optometry in the District of Columbia. 82-7~4 O-67----i6 233 PAGENO="0238" 234 OPTOMETRY My name is J. A. Miller, I speak as Executive Secretary of the Guild of Prescription Opticians of America, Inc. on behalf of our national association and our Washington, D.C. affiliate, the Guild of Prescription Opticians of Washington, D.C. The Guild of Pre- scription .0itic~aiis is a national non-profit membership corporation representing skilled and ethical dispensing opticians throughout the United States, including the District of Columbia. Mr. Paul Pattyson, President of the Washington, D.C. Guild and also president of the District of Columbia Association of Dispensing Opticians planned to be here this morning. He has been here on other days of the hearing, but, unfortunately, lie has been in an automobile accident and is unable to be present today. Mr. Alfred Teunis will be here a little later. He has been delayed. These opticians has asked me to speak for them and for other opticians similarly situated. These opticians are engaged solely in the dispensing of eyeglasses, and/or contact lenses and other optical materials. They and their employees do not refract eyes nor are they in any way associated with any refractionist, whether he be physician, surgeon, osteopath and optometrist. Also with me is Joseph Stoutenburgh of the firm of Dawson, Griffin, Pickens and Riddell, special counsel for our national association, and Robert W. Burton, counsel for our local organization. Since it is ijiy understanding that the transcript of the hearings last year on H.R. 12937 and similar bills will be made part of the pro- ceedings of this hearing, I will direct my remarks primarily to the new- provisions contailled in H.R. 12276, which has been referred to as a cure-all. Gentlemen, it is not. At this time, howev~r. I wish to submit for the record a copy of my letter of March 31, 1966 which-was hand-delivered to the Com- mittee and toeach membei~ of the Committee but which was not printed in either edition of the transcript of the hearings on H.R. 12937. This letter, which was prepared in response to a request by the committee, contains our suggested amendments which are equally applicable to the bills under consideration as they were to the bills considered by the 90th Congress. Mr. Chairman, will this letter be made part of the transcript? Mr. Sisi~. W'ithout objection, that ma.y be submitted for the record and will become a part of the transcript. Mr. MILLER. Thank you. Mr. Sisic. Do I understand that last y~ar you requested a letter to be macic part of the record, and you did turn it over but, however, we failed to make it a part of last `year's transcript? Mr. MILLER. That is correct, Mr. Chairman. Mr. SIsK. Let me say, as one member of this subcommittee, although last year I was not chairman, I am sorry that happened. I do not know what the circumstances may have been; but, at any rate, your, letter will be made a part of the record. You may proceed. Mr. MILLER. We look with favor on efforts to upgrade and improve the practice of optometry but this bill goes farther than that. It takes away traditional rights of dispensing opticians who have an older place in the history of eyecare than the optometrist and restricts his legitimate and appropriate business of serving the public both to PAGENO="0239" OPTOMETRY 235 the detriment of the optician and the public need. The bill should deal simply and straightforwardly with the practice of optometry alone. The present bill, including H.R. 12297, both are, in the main, just as unacceptable as the old bill, both to the Medical Association and to the Guild. Now, I wish to comment on the objectionable features which have been added or changed in the new bills. SECTION 2 In Section 2 of H.R. 12276 as well as in other se~tions of the bills, there is increased preoccupation with identifymg optometry as a profession. Defining optometry "as a profession" seems designed to give optometry an unnecessary professional status. We see no need or necessity in legislating a profession. The medical profession fills this need in the field of eyecare. SECTION 3 In Section 3 (2) of H.R. 12276, the practice of optometry is defined to mean, "any one, any combination, or all of the following acts or practices as they are included in the curriculum of recognized schools and colleges of optometry." The definition then lists such acts or practices. What is the significance of the clause "as they are included in the curriculum of recognized schools and colleges of optometry" ~ As Mr. Horton has already noted, the meaning is indefinite because* by changing the subject matter of a course dealing with one of the practices listed in the definition, the definition of the pra~tice of optometry could be changed without recourse to the Congress and so might include inconsistent and objectionable practices. The bill should be amended to eliminate the reference to curriculum as is the case in H.R. 732 and H.R. 395. SECTION 4 In Section 4, (7) which deals with the subject matter of examina- tions for an optometric license, there is included the subject of "practical optometric dispensing". We suggest that the word opto- metric be deleted and the word optical or ophthalmic be substituted. The reason for this request is that these bills treat the field of eyecare as though it were the exclusive domain of optometry, whereas the optician, as explained in detail in my statement on H.R.. 12937, was practicing his skills centuries before there was an optometrist-before the word "optometry" was ever invented. This insistence upon calling almost everything in the eyecare field "optometric" paves the way psychologically and legislatively for the unwarranted restrictions which *these bills place upon the practice of dispensing opticians. SECTION 8 Section 8(a) (4) prohibits advertising the price or cost or any refer- ence thereto of ophthalmic material of any character. While we do not object to the prohibition against price advertising of prescription eye- glasses and contact lens to the general public, the prohibition in this subsection is so broad that it is unnecessarily restrictive. PAGENO="0240" 236 OPTOMETRY it is restrictive because there is no deftnition of what constitutes optometric or ophtnaimic materials, as Mr. Wnitener anu otners nave aireaay polnteu out. in anotner section ~ection ~(~a) ~oj), une term "optical" material is used-to further confuse the issue. Are optometric materials, ophtnaiinic materials anu optical maceria.is one anu tile same or umerent These terms neeu to be ueiinect for it cerua.huy cannot be the mtent 01 tile pioponenus to pronioit auveru~uig tile priee or cost or any rererence thereto of such maueriais as lens tissue, iens cleaner, mag- nmers, bmocruars, Murme and eyeglass cases. Actuany, tne use 01 tne aujeeci~e ~`op~on1etric" to describe any kind of materials is incongruous. A profession, and this bin would ueclare optometry "a protession", by its nature deals in services, not products or materials. `.Lhe word ~`optometric" should be deleted. Again, how- ever, the word "optometric~ is used to pave the way for the iegisiative restrictions on opticians proposed under this bill. section ~ (a) (o) makes it unlawrul to solicit patients by means of offering credit tor the purpose of obtaimng patronage. rllhere are dignined and modest advertisements by dispensing opticians in the Yellow Pages which carry tile trademark or insignia ol Central Charge. Dispensing opticians also display such a sign on their win- dows. such a display is a public service and yet this bill, in the inter- estsof "professional' optometry, prohibits such display. Section 8(a) (6) is unnecessary because the Federal Consent Decree issued by Judge La Buy in the optical rebating cases and the Federal Trade Commission Thnes for the Optical Products industry amply cover rebates and similar stratagems. Section 8(a) (7) makes it unlawful for anyone other than a licensed optometrist, physician or osteopath to hire an optometrist. An optome- trist is defined in Section 3(3) as one who is licensed in the District of Columbia. if a license-holding optometrist should decide to go to work for a dispensing opticia.n as an optician and not as an optometrist and if this optometrist did not want to give up his optometric license, the optician employer would be subject to a fine up to $500 or for a second offense up to $1,000, or one year in jail, or both. This is an unreason- able and perhaps an unconstitutional restriction. Section 8(a) (8) makes it a misdemeanor for an optician to display any sign offering ophthalmic materials for sale in violation of any regulation of the Commissioners issued under authority of section 10 of this bill. This clause, therefore, must also be read in conjunction with Section 10(a) which prohibits any advertisement which is not modest. Why should the commissioners under a bill entitled "The District of Columbia Optometry Act" be able to regulate signs in the stores of opticians and advertisements by opticians who do not practice nor attempt to practice optometry. This again is in keeping with other sections of the bill which identify virtually almost everything in the eyecare field as the sole province of "professional" optometry. These restrictions should be eliminated. SE~I'ION 9 In Section 9(a) (3) it is stated that the act shall not apply to an individual licensed in another jurisdiction who is in the District of Columbia to make a clinical demonstration before a professional PAGENO="0241" OPTOMETRY 237 society, convention, professional association, school or college, or agency of government. We see at least two difficulties here. First, the non-applicability clause is limited to an individual licensed in another jurisdiction. The inference is that it applies to one who holds an optometric license, for certainly we are not speaking about a plumber or a barber licensed in another jurisdiction. However, it is not specific. Suppose an unlicensed optician should be invited to give a clinical demonstration of the fitting of contact lenses before a Government agency. This optician could well be an international authority on contact lens fitting, yet under this bill if he gave such a demonstration he would be subject to criminal prosecution and penalties. A second objection is that this subsection presumably enumerates all the circumstances under which a clinical demonstration may be made. There are other possibilities besides those listed, for instance, a seminar. Suppose an optometrist licensed in another jurisdiction should be invited to conduct a clinical demonstration in the fitting of contact lenses during an opticians' seminar on the subject here in Washington. This optometrist then would be subject to the penalties listed in Section 8. In short, this subsection fails to cover all the situations where exemp- tion should be properly made. Both of the situations which I describe are perfectly normal, reasonable and necessary in the practice of opticianry, yet in both instances the clinical demonstrator would be subject to arrest. This is unfair and ridiculous and should be changed. Let me say again, these bills treat the eyecare field as though it were the optometrist's exclusive, domain. In Section 9(c), these bills pretend to say that this proposed optom- etry act does not apply to the dispensing optician. For opticians this is the crucial paragraph. It reads: This Act, other than section 8, shall not apply to any person who fills the writ- ten prescription of a person licensed to practice optometry, medicine or oste- opathy, or who repairs or restores eyeglasses or spectacles to their previous condition of usefulness, or who practices optometry as defined in section 3(2) (f), and who does not otherwise practice optometry, but this subsection shall not be deemed to authorize such a person to fit contact lenses. Before commenting on this section, I wish to point out that there is a serious unintentional error in Section 9(c) as it appears in H.R. 12276. On page 13, line 23, the correct reference is to section 3(2) (e) and not (f). Will this change be made? Mr. SI5K. Your testimony will be taken into consideration. We will check that language. Mr. MILLER. What are our objections to this purported non-appli- cability clause? First, this exemption for opticians does not apply to Section 8, which would make it unlawful for the optician to engage in at least five of the normal and important functions which are all in the public interest. Secondly, this clause states "this act . . . shall not apply to *any person", namely, an optician, "who fills the written prescription of a person licensed to practice optometry, medicine or osteopathy." We oh- ject to this clause because the requirement that the prescription must be written is unreasonable and will work unnecessary hardship on optlcians, on residents of the District and on the ten to fiften million visitors who come to Washington each year. If a visitor breaks his PAGENO="0242" 238 OPTOMETRY lenses, why should this visitor be required to do without his glasses until he gets home or.be forced to have his eyes refracted while in this city? Why should this visitor be subjected to this hardship when `any optician could easily get the person's prescription over the telephone and make the glasses'? Why should residents be subjected to similar in- conveniences? Furthermore, this is not a. matter for regulation under an optometry law. Thirdly, there is the question whether an optician under 9 (c) is per- mitted to fill prescriptions written by an optometrist or a physician or osteopath not licensed in the District of Columbia. As Mr. Whitener has already pointed out, 9 (c) must be read together with Section 3(3) which states that "as used in this Act `optometrist' means . . . an inch- vidual licensed to engage in `the practice of optometry in the District of Columbia." Therefore, it is deffnite that. Section 9 (c) prohibits an opti- cian from filling a prescription written by `an optometrist who is not licensed in the District of Columbia. This Section 9(c) could also be interpreted to prohibit the optician from filling the prescription of a physician or osteopath not licensed in the District., for while the bill does not give any definition of physicians or osteopath, it always quali- fies him as one "licensed under the laws of the District of Columbia." We objected very strongly to this prohibition last year as did sev- eral members of the Committee, District officials and other witnesses. Amending language was submitted but the present bill has not clarified this point. Fourthily, Section 9(c) goes on to say that this act shall not apply to any person "who repairs or restores eyeglasses or spectacles to their previous condition of usefulness." What does this mean? It would probably permit the optician to put a new screw in a temple. But would it permit him to put on a new temple? We do not know, because it is not clear. Would it permit. hhn to put on a. new front? We do not know, beca.use it is not clear. Can he put on one new temple a.nd a front or can he replace both temples so long as he does not put on a new front? If he can put on a. new front, which requires remoimt- ing the lenses, why can he not sell the customer a whole new frame? Yet, if he sells a whole new frame, is he doing more than merely restoring a pair of glasses to their previous condition of usefulness? What about restoring lenses to their previous condition of useful- ness?. Suppose you crack the right, lens in your glasses in two equal parts. This clause would permit. the optician to cement. the two parts together a.nd put them back in the frame where the cement might bother your vision; but would it permit the optician without a pre- scription to cluphcate your old lens and give you a new one without any obstruction or interference? It is not clear. Many words were spoken by the proponents of the bill ill the last Congress a.bout why the optician should be prohibited from duplicat- ing lenses and supplying a. new frame. However, the proponents failed to show how such a prohibition is in the interest, of the public. If this bill is intended to permit the optician to supply new frames and to duplicate lenses without a prescription, it should be clearly stated. Unless the optician is penmtted to supply new frames and dupli- cate lenses without a. prescription, it will inflict, serious injury on the public. It will mean that `the eyeglass wearer, unless there is a written prescription, must have his eye examined, whether lie wants to or PAGENO="0243" OPTOMETRY 239 not, each and every time he needs a new or extra pair of prescription glasses, whether he just wants a pair with plastic prescription lenses in them to protect his eyes while lie is mowing the lawn or working at a hobby, or whether he needs a pair of prescription sunglasses to do a little girl-watching over the weekend at the beach. A prohibition against the duplication of lenses will do nothing but guarantee that the professional optometrist will get more business at the expense of the public and of the optician. Mr. SIsK. Let me stop you there. You have already consumed 15 minutes. As I said at the beginning, we would like to limit everyone's testimony to ten minutes. I will give you a couple of minutes to summarize. Mr. MILLER. I am speakiug for three separate organizations. I did not bring the three witnesses here. Mr. SIsK. Are you representing any other witnesses that we have listed? Mr. MILLER. No. We asked for one witness only, to conserve the time of the Subcommittee, and I would be the spokesman for the three separate organizations. Mr. SI5K. This procedure is in the interest of saving time. Each witness was notified to follow the rule of 10 minutes. Mr. MILLER. I was not so notified. Mr. SI5K. It is of record. It was so stated. I am trying to be lenient with you, but you have already gone 15 minutes. I will give you about four or five minutes more to summarize; otherwise, Mr. Miller, we will have to cut you off. I prefer not doing that, but., as I said, this entire statement will be a part of the record and will be considered when the Committee has the transcript printed. We may have some questions. I will give you, as I sa.id, four or five minutes more to complete your statement.. It would be appreciated if you do that, especially since this will more than double your allotted time. Mr. MILLER. May I respectfully request some additional time? We have prepared t.his, as we did in that light. Mr. SISK. Your statement will be made a part of the record, as I have explained to you. It is already a part of the record. Now, go ahead. Mr. MILLER. That was true in conilection with the last one. Mr. SIsIc. I do not desire to argue with you this morning. I am trying to be lenient. You have already gone overtime. We will give you an additioi~a.l five minutes. *Mr. MILLER. In view of this change, would you bear with me for a minute, while I go over this, without charging it against my time, while I check this through? Mr. SISK. As I said, I do not wish to be arbitrary. The last tim.e I permitted a gentleman to go over, he took more than the allotted time. I am t.rying to be lenient with you. We do want to finish these hearings today. As I say, your statement will be made a part of the record. It will all be analyzed and read and considered by the Corn- mittee. I will give you time to rearrange your notes. Mr. MILLER. Section 9(c) does not permit the optician to duplicate lenses. We believe it will be nothing but a guarantee to the so-called professional optometrist to get more business at the expense of the public and of the optician. PAGENO="0244" 240 OPTOMETRY The final clause of Section 9(c) prohibits the optician from fitting contact lenses, and I have some very important paragraphs in here which I urge be seriously considered by the Com~mittee, concerning the contributions opticians have made in the contact-tens field, but, despite the invaluable contributions the opticians have made to the public in the contact-lens field, this bill summarily eliminates the dispensing optician as a competing force in the fitting of contact lenses. What kind of justice is that? To conclude my remarks on Section 9(c), this bill gives optometry the rule of the Great White Father who takes away everything dis- pensing opticians own and then in 9(c) the Great White Father parcels out a few tidbits which he knows cannot for long sustain the life of the dispensing optician. The reason why optometry wants to regulate the dispensing optician under this optometry bill has been unspoken. Let me just begin to explain this basic reason by quoting two resolutions passed by the American Optometric Association in June 1954. Resolved that it is the stated policy of the American Optometric Association in convention assembled that the field of visual care is the field of optometry and should be exclusively the field of optometry; and be it further Resolved, that the individual state associations are recommended to make serious study of the optometry laws prevailing in their states to the end that exemptions be restricted, limited and ultimately eliminated and that encroach- ments by untrained, unqualified and unlicensed persons into the exclusive field of optometry be prevented In the resolution just quoted, I wish to point out tknt in the use of the words "untrained, unqualified, and unlicensed persons', that they are the same words that optometry uses to describe the dispensing op- ticians, because opticians are not licensed in 33 states and in the Dis- trict of Columbia. These are the words optometry uses to describe dispensing opticians, because opticians are not licensed, as I have stated, in 33 states and the District of Columbia. It is these words that optometry uses as its excuse to regulate opticians under optometry laws such as 12276. `V\That is not generally known is that the American Optometric As- sociation has a. firntly-established and long-standing resolution on its books opposing the licensing of opticians. It is not generally known that optometrists have opposed bills to license opticians in state legis- lature more than 50 times. Nor is it generally known that optometry ha.s taken legal action against, dispensing opticians hundreds of times for the so-called unlawful practice of optometry under laws which were enacted primarily to regulate the refractive aspects of optometry. In February of this year the Guild of Prescription Opticians spon- sored a national seminar here in Washington on the subject of licens- ing of opticians and invited every organization interested in the sub- ject to Plesent its views. Every organization, regardless of its views, accepted our invitation except the American Optometric Association whose Board of Trustees voted not to participate. The seminar dates were changed so that it. would not. conflict with optometric meetings but no reason was given for not part.icipatmg. Does this suggest that the optometry policy cammot stand the "light of the clay" ? They dis- miss all discussion on the licensing of opticians with the statement that such licensing is not in the public welfare, that there is no public need for it. Yet optometry is adamant that dispensing opticians be regu- lated under an optometry bill such as 12276. PAGENO="0245" OPTOMETRY 241 Before concluding, I wish to call attention to the efforts which opticians and the District of Columbia Government are making to- ward the regulation of opticians. Briefly, here is the story: The Corporation Counsel's Office has given an opinion that the Commissioners have the power to issue regu- lations for opticians. This opinion dated July 27, 1966 is submitted as Exhibit D. The Department of Occupations and Professions has drafted a proposed set. of regulations for opticians and has forwarded them to the Commissioners as an attachment to a memorandum dated April 5, 1967. A copy of this memorandum and attachment is sub- initted as E~chibit E. Our groups have worked closely with the De- partment of Occupations and Professions in drawing up these regu- lations and together we have ironed out most of the major problems. Our revision of the proposed regulations was prepared by Robert MT. Burton, Counsel for the Guild of Prescription Opticians of Wash- ingt.on, D.C., and is submitted as Exhibit F. In this exhibit there is the method I referred to earlier for establishing the qualifications of opticians who fit contact lenses and for regulating the fitting of con- tact lenses by opticians. I am submitting these exhibits I have mentioned for the record. Mr. SI5K. They will be made a part of the record following the insertion of your prepared statement in full. (The prepared statement, accompanied by Exhibits A through F, submitted by Mr. Miller reads in full as follows:) STATEMENT OF J. A. MILLER ON BEHALF OF GUILD OF PRESCRIPTION OPTICIANS OF AMERICA AND GUILD OF PRESCRIPTION OPTICIANS OF WASHINGTON, D.C., AND DISTRICT OF COLUMBIA ASSOCIATION OF DISPENSING OPTICIANS I appear in oppoSition to bill HR. 12276 and other substantially Similar bills relating to the practice of optometry in the District of Columbia. My name is J. A. Miller. I speak as Executive Secretary of the Guild of Prescription Opticians of America, Inc. on behalf of our national association and our Washington, D.C. affiliate, the Guild of Prescription Opticians of Washington, D.C. The Guild of Prescription Opticians is a national non-profit membership corporation representing skilled and ethical dispensing opticians throughout the United States, including the District of Columbia. With me today are Paul Pattyson, President of the Washington, D.C. Guild, and Mr. Alfred Teunis, Chairman of the Board of the Washington, D.C. Guild Mr. Pattyson is also President of the District of Columbia Association of Dis- pensing Opticians. These opticians have asked me to speak for. them, and for other opticians similarly situated. These opticians are engaged solely in the dispensing of eyeglasses, and/or contact lenses and other optical materials. They and their employees do not refract eyes nor are they in any way associated with any refractionist, whether he be physicians, surgeon, osteopath or optometrist. Also with me is Joseph Stoutenburgh of the firm of Dawson, Griffin, Pickens and Riddell, special counsel for our national association, and Robert W. Burton, counsel for our local organization. Since it is my understanding that the transcript of the hearings last year on HR. 12937 and similar bills will be made part of the proceedings of this hearing, I will direct my remarks primarily to the new provisions contained in H.R. 12276, which has been referred to as a cure-all. Gentlemen, it is not. At this time, however, I wish to submit for the record a copy of my letter of March 31, 1966 which was hand-delivered to the Committee and to each member of the Committee but which was not printed in either edition of the transcript of the hearings on H.R. 12937. This letter, which was prepared in response to a request by the committee, contains our suggested amendments which are equally applicable to the bills under consideration as they were to the bills considered by the 89th Congress. Mr. Chairman, will this letter be made part of the transcript? (Exhibit A) PAGENO="0246" 242 OPTOMETRY We look with favor on efforts to upgrade and improve the practice of optometry but this bill goes farther than that. It takes away traditional rights of dispens- ing opticians who have an older place in this history of eyecare than the op- tometrist and restricts his legitimate and appropriate business of serving the public both to the detriment of the optician and the public need. The bill should deal simply and straightforwardly with the practice of optometry alone. Now, I wish to comment on the objectionable features which have been added or changed in the new bills. Section 2. In Section 2 of HR. 12276 as well as in other sections of the bills, there is increased preoccupation with identifying optometry as a profession. Defining optometry "as a profession" seems designed to give optometry an unnecessary professional status. We see no need or necessity in legislating a profession. The medical professions fills this need in the field of eyecare. Section 3. In Section 3 (2) of H.R. 12276, the practice of optometry is defined to mean, "any one, any combination, or all of the following acts or practices as they are included in the curriculum of recognized schools and colleges of optometry." The definition then lists such acts or practices. What is the significance of the clause "as they are included in the curriculum of recognized schools and colleges of optometry"? As Mr. Horton has already noted, the meaning is indefinite be- cause by changing the subject matter of a course dealing with one of the prac- tices listed in the definition, the definition of the practice of optometry could be changed without recourse to the Congress and so might include inconsistent and objectionable practices. The bill should be amended to eliminate the refer- ence to curriculum as is the case in HR. 732 and H.R. 595. Scctiou 4. In Section 4, (7) which deals with the snbject matter of examinations for an optometric license, there is included the subject of "practical optometric dis- pensing". We suggest that the word optometric be deleted and the w-ord optical or ophthalmic be substituted. The reason for this request is that these bills treat the field of eyecare as though it were the exclusive domain of optometry, whereas the optician, as explained in detail in my statement on H.R. 12937, n-as prac- ticing his skills centuries before there was an optometrist-before the word optometry was ever invented. This insistence upon calling almost everything in the eyecare field "opto- metric" paves the way psychologically and legislatively for the unwarranted restrictions which these bills place upon the practice of dispensing opticians. Section 8. Section 8 (a) (4) prohibits advertising the price or cost or any reference thereto of ophthalmic material of any character. While we do not object to the prohibition against price advertising of prescription eyeglasses and contact lenses to the general public, the prohibition in this subsection is so broad that it is unnecessarily restrictive. It is restrictive because there is no definition of n-hat constitutes Optometric or ophthalmic materials, as Mr. Whitener and others have already pointed out. In another section (Section 7 (a) (8), the term "optical" material is used-to further confuse the issue. Are optometric materials, ophthalmic materials and optical materials one and the same or different? These terms need to be defined for it certainly cannot be the intent of the proponents `to prohibit advertising the price or cost or any reference thereto of such material materials as lens tissue, lens cleaner, magnifiers, binoculars, Murine and eyeglasses cases. Actually, the use of the adjective "optometric" to describe any kind of materials is incongruous. A profession, and this bill would declare optometry "a profession", by its nature deals in services, not products or materials. The word optometric should be deleted. Again, however, the word optometric is used to pave the way for the legislative restrictions on opt.icians proposed under this bill. Section 8 (a) (5) makes it unlawful to solicit patients by means of offering credit for the purpose of obtaining patronage. Tl1ere are dignified and "modest" advertisements by dispensing opticians in the Yellow Pages which carry the trade mark. or insignia of Central Charge. Dispensing Opticians also display such a sign on their windows. Such display is dl public service and yet this bill-in the interests of "professional" optometry prohibits such display. PAGENO="0247" OPTOMETRY 243 Section 8(a) (6) is unnecessary because the Federal Consent Decree issued by Judge La Buy in the optical rebating cases and the Federal Trade Commission Rules for the Optical Products Industry amply cover rebates and similar stratagems. Section 8(a) (7) makes it unlawful for anyone other than a licensed optome- trist, physician or osteopath to hire an optometrist. An optometrist is defined in Section 3(3) as one who is licensed in the District of Columbia. If a license holding optometrist should decide to go to work for a dispensing optician-as an optician and not as an optometrist, and if this optometrist did not want to give up his optometric license, the optician employer would be subject to a fine up to $500.00 or for a second offense up to $1,000, or one year in jail, or both. This is an unreasonable and perhaps an unconstitutional restriction. Section 8(a) (8) makes it a misdeameanor for an optician to display any sign offering ophthalmic materials for sale in volation of any regulation of the Commissioners issued under authority of section 10 of this bill. This clause, there- fore, must also be read in conjunction with Section 10(a) which prohibits any advertisement which is not modest. Why should the commissioners under a bill entitled "the District of Columbia Optometry Act" be able to regulate signs in the stores of opticians and advertisements by opticians who do not practice nor attempt to practice optometry. This again is in keeping with other sections of the bill which identify virtually almost everything iii the eyecare field as the sole province of "professional" optometry. These restrictions should be eliminated. Section 9. In Section 9(a) (3) it is stated that the act shall not apply to an individaul licensed in another jurisdiction who is in the District of Columbia to make a clinical demonstration before a professional society, convention, professional association, school or college, or agency of government. We see at least two difficulties here. First, the non-applicability clause is limited to an individaul licensed in an- other jurisdiction. The inference is that it applies to one who holds an optometric license, for certainly we are not speaking about a plumber or a barber licensed in another jurisdiction. However, is not specific. Suppose an unlicensed optician should be invited to give a clinical demonstration of the fitting of contact lenses before a government agency. This optician could well be an international authority on contact lens fitting, yet under this bill if he gave such a demon- stration he would be subject to criminal prosecution and penalties. A second objection is that this subsection presumably enumerates all the circumstances under which a clinical demonstration may be made. There are other possibilities besides. those listed, for instance a seminar, Suppose an optometrist licensed in another jurisdiction should be invited to conduct a clinical demonstration in the fitting of contact lenses during an opticians' seminar on the subject here in Washington. This optometrist then would be subject to the penalties listed in Section 8. In short this subsection fails to cover all the situations where exemption should be properly made. Both of the situations which I describe are perfectly normal, reasonable and necessary in the practice of opticianry, yet in both in- stances the clinical demonstrator would be subject to arrest. This is unfair and ridiculous and should be changed. Let me say again, these bills treat the eyecare field as though it were the optometrist's exclusive domain. In Section 9(c), these bills pretend to say that this proposed optometry act does not apply to the dispensing optician. For opticians this is the crucial paragraph. It reads: `This Act, other thaim section 8, shall not apply to any person.. who fills the written prescription of a person licensed to practice optometry, medicine or osteopathy, or who repairs or restores eyeglasses or spectacles to their previous condition of usefulness, or who practices optometry as defined in section 3(2) (f) and who does not otherwise practice optometry, but this subsection shall not be deemed to authorize such a person to fit contact lenses." Before commenting on this section, I wish to point out that there is a serious unintentional error in Section 9(c) as it appears in HR. 12276. On page 13, line 23, the correct reference is to~ section 3(2) (e) and not (f). Will this change be made? What are our objections to this purported non-applicability clause? First, this exemption for opticians does not apply to Section 8, which would make it unlawful for the optician to engage in at least five of the normal and important functions which are all in the public interest. PAGENO="0248" 244 OPTOMETRY Secondly, this clause states "this act . . . shall not apply to any person" (namely, an optician) "who fills the written prescription of a person licensed to practice optometry, medicine or osteopathy." We object to this clause because the requirement that the prescription must lie written is unreasonable and will work unnecessary hardship on opticians, on residents of the District and on the ten to fifteen million visitors who come to Washington each year. If a visitor breaks his lenses, why should this visitor be required to do without his glasses until he gets home or be forced to have his eyes refracted while in this city? Why should this visitor be subjected to this hardship when any optician could easily get the person's prescription over the telephone and make the glasses? Why should residents be subjected to similar inconveniences? Furthermore, this is not a matter for regulation under an optometry law. Thirdly, there is the question whether an optician under 9(c) is permitted to fill prescriptions written by an optometrist or a physician or osteopath not licensed in the District of Columbia. As Mr. WThitener has already pointed out, 9(c) must be read together with Section 3(3) which states that "as used in this Act `optometrist' means . . . an individual licensed to engage in the practice of optometry in the District of Columbia." Therefore, it is definite that Section 9(c) prohibits an optician from filling a prescription written by an optometrist who is not licensed in the District of Columbia. This Section 9(c) could also be interpreted to prohibit the optician from filling the prescription of a physician or osteopath not licensed in the District, for while the bill does not give any definition of physician or osteopath, it always qualifies him as one `licensed under the laws of the District of Columbia." We objected very strongly to this prohibition last year as did several members of the Committee, District officials and other witnesses. Amending language was submitted but the present bill has not clarified this point. Fourthly, Section 9(c) goes on to say that this act shall not apply to any person "who repairs or restores eyeglasses or spectacles to their previous con- dition of usefulness." What does this means? It would probably permit the optician to put a new screw in a temple. But would it permit him to put on a new temple? We do not know because it is not clear. Would it permit him to put on a new front? We do not know because it is not clear. Can he put on one new temple and a front or can he replace both temples so long as he does not put on a new front? If he can put on a new front, which requires remount- ing the lenses, why can he not sell the customer a whole new frame? Yet, if he sells a whole new frame, is he doing more than merely restoring a pair of eyeglasses to their previous condition of usefulness? What about restoring lenses to their previous condition of usefulness? Suppose you crack the right lens in your glasses in two equal parts. This clause would permit the optician to cement the two parts together and put them back in the frame where the cement might bother your vision. But would it permit the op- tician w-ithout a prescription to duplicate your old lens and give you a new one without any obstructions or interference? It is not clear. Many w-ords were spoken by the proponents of the bill in the last Congress about why the optician should be prohibited from duplicating lenses and supply- ing a new frame. However, the proponents failed to show how such a prohibition is in the interest of the public. If this bill is intended to permit the optician to supply new- frames and to duplicate lenses without a prescription, it should be clearly stated. Unless the optician is permitted to supply new frames and duplicate lenses without a prescription, it w-ill inflict serious injury on the public. It will mean that the eyeglass w-earer, unless there is a w-ritten prescription, must have his eyes examined-whether he wants to or not-each and every time he needs a new- or extra pair of prescription glasses, whether he just wants a pair with plastic prescription lenses in them to protect his eyes while he is mowing the law-n or w-orking at a hobby, or w-hether he needs a pair of prescription sunglasses to do a little girl-w-atching over the weekend at the beach. A prohibition against the duplication of lenses will do nothing but guarantee that the "professional" opton1etrist will get more business at the expense of the public and of the optician. The clause in 9(c) as it regulates to restoring eyeglasses to their previous con- dition of usefulness is ambiguous. It will cause ridiculous difficulties. It will work hardship on the public, and it will seriously limit the traditional services and business of the optician. Fifthly, Section 9 (c) then states "This act . . . shall not apply to any per- son . . . w-ho practices optometry as defined in section 3 (2) (e)." (The sub- PAGENO="0249" OPTOMETRY 245 paragraph is corrected from "f" to "e" as previously mentioned.) Section 3 (2) (e) defines part of the practice of dispensing opticians. We do not practice op- tometry. We do not wish to practice optometry and we do not wish to be charged with practicing optometry, even by way of an exception. We are dispensing op- ticians in our own right by virtue of our noble heritage and by virtue of the unequalled public service dispensing opticians have rendered for centuries. The final clause of Section 9 (c) prohibits the optician from fitting contact lenses. This clause `should be eliminated because, again, the proponents of this bill are trying to take away from the optician his traditional function of fitting contact lenses upon `the prescription of an ophthalmologist, the specialist of the medical profession in eyecare. We believe that the District of Columbia should have regulation's on the fitting of contact lenses by opticians. We also believe that those rules should be as strict as, but no niore strict thaii, rules worked out at a conference between the Section on Ophthalmology of the District of Columbia Medical Society `and rep- resentatives of the Guild of Prescription Opticians and other opticians who dils- pense contact lenses. A copy of these rules is submitted as Exhibit B. Further- more, w-e believe that the qualifications of opticians who fit contact lenses in the District of Columbia should be established. One method for doing this will be found in Exhibit F which will be submitted later. The man who designed and introduced to America the first successful all- plastic contact lenses was a dispensing optician and a member of the Guild of Prescription Opticians. The man who holds the controlling patents on the present day contact lens was a dispensing optician. Dispensing opticians have made many other valuable contributions to the fitting of contact lenses as contained in my testimony last year. The indispensable role of the dispensing opticians is de- scribed in a recent article by Barnet R. Sakler, M.D., President of the American Association of Ophthalmology. A copy of this article is submitted as Exhibit C. Despite the invaluable contributions dispensing opticians have made to the public in the contact lens field, this bill summarily eliminates the dispensing optician as a competing force in the fitting of contact lenses. What kind of justice is that? To conclude my comments on Section 9(c), this bill gives optometry the role of the Great White Father who takes away everything dispensing opticians own and then in 9(c) the Great White Father parcels out a few tidbits which he knows cannot for long sustain the life of dispensing opticians. Section 9(d) (4) states that "nothing in this act shall be deemed to pre- vent . . . a person from acting as an assistant under the direct personal super- vision of a person licensed by the District of Columbia to practice optometry, medicine, or osteopathy provided that such assistant does not perform an act which would require professional judgment or discretion." The Medical Society representatives have already commented on this in detail and we agree with their views. What is the effect of this on dispensing opticians? The bill is so restrictive of the practice of the dispensing optician that he will be driven into the physi- clan's office to avoid violating the law. This paragraph then gives optometry the power to follow him into the physician's office to see that be performs nothing but menial tasks. The words "direct and personal" and e~'erything after the word "osteopathy" should be eliminated. Section 9(d) (6) states that "nothing in this act shall be deemed to prevent persons from supplying spectacles or eyeglasses on prescription from a ijerson licensed to practice optometry, medicine or osteopathy." Since Section 9(c) requires a written prescription, what is the meaning of 9(d) (6) which omits the word "written"? This is a "make believe" clause, that is, one which is in- tended to make the optician believe he is getting something but which in fact is negated by Section 9(c). The bill while purporting to regulate exclusively the practice of optometry, is so restrictive and all-encompassing in the field of eyecare and grants so exten- sive a monopoly to the optometrist, that the optometrists have found it necessary to spell-out a specific exception to its terms in Section 9(d) (7) merely to permit opticians and drug and department stores to sell customary protective eyewear and everyday non-prescription sunglasses without the requirement of a written prescription. This concludes our comments on the specific objectionable clauses in H.R. 12276. In order to understand the complete picture of the monopolistic nature of this bill, several additional comments are necessary. PAGENO="0250" 246 OPTOMETRY The first deals with the question of profits, which has received a lot of abuse during these hearings. Profit can be defined in a variety of ways, depending on the circumstances and depending on the intent of the one giving the definition. However, all definitions of profit reduce themselves to the net income figure. Any person, as the term is defined in this bill, has the same interest in that net income figure. It applies with equal force to, the optometrist with a $100,000.00 practice as it does to a one man dispensing optician's store with a net income of $10,000,00. Whether their net incomes are obtained from a so-called profit off the sale of glasses or whether it comes from a so-called professional fee, they amount to the same thing-net income. So what difference does it make whether a so-called professional sells his glasses at cost and adds on an extra $10.00 or $15.00 for his services. Is that any different from a dispensing optician adding $10.00 or $15L00 above the wholesale price to the cost of the glasses? In both instances, the additional dollars cover the same type of costs and reimburse the laborer for his labors and skills. The end result is net income or profit. The question of whether the optometrist profits off the sale of glasses is academic. The fact is that 90%, or more, of optometrists today do sell glasses. There is a tie-in between the refraction and the dispensing of glasses. One must question, therefore, whether the optometric patient in general has any freedom to choose where he wishes to have his glasses made. The Code of Ethics of the American Medical Association plainly states that the patient has a right to a copy of his prescription for eyeglasses and that the patient must be given a free choice as to where he wishes to have his glasses made. I do not have access to the optome- tric code of ethics or their rules of practice but the fact that 96% of optometrists sell their own glasses speaks volumes. Section 9(c) gives the optician the right to fill the written prescription of an optometrist licensed in the District of Columbia. This is obviously 4% fact and 96% window dressing-. Contrast the position of the optometric patient who has practically no choice with that of the ophthalmologist's patient. The ophthalmologist's patient first of all does get a choice. Furthermore, he gets the services of two experts in their fields. Most importantly, he has the assurance that an objective judgment has been made on the need for glasses. With net income meaning as much to an optometrist as it does to anyone else, with the optometrist exercising rigid control over the dispensing of glasses to his patients, it is clear that this bill by depriving the optician of his tradi- tional functions will tighten the optometrist's control over the eyecare dollars spent in this city. Evidence before this committee has shown that the optometry law needs to be updated. There has been no evidence introduced tn show that the practice of dispensing opticianry, as such, needs to be regulated under an optometry bill. The reason why optometry wants to regulate dispensing opticians under this optometry bill has been unspoken. Let me begin to explain this basic reason by quoting tw-o resolutions passed by the American Optometric Association in June 1954. "Resolved that it is the stated policy of the American Optometric Association in convention assembled that the field of visual care is `the field of optometry and should be exclusively the field of optometry: and be it further "Resolved, that the individual state associations are recommended to make sen- ous study of the optometry laws prevailing in their states to the end that exemp- tions be restricted, limited and ultimately eliminated and that encroachents by untrained, unqualified and unlicensed persons into the exclusive field of optometry be prevented.. My testimony has show-n that this bill treats the field of visual care as though it w-ere the exclusive province of optometry and it eliminates a dozen or more traditional functions of the dispensing optician by seriously restricting exemp- tions. The fact that optometry says that the field of visual care should be exclu- sively the field of optometry does not make it so nor should the Subcommittee help make it so. Optometrists, ophthalmologists and dispensing opticians share the field of visual care-each performing a definite public service. The subcom- mittee must not allow- this bill or any similar bill out of subcommittee. In the resolutions just quoted. I wish to point out the use of the w-ords "un- trained, unqualified and unlicensed persons". These are the w-ords optometry uses to describe dispensing opticians, because opticians are not licensed in 33 states and the District of Columbia. It is these words that optometry uses as its excuse to regulate opticians under optometry laws, such as 12276. PAGENO="0251" OPTOMETRY 247 What is not generally known is that the American Optometric Association has a firmly-established and long-standing resolution on its books opposing the lirncensing of opticians. It is not generally known that optometrists have opposed bills to license opticians in state legislatures more than 50 times. Nor is it generally known that optometry has taken legal action against dispensing opticians hundreds of times for the so-called unlawful practice of optometry under laws which were enacted primarily to regulate the refractive aspects of optometry. In February of this year the Guild of Prescription Opticians sponsored a na- tional seminar here in Washington on the subject of licensing of opticians and invited every organization interested in the subject `to present its views. Every organization, regardless of its views, accepted our invitation except the Ameri- can Optometric `Association whose Board of Trustees voted not to participate. The seminar dates w-ere changed so that it would not conflict with optometric meetings but not reason was given for not participating. Does this suggest that the optometric `policy cannot stand the "light of day"? They dismiss all discus- sion on the licensing of opticians with the statement that such licensing is not in the public w-elfare, that there is'no public need for it. Yet optometry is adamant that dispensing opticians be regulated under an optometry bill such as 12276. Does not this list of facts suggest an unspoken reason for regulating dispensing opticians under this bill? If it is the public that optometry is interested in, then put a clause in this bill stating this Act shall not apply to dispensing opticians, period. Then simultaneously, let the American Optometric Association declare itself in favor of licensing of opticians and let both the American Optometric Associati'on and the District of `Columbia Optometric Society unequivocally sup- port a concurrent dispensing optician's bill solely for the regulation of opticians. The evidence submitted substantiates the statement that optometry seeks to monopolize the field of eyecare in the District of Columbia through this bill. Before concluding, I wish to call attention to the efforts which opticians and the District of Columbia government are making toward the regulation `of opticians. Briefly, here's the story. The Corporation Counsel's office has given an opinion that the Commissioners have' the power to issue regulations for opticians. This opinion dated July 27, 1966 is submitted as Exhibit D. The Department of Occupations and Professions has drafted a proposed ,set ,of `regulations for opticians and has forwarded them to the Commissioners as an attachment to a memorandum dated April 5, 1967. A copy of this memorandum and attachment is submitted as Exhibit E. Our groups have worked closely with the Department' of Occupations and Professions in drawing up these regulations and together we have ironed out most of the major nroblems. Our revision of the proposed regulations was prepared by Robert W. Burton, Counsel for the Guild of Pre- scription Opticians of Washington, D.C., and is submitted as Exhibit F. In this exhibit there is the method I referred to earlier for establishing the qualifications of opticians who fit contact lenses and for regulating the fitting of contact lenses by opticians. I draw these regulations to your attention because we feel it highly desirable that opticians be regulated. We have made substantial progress. While we have no objections' to updating' the existing optometry law, we do strongly object to having the practice of opticianry controlled by an optometry law which virtually monopolizes the field. We strongly object to defining optometry and regulating it as though it and it alone bears the sole responsibility for the eyecare of the people of the District of Columbia. We strongly object to the bill treating dispensing opticians almost as though they did not exist, while taking away from opticians much of their essential and traditional practice under the guise that all the areas I have discussed are solely optometric in character and subject solely to optometric regulation. Opticians are proud of their heritage. They are proud of the service they have rendered in the District of Columbia. They want to be able to continue this service, and improve this service if and asnecessary, but they want it done under their own regulations or law. Opticians must and will oppose these bills and any other bills which contain the proposed all-encompassing definition of optometry in Section 3, and which contain the inadequate language of the non-applicability clause in Section 9(c). We had submitted amending language to both sections with my letter of March 31, 1966, and we respectfully request the adoption of such amendments should the committee decide for any reason to take favorable action `on any of the pending bills. I want to single out `for your special attention our proposed amendment to Section 9 paragraph (c). It reads: PAGENO="0252" 248 OPTOMETRY "This Act shall not apply to any person who as a dispensing optician fills the prescription of a physician, surgeon or an optometrist for eyeglasses or spectacles, or to any person who fits contact lenses only on the written prescription and at the direction of a physician or surgeon, or to any person who duplicates, repairs, replaces or reproduces previously prepared lenses, eyeglasses, spectacles, or appurtenances thereto, including their adaptation to the wearer, and who does not practice or profess the practice of optometry." Conclusion In conclusion, there are three reasons why HR. 12276 and other substantially identical bills should not be reported out of this Subcommittee. 1. They would substantially change the traditional pattern of eyecare in this city-without sufficient justification; 2. They would-again without justification-place unbearable hardships on dispensing opticians forcing some of them either out of business or into the suburbs; 3. Instead of being in the public interest, the bills would place unreasonable and ridiculous burdens of expense and inconvenience upon the general public. ExHIBIT A GUILD OF PREscRIPTIoN OPTICIANS OF AMERICA, Ixc., Washington, D.C., March 31, 1966. Hon. JOHN DOWDY, Chairman, Subcommittee No. 4, Committee on the District 01 Columbia, U.S. House of Representatives, DEAR MR. CHAIRMAN: During our testimony before your Subcommittee March 23rd on H.R. 12937 and its companion bills, we pointed out that- a. this bill will substantially change the traditional patterns of visual care in this city; b. this bill will put out of business many opticians in the District; and c. this bill will work to the detriment of the public. These objections stem from the fact that the definition of optometry is so broad and all inclusive as to require opticians to obtain an optometric license in order to continue performing services which have traditionally been performed by opticians in the District for generations-in one instance for as many as 111 years. It is true that the bill purports ot give opticians certain exemptions, but the limited nature of the exemptions will give optomery in the District a virtual monopoly over the traditional functions of opticians. For these reasons Acting Chairman Sisk and Congressman Harsha invited us to submit amendments. The following amendments are submitted on behalf of the Guild of Prescription Opticians of America, the Guild of Prescription Op- ticians of Washington, D.C., .the constituent members of these organizations in the District of Columbia, and other opticians similarly situated. First, we submit an amended Section 9(c) which, if adopted, will adequately exclude the dispensing optician from the application of the Act-thus pre- serving his traditional function in the District of Columbia. Our proposed amend- ment follows: "Section 9(c). This Act shall not apply to any person who as a dispensing optician fills the written prescription of a physician, surgeon or an optometrist, or to any person who fits contact lenses only on the written prescription and at the direction of a physician or surgeon, or to any person who duplicates, repairs, replaces or reproduces previously prepared lenses, eyeglasses, spectacles, or appurtenances thereto, and who does not practice or profess the practice of optometry." Second, we endorse generally all of the proposed amendments submitted by the Medical Society of the District of Columbia with the following clarifications and/or modifications: A. Amend the first sentence of Section 2 to read as follows: "Optometry is hereby declared to be a highly skilled mechanical art involving human vision." B. Amend Section 3(2) as follows: "practice of optometry' is defined to be the application of optical principles through technical methods and devices in the examinations of the human eye for the purpose of determining visual de- fects and the adaptation of lenses or prisms for the aid and relief thereof or PAGENO="0253" OPTOMETRY 249 the prescribing of optical devices in connection therewith; or the prescribing of contact lenses for, or the fitting or adaptation of contact lenses to the human eye." C. Amend Section 4 to read as follows: "Sec. 4(a) The Commissioners shall issue a license to practice optometry in the District of Columbia to any individual who- "(1) is at least twenty-one years of age; "(2) is of good moral character; "(3) is mentally competent; "(4) has satisfied the Commissioners that he has had a preliminary education equivalent to the completion of a four-year course of study in an accredited high school; "(5) has graduated from a school of optometry approved by the Coin- missoners which maintains a course in optometry of not less than five years; "(6) has passed written, oral, and practical examinations as prescribed by the CommisSioners in the following subjects: "(a) Practical optics "(ib) Theoretic optometry "(c) Anatomy and physiology and such pathology as may be applied to optometry "(d) Practical optometry "(e) Theoretic and psysiologic oi~tics. "(f) Theory and practice of orthoptics and visual training "(g) Theory and practice of contact lens fitting "(b) The Board, with the approval of the Commissioners of the District of Columbia, is authorized and empowered to alter, amend, and otherwise change the educational standards at any time, but in altering, amending, or changing said standards the board shall not be permitted to lower the same below the standards herein set forth." D. Amend Section 13(c) to read as follows: "Certificates of visual acuity issued by any duly licensed optometrist shall be accepted by any administrative officer or employee of the Government of the District of Columbia in the per- formance of his duties." B. Amend Section 14 to read as follows: "No officer or employee of the District of Columbia shall, in his administrative capacity, prefer or recommend one class of licensed practitioner over the other for the sole purpose of determining visual acuity." In the foregoing modifications of the proposed amendments offered by the Medical Society of `the DiStrict of Columbia we have taken note of the fact that under `the ex~iSt'ing optometry law the way is open for optometry to increase its educational standards and keep pace wIth scientific progress. This is provided for `through the Commissioners of the District of Columbia and has `twice been sought and granted. We have also taken note of `the need of certificates of visual acuity in admin- istrative functioning of the Governmei~t of the District of Columbin, and that these should be acceptable for administrative purposes when issued by an optome- triSt license'd in any recognized jurisdiction. We strongly urge the adoption of these amendmeilts and those others propo'sed by the Medical Society as being necessary to the public health, welfare and safety in the District of Columbia. Most emphatically in our own intereSts we urge `the exclusion of the dispensing optician from the application of this proposed Act by amending Section 9(c) as sugge'sted in order to preserve his traditional and proven role in the `pattern of visual care in the Nation~s Capital. Sincerely yours, J. A. MILLER. cc: John L. McMillan, Thomas G. Abernethy, Howard W. Smith, William L. Dawson Abraham J. Multer, Basil L. Whitener, James W. Trimble, B. F. Sisk, Charles C. Diggs, Jr., G. Elliott Hagan, Don Fuqua, Donald M. Fraser, Carlton R. Sickles, J. Oliva Huot, George W. Gri'der, John Bell Williams, Ancher Nelsen, William L. Springer, Alvin E. O'Konski, William H. Harsha, Charles McC. Mathias, Jr., Frank Horton, Richard L. Roudebush, Joel T. Broyhill. 82-W4 O-67------17 PAGENO="0254" 250 OPTOMETRY EXHIEIT B THE MEDICAL SOCIETY OF THE DISTRICT OF COLUMBIA, SECTION OF OPHTHALMOLOGY, Washington, D.C. DEAR DOCTOR: At a recent meeting attended by the officers and executive com- mittee of the Section on Ophthalmology of the District of Columbia Medical So- ciety, and representatives of the Guild of Opticians and other opticians who dispense contact lenses, the following observations were made: 1. Opticians or contact lens fitters must make it clear to their customers that they cannot be fitted with a contact lens unless the customer is a patient of an Ophthalmologist and has a recent prescription for contact lenses. 2. It was agreed that the Ophthalmologist should have placed on the bot- tom of his prescription the following: "Patient to contact me upon delivery of contact lens." Of course other pertinent information regarding the re- fraction, as seen fit in the medical opinion of the prescribing doctor should be included. 3. It was further agreed that the Optician should notify the medical doctor in writing when he has delivered the contact lenses to the patient. Please mark your calendar for our first fall meeting, December 7, 1066. Dr. Miles A. Galin, Associate Professor of Ophthalmology Cornell Medical School, u-ill be the guest speaker. MELVIN G. ALPER, M.D., Secretary-Treasurej~. PAGENO="0255" EXHIBIT C The Ophthalmologist and the Optician Barnet R. Sakier, M.D. Cincinnati, Ohio Reprinted from GUILDCRAFT, Vol- ume 4t, Number 3, March, 1967. 251. PAGENO="0256" 252 OPTOMETRY The Ophthalmologist and the Optician The fitting of Contact Lenses by the trained qualified optician or contact lens technician on prescription and supervision of the oph- thalmologist is a subject which is currently controversial, not onis', because of the lack of understanding of the legal and professional responsibilities involved, but also, because of organized, militant legislative and court actions to restrain the optician in this area. In the June 1964 issue of American Journal of Op- tometry, (page 394), the so called American Optometric Association White Paper on Con- tact Lenses states, quote "Optometrists form the only profession which possesses legal author- ization and formal academic training to fit contact lenses" end of quote. This rather eu- phoric and completely irresponsible and erroneous statement points up the Contact Lens problem confronting Medicine and Opticianry. We know and understand the age old impor- tance of the physician-patient-relationship in the practice of medicine, but there is much to learn and understand about relationship of physician and allied ancillary personnel in the practice of ophthalmology, particularly in the field of Contact Lens fitting. The opinions that I will present to you do not necessarily reflect the views of ophthal- mologists generally nor are they at variance with the views of these men. Agreement or disagreement with these opinions I believe, will depend chiefly, on the technical facilities available, and the medical needs of the specific area in which the ophthalmologist js practicing- the determining basic philosophy being "What- ever is done should always be in the patient's best interest". At present there are 11 states (Delaware, Michigan, North Dakota, Oklahoma, Kansas, New Mexico, Indiana, New Je~sey, Oregon, Iowa and Texas) forbidding contact lens work by opticians-prohibited by court decision or interpretation of optometric laws by the State Attorney General (Iowa and Texas). In some of these states however the prohibitions are not enforced (e.g. Indiana). On the other hand there are 10 states in which contact lens fitting is legally permitted (Arizona, California, Florida, Georgia, Kentucky, Hawaii, Nevada, Washing- ton, Rhode Island and Virginia). In New York State, Contact Lens fitting can only be performed by the optician technician in the presence of the ophthalmologist. There are approximately 4700 certified oph- thalmologists practicing in the U.S.A. This number is increased to somewhat over 8000 when you add the group of well trained physi. cians tresting the eve, but not certified by the American Board of Ophthalmology. It becomes apparent at once, therefore, that these physicians This is the text of the speech made by Bareet B. Sakler, M.D., president, American Association of Ophthalmology, at the Licensing and Medicaid Seminar held in Washington, D. C., by the Guild of Prescription Opticians of America, tnc. PAGENO="0257" OPTOMETRY 253 (ophthalmologists) need well trained ancillary personnel if they wish to render the best possi- ble complete eye care to our ever increasing population. Historically, the doctor-technician relation- ship dates back over 100 years, when, in 1827 the first contact lens was suggested by Sir John Herschel, English astronomer and physicist. He constructed a small saucer shaped glass shell for protecting cornea of a physician's pa- tient suffering from diseased eyelids. He did not develop the optical possibilities of this glass disc, it was merely a protective shell. It was not until 1887-(60 years later) after the dis- covery and use of local anesthetics, that casts of anterior segment of the eye could be made. In 1887 F. E. Muller, expert glass blower, Wiesbaden, Germany, constructed a hand blown thin glass shell for a patient of Dr. Saemisch to protect the cornea in an eye where the lid had been surgically removed because of malig- nancy. In 1888 a Swiss physician in Zurich-Dr. A. Eugene Fick coined term "Kontak Brille" (con- tact lens) and fitted them to correct refractive errors. These were hand blown corneal lenses fitted by expert glass blowers, working with physician. Here again, we have technician and ophthalmologist working together. Between 1888 and 1938 investigations were carried on by many men in Germany, Switzer- land and U.S.A. (e.g. S. A. Muller, Wiesbaden, Carl Zeiss Company, Jena Germany and Obrig- Muller in U.S.A.) In 1935 I was completing my residency in ophthalmology at Illinois Eye and Ear Infirm- ary in Chicago and was working -with a tech- nician who many of you may remember-by the name of Hugh Hunter employed by the House of Vision. We were making impres- sions of the anterior curvature of cornea and sclera, and fitting patients with molded scleral lenses made of glass. It was a time consuming and arduous procedure with few patients being fitted happily. Patients with irregular scieras could not be fitted at all. Corneal edema due to limbal pressures-turbidity of the artificial precorneal layer of fluid (ph)-difficult to reg- ulate made the procedure a very unsatisfactory one. The lenses were large, uncomfortable, and cosmetically poor. Ophthalmologists tended to lose interest in contact lenses except for cases of keratoconus and a few other special indications. These cases were usually referred to trained ophthalmic technicians who continued to work with these highly motivated patients. In 1938 with the development of plastics, Obrig and Muller designed and constructed the first molded plastic scieral lenses made of methylmethacrylate (plexiglass-lucite) which was about 65% lighter in weight then the former thin glass lens. These scleral lenses (lacrilens) were used with some degree of success for a few years and are still being used in selected cases (athletes). The small corneal lens had been known since 1890 having been introduced by Kalt, Muller, and were made in Germany by the Carl Zeiss Company in Jena. These lenses were not successful and like so many other things in medicine, the use of corneal lenses remained dormant until Kevin Tour)', an optician and contact lens technician, perfected the first plastic corneal lens in 1948. Now, patients began to wear their contact lenses more comfortably and for longer periods of time. There quickly followed the Microlens, a smaller lens (9.5 cm.) which tended to relieve peripheral pressure on the cornea, and then the custom fitted lens, even smaller, so that it would center within the border of the limbal flattening. But this lens did not live up to expectations, because in the wearing, it did not center in the desired area and therefore proved to be unsatisfactory. Today with the so called "custom-fitting" of contact lens paralleling the diminishing cur- vature of the peripheral portion of the cornea where not only the central base curve but the intermediate and peripheral curves are ground to fit the individual cornea, a contact lens is produced which can be tolerated by a great majority of patients. We see little corneal PAGENO="0258" 254 OPTOMETRY edema, stippling or permanent change in the initial "K" reading, after the adaptation period. Much of this, has been made possible during the past 15 years, by non-medical personnel doing research, in the manufacture of contact lenses and technics in fitting. Much more re- search in lens design, new materials and fitting technics are necessary. Equally important and in my opinion more important at this time, is the medical research, necessary to evaluate histological changes in corneal tissue, immediate, temporary and long term, by the contact lens. which may affect the visual functions. We are aware, that a contact lens when placed on the eye, may alter tissue and the changes may be permanent. The ophthalmologist who writes a prescription for contact lenses and sends the patient to the contact lens technician or qualified optician and closes the case, is not fulfilling his duty to that patient and can be held legally responsible for neglect, if this pa- tient suffers eye damage. The physician must exercise direction and supervision of the (technician) optician, con- sistent with the qualifications of the optician and the needs of the patient. It is not the duty or responsibility of the contact lens technician to advise or recommend therapy concerning pain, redness, use of medi- cations, etc. The patient should be referred back immediately and emphatically to the oph- thalmologist for any necessary recommendations. Optometry is continually questioning the tight of the ophthalmologist to delegate to a contact lens technician what they claim medicine would deny the optometrist. Their argument may appeal to the uninformed but has no merit in fact. \Vhat must be clearly understood, is that the qualified optician or contact lens technician is not fitting contact lens independently but is working under the direction and supervision of the ophthalmologist, thereby insuring a maxi- mum of safety in the fitting and wearing of these lenses. This card is used in Cincinnati to clarify the position of the ophthalmologist. "What may a physician legally delegate to an ophthalmic technician?" These duties are usually not specifically spelled out in the Medical Practice Acts of the State or in the Regulations of the Board of Medical Examiners. The physician has the duty to provide for the patient the therapy indicated. He has the authority under the hIedical Practice Act to have certain procedures performed for the pa- tient instead of doing them personally. The use of an appliance placed on the eyeball (an ocular prosthesis) ocular tonographv and tonometry and numerous other technical pro- cedures used in the practice of ophthalmology are procedures that can be performed by the trained and qualified technician as part of medical care rendered to the patient by the physician. The services of the technician are not supple- mentarv or complementary to the physicians sen-ices, but are an important part of it. The technicians' services, do not replace the physician's care of the patient but facilitates and expedites that care. The technician assists the physician in helping him fulfill his respon~ sibility to the patient. The technical fitting of the contact lens, (including K readings), the grinding of the intermediate and peripheral curves and their I fully understand that the fitting of my Contact Lenses is to be performed under the Direction and Supervision of my Ophthalmologist (eye physician) . During the time I am being fitted I am to be subject to his Judgment and Care con- cerning the condition of my eye health with relation to the Contact Lenses. I am fully aware of the importance of medical supeca-ision in the fitting and wearing of Contact Lenses and unquali- fiedly agree to cooperate with my Oph- thalmologist. Signed Date PAGENO="0259" OPTOMETRY 255 blending, the polishing of the lens, the instruc- tion of the patient in the care of, and in the inserting and removing of the lens, the necessary adjustments for lens lag, or apical touch, the centering of the lens, smoothing and rounding of edges, are the technical, time consuming but important functions that qualified opticians and contact lens technicians can do for us. The final phase of contact lens fitting, however, is the medical examination and approval of the contact lens fitting by the prescribing ophthal- mologist and this is a continuing process period- ically, as long as the patient wears contact lenses. The term "fitting" per se has not yet been legally defined. Medically perhaps, it could be defined, as the determination of the physical characteristics of an appropriate lens and its application to the eye based on anatomical, physiological or pathological corneal or scleral- corneal findings by the physician, on prescription and direction of the physician. The improvement in fitting technics of plastic contact lenses together with the nation-wide promotional campaigns of the manufacturers of contact lenses, have greatly increased the num- ber of people wearing or attempting to wear contact lenses. The publicity emphasizes the comparative simplicity of the procedure, its safety, and the many satisfied patients wearing these lenses. Full page advertisements in the press have fired the imagination of the public with belief that contact lenses can be worn by anyone, replacing ordinary spectacles. May I say at this time that contact lenses are no substitute for spectacles for average uncompli- cated refraction cases. Approximately 90,000,000 people are wearing spectacles to correct vision defects. It is estimated that there have been about 6 million people fitted for contact lenses, ap- proximately 500,000 patients are being fitted per year, the majority of these for cosmetic, psychological purposes rather than for any actual physical need. The explosive increase in the number of people wearing contact lenses presented medicine with a challenge and a new source of potential eye disease which has resulted in some instances, not only in permanent visual loss, but in the loss of the eye itself. The contact lens is a nonsterile foreign body and when placed on the cornea can change the metabolism of the cornea and disturbs the normal C02-02 exchange. In many cases contact lens may actually trau- matize corneal tissue, resulting in corneal erosion, corneal ulcers, acute secondary iritis etc. Physicians are the guardians of the health of our nation. Ophthalmologists agree that the use of contact lenses, corneal and scleral, when indicated, are useful adjuncts in therapy of vision defects. Medicine has therefore renewed its interest in this field so that it can provide the leadership so necessary for safety in the fitting and wearing of contact lenses. The diagnosis and treatment of untoward signs and symptoms of eye conditions, associated with the fitting or wearing of contact lenses is the responsibility of Medicine. (I would like to repeat this statement.) The close relationship between physician and trained ancillary personnel is a very old, valued, and necessary one in the practice of medicine, if the patients' best interests are to be served. On the subject to licensure of `allied ancillary personnel, medicine has mixed feelings. I know that Mr. Ed. Holman of the A.M.A. legal department discussed this matter with you this morning. Unfortunately I had other commit- ments and could not be present for his address although he was kind enough to. send me a copy of his comments to you, a few days ago. The physician has the professional and legal responsibility and authority for the medical care of the patient. The medical profession, therefore, has the problem of determining the need for any allied ancillary group that would help facili- tate this medical responsibility to the public. The American Association of Ophthalmology supports this position of medicine. To render complete eye care, the ophthal- mologist has historically utilized the services of trained ophthalmic ancillary personnel. In my address to the House of Delegates of the Amen- PAGENO="0260" 256 OPTOMETRY can Association of Ophthalmology in October 1966 meeting at the Palmer House in Chicago, I stressed the importance of allied personnel which statistically adds up to a medical work force of about 30,000 specially trained techni- cians, which include approximately 10,000 dis- pensing opticians. The dispensing optician may be defined as an ancillary medical worker who supplies and fits such glasses, appliances and devices as the physician prescribes for a given patient. The prescribing physician makes the final deter- mination of the acceptability of such glasses (thus the physician's relation with the optician differs from his relation with the druggist whose finished product can not easily be inspected). It seems apparent that optometry, in its efforts to equate itself with ophthalmology, would like to exercise authority over ancillary ophthalmic personnel serving the medical profession. Any legislation or court action or state at- torneys' interpretation of optometric law which threatens to deny the qualified, trained and ethical dispensing optician the right to continue his craft is of interest and concern to the medical profession generally and to the ophthalmologist in particular, for the optician is a member of the medical team serving the public. It is urgent therefore that the medical pro- fession understands the vulnerability of the optician's status and takes measures necessary to insure their security. The A.A.O. recognizes the importance and advisability of legally identi- fying the relationship between medicine and opticianry, which has existed for over a century. At present there are 17 states ~~`here opticians are licensed. Efforts to obtain licensure in many of the 33 remaining states and the District of Columbia have been unsuccessful. These efforts, on the part of opticianry may not have had the blessing of the State Medical Societies but were defeated because of optometry's opposition to the licensing of opticians. Would licensure protect the opticians from legal attack from optometry?-not necessarily- Optometry has successfully amended the op- ticians acts to restrict the opticians' privileges to meet optometry's objectives. In many states such as Wisconsin, Oklahoma, and South Caro- lina amendments to the optometry acts have given the Board of Optometry jurisdiction over optician. Any amendment of the optometric act affecting opticianry affects Medicine. And so, I could go on citing instances where licensure of opticians has not proven as satisfactory, as we would have expected it to be. What then is the alternative? As I have already stated-the American Asso- ciation of Ophthalmology supports legal identi- fication of the optician. This may be accom- plished in the Medical Practice Act by defining ancillary medical workers to include, specifically by name, the "certified dispensing optician." The certified dispensing optician being a person en- gaged in the business of fabricating, fitting and supplying eyeglasses and other optical appliances to the patient on order of a physician. Further- more I would recommend for your consideration the re-organization of the American Board of Opticianry to be composed of acknowledged and representative leaders in ophthalmology and opticianry whose responsibility would be to establish accepted standards of training, ex- aminations and certification for those who qualify. Certification to be renewed annually by the Board. The accomplishment of the above measures would give security and status to the craft of opticianry. In conclusion, I would like to commend the Guild for the many years, (since its inception in 1925) of activity and support in bringing to the attention of the public, the importance of medical eve care. The American Association of Ophthalmology and the Guild of Prescription Opticians of America are thus dedicated to a common objective "complete eye care". I trust that our relationship will continue to be close and meaningful. I hope that any problems in the future of mutual concern to ophthalmology and opticianry may be resolved by frank discussions and under- standing of the objectives involved so that the public will continue to benefit from our association. PAGENO="0261" OPTOMETRY 257 EXHIBIT D JuLY 27, 1966. In re: Licensing of opticians in the District of Ooiumbia. (000: 3.05.1-Op- ticians, Licensing of.) Ooniniis*sioners of the District of Oolunibia. GENTLEMEN: You referred to me the question of whether, in the light of a recent court decision, legislation is necessary to authorize the District of Colum- bia to license and regulate .the practice of opticians. Judge Harold H. Greene of the District of Columbia Court of General Ses- sions on May 9, 1968, in the case of District of Columbia v. Normai~ Fields, Criminal Action No. D.C. 3628-66, found Fields, an optician, guilty of practicing optometry without a license. In his decision, Judge Greene made the following statement: "Unlike many other jurisdictions, the District of Columbia has no law regulating the practice of opticianry or providing for tha licensing of opticians. The result is that anyone has the legal right to call himself an optician and perform the tasks normally associated with that trade. The prosecution argues from this that opticians must be barred from all phases of the contact lens prac- tice (except the grinding of lens~s) whether or not their operations are super- vised by a professional. "Lack of governmental su~ervision and licensing of opticians and any result- ing deficiencies in performance are not cured by attaching the label of optometry to functions which a properly trained optician may legitimately perform; the ren~edy for the lack of qualification of some opticians is the licensing of opticians generally, in order that this craft may be restricted .to those* who are properly trained. "It ~o happens that this defendant appears to be fully qualified and well capable of measuring eye curvatures and fitting contact; lenses8 under super- vision; his future activities in that regard, if supervised in accordance with the standards set forth under V below, will be consistent with the statute and with the public interest. The same may well be true of most opticians operating in the District of Oolurnbia today. But unless opticians are licensed and regulated the public has no assurance that even those functions which opticians may legitimately exercise will be carried out responsibly and without danger to the community.° "Upon inquiry by the Court, the Oorporation Counsel stated that the District of Columbia Commissioners lack power on their own to provide for the regula- tion and licensing of opticians and their adherence to proper standards. Con- gressional enactment of a statute inaugurating such licensing and supervision would eliminate a potential hazard to the citizens of this community. While the last sentence in the body of the foregoing quotation from Judge Greene's opinion expresses `the desirability of Congressional enactment of a statute for the licensing and supervising of opticians, the immediately preceding sentence indicates that the Court, in so concluding, was relying on an alleged statement by a representative of this office that the "Oommissioners lack power on their own to provide for the regulation and licensing of opticians and their adherence to proper standards." After a review of the provisions of the Optometry Act approved May 28, 1924 (43 Stat. 177; D.C. Code, title 2, chapter 5) and the License Act (section 7 of the Act approved July 1, 1902, as amended; 47 Stat. 550; D.C. Code, title 47, chapter 23), I do not concur in the view allegedly expressed that the Commission- ers lack authority to license opticians under existing law. The Optometry Act contains no provisions which would preclude licensing of opticians. Indeed, there are no references at all in the Optometry Act to the occupation of "optician". Although an optometrist may perform functions which are also performed by an optician, such as grinding lenses to fit a prescription, the practice of optometry is defined (D.C. Code, section 2-501) to be "the application of optical principles through `technical methods and devices in the examination of the human eye for the purpose of determining visual defects, and the adaptation of lenses for the aid and relief thereof." On the other hand, "Optician" is defined by Stedman's Medical Dictionary, Unabridged Lawyer's Edition, 1961, as "A maker of optical instruments; one who "8 He has had contact lens instruction by three optometrists for a period of six to eight months." According to the testimony, one can be an optician in the District of Columbia simply by opening an optical shop In a vacant store." PAGENO="0262" 258 OPTOMETRY makes and adjusts eyeglasses and spectacles after a formula prescribed by the oculist." The Optometry Act prohibits the practice of optometry without a license (sec. 2-502) obtained by examination (sec. 2-509) by those meeting prescribed qual- ifications (sec. 2-511). The only reference in the Act to those who may perform the functions of opticians is in sec. 2-520(b), which specifically excludes certain persons from the Act's coverage, as follows: "The provisions of this chapter shall not apply- "(b) To persons selling spectacles and (or) eyeglasses and who do not attempt either directly or indirectly to adapt them to the eye, and who do not practice or profess to practice optometry." Therefore, since some of the functions of opticians are specifically excluded from the coverage of the Optometry Act and the Act is otherwise silent thereon, it is no impediment to the licensing of opticians by the Commissioners under the authority of paragraph 45 of section 7 of the Act of July 1, 1902, as amended (D.C. Code, section 47-2344), which provides in part as follows: "The commissioners of the District of Columbia are authorized and empowered, when in their discretion such is deemed advisable, to require a license of other businesses or callings not listed herein and which, in their judgment, require inspection, supervision, or regulation by any municipal agency or agencies and to fix the license fee therefor in such amount as, in their judgment, will be com- mensurate with the cost to the District of Columbia of such inspection, super- vision, or regulation. . . Respectfullysubmitted. MILTON D. KORMAN, Acting Corporation Counsel, D.C. ExHIBIT B GOVERNMENT OF THE DISTRICT OF COLUMBIA, DEPARTMENT OF OCCUPATIONs AND PnOFxssIONs, Washington, D.C., April 5, 1.967. Memorandum to the Board of Commissioners: Subject: Proposed Regulations Regarding the Licensing of Opticians in the Dis- trict of Columbia. At its meeting on August 2, 1966, the Board of Commissioners noted a Corpora- tion Counsel opinion concerning the establishment of a licensing program for opticians practicing in the District of Columbia. In concluding the discussion of this matter, the Commissioners instructed the Director of the Department of Occupations and Professions to draft regulations regarding the licensing of opticians, for their further consideration. When the Department of Occupations and Professions completed the initial draft of such regulations, copies were supplied to interested individuals and groups in the fields of opticianry, optometry, and ophthalmology. Thereafter, the Director and members of his staff held a series of meetings with representatives of the interested groups for a full discussion of the draft regulations. Because of the wide variance in the views expressed, representatives of the interested groups were requested to submit their comments in writing to avoid any possible misunderstanding which might result from the Department attempt- ing to interpret the position of any group to the Board of Commissioners. The w-ritten comments which were received by the Department are being trans- mitted herewith, together with a second draft of the regulations prepared after the aforementioned series of discussion meetings with interested individuals and groups. In addition, there is also transmitted herewith, the draft of a Commis- sioners' Order which would amend Reorganization Order No. 59 (amended), by adding a PART XV, containing the necessary machinery for operating a licensing I)rogram for opticians, should the Commissioners eventually decide on such a force of action. The comments transmitted herewith w-ere submitted by, or a be- half of, the following: (1) Dr. Wyrth Post Baker, President, D. C. Board of Examiners in Medicine and Osteopathy (2) The Section on Ophthalmology of the D. C. Medical Society (3) The District of Columbia Optometric Society PAGENO="0263" OPTOMETRY 259 (4) The District of Columbia Guild of Prescription Opticians (5) The Sterling Optical Company In preparing the draft regulations which accompany this memorandum, the Department of Occupations and Professions was guided by the court decision handed down by Judge Harold H. Greene of the Court of General Sessions, Crim- inal Division, on May 9, 1966; in the case of Norman Fields, an optician charged with engaging in the practice of optometry as a result of his actions in connec- tion with the fitting of contact lenses for a reporter of the Washington Daily News. Since it was this decision by Judge Greene which lead to the Commis- sioners' initial consideration of the question of establishing a licensing program for opticians, it seemed only logical that Judge Greene's decision should serve as the Department's guide in developing a set of draft regulations for considera- tion by the Board of Commissioners. Recommendations: The Department of Occupations and Professions recom- mends the following course of action: (1) That the Commissioners refer the draft regulations, prepared by the Department, to the Corporation Counsel for review as to legal sufficiency. (2) That upon completion of such review by the Corporation Counsel, the Commissioners schedule and personally conduct a public hearing on the draft regulations. The Department recommends that the Commissioners personally conduct such public hearing, because the positions of the groups representing optometrists and ophthalmologists appear to be irreconcilable with respect to the fitting of contact lenses by opticians. From the discussion meetings which Department representatives held with these interested groups, it was clear that feelings are extremely strong and positions poles apart with respect to this ques- tion. As a result, it was very difficult to sift pure fact from statements motivated by economic self-interest which were purported to be fact. Therefore, since it is the Commissioners who must eventually decide this highly-controversial issue, it seems advisable that they should personally conduct the public hearing on the draft regulations. (3) That following the public hearing, the Commissioners decide if it is in the public interest to establish a licensing program for opticians practicing in the District of Columbia. LAWRENCE E. DUvALL, Director, Department of Occupations and Professions. (Enclosures.) Orig. cc: Hon. Walter N. Tobriner, Hon. John B. Duncan, Brig. Gen. Robert E. Mathe, USA, Mr. F. E. Ropshaw, Secretary.) DRAFT DISTRICT OF COLUMBIA REGULATIONS, TITLE 12, OCCUPATIONAL AND PROFESSIONAL LICENSES, CHAPTER 26-OPHTHALMIC DISPENSING (Government of the District of Columbia, Department of Occupations and Professions, 1145 19th Street, Northwest, Washington, D.C. 20036) TITLE 12. OCCUPATIONAL AND PROFESSIONAL LICENSES CHAPTER 26 OPHTHALMIC DISPENSING Purpose 12-2601 Scope of Regulations ~. 12-2602 Definitions 12-2603 Unlawful acts 12-2604 Exemptions 12-2605 Grandfather clause --- 12-2606 QUALIFICATIONS FOR LICEN5URE For license by examination 12-2607 For license by endorsement 12-2608 APPLICATIONS FOR LICENSE. Filing of application 12-2609 Photographs of applicant required 12-2610 Application to be notarized . 12-2611 Application not duly made 12-2612 False statements, disqualificaticns 12-26.13 Application for a license by examination 12-2614 PAGENO="0264" 260 OPTOMETRY DISTBICT OF COLUMBIA REGULATIONS, TITLE 12, OcCuPATIONAl. AND PR0FEssIONAi LICENSES, CHAPTER 26-OPHTHALMIC DISPENSINI-Continued EXAMINATIONS Examination, frequency, place 12-2615 Nature of examination 12-2616 Exception 12-2617 ~Pype and content of examination 12-2618 Examination rules 12-2019 Infraction of examination rules 12-2620 Scoring of examination 12-2621 Notification of examination results 12-2622 Second and subsequent examinations 12-2623 ISSUANCE OF LICENSE License to be issued 12-2624 Director to prepare and issue license 12-2625 ISSUANCE OF LICENSE RENEWAL Annual renewal required - 12-2626 Filing of renewal application 12-2627 Issuance of annual renewal 12-2628 Lapse of license 12-2629 Restoration of a lapsed license 12-2630 Inactive status 12-2631 Restoration to active status 12-2632 DENIAL, SUSPENSION, OR REvOcATION OF LICENSE Grounds for denial, suspension or revocation of license 12-2633 Investigation of grounds - 12-2634 Opportunity for applicant or licensee to have a hearing - 12-2635 Notice of contemplated action. Request for hearing and notice of hearing 12-2636 Procedure when a person fails to request a hearing_. 12-2637 Notice of hearing 12-2638 Method of serving notice of contemplated action and notice of hearing 12-2039 Procedure when a person fails to appear for a requested hearing 12-2640 Majority of Committee to hear and decide 12-2641 Rights of person entitled to hearing 12-2642 Powers of the Committee in holding hearing - 12--2643 Contempt procedures 12-2644 Evidence 12-2645 Burden of proof 12-2646 Transcript of proceedings 12-2647 Manner and time of rendering Committee decision 12-2648 Content of Committee decision 12-2649 Notification by Commission of final determination 12-2650 Service of written notice 12-2651 Reopening proceedings 12-2652 Reconsideration or reinstatement. 12-2653 CONTACT LENS REGULATIONS Dispensing Optician with a Class-Il License to be in charge and on duty. 12-2654 Work to be performed in presence of Dispensing Optician 12-2655 Direct dispensing of contact lenses prohibited 12-2656 MISCELLANEOUS REGULATIONS Licensee to be in charge and on dutyi 12-2657 Display of license required 12-2658 Prescriptions to be on file and open to inspection 12-2659 Notification of change of name or address required 12-2660 Fees to be collected for services rendered......_ 12-2661 Enforcement 12-2662 Effective date 12-2663 Severability provision 12-2664 12-2601. Purpose. In promulgating these Regulations, the Commissioners de- clare their purpose to be the establishment of a licensing program which will protect the public from incompetent or unqualified persons who might attempt to practice ophthalmic dispensing in the District, and which will protect qualified and ethical practitioners from the unfair competition of unethical and unfit persons. 12-2602. &~ope of Regulations. The scope of the Regulations in this chapter ex- tends to the examination, licensure, registration, and regulation of persons prac- ticing ophthalmic dlispensing in the District of Columbia. 12-2603. Definitions. As used in this chapter, unless the context requires a different meaning, the following terms shali mean: "Btard": the District of Columbia Dispensing Optician Examining Board established by PART XV of Reorganization Order No.59 (amended); PAGENO="0265" OPTOMETRY 261 "Class-I License": a license issued by the Commission authorizing the holder thereof to practice ophthalmic dispensing excluding the ifihing of prescriptions fotr contact lenses; "Class-Il License": a license issued by the Commission authorizing the holder thereof to practice ophthalmic dispensing including the filling of prescriptions for contact lenses; "Commission": the District of Columbia Dispensing Optician Licensing Com- mission established by PART XV of Reorganization Order No. 59 (amended); "Commissioners": the Commissioners of the District of Columbia silting as a Board; "Committee": the District of Columbia Dispensing Optician Hearing Coin- miittee established by PART XV of Reorganization Order No. 59 (amended); "Department" : the Department of Occupations and Professions; "Director": the Director of the Department of Occupations and Professions; "Dispensing Optician": a person licensed by the Commission to practice ophthal- mic dispensing in the District; "District": the District of Columbia; "He and derivatives thereof": shall also be construed to include she and derivatives thereof ;~ "Metropolitan area": the District of Columbia, Montgomery and Prince Georges Counties in the State of Maryland, Arlington, Fairfax, Loudoun, and Prince William Oounties and the cities of Alexandria and Falls Church in the Common- wealth of Virginia, and all other cities now or hereafter existing in Maryland or Virginia within the geographic area bounded by the outer boundaries of the combined area of said counties and cities; "Ophthalmic Dispensing": a person practices ophthlmic dispensing who, with- in the limitation set forth in these Regulations, prepares and dispenses lenses, spectacles, eyeglasses, contact lenses, and/or appurtenances thereto to the in- tended wearer thereof on the written prescriptions of physicians or optometrists duly licensed to practice their profession, and in accordance with such prescrip- tions interprets, measures, adapts, fits, and adjusts such lenses, spectacles, eye- glasses, contact lenses, and/or appurtenances thereto for the aid or correction of visual or ocular anomalies of the human eyes. The services and appliances relating to ophthalmic dispensing shall be furnished, dispensed, or supplied to the intended wearer or user thereof only upon prescription of a physician or optometrist, but duplications, replacements, reproductions, or repetitions may be done without prescriptions. In which event, any such act shall be construed to be ophthalmic dispensing the same as if performed on the basis of a written original prescription. "Person": any natural person, ~1rm, partnership, corporation, or association. 12-2604. UnlawfuZ acts. (a) On and after the effective date of these Regulations, the following shall constitute unlawful acts: (1) For any person prhcticing ophthalmic dispensing in the District to engage in the diagnosis of the human eyes, or attempt to determine the refractive powers of the human eyes, or in any manner attempt to prescribe for or treat diseases or ailments of human beings. (2) For any person practicing ophthalmic dispensing in the District to display any refracting equipment that may tend to mislead the public into the belief that eye examinations are being made on the premises in connection with oph- thalmic dispensing. (b) On and after the ninetieth day following the effective date of these Regu- lations, the following shall constitute unlawful acts: (1) Except as otherwise provided in these Regulations, for any person to practice ophthalmic dispensing in the District unless duly licensed as a Dispens- ing Optician. (2) Except as otherwise provided in these Regulations, for any person engaged in the business of ophthalmic dispensing in the District to permit anyone in his employ to practice opthalmic dispensing unless such employee is duly licensed as a Dispensing Optician. 12-2605. E~remptions. (a) Nothing contained in these Regulations shall be construed as prohibiting the practice of ophthalmic dispensing by an optometrist or physician duly licensed to practice his profession, or by an employee of such an optometrist or physician when working in his office and under his personal supervision. (b) Nothing contained in these Regulations shall be construed as prohibiting the practice of ophthalmic dispensing by a trainee, apprentice, unlicensed opti- PAGENO="0266" 262 OPTOMETRY cian, or other employee of a Dispensing Optician: Provided, however, That such ophthalmic dispensing must be performed under the personal supervision of the Dispensing Optician. (c) As used in subsections (a) and (b) above, personal supervision means that the physician, optometrist or Dispensing Optician shall be at hand at all times when a trainee, apprentice, unlicensed optician, or other employee is practicing ophthalmic dispensing. (d) Nothing contained in these Regulations shall be construed as preventing the sale of spectacles for reading purposes, toy glasses, goggles, or sun glasses consisting of plano white, plano colored or piano tinted glasses, or ready made nonprescription glasses, nor shall anything in these Regulations be construed as affecting in any way the manufacture and sale of plastic or glass artificial eyes or as affecting any person engaged in said manufacture or sale of plastic or glass artificial eyes. 12-2606. Grandfather clause. (a) Any person of good moral character who has been engaged in the full-time practice of ophthalmic dispensing for at least two years prior to the effective date of these Regulations in the District, or in the metropolitan area in the employ of a firm w-ith offices in the District, shall be licensed by the Commission. without examination, as a Dispensing Optician with a Class-I License upon making proper application and payment of the required fee or fees within one year following the effective date of these Regulations. (b) Upon making proper application and payment of the required fee or fees within one year following the effective date of these Regulations, any person of good moral character who has been engaged in the full-time practice of ophthalmic dispensing for at least two years prior to the effective date of these Regulations in the District, or in the metropolitan area in the employ of a firm w-ith offices in the District, shall be licensed by the Commission as a Dispensing Optician with a Class-TI License upon successfully passing such practical examination in the filling of contact lens prescriptions as the Board may require. QUALIFICATIONS FOR LICENSURE 12-2607. For license by exanthiation. Every applicant for a license by examina- tion must furnish proof satisfactory to the Commission that he has the following qualifications: (a) Is atleastl9 years of age; (b) is of good moral character; (c) is a high school graduate or has had equivalent education as determined by the District of Columbia Board of Education; (d) has either (1) satisfactorily completed a one year course of study in a school of ophthalmic dispensing approved by the Commission or (2) had at least one. year of satisfactory training and experience in ophthalmic dispensing under the supervision of a duly licensed physician, optometrist, Dispensing Optician, or a recognized optician in a jurisdiction where licensure is not required; (e) has passed such examination in ophthalmic dispensing as the Board may require; and (f) has paid all required fees. 12-2608. For license by endorsement. (a) To be eligible for a Class-I License by endorsement to practice as a Dis- pensing Optician in the District, an applicant must furnish satisfactory proof to the Commission that he has the following qualifications: (1) He has been duly licensed as an Optician, by examination, in another state or territory of the United States, or foreign country, wherein the re- quirements for licensure are substantially the same as those in effect in the District. (2) He is currently holding a license in good-standing as an optician in another state or territory of the United States, or a foreign country. (3) He meets the qualifications specified in subsections (a), (b) and (f) of Section 12-2607 of these Regulations. (b) Any person who meets the qualifications of subsection (a) of this Section, shall be eligible for a Class-TI License to practice as a Dispensing Optician in the District upon successfully passing such practical examination in the filling of contact lens prescriptions as the Board may require. PAGENO="0267" OPTOMETRY 263 APPLICATIONS FOR LICENSE 12-2609. Filing of application. Every applicant for a license shall duly file with the Director an application on a form prescribed by the Commission and provided by the Director. All required documents must be attached to the application at time of filing. 12-2610. Photographs of applicant required. Every application for a license must be accompanied by two recent photographs of the applicant, measuring one inch by one-and-a-half inches. 12-2611. Application to bc notarized. Every application for a license shall be sworn or affirmed to before a notary public. 12-2612. Application not duly made. The Commission shall review and take action on all duly made applications. However, the applicant for a license has upon him th'3 burden of proving that he meets the qualifications required for obtaining the license sought. The Commission may not presume qualifications not shown on the application. The Commission may refuse to act on an application and may require the applicant to submit additional information, if the applica- tion contains incomplete, evasive, or insufficiently supported assertions where supporting evidence is requred. 12-2613. False statements, dis qualifications. The Commission may, after notice and opportunity for hearing, disqualify the application of an applicant for a license, (a) if the applicant has knowingly made or allowed to be made on his behalf, either to the Commission or to any officer or employee of the Depart- ment, any false or misleading statements in connection with his application; or (b) if the applicant has attempted improperly to influence any member of the Commission or the Board or any officer or employee of the Department in the discharge of his duties relating to the application of the .applicant. At the dis- cretion of the Commission, any applicant whose application has been so dis- qualified may reapply for the license desired. 12-2614. Application for a license by examination. Every applicant for a license by examination shall file his application not later than thirty days prior to the date of the examination for which he desires to sit. The Director shall notify each applicant of the Commission's action with respect to his eligibility to take the examination. At least ten days prior to the examination, the Director shall notify each eligible applicant of the time and place of examination. EXAMINATIONS 12-2615. Examination, frequency, place. The Board shall conduct in the Dis- trict at least two examinations each year. The Board may, however, schedule such additional examinations as it determines to be necessary. The Board shall fix the time and place for each examination. 12-2616. Nature of examination. The examination administered to applicants for licensure as a Dispensing Optician shall be both written and practical in nature. The Board may, however, when the circumstances so warrant, permit the written portion of the examination to be administered orally. 12-2617. Exception. The preceding Section shall not be construed as applying to an applicant for a Glass-IT License as a Dispensing Optican Who meets the qualifications of subsection (a) of Section 12-2608 of these Regulations. Such an applicant shall only be required to pass a practical examination in the filling of contact lens prescriptions. 12-2618. Type and content of examination. (a) . The written portion of the examination shall consist of objective type questions pertaining to ophthalmic dispensing as defined in Section 12-2603 of these Regulations. (b) The practical portion of the examination shall consist of a demonstration by the applicant of his knowledge and skills in the actual practice of ophthalmic dispensing as defined in Section 12-24303 of these Regulations. Provided, how- ever, That applieants for a Class-I Dispensing Optician License shall not be required to demonstrate their knowledge and skill in the filling of contact len~ prescriptions. 12-2619. Examination rules. The examination shall be administered to ap- plicants in accordance with the examination, rules established by the Board. 12-2620. Infraction of examination rules. At the discretion. of the examiner in charge, any applicant may be excluded from the examination for violating the examination rules. The examiner shall report such action promptly to the Corn- mission. PAGENO="0268" 264 OPTOMETRY 12-2621. Scoring of e~vaminatio'n. (a) Each portion of the examination shall be scored on the basis of 100 points. In order to be eligible for a `license, an applicant must attain a score of at least 70 on the written portion of the examination and a score o'f `at least 70 on the practical portion of the examination. An applicant for a Class-IT Dispensing Optician License must, in addition, attain a score of at least 70 on the practical demonstration of his knowledge and skill in filling contact lens prescriptions. An applicant who fails any portion of the examination shall be deemed to have failed the examination. Provided, however, That the Board may, if it so desires, ~stablish rules permitting carry-over credits for applicants who pass a portion of the examination. (b) In order to `be eligible for a Class-Il Dispensing Optician License, an ap- plicant who meets the qualifications of subsection (a) of Section 12-2608 of these Regulations must attain a score of at least 70 on the practeial demonstration of his knowledge and skill in filling contact lens prescriptions. 12-2622. Notification of eccanzination results. The Director shall notify each applicant of the examination results as determined by the Board. 12-2623. Second and sabsequent eTaminations. Any person who fails his first examination may reapply and sit for subsequent examinations. Provided, hoicever, That an applicant who has failed three examinations shall be permitted to take a fourth examination only after presenting satisfactory proof to the Commission that he has, since failing his third examination, received such additional training in ophthalmic dispensing as the Commission may require. ISSUANCE OF LICENSE 12-2624. Incense to be issued. A Class-I License or a Class-TI License, as the case may be, to practice in the District as a Dispensing Optician shall be issued to each applicant who meets all of the requirements for such a license. The Com- mission shall certify the name of each such applicant to the Director. 12-262~. Director to prepare and issue licease. The Director shall prepare and issue a license for each duly qualified applicant certified to him by the Com'mission. ISSUANCE OF LICENSE RENEWAL 12-2626. Annual renewal required. Every license in good-standing issued in accordance with these Regulations shall expire on the 31st day of January of each year and must be renewed annually in order to remain in goodstanding. Approximately sixty days prior to the `annual expiration date, the Director shall mail an application for renewal to the last known add'ress of each person holding a license in good-standing. 12-2627. Filing of renewal application. Each person holding a' license in good- standing issued in `accordance with these Regulations shall file with the Director, on or before the 31st day of January of each year, an application for renewal of h'is license, accompanied by the required renew-al fee. 12-2628. Issuance of annual renewal. Each year, upon receipt of a renewal ap- plication and the required renewal fee, and upon verifying the absence of any reason for withholding renewal, the Director shall issue a renewal of the license concerned, for the period beginning February 1 of that year and ending Janu- ary 31 of the following year. 12-2629. Lapse of license. Any person holding a license in good-standing who fails to file an application for renewal and pay the required renewal fee on or before the 31st day of January of `any year, shall be guilty of practicing without a license if, on or after February 1 of that year, he engages in the business of or practices ophthalmic dispensing in the District. 12-2630. Restoration of a lapsed license. Any person who has permitted his license to lapse in the manner specified in Section 12-2629 of these Regulations, may restore his license to good-standing by duly filing a current renewal applica- tion, accompanied by the annual renewal fee `and late-filing fee for each license year, or portion thereof, in which his license was in a lapsed status. Provided, however, That the provisions of this Section shall not apply to the period of time during which a licensee is in an inactive status as provided for in Section 12-2631 of these Regulations. 12-2631. Inactive status. Any person holding a license but not so practicing in the District, may apply to the Director, in writing. for inactive status. Upon being so notified. the Director shall place the name of such person on the non- practicing list. While remaining in such inactive status, the holder of a license PAGENO="0269" OPTOMETRY 265 shall not be subject to the payment of any annual : renewal fee and he shall not engage in the business of or practice ophthalmic dispensing in the District. 12-2632. Restoration to active status. Any person~ on the non-practicing list may restore his license to active status by requesting such a change in status and filing with the Director a properly completed application and renewal fee for the current license year. Provided, however, That a person who permitted his license to lapse prior to requesting inactive status, must comply with the restoration provisions contained in Section 12-2630 of these Regulations. DENIAL, SUSPENSION, OR REVOCATION t)F LICENSE 12-2633. Grounds for denial, suspension or revocation of license. The Com- mission may refuse to issue or may suspend or revoke any license to practice ophthalmic dispensing in the District, for any one or~ combination of the follow- ing grounds: A person- (a) has been guilty of fraud or deceit in procuring or attempting to procure a license required by these Regulationa; (b) has been convicted of a crime involving moral turpitude; (c) has willfully or repeatedly violated any peovision of the Regulations promulgated by the Commissioners; (d) is an intemperate consumer of intoxicating liquors or i~s addicted to the use of habit-forming drugs; (e) is guilty of conduct which disqualifies him to practice ophthalmic dispensing with safety to the public; (f) is guilty of hiring, supervising, permitting~ or aiding unlicensed persons to practice ophthalmic dispensing in the District, except as author- ized by Section 12-2605 of these Regulations; (g) is guilty of practicing while his license~ is suspended; (h) is guilty of willfully deceiving or attempting to deceive the Com- mission with reference to any matter which it has under investigation; (1) is guilty of making a rebate of any kind to any person for directing ophthalmic dispensing business to him or hi~ establishment; (j) is guilty of advertising individual superiority or the performance of ophthalmic dispensing services in a superior manner; (k) is guilty of knowingly violating or aiding any person to violate the laws or regulations governing ophthalmic dispensing of any jurisdiction; and (1) is guilty of knowingly practicing in the :employment of, or in asso- ciation with, any person who is practicing in an unlawful manner. 12-2634. Investigation of grounds. The Commission may upon its own motion and shall upon the sworn complaint in writing of any person setting forth charges which, if proved, would constitute grounds for refusal, suspension, or revocation of the liëense as hereinabove set forth, request the Director to investigate the actions of any person holding, claiming to hold, or applying to hold any license provided for in these Regulations. 12-2635. Opportunities for applicant or licensee to have a hearing. Every licensee or applicant for a license except applicants for reinstatement after re- vocation, shall be afforded notice and an opportunity to be heard prior to the action of the Commission, the effect of which would be: (a) to deny permission to take examination for a licensee, for which applicant has correctly filed and whose application has been accepted; (b) to deny a license after examination for any cause other than failure to pass an examination; (c) to deny a license by endorsement to ap applicant who meets the qualifications specified in Section 12-2608 of th~se Regulations; (d) to suspend a license; or (e) to revoke a license. 12-3636. Notice of contemplated action. Request for hearing and notice of hearing. (a) When the Commission contemplates taking any, action of the type speci- fied in subsections (a), (b), or (c) of Section 12-~G35 of these Regulations, it shall give to the applicant a writteii notice containing a statement: (1) that the applicant has failed to satisfy the Commission as to his qualifications to sit for examination or to be issued a license, as the case maybe; (2) indicating in what respect the applicant has failed to satisfy the Commission; and 82-7~4 O-G7-lS PAGENO="0270" 266 OPTOMETRY (3) that the applicant may secure a hearing before the Committee by depositing in the mail within twenty days after service of said notice, a certified letter addressed to the Commission and containing a request for a hearing. / (b) When the Commission contemplates taking any action of the type speci- fled in subsections (c) and (d) of Section 12-2635 of these Regulations, it shall give the licensee a written notice containing a statement: (1) that the Commission has sufficient evidence, and setting forth the same, which, if not rebutted or explained, justifies the Commission in taking the contemplated action; and (2) that unless the licensee, within twenty days after service of said notice, deposits in the mail a certified letter addressed to the Commission and containing a request for a hearing, the Commission will take the con- templated action. 12-2637. Procedure when a person fails to request a hearing. If an applicant for or holder of a license does not mail a request for a hearing within the time and in the manner required by Section 12-2636 of these Regulations, the Com- ynission may, without a hearing, take the action contemplated in the notice. The Commission shall, in writing, inform the applicant or licensee, the Cor- poration Counsel, and the Director of the Commission's action. 12-2638. Notice of hearing. If an applicant for or holder of a license does mail a request for a hearing as required in Section 12-2636 of these Regulations, the Commission shall, within twenty days of receipt of a request, notify the applicant or licensee of the time and place of hearing, which hearing shall be held by the Committee not more than thirty days nor less than ten days from the date of service of such notice. 12-2639. Method of serving notice of contemplated action and notice of hearing. Any notice required by Section 12-2636 or Section 12-2638 of these Regulations, may be served either personally by an employee of the Department or by certified mail, return receipt requested, directed to the applicant for or holder of a license, at his last known address as shown by the records of the Department. If notice is served personally, it shall be deemed to have been served at the time when delivery is made to the person addressed. When notice is served by certified mail, it shall be deemed to have been served on the date born upon the return receipt showing delivery of the notice to the addressee or refusal of the addressee to re- ceive notice. In the event that the addressee is no longer at the last known ad- dress as shown by the records of the Department and no forwarding address is available, the notice shall be deemed to have been served on the date the return receipt bearing such notification is received by the Department. 12-2640. Procedure when a person fails to appear for a requested hearing. If an applicant for or holder of a license who has requested a hearing does not ap- pear and no continuance has been or is granted, the Committee may hear the evidence of such witnesses as may have appeared, and the Committee may pro- ceed to consider the matter and render a decision on the basis of evidence before it, in the manner required by Section 12-2641 of these Regulations. 12-2641. Majority of Committee to hear and decide. At each hearing, at lease a majority of the members of the Committee shall be present to hear the evidence and render a decision. - 12-2642. Rights of person entitled to heariiig. A person entitled to a hearing shall have the right: (a) to be represented by counsel; (b) to present all relevant evidence by means of witnesses and books, papers, and documents; (c) to examine all opposing witnesses on any matter relevant to the issues; and (d) to have subpoenas issued to compel the attendance of witnesses and the production of relevant books, papers. and documents upon making written request therefor to the Coramittee. 12-2643. Powers of the Committee in holding hearings. In connection with any hearing held, the Committee shall have the power: (a) to request of the Commissioners that counsel from the Office of the Corporation Counsel be appointed to represent the District in any case before the Committee; (b) to administer oaths or affirmations to witnesses called to testify; (c) to subpoena witnesses and relevant books, papers, and dodument~; (d) to take testimony; PAGENO="0271" OPTOMETRY 267 (e) to examine witnesses; and (f) to direct continuance of any case. 12-2644. Contempt procedures. In proceedings before the Committee, if any person refuses to respond to a subpoena or refuses to take the oath or affirma- tion as a witness or thereafter refuses to be examined, or reftses to obey any law- ful order of the Commission rendered pursuant to a decision made by the Com- mittee after hearing, the Commission may make application to the proper court for an order requiring obedience thereto. 12-2645. Evidence. In all proceedings held by the Committee, the Committee shall receive and consider any evidence or testimony. However, the Committee may exclude incompetent, irrelevant, immaterial, or unduly repetitious evi- dence or testimony. 12-2646. Burden of proof. (a) In any Committee proceeding resulting from the Commission's con- templated action to deny a license, the applicant shall have the burden of satisfying the Committee of his qualifications. (b) In any Committee proceeding resulting from the Commission's contem- plated action to refuse to renew, to suspend, or to revoke a license, the District Government shall have the duty of producing evidence to establish that a prima fade case exists for refusing to renew, suspending or revoking a per- son's license, and when such evidence is produced, then such person shall have the burden thereafter of going forWard with the evidence. 12-2647. Transcript of proceedings. In all hearings conducted by the Com- mittee, a complete record shall be made of all evidence presented during the course of a hearing. 12-2648. Manner and time of rendering Committee decision. The members of the Committee who conduct the hearing shall submit their decision to the Commission, in writing, as soon as practicable, but not later than sixty clays after the date the hearing is completed. 12-2649. Content of Committee decision. The decision of the Committee shall contain: (a) findings of fact made by the Committee; (b) application by the Committee of these Regulations to the facts as found by the Committee; and (c) the decision of the Committee based upon (a) and (b) of this Section. 12-2650. Notification by Commission of final determination. Within thirty days following receipt of a Committee decision rendered after hearing, the Commission shall notify the applicant or licensee concerned, in writing, of the final determination of the matter at issue. In any such matter, the Commission shall not make a final determination which is inconsistent with the Committee decision in such matter. The notification of final determination shall contain the Order of the Comm:ission based upon the decision of the Committee and a state- ment informing the applicant or licensee involved, of his right to appeal to the court and the time within such an appeal may be sought. A copy of the Committee decision shall be attached to the notification of final determination. 12-2651. Service of written notice. The written notification of final determina- tion shall be served upon the applicant or licensee involved, or his attorney of record, either personally or by certified mail. If sent by certified mail, it shall be deemed to have been served on the date contained on the return receipt. 12-2652. Reopening proceedings. Where, because of accident, sickness, or other good cause, a person fails to receive a hearing or fails to appear for a hearing which he has requested, the person may, within thirty days from the date born upon the Commission's notification of final determination, apply to the Com- mission to reopen the proceedings; and the Commission, upon finding such cause sufficient, shall authorize the Committee to immediately fix a time and place for hearing and give the person, `the Corporation Counsel, the Director, and the Commission notice thereof, as required by these Regulations. The Commission may also reopen a proceeding for any other cause sufficient to it, provided no appeal is pending before a court or has been decided by a court. 12-2653. Reconsideration or reinstatement. Upon the application, after six months, of any person who has been denied a liceiise or who has had a license revoked by the Commission, the Commission may, upon showing of cause satis- factory to it, reinstate the license or issue a new one. PAGENO="0272" 268 OPTOMETRY CONTACT LENS REGULATIONS 12-2654. Dispensing Optician with a Cia-Il License to be i~ charge and on duty. Every place of business in the District wherein ophthalmic dispensing including the ifihing of contact lens prescriptions is practiced, must have a Dis- pensing Optician with a Class-Il License in full charge of ophthalmic dispensing and on duty at all times when ophthalmic dispensing is practiced. 12-2655. Work to be performed in presence of Dispensing Optician. No Dis- pensing Optician who is in charge of a place of business in the District wherein ophthalmic dispensing including the filling of contact lens prescriptions is practiced shall permit any trainee, apprentice, unlicensed optician, or other employee in such place of business, to perform any ophthalmic dispensing service required in the filling of contact lens prescriptions, unless a Dispensing Optician with a Class-Il License is at the side of and is supervising the trainee, apprentice, unlicensed optician, or other employee during the entire time he is rendering such ophthalmic dispensing service. 12-2656. Direct dispensing of contact lenses prohibited. It shall be a violation of these Regulations for a Dispensing Optician, when filling a contact lens prescription, to dispense such lens or lenses directly to the intended wearer thereof, or to permit the dispensing of such lens or lenses directly to the intended wearer thereof. When a Dispensing Optician has completed the filling of a contact lens prescription, including fitting, adapting and instruction in wearing, proper handling and care, he shall be responsible for delivery of such contact lens or lenses directly to the physician or optometrist who wrote the prescription. Under no circumstances shall a Dispensing Optician, upon filling a contact lens prescription, permit the intended wearer thereof to leave the premises of the place of business with such lens or lenses in his possession. In the event that the physician or optometrist who wrote the original prescription concludes from examination that additional work is needed on the lens or lenses, he shall be responsible for the return delivery of same directly to the Dispensing Optician. Thereafter, when the Dispensing Optician has completed the additional work, he shall once more return the contact lens or lenses directly to the !physician or optometrist concerned. MISCELLANEOUS REGULATIONS 12-2657. Licensee to be in charge and on duty. Every place of business in the District wherein ophthalmic dispensing excluding the filling of contact lens prescriptions is practiced, must have a Dispensing Optician in full charge of ophthalmic dispensing and on duty at all times when ophthalmic dispensing is practiced. 12-2658. Display of license required. Each person to whom a license has been issued shall keep such license displayed in a conspicuous place in his principal office or place of business wherein he practices ophthalmic dispensing. He shall, upon request, exhibit such license to any authorized agent of the Department. Should any licensee maintain more than one office or place of business in which he practices ophthalmic dispensing, he shall keep a duplicate of his original license displayed in a conspicuous place in each such additional office or place of business in which he practices ophthalmic dispensing. 12-2659. Prescriptions to be on file and open to inspection. Every person en- gaged in the business of filling prescriptions for ophthalmic dispensing services shall keep a suitable book or file in which shall be preserved, for a period of at least three years, the original of every prescription for ophthalmic dispensing services filled at that place of business. Upon request, the Dispensing Optician in charge of such place of business shall furnish to the prescribing physician or optometrist, or to the person for whom such prescription was written, a true and correct copy thereof. All prescriptions, files and records pertaining to the sale of ophthalmic dispensing services shall at all times be open to inspection by duly authorized agents of the Department. 12-2660. Notification of change of name or address required. Each holder of a license shall, within five days after any change of name or address, register such change, in writing, with the Director. 12-2661. Fees to be collected for services rendered. The Commissioners shall, from time to time, fix the amount of the fees which shall be charged for the following services: (a) for reviewing and processing an application for a license; (b) for administering examinations and re-examinations; (c) for issuing licenses and renewals thereof, PAGENO="0273" OPTOMETRY 269 (d) for issuing duplicates of licenses and renewals thereof; (e) fOr furnishing a license renewal application a second time if no timely notification of change of name or address has been made; (f) for late filing of renewal application; and (g) for any other services which may be required for administration of the licensing program established by these Regulations. 12-2662. Enforcement. Any person violating any provision of these Regulations shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $300, or by imprisonment not exceeding six months, or by both such fine and imprisonment, and if the offense is continuing in its character, each week or part of a week during which it continues shall con- stitute a separate and distinct offense. In the event that such person is the holder of a license provided for by these Regulations, such license may, in addition, be suspended or revoked. 12-2663. Effective date. These Regulations shall take effect on the ninetieth day following their promulgation by the Commissioners. 12-2664. Severability provision. If any clause, sentence, paragraph, or Section of these Regulations shall, for any reason, be adjudged by any court of competent jurisdiction to be unconstitutional or invalid, such judgment shall not affect, repeal or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph or Section thereof so found unconstitutional or invalid. ExHIBIT F GUILD OF PREsCRIPTION OPTICIANs OF WASHINGTON, D.C. Washington, DXI., March 21, 167. Mr. LAWRENCE E. DUVALL, Director, Department of Occupations and Professions, Washington DXI. DEAR MR. DUVALL: Enclosed is the re-draft of the proposed Regulations per- taining to Ophthalmic Dispensing. We are having copies made and will send you a few more setsby the end of this week. The re-draft essentially embodies the changes discussed in our conference with your office on February 21st, except for the part involving contact lenses. This latter is new wording which seeks to insure the public health and at the same time embody the formula worked out between the Ad Hoc Committee of the Section on Ophthalmology of the D.C. Medical Society and the Opticians. It has been impossible to submit this re-draft to everyone involved, but I believe it represents the fundamental thinking of the group. I call your attention to changes made in 12-2662-Enforcement. These changes may be in conflict with existing statutes or regulations. Would you please convey to the Corporation Counsel our desire to discuss these Proposed Regulations with his office when they have the matter under consideration. Sincerely yours, ROBERT W. BURTON, Counsel. [Enclosure] RE-DRAFT DIsTRICT OF COLUMBIA REGULATIONS TITLE 12 OCCUPATIONAL AND PROFESSIONAL LICENSE5 CHAPTER 26-OPTHALMIC DIsPENSING Proposed by Guild of Prescription Opticians of Washington, D.C., 917-15th Street, Northwest, Washington, D.C. 20005, Robert W. Burton, Counsel PAGENO="0274" 270 OPTOMETRY (DRAFT) C0MX!Issloiczn's ORDERS (DATE). Subject: Reorganization Order No. 59, as amended Department of Occupations and Professions Ordered: That Reorganization Order No. 59, as amended, dated June 30, 1953, relating to the Department of Occupations and Professions, is hereby further amended by adding at the end of PART XIV, a PART XV as follows: "PART XV. DISPENSING OPTICIAN LICENSING COMMISSION, DISPENSING OPTICIAN EXAMINING BOARD, AND DISPENSING OPTICIAN HEARING COMMITTEE "A. Establishment. Pursuant to authority contained in paragraph 45 of Section 7 of the Act of July 1, 1902, as amended, (D. C. Code, 1901 edition, section 47-2344), there is hereby established, within the Department of Occupations and Professions, a Dispensing Optician Licensing Commission, a Dispensing Optician Examining Board, and Dispensing Optician Hearing Committee. "B. Delegation of Fanctions and Authority. The Dispensing Optician Licens- ing Commission, the Dispensing Optician Examining Board, and the Dispensing Optician Hearing Committee shall be responsible for the technical and profes- sional functions of administering the licensing program governing ophthalmic dispensing established by regulations approved by the Commissioners (date), and the Director of the Department of Occupations and Professions shall be responsible for the administrative functions of administering such licensing program. The Dispensing Optician Licensing Commission is hereby authorized to approve or reject applications for licensure and to make final determinations in connection with the issuance, denial, suspension, or revocation of licenses. The Dispensing Optician Examining Board is hereby authorized to make final determinations in connection with time, place, content, conducting, and results of examinations administered to applicants for licensure. The Dispensing Op- tician Hearing Committee is hereby authorized to conduct a public hearing and render a decision whenever the Dispensing Optician Licensing Commission contemplates denying, suspending, or revoking a license. The Director of the Department of Occupations and Professions is hereby authorized to make decisions with respect to fiscal, administrative, and house- keeping matters. "C. Composition and Qualifications. 1. The Dispensing Optician Licensing Commission shall be composed of the Director of the Department of Occupations and Professions and two members appointed by the Board of Commissioners. An appointed member must be licensed in the District of Columbia as a Dispensing Optician and must have had at least five years of experience in the practice of opthalmic dispensing in the Dis- trict of Columbia prior to his appointment. He must be actively engaged n the practice of ophthalmic dispensing in the District of Columba at the time of such appointment. 2. The Dispensing Optician Examining Board shall be composed of five mem- bers appointed by the Board of Commissioners. Two members shall be opthal- mologists duly licensed to practice in the District of Columbia; and three mem- bers shall be Dispensing Opticians duly licensed to practice in the District of Columbia. Each such member shall have had at least five years of experience in practice in the District of Columbia and shall be actively engaged in such practice in the District of Columbia at the time of his appointment, and at least one of the Dispensing Optician members shall be licensed to dispense contact lenses in the District of Columbia. 3. The Dispensing Optician Hearing Committee shall be composed of the Director of the Department of Occupations and Professions and two members appointed by the Board of Commissioners. One appointed member shall be an attorney-at-law who is authorized to practice in the District of Columbia, and one appointed member shall be a Dispensing Optician licensed to practice in the District of Columbia. Each appointed member ~ have had at least five years of experience in such practice in the District of Columbia and shall be actively so engaged at the time of his appointment. PAGENO="0275" OPTOMETRY 271 "D. Terrn$ of Appointment. 1. The two appointed members of the Dispensing Optician Licensing Commis- sion shall hold office for three years, except that of the initial appointments of members following the effective date of this PART, one shall serve for two years and one shall serve for three years. Following establishment of this Commission, all provisions of PART V of this Order shall apply. 2. The members of the Dispensing Optician Examining Board shall hold office for three years, except that of the initial appointments of members following the effective date of this PART, of the ophthalmologists appointed one shall serve for two years and the other for three years, and of the three Dispensing Opticians appointed one shall serve for one year, and one shall serve for two years, and one shall serve for three years. Following the establishment of this Board, all provisions of PAR.T V of this Order shall apply. 3. The two appointed members of the Dispensing Optician Hearing Commit- tee shall hold office for three years, except that of the initial appointments of members following the effective date of this PART, one shall serve for two years and one shall serve for three years. Following establishment of this Committee, all provisions of PART V of this Order shall apply. "E. Applicability. Except where inconsistent with this Part, all other Parts of this Order shall apply to the Dispensing Optician Licensing Commission, the Dispensing Optician Examning Board, and the Dispensing Optician Hearing Committee." By order of the Board of Commissioners, D.C. TITLE 12. OCCUPATIONAL AND PROFESSIONAL LICENSES, CHAPTER 26 OPHTHALMIC DISPENSING Purpose 12-2601 Scope of Regulations _ 12-2602 Definitions 12-2603 Unlawful acts - 12-2604 Exemptions 12-2605 Grandfather clause 12-2606 QUALIFICATIONS FOR LICENStIIIE For license by examination 12-2607 For license by endorsement 12-2608 APPLICATIONS FOR LICENSE Filing of application 12-2609 Photographs of applicant required 12-2610 Application to be notarized - 12-2611 Application not duly made 12-2612 False statements, disqualifications 12-2613 Application for a license by examinatlon_ - 12-2614 EXAMINATIONS Examination, frequency, place 12-2615 Nature of examination 12-2616 Exception 12-2617 Type and content of examination - 12-2618 Examination rules 12-2619 Infraction of examination rules 12-2620 Scoring of examination 12-2621 Notification of examination results 12-2622 Second and subsequent examinations 12-2623 ISSUANCE OF LICENSE License to be issued 12-2624 Director to prepare and issue license 12-2625 ISSUANCE OF LICENSE RENEWAL Annual renewal required 12-2626 Filing of renewal application 12-2627 Issuance of annual renewal 12-2628 Lapse of license 12-2629 Restoration of a lapsed license 12-2630 Inactive status 12-2631 Restoration to active status 12-2632 PAGENO="0276" 272 OPTOMETRY TITLE 12. OCCUPATIONAL AND PROFESSIONAL LICENSES, CHAPTER 26-Con. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE Grounds for denial, suspension or revocation of license 12-263,3 Investigation of grounds 12-2634 Opportunity for applicant or licensee to have a hearing 12-2635 Notice of contemplated action. Request for hearing and notice of hearing 12-2636 Procedure when a person fails to request a hearing 12-2637 Notice of hearing 12-2638 Method of serving notice of contemplated action and notice of hearing 12-2639 Procedure when a person fails to appear for a requested hearing 12-2640 Majority of Committee to hear and decide - 12-2641 Rights of person entitled to hearing 12-2642 Powers of the Committee in holding hearing -- 12-2643 Contempt procedures 12-2644 Evidence 12-2645. Burden of proof 12-2646 Transcript of proceedings 12-2647 Manner and time of rendering Committee decision -- 12-2648 Content of Committee decision 12-2649 Notification by Commission of final determination 12-2650 Service of written notice 12-2651 Reopening proceedings 12-2652 Reconsideration or reinstatement 12-2653 CONTACT LENS REGULATIONS Dispensing Optician-Class II to be In active charge 12-2654 Work to be performed in prssence of 1)ispensing Optician 12-2655 Prohibition against contact lens dispensing without prescription 12-2656 MISCELLANEOUS REGULATIONS Licensee to be in charge and on duty 12-2657 Display of license required 12-2658 Prescriptions to be on file and open to inspection 12-2659 Notification of change of name or address required 12-2660 Fees to be collected for services rendered 12-2661 Enforcement 12-2662 Effective date 12-2663 Severability provision 12-2664 12-2601. Purpose. In promulgating these Regulations, the Commissioners de- clare their purpose to be the establishment of a licensing program which will protect the public from incompetent or unqualified persons who might attempt to practice ophthalmic dispensing in the District, and which will protect qualified and ethical practitioners from the unfair competition of unethical and unfit persons. 12-2602. Scope of Regulations. The scope of the Regulations in this chapter extends to the examination, licensure. registration, and regulation of persons practicing ophthalmic dispensing in the District of Columbia. 12-2603. Definitions. As used in this chapter, unless the context requires a different meaning, the following terms shall mean: "Board": the District of Columbia Dispensing Optician Examining Board established by PART XV of Reorganization Order No. 59 (amended); "Commission": the District of Columbia Dispensing Optician Licensing Com- mission established by PART XV of Reorganization Order No. 59 (amended) "Commissioners": the Commissioners of the District of Columbia sitting as a Board; "Committee": the District of Columbia Dispensing Optician Hearing Com- mittee established by PART XV of Reorganization Order No. 59 (amended); "Department": the Department of Occupations and Professions; "Director": the Director of the Department of Occupations and Professions; "Dispensing Optician-Class I": a person licensed by the Commission to practice ophthalmic dispensing excluding the filling of prescriptions for contact lenses; "Dispensing Optician-Class II": a person licensed by the Commission to practice ophthalmic dispensing including the filling of prescriptions for contact lenses; "District": The District of Columbia; "He and derivatives thereof": shall also be construed to include she and derivatives thereof; "Ophthalmic Dispensing": a person practices ophthalmic dispensing who pre- pares and dispenses lenses, spectacles, eyeglasses, contact lenses, and/or appur- tenance thereto to the intended wearer thereof on the written prescriptions of physicians or optometrists duly licensed to practice their professions, and in accordance with such prescriptions interprets, measures, adapts, fits, and ad- PAGENO="0277" OPTOMETRY 273 justs such lenses, spectacles eyeglasses, contact lenses, and/or appurtenances thereto to the human face for the aid or correction of visual or ocular anomalies of the human eyes. The services and appliances relating to ophthalmic dis- pensing shall be furnished, dispensed, or supplied to the intended wearer or user thereof only upon prescription of a physician or optometrist, but duplica- tions, replacements, reproductions, or repetitions may be done without pre- scriptions. In which event, any such act shall be construed to be ophthalmic dispensing the same as if performed on the basis of a written original pre- scription. `Person": any natural person, firm, partnership, corporation, or association. 12-2604. Unlawful acts. (a) On and after the effective date of these Regulations, the following shall constitute unlawful acts: (1) For any person practicing ophthalmic dispensing in the District to at- tempt to determine the refractive powers of the human eyes, or in any manner attempt to diagnose, prescribe for, or treat diseases or ailments of the human eyes. (2) For any person practicing ophthalmic dispensing in the District to make or maintain any display of equipment that would tend to mislead the public into the belief that eye examinations are being made on the premises in con- nection with ophthalmic dispensing. .(b) On and after the ninetieth day following the effective date of these Regulations, the following shall constitute unlawful acts: (1) Except as otherwise provided in these Regulations, for any person to practice ophthalmic dispensing in the District unless duly licensed as a Dis- pensing Optician. (2) Except as otherwise provided in these Regulations, for any person en- gaged in the business of ophthalmic dispensing in the District to permit anyone in his employ to practice ophthalmic dispensing unless such employee is duly licensed as a Dispensing Optician. (3) Except as otherwise provided in these Regulations, for any person to engage in contact lens dispensing unless duly licensed as a Dispensing Optician- Class II; or to permit anyone in his employ to practice, or assist in the practice of contact lens dispensing unless under the personal supervision of the person duly licensed as a Dispensing Optician-Class II. 12-2605. Eccemptions. (a) Nothing in these Regulations shall apply to duly licensed physicians or optometrists, or to an employee of any such physician or optometrist when working in his office and under his personal supervision. (b) Nothing in these Regulations shall apply to a trainee, apprentice, un- licensed optician, or other person when working in the same office and under the personal supervision of a duly licensed Dispensing Optician. (c) As used in subsections (a) and (b) above, "personal supervision" shall be construed to mean that a licensed physician, optometrist, or dispensing optician shall be available to assist at all times when any such employee, trainee, apprentice, unlicensed optician, or other person is engaged in ophthalmic dispensing. (d) Nothing contained in these Regulations shall be construed as preventing the sale of spectacles for reading purposes, toy glasses, goggles, or sun glasses consisting of plano white, piano colored or plano tinted glasses, or ready-made nonprescription glasses, nor shall anything in these Regulations be construed as affecting in any way the manufacture and sale of plastic or glass artificial eyes or as affecting any person engaged in said manufacture or sale of plastic or glass artificial eyes. (e) Nothing in these Regulations shall apply to any person employed by the United States Government or any Agency thereof, while, such person is acting in the discharge of his official duties. 12-2606. Grandfather clause. (a) Any person of good moral character who is at least nineteen years of age and has `been engaged in the full-time practice of ophthalmic dispensing in the District for at least two years prior to the effective date of these Regu- lations shall be licensed by the Commission, without examination, as a Dis- pensing Optician-Class I upon making proper application and payment of the required fee or fees within one year following the effective date of these Regulation~. PAGENO="0278" 274 OPTOMETRY (b) Any person, qualified for licensure under subsection (a) above upon making proper application and payment of the required fee or fees within one year following the effective date of these Regulations, shall be licensed by the Commission as a Dispensing Optician-Class II upon successfully passing such practical examination in the filling of contact lens prescriptions as the BOard may require. (c) Where any person has been engaged for two years in the full-time prac- tice of ophthalmic dispensing in the Metropolitan Area of Washington, and during such time has been employed by or associated with an ophthalmic dis- penser or ophthalmic dispensing firm whose main or comparable office has been in the District during such period, shall be considered to have been so engaging in the District for the purposes of subsections (a) and (b) above; and the "Metropolitan Area of Washington" for this purpose is hereby defined as the "District of Columbia, Montgomery and Prince George's Counties in the State of Maryland, Arlington and Fairfax Counties in the Commonwealth of Virginia, the City of Alexandria, and any city, township, or other political or incorporated subdivision within the geographical perimeter of the w-hole." QUALIFICATIONS FOR LICENSURE 12-2607'. For license by enamination., Every applicant for a license by examina- tion must furnish proof satisfactory to the Commission that he has the following qualifications: (a) Is at least 19 years of age; (b) is of good moral character; (c) is a high school graduate or has had equivalent education as determined by the District of Columbia Board of Education: (d) has either (1) satisfactorily completed a one year course of study in a school of ophthalmic dispensing approved by the Commission or (2) had at least one year of satisfactors- training and experience in ophthalmic dispensing; (e) has passed such examination in ophthalmic dispensing as the Board may require; and (f) has paid all required fees. 12-2608. For license by endorsement. (a) to be eligible for license by endorsement to practice as a Dispensing Optician-Class I in the District. *an applicant must furnish satisfactory proof to the Commission that he has the following qualifications: (1) He has been duly licensed as an optician, by examination, in another state or territory of the United States. or a recognized foreign country, wherein the requirements for licensure are substantially the same as those in effect In the District, and currently is in good standing. (2) He meets the qualifications specified in subsections (a), (b), and (f) of Section 12-2607 of these Regulations. (b) Any person who meets the qualifications of subsection (a) of this Sec- tion, shall be eligible for a license to practice as a Dispensing Optician-Glass II in the District upon successfully passing such practical examination as the Board may require in the filling of contact lense prescriptions. APPLICATIONS FOR LICENSE 12-2609. Filing of application.. Every applicant for a license shall duly file with the Director an application on a form prescribed by the Commission and provided by the Director. All required documents must be attached to the appli- cation at time of filing. 12-2610. Pliotograpl~s of applicant required. Every application for a license must be accompanied by two recent photographs of the applicant, measuring one inch by one-and-a-half inches. 12-2611. Application to be notarized. Every application for a license shall be sworn or affirmed to before a notary public. 12-2612. Application not duly made. The Commission shall review and take action on all duly made applications. How-ever, the applicant for a license has upon him the burden of proving that he meets the qualifications required for obtaining the license sought. The Commission may not presume qualifications not shown on the application. The Commission may refuse to act on an appli- cation and may require the applicant to submit additional information, if the application contains incomplete, evasive, or insufficiently supported assertions where supporting evidence is required. PAGENO="0279" OPTOMETRY 275 12-2613. False statements, dis qualifications. The Commission may, after notice and opportunity for hearing, disqualify the application of an applicant for a license, (a) if the applicant has knowingly made or allowed to be made on his behalf, either to the Commission or to any officer or employee of the Depart- ment, any false or misleading statements in connection with his application; or (b) if the applicant has attempted improperly to influence any member of the Commission or the Board of any officer or employee of the Department in the discharge of his duties relating to the application of the applicant. At the discretion of the Commission, any applicant whose application has been so disqualified may reapply for the license desired. 12-2614. Application I or a license by examination. Every applicant for a license by examination shall file his application not later than thirty days prior to the date of the examination for which he desires to sit. The Director shall notify each applicant of the Commission's action with respect to his eligibility to take the examination. At least ten days prior to the examination, the Director shall notify each eligible applicant of the time and place of examination. EXAMINATIONS 12-2615. Examination, frequency, place. The Board shall conduct in the Dis- trict at least one examination semi-annually. The Board may, however, schedule such additional examinations as it determines to be necessary. The Board shall fix the time and place for each examination. 12-2616. Nature of examination. The examination administered to applicants for licensure as a Dispensing Optician-Class I or Dispensing Optician-Class II shall be both written and practical in nature. The Board may, however, when the circumstances so warrant, permit the written portion of the examination to be administered orally. 12-2617. Exception. The preceding Section shall not be construed as applying to an applicant for licensure as a Dispensing Optician-Class II who meets the qualifications of subsection (a) of Section 12-2608 of these Regulations. Such an applicant shall only be required to pass a practical examination in the filling of contact lens prescriptions. 12-2618. Type and content of examination. (a) The written portion of the examination shall consist of objective type questions pertaining to opthalmic dispensing as defined in Section 12-2603 of these Regulations. (b) The practical portion of the examination shall consist of a demonstration by the applicant of his knowledge and skill in the actual practice of ophthalmic dispensing as defined in Section 12-2603 of these Reg~ulations. Provided, however, That applicants for a Dispensing Optician-Class I license shall not be required to demonstrate their knowledge and skill in the filling of contact lens prescrip- tions. 12-2619. Examination rules. The examination shall be administered to appli- cants in accordance with the examination rules established by the Board. 12-2620. Infraction of examination rules. At the discretion of the examiner in charge, any applicant may be excluded from the examination for violating the examination rules. An applicant who is deemed guilty of dishonesty during an examination may be excluded by the Commission from future examinations for a period of not more than 3 years. 12-2621. Scoring of examination. (a) Each portion of the examination shall be scored on the basis of 100 points. In order to be eligible for a license, an applicant must attain a score of at least 70 on the written portion of the examination and a score of at least 70 on the practical portion of the examination. An applicant for a license as a Dispensing Optician-Class II must, in addition, attain a score of at least 70 on the practical demonstration of his irnowledge and skill in filling contact lens prescriptions. However, in its discretion, the Board may allow reexamination in the failed parts only at the next examination. (b) In order to be eligible for a license as a Dispensing Optician-Class II, an applicant who meets the qualifications of subsection (a) of Section 12-2608~ of these Regulations must attain a score of at least 70 on the practical demon- stration of his knowledge and skill in filling contact lens prescriptions. 12-2622. Notification of examination results. The Director shall notify each applicant of the examination results as determined by the Board. 12-2623. Second and subsequent examinations. Any person who fails his first examination may reapply and sit for subsequent examinations. Provided, how- ever, That an applicant who has failed three examinations shall be permitted PAGENO="0280" 276 OPTOMETRY to take a fourth examination only after presenting satisfactory proof to the Commission that he has, since failing his third examination, received such addi tional training in ophthalmic dispensing as the Commission may require. ISSUANCE OF LICENSE 12-2624. License to be issued. A license to practice in the District as a Dispen- sing Optician shall be issued to each applicant who meets all of requirements for such a license. The Commission shall certify the name of each such applicant to the Director. 12-2625. Director to prepare and issue license. The Director shall prepare and issue a license for each duly qualified applicant certified to him by the Commission. ISSUANCE OF LICENSE RENEWAL 12-2626. Annual renewal required. Every license in good standing issued in accordance with these Regulations shall expire on the 31st day of January of each year and must be renewed annually in order to remain in good standing. Approximately sixty days prior to the annual expiration date, the Director shall mail an application for renewal to the last known address of each person holding a license in good standing. 12-2627. Filing of renewal application. Each person holding a license in good standing issued in accordance with these Regulations shall file with the Direc- tor, on or before the 31st day of January of each year, an application for renewal of his license, accompanied by the required renewal fee. 12-2628. Issuance of annual renewal. Each year, upon receipt of a renewal application and the required renewal fee, and upon verifying the absence of any reason for withholding renewal, the Director shall issue a renewal of the license concerned, for the period beginning February 1 of that year and ending January 31 of the following year. 12-2629. Lapse of license. Any person holding a license in good standing who fails to file an application for renewal and pay the required renewal fee on or before the 31st day of January of any year may be considered to be guilty of practicing without a license if, on or after February 1 of that year, he engages in the business of or practices ophthalmic dispensing in the District. 12-2630. Restoration of a lapsed license. Any person who has permitted his license to lapse in the manner specified in Section 12-2629 of these Regulations, may restore his license to good standing by duly filing a current renewal appli- cation, accompanied by the annual renewal fee and late-filing fee for each license year, or portion thereof, in which his license was in a lapsed status. Provided, however, That the provisions of this Section shall not apply to the period of time during wiuich a licensee is in an inactive status as provded for hi Section 12-2631 of these Regulations. 12-2631. Inactive status. Any person holding a license but not so practicing in the District, my apply to the Director, in writing, for inactive status. Upon being so notified, the Director shall place the name of such person on the non- practicing list. While remaining in such inactive status, the holder of a license shall not be subject to the payment of any annual renewal fee and he shall not engage in the business of or practice ophthalmic dispensing in the District. 12-2632. Restoration to active status. Any person on the nonpracticing list may restore his license to active status by requesting such a change in status and filing with the Director a properly completed application and renewal fee for the current license year. Provided, however, That a person who perniitted his license to lapse prior to requesting inactive status, must comply with the restoration provisions contained in Section 12-2630 of these Regulations. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE 12-2633. Grounds for denial, suspension or revocation of license. The Com- mission may refuse to issue or may suspend or revoke any license to practice ophthalmic dispensing in the District, for any one or combination of the follow- ing grounds: A person (a) has been guilty of fraud or deceit in procuring or attempting to procure a license required by these Regulations; (b) has been convicted of a crime involving moral turpitude; PAGENO="0281" OPTOMETRY 277 (c) has willfully or repeatedy violated any provision of these Regulations promulgated by the Commissioners; (d) is an intemperate consumer of intoxicating liquors or is addicted to the use of habit-forming drugs; (e) is guilty of conduct which disqualifies him to practice ophthalmic dispens- ing with safety to the public; (f) is guilty of hiring, supervising, permitting, or aiding unlicensed persons to practice ophthalmic dispensing in the District, except as authorized by Sec- tion 12-2605 of these Regulations; (g) is guilty of practicing while his license is suspended; (h) has willfully deceived or attempted to deceive the Commission with ence to any matter which it has under investigation; (i) is guilty of making any rebate of any kind to any person for directing ophthalmic dispensing business to him or his establishment; (j) is guilty of advertising individual superiority in the performance of ophthalmic dispensing services, or advertising in a manner derogatory of others performing similar services. (k) who knowingly practices in the employment of, or in association with, any person who is unlawfully practicing ophthalmic dispensing. 12-2634. Investigation of grounds. The Commission may upon its own motion and shall upon the sworn complaint in writing of any person setting forth charges which, -if proved, would constitute grounds for refusal, suspension, or revocation of the license as hereinabove set forth, request the Director to investigate the actions of any person holding, claiming to hold, or applying to hold any license provided for in these Regulations. 12-2635. Opportunity for applicant or licensee to have a hearing. Every licensee or applicant for a license, except applicants for reinstatement after revocation, shall be afforded notice and an opportunity to be heard prior to the action of the Commission, the effect of which would be: (a) to deny permission to take examination for a license, for which applicant has correctly filed and whose application has been accepted; (b) to deny a license after examination for any cause other than failure to pass an examination; (c) todeny a license by endorsement to an applicant who meets the qualifica- tions specified in Section 12-2608 of these Regulations; (d) to suspend a license; or (e) to revoke a license. 12-2636. Notice of contemplated action. Request for hearing an4 notice of hearing. (a) When the Commission contemplates taking any action of the type speci- fied in subsections (a), (b), or (c) of Section 12-2635 of these Regulations, it shall give to the applicant a written notice containing a statement: (1) that the applicant has failed to satisfy the Commission as to his qualifica- tions to sit for examination or to be issued a license, as the case may be; (2) indicating in what respect the applicant has failed to satisfy the Com- mission; and (3) that the applicant may secure a hearing before the Committee by deposit- ing in the mail within twenty days after service of said notice, a certified letter addressed to the Commission and containing a request for a hearing. (b) When the Commission contemplates taking any action of the type specified in subsections (c) or (d) of Section 12-2635 of these Regulations, it shall give the licensee a written notice containing a statement: (1) that the Commission has sufficient evidence, and setting forth the same, which, if not rebutted or explained, justifies the Commission in taking the con- templated action; and (2) that unless the licensee, within twenty days after service of said notice, deposits in the mail a certified letter addressed to the Commission and contain- ing a request for a hearing, the Commission will take the contemplated action. - 12-2E~37. Procedure when a person fails to request a hearing. If an applicant for or holder of a license does not mail a request for a hearing within the time and in the manner required by Section 12-263(1 of these Regulations, the Com- mission may, without a hearing, take the action contemplated in the notice. The Cnmmission shall. in writina. inform the applicant or licensee, the Corpora- tion Counsel, and the Director of the Commission's action. 12-2638. Notice of hearing. If an applicant for or holder of a license does mail a request for a hearing as required in - Section 12-263(1 of these Regulations, PAGENO="0282" 278 OPTOMETRY the Commission shall within twenty days of receipt of a request, notify the applicant or licensee of the time and place of hearing, which hearing shall be held by the Committee not more than thirty days nor less than ten days from the date of service of such notice. 12-2639. Method of serving notice of contemplatedactjo7z. and notice of hearing. Any notice required by Section 12-2636 or Section 12-2638 of these Regulations, may be served either personally by an employee of the Department or by certified mail, return receipt requested, directed to the applicant for or holder of a license, at his last known address as shown by the records of the Department,. If notice is served personally, it shall be deemed to have been served at the time when delivery is made to the person addressed. When notice is served by certified mail, it shall be deemed to have been served on the date born upon the return receipt showing delivery of the notice to the addressee or refusal of the addressee to receive notice. In the event that the addressee is no longer at the last known address as shown by the records of the Department and no for- warding address is available, the notice shall be deemed to have been served on the date the return receipt bearing such notification is received by the Department. 12-2640. Procedure when a person fails to appear for a requested hearing. If an applicant for or holder of a license who has requested a hearing does not appear and no continuance has been or is granted, the Committee may hear the evidence of.such witnesses as may have appeared, and the Committee may pro- ceed to consider the matter and render a decision on the basis of evidence before it, in the manner required by Section 12-2641 of these Regulations. 12-2641. Majority of Committee to hear and decide. At each hearing, at least a majority of the members of the Committee shall be present to hear the evidence and render a decision. 12-2642. Rights of person entitled to hearing. A person entitled to a hearing shall have the right: (a) to be represented by counsel; (b) to present all relevant evidence bymeans of witnesses and books, papers, and documents; (c) to examine all opposing witnesses on any matter relevant to the issues; and (d) to have subpoenas issued to compel the attendance of witnesses and the production of relevant books, papers, and documents upon making written request therefor to the Committee. 12-2643. Powers of the Committee in holding hearings. In connection with any hearing held, the Committee shall have the power: (a) to request of the Commissioners that counsel from the Office of the Cor- poration Counsel be appointed to represent the District in any case before the Committee; (b) to administer oaths or affirmations to witnesses called to testify; (c) to subpoena witnesses and relevant books, papers, and documents; (d) to take testimony; (e) to examine witnesses; and (f) to direct continuance of any case~ 12-2644. Contempt procedures. In proceedings before the Committee, if any person refuses to respond to a subpoena or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or refuses to obey any lawful order of the Commission rendered pursuant to a decision made by the Commit- tee after hearing, the Commission may make application to the proper court for an order requiring obedience thereto. 12-2645. Evidence. In all proceedings held by the Committee, the Committee shall receive and consider any evidence or testimony. However, the Committee may exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence or testimony. 12-2646. Burden of proof. (a) In any Committee proceeding resulting from the Commission's contem- plated action to deny a license, the applicant shall have the burden of satisfying the Committee of his qualifications. (b) In any Committee proceeding resulting from the Commission's contem- plated action to refuse to renew, to suspend, or to revoke a license, the District Government shall ha've the duty of producing evidence to establish that a prima facie case exists for refusing to renew, suspending, or revoking a person's license, and when such evidence is produced, then such person shall have the burden thereafter of going forw-ard w-ith the evidence. PAGENO="0283" OPTOMETRY 279 12-2647. Transcript of proceedings. In all hearings conducted by the Commit- tee, a complete record shall be made of all evidence presented during the course of a hearing. 12-2648. Manner and time of rendering Committee decision. The members of the Committee who conduct the hearing shall submit their decision to the Com- mission, in writing, as soon as. practicable, but not later than sixty days after the date the hearing is completed. 12-2649. Content of Committee decision. The decision of the Committee shall contain: (a) findings of fact made by the Committee; (b) application by the Committee of these Regulations to the facts as found by the Committee; and (c) the decision of the Committee based upon (a) and (b) of this section. 12-2650. Notification by Commission of final determination. Within thirty days following receipt of a Committee decision rendered after hearing, the Commis- sion shall notify the applicant or licensee concerned, in writing, of the final deter- mination of the matter at issue. In any such matter, the Commission shall not make a final determination which is inconsistent with the Committee decision in such matter. The notification of final determination shall contain the Order of the Commission based upon the decision of the Committee and a statement informing the applicant or licensee involved, of his right to appeal to the court and `the time within such an appeal may be sought. A copy of the Committee deci- sion shall be attached to the notification of final determination. 12-2651. Service of written notice. The written notification of final determina- tion shall be served upon the `applicant or licensee involved, or his attorney of record, either personally or by certified mail. If sent by certified mail, it shall be deemed to have been served on the date contained on the return receipt. 12-2652. Reopening proceedings. Where, because of accident, sickness, or other good cause, a person fails to receive a hearing or fails to appear for a hearing which he has requested, the person may, within thirty days from the date born upon the Commission's notification of final determination, apply to the Com- mission to reopen the proceedings; and the Commission, upon finding such cause sufficient, shall authorize the Committee to immediately fix a time and place for hearing and give the person, the Corporation Counsel, the Director, and the Commission notice thereof, as required by these Regulations. The Corn- mission may also reopen a proceeding for any other cause sufficient to it, pro- vided no appeal is pending before a court or has been decided by a court. 12-2653. Reconsideration or reinstatement. Upon the application, after six months, of any person who has been denied a license or who has had a license revoked by the Commission, the Commission may, upon showing of cause satis- factory to it, reinstate the license or issue a new one. CONTACT LENS REGULATIONS 12-2654. Dispensing Optician-Class II to be, in active charge. Every place of business in the District wherein the practice of ophthalmic dispensing includes the filling of contact lens prescriptions must have a Dispensing Optician-Class II in full charge of the filling of contact lens prescriptions, and on duty at all times when such ophthalmic dispensing is practiced. 12-2655. Work to be performed in presence of Dispensing Optician. No' Dis- pensing Optician-Class II who is in chargé of the filling of contact lens prescrip- tions in the District shall permit. any trainee, apprentice, unlicensed optician, or other person, to perform any ophthalmic dispensing service required in the fill- ing of contact lens prescriptions which involves physical contact with the intended wearer, unless under the constant direct, visual supervision of a Dispensing Optician-Class II. . 12-2656. Prohibition against contact lense dispensing without prescription. (a) It shall be a violétion of these Regulations for any Dispensing Optician- Class II to dispense, attempt to dispense, or test any contact lens or lenses in the District to or on the intended wearer thereof unless such intended wearer has a recent prescription for a contact lens or lenses from a duly licensed ophthalmologist and/or physician. (b) Before or upon completion of the filling of a contact lens prescription, including the fitting, adapting, and instruction in wearing, proper handling and care, such Dispensing Optician shall contact and receive from such ophthalmolo~ gist and/or physician full instructions as to delivery of such lens or lenses. Unless such Dispensing Optician has been otherwise so instructed or directed PAGENO="0284" 280 OPTOMETRY he shall be responsible for delivery of such contact lens or lenses directly to the ophthalmologist and/or physician who wrote the prescription, and not to the intended wearer. (c) Duplications and/or replacements of contact lenses shall be dispensed under the same formula or procedure as provided for in subsections (a) and (b) above, except that no new or duplicate prescription or instructions shall be required. (d) When the Dispensing Optician-Class II has been instructed or directed to make delivery direct to the intended wearer of a contact lens or of contact lenses, it shall be his responsibility to promptly notify the ophthalmologist and/or physician in writing that delivery has been made to his patient as per his instruc- tions and/or direction. MI5CELLANEOTJ5 REG~JLATIONS 12-26~57. Licen~see to be in charge and an duty. Every place of business in the District wherein ophthalmic dispensing excluding the filling of contact lens prescriptions is practiced. must have a Dispensing Optician of either Class in full charge of ophthalmic dispensing and on duty at all times when ophthalmic dispensing is practiced. 12-243~8. Display of license required. Each person to whom a license has been issued shall keep such license displayed in a conspicuous place in his principal office or place of business wherein he practices ophthalmic dispensing. He shall, upon request, exhibit such license to any authorized agent of the Department. Should any licensee maintain more than one office or place of business in which he practices ophthalmic dispensing, he shall keep a duplicate of his original license displayed in a conspicuous place in each such additional office or place of business in which he practices ophthalmic dispensing. 12-2659. Prescriptions to be an file and open. to inspection. Every person engaged in the business of ifiling precriptions for ophthalmic dispensing services shall maintain records in an accessable location in the District in which shall be preserved, for a period of at least three years, the original or a true copy of every prescription for ophthalmic dispensing services filled by him. Upon request, the Dispensing Optician or other person in charge of such records shall furnish to the prescribing physician or optometrist, or to the person for whom such precription was written, a true and correct copy thereof. All prescriptions, files and records pertaining to the sale of ophthalmic dispensing services to any individual shall at all times be open to inspection by duly authorized agents of the Department; and upon notice and at reasonable times all such records shall be open for such inspection. 12-2660. 2cotiflcation of change of name or address required. Each holder of a license shall, within thirty days after any change of name or address, register such change, in writing, with the Director. 12-2661. Fees to be collected for services rendered. The Commissioners shall from time to time, fix the amount of the fees which shall be charged for the following services: (a) for reviewing and processing an application for a license; (b) for administering examinations and re-examinations; (c) for issuing licenses and renewals thereof; (d) for issuing duplicates of licenses and renewals thereof; (e) for furnishing a license renewal application a second time if no timely notification of change of name or address has been made; (f) for late filing of renewal application; and (g) for any other services which may be required for administration of the licensing program established by these Regulations. 12-2662. Enforcement. Any person knowingly violating any provision of these Regulations shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished `by a fine not exceeding $300. and if, after notice by the Director or his agent, the offense is continuing in its character, each week or part of a week during which it continues shall constitute a separate and distinct offense, and, upon conviction thereof, shall be punished by a fine not exceeding $300, or by imprisonment not exceeding six months, or both, for each such offense. In the event that such person is the holder of a license provided for by these Regulations, such license may. in addition, be suspended or revoked. 12-2663. Effective date. These Regulations shall take effect on the ninetieth day following their promulgaton by the Commissioners. PAGENO="0285" OPTOMETRY 281 12-2664. &3verability vrovision. If any clause, sentence, paragraph, or Section of these Regulations shall, for any reason, be adjudged by any court of com- petent jurisdiction to be unconstitutional or invalid, such judgment shall not affect, repeal, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph or Section thereof so found un- constitutional or invalid. Mr. MILLER. Thank you. I draw these regulations to your attention because we feel it highly desirable that opticians be regulated. We have made substantial prog- ress. While we have no objections to updating the existing optometry law, we do strongly object to having the practice of the opticianry controlled by an optometry law which virtually monopolizes the field. We strongly object to defining optometry and regulating it as though it and it alone bears the sole responsibility for the eyecare of the people of the District of Columbia. We strongly object to the bill treating dispensing opticians almost as though they did not exist, while taking away from opticians much of their essential and tradi- tional practice under t.he guise that all the areas I have discussed are solely optometric in character and subject solely to optometric regula- tion. Opticians are proud of their heritage. They are proud of the service they have rendered in the. District of Columbia. They want to be able to continue this service, and improve this service if and as necessary, but they want. it done under their own regulations or law. Opticians must and will oppose these bills and any other bills which contain the proposed all-encompassing definition of optometry in Sec- tion 3, and which contain the inadequate language of the non-appli- cability clause in Section 9(c). We had submitted amending language to both sections with my letter of March 31, 1966, and we respectfully request the adoption of such amendments should the Committee decide for any reasoh to take fav6rable action on any of the pending bills. Iwant to single out for your special attention our proposed amend- ment to Section 9 paragraph (c). It reads: This Act shall not apply to any person who as a dispensing optician fills the prescription of a physician, surgeon or an optometrist for eyeglasses or spectacles, or to any person who fits contact lenses only on the written prescrip- tion and at the direction of a physician or surgeon, or to any person who duplicates, repairs, replaces or reproduces previously prepared lenses, eyeglasses, spectacles, or appurtenances thereto, including their adaptation to the wearer, and who does not practice or profess the practice of optometry. In conclusion, there are three reasons why H.R. 12276 and other substantially identical bills should not be reported out of this Sub- committe: 1. They would substantially change the traditional pattern of eyecare of this city-without sufficient justification; 2. They would-again without justification-place unbearable hardships on dispensing opticians forcing some of them either out of business Or into the suburbs; 3. Instead of being in the public interest, the bills would place unreasonable and ridiculous burdens of expense and inconvenience upon the general public. Mr. SIsK. Thank you, Mr. Miller. You spoke for about 30 minutes, thus you received 10 minutes for each one of your organizations. What organization besides the Guild in the District do you represent? 82-7fi4 O-57-----i9 PAGENO="0286" 282 OPTOMETRY Mr. MILLER. The National Association of the Guild of Opticians of America, Incorporated, the Washington Guild of Washington, D.C., and the District of Columbia Association. of Dispensing Opticians. I am sorry that the president of that organization *as not able to be here this morning, because I know he wanted to says a few words to the:Committee about the statement that I made, endorsing the state- ment, and about the constitution of that orga.nizaion. Mr. SIsK. Is that practically the same group that is represented as the United Optical Workers? Is that the union under which your group generally operates? Mr. MILLER. On the contrary. Mr. SIsK. I begyour pardon? Mr. MILLER. No, the answer is "No". The Optical Workers Union? Mr. SISK. Yes. The United Optical Workers Union, I believe that is the correct name. Mr. MILLER. The members of the Guild are primarily employers, and this is the major group that I represent. We are not related to the union in any way. Mr~ SIsK. In other words, you say that you represent the corporate part? Mr. MILLER. No~ we represent the opticians who may practice either as individuals or partners-some of them do practice, do have a corporate setup. Mr. SIsK. The United Optical Workers Union which testified earlier represented a. considerable number of opticians. I am curious to learn where the conflict is. I do not quite distinguish between who you represent and who the Union represents. Mr. MILLER. If there is such conflict iwyour mind, let me state that there is not any conflict.. Mr. SIsK. I am not saying that there is a.ny conflict. I am seeking information for the record, to clarify it as to whether or not we are talking about the same group of people. Mr. MILLER. Our members are men who are in business in the field of dispensing opticianry for themselves, and they practice dispensing opticianry, either as an individual-I mean, the legal setup does not make for any business. Basically, they are independent businessmen who do not perform any functions-rather, whose primary function is the filling of prescriptions for eyeglasses.: Mr. SIsK. In other words, you are saying that the members of the Guild who are prescription opticians in the District of Columbia or in the na.tiona.l organization are not members of the United Opitical Workers Union-nOne of them? Mr. MILLER. No. The union represents primarily the wholesale optical workers and the retail optical workers, but they do not repre- sent, to my knowledge at least., the dispensing opticians. And when we say "dispensing opticians"; we are referring to the persons whO actu- ally deliver the glasses to the customers, the, one who determines what the specifications of these glasses should be' and who writes the work order for the optical' worker and who delivers the glasses to the customer when he returns to the place of business.' Mr GIDE Will~ou yield? Mr. SIsK. Yes. PAGENO="0287" OPTOMETRY* 283 Mr. GUDE.' Would it be correct that the members of the union would be employed by the members of the Guild? Is this the. case? Mr. MILLER.' It is possible. That is true; it is possible.. Mr. GUDE. In other words, the union represents the actual workers, the tecimicians? . Mr. MILLER. Yes, the technicians, but it is, again, Mr. Gude, a dif- ference. If I understand and recall correctly the union's testimony the other morning, they have one place in the District of Columbia. The only place is in the American Optical Company which is a wholesale laboratory and distributor. The type of people that would be. in the wholesale laboratory doing the mass production, the actual grinding and polishing of the lenses is not the same type of persons, necessarily, who would be the actual dispensing optician.. . Mr. GUDE. Thank you. That is all. Mr. MILLER. Frequently, they graduate from this area and become dispensing opticians. . Mr. SIsK. Let me ask you one other question, and then I will be finished. My question concerns the Hart bill, which deals primarily with.the same subject. Other subjects a:re covered which seek to eliminate the dispensing of eyeglasses by optomologists and the like. As I under- stand it, in reading the testimony, that bill was supported by the opticians. This was done on the basis that the job of a doctor was, of course, with the patient relationship and that the writing .of the pre- scriptions and the optician's job was to do the teclmical work. I am curious. Were you in support of the Hart bill? Mr. MILLER. We did not support the Hart bill. ` .. Mr. SISK. Did you oppose it? Mr. MILLER. We did not oppose it. Mr. SI5K. You had no position on the Hart bill?~ Mr. Mu~IER. We had no position. Mr. SI5K. Those are all of the questions I have. Mr. Gude? Mr. G1IDE. I have no further questions. Mr. SI5K. Thank you, Mr. Miller, for your appearance.. Mr. MILLER. Thank you very much. . . . . Mr. SI5K. The next witness, is Mr. Bernard'J. Englander, President, Group Optical Consultants, Inc., of New'York City. Is Mr. Englander present? (No response.) Mr. SI5K. All right. , . . Our next witness, Mr. Anthony Mazzocchi, Citizenship-Director, Oil, Chemical and Atomic Workers International Union, is not here today `and has requested that his statement be made a part of the record. Without objection, the prepared statement of Mr. Anthony Maz- zocchi will be included in the record at this point., ( Theprepared statement of Mr~ Anthony `Mazzocchi is as `follows:) STATEMENT OF ANTHONY MA7zOCcHI CITIzc"~sHIP I EGISLATIVE DIRECTOR Oii CHEMICAL AND AToI~rIC WORKERS INTERNATJOr~ AT UNION Organized labor is strongly opposed to the proposed legislation now before this subcommittee which would: prevent the employment of optometrists by corpora- tions, lay persons, health and welfare plans' and unions;' prevent truthful, infor- mational or pure advertising of services or materials; prevent the display of optical materials to the public; and prevent the practice of optometry, including PAGENO="0288" 284 OPTOI~EETRY the sale of optical materials in any commercial location. The effect of such legis- lation would be to give the high priced privately practicing optometrist a mo- nopoly in the area of eye care and the sale of optical merchandise and thereby greatly increaSe the cost of eyeglasses to the public. It is a known fact that these individuals mark up optical merchandise from 200 to 300%. The average working man cannot afford these exhorbitant prices and should not be forced to either pay luxury prices or go without such vital needs as eye care and eyeglasses. In light of the fact that such legislation would in no way benefit the public, its adoption would clearly be to the detriment of the public welfare. By prohibiting the optometrist from advertising or displaying his merchandise, the consumer is denied the opportunity to compare products and to select the most desirable and economic sources of optical merchandise. Especially in light of the wide price range of these products and the style and fashion aspect of selecting eyeglasses, denying the public an opportunity to obtain relevant information is a serious disservice. In addition, there are hundreds of labor unions, trust funds, and health and welfare plans throughout the nation, which, for decades, have satisfactorily and economically utilized the services of corporate sellers of eyeglasses to provide eye examinations and eye care for these members. Such corporations would no longer be permitted if this legislation were to be adopted. Further, these bills would pro- hibit a labor union, trust fund or health and welfare plan from directly employ- ing an optometrist to provide their members with eye care and eyeglasses. During the final days of the recently concluded session of the New York State Legislature, a bill wa,s passed without hearings or investigation, which would have had achieved substantially the same purposes and had the same effect as the proposed legislation now before this subcommittee. Immediately after the legis- lative approval of the New York bill (Senate Bill 333~-A) score,s of labor unions, trust funds and health and welfare plans joined news media, retail and merchant organizations and government agencies in advising the Governor of the evils of that bill and in requesting his veto. After receiving the relevant facts and argu- ments, Governor Rockefeller vetoed the bill on May 2, 1907, quoting the memo- randum of the Insurance Department to the effect that the bill would r~sult in increased costs "with no increase in the quality of service." The Governor indi- cated in his veto message that disapproval of the bill was also recommended by the New York State Department of Commerce, the New York State AFL-CIO, the Association of the Bar of the City of New York and the National A1ssociation of Optometrists and Opticians, "among numerous others." The following statements are quoted from a few of the scores of letters, memo- randa, and telegrams which were sent to Governor Rockefeller by well-re~pected labor leaders, requesting his veto of the New York Optometry bill. In a telegram of April 3, 1907, Louis Stulberg, President of the International Ladies Garment Workers Union, speaking about corporate retail sellers of eye- glasse~ who employ optometrists, said: "By restricting the continuance of this useful social service the bill would automatically raise the cost of necessary eye care for hundreds of thousands of New Yorkers who could ill afford this sort of increase. The bill is pure special in- terest legislation. It is an attempt on the part of individual practitioners to strike a blow at low-cost optical care so that they may continue their private practice unsupervised and unregulated." In a letter of April 4, 1967, Kolodny, Secretary of the United Federation of Teachers said: "This bill is clearly not in the public interest. The only effect enactment of thi,s bill could have would be to increase the income of single proprietor optometrists at the expense of the public, by limiting the number of optometrists serving the public. The legislature must protect the public welfare, and not the selfish in- terests of a small group. "The retail sale of eyeglasses by corporations has been practiced in New York State for a great many years, with great benefit to the public. The public is as- sured of proper optometric care because the optometrists who are employed by corporations, many of w-hom are union members, are fully licensed by the State and are as competent to treat the public as are optometrists in individual prac- tice. Even group plans such as HIP and GHI would be prohibited from employ- ing optometrists by this bill, to the public detriment. . . "The purpose of this bill is purely economic-namely, to corner the market for the individual optometrists. The purpose is not to raise professional standards, because otherwise optometrists would discontinue the commercial sale of eyeg1a~ses." PAGENO="0289" OPTOMETRY 285 A telegram from the New York City Central Labor Council dated April 11, 1967, sent by Harry Van Arsdale, President, Jay Rubin, Chairman of the Hospital and Medical Care Committee and Walter J. Sheerin, Coordinator, states that: "The effect of this bill would be to outlaw corporations, now providing low-cost optometric services to the public and employe~s covered by union health and wel- fare plans. "It would affect low-income workers and their families. And would not improve upon the quality of service. It is discriminating against group practice, which has proven successful and beneficial to millions of people in our ~tate and would deny many of these people needed eye care while inflating costs." In a communication dated April 11, 1967, Raymond R. (Jorbet, President of the New York State AFL-CIO stated: "The result of this bill would be that these individual optometrists would corner the market on the sale of eyeglasses, thus driving up the cost of eye care for the public as well as increasing welfare and medicaid costs. "For many years New Yorkers have benefited from group or corporate practice of optometry, which provide eye examinations by fully licensed and qualified optometrists and which are able to provide the necessary eyeglasses at reasonable price. Many union health and welfare plans have arrangements with such groups or corporations to provide glasses to their members and their families at low cost. Under this bill, group corporate practice of optometry would be prohibited. "In addition, employees of presently existing corporations in the optical field, many of whom are union members, would suffer layoffs and unemployment. This bill would serve only the special interest of the private optometrist who would have his competition eliminated and thus be assured of greater profits." A telegram dated April 11, 1967 from James Trenz, President, Local 463 IUl~, AFL-CIO, states that: "If this bill is signed eye-care and eyeglasses generally available to everyone at modest cost will be lost to many union health and welfare funds as well as to the public at large. We request you veto this bill as not in the public interest." These statements are representative of those made by scores of unions and union leaders who are deeply concerned with the public welfare. These statements clearly reflect labors' position on the proposed legislation now before this subcommittee. In the interest of the thousands of workers and members of the general public, I urge that the proposed legislation now before this subcommittee not be adopted. Mr. SIsK. The next witness is Mr. Galen E. Rowe, Jr., on behalf of the National Association of Optometrists and Opticians. We will be glad to hear from you now, Dr. Rowe. Are you a doctor Dr. ROWE. I am an optometrist, yes, sir. Mr. SIsK. Do we have a copy of your statment? Dr. ROWE. I gave it to the Clerk of the Committee. Mr. SI5K. Again, in the interest of time, I would appreciate it, if you would conform as much as possible to the time allowance. *Dr. ROWE. If I could be assured that the prepared statment would, with some additional comments, be made a part of the record, I would forego the reading of my statement and submit it for the record. Mr. SIsK. Without obiection, your entire statement will be made a part of the record, and of course, any of your oral remarks will also become a part of the record. STATEMENT OP GALEN E. ROWE, 3R., O.D., PRESIDENT, THE NATIONAL ASSOCIATION OP OPTOMETRISTS AND OPTICIANS * Dr. ROWE. Mr. Chairman and members of the Subcommittee, I will if orego the reading of this statement and will attempt to give some answers to some of the questions that have been raised by various mem- bers of the Subcommittee during the course of the testimony here. PAGENO="0290" 286 OPTOMETRY First of all, I would like to say that a question was raised as to just how fur the optometric group have attempted to go in usurping this work. This was discussed at length, but I would like to read here from a paper presented here a paper presented at the Conference on Public Health and Optometric care held in St. Louis, Missouri, January, 1967, by the American Optometric Association. In the December, 1966, issue of the Journal of the American Optometric Asso- ciation, Dr. Henry Peters, discusses vision problems in schools. He lists vision prOblems as follows: disease, acuity, squint, refractive error, coordination, visual performance, developmental problems, and perceptual problems. The article goes on to say: Uniquely, optometry is the only group that functions in all of the areas that Dr. Peters refers to in his article. I believe here there was a statement that very definitely indicates the feeling of the American Optometric Association. I believe here there was a statement that very definitely indicates the feeling of the American Optometric Association that it is their re- sponsibility and function when they discuss disease as a visual prob- lem. There is very little question that they are attempting to usurp the practices of medicine in the practice of optometry, and I would like to present this quote as a matter of record. As the president of the National Association of Optometrists and Opticians, I have had the opportunity to observe since 1957 the tremen- dous amount of legislation relating to the optical industry. Over 140 bills were introduced throughout the United States on this very sub- ject. Many of these bills are optometric in nature and many of them is similar to the bill being considered here. H.R. 1283, and they would restrict in some manner the operation of the optometric practice out- side of the members of the AOA. There were bills in Michigan, Min- nesota, Missouri. New York, and these bills were not nassed because the members of those legislatures investigated these hills and found that the ultimate purpose was to create a monopolistic situation for certain optometrists and exclude the right of other optometrists and opticians to conduct their business. One bill did pass~ and I would like to read from this bill, because I believe it indicates the ultimate objective of the American Optometric Association to control or to monopolize the business of dispensina eve- glasses. This was Senate Bill No. 137, introduced January 20, 1967, in the Montana Legislature which subsequently passed and was enacted. Tt reads as follows: fle it enacted by the legislative assembly of the ~State of Montana: Section 1. Section 66-1302, R.O.N. 1947, is amended to read as fol- lows: "`Section 6O-13O~. Provisions regulating practice of optometry. It shall be unlawful for any person: `1. To practice optometry in the state of Montana un1ess he shall first obtain a certificate of registration, in the manner hereinafter provided, and filed the same or a certified copy thereof with the county clerk and recorder of the county of his residence, excepting such persons who at the present time are regularly registered optometrists and possess a valid, unrevoked certificate of registra- tion~ `9. To replace or duplicate ophthalmic lenses with or without prescription or to disnense ophthlmic lenses from prescription, without having at the time of so doing a valid, unrevoked certificate of registration as an optometrist; provided, PAGENO="0291" OPTOMETRY 287 however, that the provisions hereof shall not be construed so as to prevent an optical mechanic from doing the merely mechanical work on an ophthalmic lens which is ordered on a prescriptiOn signed by a duly licensed optometrist and is dispensed only by said optometrist or a person employed by said optometrist and who does so in the office of and under the direct personal supervision of an :opto- metrist That bill has been enacted, a~nd what is means is this: That no one in the state of Montana shall sell or dispense~ a pair of eyeglasses ex- cept an optometrist. I believe that is monopolistic if anything ever was, and I would like to submit a copy of this bill for the record, if I may. Mr. SIsK. Without objection, the copy of the bill and the other do- cument you referred to will be made.a part of the record at this point. (The copy of the bill and the document referred to follow:) [From the Optical Journal-Review, July 15, 1967) -RESPONSIBILITIES AND OPPORTUNITIES* I (By Nathan Flax, O.D., Member of the Attending Staff, Optometric Center of New York) Present public policy in this country is that access to educational services is a basic human right. A very important governmental agency is called the Depart- ment of Health, Education, and Welfare. It is easy to treat this title as three separate words, but are they really separate entities?Is it possible to draw a dis- tinction between where health ends and education begins, or where health ends and human welfare begins, or where education ends and welfare begins? Quite obviously, this cannot be done. The more concerned we as a nation become with the problems of our citizens, the more we must realize that health, education, and welfare are intertwined and not isolable one from the other. This intertwining of health, education, and welfare is present in the school surrounding. In the December, 1966, issue of the Journal of the American Opto~ metric Association, Dr. Henry Peters discusses vision problems in schools. He lists vision problems as follows: disease, acuity, squint, refractive error, coordi- nation, visual performance, developmental problein.s, and perceptual problems. Dr. Peters also indicates that many disciplines have overlapping areas of re- sponsibility that pertain to visual functions and includes among the disciplines listed the pediatrician, the ophthalmologist, the optometrist, the educator, the school nurse, and the psychologist. Uniquely, optometry is thO only group that functions in all of the areas that Dr. Peters refers to in his article. Each of the other disciplines has interest in one or more area of visual function but not in the totality of vision as it relates to the school and learning. There are many ways that an optometrist can function in the school setting to bring his full professional background to bear on the problems of educating our children. The most obvious aspect of optometric par- ticipation in the schools has to do with visual screening. Because this aspect is so obvious, let us put it aside for the moment. EYE HAZARD PROBLEMS Safety programs are now becoming mandatory in many states. New York State, for instance, now requires that protective eye wear be worn in any hazardous situation in the school. This presents a unique opportunity for optometry to assist in providing professional guidance to the solving of eye hazard problems. One facet of this would be safety glasses but this is certainly not the sole con- sideration in the school eye protective program. There is a need for the special background of an optometrist in determining how to organize and implement a safety program and also in the necessary education to insure such a program's success. Student education is an extremely important but neglected area. There is a need for proper optometric public relations materials to be presented to ele- mentary school children for their health education courses. This material should be available at suitable levels of comprehension for all grades. *A paper presented at the Conference on Public Health and Optometric Care, held in St. Louis, Mo., Jan. 14-16, 1967, by the American Optometric Association. PAGENO="0292" 288 OPTOMETRY INTRODUCED JAN. 20, 1967, SENATE BILL NO. 137 INTRODUCED BY SWANZ, HILLING, DUSSATILT, SCHOTTE, VAINIO, AND TURNAGE A BILL FOR AN ACT ENTITLED: "AN ACT TO AMEND SECTION 66-1302, R.C.M. 1947, BY THE ADDING THERETO A PROVISION AUTHORIZING THE MONTANA STATE BOARD OF EXAMINERS IN OPTOMETRY TO SEEK TO ENJOIN VIOLATIONS OF SAID SECTION, TO EMPLOY LEGAL COUNSEL, AUTHORIZING THE DISTRICT COURTS TO ENJOIN SUCH VIO- LATIONS, AND PROVIDING FOR THE EXCEPTIONS THERETO" Be it enacted by the legislative assembly of the State of Montana: Section 1. Section 66-1302, R.O.\L, 1941, is amended to read as follows: "66-1302. ProviSions regulating practice of optometry. It shall be unlawful for any person: 1. To practice optometry in the state of Montana unless he shall first have obtained a certificate of registration, in the manner hereinafter provided, and filed the same or a certified copy thereof with the county clerk and recorder of the county of his residence, excepting such persons who at the present time are regularly registered optometrists and possess a valid, unrevoked certificate of registration; or 2. To sell or barter, or offer to sell or barter any certificate of registration with intent to use the same as evidence of the holder's qualification to practice optometry; or 3. To purchase or procure by barter any such certificate of registration with intent to use the same as evidence of the holder's qualification to practice optom- etry; or 4. To alter with fraudulent intent in any material regard such certificate of registration; or 5. To use or attempt to use any such certificate of registration w-hich has been purchased, fraudulently issued, counterfeited or materially altered as a valid certificate of registration; or 6. To practice optometry under a false or assumed name; or 7. To willfully make any false statement in a material regard in any applica- tion for an examination before the state board of optometry or for a certificate of registration; or 8. To advertise by displaying a sign or by otherwise holding himself out to be an optometrist without having at the time ~f so doing a valid unrevoked certificate of registration; or 9. To replace or duplicate ophthalmic lenses with or without a prescription or to dispense ophthalmic lenses from prescriptions, without having at the time of so doing a valid, unrevoked certificate of registration as an optometrist; provided, however, that the provisions hereof shall not be construed so as to prevent an optical mechanic from doing the merely mechanical work on an ophthalmic lens which is ordered on a prescription signed by a duly licensed optometrist and is dispensed only by said optometrist or a person employed by said optometrist and who does so in the office of and under the direct personal supervision of an optometrist; or 10. To take or make any measurements for the purpose of fitting or adapting ophthalmic lenses to the human eye, without having at the time of so doing a valid, unrevoked certificate of registration; and any person who shall take or make any measurements or use any mechanical device whatsoever for such purpose or who shall in the sale of spectacles or eyeglasses or lenses use, in the testing of the eyes therefor, lenses other than the lenses actually sold, shall be demeed to be practicing optometry within the meaning thereof; provided, that nothing in this section shall apply to the prescriptions of qualified optometrists when sent to a recogniZed optical laboratory. 11. To advertise at a price, or any stated terms of such a price, or as being free, any of the following: The examination or treatment of the eyes; the furnishing of optometrical services, or the furnishing of a lens, lenses, contact lens, contact lenses, glasses, or the frames or fitting thereof. The provision of this subdivision does not apply to the advertising of goggles, sunglasses, colored glasses, or occupational eye protective devices, provided the same are so made as not to have refractive values and are not advertised in connection with the practice of optometry or of any professional service. 12. To adopt any lens to direct contiguous contact to the human eyeball with- out having at the time of so doing a valid. unrevoked certificate as an optometrist. Whenever the Jiontasa state board of examiners in optometry has reasonable cause to believe that any person is violating any provision of this section, or PAGENO="0293" OPTOMETRY 289 any lawful rule or regulation issued under this chapter, it may, in addition to all other remedies and provisions provided for in this chapter and without prejudice thereto, bring an action on the relation of the people of the state of Montana in the county in which said violation should occur to enjoin such per- son from engaging in or continuing such violation or from doing any act or acts in furtherance thereof. said board is hereby empowered to employ legal counsel to prosecute such actions. In any such action, and upon notice and hear- ing, an order or judgment may be entered awarding such interlocutory or final injunction as may be deemed proper by the judge of the district court in which county said violation may have occurred, said district court hereby being vested with jurisdiction over such injunction action. Provided, however, that this act shall not be construed to apply to physicians and surgeons authorized to practice under the laws of the state of Montana nor to any person acting under the supervision of any such physicians or surgeons, nor to any person as expected from the operation of this chapter by the provisions of section 66-1316, R.U.M. 1947. Dr. ROWE. Thank you, Mr. Chairman. One of the unfortunate things that comes about as the result of this tremendous amount of legislation which has become discrimina- tory in nature has been the confusion, or the creation Of a state of confusion, making it appear that medicine and optometry are alike. This is not true. I have talked to optomologists and to opticians throughout the United States. They all agree that there sufficient areas for all three disciplines to operate and to function. As a matter of fact, the opto- mologists are happy to have the optometrists available, because they cannot take care of the visual problems of the population. As I have indicated in my statement, taken from statistics of the United States Public Health Service, the average number of opto- metric graduates from all of the optometric colleges in the United States for the past eight years has been 389 per year, less than eight per state. There is not the conflict of interest that there might appear to be. The problem with certain groups is that they are attempting to replace disciplines, personal development, the creation of education, with legislative attempts, and attempting to legislate themselves into this without doing the work necessary to deserve being there. This is the unfortunate part. I have made some recommendations, and I would like to emphasize four recommendations that I feel would help to resolve this problem, because I recognize the desire of optometrists to professionalize them- selves. I think this can be done without legislative attempts. As a matter of fact, I believe that the only way it can be done is that they should: 1. Concentrate more heavily on student recruitment and development of the educational facilities available to students; 2. Furnish greater assistance to these young men when they graduate from school in becoming established in practices; 3. Expand and develop research facilities so that the services which optometrists are legally licensed and authorized to provide can be pro- vided in the best possible manner. I feel if they would follow these three recommendations, optometry would find itself growing rather than diminishing. I would like to make one further recommendation: Dispensing opticians got their start when they came into being, first, as dispensers of eyeglasses, and then they began to develop and PAGENO="0294" 290 OPT0~TRY improve themselves to the point that they were capable of examining patients for the purpose of prescribing eyeglasses. Unfortunately, when they had achieved this position, they continued to demand that they had the right to sell the eyeglasses. I feel, as the No. 4.recommend'ation, it wou'd be that the. optometrists begin to direct themselves to the task of getting out of the business of selling eyeglasses and to deovte themselves to the professional services which will then help them to achive the professional status that they desire. Members of the Subcommittee, I am not opposed to this bill in some senses, but I am opposed to it because I feel we cannot allow a bi1l~ to pass which will create great problems for the public and contribute to the detriment of the public and the inconvenience of the public and would accomplish nothing for them `but would accomplish a. great deal for those who have proposed this bill. .1 thank you for this opportunity. Mr. SIsK. Thank you for your statement.. Your prepared statement will be printed herein in full. (The prepared statement. submitted by Mr. Rowe reads in full as follows:) STATEMENT OF GALEN B. ROWE. Jn. O.D., PRESIDENT, THE NATIONAL ASSOCIATION OF OPTOMETRISTS AND OPTICIANS Mr. Chairman and membersof the committee, my name is Galen Rowe. I am an optometrist, licensed in the State of Colorado since 1947. I appe~r here today as president and representative of the National Association of Optometrists and Opticians. This a~sociation is a national organization comprised of optical firms. companies and individual optometrists and opticians engaged in the optical business throughout the United States. Membership in the associations is repre- sented by owners and operators of optometric and optical retail offices. The organization represents approximately 400 individual optical offices w-ith over 2,000 employees. Our members serve over three million optical consumers each year. The NAOO is concerned and a1armed at the potential effects of passage of HR 1283 because, if enacted, the bill would serve the interests of only a few optometrists and definitely not the welfare of the residents of the Dietrict of Columbia. An indentical bill (HR 2937) was introduced into the 89th Congress, and it was opposed atthat time b~ the following groups: The District of Columbia Bar Association The District of Columbia Government The Guild of Prescription Opticians of America The Guild of Prescription Opticians of Washington, D.C. The Medical Society of the District of Columbia The American Newspaper Publishers Association The District Wholesale Drug Corporation The Houston Ophthalmological Society The American Association of Ophthalmologists The National Association of Broadcasters The Maryland-Delaware-District of Columbia Jewelers Association The National New-spaper Association The Northern Virginia Academy of Ophthalmology The Ophthalmic Dispensing Association of Texas The Texas Ophthalmological Association The National Association of Optometrists and Opticians Washington, D.C. Publisher's Association. It was suppOrted by the American Optometric Association and some of its state affiliates. The number of citizens represented by the opposition, in contrast to tho~e represented by the proponents. was woefully disproportionate. Because the com- mittee considering the bill at that time recognized that the testimony against the passage of HR 12937 represented such a considerably larger segment of the PAGENO="0295" OPTOMETRY 291 population than did the proponents, the committee took no action on the bill during the 89th Congress. Now, once again, the same groups are appearing before this committee and expressing the same views relative to the proposed legislation. Because the technical frailties of this legislation are being thoroughly covered and will be covered, I would like to address my remarks to a consideration of the end versus the means. The end, which is desired from the passage of this legislation, as stated by the proponents, is the protection of the consumer. The means. is this particular legislation, which once passed will be carried to all the state legislatures with a demand for univer~aI enactment. Tinder the currently popular banner of "consumer protection," a small group has come before you asking not really for protection of the consumer, but for protection of their own personal interests, for the opportunity to fatten their own pocketbooks and egos, all at the sacrifice of free enterprise and the con- sumers' freedom of choice. Recently, a high state executive official told a group of Optometrists and their attorneys that he was not surprise that the "professional" group through their self-serving, self-perpetuating board of examiners wished to gain control of the dollars represented by their industry in their state. He stated that be. as a government official, did not envision himself being held responsible for the resolution of this interprofessional squabble and he had no desire to act as their referee. At that time, be charged the board of examiners with the responsibility of administering the statutes, as written, for the protection of those for whom the statutes were written to protect, the public, and he stated that they should refrain from utilizing legislative and judicial branches of the government to restrict and barrass economic competition. I believe this was an excellent statement because it pierced directly and realis- tically into the real reasons for the persistent requests for this legislation by this small non-public minded group. This statement placed the responsibility correctly for the resolution of the prob- lems which had been expressed by the group. The gentleman was saying that professionalism and self-respect gained through education and personal applica- tion to principles cannot be administered like a coat of paint by the legislative or judicial hands of the government. Rather it must come about as a result of the efforts of the group itself in setting aside personal interests relegating eco- nomic factors to their proper level giving prime consideration to the education and development of their own candidates for licensure and the development of proper internal controls. But contrary to such wise advice this group, which is again appearing before you in support of this bill and proposing themselves to be representative of the consumer has enlisted shrewd publicists and skilled organizers a well-paid staff of political experts who can outwait the legislative process and continuously cul- tivate legislative interests in their so-called consumer objectives. As reported by the clerk of the house and printed in the Congressional Record the American Optometric Association spent $25,943.59 in 1966 for lobbying purposes in Washing- ton, D.C. I am sure their expenditures during the 90th session of Congress will exceed this figure. These experts have been charged with the duty of developing an umbilical cord connecting Uncle Sam with every consumer of optical goods and services. They recognize and prey upon the reality that every consumer at one time or another has had an unhappy experience with a particular product or appliance or service or merchant. And they attempt to convert these frustrations and thereby establish an atmosphere of public resentment and personal damages to these experiences in the optical business. According to their arguments this atmosphere should logically lead to a consumer-complaint counter backed up by the government and enforced by laws which would be administered by selected and conditioned appointees of the self-seeking group. What will really follow would be the severence of the business-consumer ties which are at the heart of a healthy private enterprise and the displacement of consumer choice business and professional self-discipline and local regulations with a funneling of every citizen frustration to the legislative bodies of this country there to he supposedly remedied by endless new laws and regulations. The paid political experts hardened veterans of political wars are patient peo- ple with the long view, willing to slog along year in and year out toward a legislative goal accepting repeated reverses along the way, until at last the legislators tire of their doors being battered down and the public becomes suffi- ciently sloganeered so that the plan can be forced through. The business community in the United States, including the optical industry, does detest malfeasance and is eager to redress justified complaint. PAGENO="0296" 292 OPTOMETRY In fact, scrupulous attention to this very fact on the part of the members of the NAOO and all of the employers of optical personnel has caused them to exist successfully and has brought the optical consumer to their offices and places of business. And these people continue to return for their services and optical goods through the years. The conveniences of accessible locations, persistent concern for high quality, fair prices, freedom of choice, attractive and varied selection of style, fair and courteous treatment and the satisfaction of their needs and demands have proven to the public they can purchase from these establishments with confidence and trust. This confidence and trust has been fulfilled and there is no significant evidence presented here at this or previous hearings to the contrary. If there were a lack of confidence on the part of the public in the practices of optometry and opti- cianry under conditions which `this bill would prohibit, then the public would have long ago raised its objections in the form of boycotts. This has not happened. As a matter of fact, just the opposite has happened. It has been suggested previously and by implication that the concept that a "package price" offered in advertisements by profit oriented companies creates undesirable conditions and is totally wrong. In a statement submitted by Dr. W. Judd Chapman on behalf of the American Optometric Association to the senate subcommittee on Anti-trust and Monopoly, the following statement was made and became part of the record "Explicitly an Optometrist's fee should cover the examination and prescription, as well as selection of a frame which is cos- metically and technically correct taking the facial measurements ordering from the laboratory neutralizing and verifying prescriptions fitting the glasses or lenses to the patient to assure they fit comfortably and that they effectively cor- rent the vision deficiency." Apparently,jt is correct to offer a "package price" so long as you are a member of the AOA. Advertising of optical services and materials has been criticized and labeled as injurious to the public welfare. Advertising has served the public to inform it of what is available, what can be expected in terms of cost, what the selection is and where particular services and materials can be conveniently obtained. There is no reason to deny this basic right to any legitimate, ethically operated company or individual. Optometry has progressed greatly since its emergence from the field of dis- pensing opticianry. Educational facilities have been expanded and improved. Members of the profession donate much time and effort and service to the care of those w-ho cannot afford medical eye care. However, there have been many problems in `the area of student recruitment, and over the past years the number of optometrists being graduated has been far below the demand for their services. According to health source statistics of the United States Public Health Department, the average number of optometric graduates from all of the optometric colleges in the United States for the past eight years has been 389 per year, less `than eight per state. This is far from being a sufficient number to serve the public adequately. What the optometrists should do in order to improve them- selves and upgrade their status and their image with the public is: 1) concentrate more heavily on student recruitment and development of the educational facil- ities available to students. 2) furnish greater assistance to these young men when they graduate from school in becoming established in practice. 3) expand and develop research facilities so that the services which optometrists are legally licensed and authorized to provide can be pr'ovided in the best possible manner. They might not then be so eager to usurp the province of medicise and medical practice. If all of the `time, money `and effort which is currentiy being put into legislative attempts by the optometric groups were put into these three areas of activity. optometry would find itself growing rather than diminishing. It is unfortunate that the small powerful groups who control the politics of optometry continue to attempt to replace education. self-discipline and personal development with legislative attempts. Members of the committee, we cannot allow these small groups to influence us to pass legislation which can serve only personal interests and~ which can con- tribute greatly to the detriment and the inconvenience of the consumers seeking the services we are discussing here. I thank you for your consideration in allowing me to speak before you today. and if there are questions, I w-ould be happy to answ-er them. Thank you. PAGENO="0297" OPTOMETRY 293 Mr. SIsK. I would like a little more information on the people you represent. As I understand it, you represent the National Association of Optometrists and Opticians. Are you president of an Association? Dr. Rowi~. I work for the Cole National Corporation. I am not president of it. Mr. SIsK. What is your official capacity? Dr. Rown. My official capacity is Director of Dispensing, Develop- ment and Research. Mr. Sisic. What is Cole National Corporation? Dr. ROWE. Cole National Corporation is a publicly-held company. Mr. SIsK. Ibegy'ourparcion? Dr. ROWE. Cole National Corporation is a publicly-held company with five major divisions, one of which is the Optical Division. This division operates an optical department in various department stores, in exclusive locations. They employ opticians and optometrists. Mr. SIsK. Do you know approximately what your company grossed last y~a.r? Dr. ROWE. The total of the company or the Optical Division? Mr. Sisic. Your total company? Dr. ROWE. It grossed_this is a. pro forma figure, because one of the divisions has been sold and the gross sales have been revised to reflect the sale. The total was $34,000,000 for the fiscal year, last year. Mr. Sisic. The optical section earned about how much? Dr. RowE. About $10 million. Mr. SISK. You operate primarily, as I understand it, in the Penney, Montgomery, Sears-Roebuck stores, for example? Dr. Rowi~. The majority of our offices are in the Sears-Roebuck stores, yes, sir. Mr. Sisic. One other question with reference to the people you rep- resent. I note in your statement that your Association is a national organization comprised of optical firms, companies, and individual optometrists and opticians engaged in the optical business throughout the United States. Last year, as I recall, from the record, Congressman Whitener of North Carolina, questioned you as to whether or not individual opti- cians could become members of your organization. Has your position changed from that of last year or not? I note you stated then: "No, an individual optician can not be a member". Is that correct or not correct at this time? You state today that you do represent individual .optometrists and opticians. Dr. ROWE. May I take a look at the statement? Mr. Sisic. That is on page 234 of last year's hearings. I am not try- ing to trap you. Dr. RowE. That is all right. Mr. Sisic. This was the discussion occurring between Congressman Whitener, yourself and some other members of the committee. Dr. Row~. They would probably have to be on the premises, the owner of the firm or company-limited to a number of the general offices which would be a qualification. This does hold true. Mr. Sisic. That is what I wanted to make clear. Really, then, you represent the owners or the management of the corporate interests concerned with the optical stores rather than the professional people? I am using professional in regard to the optom- etrists and even the technical .professional opticians. PAGENO="0298" 294 OPTOMETRY Dr. Rowr~. I represent the management and the employees of these compames, yes, sir. Mr. SI5K. As I understand it, individual opticians and optometrists could not be. members of your Association? Dr. ROWE. WTe have members who are optometrists, licensed in one state and practicing in another state. We have a new member from Michigan who is an optometrist there. He has several offices and he has optometrists employed in the several offices. Mr. SI5K. Is he operating a business and employing people? Dr. Row~. Yes. Mr. SIsK. In other words, you are not a society representing pro- fessional people? Dr. Ro'wE. Well, if optometrists are professionals, we represent optometrists. The majority of the officers of the organization are optometrists. Mr. SI5K. I find it somewhat difficult to compare the representatives of different companies and individual optometrists who are considered to be professionals. I think nationally that the profession of optometry is recognized as a profession. It. is recognized by all Federal agencies, including the Veterans' Administration. As I understand your state- ment of last. year and this morning, you represent a group of business firms dealing in the dispensing of optometric equipment and material. Is that correct, basically, or not? Dr. RowE. Well, I can go back to say that I represent-I can give you the names of the people, the companies, that I represent, if you would like, so that you will know that. Mr. SI5K. Could I ask you, locally here for example,. if you would name some of the firms you represent? Do you have a list of those firms? Dr. ROWE. I represent Colton Optical of D.C. This is a company owned by Cole National. Mr. SI5K. Is Sterling Optical a member of your Association? Dr. ROWE. Sterling Optical is a member. Mr. SIsK. Is Kay Jewelry Store a member? Dr. RowE. No, they are not. Mr. SIsK. Kinsman Optical Company? Dr. RowE. No, sir~ Mr. SIsK. Vent-Air Contact Lens Specialists? Dr. ROWE. No. Mr. SIsK. King Optical Company? Dr. Rown. They are a member of our organization, yes, sir. Mr. SIsK. Are your members the same as those of the Guild of Prescription or the United Optical Workers Union? Is there an over- lap? Dr. Rown. No, sir. Mr. SIsK. Neither of them are in your organization? Dr. RowE. Sterling is a member of our organization. Their employees are members of the United Optical ~\Torkers Union, but they are not synonymous with the United Optical Workers Union nor with the Guild of Prescription Opticians. Mr. SIsK. Do any of your members manufacture optical goods? Dr. RowE. Yes, sir. Mr. SIsK. Would you name those for the record? PAGENO="0299" OPTOMETRY 295 Dr. ROWE. Optics, Incorporated. Mr. SIsK. Optics, Incorporated? Dr. ROWE. They manufacture frames. That is the only manufac- turer that is a member of our group. Mr. Sisic. Is that the only manufacturer that your Association represents? Dr. ROWE. The only manufacturer, yes. Mr. Sisic. MThat about dispensing companies? Could you have for the record a list of those companies, or does the materials you submitted list the dispensing companies you represent? Dr. ROWE. No. I can tell you the names of some of them. Mr. Sisic. If you will, to save time, supply those for the record. Dr. ROWE. Certainly, I will. (The information requested was not furnished.) Mr. Sisic. Do you have any questions, Mr. Gude? Mr. (hIDE. No questions. Mr. SI5K. Mr. Jacobs? Mr. JAcOI~s. Thank you, Mr. Chairman. I take it. from your testimony, both prepared and oral, that you do not think that there is any conflict in interest where a corporation such as a department store hires an optometrist for the purpose of that optometrist serving the public when at the same time that corporation is in the business of selling glasses? Is that. your general statement? Dr. ROWE. At. one time I was Director of Operations of the com- pany that I now work for. I directed the operations of the offices. I can assure you tha.t there was no conflict of interest. He is given com- plete authority in the eye examination. He determines what to pre- scribe for the patient and is not in any way influenced in the results otherwise. As a matt.er of fact, our research program continues to place additional instrumentation in the offices of these people, to acquire the necessary training in the use of these new instruments, so that they can perform a better examination. We have those programs going on at the present time. We are conducting research into the effectiveness and the feasibility of various types of instrumentation which has not yet been proven scientifically to accomplish what they purport to accomplish. We want to know how they work. There are some electronic instrumentations, one of which claims to be an accurate screening device for screening out glaucoma, that is, potential glau- coma.. We are not satisfied that they actually do this. WTe arc conduct- ing research programs. We have placed these instruments out. in the field~ We have 15 of these instruments, approximately, out- as a matter of fact we have 17. We have 1~ electronic; we have four what we call "applanation", and we have o~ applanation-electronic combination. We are comparing the results, of these, from the stand- point of how effective they are in screening potential glaucoma pa- tients, because when we find that this instrument communicates the possibility of glaucoma, we refer this to a. physician for verification of the information that comes back from the instrument. A nmnber of referrals have' been made. A number of examinations have been made, and we are attempting to determine the effectiveness and the veracity of these instruments. . PAGENO="0300" 296 OPTOMETRY Mr. JACOBS. Could you cite some examples of where other profes- sions that serve t.he public are hired by profit-making corporations for the purpose of serving the public? I mean, the members of a profession. Dr. RowE. I think, as a. general rule, physicians are employed by corporations who represent- Mr. JACOBS. No, no. You misunderstood my question. Will you cite other examples where members of your profession are hired by profit-making corporations for the purpose of that profes- sional serving the public, in individual capacities, serving members of the public? Dr. Row~. I cannot think of any offhand, no, sir. Mr. JACoBs. Frankly, this is what gives me a little bit of trouble. Whenever I am on t.hin ice with respect. to my own experience and knowledge, I look around for analogies. As Senator Monroney used to say, in Oklahoma, if they wanted to know what a cowboy would do when he gets drunk, they found out what he did the last time he got drunk. I am thinking that I would be somewhat surprised to find, for ex- ample, a. doctor employed by a large, we will say, non-medical cor- poration for profit, merely sitting in an office and administering to the public, the individual members of the public, who come along. The same thing would be true in the case of lawyers. Public services such as are in the welfare department. or in the Neighborhood Legal Services and tha.t sort of thing are one thing, because there is no private profit implied which might create or tend to create a two-way stretch, or what. is commonly known as a conflict of interest, namely (a) he who pa.ys the piper primarily is interested in selling an article, and in this case glasses; and (b) he who plays the tune is primarily, because of his professional responsibility, interested in the individual client-doctor relationship. Dr. RoWE. And an example might be an attorney employed to administer services to the trust. customers of a bank. Mr. JACOBS. Are you suggesting that any trust company pays an attorney who is personally advising an individual member of the public as to his rights as opposed to that of a corporation or lawyer? Dr. ROWE. My understanding is that. if I went. to a bank for t.he purpose of establishing a. trust and I asked for advice from the bank, that they would supply it to me. Mr. JACOBS. That is a far cry from depending upon that attorney who works for the bank for individual advice to you when you are dealing with the bank-you would not want. that, would you? Dr. RoWE. Of course, what we are really discussing here is optom- etrists, professionals. I think your question is well put., but optometry is a. new field relative to the established learned professions. It is going through a series of transitional steps, from the time when they began to develop, and this is not too long ago, I would say ierhaps in 1920 or 1925. when they really began to exist.. Since that time, it. has increased in its ability and knowledge. I feel that for the full reason that I stated, in the total over-all way, t.liat. we are still involved in the business of selling a commodity and lie does not quite meet the profes- sional standards, and, therefore. still could be considered to be an occupation. or let us say a highly educated trade., and still have some PAGENO="0301" OPTOMETRY 297 problem in recommending himself as a profession. I think that they can achieve this. Mr. JACOBS. You don't want me to stop calling you "doctor", do you? Dr. ROWE. No, I was given the degree by a school from which I graduated. The school is not recognized by any university. Mr. JACOBS. I do not want to belabour the point, but as I under- stand it, you do want to be on record as saying that where a person, who is entrusted to advise an individual member of the public as to whether he needs a pair of glasses, is paid by a large corporation which is in the business of selling glasses, you see no possible conflict of interest there? Dr. ROWE. At this point I do not, sir. I feel this, that this is some- thing that must some from the individual through their own efforts and something that cannot be applied like a coat of paint. You can- not just have it handed to them. They have to earn it. Since they are trying hard to earn it, I think that they will eventually earn it. Up to this point they have not accomplished this. I do not see that the services they have rendered are affected by the fact that they are employed. Mr. JACOBS. Do you feel that due to its relative newness, it is only logical that around the country legislative bodies are looking into the questions about possible conflicts of interest in the practice of optometry, human nature being what it is, and would you agree that it would be only logical that we would look into these questions? Dr. ROWE. There is no question about that. Mr. JACOBS. You mentioned that you represented the Coiston Com- pany here in Washington. Is that the name it used throughout the states by corporations that are affiliated with your national organization?. Dr. ROWE. That is~ a subsidiary of Cole National. Mr. JACOBS. Would there be any state where you do not have a subsidiary? . . Dr. Ro~vE. Is there any state? . Mr. JACOBS. Yes. Dr. ROWE. No, we do not have one in every state. Is. that what you mean? Mr. JACOBS. Yes. Do you have a subsidiary in the state of Ohio? Dr. ROWE. Yes, sir. . . Mr. JACOBS. What `is its name? Dr. ROWE. Colston. Optical of Ohio. Mr. JACOBS. Are you familiar with the laws of my home state of Indiana regarding the activities of corporations in recruiting people, where you recruit optometrists? Dr. ROWE. Well, in Indiana, an optometrist cannot be employed by a cOrporation. Mr. JACOBS. Therefore, is not recruited? Dr. ROWE..Yes, sir. .. . Mr. JACOBS. You mentioned in your testimony that you thought that the profession and occupation of optometry could be upgraded if the Optometrists would assist in establishing a practice. Did you include your own organization `as assisting optometrists in being established in practice? . S2-754 O---67----20 PAGENO="0302" 298 OPTOMETRY Dr. HOWE. If we can afford it, which is an opportunity for them to get a start on the basis of earning a living rather than to go through a period of somewhat starvation, this would be an assistance toward that. I would like very much to cooperate with schools in providing these opportunities where we can. Mr. JACOBS. Is this what ou 1neant. though, when you. said that t.he optometrists should assist. in establishing young graduates in their practices? Are you referring to the activities of those who estab- lish young gracluatees in individual practics, not employed by cor- porations? Dr. RowE. As a general rule, there is very little assistance given to graduates by the optometric associations throughout the United States. There is some assistance in the form of loans, but, generally, the young optometrist. does not. have any help from his local organization to get st.arted either financially or by referral or anything else. He has t.o go in and develop and establish his own practice on his own without any help from any organization. Mr. JACOBS. Do you know of any intersts in which your organization or any one of its subsidiaries has ever operated in one state in con- travention of the state laws of the state next to it? Dr. ROWE. I am not aware of that, no, sir. Mr. JACOBS. Do you know about. a case where the Colston Company did recruiting in Indiana by correspondence from Ohio? Dr. ROWE. I never heard of it. Mr. JACOBS. For example, are you aware of the case in which the Colston Company in Ohio wrote recruitment letters to young grad- uates at the optometry school, the Indiana University Optometry School, in order to employ them by a corporation in Indiana? Dr. ROWE. I am not aware of it. When was this correspondence that you are referring to? Mr. JACOBS. I am just. asking you. Would you be willing t.o look into that question? Here is what I had in mind: Since we are not in a court of law, I take it, Mr. Chairman, that I can submit for the record, without. the strict rules of evidence regarding hearsay, a letter received by me sometime after August 17, 1967. from Dr. Robert D. Corns, O.D.. member of the .AOA Legal Affairs Committee and Secretary of the Indiana State Board of Examiners-and I presume that means of optometrists-in which he says: I have proof in my files that the Ohio corporation- Referring to the Colston Corporation- has recruited and guaranteed a salary for optometrists to work iu a Sears Roebuck optical department in Fort Wayne. Indiana. The officers and records of the Ohio corporation, Coiston Company. are not subject to the Indiana records subpoena powers. so it appears that we are at an impasse to stop this circum- vention of the state statute. I have been handed some material here which purports to be from the Governmental Research Public-Affairs Associates, 30 East Broad Street, Columbus, 16, Ohio. Does that have anything to do with the Colston Corporation? Dr. ROWE. I a.m not familiar with that at all. Mr. JACOBS. Would you check t.ha.t out and perhaps write us a letter later about that? PAGENO="0303" OPTOMETRY 299 If you want to take it down, it is the Governmental Research Public- Affairs Associates, 30 East Broad Street, Columbus, 16, Ohio, and the Executive Director is Theodore M. Gray. Will you tell me whether that organization is connected in any way with your organization or is it a subsidiary thereof? Dr. ROWE. I believe that I can tell you at the persent time that it is not, but I will verify that. Mr. JACOBS. Fine. (Subsequently, Dr. Rowe submitted the following letter:) AUGUST 21, 1967. Congressman ANDREW JACOBS, Jr., House Office BuiTding, Washington, D.C. DEAR CONGRESSMAN JACOBS: In response to information requested by you during House District Subcommittee No. 5 hearings on HR 1283 I held on August 18, 1967, I have secured the following information. GOVERNMENT RESEARCH PUBLIC AFFAIRS COUNCIL I spoke with Mr. Theodore M. Gray, Jr., who i's presently serving as a Senator in `the Ohio Legislature. Senator Gray informed me that the above-named council was an organization run by hi's father, Theodore M. Gray, up to the time of his death five years ago. Senator Gray was not very familiar with the opera- tions of the council but stated that his father h'ad organized this council after he left the Retail Merchants Association of Ohio. I have h'ad the record's `of Cole National thoroughly checked, and at no time since acquiring Colston Optical in October, 1961, has Cole National had any association with the Government Research Public Affairs Council. This is the extent of the information I was able to get, and I hope it satisfactorily answers your questions. COLE NATIONAL CORPORATION AND AFFILIATES POLICIES OF OPERATION IN OHIO AND INDIANA In these two states, Cole National Corporation through it's affiliates operates opticianry `departments in Sears, Roebuck and Montgomery Ward de~artment stores in strict compliance with all applicable laws, rules and regulations gov- erning `such enterprises. Cole National subleases office space in `these depart- ment stores, together with optometric equipment to optometrists. These optome- trists rent this space on a fiat rental basis. Such `opometrists are completely independent practitioners and the relation- ship between them and Cole National is solely that of tenant-landlord. If there i's further information you wish, I will be happy to cooperate as much as possible. Insofar as this information was requested `at the hearings and Chairman Sisk left the record `open to include this information, I am sending a copy of the ab'ove information to the Clerk of the District Committee for inclusion in the record. Very truly yours, NATIONAL ASSOCIATION OF OPTOMFIPRISTS AND OPTICIANS, INC. GALEN. E. Rowz, O.D., President. Mr. JACOBS. I have what appears to be a photocopy of a letter which is headed "C'olston Optical Company, 9th-Chester Building, Cleve- land 14, Ohio," and under that is "Superior 1-5351"--I guess that is a telephone number. It is da.ted May 12, 1959, and I wish that you would make a note of this, because if you do not know about it you probably will want to find out about it, I would hope This is addressed to a Dr. A. R. Johnson, 134 East Berry Street, Fort Wayne, Indiana. And if I may, Mr. Chairman, it is relatively a short letter, just read it into the record? PAGENO="0304" 300 OPTOMETRY "Dear Dr. Jolrnson:" First, let me say that there is no signature appearing on this letter, though the line for the signature is desig- nated as "Maurice Stonehill, Colston Optical Company." And the letter reads: DEAI~ Dx. JOHNSON: I have your letter of May 8th, and will attempt to answer your queries. 1. The terms of the lease are very flexible. The length of time the lease will run can be mutually arranged; however, the lease we get from Sears has a 60-day cancellation clause in it. Which, incidentally, they have never used in practice. 2. The anticipated opening date would be at least two months away; however, the certain date cannot be determined until the manager of the store returns from his vacation two weeks from now. 3. The salary guarantee would exist as long as you are associated with us. 4. Names of O.D.'s and locations follow and are all in Sears Roebuck and Company stores. Myron Chalfin, East 86th and Carnegie, Cleveland, 0.; Arthur Gore, W. 110th, Lorain Street, Cleveland. Ohio; Frank Berger, 21000 Libby Road, Maple Heights, Ohio; Herman Raines, Adams and Whitaker Streets. Philadelphia, Pennsylvania; ~athan Burnthal, 515 Sandusky Street, Pittsburgh, Pennsylvania. Other stores are located in Baltimore and Buffalo. 5. In advertising, we never mention the O.D.'s name. In your state w-e can- not mention that examinations are available. However, by mentioning complete optical department the general public assumes that such a service is available. It is entirely possible that some of the eye-ware salesmen w-ho call on you are familiar with us and from them you can learn something about us. Bear in mind that most of our advertising is done on radio and television and hence samples are not available. I trust that this is the information you desire. There we have a letter which, obviously, is in response to a letter ad~ dressed to Colston from an optometrist in Indiana. We have an allega- tion by Dr. Corns of the State Board of Examiners in Indiana that solicitation has been made by the Colston Corporation in Ohio of optometrists in Indiana for. the employment in Ohio corporations. Your testimony is that this has not. come to your attention?. Dr. ROWE. I thinkthat I can say this, that. in 1959, the Colston Opti- cal Company wa-s purchased by the Cole National Corporation and they have not been associated with us since the time of that purchase. This was done by someone who is not in the optical business today. He sold it subsequent. to this letter. So, I cannot answer for that gentle- man, for Cole National. I am aware of the present policy, the present pinlosophy, and I am aware of the philosophy that existed since Cole Nationaltook over the Colston business which is not to solicit, optome- trists for employment where it is illegal to solicit them, whether it be from one state or another state or anywhere. In other w-ords, if it is illegal to employ optometrists in Indiana as it is in Ohio, as it is in Pennsylvania, we do not solicit optometrists for employment in those states. That. has been the policy of Cole National since they assumed the ownership of the distributor. Mr. JAcoBs. That is. a very likely answer, and I appreciate it. How- ever, since this was raised on August. 17, 1967, I wonder if you would be kind enough, Dr. Rowe, to look into the practice of the Colston Com- pany in Ohio, and perhaps write to this committee and make an as~ sertion with respect. to your inquiry of the activities along the lines I have suggested. I am quite interested as the Representative from In- diana, Indianapolis as a matter of fact, in this problem inasmuch as an official of my state has brought it to my attention. Would you be kind enough to supply this committee with the results of your inquiry on this matter? PAGENO="0305" OPTOMETRY 301 Dr. ROWE. I can get you that; I will see that you receive it.. (The information referred to was not received.) Mr. JACOBS. Mr. Chairman, I am sorry to have taken so much time, but when one of my constituents writes me, I most certainly wish to respond. * May this be made a part of the record (indicating file)? Mr. Sisic Yes. (The documents referred to follow:) * GOVERNMENTAL RESEARCH PuBLIc AFFAIRS ASSOCIATES, Uotarn7nt~s, Ohio, March 29, 1960. WOULD You LIKE AN INCOME OF $12,000 A YEAR To START? a. practicing optometry. b. in an airconditioned department store. c. a store that values its reputation just as carefully as you will your clients for examination. . d. in an Indiana city with the maximum of cultural and civic facilities. e. where industry is diversified andthe air is clean. f. where your wife and children will find a real permanent home in a neigh- b'orhood you could then afford. g. where the express highway cuts your travel time. The population, while growing, is more native than cosmopolitan as found in Gary for instance. Some of our optician licensees in situations like this one earn an income of $20,000 annually. This is a permanent situation. If you feel you are qualified, call for an interview today. THEODORE M. GRAY. SOUTH BEND, IND., March 29, 1960. Mr. THEODORE M~ GRAY, Colum!=bu~, Ohio. DEAR MR. GRAY: I am interested in the position mentioned in your letter. If you are going to he in South Bend soon, please call me as I would like additiOnal information on said position. Respectfully yours, R. E. STULLER, O.D. INDIANA OPTOMETRIC ASSOCIATION, INC., Indianapolis, md., April12, 1960. Approximately in the middle of March, I returned home one evening to find a card in the front door, ~earing the name of Mr. Theodore M. Gray, and whether I would be interested in a position in Ft. Wayne doing optometric work which would pay a minimum of $12,000.00 a year. Also stamped on the card was the title, Governmental Research Affairs Associates. Mr. Grays phone number and address were also listed. I replied by mail to Mr. Grays card, at 30 E. Broad St., Columbus 16, Ohio, and indicated I was interested in the position. On April 6, a* Mr. M. L. Stonehill from the Colston Optical Co., Cleveland 13, Ohio, called me at my home and said he was the one offering the position in a Sears Roebuck Store, Ft. Wayne. It appeared Mr. Gray was just the go~between man. Mr. Stonehill said I would make a minimum of $12,000.00 a year guaranteed. There would be no salary but a yearly contract. I pay $100.00 `a month rental to store for rental of space and equipment. The work would ~e refracting only and this would be my remuneration. When I told him I belonged to the Association and would have to think this over, he replied, if I was married to the Association to forget the `whole deal. He thought this type of work was much more ethical than belonging to the association. There has been no further contact or correspondence at date of this report. * * PAGENO="0306" 302 OPTOMETRY CoLsToN OPTICAL CO., Cleveland, Ohio, May 12, 1959. Dr. A. R. Jonxsox, Fort Wayne, md. DEAR DR. JOHNSON: I have your letter of May 8th., and will attempt to answer your querries. 1. The terms of the lease are very flexible. The length of time the lease will run can be mutually arranged however the lease we get from Sears has a 60 day cancellation clause in it. Which incidentally they have never used in practice. 2. The anticipated opening date would be at least two months away-however the certain date cannot be determined until the manager of the store returns from his vacation two weeks from now. 3. The Salary guarantee would exist as long as you are associated with us. 4. Names of O.D.'s and locations follow and are all in Sears Roebuck and company stores. Myron Chalfin, E. 86th. and Carnegie, Cleveland., 0. Arthur Gore, W. 110th. LI Lorain St., Cleveland, 0., Frank Berger, 21000 Libby Road, Maple Hts. o., Herman Raines, Adams & Whitaker St., Philadelphia, Pa., Nathan Burnthal, 515 Sandusky St., Pittsburgh, Pa. Other stores are located in Baltimore. and Buffalo. 5. In our advertising we never mention the O.D. `s name. In your state we cannot mention that examinations are available. However, by mentioning com- plete optical department the general public assumes that such a service is available. It is entirely possible that some of the eye-ware salesmen who call on you are familiar with us and from them you can learn something about us. Bear in mind that most of our advertising is done on radio and television and hence samples are not available. I trust that this is the information you desire. Very truly yours, MAURICE STONEHILL. Mr. Sisic. The gentleman from Maryland? Mr. GUDE. I have several questions that I would like to ask, Mr. Sisk. Did your Association have any requirement, so far as your mem- bers are concerned, as t.o the technical or professional qualifications of optometrists or opticians employed by you? Dr. ROWE. The optometrists and the opticians employed must be qualified by licensing where it is required or they must. have gone through an apprenticeship. If they have not had tim proper appren- ticeship, we place them in a training program of apprenticeship. be- cause in ever state., as to the optometrists, he must. be licensed, and, of course, we require that he have his license, because, otherw-ise, he cannot practice without it. Where opticians are required to have a license we also hire licensed opticians. But they are 110t licensed in all states, an ci they achieve their skills through a process of appren- ticeship. Mr. GIJDE. Over and above what is required by local law, you do not have any problem as to qualification? Dr. RowE. We feel that the law establishes the standards by which we caii operate. They have to be at that level. That is a. part of the law. Beyond that. point, we simply attempt. to secure the l)est. person- nel available as the situation requires. Mr. GUDE. Do you have any code or requirements so far as the mem- ber firms of your Association are concerned as to the procedure they must follow in `the examination of customers or clients who come to those firms? For example, if a certain sta.te . permitted a member firm to have an optometrist on the payroll, do you have require- inents that he must perform certain examinations when an individual comes in for an eye examination? PAGENO="0307" OPTOMETRY 303 FORT WAYNE JOURNAL-GAZETTE Tuczclay, Feb. 21, 19S7 15A ~ OF A NEW.OPTICAL DEPARTMENT AT SEARS FITTiNG BY OPTICIANS EXPERT SKILLED eithrook Center -- U.S. Highway 30 Bypass, East PAGENO="0308" 304 OPTOMETRY Dr. RowE. If we did that, Mr. Congressman, we would be dictating to the optometrist as to what his professional judgment tells him he should do, and we do not attempt to dictate to the optometrist as to what he should do. If he has become licensed, then he shoulc[ be able to perform these functions without. being told, by someone else how to perform them. By establishing standards, in effect it would be telling him that he must. do certain things. We do not think that is proper, that an optometrist should be told to do certain things. We tell him that he should do the best job that is necessary in his professional judgment. Mr. &UDE. In otherwords, your Association does not have a stand- ard or ethic so far as being an optometrist is concerned? Dr. ROWE. WTe have ethics. I do not have them with me. It is a part of our bylaws, and if you would like I can send you a copy of the by- laws and indicate the standards by which our members operate; but I thought. you were referring to the fact that. we tell the optometrist what he must do. We do not. attempt to do that, because this can work both ways. If we have the right to *dictate to him to operate under certain standards, then we will have the right to dictate to him how much time he must do this in and how much time he must do that in. `We do not feel that. we should do that. He is licensed to do that. He has had training and has qualified himself to do this work, in the eyes of the public and in the eyes of the State government, to do that. `W'c tell him to use his judgment., and his judgment is his own. `We do not interfere with his right to do that.. So far as the ethics of our members are concerned, we have estab- lished an ethical code. I am sorry that I do not have it with me. I think that the best. way to. give you this. evidence is to send it. to you. (The information requested was not furnished.) Mr. GnDE. Does this ethical code require that they should perform their job in a certain manner or to do certain things or merely to be governed by the ethics of their profession? Dr. Row~. By the ethics of t.heir profession, to be so governed. Mr. GUDE. Thank you. That is all. Mr. Sisu. Dr. Rowe, you said earlier that the King Optical Com- pa.ny was a member of your Association? Dr. RowE. Yes. Mr. SIsK. Are you familiar with a. Mr. Driscoll of Ritholz Company? Dr. RowE. There are three Ritholz's; Dr. Ben, Mr. Don, and Mr. Julius R.itholz. Mr. Sisu. They are all major stockholders in King Optical Company. Dr. RoWE. Mr. Don is a stockholder; I do not believe that Julius Ritholz is a stockholder. Mr. SIsK. I ask t.his question, Dr. Rowe, in connection with the ethical standa.rds required of the members of your Association. Are you familia.r with the situation where a Mr. Ritholz went to prison for attempting to bride a member of the Michigan Board of Optometric Examiners? Dr. RowE. Yes, I am. Mr. SIsK. You are familiar with that case? Dr. RowE. Yes. Mr. SIsK. I wanted to establish this for the record, to indicate a trend. One of the things we are concerned about is the so-called cor- porate practice where, after all, the dollar profit of course has to be PAGENO="0309" OPTOMETRY 305 the primary motive. If I buy stock in a corporation, I am going to ex- pect that corporation to make a profit. That becomes the predominant thing. This committee, as I have indicated before, is concerned about the care of the public. In the public health field, eyes are the most precious commodity that I think any of us have. Do you still maintain-and I know that the question was asked by my colleague from Indiana, Mr. Jacobs-that there is no conflict of interest involved in things that cause men to attempt, to bribe examiners? As I say, we have had charges of solicitation, of people to practice in the corporate firms. V\Theii you sum t.his all up, is it in the interest of the American public to permit this kind of a practice? .Dr. ROWE. We are engaged in the process of selling a service and a product that is necessary to the public. They must have these things, eye care and eyeglasses, to fill the re4uirements of their eye care. We feel t.hat there is every right to sell the product, because it is a product that has more implication than just the eye care. It affects the ap- pearance; not just the condition of the eye. It takes care, of visual problems and it still has'other effects. So, it is a necessary item, and it is sold as a general practice throughout the United Sta.tes, whether it by us or by opticians or by optometrists. All of these disciplines sell eyeglasses. Mr. SIsK. The gentleman from Indiana. Mr. JACOBs. If you will yield, Mr. Chairman. I have some questions about my own state of Indiana, Dr. Rowe, with reference to your organization. Do you, in fact, have a subsidiary in my state of Indiana? Dr. ROWE. Yes, sir. Mr. JACOBS. Cölston? Dr. ROWE. Yes. Mr. JACOBS. Is it a subsidary of your organization? If I have got it straight, it is contrary to the state law for a cor- poration to hire an optometrist? Dr. Ro\vE. Yes, sir. Mr. JACOBS. However, I suppose that a corporation under the law of my state can hire an optician? Dr. ROWE. Yes, sir. . Mr. JACOBS. Is that correct? Dr. ROWE. Yes. , Mr. JACOBS. Does your subsidiary in Indiana in any case arrange leases for optometrists in the premises of a business corporation? Dr. ROWE. Yes, sir. ` ` Mr. JACOBS. I naturally wonder about that, because I recall from the letter that I read into the record that there was some talk about a lease' one moment, and then a guarantee of an income to the lessee in the next, and I just wondered whether any of the Jeases that your organi- zation in Indiana arranged had similar terms whereby' the lessee through some kind `of an arrangement is guaranteed some kind of an income as `a result of the lease? Dr. ROWE. In Indiana, we lease space and accept this lease and put in the equipment for the optometrist for his use. He pays rent on that. He collecLs his' fees for the examination and gives the patient t.he pre- scription. Mr. JACOBS. Excuse me. He collects his fees from the patient? PAGENO="0310" 306 OPTOMETRY Dr. ROWE. Yes, sir. Mr. ~JACOBS. Directly from the pa.tient and receives no compensa- tion? Dr. ROWE. He receives the fee. Mr. JAcoBs. Does he pay any rent on the equipment? Dr. Row~. He pays a flat rental on the place and the equipment. Mr. JAcoBs. That price does relate to t.he going rate of rental on the space and on the equipment? Dr. RoWE. Yes, and it. will rent. from $100 to $200 a month. Mr. JACOBs. You say the rent. is $100 to $200 a month for, let. us say, in Sears Roebuck in Fort IVayne, Indiana. And how many square feet, if you know. would he be getting for that. rental? Dr. Row~. He would be gett.ing about, let us say, somewhere be- tween 160 and 200 square feet plus the equipment. Mr. JACOBs. That. is a rather small space. Dr. ROWE. That is right. Mr. JAcOBs. 16 by 10 feet. Dr. ROWE. The refracting room is 6 by 10 feet and the reception space. Mr. JACOBs. I\Tould he get, for example, those 160 square. feet. plus the equipment to work with for as little, as $100 a. month? Dr. ROWE. It ranges from $100 to $200. I am not familiar with the leases in Indiana. Mr. JACOBS. Would that not leave the impression that there is a lit- tle bit of implied income from the rental itself? I do not have much of an apartment. at all here, and I have to pay $140 a inont.h. Dr. ROWE. I am familiar somewhat. with how much money these optometrists do make, based upon the patients that. they see and the examination fees that the collect. They are making at least as much as the average optometrist in private practice is making. Mr. *JACOBS. Is not the income augmented by the low rental? Dr. ROWE. It is based on the space and the equipment.. Mr. ,JACOB5. $100 in a. Sears-Roebuck store. That. is a pretty good business location for S100. is it not? Dr. ROWE. It is. Mr. JACOBS. Plus the equipment? Dr. ROWE. That. is right. Mr. JACOBS. That. leads to this question: Is there not. an implied compensation by the corporation, if the rental is very low, a. so-called indirect income? Dr. ROWE. Of course, we have to- Mr. JACOBS. In the middle of a Sears-Roebuck store, he should do Pretty well there. Dr. ROWE. The optometrist does. Mr. JACOBS. He does well? Dr. ROWE. That is the optometrist. Mr. JACOBS. Not because of the fees when he is ])a.ying $100 for the equipment and those 160 square feet. in the middle `of the st.ore. At. least., there is a great cleaT of generosity there. I have no further questions. . I am quite curious about. the question, beéause it. was imphecl in the letter from Dr. Corns. PAGENO="0311" OPTOMETRY 307 Mr. Sisic Why would Sears Roebuck make this space available on these very liberal terms? Dr. ROWE. They provide this space-they do not receive any rental on their space in the first place. Mr. SIsK. They do not receive any rental on this space? Dr. ROWE. Not from the optometrist. We pay them. Mr. SIsK. That is, the Coiston Company or the Marsten Company 1n this case pays the rental? Dr. ROWE. They do not get anything from the optometrists. Of course, Sears is a commercial enterprise. They serve a lot of cus- tomers. They attempt to provide as much as they can to their cus- tomers, as much in their stores, as they possibly can, and they feel that this is a service, one that is basic, and that it helps to bring people in from the outside, and when people are there, they have opportunity to see the store and perhaps to buy other merchandise. It. is a part of the total image projection that they provide, as to their stores, to get people into their stores. Mr. Sisic. Who provides the optometric and ophthalmic materials for the optometrist located in the Sears Roebuck Company store in Fort Wayne, Indiana, under this arrangement? Dr. ROWE. I do not know. That is up to him. Mr. Sisic. Marsten Company and the parent company, the Cole National, place no requirements whatsoever upon him. What does. Marsten Company g~t out of this arrangement? Dr. ROWE. We have an optical department in the Sears store. Mr. SIsK. You have an optical department in the Sears store? Dr. ROWE. Yes. Mr. Sisic. This is what Tam trying to develop. What is t.he interest of the Marsten .Company with this optometrist? As I understand the laws of the State of Indiana, you would not say that. this is a surreptitious attempt to evade the laws of the state of Indiana.? Why don't you do it the same way in Indiana, as you do everywhere eTse? Is it because the law in Indianais different? Would you recruit in Indiana as you do in Ohio, if the laws were the same? Dr. ROWE. Iwoulddo what? Mr. SI5K. Actually, the optometrist in Indiana there would be- come an employee of Sears Roebuck. He is actually a corporate em- ployee if the same operation was in Ohio. Dr. ROWE. In Ohio, we cannot hire an optometrist either. Mr. Sisic. Is that operation possible, if it were here in the District of Columbia? Dr. ROWE. Then, we would handle it. Mr. Sisic. Then why do you go through this procedure in Indiana? Is it because of the law? Is it an attempt to sell ophthalmic and opto- n-ietric supplies for a profit? Isn't that t;he only interest of your company? Dr. RowE. We are in the business of doing that, in the state of Indiana, based upon the prescriptions of the ophthalmologists and optometrists in the same maimer that an optician's location, his office, is as close to the ophthalmologist as it is, very often in the same build- ing. He can be there for the convenience `of the patient. He can bring PAGENO="0312" 308 OPTOMETRY his prescription to him easier. So, we are located as close as we can betothem. Mr. JAcoBs. If you will yield? Mr. STSK. Yes. Mr. JAcoBs. Then, the difference between the two situations that you have described is that tl1e optician does not draw his source of incOme from the same place as t.he optometrist, in the first place,~ and, in the second place there, would that be a fair comment under the two analogies? Dr. RoWE. 1 think so. Mr. SIsK. Dr. Rowe, as I say, these are merely indicative of, I think, the evil of the corporate approach. Aside from your company, Dr. Rowe, wha.t has been developed here is that the corporations make profits for their stockholders. I do not blame them for that. The only concern of this committee is the eyecare and the doctor-patient rela- tionship within the District of Columbia. We can only legislate for the District of Columbia and not for the Nation. You recognize that many of ourStates have outlawed the corporate practice of optometry as not being in the best interests of the welfare* and health of the public. This is. of course, what we seek to stop, here intheDistrict. YQU, apparently, oppose that position? Dr. ROWE. Yes, because I feel that an optometrist is capable of: doing his job wherever he may be located; that is, if he wants to do the proper job. If he does not want to do the proper job, it does not matter where he is located. This is not going to affect him. These are optometrists with the same training, and qualification~ as any other optometrist. They are just as capable as the others, and to the extent that is so. I send my children to the optometrist in the Sears- Roebuck store in Cleveland. because they are there. Mv children go to these optometrists. I know they are well taken care of, because I know that the optometrist is vested with knowledge and education and back- ground and has as much personal concern over his patient as any op- tometrist anywhere. Mr. SIsK. You must be confident, Dr. Rowe. in the particular store to which you are referring. As for myself, I would not personally send my children into some of these stores. As I say, this is a matter of confidence.' Mr. JAcoBs. I would like to say, Dr. Rowe, that the fellow in Cleve- land who has your confidence, nobody would ever question his ability in every respect except to show undivided concern for the individual patient. Is this not the old quarrel that has been going on since way hack in 1949 when my father was here in Congress? Is tl1is not the same quarrel that has been going on year in and year out, about social- ized medicine? Is it not part and parcel of the same thing? The idea is that in England where the doctor works for some huge impersonal entity and is going to be paid not by the patient, there is a tendency to become a little calloused with respect to "one more fellow coming through the line." The doctor is going to be making money one way or the other-Is that not part and iarcel of the whole dialog about socialized medicine as opposecT to the doctor-patient relation- ship? Dr. RoWE. 1~Tell, this is possible maybe. It is just as possible I think for an optonieti~ist, in spite of the fact of that, to become calloused PAGENO="0313" OPTOMETRY 309 in any state, and the fact that his employer is there, or no employer, to this legislation here the employmentis based upon the profitability that he may not have the same interest or may become calloused. It is not going to change that emphasis, because if he is of this nature, he will be the same way in his own practice. The only thing that will keel) it from being that way is his interest in maintaining a level of income. He will be interested in his practice from that standpoint, un- less he really truly is there to serve the public. If he is there to serve the public, he will do it in one place or the other. Mr. JACOBS. Is that not the whole theory of the free-enterprise sys- tem, the professional, the private practitioner's attitude? It may be true that a lot of people may be sick and need eyecare, and, therefore, the optometrist has a long line at his door. But is it not still true that when he has to collect money for his fee from each individual patient, at least, he has the interest of not wanting to turn the bill over to a collection agency, and he does have that much extra interest in the individual, quite apart from a professional quality which we hope that the optometrist would have? `We hope that everybody is nice, but we found out a long time ago that we do need to cope with human nature. So, are you quite sure that you want to go on record as saying that the man who must depend upon the individual patient for an individ- ual fee is not more motivated towards that individual patient than the man who has a yearly salary guaranteed? Dr. ROWE. This is a two-edged sword, apparently. A man in private practice has financial responsibility which he has to meet, drug bills and utility bills and reception-room salary and taxes. Certainly, he is motivated from the financial standpoint. It may not be well motivated. He may have a tendency to do a little bit of over-selling in order to meet that rent bill, and the like. The point I am trying to stress is that the practice has nothing to do with what he is going to do for his patient. That is not quite neces- sarily correct- Mr. JACOBS. Would socialism not be preferable to our private prac- tice program in the United States-by that reasoning? Dr. RowE. I would not say that socialism would be better. The effect is brought about by the private practice that would not exist where an optometrist is employed. Mr. JACOBS. The abstract reasoning that you submitted for the record is not that the doctor in the United States has to worry. about paying his receptionist, his rent, and all that sort of thing, but that he would be less motivated towards his patient than that of the fellow in Great Britain who draws down a check every month, regardless of all of those incidentals in private practice? Dr. ROwE. As I say, it is a two-edged sword. There are possibilities on both sides. The employed optometrist can become calloused and not care. The self-employed optometrist can have some pressure, financial responsibilities, which affects his judgment as to what is really good for the patient or whether to get the most dollars out of the patient. It works two ways. Once again, this depends upon the individual. If the man goes into optometry and spends a number of years to become one and makes the investment that is needed in his education, then he should `still, during that period of time, be primarily concerned to take care of the patients regardless of whether he is employed or whether he is not. PAGENO="0314" 310 OPTO~TRY This bill says that employment creates a bad situation. I am saying that employment does not create that bad situation anymore than any other employment can create that bad situation. So, we are attempting to work on a problem here by saying what they can do and forcing them into private practice. I do not feel that we would be doing much good for the public in doing this. When they no longer have tuis, and they will have to go and develop their own practice, in face of com- petition from their colleagues, they are going to be in trouble. It will be difficult. You do not establish a practice overnight. You either have to have the financial resources to survive that period of time or you are very much in danger of over-selling the patient that conies in and prescribing that which may or may not be, needed. Then, I say that the financial responsibility will influence the self-employed optome- trist in prescribing something that he is not thoroughly convinced is necessary for the patient. This bill is not going to correct either situa- tion, because there are problems in both. The solution to the problem is in the optometrist himself in developing Ins education, his research facilities, in developing his associations and in developing the internal control so that even one member can work with another member rather than having to go to the Government and saying "We want to estab- lish a Government-backed thing here so that all of these people who have any problems can come and say that this is the problem. And also the bill gives the optometrists who are on the board the right to determine what peopl~ will be able to do. I do not think that this is correct. I think that there should be other influences on the determination on the rules and regulations and the laws that are going to influence the behavior of optometrists. Mr. JAcoBs. Would you have the same opinion with respect to the medical doctors, examining boards and the like? Dr. RowE. Medicine is a much older profession. They have gone through their period of transition. I think that they have established these things through their educational processes. They, certainly, know them; they are far more extensive than ours, and they also have a control which the optometrists do not have, that is, for example, hospi- tal centers. If one of their members is not behaving satisfactorily, let us say, according to their ethics or their behavior, they can have that leverage-they can take away his living if they wish. Mr. JACOBS. I might just say, in closing, as I understand this is our final session of public hearings, that I began the hearings without much knowledge about optometry, and I have wound up the same way, but I have a little more of an idea. about the practice of optom- etry. I have questions about certain provisions in this bill, questions that I expect to raise in executive session, but there is one thing on which I have become somewhat clear. And that. is that there is here an analogy between the argument between socialized medicine in England and the private practice of the profession in the United States. Based on the very old and well-accepted principle of man- kind, that "he who ~ the fiddler calJ.s the tune," and that the doc- tor-patient relationship is best served by a private relationship be- tween optometrist a.nd patient., I do believe that it is the duty of those of us who are charged with the public interest in this matter in the District of Columbia, to see what we can do to help along that m- dividual doctor-patient relationship. PAGENO="0315" OPTOMETRY 311 With that. I have nothing further to say. Thank you. Mr. SIsTc. I thank my colleague from Indiana. I just have one further question, Dr. Rowe. I appreciate your patience this morning. We. find ourselves, I think, in substantial disagreement in some areas. I want. to ask you, because of your statement. with reference to the laws in the states of Ohio and Indiana where the optometrist cannot. be employed and must practice on his own. why do you oppose a separation here in the Dist.rict of Columbia? Dr. ROWE. Because we do not see anything here that. would be helped by what happened in Ohio. In other words, I do not. feel that the public is served any better by reason of the fact that the optom- et.rist. cannot be employed. IVe see no reason to impose restrictions on the optometrist, which would not. be for the good of the public. Mr. Sisic. You feel that a great many of the states, like my own state of California, Florida, New ,Tersey, Arkansas, Indiana, Ohio, a.nd so on, all have made ba.d moves? Dr. Rown. I think that the quality of the optometric care in the District of Columbia is just as good as it is in Ohio or in Pennsylvania or in Indiana. I think that the quality of the optomet.ric ca.re in t.he state of New York is just as good as in any other state and that t.he quality of the ca.re in t.he state of Maryland is just as good as it i~ in any other st.ate. In other words, as the Governor of the State of New York said when he vetoed a similar bill, l~e said that the adoption of this bill will not. in any way bring any benefits t.o the public but will increase the cost of eyecare. So that. there is no benefit. to be derived, and the people of Ohio and of Maryland and of Pennsylvania and of Indiana are not. getting better eye.care as the result of the fact that an optom- etrist cannot be employed than they are in the State of New York or in the Dist.rict of Columbia. Mr. SIsK. Apparently, you have not had an opportunity to read the record as to the complaints of malpractice here in the District of Columbia. We will be printing them in the record, and I can assure you if you will take a look a.nd rea.d not just one or two or three but literally hundreds of instances of malpractice here in t.he District., you will find that conditions are not just as good here in the District as they are in some states. Dr. ROWE. We do not know if there have been any complaints re- ga.rding advertising here; they say that. they have had none. Mr. Sisic. Under the present law, there is no prohibition against advertising? Dr. Rown. I was talking about. the Bureau of Advertising t.hat. is responsible for the advertising being truthful and not being rn15- leading, t.hat they accept for the newspapers. They say that they have not had a.ny complaints from the newspaper readers tha.t their ad- vertising was in any wa.y untruthful or misleading. Mr. SIsK. Have y~u read the statement made last year by the Board of Optometry here in the District? Dr. ROWE. I have not a;s yet. Mr. Sisic. There have been many complaints. When these were called to their attention, the Board had no legal power to act. As I say, Dr. Rowe, I think that you and I have certain basic disagree- PAGENO="0316" * 312 OPTO~TRY ments. They are matters, of course, which have caused these public hearings to be held. We appreciate very much your statement this morning. Unless the gentleman from Maryland has further questions, you may go. Mr. GUDE. I have no questions, but I would like to comment with reference to a statement by Dr. Rowe in particular, Mr. Sisk: I do not think that we are dealing with a black-and-white situation in this field: Whether optometry is a profession or whether it remains what it is at the present time. Necessarily, a large number of measures can be carried out and give the public satisfactory eyecare at a reasonable cost.. We have to safeguard that, so that that be done, to safeguard those individuals who need such attention, to see that they are prop- erly served. I hope that we can present some such measure as that. Mr. SISK. Thank you very much. ~\Te will now hear from Mr. Moyer and Dr. Heath of the Distric.t of Columbia government. Again, I will suggest that the statement of the Commissioners be made a part of the record. If you have any statement in addition to that, you may certainly proceed. STATEMENT OP THOMAS P. MOYER, ASSISTANT CORPORATION COUNSEL, DISTRICT OP COLUMBIA GOVERNMENT; ACCOMPANIED BY DR. P. C. HEATH, DEPUTY DIRECTOR, DISTRICT OP COLUMBIA DEPARTMENT OP PUBLIC HEALTH Mr. M~YER. I will just say a few words. I will guara.ntee that. The Commissioners' report, which you suggested be made a part of the record is very similar to the one which was submitted last. year. The bills are very similar in many respects. Their first recommendation was, as you know-, t.hat they would prefer, rather than any optometry bill. a general licensing bill which the feel, in the long run, would be better for a number of occupations in the District. Therefore, they have submitted a number of proposed amendments to the optometry bill. Their main concern has been brought out in much of the testimony as to the expanded definition of "optometry" and the dangers that others fear, particularly the ones affected in t.he District which has eyecare, visual testing by school nurses and by school teachers or people of that sort. *. As to the provisions of the bill which have to do with corporate practices, we have not. been made aware of any reason why these provisions should be changed. Basically, their report is the same as tha.t which w-as submitted to the committee last year. I will defer to Dr. Heath from the District of Columbia Department of Public Health at this point. . Mr. SI5K. Thank you. The commissioners' letter will be included in the record at this point. (The letter referred to follow-s:) PAGENO="0317" OPTOMETRY 313 GOVERNMENT OF THE DISTRICT OF COLUMBIA, ExECUTIVE OFFICE, Washington~, May 18, 1967. Hon. JOHN L. MOMILLAN, Chairman, Committee on the District of Columbia, U.S. House of Representatives, Washington, D.C. Di~&n MR. MYMILLAN: The Commissioners of the District of Columbia have for report HR. 595, H.R. 732, and H.R. 1283, 90th Congress, substantially similar bills, "To amend the Act of May 28, 1924, to revise existing law relating to the examination, licensure, registration, and regulation of optometrists in the District of Columbia, and for other purposes." Each of these bills amends in its entirety the Act entitled "An Act to regulate the practice of optometry in the District of Columbia", approved May 28, 1924 (43 Stat. 177; D.C. Code, sec. 2-501 et seq.; hereinafter, "the Act"). Initially, the Commissioners desire to note that on January 30, 1967, they forwarded to the Congress draft legislation "To revise and modernize procedures relating to the licensing by the District of Columbia of persons engaged in certain occupations, professions, businesses, trades, and callings, and for other purposes", introduced in the Senate on April 13, 1967 as 5. 1535. A primary purpose of the Commissioners' proposed bill is to relieve the Congress of the constantly recurring necessity of amending twenty Acts of Congress governing the licensing of more than that number of occupations, professions, businesses, trades and callings (including the practice of optometry), by vesting in the Commisisoners authority by regulation to revise `and modernize these statutes. If the Commissioners' pro- posed bill should be enacted, it would be `possible for them to establish higher standards in the practice of optometry, to the extent such action is indicated, and to take similar action with respect to the standards applicable to the other occupations, professions, businesses, trades and callings specified in the Com- missioners' proposed bill, `without the' necessity for continual requests to the Congress respecting amendments to these various statutes. The Commissioners accordingly urge the enactment of their proposed District o'f Columbia Licensing Procedures Act, rather than HR. 595, HR. 732, or H.R. 1283. In addition, the Commissioners have considered the provisions of these bills and have concluded that they impose requirements which are, to a large extent, inferior to those of the present law relating to optometry. An analysis of the provisions of these bills is attached for the consideration of the Committee. However, if the Committee determines that the enactment of any of these bills is desirable, the Commissioners recommend the attached amendments, which are substantially similar to those proposed `by the Medical Society of the District of Columbia, the Guild of Prescription Opticians, the Bar Association of the District of Columbia, and the Commissioners, to similar bills in the 89th Congress. Sincerely yours, /5/ WALTER N. TOBRINER, President, Board of Commissioners, D.C. ANALYSIS OF PRovIsIoNs OF H.R. 595, H.R. 732 AND H.R. 1283. The first section of each of the bills replaces the Act with an act comprised of fifteen sections. Refe'rences in this report `to a "proposed section" mean one of such fifteen substitute sections. The proposed section 1 gives the Act the title "District of Columbia Optometry Act." The proposed section 2 declares optometry to be a profession; states its practice affects the public health, welfare, and safety, thus requiring regulations; and declares that the practice of optometry should be limited to qualified persons, admitted to practice under provisions of the bills. The proposed section 3 of H.R. 732 contains definitioi~s, including the following: "(2) `practice of optimetry' means any one, any combination, or all of the following acts or practices: the employment of any objective or subjective means for the examination `of the human eye, including its associated structures; the measurement of the powers or range of human vision; the determination of the accommodative and refractive powers of the human eye; the determination of the scope of the functions of the human, eye in general; the prescription, adapta- ti'on, use or furnishing of lenses, prisms, or frames for the aid thereof; the pre- scribing, directing the use of, or administering vision training or orthoptics, and the use of any optical `device in connection therewith; the prescribing of 82-754 O-67----21 PAGENO="0318" 314 OPTOMETRY contact lenses for, or the fitting or adaptation of contact lenses to the human eye; and the identification of any departure from the normal condition or function of the human eye, including its associated structures; . . ." H.R. 595 and HR. 1283 contain similar definitions of the practice of optometry. except that in HR. 595 it is stipulated that such practices are to be without the use of drugs and HR. 128.3 specifies that such practices are those included in the curriculum of recognized schools and colleges of optometry. Section 1 of the present Act provides: "The practice of optometry is defined to he the application of optical principles through technical methods and devices in the examination of the human eye for the purpose of determining visual defects, and the adaptation of lenses for the aid and relief thereof." A reading of the substitute definition indicates a much broader scope than under the present Act. The Commissioners believe that this proposed definition is too comprehensive and intrudes not only on the practice of medicine, but on long recognized functions of opticians and other persons. including officers and employees of the District of Columbia. The Commissioners recommend that if the Conimittee accepts the broader definition of the practice of optometry. as contained in the bills, that at lea~t simple visual screening procedures conducted l)y District teachers, school nurses. and others for the purpose of detecting eye trouble in children and adults be excepted from the definition "practice of optometry". The proposed section 4 of each of the bills sets out qualifications for licensure. requiring that applicants be 21 years of age or older: be of good moral charac- ter: mentally competent: posses the education equivalent to a high school education: complete a two-year college preoptome:tric course: complete a four- year course in a school or college of optometry; pass the examination; and pay all required fees. Section 12 of the present Act, in addition to setting a 21-year age minimum and requiring good moral character of applicants for examination, authorizes the Commissioners to alter, amend, and otherwise change the educational stand- ards at any time. provided they are not low-ered. The proposed section 5 provides for recipr6city with the States. How-ever. there are requirements that an applicant for license by reciprocity must hafe practiced for at least five of the last seven years and must practice in the District w-ithin on~ year of receiving the license by reciprocity. It occurs to the Commissioners that these provisions might work a hardship on a qualified optometrist who before or after seeking license by reciprocity was unable to practice because of injury, illness, military service, or other good cause. The proposed section 6 provides for annual renewal of licenses. The proposed section 7(a) sets forth 19 causes for which the commissioners are authorized to refuse to issue. renew, or restore a license or to suspend or revoke a license. At least one of these, in HR. 732, is vague and indefinite; i.e.. "(19) any other unprofessional conduct." Others of these are questionable with respect to their definiteness or reasonableness, such as the following: "(8) advertising directly or indirectly the performance of optometric service or any part thereof, including the furnishing of ophthalmic or optical material; in any form. manner, or way, or through my medium whether it be printed, audible, visible, electronic, or in any other fashion, except as authorized by regulations issued under section 10 of this Act: * * * * * * "(15) holding himself forth by any means or manner of possessing profes- sional superiority or the ability to perform professional services in a superior manner: * * * * * "(17) practice optometry in any retail, mercantile, or commercial store, office. or premises, not exclusively devoted to the practice of optometry or other health care professions: "(18) except `as provided in section 9. the practicing of optometry as an employee of and pursuant to any w-ritten or oral arrangement with any person other than a duly-licensed optometrist: . . With respect to causes for suspension or revocation related to advertising. practicing under a name other than the licensee's ow-n name. practice in stores. display of eye glasses. and the like, the Commissioners w-ish to bring to the attention of the Committee the decision of the United States Court of Appeals ~or the District of Columbia in the leading District case of ~iiver v. Lansbnrgli PAGENO="0319" OPTOMETRY 315 and Bro. et al. 72 App. D.C. 77, 111 F. 2d 518 (1940). In this case, involving the practice of optometry in commercial premises by persons affiliated with a cor- poration, the court said: "Appellants are licensed and registered optometrists. They brought this suit in behalf of themselves and others similarly situated against appellees. Lans- burgh & Bro., a corporation conducting a large department store in Washington City, and Buhl Optical Company, a District corporation organized to operate and own optical and optometrical stores, to restrain them from directly or indi- rectly engaging in the practice of optometry in the District of Columbia. The right to bring the suit is not challenged. Cf. Ezell v. Rithoiz, 188 S.C. 39, 198 SE. 419, 423, and cases cited there. "Appellants, in the main, base their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a cor- poration or non-optometrist. "The [trial] court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and ap- pliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it. optometry is not a part of medicine. The court was, therefore, of opinion that neither defendant is engaged in the practice of optometry contrary to the statute. In the recent case of United States v. American Medical Association (decided March 4, 1940), [72] App. D.C. [12], 110 F. 2d 703, we pointed out that the practice of medicine in the District of Columbia is subject to licensing and regulation, and we stated that, in our opinion, it might not lawfully be subjected to commercialization and exploitation. We cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs licensed physicians to treat patients, itself receives the fee, and the profit object is its main purpose, the arrangement being such as to divide the physician's loyalty and destroy the well recognized confidential relation of doctor and patient. This brings us, then, to consider whether this rule applies to the prac- tice of optometry. (Bracketed language added.) Many states have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the cases, and are of opinion the best considered adopt the view that optometry is not `one of the learned professions'. "Optometry is said by a well known writer on the subject not to be a part of medicine, `either by inheritance, basic principles, development or practice'. It is `an applied arm of optical science resting upon the work and discoveries of 1)hySiCiStS and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye'. Arrington's His- tory of Optometry, p. 24 (1929). * * There is no mOre reason to prohibit a corporation, organised for the p~irpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though uni- versally all are deemed professions. "We find nothing in the statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. That purpose may be fully accomplished, though the person rendering the service is employed by a cor- Poration. "We think the lower court was correct in denying injunctive relief, and the decree is, therefore, affirmed with costs." In the light of the foregoing, the Commissioners believe that some of the causes for the suspension or revocation of a license, or for which they may refuse to issue, renew or restore any such license, are not in the best interests of the public. The proposed section 7(b) sets out procedures for suspension or revocation, while the proposed section 7(c) provides for reinstatement after a year of revoca- tion of a license. PAGENO="0320" 316 OPTOMETRY The proposed section 8(a) specifies ten unlawful practices, including practice without a license; practice under a name which is not the licensee's; fraud in obtaining a diploma, license, or record; holding oneself out to be an optometrist; practice during suspension or revocation; selling glasses (or, in H.R. 732, frames) without a written prescription from a physician or optometrist licensed in the District of Columbia; advertising the cost of any optometric or ophthalmic mate- rial; offering inducements to obtain patronage; splitting prescription fees; hiring an optometrist on salary; displaying a sign offering ophthalmic materials for sale in violation of the regulations adopted by the Commissioners ; and not dis- playing in one's office his license to practice optometry. With respect to the prohibitions relating to advertisting by optometrists, and the hiring of an optometrist by* anyone other than another optometrist, the Commissioners, are of the `dew that prohibitions of this nature do not serve the best interests of the general public, and accordingly they recommend their dele- tion from the bills. In addition, the Commissioners question the advisability of the provision in H.R. 732 which prohibits the. ifiling of a prescription for eyeglesses written by a physician or optometrist not licensed in the District of Columbia. This provision might work a hardship on many visitors to the District each year who may break or lose their eyeglasses while here and who would be precluded from having the prescription of their own' physician or optometrist filled while they are in the District of Columbia. .The proposed section 8(b) declares violations of the section to be mis- demeanors, with a first offense fine of not more than $500, and for second or subsequent offenses, not less than $500 nor more than $1,000, or by imprisonment "in the District jail" for not less than three months nor more than one year, or both. The Commissioners note that these penalty provisions are a restatement of those contained in section 2 of the Act. How-ever, if penalty provisions are to be provided in a new section. the Commissioners recommend that the minimum fine or imprisonment provision be omitted as an unreasonable restriction on the discretion of the sentencing judge. Also, an alternative jail sentence to the first offense ffne should be provided. Further, the Commissioners believe the bill should not restrict the place of incarceration to the "District jail". The proposed section 9(a) provides that the bill shall not apply to (1) a student of optometry in the clinic rooms of an approved school of optometry; (2) an officer of the armed services in the performance of his military duties; or (3) an individual licensed in another jurisdiction who is in the District to make certain clinical demonstrations. The proposed section 9(b) exempts from the provisions of the bill physicians and surgeons, while 9(c) exempts those persons filling prescriptions of physi- cians, surgeons, or optometrists. Such persons are specifically not authorized by this section to fit contact lenses. In this connection, the Corporation Council, by opinion dated October 8, 1946, has construed the present Optometry Act as prohibiting the fitting of contact lenses by anyone but an optometrist or ophthalmologist. The proposed section 9(d) states that the bill shall not be deemed to prevent such activities as (1) an optometric clinic; (2) an optometrist working for a clinic, hospital, the government, an employer solely for the `benefit of his em- ployees, and the like; (3) a widow or widower continuing the practice through a hired optometrist for not more than one year; (4) (in H.R. 732 only) a wife or husband utilizing the services of another optometrist to continue the prac- tice of a temporarily mentally incapacitated ontometrist; or (5) a husband or wife utilizing the services of another optometrist to continue the practice of a permanently mentally incapacitated optometrist for a period not exceeding one year. HR. 595 and H.R. 1283 authorize, as a fourth exception, vision screening programs conducted under the direction or supervision of a licensed optometrist or physician. The proposed subsection 9(e) permits the use of the title "doctor" by optom- etrists, with a qualification indicating he is an optometrist. The proposed section 10(a) directs the Commissioners to prescribe regulations to implement the bill, including the number, size, location, and illumination of signs offering optometric services or the sale of ophthalmic materials. The proposed section 10(b) authorizes the Commissioners to set such fees and charges as may be necessary to defray the cost of administering the bill. The proposed section 10(c) directs the Commissioners to adopt a seal for the PAGENO="0321" OPTOMETRY 317 authentication of records and papers relating to the licensing and regulation of optometrists. The proposed section 11 authorizes the Commissioners in their administration of the biTi to make inspections, studies, and investigations, to require furnishing of information under oath, and to subpoena documents. * The proposed section 12 authorizes the Commissioners to seek injunctions against violations of the bill. The proposed section 13(a) provides for the prosecution Of violations, while the proposed section 13(b) declares that only a single prohibited act may con- stitute a violation, rather than a general course of conduct. In H.R. 732, a proposed section 13(c) declares that testimony of an optometrist shall be received at any trial or hearing in the courts of the District as qualified ex~ pert evidence, and certificates of optometrists are to be accepted by courts and by District Government officers and employees as qualified evidence in respect to the practice of optometry. The Commissioners question the advisability of af- fording to optometrists, by legislation, the status of expert witnesses in court proceedings, a status which, in the case of all other occupations and professions, must be established by competent evidence, qualifying a witness as an expert. The proposed section 14 in H.R. 732 prohibits officers V and employees of the District Government from "depriv (ing) any person of his freedom of choice of V practitioner with respect to his visual problems" and in H.R. 595 and H.R. 1283, from. "depriv (ing) any person of his right to exercise his freedom of choice of an V optometrist or a physician". This provision of the bill is intended to prevent school V nurses from advising the parents of children with eye problems to seek medical treatment for them. The Commissioners strongly oppose a statutory provision which prohibits any person, including District personnel, from advising anyone to seek medical care. V V~ V The proposed section 15 in HR. 595 and H.R. 1283 (15(1) in HR. 732) author- izes the Commissioners to delegate their functions under the bill to the Board of Optometry or to any other agency of the District Government. V V V Section 2 of H.R. 595 and H.R. 1283 (incorrectly designated as a proposed sec- tion 15(2) in HR. 732) continues existing licenses in effect. V Section 3 of HR. 595 and HR. 1283 (incorrectly designated as aVproposedsec~ V tion 15(3) in HR. V732) amends section 11-742 of the District of Columbia Code, relating to the exclusive jurisdiction of the District of Columbia Court of Appeals to review the orders and decisions of certain administrative agenç~ies of the Dis- trict, SO as to extend its jurisdiction to the review of optometry license cases. V Section 4 of H.R. 595 and HR 1283 (incorrectly designated as a proposed sec- tion 15(4) in H.R. 732) V makes the legislation effective Von the ninetieth day after the date of its enactment. V V The Commissioners have discussed the merits of the bills with representatives of the Guild of Prescription V Opticians and with V representatives of the Medical Society of the District of Columbia. Both groups, for reasons which appear sound to the Commissioners, expressed the strongest opposition to the enactment of any of the bills. V In the above analysis, the Commissioners have indicated their concern respect- ing provisions of the bills which they anticipate will have an adverse effect Ofl the mechanics of providing adequate and convenient eye care for the members of the general public. Accordingly, the Commissioners recommend that none of these bills be enacted, not only because of the Commissioners' support of their proposed District of Columbia Licensing Procedures Act, as they have stated in their report, but also because the Commissioners have been made aware of no compelling reasons for enactment of this legislation. No reasons have beensub~ mitted to the Commissioners to justify the curtailment of the number of long established practices of opticians, District employees,and others in the District of Columbia which would result from the passage of this legislation. Therefore, the Commissioners reiterate their recommendation that none of these bills be V enacted. V Proposed Amendments to HR. 595, HR. 732 and HR. 1283, bills "To amend the Act of May 28, 1924, to revise existing law relating to the examination, licen- sure, registration and regulation of optometrists and the practice of optometry in the District of Columbia and for other purposes." V 1. Section 2, strike "profession" and insert, in lieu thereof, "mechanical art in- V volving human vision". V V V V 2. Section 3(2), amend definition of "practice of optometry" to read as follows: "(2) V `practice of optometry' means the application of optical principles through technical methods and devices in the examination of the human eye for the pur- PAGENO="0322" 318 OPTOMETRY pose of determining visual defects, and the adaption of lenses for the aid and relief thereof." 3. Section 4: (a) Redesignate existing section as section 4(a). (b) Amend clause (7) of such section 4(a) by striking "in the following sub- jects :" and inserting in lieu thereof "in optometric subjects, which may include the following :". (c) Insert a subsection "(b) ", reading as follows: "(b) The Commissioners are authorized and empowered to alter, amend, and otherwise change the educational standards at any time, but in altering, amend- ing, or changing said standards, the Commissioners shall not be permitted to low-er the same below the standards herein set forth." 4. Section 5, amend to read as follows: "Sec. 5. The Commissioners are authorized to issue a license, without examina- tion, to any applicant licensed to practice optometry in any State w-hich through reciprocity similarly accredits persons licensed by the District of Columbia to practice optometry, on his filing with the Commissioners a true and attested copy of the license issued him by said State: Pravidcd. That the standard .of require- ments for the practice of optometry in said State is at least equal to that provided by this Act and the regulations promulgated hereunder; And Provided Portlier. That such applicant has not previously failed an examination given by the Com- missioners of the District of Columbia under the authority of this Act." 5. Section. 7(a): (a) strike clauses (8), (9), (10), (11), (14), (16),. (17) and (18), and re- number remaining clauses accordingly. (b) amend clause (19) to read as follow-s: "any conduct specified by the Commissioners, by regulation, after public hearing, to be improfessional conduct." 6. Section 8(a): (a) Strike clauses (2), (5), (6), (8) and (9). (b) Amend clause (4) of HR. 732 to readas follow-s "w-ith the exception of nonprescription sunglasses or nonprescription pro- tective eyewear. to sell or offer to sell eyeglasses,spectacles, or lenses without a prescription from a licensed physician or optometrist 7. Section. 8(b), amend to read as follow-s: "(b) A violation of any of the provisions of this section shall constitute a mis- demeanor and shall be punished for the first offense by a fine of not more than $500 or by imprisonment for not more than six months, or by both such fine and imprisonment, and upon a second or subsequent conviction thereof, shall be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or by both such fine and imprisonment." 8. Section. 9(c) in H.R. 732, strike "written" and "and w-ho.cloes not otherw-ise practice optometry". 9. Section 9(d) in HR. 732: (a) Clause (3), strike "for a period not to exceed one year after the death of such deceased optometrist." (b) Clause (4), strike "temporarily" and insert a period in lieu of the semi- colon at the end thereof. (c) Strike clause (5). 10. Section 10(a), insert a period after "optometry" and strike the remainder of section 10(a). it Section 12 of HR. 732, strike ", upon recommendation of the Board". 12. Strike sections 13 and. 14, and renumber remaining section accordingly. .13. In H.R. 732, the proposed section 15(1) should be section 15 and the proposed sections 15(2), 15(3), and 15(4) should be sections 2, 3, and 4 of the bill. Mr. SIsK. YOU may proceed. Dr. Heath. STATEMENT OF DR. FREDERICK C. HEATH, DEPUTY DIRECTOR, DISTRICT OF COLUMBIA DEPARTMENT OF PUBLIC HEALTH Dr. HEATH. I will simply point. out about. nine short. items arid submit the statement. Mr. SIsK. IVithout objection, your full statement will be made a part. of the record. PAGENO="0323" OPTOMETRY 319 Dr. HEATH. The Department of Public Health, of course, is inter- ested in the maximum care and the highest quality of care for the people. We have no objection to improving the standards of care, not only for optometrists but for every other profession related to health or the disciplines related to health that render services to the people. I would like to point out nine items, that is, that under the defini- tion of the practice of optometry, we think it is too comprehensive and impinges on the ethical practices of medicine and also of the oculist. The second point in this proposed definition, I think in the activities of the Department as to the screening procedures which are only pre- liminary and have to be reaffirmed by a competent authority, and, secondly, with some of our training that we are doing in the District of Columbia General Hospital. The third point: We have thought of fraud or very bad~ practice on the part of the occulists, but we cannot say that there is a public health reason for denying them their present activities; however, I under- stand that the Commissioners are considering the licensing and the setting up of standards for the practice of the occulist, the optician. And my fourth point, and I think this is a very important one, with reference to licensing by reciprocity, we feel very strongly that licens- ing by reciprocity would be simplified, without additional restrictions being imposed in the bill. And, also, with reference to the fact that the person would have to practice within one year of the time that he gets his reciprocity license, there may be circumstances, such as mili- tary service and other incidents where he could not start practice within one year, and there cannot be any public health reasons for this added restrictive-that is, we cannot see any. The fifth point: On the practice of optometry in department stores. Likewise, we have no t.hought of a public health hazard being associ- ated with such practice. There may be, but we cannot prove any, so that we cannot take any position one way or the other on that partic- ular item. The sixth point: Forbidding the optometrists to work on a salary basis for someone other than an optometrist. We believe it would be a bad public health practice, likewise. The seventh point : We do. not feel that it is necessary for a tech- nician working under the supervision of a physician to obtain a license as proposed. The eighth point, on pages 18 and 19, we see no reason why an op- tometrist should not have the same requirements for establishing him- self as an expert which the courts require presently for any other expert witness. The ninth point is: It is difficult to understand the purpose of sec- tion 14 that would prevent him in the District of Columbia using his judgment in recommending where a patient would go for further consultation. Those are the nine points. Of course, we do support the opinion of the Commissioners on the over-all licensing bill, which would affect the licensing act. I would like* to point out just two little things that I have talked to before, that is, on H.R. ~2276. On page 14, line 23: A person from acting as an assistant under the direct personal supervision of a person licensed by the District of Columbia to practice optometry, medicine, PAGENO="0324" 320 OPTOMETRY or osteopathy provided that such assistant does not perform an act which would require professional judgment or discretion. That word "direct" could be construed to mean that. a person could be right in the same room or in the immediate vicinity. This might not be possible under all circumstances. And another one, if I may, that has not been brought out before : I will show what I have in mind. I~ notice that the court reporter has a hearing aid. I have one, too. You see, this is done or taken care of by audiology. You go to the audiologist. They remove the temples from the existing frame, and they have different sizes of temples and listening devices, and this has a switch here, and batteries, and so on and so forth. This is done by the audiologist.. This might be of interest and ought to be considered in the definition of "optometry." That is all I have, thank you Mr. Chairman. (The prepared statement submitted by Dr. Heath is as follows:) STATEMENT OF DR. FREDERICK C. HEATH, DEPUTY DIRECTOR, DISTRICT OF COLUM- BIA DEPARTMENT OF PUBLIC HEALTH These proposed Bills have been studied in the Department of Public Health, and compared with the current provisions of law- with respect to the examina- tion, license, registration and regulation of optometrists and the practice of optometry in the District of Columbia, and in comparison it is believed that the present law is more desirable than the proposed `revisions in many respects. In part. the reasons for such conclusion are as follows: The definition of the terms "practice of optometry" as contained in the pro- posed Bills is objectionable in that it is vague and subject to various interpre- tations not consistent with what is generally regarded as the fieffi of the prac- tice of optometry. The proposed language might very well be interpreted to encompass procedures w-hich are now considered practicing the healing art and not included in the practice of optometry. The proposed definition is also so broad as to encompass the visual screening procedures conducted by teachers, school nurses, and other persons who have had the instructiOn and experience necessary for these mass screening programs to be successfully accomplished. It would be impracticable and against the public interest to forbid the "measure- ment of the pow-ers or range of human vision" by these trained persons and require that these programs must be carried out by an optometrist or a physi- cian or "conducted under the direction or supervision of a licensed optOmetrist or physician". There are not enough such persons available. There is no public health reason for not recognizing the practice of oculists as such practice is now- legally conducted in the District. There are many provisions in these Bills that are, to some extent, incon- sistent with the present legal concept of the field of the practice of optometry. Some of them are expansions and some are contractions of the field of the practice of optometry in the District. Therefore, if it should be decided to enact one of these Bills, it w-ould be most beneficial for the present definition of the "practice of optometry" to be substi- tuted for the proposed definition. It is suggested that the restrictions placed upon obtaining a license by re- ciprocity are drastic in the proposed Bills. It will be much better if they w-ere brought more in line with those of the other health disciplines. The proposed reciprocity requirements are so restrictive as to forbid the 1icei~sing of newly trained optometrists from one of the state or of an optometrist who may have had a recent interruption of his practice due to illness, military service,, or other temporary occupation. There is no public health reason for limiting the, practice of optometry in certain areas such as department stores where it is now practiced without detriment to the public health. Nor, is there any public health reason w-hat- soever for forbidding optometrists to work on a salary or on some other basis w-ith someone other than an optometrist. It should not be necessary for. a technician working in this area under the supervision of a physician to obtain a lIcense as is proposed. PAGENO="0325" OPTOMETRY 321 There is no reason why an optometrist should not have the same require- ments for establishing himself as an expert witness in court as is required of any other expert w-itness. It is difficult to understand the purpose of Section 14, unless it is designed for the purpose of preventing any government official, either a medical officer or any other, from expressing his judgment where his judgment is qualified and should be exercised. If the judgment is not qualified, or for any reason should not be exercised, there are remedies available to the aggrieved. It is understood that the Commissioners have proposed in their current Legislative Program that the Congress delegate to them authority to develop rules governing the licensing of the professions and occupations in the District of Columbia. Such an Act would be in the public interest and would enable the District to establish standards consistent with the local requirements. Therefore, it is recommended that none of these three Bills be enacted unless materially amended, and it is suggested that it would be preferable for the Congress to enact the Commissioners' proposed general licensing bill. Mr. SIsK. Thank you, Dr. Heath. As to your reference to page 14, line 23, of H.R. 12276, as you know, that section has had a good deal of discussion. It is a matter which the coimnibtee in executive session will consider. I think a legal interpretation of this word "direct" will certainly require more consideration. Dr. HEATH. May I add a suggestion? Under "dental hygienists", the wording of the law is "un4er the general supervision and direction." Mr. SISK.' I have only one question, Dr. Heath, that I would like to discuss with you briefly. I am as certain as I can be that we both have, basically, the same objectives so far as medical care of the people are concerned. Although my services are in a different, capacity than yours. You are, as I understand your position in the City of Washington, concerned with the medical care of the people here .and their protection, let us say, from unethical practices or malpractices. I am sure that you share with me the same concerns. Dr. HEATH. That is right. Mr. Sisic. You made one statement that you had no position, or had made no real determination, as to whether or not an optometrist (who, as I understand it, takes care of about 75 percent of the eye care of the people nationally, and, I presume, that same percentage as it would be about the same percentage in the District) being employed `by corporations has a bearing on the quality of the services rendered by him to the pat.ient. I am paraphrasing your statement, `but, generally, was that the basis of your statement? Dr. HEATH. Yes, that is in effect what I said, because an individual is an individual and the motivation is natural t.o all. As I say, we have had no valid data from which we could say that. this is a bad practice and we do not take a position unless we can justify such a position. Mr. SI5K. I realize that. I think you are right. You could not take a position unless you can justify that position. `You are concerned with the health of the people in the District. What, in your opinion, would be the situation if we hired `a dentist, and he was employed by a corporation. Would your position be the same in this case? ` . Dr. HEATH. I think that I can respond to that. PAGENO="0326" 322 OPTOMETRY The issue of individual practice and corporate practice has been one that has been in the limelight for many years, as you know. I could give you a very good example, in the practice of medicine. Mr. SI5K. I was going to ask about that later. Let us take, for example, the general pra.ctitioner. Whether or not you, as an employee of the corporation, drawing your salary from the corporation, and the average individual how- ever dedicated that you might be, would feel that the doctor-patient relationship would be the same as to the public where he takes care of the patient? These are matters that we want to discuss with you. Dr. HEATH. There~are some. very high class medical group health practices in the District of Columbia. I do not wish to mention their names, but I will say that we have a group of men in group practice who use a. combination of the disciplines specialties. They have sometimes more elaborate x-ray equipment, more medi- cal equipment, because it is a. bigger enterprise. The laboratory work is immediately available. A patient goes there to Dr. A, and he feels that a certain diagnostic test. should be performed, and the patient just goes downstairs to the laboratory and the tests are made or the x-ray is made or some other specialized examination is made. Then, they prescribe for them. If I may go off the record, pleace? Mr. SI5K. Yes. (Discussion was had outside the record.) Mr. SIsK. We will now go back on t.he record. Dr. HEATH. On the other hand, the individual physician can utilize specialized diagnostic services and consultations by sending his patient to `certain la.bora.tories, x-ray installations, and whatnot. I think it all comes down to the individual physician. In the group practices, in these centers, they have to be good. The pa.tient has to be satisfied, otherwise, they will not last.. And the group practice will not last. They have seminars and lectures and patient evaluation from time to time to keep all the men on their toes. I think that they are associa.t.ed with their fellow physicians in a. very close manner, and they talk very clearly about problems. So, I think t.hat you have more than one approach there. I could not say that the group practice is not as good as individua.l practice. Mr. SIsK. Dr. Hea.th, let me say tha.t I certainly agree with your views on group practices. I think we are speaking of the same thing. Maybe I did not make my question entirely clear. You understand, of course, the employment of physicians by non-profit groups such as health clinics. Dr. HEATH. They a.re profit-making. Mr. SIsK. I beg your pardon? Mr. HEATH. They are profit-making. Mr. SIsK. In group practices, there is a profit, however, there is an incliviclua.l responsibility of the doctor to the patient. Dr. HEATh. Yes, sir. Mr. Sisic Does the patient pay the doctor, or the group? Dr. HEATH. The bill is sent by the medical center. Mr. SIsK. What I have in mind here is the employment of a. doctor, dentist, or an optometrist who is a specialist., as he specializes in just one thing and that is the eye. W~ha.t about his employment. by a profit- PAGENO="0327" OPTOMETRY 323 making corporation? I am speaking strictly of a profit-making corporation not in the business of medicine oi anything else; strictly a corporate enterprise such as Sears Roebuck and Company, Mont- gomery Ward, the Peirney stores, Sterling Optical, or any other corporation you want to mention-Cole National for example which was mentioned here. I am not trying to put you on the spot. Dr. HEATH. You are not putting me on the spot. Mr. Sisic. This goes to the heart of what we are attempting to do in this bill. And let me say, I am sure that many things will be changed in the bill. In our efforts to imprOve the eyecare in the District, we are concerned about many of these abuses which have been brought to our attention. This is why I am asking you these questions. This whole business is strictly what I call a corporate practice for profit-irrespective of any patient relationship or any personal rela- tionship with the corporation. Dr. HEATI-I. Of course, I would never attempt to be evasive with you. I will try to answer your questions as directly as I can. In all professions you have people with various levels of morale and motivation and sincerity. A person properly motivated and qualified, if he is working for a profit corporation, if he found that it interferred with his performance of his duty as he saw it, he would terminate his employment with such corporation. There would be others that per- haps, well, we will ~ay, go with the wind. I could not approve any of that. I can tell you things which have been in the literature at times. Sometimes companies will have what we call a company doctor. This is a profit-making corporation that takes care of the persons who may be injured~ Mr. SIsK. Right. Dr. HEATH. There have been instances in which that company doc- tor has not rendered as complete a service to the person as was re- quired and they have gone to a private physician and have received additional services. This is a matter of general record. Mr. Sisic. Yes, sir. Dr. HEATH. Maybe that is the best way I could answer your ques- tion directly and as honestly as I can. Mr. SIsK. I appreciate your comments. This bill does not go against an optometrist being employed by a firm to take care of that firm's employees. There are some cases in this country where many large corporations have their own medical set-ups, and this, of course, is not what we are talking about. We are speaking of corporations for profit. The profit is from pulling in the public, the general public. I am sure you are aware of that from the hearings thus far. Dr. HEATH. The Department of Public Health, let me say, feels that this is bad and should not be permitted if they were called upon to justify such. Mr. Sisic. I realize that. I thank you very much for your appearanêe here this morning. We appreciate your patience. I am sorry that the hearings have gone on as long as they have; however we have tried to give all the time necessary to everyone. Thank you Mr. Moyer, for your statement. Mr. MOYER. Thank you. PAGENO="0328" 324 OPTOMETRY Dr. HEATH. It was a pleasure to be here before you. Mr. Sisic. It has been called to my attention that we do have two witnesses left. At this time I would like to call on Mr. Albert E. Schoenbeck, representing the Missouri Optometric Association, Inc., of St. Louis, Missouri. We shall be glad to hear from you now. I might state that time is getting away. We do not want to restrict you in your presentation, but if you desire to summarize it, your entire statement will be made a part of the record. You may ha.ndleit as you desire. STATEMENT OF ALBERT E. SCHOENBECK, COUNSEL, THE MISSOURI OPTOMETRIC ASSOCIATION, INC., ST. LOUIS, MO; Mr. SOHOENBECK. Mr. Chairman and members of the Subcommittee No. 5 of the House District of Columbia Committee: On behalf of the Missouri Optometric Association, ma.y I express the Association's thanks for this opportunity to appear before you in support of H.R. 1283. My name is Albert. E. Schoenbeck. I am an attorney-at-law, engaged in the general practice of my profession in the city of St. Louis. I am counsel for the Missouri Optometric Association, and have served in that capacity for 26 years. During those years I have had the opportunity to become acquainted with the optometric profession, its members, the invaluable work optometry is performing in the field of eyecare for the 1)ublic. By way of summary of my statement., may I say that. I have be- come familiar with the fact that the optometry laws of the various States have been strengthened through the years, both by amend- ments to the statutory law and also by interpretations of the courts of individual States. For example, the laws of the State of Missouri have been strengthened by legislation on five separa.te occasions and also by court decisions. It is my understanding that the law in the District of Columbia has remained substantially unchanged since 1924, and I believe it. has become apparent, as I have listened to these hearings, that there is a grea.t concern on the part of the members of the Subcommittee to see to it that the provisions of the District of Columbia law now be brought up to date and made similar to the laws and regulations that control the practice of optometry in other States of the nation. Basically, one of the provisions of this bill would eliminate the ex- ploitation of public need for visual care by unlicensed laymen and corporations. I was particularly impressed this morning by the discerning ques- tioning by Congressman Jacobs of Indiana, because I believe that he was getting to the very heart of the matter. I think that he was coming to the very crux of this bill. This bill would prohibit laymen and corporations from engaging in the practice of optometry by hiring optometrists to work for them, it will assure the public that, primarily, the optometrist's allegiance is to his patient. and that his primary loyalty is not. to an unlicensed layman or to any corporation whose primary motive is to sell eye- glasses. PAGENO="0329" OPTOMETRY 325 And Congressman Jacobs put it very well when he said that he who pays the fiddler calls for the tune. In this connection, may I say that if the District of Columbia comes along and prohibits the practice of optometry by unlicensed laymen and by corporations, it will be getting itself in line with the general body of American law throughout the United States, and this general body of law is stated very succinctly in American Jurisprudence which is, of course, the encyclopedia on law, where. it states: It is generally held that in the absence of express statutory authority, a corporation may not engage in the practice of optometry either directly or in- directly through the employment of a duly registered optometrist. Now, there was some questioning going on this morning in con- nection with the King Optical Company. Mr. Chairman, I have here what purports to he a copy of the minutes of the meeting of the general membership of the National Association of Optometrists and Opticians, Inc. Dr. Rowe represented them here this morning. This is a meeting that was held on February 15, 1961. And Mr. Ritholz was present at that meeting. This is the same man who later served five years in the penitentiary in the state of Michigan. And it is interesting, in these minutes, to note that Mr. Ritholz reviewed the finances of the Association and volunteered to. help in raising the funds `nece~sary to get the public relations program under way. Subsequently, the question of electing a president and an assistant treasurer came up. `Mi~. Ritholz was nominated and unani- mously elected as assistant treasurer. Further, a resolution was made and carried that the disbursing of all of the Association's. funds should be subject to the approval and the countersigning of the checks by Mr. Ritholz. Such checks carried two signatures; one signature by an Association representative and the secánd one the signature of Mr. Ritholz. I am somewhat familiar with the Ritholz operation in some of the states, particularly in the state `of Missouri where they operated the King Optical .Company, registered under a fictitious name in that. state. . It was argued in the Supreme Court of Missouri, on the 29th day of September. It was a suit that Robert Bressler and others brought `tg'unst the Shte Bo'trd of Optometrists They n ere trying to set aside the optometric rule in the state of Missouri which would strike at the subterfuges which King Optical Company, one of the key members of the National Association of Optometrists and Opticians, were en- gaging in. What are they doing there? They are guaranteeing to an Optometrist a certain amount of money that he will make per week. They go in and they lease the premises, and then they partition off a little cubbyhole for an optometrist and put him in this little cubby- hole. This is based upon the depositions which I will be happy to make available, the depositions of the men involved, the optometrists em- ployed by King and Lee, and so on. And then, what do they, do? To get around the law, they agree, supposedly, to pay some rent to King Optical Company, but instead of that, what they do, they send a check to King at Chicago, and they pay the telephone bills in their own name, and then the Rithplz organization, the King Optical Company, sends hack a cashier's check to Missouri reimbursing them for the amount of*the rent and the telephone bill and all of the other expenses. PAGENO="0330" 326 OPTOMETRY This goes to the question of who controls the optometrists. This is the type of corporate or lay practice of optometry that this bill is designed to get at. And I say, again, it goes to the very discerning observation of the Congressman from Indiana in his statement that he who pays the fiddler calls the tune. And the depositions in that case can be made available-the sworn testimony. Mr. SIsK. A copy of that will beplaced in the Subcommittee's files for examination purposes, but not for inclusion in the record. Mr. SCHOENBEOK. Thank you. May I make one or two other observa- tions with regard to some of the charges that have been leveled against this bill? Something l1as been said to the effect that `this bill would create a monopoly or would create guidelines. That just is not accurate. This bill will not prevent anyone from selling prescription eyeglasses, dis- pensrng opticians may continue to operate-dispensing opticians nm.y continue to sell eyeglasses. They are specifically exempted by section 9~ subparagraph C and also subparagraph E (6). They are not only wearing a belt but are wearing suspenders there. There are two specific provisions at pages 13 and 15 which make it clear that the optician will be able to continue to sell prescription eye- glasses; that is, the dispensing optician. Then, there has been some observation-and in this connection, may .1 say that I was interested in the concern of Congressman Horton on Monday morning, when he was speaking of an optical company. Now, for the sake of the record, may I say that most of the optom- etrists throughout the United States-perhaps, not most, but I will say a great, perhaps almost, majority of them obtain their frames and their lens from Bausch and Lomb. They supply a. great number of them. And there is nothing in this bill that in any way is going to work to the detriment of Bausch and Lomb Optical Company. Optometrists, historically, have furnished to the patient a visual care. The patient goes to the optometrist for his examination. In the event it is determined that `the patient needs glasses, the optometrist furnishes those glasses. Where does he get them? He gets them from Bausch and Lomb, from American Optical'Company, and from others, from the large optical supply houses, and then the optometrist furnishes those to the patient after checking them, as a part of his professional service. And so thisought to be very clear in this connection. The optometrist will permit the patient to pay the supply house direct, as is done in some prepaid business programs or as a convenience to the patient. to pay the optometrist, or the patient may, if he so desires, take the prescription to an optician, physician, or an optical store. And so the ethical optometrist is charging for his time, for his knowledge, his skill. He is no more an agent in the selling of eyeglasses than a dentist who is engaged in doing dental work selling a pair of dentures. He furnishes the eyeglasses as a part of his unified service to the' patient, just as the dentist supplies the denture as a part of his professional services to the patient. There has been some concern expressed that the optometrist was trying to get over into the field of the practice of medicine. Here, again, I would say that the bill itself destroys any thought of that PAGENO="0331" OPTOMETRY 327 kind, because Section 9, subsection F, at page 15, make's it very clear that nothing in this Act shall confer that right, by the use of drugs and medicines, or otherwise, and so forth. And so we feel that this, again, i~ an undue concern. Basically, what this bill would do would be to make optometry in the District of `Columbia that which it already is in every other state where the question has come before the courts, and that is to recognize * it as a profession. And in this connection, I would call to the itttention of the Subcommittee the language of the Supreme Court of the United States in 1955 in the case of Williamson versus Lee. Optical Company of Oklahoma, Inc., in which the Court said: We see no constitutional reason why a state may not treat all who deal with the human eye as members of a profession who should use no merchandising methods for obtaining customers. We believe that if this bill as prepared by the Congress and as in- troduced is enacted into law it will go a long way towards affording to the residents of the District of Columbia the same protection and the same fine standard of care as has been enjoyed by the residents and citizens of other states. That concludes my statement, Mr. Chairman. (The prepared statement submitted by Mr. Schoenbeck reads in full as follows:) STATEMENT OF ALBERT E. SCHOENBECK, COUNSEL FOR THE MIssouRI OPTOMETRIC ASSOCIATION, INC. Mr. Chairman and Members of Subcommittee Number Five of the House Dis- trict of Columbia Committee: On behalf of the Missouri Optometric Association may I express the Associa- tion's thanks for this opportunity to appear before you in support of H.R. 1283. My name is Albert E. Schoenbeck. I am an attorney-at-law, engaged in the general practice of my profession in the City of St. Louis. I am counsel for the Missouri Optometric Association, and have served in that capacity for twenty- six years. During those years I have bad the opportunity to become acquainted with the optometric profession, its members, the invaluable work optometry is per-. forming in the field of visual care, and with some of the problems affecting the eye care of the public. A study of the optometry laws of the individual States and of the Court deci- sions interpreting those laws shows there are substantial similarities in the laws of most States and shows there have been numerous changes in the law to upgrade and safeguard the visual care of the public. The Missouri Optometry law, which first provided for State examination and licensure of optometrists, was adopted in 1921. Since that time it has been amended, improved and strengthened by the State legislature on five occasions. The Missouri courts, interpreting the law, have updated and strengthened the law on additional occasions. It is my understanding that the law- pertaining to `the practice of optometry in the District of Columbia has `remained substantially unchanged since 1924. There have been significant changes in visual care in `the past 43 years and `in the type of regulation and control needed to protect the vision of the public. H.R. 1223 will supj)ly that need. It seems to `me `that H.R. 1283 proceeds on `three basic premises: First, `that protection of the visual care' of people of the District is all im- 1)ortant; Second, that optometry, as `the profession serving the largest number `of people with visual problems, should `be regulated in such a manner as `t'o afford maximum protection for the public; and Third, that the taint of commercialism and practices of the market place should be eliminated fro'm `this important area of health care. PAGENO="0332" 328 OPTOMETRY Many of the provisions of H.R. 1283 which would update the provisions of the Code of the District of Columbia pertaining to the practice of optometry have long been the established law- in many States, including Missouri. Let us take a few- examples. H.R. 1283 would eliminate price-cost advertising and other bait-advertising techniques. Since 1947, it has been unlaw-ful in Mis- souri for an optometrist to advertise "prices or terms for optometric services." If an optometrist does so in Missouri, his license may be suspended or revoked. The reasons that suggest the impropriety of a physician's advertising his price for performing an appendectomy, or for a law-yer's advertising his price for filing a divorce suit, are equally valid and applicable to an optometrist's advertising his price for performing an eye examination. It makes no more sense to permit a dentist to advertise the price of. dentures than to permit an optometrist to ad- vertise the price of conventional eyeglasses or contact lenses. As the :dentist sup- plies the dentures as part of his professional services, the optometrist supplies the eyeglasses or the lenses to the patient as part of his professional service. HR. 1283 w-ould make it clear that the acts of prescribing, fitting or adapting contact lenses to the human eye may be performed only by optometrists or by l)hysicians. By decision of the State Supreme Court this has been clear in Mis- souri since 1963, when the Court held squarely that the fitting of contact lenses constitutes the practice of optometry in the State. Surely it is in the public interest to see to it that the delicate task of fitting contact lenses is entrusted to only qualified optometrists and physicians, and to prohibit unlicensed laymen from en- gaging in the practice. H.R~ 1283 proceeds on the premise that optometry is a profession and should be freed from the taint of commercialism and the practices of the market place. As a Missouri Appellate Court said 14 years ago: "It (optometry) has become one of the important professions and because of this has received the attention of our legislative body, which has surrounded its practice with certain requirements." (State ex rel. Schneider's Credit Jewelers, Inc. v. Brackman (1953), 260 S.W. (2d) 800). In 1955, the Supreme Court of the United States declared: "We see no constitutional reason w-hy a state may not treat all w-ho deal w-ith the human eye as members of a profession w-ho should use no merchandising methods for obtaining customers." "Wiflia4n-son vs. Lee Optical of Oklahoma, liw. (1955) 348 U.S. 483, 99 L. ed. 563, 75 S. Ct. 461. Here is reason enough to get the optometrist out of the department store, the supermarkets and the tire shops. The vision care of the patient will be better served w-hen a doctor-patient relationship can be conducted in the doctor's office. free from the pressures of merchandising methods in which sales volume is all important. H.R. 1283 w-ouid eliminate exploitation of the public need for visual care by un- licensed laymen and corporations; It will prohibit laymen and corporations from engaging in the practice of optometry by hiring optometrists to work for them. It w-ill assure the public that the optometrist's primary allegiance is to his patient. and that his primary loyalty is not to an unlicensed layman or corporation w-hose primary motive is to sell glasses. This is in accord with the general body of law- stated in American Juris- prudence as follows: "It is generally held that in the absence of express statutory authority a cor- poration may not engage in the practice of optometry either directly or indirectly through the employment of a duly registered optometrist." 13 AM. Jur.. Corpora- tions. SectiOn 837. So on behalf of the Missouri Optometric Association.. may I urge your favorable consideration of H.R. 1283. Its adoption w-ill give to the residents of the District of Columbia safeguards in the field of vision care that the residents of many States have long enjoyed. It is legislation that is needed in an important field of I)Ublic health. Mr. Sisic. Thank you very much, Mr. Schoenbeck for a very concise statement. I appreciate very much the remarks that the gentleman made, par- ticularly with reference to the questioning by my colleague from In- diana this morning. Actually, it got into what I believe i. the crux of the question-a desire to improve the eye care of the people in the Dis- trict of Columbia. PAGENO="0333" OPTOMETRY 329 I do not have any questions. Thank you very much. Mr. SCHOENBECK. Thank you. Mr. SIsK. We have a request from a witness desiring to be heard, Mr. Leo Goodman, Chairman of the Legislative Committee of the District of Columbia Public Health Association. `We will be glad to hear from you now. STATEMENT OF LEO GOODMAN, CHAIRMAN, LEGISLATIVE COM- MITTEE OF THE DISTRICT OF COLUMBIA PUBLIC HEALTH ASSOCIATION Mr. GOODMAN. Mr. Chairman, I am happy to state that my statement is very short., and I will present it to you. It represents the view of the District of Columbia Public Health Association, a voluntary member- ship organization, and I am here to oppose the enactment of this bill under instructions of its president. The bills relating to and in behalf of some of the optometrists in the District of Columbia ought not pass. These bills in contrast to S. 260 which was heard in the Senate last February are in direct contradiction. The Hart bill, "The Medical Restraint of Trade Act," was endorsed and supported by many or- ganizations representing the consumer interest, in contrast to optom- etry bills peuding before this committee which are endorsed by some optonTetrists are opposed by the Medical Soci~ty of the District of Columbia and are clearly against the public interest. The funda- mental effect of the enactment of any one of the pending bills would be to double or triple the cost of eyeglasses to that portion of the population in the District of Columbia which could least afford it. If the purpose of `these bills were to improve the quality of visual care, it would provide a simple program. The elements of a quality improvement bill would necessarily include the following points: (1) A mandatory 21-point refraction; (2) A requirement that all glasses be made exclusively of first quality lenses; (3) A program for testing and licensing of all opticians; (4) A prohibition of those who are not licensed from assisting optometrists and others in the manufact.ure of glasses and the servicing of patients. It is significant t.o me representing a public health interest group that these items are not provided in the bills proposed. if the prob- lem to be dealt with here is the control of advertisements, there are other and more direct ways than provided by the sections of the various bills pending here. They have been introduced to provide a monopoly practice in this area. I can only repeat my opening state- ment these bills ought not pass. Mr. SIsK. Thank you very much. You say you are chairman of the Legislative Committee of the District of Columbia Health Associa- tion. `What is the District of Columbia Public Health Association? Mr. GOODMAN. We are. a local affiliate of t.he American Public Health Association w~i'th practically 1200 members interested in public health matters au~d have appeared before various branches of this committee in regard to a number of health matters that have come before the District of Columbia Committee this year. 82-754 O-67---22 PAGENO="0334" 330 OPTOMETRY Mr. Sisic Who composes the body of the organization ? are some of its members ? Mr. GooDMAN. There are many different, groups. There are public health workers, doctors, nurses. Mr. SI5K. Generally. medical doctors, medical people? Mr. GOODMAN. Medical-oriented peopk, associated with health matters. Mr. SI5K. You make the statement which apparently indicates that you were in support of the Hart bill S. 260. Is that correct? Mr. GOODMAN. No, we did not testify in connection with that.. We were struck by the contrast between the testimony as given in February of this year on that bill and- Mr. SIsK. Were you opposed to the Hart bill? Mr. GOODMAN. No. We did not participat.e. Mr. SI5K. In other words. neither you nor your organization had a position on that bill? Mr. GOODMAN. We did not take a position on the Hart bill. Mr. SIsK. I remember very well introducing the president of my own home-town county medical society to testify in opposition to the provisions of the Hart bill. He happened to be an ophthalmologist. I w-as just a. little bit curious as to whether you or your organization had taken a position on the Hart bill. Mr. GOODMAN. No, sir, we do not or we did not. Mr. SIsK. Thank you, Mr. Goodman, for your appearance here this morning. Mr. GOODMAN. Thank you. Mr. SI5K. Without objection, the statement. of Mr. Charles M. Bahb, representing the Texas Optometric Association, will be made a. part of the record at this point. (The statement referred t.o follow-s:) STATEMENT OF CHARLES M. BARB. ATTORNEY AT Lxw, 1005 CAPITAL NATIONAL BANK BUILDING, AUSTIN. TEXAS, FOR THE TEXAS OPT0METIIIc AsSOcIATION Mr. Chairman and members of the committee. the officers and directors of the Texas Optometric Association have asked me to express their gratitude to this Subcommittee for this opportunity to be heard in support of HR. 1288. Texas optometrists are concerned that Washington. D.C. is practically the only place left in the Nation where their profession is permitted to be practiced on the lowest levels of ethics and professional standards. For more than a quar- ter of a century the Legislatures and Supreme Courts of practically every State in the LTnion have repeatedly recognized optometry as one of the im- portant health professions `and upheld its regulation on the very highest ethical standards in keeping with those of other learned professions. See attached excerpts from State Supreme Court opinions. While Congress in other legislation has repeatedly recognized the vital impact of the practice of optome- try upon the public health, here in the District it continues to permit the pro- fession to `he exploited and commercialized by the optical products industry which measures its profits by the volume and content of optical prescriptions. As Americans. the members of the Texas Optometric Association protest the continuation of this National eyesore and respectfully implore this Subcommittee and the Congress to let their profession in this District reflect the ethical and professional standards long and firmly established in practically every State in the Union. Unless the Congress acts now. the eyes of the world on this City will continue to see a distorted image of the real concern for human vision found in the rest of the `country. The enactment of H.R. 1283 during the administration of President Johnson will be of special significance to the optometrists of Texas, for it was through the leadership and advocacy of his Father, the Honorable Sam Elay Johnson, as a member of the House of Representatives of the 37th Texas Legislature in 1921. PAGENO="0335" OPTOMETRY 331 that Texas first recognized optometry as a health profession by enactment of its original Optomerty Act. For many years in Texas it was the privilege of some of the members of the Texas Optometric~ Association to have the President's Father and President Johnson as their patients. We respectfully submit that it is altogether fitting that this measure should become law bearing the signature of Lyndon Johnson. As an added Texas interest let me also point out that one of your colleagues, the Honorable Jake Pickle, Congressman from the Tenth District of Texas, for five years served as Executive Secretary of the Texas Optometric Association, and I highly recommend him to this Subcommittee as an expert in his own right on the profession of optometry and well acquainted with the need for high ethical and professional standards in the practice of optometry such as those established by HR. 1283. Is HR. 1283 in the best interest~Of the public? Does the visual health and wel- fare of the public require such strict regulation of the profession of optometry as that contained in HR. 1283? Legislatures of practically every State in the Union have considered these same issues and answered repeatedly and resoundingly- YES! The highest courts of practically every State have thoroughly considered these questions and repeatedly and forcefully answered-YES! The long chain of affirmative decisions on these issues contained in statutes, administrative regula- tions and court decisions for other thirty years are matters of public record and no longer subjects of debate scarcely anywhere except in the District of Columbia. Why is it that in practically every American jurisdiction optometry is recog- nized by law as a profession, and its practitioners required to adhere to high standards of ethics and professional conduct? Certainly not to flatter the dignity of optometrists. It is because State after State has discovered one unvarying char- acteristic about optometry-either government regulates the profession in the interest of the public or the commercial optical chain operators will regulate it, run it and thoroughly control optometry and optometrists for their own profit. Experience in this country has demonstrated that antiquated optometry licens- ing laws are inadequate to maintain the professional freedom and independence of the practitioner, to assure the efficacy of the optical prescription or safeguard the confidential relationship between doctor and patient. In the early 1920's, when the District's and many of the State licensing laws were first enacted, eyeglasses were not a popular item. Instead of being stylish they were strictly functional appliances which the public sought to avoid if at all possible. Today, many people wear glasses to be stylish or because they think it improves their appearance. Optometric science developed the contact lens so that now they can be worn with ease and comfort by most people. Eyeglasses, stylish frames and contact lenses have become highly merchantable items and extremely attractive to commercial interests seeking to reap profits from millions of dollars in sales annually to an eyewear conscious public. However, as this market began to grow, the optical merchants had one big problem. i\iost people buy glasses on a prescription. Before there can be a prescription there must be a doctor, an optometrist or a physician, the only two health care practitioners licensed by law to practice optometry. In such a rapidly expanding market, the doctor became the fly in the optical ointment. The optical business world, sitting on top of an exploding market for lenses and frames, which they saw strictly as merchandise, was frustrated by doctors who wasted time with talk of professional ethics. adequate eye examinations. a duty to the patient not to prescribe glasses unless really necessary and refusal to solicit patients by advertising. What the commercially minded optical indus- try w-anted w-as sales volume. To get it the doctor would have to prescribe more often: so. it became obvious to the titans of the optical industry that the doctors mu~t be dealt with and deal with them they did. And thus there began what has become known as the optical rebate or kickback. At that time optometry had not become sufficiently prominent to deserve the attention of the optical kings. so they concentrated their financial arrangements on the medical doctors. the oculists. The optical rebate or bickback system helped sales of glasses tremendously. With the average rebate amounting to almost 50% of the sales price, the oculists suddenly discovered that more of their patients needed glasses. Also, the price of glasses went up. Under medical ethics the doctor would have been concerned that his patients not be robbed, but now the higher the price the greater the rebate. Just before World War II such practices came to the attention of the Justice Department, resulting in six antitrust suits brought against severa' of the largest PAGENO="0336" 332 OPTOMETRY American optical manufacturers and wholesalers and also naming as defendants 75 individual oculists as representative of some 3,000ocuplists as a class through- out the United States. These are commonly known as the optical rebate cases. The government's evidence revealed that the 75 named doctor defendants garnered some $783000 from the defendant companies in a single year. It was never determined what the total take of all 3,000 doctor defendants amounted to but, assuming that on the average they fared equally well as the 75 named defendants, it would have amounted to more than $30,000,000 a year out of the pocketbooks of the American public. Although these cases were terminated by a judgment in 1946, the threat of optical rebating, in new and more subtle forms, remains a threat today not only in medicine but also optometry, and we commend the author of this bill for including Sec. 8(a) (7) which makes it unlawful for the doctor writing the prescription, "to receive any part of the sum paid or other valuable considera- tions paid by such person to a third person for filling such prescription; or for such third person to pay the person writing a prescription any part of the sum paid or other valuable considerations received by such third person for the filling of such prescription." While optical rebates and kickbacks must be guarded against, they never be- caine a w-idespread technique in optometry. With the filing of the optical rebate cases the commercial optical interests looked around for a safer and cheaper way to keep sales booming. They found it. By this time optometry w-as emerging as a leader in the field of visual care. Each year there w-ere more and more optom- etrists licensed, and they were seeing more and more patients. However, as the optical merchants soon discovered, unlike state laws regulating medicine, the optometry law-s in most of the states were weak and untried. The profession of optometry was not as powerfully organized as medicine and didn't have the con- trol over its members such as the medical associations exercised over physicians. They didn't need to rebate anything to the optometrists. They could control them. In many states they could form corporations and hire optometrists to turn out prescriptions as fast as they wanted them to. Or, they could find them a puppet optometrist, set him up in practice under an assumed name, open up as many offices as they wanted, have their puppet doctor hire other optometrists to staff the other offices and establish a chain optical operation. Also, through subterfuge lease and lease back arrangements they could legally set optometrists up alOng the aisles of department or jewelry stores and operate "optical departments" just like the home appliances department. Under the w-eak law-s prevailing at the time and w-ithout any regulations to stop them, some optometrists w-ithout regard for the standards and ethics of their profession, set up such commercial operations and became known as commercial optometrists to distinguish them from their professional brethern w-ho were unw-illing to abandon their profes- sional ethics or their patients to enter the competition for commercial sales of optical products. But the real bonanza for the commercial operators lay in the lack of enforce- able restrictions in most of the early optometry law-s on soliciting patients by all forms of advertising. Under the rebate-kickback arrangement with the medical doctors, getting the patient to the doctor for glasses was relatively slow- since most of the state medical practice acts took a dim view of medical doctors stimu~ la'ting their practice by advertising. This was, of course. based on the "old fash- ioned" theory that those suffering from disease or illness would fare best at the hands of doctors w-ho must stand or fall on the merits of their services and build their practices on the recommendations of satisfied patients. rather than prosper- ing from suffering humanity lured to their offices by baseless promises. exag- gerated claims and selfiaudatory advertising. This has been well put by one of our State Supreme Courts in these words: it is not likely that a physician would hire an agent to drum up patients for him, only to say to them: `Go thy way: thou dost not need a physician.' A physician who has secured a patient by means of a hired agent has paid a cer- tain sum to obtain his patient. and is under a strong temptation to put him through a course of treatment, w-hether he needs it or not, in order to get him money back and make a profit on his investment. And therein lies a danger to the public from such a practice. ~." Thompson v. Van Lear, 92 SW. 773. 775 (Ark. 1906) Unrestrained by such limitations in most of the optometry law-s of that day. the commercial optical interests had a field day. No longer need they wait for the potential patiei~t-customers to decide they needed glasses. Get them to the optometrist by constantly reminding them in newspaper ads, on the radio and PAGENO="0337" OPTOMETRY 333 television that they might he going. blind with glaucoma. And don't forget the children. With the population explosion statistics showed there were millions to be made in sales of gla~ses to children. Tell the parents their children may be suffering from any variety of eye diseases which might cause blindness. Of course. the fact that the doctor knows such~an' eye examination is no assurance that glaucoma, cataract or many other diseases are not present di'd not deter the optical merchants. So what! The patient would never know the difference- until he went blind! And along with the scare technique goes the appeal to save money. Unfortunately, there are many families in this country to whom the matter of a dollar or even less makes the difference in health `care or no health care. So the promise of glasses at "lowest possible price" or at a low fixed price has a powerful appeal to all budget minded families but especially to the poor who may be suffering from defective vision. Here again, the credulous, unsuspecting patient is at the mercy of whoever supplies the glasses'. The patient has no way to judge whether he has been `cheated or not. The price may `be right but the prescription may be wrong. `The" glasses may be comfortable, they may even enable the patient to "see better," and at the same time be doing, serious damage to his vision. Needless to say, under these conditions, `the sales volume o'f eyeglasses, con- tact lenses, etc. broke all records. As the commercial control of optometry spread across the country state by state, the issue beëame-whether the commercial optical interests were going to control and regulate the profession and manipu- late the doctors for their own financial benefit, or the states were going to control and regulate the profession to make sure the' public was honestly and competently serve'd. As I see it, `this is the issue which this `Committee must resolve in approving or rejecting this `bill. The overwhelming majority of state legislatures have considered and passed optometry laws substantially similar to the Act now proposed for the Dirtrict. In other state's, `such as Texas, legis- latures have delegated to the optometry boards the responsibility `of regulating the profession in the public' interest. The evils inherent in government's failure to establish and enforce ethical and professional standards in the practice of optometry tire common to a'll areas of the country. That such evil's do exist when government fail's to regu- late the profession is a matter of public record, the most accessible `b'eing `appel- late court opinion's `of our State Supreme Courts' describing in lurid detail how patients fare in a commercialized health profession. In February of this year the Texas `Supreme `Court upheld the validity of a Texas regulation `of `optometry requiring optometrist's to practice only in the name under which they are licensed, forbidding rebates, fee~splitting and other unethical practices. These same practices are forbidden by H.R. 1283. In its opinion the Texas supreme Court noted the necessity for such regulation's was supported `by "~ * the record which abounds with evidence of the specific evils `the rule' was designed to `correct." Texas State Board of Examiners In Optometry v. Ellis Carp, Et. Al., 412 S.W. 2d 307 (`Tex. 1967). The Court then proceeds to describe and analyze some of th'o'se evils. For the convenience of the Subcommittee a copy of that opinion is attached hereto. This is typical of optometry regulation cases. The records `and `opinions generally abound with evidence of what happens to patients in an unregulated health profession. On b~half `of `the Texas Optometric Association it is respectfully urged that the opportunity for such evil's to continue in the District be en'ded, insofar as the law can do so, `by the enactment of H.R. 1283. I have been a'sked by the President of the Texas Optometric Association to offer all aid and assistance to this Subcommittee in its consideration of H.R. 1283 an'd to this purpose the services and facilities of the Association, including its legal counsel, are available to the Subcommittee `on request. APPENDIX ARIZONA "Dentistry and optometry both belong to the healing arts, and the reason for regulating one is equally applicable to the other. The following observations might as well have been made of optometry: `° * Dentistry is, a profession having to do with public health, and so is subject to regulation by the state. * ~` ". Funk Jewelry Co. v. State, 50 p. 2d 945 (Ariz. 193i) PAGENO="0338" 334 OPTOMETRY ARKANSAS "There can be little doubt that the General Assembly had power to declare optometry a learned profession, and this it has done on two occasions * * "* * * What the measure prohibit is employment of an optometrist by one who is not licensed. In other words, a layman may not engage in the profession by employing a licensed optometrist." Jlelton v. Carter, 104 S.W.2d 453, 455, 457 CALIFORNIA "The error of petitioner herein is that he considers and refers to the science of optometry as the `business' of optometry, and that the license fee of $12 is imposed .as a tax for revenue purposes, and that such license fee, being imposed upon a business is limited to the amount necessary for licensing, including reason- able compensation for supervision over the particular industry. "There can be no question but that the practice of optometry is more than a business: It is a profession relating to the public health, and as such, is par- ticularly subject to state control." "The regulation of such activity is not for the benefit of the licensee but for the protection of the state * "The right to practice a learned profession comes from the state and is held subject to conditions implied by the state and may be taken away for noncom- pliance with such conditions." Pennin.gton v. Bone!!,', 59 p. 2d 448 (Calif. 1938) CONNECTICUT the patient w-ho resorts to an optometrist for advice and help is en- titled to the same undivided loyalty that he should receive from a physician." Lieberman v. Board of E~raminers in Optometry, 130 Conn. 344, 349 (1943) FLORIDA The Florida Board promulgated rules limiting the size and number of signs, prohibiting the display of eyeglasses or eye signs; prescribing the contents of a professional card; prohibiting display advertising or window displays, etc. In upholding the Board's rules, the Supreme Court of Florida said that the power to make rules and regulations not inconsistent with the provisions of the law governing the practice of optometry "involves a very broad discretion. Each and every one of the rules complained of has been examined; and while some of them may be said to explain, expand or expound the statute, w-e cannot say that they are not contemplated by it or comprehended in the pow-er conferred." "It is * our view that the rules * * are within the express or implied authority of the board * `~ * and that they are not only valid but necessary to effectuate the full intent and purpose of the law." Fisl,er v. rgclinmael,er, 72 So. 2d804 (Fla. 1954) GEORGIA "The only questions the writs of error present for decision are whether or not the corporate defendant is unlaw-fu]iy practicing the profession of optometry by employing and paying the defendant Gold, a licensed optometrist, to examine eyes of persons for it when no charge is made to such persons for the service he renders them and whether or not the defendant Gold is violating the rules and regulations which the board of examiners in optometry adopted pursuant to an act which w-as passed in 1963 (Ga.L.1963, p. 214) by accepting employment from the corporate defendant to render such optometric services for it. "These two questions are fully answered in the affirmative by the unanimous decision which this court rendered on October 10. 1903, in Pearle Optical of Afonroevilie, Inc. v. state Board of Ewaminers in Optometry, 219 Ga. 364 (133 SE2d 374); and since the opinion in that case so exhaustively deals with and settles the questions presently before us for review- adversely to the contentions of the plaintiffs in error, no further discussion of them is here deemed necessary and the motion to overrule that case, after being fully considered, is denied. A ruling different from the one here made is not required by the decision this court rendered on December 4. 1930 in Georgia state Board of Ewaminers in Optometry v. Friedmans' Jewelers, 183 Ga. 069 (189 SE 238) ; and this is true for the reason that the law- respecting optometry has been materially changed since that case was decided and optometry is now by statute expressly declared to be a learned profession and not merely a mechanical art as it u-as classified PAGENO="0339" OPTOMETRY 335 and deemed to be when Friedmans' case was decided. See Ga. Laws 1956, p. 94, as amended by Ga. Laws 1963, p. 214." Lee Optical of Georgia Inc. v. Georgia State Board of Eccaminers in Optometry, 138 SE2d 165 (Ga. 1965). ILLINOIS "There is no argument but what the practice of optometry has an effect on the public health and welfare sufficient to justify that practitioners be licensed, and from such fact we believe it is reasonable for the legislature to prescribe the use of the license which they have suffered a registrant to receive." "While at first blush it would seem that Sections 13(k), (1) (m) appear to be an arbitrary interference with the right of one to practice optometry, such thoughts are dispelled when the relative aspects of public health and welfare are considered. * * * the legislature is not dealing with traders in commodities but with the vital interest of public health in the treatment of bodily ills." "In addition, the community is concerned in providing safeguards not only against deception, but against practices which tend to demoralize the business or profession by forcing its members into unseeming rivalry, and which would tend to enlarge the opportunities of the least scrupulous." Klein v. Department of Registration and Edncation, 105 N.E.2d. 758 (Ill. 1952) INDIANA "The practice of optometry bears a close relationship to the health and wel- fare of mankind. The eye is a delicate organ closely connected with intellectual, nervous, and physical functions. This fact brings the practice of optometry within `the scope of legislative supervision through the exercise of the police power. The principal purpose of the statute is to give protection to the public from quacks, and persons or firms not licensed, but who, as non-resident manu- facturers of eyeglasses, etc., employ licensed optometrists to conduct the manu- facturer's business in this State for profit." Bennett v. Indiana State Board of Optometry, 7 N.1ll.2d 977 (md. 1937) IOWA "We might suggest that there is no difference, under our Code, in the law applicable to the practice of dentistry and optometry, and that the general rules laid down by the courts are alike applicable to these as well as all other of the learned professions." State v. Kindy Optical Co., 216 Iowa 1157, 248 NW. 332 (1933) KANSAS "Defendant carried on an extensive advertising campaign in the local news- papers. There were usually rather large display ads. They would devote con- siderable space to the jewelry business of defendant but always a portion would be `devoted to the optical business. "In practically every authority we have examined on the question the courts have been compelled to examine and consider a course of dealing such as we have here. They have universally held that a lease arrangement such as these parties entered into is a subterfuge." State v. Zale Jewerly Company, 298 P.2d 283 (Kan. 1956) KENTUCKY "Our statutes, therefore, place the practice of optometry upon a rather high professional plane." Kendall v. Beiling, 295 Ky. 782, S.W.2d 489 (1943) LOUISIANA "These courts [in other States] have decided that the statutes are a reason- able exercise of the police power; they prevent `bait advertising' which attracts the unwary to purchase inferior glasses; eliminate the temptation to, and the pressure upon, customers that result from the assurance that no more than a named price will be charged; protect an incautious and unwary public from being misled and deceived; prevent the increase in sales and the incidental harm that come from unfitted glasses; eliminate to some extent poor quality and poor workmanship which naturally result from the desire to sell spectacles in quantity at a low advertised price for the purpose of underselling competitors." State v. Bones, 67 So.2d 99 (La. 1953) PAGENO="0340" 336 OPTOMETRY MASSACHUSETTS "In recent times abnormalities of the eye, like those of the teeth, have been found sometimes to indicate and often to result in serious impairment of the general health. The work of an optometrist approaches, though it may not quite reach, ophthalmology. The learning and the ethical standards required for that work, and the trust and confidence reposed in optometrists by those who employ them, cannot be dismissed as negligible or as not transcending the requirements of an ordinary trade. We cannot pronOunce arbitrary or irrational the placing of optometry upon a professional basis." McMnrdo v. Getter, 10 N.E.2d 139 (Mass. 1937) MICHIGAN "It overlooks the fact that optometry has become a real science devoted to the measurement, accommodation, and refractory powers of the eye without the use of drugs, thus superseding obsolete and archaic methods of fitting glasses. It has become one of the important professions, and for the preparation of its proper practice courses in optometry, physics, physiology, pathological coñditons of the eye, the proper use of the retinoscope, refractor, prisms, lenses, etc., are given as part of the cirriculum in many of our largest universities as well as colleges specializing in optometry." ycifert v. Ru/il Optical Co., 276 Mich. 692, 268 N.W. 784 (193G) MINNESOTA "The legislature need not enumerate what specific acts or omissions constitute unprofessional conduct since the phrase `unprofessional conduct' itself provides a guide for, and a limitation upon. the exercise by the board of its power to revoke a practitioner's license * *~ The board is thereby empowered to declare as `unprofessional' only such conduct as fails to conform to those standards of professional behavior which are recognized by a consensus of expert opinion as necessary for the public's protection. It follows that the board is not determining when and upon whom the delegated discretionary power is to take effect but is simply ascertaining the existence of a member's acts or omissions which, if they violate the accepted standards of professional behavior, automatically bring the law into operation by its own terms." Rcyhurn v. Minnesota state Board of Optometry, 78 N.W.2d 351 (Minn. 1~5G) MISSISSIPPI "The law contemplates that the controlling principle in the use of the State's franchise will be the eye of the patient, and its preservation, and not the eye of the employer in its scrutiny and search for profits. "In other words, the conscience of the practitioner should guide him in his service, and not the company's cash register where the sales are rung up. "Professional responsibility and the public welfare demand that the human eye, above all things, be held sacred, and in no sense an object of commerce in routine traffic of equipment purporting to be for its benefits. "It is not thinkable that the State, after a scientific and studied examination of the applicant, would issue him a license, over its Great Seal, to go out and tamper with the human eye as with a commodity in the market place, and the wares which merchants buy. "And when we think of the children, in increasing numbers, who are helpless in submission to this procedure when their sight is at stake, we lose patience with everything except fidelity to duty. and the highest altruism in providing what Nature requires in such delicate and vital situations. "Surely an optometrist should be absolutely independent *of everthing and everybody except his profession, and the people who confidently depend upon him to aid them in improving and preserving their sight." ~S't ate Board of Optometry v. ~Sears, Roebuck ~ Co., 57 So.2d 726 (Miss. 1952) MISSOURI "It can hardly be disputed that optometry has become a real science . . . It has become one of the important professions . . ." ~S'tate v. Brac1~'man, 260 S.W.2d 800 (1953, rev, on procedural grounds, 272 S.W.2d 297) PAGENO="0341" OPTOMETRY 337 NEW JERSEY "Thus by its very nature, the practice of optometry is subject to regulation for the protection of the public against ignorance and incapacity and deception and fraud, equally with the practice of ophthalmology and the other `learned pro- fessions' ~. The Legislature recognizes optometry as a. profession calling for the exercise of scientific skill. ~." Ableson v. New ,Jersey State Board of Optometry, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929 (1953) NEW MEXICO "The Legislature of New Mexico enacted Section 67-7-13 [Optometry Act]., supra, to protect its citizens against the evils of price-advertising methods tending to satisfy the needs of their pockctbooks rather than the remedial requirements of their eyes." New Mexico Board of Examiners In Optometry v. Roberts, 370 P2d 811 (N.M. 19i32), affirmed in 374 U.S. 424 (U.S. 1963) OHIO "* * it is specifically held that optometry is a profession under the statutes of Ohio * * ~ State v. Optical Go., 2 N.E.2d 601 (Ohio, 1936) OKLAHOMA * This regulation is on the same constitutional footing as the denial to corporations of the right to practice dentistry. Semler v. Dental Examiners, [infra]. It is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical loca- tions that reduce the temptations of commercialism. Geographical location may be an important ëonsideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level." Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) OREGON "The practice of optometry is undoubtedly one of the subdivisions of the prac- tice of medicine, which have arisen in modern times by reason of the necessity for specializing. It would seem that the public has as much need to be pro~ tected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine. * * One who consults an optometrist for ocular ex- amination is entitled to the same undivided loyalty that he should receive from a physician. The fact that the optometrist is the employee of an optical concern whose main interest is the sale of optical goods tends to be a distracting in- fluence which may adversely affect his loyalty to the interests of his patient." "While it is true that an optometrist is not permitted by law to treat diseases of the eye, nevertheless his training enables him to diagnose pathological con- ditions, .and his duty requires him to refer the patient to a practitioner who is qualified to treat such conditions. The fact that he is trained to diagnose pathological conditions in itself indicates that the optometrist is not a mere. skilled craftsman or mechanic. His failure to diagnose a pathological condition, with resultant delay or neglect in proper treatment thereof, might result in serious impairment of a patient's eyesight, or even in blindness." State v. St and- ard Optical Go., 188 P. 2d. 309 (Ore., 1947) PENNSYLVANIA. "All those who have had any experience with eyeglasses, and, after a certain age has been reached, that number embraces the vast majority of the educated citizens of the State, know that an improper fitting or frame to glasses can destroy the therapeutic value of the prescribed lenses. Glasses which do not obey the axis prescribed by the optometrist or which tilt at an inaccurate angle can do as much damage to the wearer as striking ones eye against a door. It must be assumed that the legislature had in mind these possibilities when it acted legislation on the subject of eyeglasses. * * * To fit inferior lenses to PAGENO="0342" 338 OPTO~TRY an already weakened or bruised organ of sight is like supporting a cripple with papermache' crutches." Ullom v. Boelim, 142 A. 2(1 19. SOIJTH CAROLINA "Suffice it to say that the legislature of this State. as we have hereinbefore suggested, has given due recognition to the professional status of the practice of optometry, and, so far as the protection of professional rights is concerned, has placed it in a parity with other professions charged with important duties to the general public." Ezell v. Bit liolz. 198 SE. 419 (S.C., 1938) SOIJTH DAKOTA "The cases and legislative enactments involved further reveal that as to physicians, surgeons, and dentists advertising in the usual sense. and except for the professional card provided by our statute for the optometrist, is almost universally prohibited. `It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine.'" Vo,,cool i. Parenteau. 63 N.W. 2d 807, 813 (S.D. 1954) TENNESSEE "The complainants are engaged in the practice of optometry in the City of Xashville and advertise in show--windows, by cars, neon signs, etc., various articles used in the practice of their profession. The Section of the Act herein assailed, the same being Section 43, is the only Section which affects them in their business or profession. It expressly prohibits them from advertising eye- glasses. spectacles, ophthalmic lenses. or prisms, or frames, or mountings, etc.. and confers upon the Board the authority to suspend, or revoke any license of any holder for any alleged violation of the Act." The entire Act was held constitution- al. f~eawe1i v. Beeler. 287 SW. 2d 54 (Tenn. 19~6) TEXAS The statute [Medical Practice Act] is the result of the Legislature's effort, in the exercise of the police power, to preserve and protect the public health. There is implied an intent to take note of the organs of the body. The eye is the organ of vision. In the eye there are many parts, each performing a distinct function, but all designed by nature to produce the sense of night." "It seems obvious that defects of vision may result from disease of the eye and other organs of the body. It is conceded and the optometrist must discern that the impairment which he seeks to remedy by lenses is not consequent upon disease. It follow-s that, while the eye operates upon mechanical principles, it cannot be treated as a mechanism alone. Its vitality as an element of the human body cannot be overloked. Other organs of the body function upon mechan- ical principles for example, the heart as a pump, the muscles as levers ; but they, like the eye, are nevertheless organs of the human body, and each organ is, to a degree, interrelated with all others." Baker v. state, 240 S.W. 924 (Tex. 1921) VIRGINIA "The advertising of the sale of glasses with optometrical service at a price cer- tain is apt to be used as a lure and bait to the unwary and as a means of deception of those w-ho are attracted by a seemingly low- price without considering the degree of skill involved. It tends to promote unfair competition against those skilled in the profession. The `barker' and others who make their livelihood out of human gullibility cannot apply their talents to human eyesight w-ithout serious conse- quences. The Legislature undoubtedly had these evils in mind when it adopted the Optometrical Act in its present form. Reasonable Statutory regulation of advertising involving professional services is proper where, in the absence of such legislation', great evils w-ill follo~v.~ 1?itliolz r. Coinmoincealtls of Firginia, 35 SE. 2d 210 (Va. 1945) WASHINGTON "It is difficult to overestimate the importance of good sight. The use of lenses to improve vision, is very great, and the prescribing of properly prepared glasses and the advice, in proper cases, that glasses are unnecessary are equally impor- tant. Incalculable harm may result from improper diagnosis and advice in con- PAGENO="0343" OPTOMETRY 339 nection with these matters, or from the use of glasses not correctly ground." State v. Superior Court, 135 Pac. 2d 839 (Wash. Sup. Ct. 1943) WEST VIRGINIA "Vision is essential to the highest usefulness of the individual. The eye is proverbially a delicate organ. It is closely connected with intellectual, nervous and Physical functions. Advice as to its care and prescribing for the correction of its defects by tests and examinations without the use of drugs is closely connected with health." Eisensmith, et al v. Buhi Optical Co., 178 S.E. 695 (W. Va. 1934) WISCONSIN "We do not have to rest the constitutionality of the statute wholly upon the dentist case, supra. The evidence in this case shows that the advertising used by plaintiffs actually does operate to defraud the public. The customers of plaintiffs are mostly poor persons. The plaintiffs by their own testimony aim to advertise where their advertisements will reach `workers, foreigners and negroes' particu- larly. They used the advertisement as a lure or bait, or as they call it `an in- ducement' to draw such persons to their stores. The general nature of their ad- vertising is shown by the photostatic copy of an advertisement. Note the following in the photostat: `$12 value $3.88;' `at the low price of $3.88;' `Get the glasses you need at a price you can afford'; `No extra costs'; `FREE'; `No extra charge.' This on its face is dishonest advertising. It manifestly aims and tends to mislead the public within the rule of Semler v. Oregon State Board, etc., supra, and Com- monwealth v. Ferris, 305 Mass. 233, 235, 25 N.E. 2d 378, and is `therefore fraudulent t~dvertising." f?itliolz v. Johnson, 17 N.W.2d 590 (Wis. 1945) PAGENO="0344" 340 OPTOMETRY Cite as 412 8.W.2d 307 TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY at at., PetItioners, V. EllIs CARP at at., Respondents. No. A-I 1478. Supreme Court of Texas. Feb. 8, 1967. Suit against Texas state board of ex- aminers in optometry and certain of its members f~r judgment declaring invalid professional responsibility rule adopted by board. Judgment adverse to plaintiffs ren- dered by District Court, Dallas County, Dal- as A. Blankenship, J., was reversed in part and affirmed in part by Dallas Court of Civil Appeals, Fifth Supreme Judicial Dis- trict, 401 S.W.2d 639, and defendants pe- titioned for review. The Supreme Court, Pope, J., held that rules promulgated by board of examiners in optometry prohibit- ing fee splitting by licensed optometrist with unlicensed person and division of fees by treating optometri~t with another op- tometrist and practice of optometry under assumed or trade names and requiring pres- ence of optometrist at office with which his name is identified and at which he holds himself out as practitioner were not new and inconsistent provisions to Optometry Act and were consistent with one or more of its specific proscriptions and were valid. Judgment of Court of Civil Appeals reversed and judgment of trial court af- firmed. Smith, J., dissented. I. PhysIcIans and Surgeons c~5(I) Purpose of statute requiring, inter alia, that optometrist be licensed before he may practice and that he must evidence his identity and professional qualifications by registering and recording his license in any~ county in which he practices was to as- sure and protect personal and professional relationship between optometrist and his patient. Vernon's Ann.Civ.St; arts. 4556, 4561-4563; Vernon's Ann.P.C. arts. 735, 736. 2. AdministratIve Law and Procedure ~39O PhysIcIans end Surgeons ~IO Rule of professional responsibility adopted by board of examiners in optometry prohibiting fee splitting* by licensed op- tometrist with unlicensed person was spe- cific~l1y related to provision in optometry act prohibiting deceit or misrepresenta- tion in practice of optometry and provision authorizing revocation of license when li- censee directly or indirectly solicits pa- tronage and did not state new or incon- sistent grounds and was not in excess of board's delegated powers. Vernon's Ann. Civ.St. arts. 4556, 4563 and (b, h); Ver.~ non's Ann.P.C. art. 773. 3. AdmInIstrative Law and Procedure c1'390 PhysIcIans and Surgeons `IO Rule of professional responsibility adopted by board of examiners in optometry prohibiting division of fees by treating op- tometrist with another optometrist was rele- vant to provision in Optometry Act pro- viding that board may refuse to issue or may cancel license if applicant or licensee is guilty of any fraud, deceit or misrep- resentation and did not add new or incon- sistent grounds to those provided in statute and was not in excess of board's delegated powers. Vernon's Ann.Civ.St. arts. 4556, 4563 and (b, h); Vernon's Ann.P.C. art. 773. 4. AdministratIve Law and Procedure ~39O PhysIcIans and Surgeons ~IO Rule of professional responsibility promulgated by board of examiners in op- tometry prohibiting practice of optometry under assumed or trade names was rele- vant to provisions of Optometry Act and did not add new or inconsistent grounds thereto for refusal to issue license or for cancellation of license and was not in ex- cess of board's delegated powèrs Vernon's Ann.Civ.St. art. 4563. PAGENO="0345" OPTOMETRY 341 5. Physicians and Surgeons ~iO Evidence that one optometrist operated 71 offices in Texas under 11 trade names and from time to time added, dropped or changed trade name at particular office and that optometrist's advertising repre- sented to public that certain offices were in competition supported adoption of pro- fessional responsibility rule by board of examiners in optometry prohibiting practice of optometry under assumed or trade names. Vernon's Ann.Civ.St. art. 4563. 6. Administrative Law and Procedure c~3383 Practice of profession under trade name may be regulated and prohibited by rules. 7. Administrative Law and Procedure ~39O Physicians and Surgeons ~`iO Rule promulgated by board of ex- aminers in optometry requiring presence of optometrist at office with which his name is identified and at which he holds him- self out as practitioner was not inconsistent with Optometry Act and was valid. Ver- non's Ann.Civ.St. arts. 4556, 4561-4563; Vernon's Ann.P.C. arts. 735, 736. 8. Physicians and Surgeons ~`iO Fact that general public has means by which to discover and identify persons practicing optometry under trade name does not render such practice consistent with public interest; disapproving South- western Bell Tel. Co. v. Texas State Op- tical, 253 S.W.2d 877. Vernon's Ann.Civ. St. art. 4563. 9. Administrative Law and Procedure `386 Statutes ~2i7.4 Any implication that legislature did not intend to prohibit trade name practice of optometry and fee splitting arising from fact that before passage of optometry act sections prohibiting trade name practice and fee splitting were deleted from bill was overcome by legislature's express grant of broad rule making powers to board of ex- aminers in optometry empowering board to make appropriate rules grounded upon Sub- stantial, evidence of evils against which public should be protected. Vernon's Ann. Civ.St. art. 4563. Crawford C. Martin, Atty. Gen., Haw- thorne Phillips and John Reeves, Asst. Attys. Gen., Will Garwood and Tom Gee, Sp. Asst. Attys. Gen., Niemann & Babb, Charles N. Babb, Austin, Strasburger, Price, Kelton, Miller & Martin, Mark Mar- tin, Dallas, for petitioners. *Price Daniel, Austin, Douglas E. Berg- man, Dallas, Keith, Mehaffy & Weber, Quentin Keith, Beaumont, for respondents. POPE, Justice. Doctors Ellis Carp, S. J. Rogers, and N. Jay Rogers sued The Texas State Board of Examiners in Optometry and sought a de- claratory judgment that the Professional Responsibility Rule adopted on December 21, 1959 by the Board was void. They also asked for a permanent injunction against the Board's enforcement of the rule. The trial court denied the relief prayed for and sustained the validity of the rule. The court of civil appeals held that although there was substantial evidence which sup- ported the rule, the Board exceeded its delegated powers in promulgating it and therefore, the rule was invalid. 401 S.W. 2d 639. In our opinion the Board did not exceed its statutory powers ,in promulgat- ing the rule. We reverse the judgment of the intermediate court and affirm that of the trial court. The court of civil appeals held that the rule was not arbitrary or capricious and that there was substantial evidence of the relationship between the rule and the gen- eral welfare of the citizens of Texas. We too find that the rule is grounded upon sub- stantial evidence. The necessity for such a rule was demonstrated by the general support it received from the members of the optometry profession and professional so- PAGENO="0346" 342 OPTOMETRY Cite ag 412 S.W.2d 307 cieties and the record which abounds with evidence of the specific evils the rule was designed to correct. Some portions of the record will be mentioned and commented on in our analysis of the specific provisions of the rule. [1] The central question presented by the points before us is whether the Board exceeded its delegated powers in promulgat- ing the Professional Responsibility Rule. In determining this issue, we must examine the general purposes of the Optometry Act as well as certain specific provisions of the act. The Legislature's primary purpose in passing the act was to assure and protect the personal and professional relationship between an optometrist and his patient. To make certain that this purpose was car- ried out, the act requires an optometrist to be licensed before he may practice with- in the state. The optometrist must evidence his identity and professional qualifications by registering and recording his license in any county in which he practices. Articles 4561-4562 1; article 735 Vernon's~ Ann. Penal Code. He must also display his li- cense in his office, and when he practices away from his office, he must identify him- self by affixing to each bill for glasses his signature, address and the number of his license. Article 736, Vernon's Penal Code. Personal identification by those practicing any of the healing arts is of such signifi- cance that the Legislature requires a li- censee to identify the particular system which his license permits him to practice. Article 4556. It is in this statutory context of fixing professional identification and personal responsibility that we now examine the powers delegated to the State Board of Examiners in Optometry and the provisions of the particular statutes and the rule which the Board promulgated. Article 4556 is the source of the Board's rule-making author- ity. It provides: "~ * ~ The Board shall have the pow- er to make such rules and regulations not inconsistent with this law as may be necessary for the performance of its du- ties, the regulation of the practice of op- tometry and the enforcement of this Act. *.* *,, Article 4563 provides that the Board of Examiners may refuse to issue a license to an applicant and may cancel, revoke or sus- pend any license it has granted for any of the following reasons: "(a) That said applicant or licensee is guilty of gross immorality; "(b) That said applicant or licensee is guilty of any fraud, deceit or misrepre- sentation in the practice of optometry or in his seeking admission to such practice; "(c) That saidapplicant or licensee is unfit or incompetent by reason of negli- gence; "(d) That said applicant or licensee has been convicted of a felony or a mis- demeanor which involves moral turpi- tude; "(e) That said applicant or licensee is an habitual drunkard or is addicted to the use of morphine, cocaine or other drugs having similar effect or has become in- sane or has been adjudged by a court of competent jurisdiction to be of unsound mind; "(f) That said licensee has directly or indirectly employed, hired, procured, or induced a person, not licensed to prac- tice optometry in this State, to so prac- tice; "(g) That said licensee directly or in- directly aids or abets in the practice of optometry any person not duly licensed to practice under this Act; "(h) That said licensee directly or in- directly employs solicitors, canvassers or agents for the purpose of obtaining pa- tronage; "(i) That said licensee lends, leases, rents or in any other manner places his I. UnlesB Indicated otherwise, all articles cIted in this opinion are contained in Vernon'i~ Civil Statutes. PAGENO="0347" OPTOMETRY 343 license at the disposal or in the service of any person not licensed to practice op- tometry in this State; "(j) That said applicant or licensee has wilfully or repeatedly violated any of the provisions of this Act." The questioned Professional Responsi- bility Rule, except for. its severability clause, is copied in the footnote to Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409, 411-412 (Tex. 1965). The footnote to the opinion of the court of civil appeals, 401 S.W.2d 639, 640-641, is a good summary of section 1 of the rule, which we adopt. Section 1 provides that no optometrist shall: "(a) Divide, share or split fees with any lay person, firm or corporation. However, it shall not be construed a vio- lation of the Rule if an optometrist (1) pays an employee in the regular course of employment, or (2) leases space on a percentage or gross receipts basis; and (3) he may sell or assign accounts re- ceivable. "(b) Divide, share or split fees with another optometrist or physician except (1) on a division of services and (2) then only with the knowledge of the pa- tient, but (3) the Rule will not be inter- preted to prevent partnerships. "(c) Practice under or use an assumed name in connection with his practice. However (1) partners may practice un- der their full or last names, and (2) op- tometrists employed by other optometrists may practice under their own names in an office liste&in the names of their em-~ ployers. "(d) Use or allow his name or profes- sional identity to be used on the door, window, wall or sign of any office or lo- cation where optometry is practiced un- less said optometrist is actually present and practicing therein during office hours. "(e) Practice in any office or location where any name or professional iden- tification on any sign shall indicate that such office or location is owned, ~perated or supervised by any person not actually present and practicing therein during of- fice hours. "(f) Requirements (d) and (e) above shall be deemed satisfied if the optom- etrist is (1) physically present more than half the total hours the office is open ~or at least nine months of the year; or (2) physically present in such office at least one-half the time such person con- ducts, directs or supervises any practice of optometry; or (3) regularly makes personal examinations of eyes at such location or regularly directs or supervises such examinations." Section 2 of the rule provides that the wilful or repeated failure of an optometrist to comply with any provision of section 1 shall be considered prima facie evidence that such optometrist is guilty of a viola- tion of law, and shall be grounds for filing charges to cancel, revoke, or suspend his li- cense or to enjoin him from continuing such violation. Section 3 of the rule pro- vides that if any part of the rule be held invalid, the intent of the Board was to promulgate the remainder of the rule. The court of civil appeals in striking down the rule in its entirety, held that ar- ticle 4563 and other statutes stated spe- cific grounds for refusing or cancelling a license, that the statement of specific grounds was an exclusion of all others, and that the Legislature intended that the Board should not add new or inconsistent grounds. The authorities in support of the legal principles applied by the court of civil appeals are listed in the court's opinion. Our opinion is, however, that each provi- sion of the rule must be separately exam- ined to determine whether it is related to and consistent with the grounds for can- cellation or refusal that the Legislature listed. In other words, the real question presented is whether the rule states new or inconsistent grounds as held by the inter- mediate court. PAGENO="0348" 344 OPTOMETRY Cite as 412 8.W.2d 307 In Kee v. Baber, 157 Tex. 387, 303 S.W. 2d 376 (1957), this court sustained the validity of three rules that the Board of Optometry promulgated. These rules reg- ulated "bait" advertising, basic competence, and corporate practice of optometry. The court held that article 4556 was a broad delegation of regulatory powers to the Board since it authorized the Board to adopt such rules as are necessary for "the regulation of the practice of optometry." The court also held that each of the rules was consistent with, related to, and an im- plementation of one or more of the pro- hibited categories set out in article 4563. The Professional Responsibility Rule which is under attack prohibits five forms of practice by those licensed as optometrists, and as in Kee v. Baber, we shall examine each of the prohibited practices with ref- erence to article 4563 and other optometry regulations. [2] Section 1(a) of the rule prohibits fee.splitting by a licensed optometrist with an unlicensed person. Since the Optometry Act forbids an t:inlicensed person to directly charge fees for optometric services, such a person cannot undermine the act by indi- rectly charging and collecting fees through the device of fee-splitting. The prohibition of fee-splitting with laymen is generally related to the personal and professional re- lationship between optometrist and patient which is requisite to the practice of op- tometry and is specifically related to ar- ticle 4563(b) which prohibits a "deceit or misrepresentation in the practice of op- tometry * * *." It is related to article 4563(h) which authorizes revocation of a license when the "licensee directly or indi- rectly employs solicitors, canvassers, or agents for the purpose of obtaining patron- age," and article 773, Vernon's Penal Code, which provides that no optometrist may "employ or agree to employ, pay or promise to pay, or reward or promise to reward any person, firm, * * * for securing, solicit- ing or drumming patients or patronage." It is related also to article 4563(i) since a licensee who shares his professional fees with an unlicensed person "places his li- cense at the disposal or in the service of a[ny] person not licensed to practice op- tometry in this State." [3] Section 1(b) of the rule prohibits a division of fees by a treating optometrist with another optometrist. This section is subject to some exceptions but even then the fee-splitting is permissible only with the knowledge of the patient. This section is relevant to the same provisions of the Optometry Act as section 1(a). Section 1(b) protects the same personal and pro- fessional relationship between the optom- etrist and his patient and that purpose runs through the whole act. The section is rel- evant to article 4563(b) because the treat- ing optometrist holds himself out to his patient as the one who is performing the services and is to be paid upon the basis of those services. A patient who ignorantly pays optometric fees based upon elements other than service alone and which fees are paid to absentee optometrists is misled. [4, 5] Section 1(c) of the rule prohibits the practice of optometry under assumed or trade names. The reason for this section is that the trade or assumed name practice, like fee-splitting, disrupts the optometrist- patient relationship by concealing the iden- tity and burying the responsibility of the licensed optometrist. The need for section 1(c) is clearly supported by substantial evi- dence some of which we shall now sum- marize since it demonstrates the relevance of this section to the provisions of article 4563. Dr. Carp operates seventy-one of- fices in Texas. He advertises them under the following trade names: Luck Optical, Luck One Price Optical, Mast Optical, Mesa Optical, Mack Optical, Plains Op- tical, Amarillo Optical, Lubbock Optical, Panhandle Optical, and Mission Optical. From time to time he adds, drops, or changes the trade name at a particular of- fice although the licensed optometrists em- ployed in that office remain the same. He has purchased the practices of licensed op- tometrists and practices under their name PAGENO="0349" OPTOMETRY 345 although they are no longer associated with the respective offices in any manner. Illus- trative of Dr. Carp's trade or assumed name practice is the situation that exists in Wi- chita Falls. Within a two-block area in that city, Dr. Carp maintains offices op- erated under the names of Mast Optical, Luck Optical, and Lee Optical. The same supervisor oversees these three offices. Each office dispenses the same optical goods and services and uses the same kind of equipment. Optometrists are shifted from one location to the other. Dr. Carp's advertising represents to the public that these three offices arc in competition with each other thereby creating the false im- pression that they are each independently owned and operated. Similar situations exist in Dallas and El Paso. On the other hand, Texas State Optical, owned by the Doctors Rogers, operates eighty-two of- fices in Texas and advertises only under the one trade name. Although no trade name can be licensed to practice optometry, Texas State Optical advertises by the use of such statements as "a scientific TSO eye examination." The practice of optometry under a trade name is a holding out to the public that the trade name is licensed. The result is that the identity of the licensed practicing op- tometrists is hidden behind the unlicensed trade name. Prescriptions belong to those operating the trade name business rather than the prescribing optometrist. The prac- tice is confusing and misleading to the public. In Kee v. Baher, supra, this court upheld a Board rule which required an op- tometrist to separate his practice from the business operations of mercantile establish- ments, and did so on the grounds that it was a safeguard for the, optometrist-patient relationship and would avoid confusion on the part of the public. The court there held that the rule which prohibited cor- porate practice of optometry was reason- ably referable to article 4563(i), which pro- hibits placing an optometrist's license "in the service or at the disposal of unlicensed persons." Practice under a trade name is similar to practice under a corporate name which was denounced in Kec. Section 1(c) is also reasonably referable to article 4563 (b) which prohibits "deceit or misrepre- sentátion in the practice of optometry." See also article 738a, Vernon's Penal Code. 6] The practice of a profession under a trade name has often been regulated and prohibited by rules. Fisher v. Schumacher, 72 So.2d 804 (Fla.1954); Pearle Optical of Monroeville Inc. v. Georgia State Board of Examiners in Optometry, 219 Ga. 364, 133 So.2d 374 (1963); State Board of Den- tal Examiners v. BohI, 162 Kan. 156, 174 P.2d 998 (1946); Silverman v. Board of Registration in Optometry, 344 Mass. 129, 181 N.E.2d 540 (1962); Toole v. Michigan State Board of Dentistry, 306 Mich. 527, 11 N.W.2d 229 (1943); State Board of Op- tometry v. Orkin, 249 Miss. 430, 162 So2d 883 (1964); Strauss v. Univ. of New York, 2 N.Y,2d 464, 161 N.Y.S.2d 97, 141 N.E.2d 595 (1957); Strauss v. Univ. of New York, 282 App.Div. 593, 125 N.Y.S.2d 821 (1953); Straus Inc. v. Univ. of State of New York, 186 Misc. 242, 59 N.Y.S.2d 429 (Sup.Ct. 1945); 41 Am.Jur. Physicians and Sur- geons § 52 (1942); 70 C.J.S. Physicians and Surgeons §~ 31, 33 (1951). Sections 1(d), 1(e), and 1(f) of the rule require and assure the presence of an op- tometrist at the offices with which his name is identified and at which he holds himself out as a practitioner. Substantial evidence was presented to prove that such rules were needed to correct the evil of misleading representations to the public. Named op- tometrists have been identified with scores of widely separated offices in Texas, not- withstanding the fact that they have nei- ther practiced at nor been inside many of the places with which their names are asso- ciated. Dr. Carp has advertised and prac- ticed under the names of Douglas Optical, Shannon Optical, Pearl Optical, Lee Op- tical, Lee Optical Company and Dr. L. H. Luck. Those are the names of licensed op- tometrists who sold Dr. Carp their locations 82-754 O-67---23 PAGENO="0350" 346 OPTOMETRY Cite as 412 8.W.2d 307 and the use of their names but continued their practice independently of Dr. Carp. Texas State Optical's advertising leaves the impression that one of the Doctors Rgers is present at a particular office. .\ctually they have neither been inside nor seen some of their eighty-two offices dis- tributed generally over Texas. They list their names in phone books in cities where the) do not purport to practice optometry and on plaques showing the names of the optometrists who serve particular offices though they do not in fact practice at such offices. Since such practices are deceptive and misleading, sections 1(d), 1(e), and 1(f) are relevant to article 4563(b). Toole v. Michigan State Board of Dentistry, supra, and Campbell v. State, 12 Wash.2d 459, 122 P.2d 458 (Wash. 1942). [7] We conclude that the court of civil appeals erred in its holding that the Pro- fessional Responsibility Rule added new and inconsistent provisions to the Optom- etry Act. To the contrary, our opinion is that the rule's provisions are in harmony with the general objectives of the act and referable to and consistent with one or more of its specific proscriptions. We be- lieve that the Legislature, by investing the Board with broad rule-making powers [for] the enforcement of this Act" and "[for] the regulation of the practice of optometry," contemplated that the Board would use these powers to correct the evils generally classified in article 4563, or some other provision of the Optometry Act. Ii these rule-making powers did not au- thorize the Board to regulate evils not en- compassed in the specific wording of the act, they would be nothing more than mean- ingless excess. [8] Respondents urge two additional reasons in support of the judgment of the court of civil appeals-the case of South- western Bell Tel. Co. v. Texas State Optical, 253 S.W.2d 877, (Tex.Civ.App. 1952, no writ) and the legislative history of the Optometry Act. In the Southwestern BeU 412 S.W.2d-20½ Tel. Co. case the Doctors Rogers brought an injunction suit and compelled the telephone company to list Texas State Optical, the trade name, in the yellow pages of the Port Arthur telephone directory. At that time the Board had not yet undertaken to mple- ment the act. The case did not come to this court, and the opinion contains a number of holdings that are inconsistent with our views expressed above. The court held that "[t]he fact that no license to practice optometry has been issued to `Texas State Optical' is not material." The decision reflects an absence of factual back- ground about the evils of the trade name practice of optometry as evidenced by its holding that such practice is not against the public interest so long as the public by mak- ing a search can discover the persons using the name. We disapprove these holdings. \Vhether the telephone company should list an optometrist's trade name is not the same issue as that of the Board's power to make rules prohibiting practice under a trade name. Respondents urge that the Legislature did not enact proposed legislation which would have prohibited trade name practice of optometry and fee-splitting. The argu- ment is that the original Optometry Act, as introduced, had a provision which pro- hil)ited the practice of optometry under any name other than a licensee's own proper name and also had a provision which would have made it a penal offense to falsely im- personate any person licensed as an optome- trist. Acts 46th Leg.R.S.1939, ch. 4, pp. 360-368. Before passing the bill, the Legis- lature deleted the sections which prohibited trade name practice, Vol. II House Journal,. 46th Leg.1939, pp. 2529-2534, and fee- splitting, Senate Journal, 46th Leg.1939, pp. 1958-1968. Respondents urge that the Legislature by deleting the prohibitions against the practices from the bill, implied an intent that such practices should be per- mitted. Respondents' reasoning is that "[n]o court should read into a statute by implication that which both Houses of the Legislature have expressly rejected PAGENO="0351" OPTOMETRY 347 ° ° °." Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482 (1935). [9] The Legislature did not adopt spe- cific prohibitions of trade name practice and fee-splitting; however, any implica- tions which might be derived from that action are overcome by the Legisla~ture's express grant of broad rule-making powers to the Board. Kec v. Baber, supra. The Legislature expressly empowered the Board to make rules to regulate the practice of optometry and enforce the act. Rather than an implied limitation of Board powers, the act extended the powers of the Board. Instead of an implied grant of permission to practice under a trade name, the act's rule-making provision empowered the Board to make appropriate rules grounded upon substantial evidence of the evils against which the public should l)e pro- tected. Gibbs v. United States Guarantee Co., 218 S.W.2d 522 (Tex.Civ.App.1949, writ ref.). In Kee v. Baber, supra, this court so treated the grant of rule-making powers and we sustained the rule which pro- hibited corporate practice of optometry on the reasoning that it implemented the Leg- islature's prohibition against placing an optometrist's license "in the service or at the disposal of unlicensed persons." On similar reasoning, the Board had the power to prohibit the same result tinder a different scheme. The trade name entity is no more a licensee than a corporate entity. The Board passed its rule after substantial evi- dence showed that a widespread practice existed in Texas which undermined sections (b), (h), and (i) of article 4563 and the general purpose of the act to identify and establish personal responsibility of the licensee. It is our opinion that the Legis- lature in failing to enact the specific pro- visions, intended instead to provid~ a better method for the Board to regulate the pro- fession, and that it did this by an express authorization for the Board to tailor and make its rules for the particular needs of the profession and the public so long as they are relevant to the statutory proscriptions. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court. SMITH, J., dissenting. DISSENTING OPINION SMITH, Justice. I respectfully dissent. The Legislature provided in Article 4563 ten grounds for refusing or canceling the license of an op- tometrist. The rule now under attack was adopted by the Texas State Board of Examiners in Optometry. In my opinion, each of the rules' outright proscriptions has been added as a new ground to those enumerated by the Legislature for the revo- cation of licenses. Since the Legislature through the enactment of Article 4563 has definitely listed the reasons authorizing the Board, in its discretion, to refuse to issue a license to any applicant in the first place, and to cancel, revoke or suspend the opera- tion of any license by it granted, any rule adopted by the Board must by its own terms be referable to or related to a specific pro- vision of Article 4563. An examination of the specific provisions of Article 4563 and the provisions of the rules tinder attack leads me to conclude that each provision is an outright and independent proscription. The forbidden acts as stated in Section 1 of the rule are not by their own terms refer- able to or related to any specific provisions of Article 4563. On this point I can add very little to the holding of the Court of Civil Appeals, 401 S.W.2d 639. However, I do wish to emphasize that when the Legis- lature said to the Board that it may cancel, revoke or suspend a license for ten spe- cific reasons, it negatived any other grounds that might have been permitted under gen~ eral rule-making powers. See State v. Mauritz-Wills Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); 41 Am.Juris. 172, Phy- sicians & Surgeons, 44; Graeb v. State Board of Medical Examiners, 55 Cob. 523, 139 P. 1099, 1101, 47 L.R.A.,N.S., 1063 (Sup.Ct.Colo.1913). This latter case in- PAGENO="0352" 348 OPTOMETRY Cite its 412 S.W.2d 307 volved a Colorado statute which assigned 0inC specific "acts and conduct as may Justify the revocation of a license". The Court held: "[q]uite clearly the causes designated in the statute are exclusive, and the maxim, `expressio unius est exclusio alterius,' applies. * * *" The Board contends and this Court seems to approve the contention that the rule under attack does not add new offenses to those listed in Article 4563. Both the Board and the Court rely heavily upon our hold- in Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (Sup.Ct.1957). In consider-. lag and approving the Kec case, I was of the opinion and still maintain that the rules considered in Kce were specifically tied to and closely related to specific sections of Article 4563. The rules there involved were designed to implement rather than to add a new and independent rule. Our de- cision in Kec stressed the idea and, in fact, the Court found that the board rule-making ~~s~'ers (emphasized by the Court in the present case) were intended "to vest the Optometry Board with authority to fill in i/ic details relating to 1/ic proscribcd ac- tions." [emphasis added]. My analysis of Kcc leads to the conclusion that this Court was not holding in Kec that the Board c~t~T~ do the proscribing itself. In our case, the Board makes no contention that the rule tinder attack in any manner is enacted to fill in the details or in implementation of a prospective enactment. The Board is seek- ing, at the hands of this Court, power to make the proscriptions in the first instance and for such rules to have the force of law just as though the Legislature had included them in the statute. I respectfully maintain that an administrative agency may not en- large the causes for which a license may be rcvokcd or suspended. See Cherry v. Board of Regents of the University of State of New York, ~9 N.Y. 148, 44 N.E. 2d 405 (1942). In Cherry, the Court held that since the New York Legislature has enumerated the reasons for suspension or revocation of licenses, the Board cannot, by adoption of rules, add to the statutorily enumerated grounds. The Court said in Cherry: "[WJe have said that the Board of Re- gents' `specific supervisory powers over the practice of dentistry * * * en- able it, within reasonable limits, to pre- scribe canons by which conduct deemed by it, in the exercise of fair judgment, to be unprofessional and objectionable may, in the interest of rescuing that profession from vulgar commercialism, be banned.' Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N.Y. 358, 363, 182 N.E. 16, 17. The field in which that power maybe exercised is nonetheless subject to re- striction by the Legislature, and even within the field in which the Legislature has delegated to the Board of Regents power to prescribe canons banning con- duct which it deems unprofessional and objectionable, the Board of Regents can- not by the exercise of that power enlarge the causes for which the license of a dentist may be revoked or suspended, as defined in subdivision 2 of section 1311. "* * * "[T]he bill which had been introduced in the Legislature defining the grounds for the revocation of a dentist's license included as an additional ground `that the dentist has violated the rules of the regents governing advertising or any other rules.' That ground was stricken out before the bill was passed. "* * * "[T]he Legislature has, itself, specified the grounds upon which a license to prac- tice dentistry may be suspended or re- voked. The Legislature has not dele- gated to the Board of Regents power to create offenses which shall furnish addi- tional grounds." Here again, I wish to emphasize that the Court in the present case has misconstrued its holding in Kee v. Baber, supra. We simply held in that case that the Board may enact such rules and regulations as would be consistent with the power given it under the provisions of Article 4556. PAGENO="0353" OPTOMETRY 349 It is my position that the broad regulatory powers given to the Board in Article 4556 were to be exercised by the Board in a manner consistent with Article 4563. The Legislature has not only enumerated spe- cific grounds for license revocations, it has also set forth (ktailed and specific offenses which would constitute violations of the To lu rtln' r deun not rate that the Board is seeking rule-making power in the field of license revocation regardless of St at utory limitations, take up its argument that the Board has the same license revocation pow- ers as those given to the Supreme Court and the State I tar. I n a~ Ivancing this a rguiiient, the I !oar(l fails to (listingu ish between the fact that the Otitomet ry Act enumerates the reasons for revocat (ill of licenses, whereas the State lktr Act does imt do so. Article 32ftt-l , Sec. 4, subdivision (a) Provides :: `From time to titile as to the Court may seem proper, the Supreme Court of lexas shall prepare ;oiil propose rules antI reg- ulations for tliscipliiiing, suspending, ~nd disbarring attorneys at law ; for tile op- era! ion, maintenance and coniluct of the I. "s'rATEM ENT Oi~' ICES I `( )Nl )ENTS' `lti)SS-l'()l N'l'S "l'l ICST (~lU)SS-l'( )I N'l' `The rule is a rid t ra ry a nil `aprieio()s and laa rs no reasonable rita t iiiiistiiji to lie Ii(~2ilt Ii ttiil wililaing of I lie (`it izens of `J'exas, and tIn' `i'rial ( ~ourt iint tin' ( oiirt of Civil A piii'iils erred in not so lioliling. "SECOND CROSS-POINT ``Ttii~ rule is iii valid beeiiiise t tire W8S 1)0 sitlistiifltial eVi(len('e to support a finding lint the rule bears titty reasonable ro- Intionshil) to the i.ul.lie health ((11(1 wel- fare, and the Trial Court and Court of Civil Appeals erred in not so holding. State Bar and prescribing a code of ethics governing the professional Cofl(IUCt of at- torneys at law. * * ~" The 46th Legislature enacted 1)0th the State Bar Act and the Optometry Act. The State Bar Act authorizes the Supreme Court to enumerate the grounds and pro- cedures for suspension or canc~iiation of Respondents in their coutlitional aliplica- tion 1 ~r writ of error and iii a supl)lemental brief filed herein l)resent additional points for declaring the rule under attack invalid. I think these points merit consideration. In my opittinh) the rule is arbitrary and capri- CiouS ahh(l liea 15 1)0 relatioiish ii) to the health and ~vell being of the citizens of Texas. The rule is invalid because there was no substatitial cvi(lencc to suloport a finding "TilIltI) CICOSS-l'OIN'l' is iiovntiil louse tlii sahiiC woiiiii ito ui r to.' ololiga huh of eoiit rai'tx in viola! jot) of ho) Ii tie stilt. otiul federal o'oitst it it iOi)ii thu W0Ui(l t ok- ltesiuutiolentio' property wit limit ulime nrou''ss of law, taut the Trial Con rt mu the ( ~ou rt of Civil Appeals erred in not so holding. "F'OU ICT1 I CICOSS-P( )INT `"Ii'he ruh' is invalid because its arloi- trary iiii.l capricious nature would take Respondents' I)rol(ertY without due proc- ess of law, and the Trial Court 1)8(1 the Court of Civil Appeals erred in not so holding." may be necessary for * ~ * tile regula- tioti of tile practice of optometry and tile (`11 forcetnent of this Act." Act. The I.cgislature has pre-empteol tile licenses and tile means of enforcement. field of jiunish;dohe offenses as well as This is not true with the Optometry Act. grounds for license revocation. This ac- Whatever its reasons for making this dis- tint) prevails over its general grant of power tiiiction might I1aVC been is beside the point; to tile Board "to make such rules and regu- the fact remains that the Legislature in iatuons not inconsistent with this law as adopting tile Optometry Act deliberately enumerated tile grounds for cancellation and revocation and set tip i)y penal statute the means of enforcement. Therefore, the Board has 110 authority to add new grounds and new procedures for license revocatioims 01101cr the general imo~%'~~s set out ill Article 4556. Sec Kentucky State Itoard of Dental Exanmihmers v. Crowell, 220 Ky. 1, 294 SW. 818, 81') (Ct. of App.Ky.1927) ; 2 Am.Jur. 2d 130, Administrative I .aw § 301 ; Cherry v. Board oof Regents of tile University of time State of New York, sthllra. PAGENO="0354" 350 OPTOMETRY Cite as 412 S.W.2d 307 ::~a~ the rule bears any reasonable relation- ~p to the public health and welfare. Re- ~-`~dents pleaded in the trial court that the ~ie is arbitrary and capricious in that it ~ccs not have or bear any substantial rela- :~onship to the protection of the public in ::s dealings with persons licensed to prac- :~e optometry under the laws of the State ~f Texas." The Court of Civil Appeals ç~otcs some of the evidence on this ques- ~:ofl. The record contains evidence con- ccrning the care exercised in the selection ,f employee-optometrists by one of the Re- ~;tindcnts' organizations. This evidence re- ::~tes to the educational background of the ,;tomctrists selected, the fact that they were licensed by the Board and their practi- cal experience, etc. With reference to the Professional Responsibility" phase of the rule under attack, one of the Respondents, who is also a member of the Board, testi- lied: "Q. Now, Dr. Rogers, when a man is employed, an optometrist in your organi- zation, do you have any standing instruc- tions as to how he shall conduct the prac- tice and to whom his first and primary allegiance and responsibility is? "A. Yes, we do. "Q. And what is that? "A. Well, number one, the man, as I mentioned is solely responsible for his ac- tion with that patient, for his-whatever he does or doesn't flo with regard to the patient and his sole allegiance, his sole responsibility, is to do what in his opin- - ion is necessary or best or in the best in- terest of that patient or that patient's vis- ual care. This is the basis upon which all of our offices operate and this is the way a man conducts himself, just as though he were in his own office." The Board wholly failed to establish its con- tention that a person employed by another optometrist in a trade-name organization lacks professional responsibility to this pa- tient. In fact this contention was refuted by the following testimony: "Q. Now in all of your experience, I)r. Rogers, as an optometrist, and as a Board member, now something in excess of six years, I will ask you the point blank ques- tion, are optometrists practicing on a sal- ary, or a compensatory basis, on a solely employed basis, and in a trade name or- ganization such as yours, are they just as competent, just as sincere, just as dili- gent as those who practice solely or in- dividually? "A. Yes, I think so, I sincerely do." The Respondent, Dr. Carp, also testified: "Q. Doctor, let me ask you this ques- tion: As an optometrist, who is the pri- mary responsibility of an individual doc- tor associated with you in one of your of- fices where is his primary responsibility, to you or to the patient whose eyes he examines? "A. By all means to the patient." There is a complete absence of testimony given b~ patients or others which even re- motely suggested that the care given to pa- tients in Respondents' establishments locat- ed throughout the State was any less satis- factory to the patient, than the care given in the offices of individual practitioners. There is no evidence that the practice of optometry under trade or assumed names in multiple offices injuriously affects the pub- lic health. It is argued that other jurisdictions have adopted rules similar to the one under con- sideration. Grant this is true, still the Board has made no showing that conditions were the same in each instance. There is no showing that the Legislatures in the other jurisdictions have refused to adopt the essential proscriptions contained in the rule under attack. On the other hand, it is clear that the Texas Legislature has con- sistently declined to include in its enact- ments the unconstitutional pro~criptions PAGENO="0355" OPTOMETRY 351 contained in the Board rule now before us. A court cannot substitute its judgment for that of the legislative branch of the government. There is no provision of the Board's rule here involved that bears any reasonable relationship to the public wel- fare. It is clear that the rule is advanced for the economic protection of a particular class rather than for the protection of the public generally. There is no evidence of any nccd for the regulation insofar as the public is concerned. Simply stated, the Board has failed to discharge its burden that there was substantial evidence in exist- ence at the time of the adoption of the rule to justify its adoption. See Kost v. Texas Real Estate Commission, 359 S.W.2d 306, (Tcx.Civ.App.1962, writ ref'd). Not only has the Board failed in this regard, but more important, it has, in adopting this rule, exceeded the authority conferred upon it by law. In striking down a regulation promulgated by a Board, this Court in Teachers Retirement System of Texas v. Duckworth, 153 Tex. 141, 264 S.W.2d 98 (1954) adopted the opinion of the Court of Civil Appeals, Tex.Civ.App., 260 S.W.2d 632. The adopted language which is ap- plicable here reads: "Even if it can be said that the regu- lation adopted by the Board making the last payment due on the last (lay of the month next preceding the month in which the beneficiary dies has the effect of canceling the exceptions to the common- law rule against apportionment which would otherwise be applicable to this case, we arc inclined to agree with ap- pellee that the judgment must still be sustained because, as contended by her, the Board was without power to adopt and enforce the regulation. It has been held in this State that the Board of In- surance Commissioners can exercise only the authority conferred upon it by law `~ * * "in clear and unmistakable terms, and will not be deemed to be given by implication, nor can it be extended by inference, but must be strictly construed." * * *, Commercial Standard Ins. Co. v. Board of Insurance Com'rs of Texas, Tex.Civ.App., 34 S.W.2d 343, ~l5, writ refused. And in like manner has the power of the Railroad Commission of Texas been construed." There is another reason which is per- haps greater than any reason thus far ad- v~nced to support the argument that the rule should be stricken down by the courts. The rule strikes at the fundamental right of an optometrist to lawfully engage in his profession. I agree with the Respondents that the rule impairs the obligation of con- tracts. Not only that, it is arbitrary and capricious in nature and has been adopted without regard to the law as enacted by the Legislature and in violation of both the state and federal constitutions. The rule amounts to a taking of Respondents' prop. erty without due process of law. The rule has not been enacted for the benefit of the public, but to the contrary there is every indication that the rule has been adopted to protect the economic welfare of a few op- tometrists, despite the fact that the rule will place in jeopardy property rights which the Legislature has thus far chosen to safe- guard. Some of the consequences of this unwarranted rule will be to prohibit the use of an assumed name in the practice of optometry and to impose strict limitations on the operation of multiple offices an(l the splitting of fees with employee-optometrists. The maintenance of 82 offices at many lo- cations in Texas, at a cost of between $10,000.00 and $12,000.00 per office and at a cost of more than $1,000,000.00 in publi- cizing the assumed name "Texas State Op- tical", so far~ as the record shows, means nothing to the relators, but it should have some significance to this Court in deciding the question of the validity of the rule. In this connection, I repeat that there is no evidence in the record which would tend to show any public need or necessity for the rule. To the contrary, the rule arbitrarily interferes with private business in that i~ imposes unnecessary restrictions upon the PAGENO="0356" 352 OPTOMETRY Cite as 412 S.W.2d 307 awful occupation of the respondents, Law- ~a v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 LEd. 385 (1894). The Courts should not hesitate to inter- vene to protect the property rights of a cit- izen when it is discovered from a record such as we have here that a Board has cx- c~cdcd its powers under the guise of the exercise of the police power of the State. This Court in the case of Houston & T. C. R. Co. v. Dallas, 98 Tcx. 396, 84 S.W. 648, 70 L.R.A. 850 (1905), in considering the cx- ercise of the police power, has this to say: The power is not an arbitrary one, lot has its limitations. It is commensurate with, but does not exceed, the duty to pro- ~ide for the re;d needs of the people in their health, safety, comfort, and con- venience as consistently as may be with private property rights. As those needs are extensive, various, and in(lefinitc, the power to deal with them is likewise broad, in(lcf.nite, and impracticable of precise (lcfinition or limitation. But as the citi- zen cannot be (lel)rived of his property without due process of law, and as a lriv~~ti0n by force of the police l)0\VC~ jul fills this requirement only when the po~~~r s exercised for the purposc of accompiishing, and in a manner appropri- ate to the accomplishment of, the poe- ~oses f)r. which it exists, it may often become necessary for courts, having proper regard to the constitutional safe- guard referred to in favor of the citizen, to inquire as to the existence of the facts upon which a given exercise of the pow- er rests, and into the manner of its exer- cise, and if there has been an invasion of property rights under the guise of this power, without justifying occasion, or in an unreasonable, arbitrary, and oppres- sive way, to give to the injured party that protection which the Constitution se- cures." This Court supported its position with a quotation from Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499 (1894) which reads: "* * * [t]o justify the state in thus interposing its authority in behalf of the public, it must appear-First, that the in- terests of the public generally, as distin- guished from those of a particular class, require such interference; and, second, that the means arc reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon in(liVidu- als. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private busi- ness, or impose unusual and unnecessary restrictions upon lawful occupations." In the case of Smith v. Decker, 158 Tex. 416, 312 S.W.2d 632 (1958), this Court held unconstitutional a statute which deprived citizens of the right to earn a living, a prop- erty right. In l~olding void the act there in- volved, we said: "Appellants having a vested property right in making a living, subject only to valid and subsisting regulatory statutes~ and being prevented from performing their business otherwise lawful but for the statute in question, we believe that we are~ permitted under the rule an- nounced in Kemp I lotel Operating Co. v_ City of Wichita FaIls, [141 Tex. 90, 170 S.W.2d 217], supra, to order the issuance of the injunction. There it was stated that courts of equity may he resorted to for the purpose of enjoining the enforce- ment of a criminal statute or ordinance when same is void and when its enforce- rncnt invades a vested property right of the complainant." The judgment of the Court of Civil Ap- peals should not only be affirmed, but this Court should go further and declare the rule unconstitutional. PAGENO="0357" OPTOMETRY 353 Mr. Sisic. We will also make a part of the record, without `objec- tion, a letter and statement of the Washington, D.C. Publishers Asso- ciatioii ; a statement of the National Newspaper Associatton; a resolu- tion of the Federation of Citizens Associations of the District of Columbia; and a letter dated March 9, 1967 from Mr. Ralph Barstow, of Covina, California. (The documents referred to follow:) WASHINGTON (D.C.) PUBLISHERS ASSOCIATION, Washington, D.C., ,Tune 2, 1967. Hon. B. F. SISK, Chairman, Subcommittee 5, District of Columbia Committee, House of Representatives, Washington, D.C. DEAR CONGRESSMAN SISK: We understand that Subcommittee No. 5 of the House District Committee is presently considering H.R. 595, H.R. 72 and H.R. 1283 which are similar bills to regulate the practice of optometry in the District of Columbia. The Washington Publishers Association, composed of The Evening Star, The Washington Daily News and The Washington Post, strongly opposes enactment of these bills which appear to go beyond the limits of appropriate regulation and unduly restrict the services traditionally ptovided by opticians, optical com- panies and others. In particular, we oppose the prohibitionS in these bills upon advertisements by optometrists and references to prices of optical products in advertisements by opticians and others. Restrictions of this nature serve no legitimate purpose other than the elimination of competition contrary to the public interest. The present bills are substantially similar to H.R. 12937 and related bills which were before Subcommittee No. 4 last year. At that time, this Association submitted a statement which fully set forth its reasons for opposing legislation of this nature. For your convenience, we `attach a copy of that Statement. We request that this letter and the attached statement be placed in the record concerning the above bills. We respectfully urge .that the Committee not act favorably with respect to these bills. Sincerely, HENRY C. GRONKIEWICZ, E~eeutive Director. STATEMENT OF WASHINGTON PUBLISHERS ASSOCIATION The Washington Publishers Association herewith respectfully submits its * views in connection with the consideration of HR. 12937 and related bills~ before the Subcommittee No. 4 of the House District Committee. It is requested that this statement be incorporated iii and made a part of the written record' with respect to the proposed legislation. The Washington Publishers Association is an organization composed of Wash- ington's three daily newspapers, The Evening St'ar, The Washington Daily News, and The Washington Post. The newspapers of this community are vitally interested in the maintenance of high standards in connection with the rendering of eye care services to the public. We firmly believe that the public should be adequately protected against anyone providing eye care services who is not qualified to do so. To the extent `that there are abuses in the practice of optometry. or in con- nection with the sale `of optical products in the District of Columbia, which are not adequately protected. against under existing law, we believe that the law should be strengthened and vigorously enforced. HR. 12937, however, appears to go beyond the limits of appropriate regula- tion of the practice of optometry in the public interest. It would, for example, unduly restrict the services traditionally provided by opticians, optical com- panies and others without regard to the nature and quality of the services performed or the qualifications and competence of the persons who perform such services. * We particularly oppose the provisions of H.R. 12937 prohibiting all advertise- ments by optometrists and any reference to prices of optical products. in adver- PAGENO="0358" 354 OPTOMETRY tisements by opticians and others. We agree with the conclusion reached by the Commissioners of the District of Columbia that "prohibitions of this nature do not serve the best interests of the general public." Letter from Honorable Walter N. Tobriner, President. Board of Commissioners, District of Columbia to Honorable John L. McMillan, Chairman, Committee on the District of Columbia, dated March 18. 1966, p. 9. Initially, we* note that all advertising in connection with the sale of optical products is subject to stringent requirements of existing law prohibiting adver- tising which is false or misleading. There is a statutory ban against "false, untrue or misleading" advertising in the District (Code Section 1 of the Act of May 29, 1916, 39 Stat. 165; ~ 42-21, District Code, 1961 edition), and Section 5 of the Federal Trade Commission Act declares unlawful "unfair methods of com- petition in commerce and unfair or deceptive acts or practices in commerce" (15 U.S.C. § 45). In addition, the FTC has promulgated comprehensive trade practice rules for the optical products industry which set forth in detail advertis- ing practices in connection with the sale of optical products which the Commis- sion deems to be violations of the Act. Section 7(a) (8) of the proposed bill authorizes revocation of a license to practice optometry if the licensee engages in: "advertising directly or indirectly, the performance of optometric service or any part thereof, including the furnishing of ophthalmic or optical material in any form, manner or way. . . ." We fail to see why an optometrist should not be free to make the availability of his services known to the public through advertising. As the District Com- missioners have pointed out, the United States Court of Appeals for the District of Columbia has held in Silver v. Lansbvrgh and Bro. et aT.. 72 App. D.C. 77, 111 F. 2d 518 (1940). that the relationship between the optometrist and his patient, unlike that between a physician and his patient or a lawyer and his client, is not such a professional relationship as to render legitimate commercial activities by the optometrist inappropriate. We see nothing in the record of the hearings with respect to the present bill that would alter this conclusion. Nor is there anything in the record of the present hearing to establish that there is a necessary casual relationship between advertising and lower standards or abuses in the practice of optometry. In the absence of convincing evidence in this regard, we believe that it is improper to assume that an optometrist who advertises is less qualified than one who does not, or that a qualified optometrist who advertises will perform to a lesser extent of his ability than one who does not. To the extent that there are abuses of the practice of optometry by optometrists who advertise, or who are employed by corporations which advertise, we submit that these abuses should be publicly examined to see if there are not other more direct and effective ways or regulating or preventing them. To prohibit all op- tometrists from legitimate advertising merely because a few who do so abuse or may abuse their profession, however, is clearly "burning the barn to roast the pig.' This is not to say that the practice of optometry should not be treated as a skilled profession in which the highest standards of ethical conduct should be required. It merely means that one group of optometrists should not by statute be able to improse their views as to the propriety of advertising upon all members of their profession without a clear and conclusive showing that advertising necessarily has a detrimental effect upon standards in the profession. Section 8(a) (5) of the proposed bill makes it unlawful for any person: "[Tb advertise or cause to be advertised any optometric or ophthalmic material of any character which includes or contains any price cost or any reference thereto, whether related to any eye examination or to the cost or price of lenses, glasses, mountings or ophthalmic items or devices." This provision eliminates price advertising in connection with the entire range of optical products sold in the District of Columbia. Strictly construed, it would prohibit price advertising of such "optometric material[s]" as nonprescription sunglasses and such "ophthalmic material[s]" as Murine. Even if the proposed bill is amended or clarified to eliminate such items from its coverage, we do not believe that the optician, optical company or optometrist should be prohibited from informing the public as to the prices of lenses. glasses or frames by advertising which is not false or misleading. These products are in most respects no different from other commodities which embody skilled crafts- manship. This is particularly true with respect to frames which, like shoes or PAGENO="0359" OPTOMETRY 355 dresses, are frequently purchased primarily on the basis of cosmetic considera- tions. While the manufacture and grinding of lenses and glasses requires considerable skill and attention and an inferior product may directly' affect the health of the eye, price advertising of these products should be prohibited only if it is clearly shown that such advertising necessarily results in lower quality standards. The price competition which such advertising engenders in `the sale of optical products allows the public to benefit from lower prices, which in many instances encourage or enable persons to obtain visual aids that they need but that they would otherwise be unable or unwilling to purchase. Moreover, experience in this country demonstrates `that healthy competition promotes innova.tion and frequen'tly results in better products being made available to the public. The record of the present hearings fails `to establish that healthy price competi- tion fostered by advertising is incompatible with the maintenance of ,accepta'ble quality standards in connection with the sale of optical products. If `the use of in- ferior materials or inferior workmanship is or becomes prevalent, we submit that proper protection of the public requires `the establishment of minimum quality standards and/or required checks of the finished lenses and glasses by a quali- fied optometrist or ophthalmologist rather than the stifling of competition through a blanket prohibition against price advertising. In conclusion, we submit that prohibitions against legitimate advertising are an extremely inappropriate method of regulation. They are a poor and ineffec- tive `substitute for more direct regulatory provisions which go to the core of what- ever abuses or improper practices may exist. Frequently the only effect of such prohibitions is the elimination of competition contrary to the public interest. For the above reasons, the undersigned members of the Washington Pu'blishers Association respectfully urge `that if the Committee `decides to act favorably with respect to H.R. 12937 that it first delete therefrom the restrictions upon adver- tising contained in Section 7(a) (8) and Section 8(a) (5). Respectfully yours, WASHINGTON PUBLISHEBS ASSOCIATION, By HENRY C. GRONKIEWICZ, Ewecutive Director. THE EVENING STAR NEWSPAPER Co., By JOHN H. KAUFFMANN, Vice President and Business Manager. THE WASHINGTON DAILY Nnsvs, By RAY F. MACK, Business Manager. THE WASHINGTON PosT Co. By JAMES J. DALY, Vice President and General Manager. April 2, 1966. STATEMENT OF THE NATIONAL NEWSPAPER ASSOCIATION ON HR. 1283 Mr. Chairman, the following statement is submitted in behalf of the 6,600 weekly and community daily newspapers m'aking up the membership of the N'ational Newspaper Association, and of their state newspaper associations affiliated with NNA. This association supports standards of professional training, examination `and licensing to insure that the practice of optometry in the District of Coluin~bia is conducted on the highest possible level. Insofar as H.R. 1283 strengthens existing statutes in this area, we have no objection to this legislation. In the area of advertising, however, the District of Columbia code already pro- hibits any form of fraudulent advertising and makes ample provision of enforce- men't of this prohibition. (Section 22-1411, Fraudulent Advertising; and Section 22-1413, Penalty, quoted below). H.R. 1283 makes no further distinction between fraudulent or misleading adver tising, and truthful advertising of optometric services. Instead it would prohi~i1 all advertising. This, our association submits, would: 1. Deprive the public of the convenience resul'ting from advertising-notic of optometrists' office location, hours of service, credit arrange'ments available, 2. Lose the "reminder" value of advertising, which by its very presence in advertising media, serves to encourage those needing eye care services to take advantage of optometric services available. PAGENO="0360" 356 OPTOMETRY 3. Eliminates competition-particularly price competition-which is the only effective deterrent to excessive charges. The Committee will recognize Point No. 3 as most vital, underscoring the mo- tivation of the bill's proponents, and indicating the significant `threat it constitutes to the consuming public. it is the position of this association that truthful advertising is neither criminal nor immoral. Therefore, Congress should make no law rendering truthful adver- tising a criminal act punishajile by the municipality, as would be the effect of Sec. 8 of the bill. Nor should Congress make truthful advertising grounds for license revocation, as provided in Sec. 7. This association further objects to language of Sec. 10 which reinforces other prohibitions against truthful advertising by providing that the section does not "authorize any optometric service or opthalmic material to `be advertised in any manner which includes or contains any price, cost, or reference `thereof." Finally, from experience with similar legislation presented to various state leg- islatures, we are compelled to call `attention to implications of Sec. 7 (a) (19), which would place upon the District Commissioners the burden of determining what constitutes "any other unprofessional conduct" of optometrists. Even if ad- vertising prohibitions of Sec. 7, 8 and 10 were removed, the Commissioners would be under `pressure to declare advertising "unprofessional" under subsection (a) (19). It should be the province and the obligation of the municipality to insure that optometry is practiced only `by persons properly trained and licensed. Whether or not these licensed practitioners choose to advertise their services-and their prices-should be left to `their individual determinations. It should not be a func- tion of government to enforce ar~dtrary standards Of so-called "ethical" restraint, as determined by a segment of the optometric profession. On the contrary, we feel it should be the function of government to insure that the practice of optometry be conducted in as free and as competitive an atmos- phere as possible, in the interest of affording the public these services `at a reason- able cost. This can best be accomplished ~y protecting the right of the individual practitioner to advertise if he so chooses. THEODORE A. SERRILL, Ewecutive Vice President. District of Columbia Code Sec. 22-1411-Fraudulent Advertising-"It shall be unlawful in the District of Columbia for any person, firm, association. corporation or advertising agency, either directly or indirectly, to display or exhibit to the public in `any manner whatever, whether by `handbill, placard, poster, picture, film or otherwise: or to insert or cause to be inserted in any newspaper, magazine, or `other publication printed in the District of Columbia: or to issue, exhibit, or in any way distribute or disseminate to the public; or to deliver, exhibit, mail, or send to any person, firm, association or corporation any false, untrue or misleading statement, represenfation, or advertisement with the intent to sell, barter, or exchange any goods, wares. or merchandise or anything of value or to deceive, mislead, or induce any person, firm, associ- ation or corporation to purchase, discount, or in any way invest in or accept as collateral security any bonds, bill, share of stock, note, warehouse receipt, or any security; or with the purpose to deceive, mislead, or induce any person, firm, association or corporation to purchase, make any loan upon or invest in any property of any kind; or use any of the aforesaid methods with the intent or purpose to deceive, mislead, or induce any other person, firm, or corpora- tion for a valuable considerable to employ `the services of any person, firm. association or corporation so advertising such services." (s 22-1413 provides for a fine of up to $50. or imprisonment up to 60 days. or both. for violation of the fraudulent advertising statutes.) FEDERATION OF CITIZENS AssocL~TIoics OF THE DISTRICT OF COLUMBIA- REsoLUTIoN SUBJECT: HR. 595, HR. 732, HR. 1283 Whereas H.R. 595, H.R. 732, and HR. 1283 are identical bills to revise existing law relating to the examination, licensure, registration, and regulation of optometrists and the practice of optometry in the District of Columbia, and Whereas these bills declare optometry to he a profession, and PAGENO="0361" OPTOMETRY 357 Whereas these `bills limit the practice of optometry in the District of Columbia to qualified persons who have been graduated from an approved school or college of optometry and have passed examination's prescribed by the D.C. Commission- ers, and Whereas `these bills, if enacted, will improve `optometric service to the District of Columbia citizens and protect them from incompetent and fraudulent oper- ators, now, therefore, be it Resolved that the Federation of Citizens Association in regular meeting assembled on June 8, 1967, does endorse H.R. 595, 732, and 1283. Approved unanimously by the Federation, June 8, 1967. Dr. EDWARD A. KANE, Chairman, Health Committee. Mrs. EDWARD B. MORRIS, ~ecretarV. COVINA, CALIF., March 9, 1967. Hon. JOHN L. MOMILLAN, House Office Building, Washington, D.C. DEAR MR. MOMILLAN: It was a bit of testimony offered by a "commercial" optometrist that needs revising, although your colleague Congressman Sisk may have checked it. In the State of California it is true that optometrists may not work for cor- porations or firms, but it is not true that they may not advertise. They may and they do. The significant thing is that they may not advertise prices. This weakens their appeal to the uninformed and so we do have a cleaner and better quality of optometry in California. It probably is true that patients in California are paying more for real opto- metric services than the residents of the District of Columbia pay for the sub- quality care of the advertising optometrists in the District, but the statement that the District services are "the same" is not a fact. There are, as I am sure you know, some splendid optometrists in the District. The President and his two daughters bear witness to that fact. At the same time there is a scandalous de- basement of visual service in the District because these subquality commercial men are allowed to advertise prices. Would you, allow a physician to advertise prices in the District? Cordially yours, RALPH BARSTOW. Mr. SIsK. Is there anyone in the room who at this time would like to make a statement to the committee or to,offer any testimony to the committee, or to insert a statement into the record? If not, this con- cludes the hearings on these various bills with regard to the regula- tion and practice of optometry in the District of Columbia. Dr. ROWE. Congressma.n Jacobs asked me to supply some informa- tion for the record. How long will the record be open so that I can get that information in? Mr. SIsK. I would say that the record would be kept open until a week from this coming Monday which would be the 28th. Could you get that in by the 28th? Dr. RowE. Yes, sir. Mr. SIsK. The record will be kept open for the information that you have agreed to supply. There being no further requests, this adjourns the hearing. (Whereupon, at 1 :00 p.m., the Subcommittee adjourned.) (Subsequei~t.1y, the following was received for the record:) PAGENO="0362" 358 OPTOMETRY CONTACT LENS SOCIETY OF AMERICA, 640 South Fourth Street, Louisville, Ky., August 25, 1967. The Hon. JOHN L. MCMILLAN. House of Representatives. Washington. D.C. SIR: I am writing to you on behalf of the Contact Lens Society of America. This national organization is comprised of contact lens technicians and opticians who are active in the fitting of contact lenses. We, as a group, are deeply con- cerned about H.R. 12216, on which your subcommittee recently held hearings and all similar bills. We are concerned because the proposed legislation. without justification; eliminates the optician/technician from the field of contact lens fitting in the District of Columbia. We can appreciate the need for updating the regulation of optometry in the District, but see no reason why this particular group should be allowed to assume the authority of eliminating another qualified group from this work. This bill, if enacted, would restrain the contact lens technician from pursuing his chosen field of endeavor for no just cause. The optician/technician has been active in the fitting of contact lenses for many years and holds patents on the manufacturing and designing of contact lenses. They have also been responsible for much of the advancement in fitting technology through the years and have contributed instrumentation which is utilized in contact lens offices of all types throughout the country.. They also are members of the teaching staffs in Medical schools and hospitals in various parts of the country and are recognized as authorities in the field. I have read the testimony given to your committee by Mr. J. A. Miller, Execu- tive Secretary of the Guild of Prescription Opticians of America, and the Con- tact Lens Society endorses Mr. Mil1er~s testiniony and concurs with him in all regards to contact lenses. He has presented fairly the case for us and I earnestly urge you to consider these arguments when you deliberate this particular legislation. We feel this bill must be amended to allow the optician/technician to fit con- tact lenses upon prescription and under the direction of a physician. I earnestly request my letter be included in the w-ritten record of these hearings. Thank you for your consideration. Sincerely yours, FRANK B. SANNING, President. FBS: j11 0