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OPTOMETRY
HEARINGS
BEFORE
SUBCOMMITTEE INO. 4
OF THE
COMMITTEE ON
THE DISTRICT OF COLUMBIA
HOUSE OF REPRESENTATIVES
NINETY-FIRST CONGRESS
FIRST SESSION
ON
H.R. 2388
TO AMEND THE ACT OF MAY 28, 1924, TO REVISE EXISTING
LAW RELATING TO THE EXAMINATION, LICENSURE, REG-
ISTRATION, AND REGULATION OF OPTOMETRISTS AND
THE PRACTICE OF OPTOMETRY IN THE DISTRICT OF
COLUMBIA
MAY 6 AND 7, 1969
Printed for the use of the
Committee on the District of Columbia
:~ DOCO
U.S. GOVERNMENT PRINTING OFFICE
j 29-179 WASHINGTON: 1969
7/?~? GOVERNMENT DEPOSITORY
PROPERTY OF RUTGERS, THE STATE UNIVERSITY
5 1969 COLLEGE OF SOUTH JERSEY LIBRARY
CAMDEN, N. J. 08102
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COMMITTEE ON THE DISTRICT OF COLUMBIA
JOHN L. McMILLAN, South Carolina, Chairman
THOMAS G. ABERNETHY, Mississippi
WILLIAM L. DAWSON, Illinois
JOHN DOWDY, Texas
CHARLES C. DIGGS, Ja., Michigan
G. ELLIOTT HAGAN, Georgia
DON FUQIJA, Florida
DONALD M. FRASER, Minnesota
BROCK ADAMS, Washington
ANDREW JACOBS, Ja., Indiana
PETER N. KYROS, Maine
WILLIAM L. HUNGATE, Missouri
EARLE CABELL, Texas
RAY BLANTON, Tennessee
ANCHER NELSEN, Minnesotn
WILLIAM L. SPRINGER, Illinois
ALVIN E. O'KONSKI, Wisconsin
WILLIAM H. HARSHA, Ohio
FRANK J. HORTON, New York
JOEL T. BROYHILL, Virginia
LARRY WINN, Ja., Kansas
GILBERT GUDE, Maryland
SAM STEIGER, Arizona
CATHERINE MAY, Washington
LAWRENCE HOGAN, Maryland
WILLIAM H. HARSHA, Ohio
JOEL T. BROYHILL, Virginia
GILBERT GUDE, Maryland
SAM STEIGER, Arizona
(II)
JAMEs T. CLARK, Clerk
CLAYTON S. GASQUE, Staff Director
HAYDEN S. GARBER, Coun8el
SUBCOMMITTEE No. 4
DON PUQUA, Florida, Chairman
JOHN DOWDY, Texas
ANDREW JACOBS, JR., Indiana
PETER N. KYROS, Maine
RAY BLANTON, Tennessee
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CONTENTS
H.R. 2388 (Sisk, Nelsen, and Fuqua), to amend the Act of May 28, 1924,
to revise existing law relating to the examination, licensure, registra-
tion, and regulation of optometrists and the practice of optometry in Page
the District of Columbia - 1
STATEMENTS
American Optometric Association:
McCrary, Dr. V. Eugene, Director, Department of National Affairs~. 14
Reusing, Vincent P 14
District of Columbia Government:
Hayman, Dr. Charles R., Associate Director for the Preventive
Services of the Department of Health 103
Moyer, Thomas F., Assistant Corporation Counsel, District of
Columbia 103
Guild of Prescription of Opticians of America:
Miller, Jerry A 77
Stoutenburgh, M. Joseph, Special Counsel for the National Asso-
ciation 77
McLeod, William N., Esq 94
Medical Society of the District of Columbia:
Alper, Dr. Melvin G., Past President, Section on Ophtha1mology~ - - 45
Magee, Warren, Counsel 45
Perraut, Dr. L. Edward, Past President, Section on Ophthalmology 45, 57
Metropolitan Washington Board of Trade: Osby L. Weir, President 36
National Newspaper Association: Paul Conrad, General Counsel 67
Nelsen, Hon. Ancher, a Representative in Congress from the State of
Minnesota 12
Sears, Roebuck & Co., Osby L. Weir, general manager 36
Sisk, Hon. B. F., a Representative in Congress from the State of Californla 7
Stein, Alvin M., Esq., representing: Sterling Optical Company, Cole
National Corporation, E. J. Korvette, Optical Department, Kay
Jewelry Stores, Inc., Kinsman Optical Company, Vent Air Contact
Lens Spenialists, National Association of Optometrists and Opticians,
New York State Optical Retail Association 95
Weinmann, Richard A., for Optical Council of the International Union of
Electrical Workers, AFL-CIO; and United Optical Workers Union,
Local 408, JUE, AFL-CIO 107
MATERIAL SUBMITTED FOR THE RECORD
Advertisement, "The Companion Pair-What is It? Why is It?" 25
American Optometric Association, Richard W. Averill, director, letter
to Chairman Fuqua, dated May 9, 1969 125
District of Columbia Medical Schools, Joint Statement re H.R. 2388~~ 46-48
Hart Bill, S. 260 121
Mechanix Illustrated, article in February 1969 issue, entitled "Are Eye
Glasses Inevitable?" 40
Medical Society of the District of Columbia, Dr. Daniel G. Albert, past
president, Section on Ophthalmology, statement
Optometric Society of the District of Columbia, Dr. Zachary Ephraim,
president, letter to Chairman Fuqua, dated May 5, 1969 3~
Washington Post:
Article dated Dec. 23, 1968, entitled "Jewelry Firm Cited by FTC as
Unfair" 28
Article dated May 7, 1969, entitled "Optometry Bill may Run Hustlers
out of Business" 125
Editorial dated Dec. 23, 1968, entitled "The Poor Do Pay More"~ 29
Washington (D.C.) Publishers Assn., Henry C. Gronkiewicz, Executive
Director, letter and statement to Chairman Dowdy, dated May 6, 1969_ 71
(III)
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APPENDIX
kmerican Assn. of Ophthalmology, Dr. Robert J. Beitel, Jr., testimony on Page
the Hart bill (S. 260), the Medical Restraint of Trade Act 137-143
American Optometric Association's Code of Ethics and Supplements-
Rules of Practice 132-137
District of Columbia government, letter to Chairman McMillan dated
May 6, 1969, enclosing analysis of HR. 2388, and proposed amend-
ments 165
Fields v. District of Columbia, Opinion, District of Columbia Court of
Appeals, No. 4066, dated July 25, 1967 (232 A. 2d 300) 127-132
Medical Society of the District of Columbia, proposed amendments to
H.R. 2388 144-164
State laws prohibiting corporate practice of optometry 143
Sterling Optical Co., Inc., letter to Chairman Fuqua, memorandum, and
proposed changes in HR. 2388 170-199
SUMMARY OF TESTIMONY
Background of Legislation 8, 14
Advertising 13, 21, 35, 67, 72, 90, 97
Antidiscrimination (sec. 14) 49, 52, 54
Cole National
Conclusions 24, 53, 83, 112
Contact lenses .24, 63, 80, 88, 123
Corporate practice 17, 39, 55, 64, 96, 99, 101, 108, 115, 117
Court testimony 52
Definition of Optometry 15, 34, 48, 50, 89
Diagnosing diseases 49
Discounts 91
Drugs, use of 51
Employment of assistants or technicians 23, 35
Exemptions 51, 58
Existing law
Eye examinations 19, 30, 53
Fields v. District of Columbia 53, 78, 88, 94, 127
License renewal 31,99
Need for legislation 8, 12, 17-22, 116
Opticians:
Effect of bill 92
Objections to bill 81-88, 96-102
Role of
Optometric Board 115
Optometric Center 23
Optometrists:
Professional status by Federal laws 16, 110
Promotion techniques, prices, fees and charges 18, 21
Relationship to medicine 22, 44
Physicians:
Exemption of 54,58
Referrals to 52, 58, 65
Relationship with optometrists 22
Proposed Amendments:
District of Columbia Government 103, 165
Medical Society, District of Columbia 50-54, 57-58, 144
Opticians Guild 83
Sears
Sterling Optical 96-102, 175-199
Ready-to-wear nonprescription glasses 37, 51
Rules and regulations 52
State Laws:
Authorizing sale of ready-to-wear spectacles 41
In general 34
Prohibiting corporate practice 20, 143
Maryland and Virginia 43, 61
Williamson v. Lee Optical 16, 20, 22, 62, 122
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OPTOMETRY
TUESDAY, MAY 6, 1969
HOUSE OF REI'RESENTATIVES,
SUBCOMMITTEE No. 4 OF THE
COMMITTEE ON THE DISTRICT OF COLUMBIA,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10 :10 a.m., in Room
1310, Longworth House Office Building, Honorable Don Fuqua
(Chairman of the Subcommittee) presiding.
Present: Representatives Fuqua (presiding) , Dowdy, Jacobs, Kyros,
Blanton, Harsha, Broyhill and Gude.
Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel;
Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk;
LeonardO. Hilder, Investigator.
Mr. FUQUA. The Subcommittee will be in order.
We have under consideration this morning the bill, H.R. 2388, in-
troduced by Mr. Sisk and others, to amend the Act of May 28, 1924, to
revise existing law relating to the examination, licensure, registration,
and regulation of optometrist~s and the practice of optometry in the
District of Columbia, and for other purposes.
At this point, I would like to place a copy of the bill in the record.
(The bill is as follows:)
H.R. 2388, 91st Cong., 1st Sess., by Messrs. Sisk, Nelsen, and Fuqua,
on January 7, 1969
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 optometry
in the District of Columbia, and for other purposes
Be it enacted by the $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, 1924,
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 profession in the District of Colum-
bia is hereby declared to affect the public health, welfare, and safety, thus re-
quiring 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 pro-
fession 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
recognized schools and colleges of optometry: (a) the employment of aimy
objective or subjective means for the examination of the human eye. includ-
ing its appendages; (b) the measurement of the powers or range of human
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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 the human eye; (e) the adaptation, utilization, or furnishing of lenses,
prisms, or frames for the aid of the human eye; (f) the prescribing, di-
recting 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 (h) the identification of any departure from the normal condition
or function of the human eye, including its appendages;
"(3) `optometrists' 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
education equivalent to the completion of a four-year course of study in an
accredited 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 Com-
missioners may accept the results of written examinations given by the
National Board of Optometry, but shall conduct their own oral and prac-
tical 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 naid all the required fees.
"SEc. 5. (a) The Commissioners are authorized to issue a recinrocitv 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 re-
vocation 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 auplicant 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.
"(h~ If an individual holding a reciprocity license granted under this sec-
tion falls to actually practice optometry ta the District of Columbia within one
year after such license has been granted. the Commi~sioflerS may revoke such
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license at any time before such individual actually begins the practice of op-
tometry 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
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 pay-
ment 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
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 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
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 under `any name other
than that under which he h'as 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 displ'ay 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 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 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 per-
sons 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.
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"(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 District of Columbia, at least twenty days before the hearing. The respond-
ent 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 considera-
tion 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 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 un-
der authority of this Act, illegally or fraudulently obtained or signed or
issued unlawfully or under fraudulent representation;
"(41) 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 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 ophthal-
mic 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
considerations recieved by such third person for filling of such prescription:
"(7) other than a person licensed to. practice optometry, medicine, or
osteopathy 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 sec-
tion 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 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 $1,000, or `by imprisonment in the District jail for not
more than one year, or by both fine and imprisonment.
"SEe. 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;
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"(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 require a physician or surgeon licensed
under the laws of the District of Columbia for the practice of medicine or oste-
opathy 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 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 b'y 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 esta'te 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 Tepre-
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) a person from acting as an assistant under t'he direct personal
supervision 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;
"(5) vision screening programs conducted under the direction or super-
vision of a person 1ice~sed 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;
"(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 he uses such
title or such abbreviation it must be with such qualifications as may be necessary
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 in-
clude, 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 announcements thereof. With
respect to the offering for sale of ophthalmic materials, such regulations shall
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limit the offering for sale thereof to a modest window or street sign at the loca-
tion of the person's place of business and other modest advertisenìents. 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 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
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 authenti-
cating records and papers pertaining to the licensing and regulation of optom-
etrists in the District of Columbia. Copies of all records and papers duly certi-
fied 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 op-
tometrists 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 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 bearing, 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 ~ction
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 Act, the Commissioners may make
application to *the District of Columbia of General Sessions for an order
either temporarily or permanently enjoining such act or practice, 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 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 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 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 determine necessary."
SEC. 2. Every license to practice optometry in the District of Columbia w-hich is
valid on the effective date of this Act shall continue to be valid under the District
PAGENO="0011"
7
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 w~ith
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:
"(11) filial 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.
Mr. FUQUA. Tile bill has been heard by Congressman Dowdy's sub-
committee in the 89th Congress, and Congressman Sisk's subcommittee
in the 90th Congress, and there is rather voluminous material relating
to the pros and cons of this legislation.
I would hope that the witnesses appearing today and tomorrow
would try to limit their remarks to new material relating to this bill,
or new developments that might have occured since previous hearings
were held.
I think both sides are pretty well known on the bill and we do hope
that the subcornrnitte.e will take some type of action on the bill one way
or the other shortly.
We do not intend to try to limit anyone in their discussions; how~
ever, we do have a long list of witnesses and I hope that, as I stated
earlier, comments will be made pertinent to new developments or new
information regarding this bill.
With that, we will begin with one of our former colleagues on this
committee and who chaired the subcommittee, as I m,entione.d earlier,
that held hearings on this bill last year, or in the 90th Congress, and the
prime introducer of this bill, the Honorable B. F. Sisk, from
California.
Mr. Sisk, we are pleased to have you before us this morning and we
are well aware of your interest in improved eye care for the District
of Columbia, and the many hours that you have spent in this behalf.
We are happy to hear from you.
STATEMENT OP HONORABLE B. F. SISK, A REPRESENTATIVE IN
CONG~RESS PROM THE STATE OF CALIFORNIA
Mr. SIsK. Thank you, Mr. Chairman. I deeply appreciate this oppor-
tunity to appear before your fine subcommittee this morning.
I want to express my appreciation particularly to you, Mr. Chair-
man, for the early start on hearings on this particular legislation,
which, as you have already indicated, we have had sonic long-standing
interest in; and I know that you, Mr. Chairman, have also been con-
cerned about this problem.
In order to save time, Mr. Chairman, I would ask that my statement
be made a part of the record and then I would like to just make some
very brief comments.
PAGENO="0012"
8
Mr. FtrQUA. Without objection, it will be made a part of the record.
(The prepared statement of Mr. Sisk follows:)
Mr. SIsK. Mr. Chairman and members of the subcommittee: I am
pleased to be with you today to express my continuing interest in legis-
lation to amend the 1924 District of Columbia Optometry Act.
As you know, I have been concerned about the problems of vision
care in the District for some time. I have been identified with one bill
or another in the last two Congresses, and I am one of the co-sponsors
of the bill you are considering today, along with Chairman Fuqua and
Congressman Anc.her Nelsen.
I was most disappointed that we were unable to bring this legisla-
tion to the full Committee in 1968. Those of us who had studied the
provision of eye care. and eyeglasses were shocked to learn of the
unscrupulous merchandising tactics used by a few optometrists and
corporations which hire optometrists as salaried employees in their
establishments.
NEED FOR LEGISLATION
Probably the. most significant fact indicating the need for action
on this bill is that the same old problems have been coming up again
and again, producing more evidence that innocent people seeking vis-
ion care are being victimized by retail firms whose only concern is that
of producing a profit. from the sale of optical merchandise. In all too
many cases, improper inducements are offered to get customers into
the place of business. False or misleading advertising is used. "Bait
and switch" tactics are freely employed. Bonuses and premiums or
offers of free. services are utilized in the quest for high volume business.
Often, the fees charged for services and the prices charged for optical
merchandise are 100% to 200% higher than similar services and materi-
a.ls obtained from ethical optometrists. As if these practices were not
enough, the unsuspecting customer frequently pays usurous credit
charges and is subject to inhumanly rigid collection policies and
procedures.
In the absence of statutory control. these dangerous and undesirable
practices continue unabated. Although I an'i no longer a member of
the District Committee., I feel strongly it is time for the Congress to
take positive corrective measures. I believe a new optometry law along
the. lines of H.R. 2388 can correct. most of the. problems being experi-
enced in the District today in the vision care field.
I am aware, of course., that in a number of occasions the language
in some sections of this bill still have to be ironed out. No doubt this
subcommittee can do a great deal to clarify the language and make
it a better piece of legislation. The basic intent, however, is to outlaw
the various abuses which have come to light, and to require that vision
care be rendered in a professional manner similar to that of other
recognized health professions. I feel the. Congress owes residents of
the District the kind of health protection which is available only
through legislation of this type. Adoption of this legislation would be
consistent with our concern for consumer protection as expressed in
other legislation we have enacted.
Aside from the consumer protection aspect, I am concerned about
the grave injustice being done to the many highly skilled, capable
and conscientious optometrists in the District who have worked long
PAGENO="0013"
9
and hard to provide ethical and professional vision care services.
They conduct their practices on a high ethical plane, as is the case with
most doctors of medicine, osteopathic physicians, dentists and podia-
trists. They take an active part in the life of their community. They
pay their dues and otherwise support the educational and research
programs conducted by their local and National professional societies~
Many of them serve the Federal government in positions of trust and
great responsibility as consultants and advisors to agencies conducting
a number of vital government-supported programs.
Just as a handful of juvenile delinquents can ruin the image of
all teenagers, so can the handful of unethical optometrists and optical
firms make a mockery of the highly professional majority of optome-
trists here in the District. This is a grevious wrong which we in
Congress must take steps to correct.
I have no ax to grind on behalf of the optometrists. They are adults.
They are well organized in their local, State and National professional
societies. And, they are fully capable of looking out for themselves.
Yet, in all fairness, I believe they have been much too patient in their
attempts over the years to have this law amended. It is within the
purview of this committee to give them the relief they seek and permit
them to upgrade the practice of their profession in the District.
Having worked closely with all parties interested in this legislation,
I think I can state with some assurance that most of the major organi-
zations involved are willing to be reasonable on the remaining points.
Such cooperation would assure enactment of a law which will provide
the health protection which reside.nts of the District deserve.
It is my fervent hope that you in this subcommittee will use your
best efforts to report out a bill which is acceptable to the District
Committee and to the House. If I can be of any assistance to any one
of you, or to you, Mr. Chairman, I hope you will feel free to call on
me. Thank you for allowing me to he with you this morning.
Mr. SI5K. Mr. Chairman, just briefly, I think I will quote from
just one paragraph of the statement, and then add a few additional
thoughts to it.
As you have already indicated, this is not a new subject here in
the District of Columbia; it is certainly not a new subject before this
distinguished committee.
Probably the most significant fact indicating the need for action on
this bill is that the same old problems have been coming up again
and again, producing more evidence that innocent people seeking
vision care are being victimized by retail firms whose only concern
is that of producing a profit from the sale of optical merchandise.
In all too many cases, improper inducements are offered to get cus-
tomers into the place of business. False or misleading advertising
is used. "Bait and switch" tactics are freely employed. Bonuses and
premiums or offers of free services are utilized in the quest for high
volume business. Often, the fees charged for services and the prices
charged for optical merchandise are 100% to 200% higher than
similar services and materials obtained from ethical optometrists. As
if these practices were not enough, the unsuspecting customer fre-
quently pays usurious credit charges and is subject to inhumanly rigid
collection policies and procedures.
PAGENO="0014"
10
And, Mr. Chairman, I simply quote that from the statement because
these are facts which have been produced not once but many times
through checking with various operators in the District of Columbia.
I recognize that in some of these areas, as in many other things
which we are concerned with, that there develops, of course, contro-
versy, particularly where the question of profit is concerned. But the
thing that causes my continuing interest-and certainly, I have no
personal ax to grind because I do not happen to be an optometrist or
ophthalmologist or in any of these professions-but I am concerned
with decent eye care for people everywhere. Because I think it is one
of the most sensitive areas that we should all be concerned about.
It is my hope and certainly my prayer, Mr. Chairman, that we
might be able to update the law which, as you indicated, is an old
1924 Act, to make it possible to give to the people of the District of
Columbia, and particularly to our youngsters, reasonably decent pro-
fessional eye care. There is no question in my mind but what evidence
which has been produced and is a. part of a voluminous record, as
the Chairman indicated, shows unfortunately that is not being done
all too often here in the District of Columbia.
The profit motive in corporate operation just simply outweighs
the concern for the individual and for the type and kind of care when
we oet into this area.
I would simply like to conclude my brief statement, Mr. Chair-
man, by indicating a hope that whatever the committee is able to come
out with in the form of legislation, whatever kind of compromise, if
a compromise ca.n be worked out, that in the final analysis it will place
emphasis on the professional status of eye care and those who are
responsible for it, and particularly with the view to elimination of
the corporate practices and the unfair and unusual types and kinds
of advertising.
I think it has been long recognized that in the field of care in any
aspect., physical care of human beings, and particularly in the medical
field, that that type and kind of advertising we see here in the District
simply was not in the best interest of good medical care.
In the final analysis, I say if we can do two of three things-one,
place this profession on a recognized professional status, and also to
control and eliminate the corporate practice portion of it and the un-
fair advertising tactics that are being used-then I think we will have
made a great step forward.
Of course, many States have already met this problem and have
improved substantially the eye care in those States. Some States have
r~ot gone as far as others. Those States who have really gone ahead and
put this on a completely professional status I think today would never
retreat from that position.
Again, Mr. Chairman, I wish to express my appreciation to you for
setting early hearings and for this opportunity this morning to appear
and make this brief statement.
Mr. FTIQUA. Thank you very much, Mr. Sisk. We appreciate your
continuing interest in this legislation.
Do you feel that improvements have been made in optometry and our
knowledge and training of optometrists since this Act was passed in
1924?
PAGENO="0015"
11
Mr. Sisic. Oh, very definitely. There is no question but what the
progress in this area, of course, has come right along with progress
in the entire medical field,. and the tremendous strides that have been
made in the training process. Here, again, of course, we get into this
business of standards of education. In my own State of California the
schools of optometry have set very high standards, so that when these
people come out of those schools they are adequately trained, they are
prepared to give, to render good professional eye care. More progress
has been made, for example, in all of these fields since 1924 than prob-
ably was made previous to that in maybe a couple hundred years be-
fore that. And yet, again, I think, unfortunately, we have not really
realized the benefits of that progress in the District of Columbia.
Mr. FUQUA. Do you feel, then, that because this is a profession and it
has improved and tried to improve itself, that certainly the District of
Columbia is entitled to benefits from this progress and updated acts
that relate to the. practice of that profession?
Mr. SIsK. Exactly, Mr. Chairman.
Mr. FuQUA. Mr. Jacobs.
Mr. JACOBS. I have no questions. But I would like to commend Mr.
Sisk. He has certainly labored long and so far, I suppose, has been
pretty much unrewarded in terms of satisfactorily seeing his legisla-
tion become law. I would just like to join the other members of this
subcommittee, sir, commending you. You are in the common parlance
a good egg.
Mr. SIsK. Thank you. I appreciate that from my good colleague
from Indiana..
Mr. FTJQIJA. Mr. Harsha.
Mr. HARSHA. Mr. Chairman, I want to congratulate our distin-
guished friend from California on his interest in this field. Certainly,
all of us have an interest, but he has taken a complete lead in this
effort, and I must say he is a very persistent individual. After so much
work in this area for a great many years, hopefully we can come up
with something that will meet all of the objectives of everybody
concerned.
Is there anything different in this H.R. 2388 than the bill in the last
session?
Mr. SI5K. Not substantially. There were some modifications of some
of the language, but generally it is pretty much the same piece of legis-
lation that was introduced in the 90th Congress.
Mr. HARSHA. Did I understand you right; I thought you said it
would eliminate the corporate practice of optometry in the District?
Mr. SisK. Yes, that is one of the principal objectives of the legisla-
tion, to eliminate the corporate practice, put it on a professional basis.
Mr. HARSITA. That is all I have.
Mr. FTJQUA. Mr. Gude.
Mr. GIJDE. I would just like to commend the gentleman from Cali-
fornia, who has been such a good friend on this committee and has
worked very hard.
I certainly, as a suburban Congressman, want to thank him for all
he has done in the interest of this committee and of the city.
Mr. Sisic. Thank you, Mr. Gude.
Mr. FIJQIJA. Thank you very much, Mr. Sisk. We appreciate it very
much.
PAGENO="0016"
12
Mr. SI5K. Fine. Thank you, Mr. Chairman.
Mr. FITQUA. I see sitting in the audience another Member and author
of the bill, Congressman Ancher Nelsen, the ranking minority mem-
ber of this committee.
Mr. Nelsen, we would be happy to hear you today.
STATEMENT OP HONORABLE ANCHER NELSEN, A REPRESENTATIVE
IN CONGRESS PROM THE STATE OP MINNESOTA
Mr NELSEN. Mr. Chairman, in the interest of saving time, I will
submit this statement that I have prepared.
May I say only that when this came to our attention, the proper
eye care in the professional handling of the problem in the District of
Columbia, it seemed quite evident that we were a bit behind the trend
right here and some guidelines needed to be written into the regula-
tions of the District of Columbia.
Not being a professional in this area, however, it seemed to me well
documented that there should be something done. Mainly to give bi-
partisan support, I then joined with Mr. Sisk in submitting a bill for
consideration in the committee, at the same time being fully aware
of the fact that perhaps changes should be made in the bill that was
presented, and that may still be true.
* But, however, I think it is crystal clear that something needs to be
done and I thank the committee for giving me the chance to appear
here.
Our Interstate Committee is presently marking up the Hill-Burton
Bill, working on it, and I hope I may be excused. I want to thank the
committee for giving me this chance.
I will submit the statement to the Secretary. Thank you very much.
(The prepared statement of Mr. Nelsen follows:)
Mr. Chairman and members of the subcommittee: as a co-sponsor
of the legislation you're considering today, I am pleased to have an
opportunity to comment on H.R. 2388 and to ask your help in resolv-
ing whatever differences there might be so this matter can be sent on
to the full Committee.
CONSTJMER PROTECTION
I share the concern the Chairman and Mr. Sisk have expressed in
regard to the consumer protection aspect of this bill. There is no
doubt that undesirable practices have been permitted to flourish in
the field of eye care and the sale of optical merchandise in the District
of Columbia. These have been going on too long. Study of the testi-
mony and exhibits presented on this same subject in the 89th and 90th
Congresses is sufficient to convince any conscientious person of the
urgent need for corrective action.
It is generally recognized that the population of our Nation's capi-
tal city includes a large number of individuals who are in the lower
income brackets and perhaps somewhat less sophisticated in the ways
of the world of business and the professions. These good, hard-work-
ing citizens are being exploited day after day by businessmen who
either don't realize or are not concerned about the consequences of
their unfair and abusive methods of operation.
PAGENO="0017"
13
I can't offer much sympathy to the college-educated person who
patronizes a retail establishment to find "bargain-priced" eye care
or eyeglasses. Such a person has the cultural and educational back -
ground necessary to make the distinction between a retail operation
and the office of an ethical health practitioner. I am more concerned
about those who simply have not had the schooling, background, and
experience which would permit them to reach intelligent conclu-
sions in such matters.
The legislation being taken up today would correct the abuses which
seem to occur so regularly in connection with vision care services
and prescription optical goods. At the same time, it would provide the
profession of optometry, through its Board of Examiners, the statu-
tory tools necessary to police itself more effectively and would up-
grade the practice of optometry as a result of higher educational
standards for licensure. As written, it appears to me this legislation
would work in the public interest by requiring that optometrists
establish and maintain their practices in appropriately professional
surroundings and in a manner consistent with other heal care pro-
fessions.
ADVERTISING
Those of you with whom I have discussed this legislation in the
past know I have been somewhat concerned about the restrictions on
advertising contained in the bill. I acknowledge the validity of argu-
ments that advertising plays an important part in the operation of
profit-motivated retail firms which hire optometrists as a means of
attracting customers and selling their optical goods. Even though some
of the other laws regulating the practice of health professions in the
District contain such restrictions on advertising, I am not completely
convinced they represent the best possible solution in this particular
case.
The heart of the matter is whether or not the Congress should re-
quire that optometrists must conduct themselves as professionals, free
and apart from considerations of the marketplace. If this legislation
clearly prohibits corporate practice of optometry, I doubt the exist-
ence of any pressing need for getting into the area of restricting ad-
vertising. The very prohibition of corporate practice would preclude
licensing of any except those individuals who conduct themselves and
their optometric practices in accordance with the best ethical and
professional standards. This would handle the problem without the
need for writing advertising controls into the law.
It is my hope that you will be able to resolve the question of restric-
tions on advertising. We must be sure there will be no interference with
newspapers and other advertising media which should be free to accept
or reject advertising material as they see fit.
Beyond that question, I believe this legislation deserves the bi-
partisan support I hoped to encourage by co-sponsoring H.R. 2388.
We desperately need legislation which will provide the means for
cleaning up the small pocket of eyeglass merchants who have no
interest in the good visual health of the public.
I think the basic intent of this legislation is good, and I would hope
it can be further improved by the subcommittee and made acceptable
for passage during this session of the Congress.
29-170-69-----2
PAGENO="0018"
14
Mr. Chairman, thank you for permitting me to add my comments
to your hearings. If I. canbe of assistance to you or to the subcommittee
with reference to this legislation, I'd be pleased to do so.
Mr. FUQIJA. Thank you, Mr. Nelsen. We appreciate your interest.
Does any member have any question?
Thank you very much, Mr. Nelsen.
Mr. NELSEN. Thank you.
Mr. FUQUA. Our next witness will be Dr. V. Eugene McCrary,
speaking on behalf of the American Optometric Association.
Do you have any associates?
Dr. MCCRARY. Yes, sir, Mr. Chairman. I am accompanied this morn-
ing by Mr. Vincent Reusing, who is a member of the staff of the
American Optometric Association.
STATEMENT OP DR. V. EUGENE McCRARY, O.D., AMERICAN OPTO-
METRIC ASSOCIATION; ACCOMPANIED BY MR. VINCENT P.
REUSING, MEMBER OP THE ASSOCIATION
Dr. MCCRARY. Mr. Chairman and members of the subcommittee:
I appear today to speak on behalf of the American Optometric Associa-
tion and the Optometric Society of the District of Columbia in favor
of H.R. 2388 relating to the practice of the profession of optometry
in the District of Columbia.
My name is Dr. V. Eugene McCrary. I am a practicing optometrist
located in College Park, Maryland, and I serve as Director of the
Department of National Affairs of the American Optometric Associa-
tion, which is an organization of over 15,000 members and which I also
served as President in 1965-1966.
The American Optometric Association is concerned about the visual
welfare of residents of the District of Columbia and the thousands of
individuals who visit or work here for relatively brief periods of time.
Those who seek vision care in the District of Columbia have every right
to expect vision care services which are as professional, ethical, and
well regulated for the good of the public as is the case in most States.
Present law governing the practice of optometry in the District of
Columbia offers no assurance to those seeking professional vision care.
BACKGROUND
The present District of Columbia Optometry Act was enacted by
the Congress in 1924. During the 45 years since passage of this Act,
tremendous changes and improvements have occurred in scientific
knowledge about the eye and the whole human system as related to the
eye. Optometrists and other professionals have made major contribu-
tions to development of new instruments and techniques for examina-
tion of the eye. Modern technology has produced amazingly efficient
new lenses for general use and for special applications, each designed
to correct a specific human visual deficiency.
All ten fully accredited schools and colleges of optometry today
uniformly require two years of pre-professional education and four
years in graduate school. During these six years, the optometry student
learns the most up-to-date methods of examination and methods of
PAGENO="0019"
15
correcting visual deficiencies with eyeglasses, contact lenses, or visual
training.
In the 45 years since the District of Columbia Optometry Act came
into being, most States have substantially amended their laws to reflect
the increase of optometric knowledge, the mode and scope of practice
of the profession, and the profession's continuing efforts to upgrade
itself for the benefit of the general public. Just as the District of
Columbia Optometry Act was one of the last to be enacted, so has it
been the last to be considered for amendments to bring it up to date
and make it more consistent with similar laws in other jurisdictions.
It is imperative that the optometry law in the District be updated and
strengthened now, so that residents and visitors may be assured of the
same benefits of professional vision care available elsewhere in the
Nation.
The bill before you today is for the purpose of regulating the prac-
tice of Optometry as a profession in the District of Columbia. Pro-
visions of the bill present no new or unusual regulations or conditions.
Every section and every paragraph is comparable if not identical to a
section or paragraph in one or more optometry laws in effect else-
where in the United States today. Comparison of H.R. 2388 with
existing optometry laws throughout the Nation shows it is less
stringent. "Bait" advertising and soliciting patronage by means of
employing third parties to offer gratuitous services, bonuses, and pre-
miums to intice unwary individuals into an establishment are also
elements in the corporate practice of optometry in the District, and
would be prohibited under provisions of this bill. Most establishments
utilizing such tactics are those whose main concern is profit rather
than the best health interests of the prospective patient or customer.
To bolster the definition of optometry as a profession, the licensing
board of Board of Examiners in Optometry is given greater power
to issue rules and regulations concerning professional conduct of the
optometric practitioner, and broader powers of enforcement under
this bill. More stringent grounds for revocation of an optometrist's
license would also result from passage of H.R. 2388, and educational
requirements for licensure would be made consistent with modern-day
optometric education, reflecting the current course of two years pre-
optometry and four years of professional study.
Anothei~ feature of the bill is to formalize, by Congressional action,
the findings of the District of Columbia Court of Appeals that no
individual other than an appropriately licensed optometrist, doctor
of medicine or doctor of osteopathy should be permitted to fit contact
lenses.
Those are the main benefits to be secured for the public under pro-
visions of H.R. 2388, and I'm sure you all agree with the need for
an optometry law which would have such desirable effects.
DEFINITIoN OF OPTOMETRY
In the matter of re-defining optometry as a profesison, I would like
to point out that all 50 States either declare optometry to be a pro-
fession, or make reference to unprofessional conduct in the body of
their laws governing the practice of optometry. In case after case
across the Nation, courts have upheld provisions of optometry statutes
PAGENO="0020"
16
which state that optometry must be practiced as a profession in the
same manner as other licensed, independent health occupations. Note,
however, that H.R. 2388 does not state that optometry is a learned
profession, although such a statement is contained in many State
optometry laws. The Optometry statutes in the State of Florida are
perhaps the most broad in scope with relation to defining the prac-
tice of optometry. The Florida law reads, in part, as follows: "The
practice of optometry is declared a profession, and for the purpose of
this chapter, is defined as follows; viz.: to be the diagnosis of the
human eye and its appendages, and the employment of any objective
or subjective means or methods for the purpose of determining the
refractive powers of the human eyes, or any visual, muscular, neuro-
logical or anatomic anomalies of the human eyes and their appendages,
and the prescribing and employment of lenses, prisms, frames, mount-
ings, orthoptic exercises, light frequencies and any other means or
methods for the correction, remedy, or relief of any insufficiencies or
abnormal conditions of the human eye and their appendages. An
optometrist is one who practices optometry in accordance with the
provisions of this chapter."
In its 1968 edition of "Health Resources Statistics," the U.S. Public
Health Service defined optometry in the following manner:
Optometry is the profession specifically licensed in all States to care for
human vision. A Doctor of Optometry is educated and trained to examine the
eyes and related structures to determine the presence of vision impairments,
eye diseases, vision malfunctions related to educational difficulties, or other
abnormalities. He prescribes and adapts lenses, contact lenses, or other optical
aids, and utilizes vision training to preserve, restore, and improve vision
efficiency.
The American Optometric Association adopted the following
official definition of Optometry in 1963: "An optometrist, Doctor of
Optometry (O.D.), is a person specifically educated, trained, and
state licensed to 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 visual trathing to preserve, restore and enhance the
efficiency of vision."
In the case of Williamson v. Lee Optical of Oklahoma, 348 TJ.S. 483
(1955), the U.S. Supreme Court made the following distinction be-
tween optometrists and others in the eye care field: "An ophthalmolo-
gist is a duly licensed physician who specializes in the care of the eyes.
An optometrist examines eyes for refractive errors, recognizes (but
does not treat) diseases of the eye, and fills prescriptions for eye-
glasses. The optician is an artisan qualified to grind lenses, fill pre-
scriptions, and fit frames."
The definitions of optometry which I have just cited are far more
broad in scope than that proposed by the bill under consideration
today. This is further evidence that nothing new or revolutionary is
sought by the optometric profession in urging your approval of H.R.
2388.
PROFESSIONAL STATUS BY FEDERAL LAWS
The American Optometric Association finds it inconsistent that the
Congress specifically accords optometry the status of a profession in
a wide range of Public Laws, yet has not seen fit to do so in the mat-
PAGENO="0021"
17
ter of the D.C. Optometry Act. Under provisions of the Military Se-
lective Service Act as amended, students attending optometry schools
and colleges are granted deferments for completion of their education,
whereupon they are subject to being drafted by the Armed Forces until
they are 35 years of age, in the same manner as medical doctors and
other health professionals are treated. Upon entrance into the military
service, credit is allowed for their professional education and time in
practice, toward higher entrance rank and other benefits accorded
those who have completed professional training.
The Health Professions Educational Assistance Act allows for Fed-
eral support of schools and colleges of optometry through a system
of grants and loans, and a subsequent amendment also provided for
student loan support by the Federal Government.
Title II, Title V, Title X, Title XVI, Title XVIII and Title XIX
of the Social Security Act all recognize and accept optometry and
specify that certain services of optometrists are to be made available
to beneficiaries where they are available and appropriate or preferred
by the beneficiary.
The Model Cities Act of 1966 made provision for FHA-insured
loans to optometrists establishing group practice facilities which com-
bine the services of three or more optometrists in one location or who
enter a comprehensive group practice with other health practitioners
such as physicians and dentists. Group Practice Facilities loans to
optometrists are made under provisions of Title XI of the National
I-lousing Act.
Another example of Congressional recognition of optometry as a
profession is the Allied Health Professions Personnel Training Act
of 1966, which authorizes Federal financial aid to schools and colleges
offering courses leading to certification or a baccalaureate degree for
optometric technicians or technologists.
1968 amendments to the Vocational Rehabilitation Act included
optometrists as part of the rehabilitation team, formalizing by statute
those functions the Nation's optometrists had been performing for
many years.
A number of other Federal statutes also take cognizance of optometry
as a profession. It is the belief of the American Optometric Association
that optometry should be recognized in a like manner under the Dis-
trict of Columbia Optometry Act.
PRACTICES PERMITTED IN WASHINGTON
When we discuss the matter of optometry as a profession, it is neces-
sary to consider the various practices permitted by the existing District
of Columbia optometry law, and which the American Optometric
Association considers to be unprofessional, unethical and inimical to
the public health. While the bill under discussion deals with each
problem separately, all are closely interrelated and form a general
picture of permissiveness which can no longer be tolerated in the
District of Columbia.
CORPORATE PRACTICE
Time first of these is the corporate practice of optometry. Today, an
optical firm whose sole purpose is to sell ophthalmic materials at a
profit may employ an optometrist on a salary-plus-commission or
PAGENO="0022"
18
bonus basis. As an employee of the firm, the optometrist is under the
direction and control of a profit-motivated organization, and is no
longer free to exercise his independent judgment as to the need for
corrective lenses. The employer makes it clear to the employed optom-
etrist that his function is to prescribe eyeglasses and even to sell an
extra pair or two whenever possible. With each pair of eyeglasses sold,
the optometrist's income is increased.
An example of this is contained in a publication by one of the major
optical firms supplying ophthalmic materials to optical departments
in a large national retailing chain. Entitled "Professionals . . . Plus,"
the first of two such bulletins states on its cover:
Announcing Professionals . . . plus Double Bonus Points. Your opportunity to
reap substantially increased rewards for your professional performance.
Inside the brochure is the statement:
Everyone in your department can earn 70 professional-plus points for every
service warranty and/or coated lens sales made from February 25 through
April 27, 1968 . . . you'll earn 70 points for each sale when your service war-
ranty sales combined with your coated lens sales total 100% during the nine-week
period.
As if this were not enough, a bold headline on page three announces
the optometrist competing in the "professionals plus" sale will receive
"$1 cash for the companion pair sale !" This firm actually offers its
employed optometrists a color television set, a room air conditioner, an
automatic electric clothes dryer, and other premiums for selling extra
pairs of eyeglasses.
In a succeeding bulletin on the same subject., a paragraph headed
"Company benefits" states that the optometrist will receive "recogni-
tion for your professional performance-in the form of bonus points-
for your patient's purchases of coated lenses and the comprehensive
service warranty." Then, in addition "a share of our increased profit
is returned to you in the extra compensation you receive for a Com-
panion Pair purchase."
It is obvious from these quotes that, the firm employing the optome-
trist is concerned with one thing and only one: that of selling more
merchandise in the optical department, regardless of the patient's best
interests or real needs. Under such circumstances, the only conclusion
possible is that the license of an optometrist is literally purchased or
made use of by the employe.r to make his optical department. operation
appear to be professional and thereby obtain greater patronage.
PRoMoTIoNs, PRICES, FEES AND CHARGES
One illustration of some `of the ills associated with the practice of
optometry under corporate control in the District of Columbia is the
case of New York Jewelry Company, which was investigated by the
Federal Trade Commission for its advertising and promotional meth-
ods, its grossly exorbitant prices, usurous credit fees and financing
charges, and rigid collection policies.
In Federal Trade Commission Order D. 8714, the FTC found this
firm had unlawfully used "bait and switch" tactics; had falsely ad-
vertised that it offers eyeglasses at discount and bargain prices; that
it deceived its credit customers by failing to adequately inform th~rn
PAGENO="0023"
19
of credit fees and financing charges imposed; and by failure to disclose
the total price to be paid under conditional sales contracts. The FTC
also foimd the firm had deceived and dealt unfairly with its customers
through use of "easy credit" advertising in conjunction with extremely
high prices, a rigid collection policy, and other promotional practices.
One case investigated showed the firm advertised discount eyeglasses
at $7.50 per pair and up, with no intention of actually selling glasses
at that price. According to FTC's tabulations, prices of glasses sold
by the firm were in fact 202% higher than trade area prices.
An example of methods used to lure customers into the place of
business where an optometrist is employed is contained in the follow-
ing "customer profile" from Appendix A of the FTC order number
D. 8714, and I quote: "John Edward Freeman: 20 years old, single,
Negro, employed by A & P Food Store as a stock boy earning $72 per
week. Mr. Freeman had no driver's permit, no bank account and no
other store accounts. He was walking by respondent's store when a
man sitting in front of the store invited him in for a free eye examina-
tion. He entered and had his eyes examined. He was shown some mer-
chandise and selected a ring for $79.50. Respondent's salesman then
told him that his eyeglasses were ready. He explained that he did not
want any eyeglasses. He was finally persuaded to take the glasses for
$59.50 when the salesman said they had been made to fit Mr. Freeman
and could not be sold to anyone else. Mr. Freeman later defaulted on
his payments, was sued by respondent, and his wages were attached.
He was represented by an attorney for the Neighborhood Legal Serv-
ice Project, and the suit was dismissed and the attachment released."
In summa~rizing its conclusions, the FTC order states,
The entire trust of respondent's marketing strategy was to lull its custo-
mers into a feeling that respondent was their friend, would give them a break
and would give them a better deal than they could get elsewhere. We conclude
that these practices of respondent are unfair and deceptive and in violation of
Section 5 of the Federal Trade Commission Act.
EYE EXAMINATIONS
The case cited further illustrates that retail firms with optical
departments merely use the Optometrist and his license to draw trade
into the establishment. Information developed by the FTC showed that
eyeglasses fabricated while the customer waited were prepared by an
individual who had never received any formal training as an optician.
While preparation of eyeglass lenses by untrained individuals is
certainly not to be condoned, there is an even more dangerous factor
underlying the employment of optometrists by optical firms or depart-
ments in retail establishments. As we have demonstrated, the optome-
trist's income in such a situation is closely related to the numbers of
pairs of glasses he prescribes and supplies to his unsuspecting patients.
The real clangor centers around the fact that in his quest for a high
volume of sales, the emloyecl optometrist must see an uiiusuafly large
number of customers in the course of a day's work.
Because of this necessity, most patients receive only a minimal
examination, simply because the optometrist must hurry along to run
another customer through. Consequently, the employed practitioner
in a retail situation does not have time to perform the highly impor-
PAGENO="0024"
20
tant examination techniques utilizing the retinoscope and the opthal-
moscope.. . tests which can tell the optometrist whether or not there is
any evidence ocular or systemic disease is present in the eye. Nor does
a 3-to-5-minute examination permit the use of the tonometer, a stand-
ard optometric instrument, to determine the presence of g'aucoma
which might require prompt medical attention. In many corporately-
financed and controlled optometric practices, no tonorneter is available
because only minimal instrumentation is provided. The tonometer is
an expensive piece of equipment and profit-conscious corporations are
reluctant to invest in an item they know their employees will not have
time to use. Existence of other diseases can also be detected by careful
examination of the eye by an optometrist. Some of these searched for
are indications of brain tumor, diabetes, nephritis, stroke, hardening
of the arteries, and other vascular degeneration.
The U.S. Supreme Court in the TVilliaimson v. Lee Optical of 0/cia-
hoqna case, cited earlier, clearly upheld the State of Oklahoma Optom-
etry Act with regard to prohibiting eye examinations or visual care
in a retail setting. The Court found, and I quote:
It seems to us that this regulation is on 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 commercial-
ism. 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
the nexus may be too great for safety if the eye doctor is allowed inside the
retail store.
Assuring the individual seeking professional eye care that he will
receive a full and complete examination is an overwhelming argument
in favor of passage of this legislation, and it can be achieved only by
removing all optometrists in the District of Columbia from the cor-
porate pressures which require them to hurry through their examina-
tions in order to accommodate greater volume.
PR0mBITI0N OF CORPORATE PRACTICE IN STATES.
The fact that no less than thirty-five of the fifty States (See appen-
dix, p. 143) specifically prohibit the corporate practice of optometry
lends further credence to the American Optometric Association posi-
tion that corporate practice of optometry should be prohibited in the
District of Columbia. There is ample precedent for such a prohibition
in District statutes which prohibit the corporate practice of medicine,
dentistry, podiatry, and law. A good example is the language used in
the District of Columbia Dental Pra:ctice Act, which states: "The
following acts on the part of a licensed dentist are hereby declared to
constitute unprofessional conduct:
* * * (4) Practicing dentistry under a false or assumed name or corporate
name other than a partnership name containing the names of the partners, or
any name except his full proper name which shall be the name used in his license
granted by the Board. * *
Just as the D.C. Code declares the practice of dentistry "to affect
the public health and safety and to be subject to regulation and con-
trol in the public interest," optometry should be so declared because
inefficient vision can constitute not only a personal hazard to the health
and safety of the individual so affected, but also to the general public
with whom such person shares the streets and other public facilities.
PAGENO="0025"
21
PRoawTIoN TECHNIQUES.
A number of undesirable advertising and promotional techniques
have been permitted to flourish in the District of Columbia for the pur-
pose of obtaining patronage for corporately-controlled optical shops
and departments. All are directly related to the corporation's need
for a high volume of trade to produce the exorbitant profits such firms
gain from their sale of eyeglasses. Perhaps the most abhorrent of
these is the use of "cappers and steerers" . . . third parties hired by
the optical shops to hand out certificates or other printed materials
promising premiums, free examinations, and other inducements for
the individual to enter the place of business. Needless to say, these most
frequently turn out to be false promises and the unsophisticated pro-
spective buyer is literally scared into purchasing one or more pairs
of eyeglasses. When he expresses concern about his ability to pay such
service, the corporate-controlled establishment has "easy credit terms"
to accommodate him, as indicated in the FTC case mentioned earlier.
This bill would eliminate such shoddy practices once and for all time,
by prohibiting the employment of a third party for the purpose of
obtaining patronage.
ADVERTISING
Another element in the unethical promotional practices of retail
optical firms and departments is tha.t of advertising the prices of oph-
thalmic materials . . . eyeglass lenses a.nd frames. Admittedly the use
of price advertising has decreased considerably in the past year or two,
but to assure that such advertising of "bargain prices" cannot be used
as a method of obtaining patronage, the matter must be dealt with in
the District of ~olumbia Optometry Act.
Again, the District Dental Practice Act sets a good example. Section
11 of the Act states:
The District Court of the United States for the District of Columbia may
revoke or suspend the license of any dentist in the District of Columbia upon
proof satisfactory to said Court * * * (d) that the holder `thereof is guilty of
advertising professional superiority or the performance of professional services
in a superior manner advertising prices for professional sevice; advertising by
means of large display, glaring light signs, or containing as a part thereof the
representation of a tooth, teeth, `bridgework or any portion of the human
head * * *
`The present optometry law in the District fails to provide any ty'pe
of control or limitation on advertising. In `previous `hearings, an as-
soci'ation of newspaper publishers opposed a `bill similar to this one
on the principle that any restriction of advertising constitutes an
infringement on freedom of `the press. `The American Optometric As-
sociation is just as concerned as `any person or organization can be
that freedom of the press be preserved and protected. However, when
advertising is `abused and put to the purpose of obtaining patronage
under false pretenses, `the public health is endangered and some cor-
rective means must be found. The `public `interest would be better
served if the District of Columbia Optometry Act were to restrict
advertising to publication of modest professional cards which are
truthful, accurate, and permitted to include only that information
which indicates the `practitioner's name, his office hours, his location,
and his specialty if he engages in a special or restricted practice.
PAGENO="0026"
22
U.S. Supreme Court action, in its unanimous decision upholding the
Williamson v. Lee Optical of Oklahoma findings, supra, determined
that advertising restrictions in optometry laws are fully constitu-
tional. The Court's rationale was this: an eyeglass frame itself is a
product; `without lenses it performs no function. When mated with
lenses, a frame becomes a device for the functional purpose of cor-
recting vision. `Since it affects eyes, it is therefore pertinent to protec-
tion of the public health `and is subject to control of advertising.
RELATIONSHIP TO PRACTICE OF MEDICINE
The impact of H.R. 2388 is minimal on related fields of endeavor
such as the practice of medicine or the supplying of eyeglasses by
opticians. Except `for provisions `which would prohibit the practice
of optometry by `anyone other than the individual to `whom a license
is issued, and certain restriction on advertising, enactment of this
`bill `would not infringe upon the practice of medicine nor upon the
sale'and dispensing of ophathal'mic materials by ethical opticians and
optical shops which fill the prescriptions of optometrists and
physicians.
Opponents of an improved District of `Columbia optometry law
have stated their concern that this bill would by statute expand the
scope of the practice of optometry `into their field of medicine. The
bill clearly sets forth the legal parameters within which the practice
of optometry is to be confined. The bill specifically, prohibits optome-
trists from prescribing or using drugs for the treatment of disease. By
definition, the optometrist is required to utilize his unique skills and
knowledge to examine the human eyes and associated structures to
determine whether or not abnormalities are present. `The optometrist
is taught, trained, and required by `his professional code of ethics to
refer to other appropriate `health practitioners `any patient in whom
he discovers ocular disease or indications of systemic diseases mani-
fest in the eye. Statutory recognition of the optometrist's profes-
sional ability to detect departures from the normal in no way deprives
other health professionals of their `proper and `well-established func-
tions in the field of eye care. Instead, such recognition would simply
upgrade the practice of the profession of optometry. The American
Optometric Association fails to understand why any individual or
organization opposes attempts by the `profession of optometry to im-
prove itself and consequently offer even better vision `care service to
the public.
Opponents of this legislation have expressed their belief that some
provisions of the bill constitute under regulation of products, and
suggested that optometrists must be other than professionals in view
of their concern about controls on advertising and display of ophthal-
mic materials. Optometrists subscribe to a professional code of ethics
which makes it clear their only interest is in providing their patients
with professional vision care. The optometrist is taught throughout
his professional education that ophthalmic materials are only mci-
dental to the provision of complete optometric vision care. Without
the professional expertise of the practitioner, no lens prescription,
no lens, frame or mounting or contact lens has any value of and by
itself. Only when that lens is scientifically prescribed and properly
PAGENO="0027"
23
fitted to the individual for whom it was prescribed does it take on any
value. Such value is only to the individual for whom it was prescribed
and supplied. Thus, the ophthalmic materials themselves are without
value as an item of trade and should be treated accordingly, in much
the same manner as a dental bridge or set of dentures prescribed and
fitted by a dentist. Optometry is concerned with regulations of this
type only to the extent that advertising and display of ophthalmic ma-
terials are a part of the larger scheme of unscrupulous trade practices
permitted under the present District of Columbia Optometry Act.
EMPLOYMENT OF ASSISTANTS OR TEcHNICIANS
Employment and utilization of assistants or technicians in the offices
of health professionals was discussed at length in previous hearings
on a bill identical to 1-LR. 2388. Opponents held that provisions of
this bill would interfere with the right of medical and osteopathic
physicians, dentists, and others to employ and direct the activities of
such employees. This argument is invalid because the bill specifically
exempts from coverage the medical and osteopathic physicians and
employees who are under their direct personal supervision and who
make no independent professional judgments.
OPTOMETRIC CENTER
V\Te are well aware of the need to avoid interference with operation
of public clinics providing professional vision care. The Optometric
Society of the District of Columbia was instrumental in establishing
the Optometric Center of Metropolitan Washington, which has been
in operation since August of 1964. The purpose of the Center is to
provide care to that segment of the population not served by the
Medicaid-type program. In addition to its patients referred by other
agencies and organizations~ the Optometric Center provides vision
care under two contracts with the District of Columbia Department
of Public Health. One contract is with the Bureau of Maternal and
Child Health, and the other is with the Bureau of Chronic Diseases
and Aging.
All work at the Optometric Center is performed by members of the
District Optometric Society who donate their time to do examina-
tions of the needy or medically indigent. To date, nearly 2,000 patients
have been cared for by the Optometric Center.
Policy and dirction of the Optometric Center rest with a Board of
Directors composed of distinguished citizens, laymen and profes-
sionals, who are concerned with the visual welfare of the city's
residents.
I mnention the Optometric Center to demonstrate not only optom-
etry's concern for the visual health of the city, but also that the gov-
ernment recognizes the profession of optometry as a health care dis-
ciphine necessary to the public good.
No provision of this bill would prohibit or interfere with operation
of public vision screening clinics, teaching clinics in schools of oph-
thalmology or optometry, educational programs conducted by pro-
fessional associations, or with the provision of vision care services by
private employers or health indemnity plans.
PAGENO="0028"
24
CONTACT LENSES
In earlier hearings, opponents of a new District of Columbia op-
tometry law expressed concern that this bill would prohibit opticians
from fitting contact lenses unless the physician or optometrist pre-
scribing the lenses maintained direct personal supervision when the
lenses were being fitted. This objection has been removed by action of
the D.C. Court of Appeals on July 25, 1967, when it found that no
optician working independently of direct personal supervision of an
optometrist, medical doctor or osteopathic physician may fit contact
lenses. The U.S. Court of Appeals later denied petitions for review
of this case, Norniart Fields v. the District of Uol'wimbia, 232 A. 2d
300. In its decision, the Court stated, and I quote in part, ~***we feel
that the actual fitting of contact lenses is the adaptation of lenses
within the meaning of our optometry statute." The Court further
stated: ~***Appellant~s contention that he would have referred the
patient back to the prescribing doctor does not excuse his practice of
optometry at the time of fitting." The American Optometric Associ-
ation believes this decision provides more than sufficient justification
for including a statutory prohibition against the fitting of contact
lenses by anyone other than a trained, qualified, and licensed optom-
etrist, doctor of medicine or doctor of osteopathy.
CONCLUSION
Mr. Chairman and members of the subcommittee, the situation with
regard to the commercial practice of optometry i.n the District of
Columbia is virtuafly unchanged today as compared with conditions
when efforts were made in the 89th and 90th Congresses to amend the
optometry laws of the District of Columbia. The need for corrective
action is pressing, and is becoming more so as population of the Dis-
trict increases and the need for vision care increases proportionately.
Conditions which prevail here today discourage young, well-trained
practitioners from considering Washington, D.C., as a possible loca-
tion for their professional practices. To merely maintain present num-
bers would require that new optometrists enter practice here each
year, to compensate for the normal attrition rate, due to death and
retirement. Enactment of a modern law regulating the practice of
optometry can go a long way toward encouraging contemporary
optometrists to establish their practices here.
The primary decision your subcommittee faces is whether optometry
in the District of Columbia is an independent coordinate health
profession which requires regulation in the interest of the public
health and welfare.
Mr. Chairman, we have faith that the intelligent judgment of this
Subcommittee will be that optometry IS an independent health profes-
sion along with medicine, osteopathy, dentistry and podiatry; that
the practice of optometry DOES affect the public health; and that
residents of and visitors to the District of Columbia DO deserve the
same kind of health protection which is available to citizens in all 50
States and Puerto Rico.
PAGENO="0029"
25
The American Optometric Association urges that you act favorably
upon this bill, H.R' 2388~ making only minor amendments where you
feel it necessary in order to clarify its intent, which is to upgrade the
practice of optometry in the District 0± Columbia. If you have any
questions, I would be happy to attempt to answer them. Thank you
for this opportunity to appear on behalf of the American Optometric
Association.
(The exhibit referred to follows:)
PROFESSIONALS. .. PLUS
Bulletin Number Four * April/May, 1968
THE COMPANION PAIR-WHAT Is IT? WHY Is IT? WHO NEEDS IT? WHO
BENEFITS?
"The Companion Pair benefits the patient visually as well economically."
THE COMPANION PAIR-WHAT IS IT? WHY IS IT?
What is a Companion Pair? The question may seem simple. If so, it's decep-
tively simple. So don't be quick to rush to an answer. The concept has been
discussed and advocated in professional journals and by industry organizations
for years.
More Than Just Sunglasses
The concept of the Companion Pair ranges far beyond the narrow limitation
of simply recommending prescription sunglasses in addition to a pair of clear
lenses. Sunglasses are only a part of the concept-and, really, pertain more to
its application than to the concept itself.
The Companion Pair Concept
The concept of the Companion Pair has never been adequately understood by
the American public-probably `because it has never been adequately explained.
But it is a lively issue-a vital issue to the patient's welfare. Our purpose here is
to simplify the concept-to help you help your patients to understand it better.
It is one of the greatest opportunities you have to provide better patient service!
It is one of the greatest opportunities you have to contribute materially to
the constructive growth of the optical industry!
It is one of the greatest opportunities you have to enhance your own profes-
sional growth and performance!
Serving The Patient's Total Needs
The concept of the Companion Pair is closely linked to your professional desire
to serve your patient's `best interest. When you apply the concept-when you rec-
os~mend a Companion Pair to every patient based on the patient's special needs-
you're fulfilling your obligation to your patient in a totally professional and
ethical way-in a way that benefits the pa'tient visually as well as economically.
Patients are entitled to know how many pairs of glasses they should have to
provide complete comfort and convenience-to satisfy their own, special visual
needs. And, after all, visual needs must be satisfied in different ways for different
people-and even in different ways for the same patient-every waking minute
of the day!
Your Patient Looks to You
You are the professional to whom your patient looks for knowledge. Every
patient who sits before you-whether you're an optometrist or an optician-
thinks you can satisfy his visual needs better than anyone else in town. If he
didn't, he wouldn't be sitting in front of you in the first place!
Recommending a Companion Pair to meet your patient's special needs is not
a promotional gimmick. It's not a way of hustling a few more dollars out of a
patient. It is a demonstration of your professional interest in your patient's
welfare!
PAGENO="0030"
26
"Recommending a Companion Pair is a demonstration of your professional
interest in your patient's welfare !"
THE COMPANION PAIR-WHO NEEDS IT?
There is no such thing as all-purpose eyeglasses!
This may sound almost like a slogan. But as a vision specialist, you know it's
true. And most patients agree-once they know the facts-that one pair of
glasses cannot take care of all vision requirements. Virtually every patient needs
and benefits from the ownership of a Companion Pair.
Take the Time To Know Your Patient
Your time and advice are your stock-in-trade. Your patient wants you to spend
time with him-to thoroughly explore his visual needs. And you serve your pa-
tient best by knowledgeably advising him how to satisfy those needs.
Ask the Right Question .
Your patients want the comfort, convenience and security of a Companion
Pair. They need it. And they can be made to understand this need when you pre-
sent it on the basis of satisfying their own, special visual requirements. But
which Companion Pair? For which patient?
The answers to these questions lie with the patient himself:
What kind of work does he do? Does he do close mechanical work? Does
he read a lot at work? Does he do overhead work? Does his work require
distance vision?
Does he read at home? In a chair or in bed? Does he watch TV a great
deal?
Is he the outdoor type? Does be have a special hobby? Does his hobby
require physical activity or close, concentrated vision?
Is he a student? Does he need case hardened lenses? Is he careless with
his glasses?
Will prescription sunglasses satisfy his need for a second pair and meet
an emergency in case be breaks his original pair? Or will another Rx better
serve him?
To Give the Right Answer$
Once you've explored your patient's needs, your professional ability to apply the
concept of the Companion Pair comes into sharp focus. Here are some examples
of how a professional might perform with specific patients:
PATIENT:
A retired man with a bifocal Rw-Yoii've learned that he watches a lot of
television and be and his wife also take Sunday drives to visit their grand-
children.
YOU RECOMMEND:
A pair of TV glasses to be kept near the set and a pair of driving glasses
(or sunglasses) for the glove compartment of the car.
PAPIENT:
A young honsewife with an Re' for driving glasses- You've learned that
she's active in several clubs, that her husband is a rising young executive
and they entertain a good deal.
YOU RECOMMEND:
A pair of dress glasses so she can leave the driving glasses in the car.
PATIENT:
A middle-aged man with an Re' for reading glasses- You've learned that
he's an enthusiastic golfer and that his office job requires a lot of night work
at home.
YOU RECOMMEND:
A pair of glasses that be can keep in his golf bag for keeping score and
another pair for his desk at home.
PATIENT:
A 16-year old Mgli school boy with a reading Hr-You know he has home-
work and you know he must read in school. But you've also learned that he
has a part-time job as an order clerk at a wholesale hardware company.
PAGENO="0031"
27
YOU RECOMMEND:
A Companion Pair that he can keep in his school locker and another pair to
be kept in his desk at work. And, because he's an active youngster, you
recommend case hardened lenses and the Service Warranty.
You're The Professional. .. And Your Patient Knows It
Questions and examples like these are simply guidelines. Specific questions
will suggest themselves in specific patient interviews. And your recommendations
will come from your professional ability to apply what you've learned about a
particular patient's needs. But once you've taken the time to learn about your
patient, you'll have accomplished many things:
You will have established close personal relationship with your patient.
Your patient will understand and respect your professional ability.
Your patient will be acutely aware that you have his best interest at heart.
Your patient will be grateful for the time you have taken to help him.
You will genuinely understand your patient's particular vision needs.
You will be in position to give your patient a detailed knowledgeable expla-
nation of his visual problems.
You will be in a position to help your patient solve his visual problems.
You will have established control of the ~`ltting situation . . . the essential
characteristic of professional performance!
You're Not Selling.. . You're Recommending
Once you establish control of the fitting situation, your patient will listen to
your recommendation without feeling that you're trying to sell him something he
neither wants nor needs. He'll know his need for a Companion Pair. He'll know
the advantages of a Companion Pair. He'll know that you've gone beyond merely
satisfying his immediate need . . . that your concern is to serve his total visual
requirements and assure his complete satisfaction.
Den't Second-Guess The Patient
When you've provided your patient with all the facts. . . when you've made
your recommendation and explained its advantages to him . . . let the patient
decide whether he wants to follow your advice and whether he can afford a Coin-
panion Pair.
You should not second-guess the patient. You should not decide in advance that
the patient doesn't want a Companion Pair... or that he can't afford it. Instead,
you should recommend a course of action in the patient's best interests. And
whether he follows it or not, the patient appreciates what you are trying to do for
him!
THE COMPANION PAIR-WHO BENEFITS?
Your patient benefits most when you recommend the Companion Pair. He has
the comfort of owning eyeglasses that exactly meet all of his vision needs-
tailored to his specific, personal requirements. He has the convenience of having
glasses when he needs them-where he needs them. He has the security of
knowing that he has a spare pair in case of breakage or loss.
Economy, Too
You already know the economy of a Companion Pair purchase-specially
low priced Companion Pair frames and the attractive 20% savings. And-
because you know that one pair of glasses will not properly serve your patient's
total vision needs-your recommendation of the Companion Pair will actually
save money for your patient-and will save him the time and trouble of a return
visit for a second pair in the future.
Company Benefits
Obviously, the company benefits when you recommend the Companion Pair.
It's easier and more profitable for us to process an Rx for a Companion Pair
than to fill a single, or two separate, prescriptions. But much of this economy
is passed on to your patient in lower priced frames and in the 20% Companion
Pair savings-and a share of our increased profit is returned to you in the extra
compensation you receive for a Companion Pair purchase.
Greater Recognition For You
You are already receiving recognition for your professional performance-jn
the form of bonus points-for your patient's purchases of Coated Lenses and
the Comprehensive Service Warranty.
PAGENO="0032"
28
From March 24 through May 25, 1908 . . . you will also receive bonus points
for your patient's purchases of Companion Pairs. During this period, you'll
receive 35 Professionals . . Plus points for each Companion Pair purchased by
your patients-in addition to the $1.00 cash bonus you're already receiving.
With a patient's purchase of a Companion Pair including Coated Lenses and
Service Warranties for each pair, you can earn 175 Professionals... Plus points:
70 points for two Service Warranties
70 points for two Coated Lens pairs
35 points for the Companion Pair
And, until April 2'rth under the Double Bonus Points program, you'll earn 315
points for a similar patient purchase:
140 points for two Service Warranties
140 points for two Coated Lens pairs
35 points for the Companion Pair
These incentives have been designed to help you keep your patient's needs
antI best interests foremost in your mind. Products chosen for bonus points
have been specifically selected for just that reason. You aren't being rewarded
for "selling" your patients anything. Yon are being recognized and rewarded
for ecoceptional performance and achievement as one of many Professionals
Plus!
Mr. FUQUA. Thank you very much, Dr. McCrary, for your very
excellent statement. I think that point by point you explained very
clearly the need for the passage of this bill.
Your statement answered a lot of questions and raised some
questions.
Mr. Dowdy, do you have any questions?
Mr. DoWDY. Not right now, thank you, Mr. Chairman.
Mr. FrTQTTA. Mr. Gude.
Mr. GurE. Yes. There are several things I would like to inquire
about.
I made, first off, an observatiOn. I believe you reproduced this
article by William Raspberry, concerning the jewelry company and
their practices?
Dr. McCn~&Rr. Yes, sir.
(The article referred to and an editorial thereon follow:)
[Reprint from the Washington Post, December 23, 19681
Potomac Watch
JEWELRY FIRM CITED BY FTC AS UNFAIR
(By William Raspberry)
The newspaper and radio ads promised "discount eye glasses" for "$7.50
complete."
A 50-year-old $60-a-week elevator operator saw the ad and stopped in at the
New York Jewelry Co., 719 7th st. 11W., according to a Federal Trade Commission
document released last week.
Before he left be had been given a "free" eye examination and had signed for
three pairs of eyeglasses-one for television, one for reading and a pair of
bifocals. They cost him $59.50 each, payable in an unspecified number of install-
ments at unspecified intervals and in unspecified amounts.
"Two months later, while he bad an outstanding balance of $213.30," the
FTC reported, "he was sold a Bulova watch by respondent for $295, a cigarette
lighter for $24.95 and a heater for $22.50, plus $63.54 carrying charges, with no
down payment.
"His outstanding balance then totaled $629, or 20 per cent of his annual wages.
Three months later he was financially in distress and pawned the watch for $10."
THIS IS ONE of ten customer profiles produced by the FTC to support its
order to New York Jewelry to stop using what it called unfair and deceptive
selling practices.
FTC investigators drew up the original complaint against the company. This
was heard before an FTC hearing examiner. At that hearing representatives of
PAGENO="0033"
29
Leon A. Tashof, head of the company, denied he had engaged in unfair prac-
tices. The examiner recommended the complaint be dismissed, but the Com-
mission overruled him in issuing the order. Tashof was unavailable for comment
yesterday.
The FTC presented evidence that the company had engaged in bait-and-switch
advertising, had misrepresented its eyeglass prices as "discount" and had failed
to disclose finance charges (or even cash prices in some instances).
The FTC said that in addition to widespread advertising, New York Jewelry
stationed an employe at the sidewalk in front of the store to attract prospective
customers by telling them they can get a free gift inside.
ONE 10-YEAR-OLD woman said she went in for her free gift, which turned
out to be a pack of needles, and, seeing a sign offering free eye examinations,
decided to have her eyes checked.
She said she was told she needed glasses hut said she didn't want any. A sales-
man convinced her, however, and she contracted for a pair at $70.15 as well as
a $150 wedding set. She tried to return the glasses but was not permitted to 4o
so until she enlisted the assistance of a Neighborhood Legal Services Project
lawyer.
The company contended that the reason there was no record of any eyeglasses
being sold for the advertised price of $7.50 was that it paid an optometrist $5
for each examination, which cost was passed on to the customer.
But according to the FTC, no records were found of any eyeglass sales even
for $12.50. The company stipulated that "fewer than ten pairs of eyeglasses were
sold at $7.50."
On the other hand, the FTC found that 17 per cent of the eyeglass sales were
at $79.50 ond 72 per cent at prices in excess of $39.
THUS NOT ONLY did respondent itself admit that over 99 per cent of its
1400 eyeglass sales were made at prices in excess of $7.50 . . . (but) failed to
demonstrate that a single $7.50 sale was made at any time regardless of any
extra charge for an eye examination," the FT:C said.
Nor were eyeglasses the only problem. The FTC said a company invoice showed
that New York Jewelry had paid anywhere from $17.95 to $27.95 each for several
Bulova watches which it sold for prices ranging from $125 to $149.50.
"The trade area prices for these same items ranged from $36 to $60, or a
markup of about 100 percent, the FTC said.
The FTC also told of toasters and cookware bought for $4.99 to $7.99 and sold,
according to invoices, for prices ranging from $24.75 to $79.50.
In addition, the FTC referred to a "hodgepodge of interest rates" charged by
New York Jewelry. In general, the interest rates were described by the company
as 1½ per cent a month; in fact, finance charges ranged as high as 142 per cent
when computed as simple annual interest, the FTC said, noting that at least
three type,s of contract forms were used by the company.
"IT IS NO wonder that the general manager of New York Jewelry for 25
years was unable to explain on the witness stand what procedure for imposing
finance charges had been followed by respondent at various periods of time," the
FTC said.
The agency also raised some questions concerning the company's "easy credit,"
noting that of 5000 accounts in 1966, collection suits had been filed in 700 of
them. That is, 14 per cent of the customers were sued.
[Reprint of Editorial from the Washington Post, December 23, 1968]
THE Poon Do PAY i\IollE
The shocking findings of the Federal Trade Commission against the New York
Jewelry Co., charging the firm with using false advertising and deceptive selling
tactics, focuses on a problem that has been plaguing poor families-black and
white-for years. The poor do pay more for ordinary things than families in
middle income brackets normally pay.
The Commission found evidence that New York Jewelry unlawfully used bait
and switch tactics, falsely advertised "discounts" and "bargains," deceived its
credit customers by not adequately informing them of all credit and financing
charges and dealt unfairly with its customers by using rigid collection policies.
The FTC citation revolves around an advertised offer of a "free" eye examina-
tion and a pair of glasses for $7.50-a real bargain if it turned out to be true.
29-4179--69---3
PAGENO="0034"
30
However, a $60-a-week elevator operator, who was attracted by the offer, ended
up paying $59.50 apiece for three pairs of glasses-One for television, one for
reading and a pair of bifocals-all of which the firm convinced the man he
needed.
*The Commission found that New York Jewelry Co. prices for eyeglasses were
not lower but were on the average 202 per cent of trade area prices. The FTC
opinion said in part: "We conclude that respondent's (the firm's) consistent
and emphatic advertising of its eyeglass prices as `bargain' and `discount' was
false, misleading and deceptive
The differences in the actual prices are shocking enough. But where the poor
really suffer because of their chronic inability to obtain credit is in paying high
interest and service charges. The Commission also cited the fact that New York
Jewelry Co. charged a half of one per cent interest and finance and/or service
charges of 3 per cent a month. This could amount to a simple interest rate of 42
per cent a year.
The argument used by merchants who trade with low income persons to justify
such high interest charges is that the costs of doing business with the poor is
high. The money lost because merchandise is not paid for and has to be repos-
sessed and the time that personnel have to spend on collection of delinquent
accounts all contribute to the high cost of doing business. And that is true to a
certain degree.
But it could be that the deception used by such finns both in luring the cus-
tpmer into buying the goods and then for the customer to discover the high in-
terest charges might contribute to a dismay and even anger which is expressed
by not paying.
The need is for really fair advertising and business practices. The D.C. City
Council has before it regulations that will be a step in requiring these practices.
A set of proposed regulations, to w-hich the Council has given preliminary ap-
proval, require a retailer to tell the customer what charges, in addition to the
selling price, will be assessed. The aim of the proposal is not to whittle away
profits or to make business more difficult, but to make it easier and in the long
run more profitable to customers and businessmen alike. The Council meets
again Jan. 7 to vote on the regulations. The hope here is they will be approved.
Mr. GtmE. My observation would be that certainly it would appear
that this firm and firms like it resort to the very despicable practice
of using eye care as the bait to snare people who are unsophisticated;
but really, the basic problem in this whole article is the question of
interest rates. They talk about this poor fellow who ended up paying
142% interest rates on various purchases he made in glasses, and ac-
tually the passage of this legislation would not really get at that par-
ticular basic problem of charging unfair service charges and interest
rates by various firms.
Dr. MCCRARY. No, sir; I do not believe it would.
Mr. GUDE. Thank you very much. I can certainly see the need to
stop this baiting, and I certainly think you have done a service in
bringing this to our attention.
Evn ExA~IINA'rIoNs
With regard to where you mention, that the practice of optometry
means "the employment of any objective or subjective means for
examination of the human eye, including its appendages," does this
mean that a nurse or an assistant can make examinations without
being under the direction of optometrists; that a nurse in a school can
examine children's eyesight in class? Would she have to be a licensed
optometrist or be under the direction of an optometrist to carry out
examinations under the terms of this bill?
Dr. MCCRARY. No, sir, that is not my understanding. The nurses
and the employees of the District of Golumbia, of course, do not pur-
PAGENO="0035"
31
port to do eye ernaninations. To protect the public health there are
screening systems of various types set up in order to detect problems,
~uch as chest X-rays, and so forth, and there is within the school system
a screening prognim to determine the presence of visual problems. The
screening procedures are performed by Public Health personnel to
determine those individuals who are in need of vision care.
There is a section in the bill which specifically prohibits any appli-
cability to employees in the District of Columbia.
Mr. GUDE. Thank you. What is meant by "the employment of any
objective or subjective means to examination of the human eye, includ-
ing its appendages"?
What do you mean by "appendages?"
Dr. MCCRARY. "Appendages" customarily has meant the exterior
anatomical features around the eye, which include the eyelid, the con-
junctiva, even the eyebrows, in terms of a search for any signs or
symptoms of any diseased condition or any injury condition. The
appendages normally and customarily are those that are immediately
contiguous to the eyeball itself.
Mr. GuDE. Thank you very much.
Thank you, Mr. Chairman.
Mr. FUQUA. Mr. Jacobs.
Mr. JACOBS. Do you have a copy of the bill that is before us, Doctor?
Dr. MCCRARY. Yes, sir, I do.
Mr. JACOBS. It is H.R. 2388, do you have a copy of that in front of
you?
Dr. MCCRA.RY. Yes, sir.
RENEWAL OF LICENSES
Mr. JACOBS. I wondered if you would turn to page 6. Beginning on
line 6, there are provisions in the bill about failure to renew licenses
under this proposed Act. I am somewhat puzzled by the sentence which
begins on line 11, "If such individual thereafter applies for reinstate-
ment * * * ~ do you see that sentence?
Dr. MCCRARY.YeS, sir, I see that.
Mr. JACOBS. Can you tell me what that means? It seems as though
he has already been reinstated, and then if he thereafter applies for
reinstatement, does that presume some subsequent lapse in his license?
Dr. MOCRARY. Well, my understanding of it, Congressman Jacobs,
is that this is really sort of an administrative function of the Board,
that there are annual renewal fees for renewing the license each year.
And if the optometrist does not pay it, there is a cut-off point beyond
which some administrative action is taken. This would be in this pro-
vision, the suspension of his license. Thereafter, when lie applies for
reinstatement of his license, it will automatically be reinstated upon
payment of all renewal fees.
Mr. JACOBS. That is fine. but the phrase that precedes the sentence on
line 11, to which I am referring, says "until such license shall be rein-
stated or a new license issued to him under this Act."
Then, it says, "If such individual thereafter applies for reinstate-
ment. of his license." Why would he apply for reinstatement of his
license, after a new license had been issued to him or after he had been
reinstated under the Act?
PAGENO="0036"
32
Dr. MoCn~RY. I can certainly appreciate the point that you are
making, Congressman, that is a little unclear.
Let me say this about the bill in general. This is not intended to be
a perfect document. Our intent is to propose a bill which will better
regulate the practice of the profession in the District of Columbia.
Mr. JACOBS. If it is just a matter of draftsmanship, I am sure it
could be ironed out. I wondered if there was some artful meaning in
that language. To the layman, it would seem rather puzzling.
Dr. McCRARr. To my knowledge, there is not.
Mr. JACOBS. Fine.
Then the other similar provision I wanted to ask you about i~
on page 8 of the bill, paragraph 14. That is on line 18.
Dr. MOORARY. Yes, sir, I am with you.
Mr. JACOBS. I have read that over two or three times, and I
quite decipher it.
Mr. FUQUA. What page?
Mr. JACOBS. Mr. Chairman, that is page 8, line 118, paragrap
is about a three-and-a-half line paragraph.
Could you examine that and interpret it for me?
Dr. McCnARY. I believe this comes under section 7, which re~
the Commissioners are authorized to refuse to renew, or reinst
license authorized by this Act, and to suspend or revoke any
issued under authority of this Act, for any of the following
And it lists the series of causes.
(14) says "to cause or permit the use of his name, profession
fessional title or in conjunction with the advertising of his
sional services in any form or manner by any person."
Mr. JACOBS. I find that language quite pwizling. It is sort
the question "Which would you rather do, or go fishing." Do
find that?
Dr. MCCRAnY. Well, I think that certainly could be clarified. I
tainly agree with that.
The intent of that, as I would see it, is that the practitioner
use his own name and no one else can use his name in his prac:
could not permit the use of his name in conjunction with adv
of his professional services and so forth.
Mr. JACOBS. Right. I think for the record, I would like to st
that should be considered' in connection with paragraph (8), o
number (8), on the preceding page 7, which also refers to adv(
Dr. MCCRARY. Yes, sir. It is apparent from an observation -
section (14), that the word "or" which appears in line 19, was
graphical error.
Mr. JACOBS. Right. It really throws you off.
Dr. MOORARY. The second "or" on line 19 should be stricken.
Mr. JACOBS. Very well.
I just have one additional inquiry, and that again is on the
causes for denial of a license or revocation or suspension. That
number (7), on page 7.
Is that a broad provision in your judgment?
Dr. MCCRARY. I believe what that subsection tries to say-
ineptly-is mental incompetence. I do not believe there is a spe
PAGENO="0037"
33
Mr. JACOBS. I think really the item should deal with greater speci-
ficity with the evil to be prohibited. Otherwise, I think it would be
rather broad.
Mr. FUQUA. This could mean mental or narcotics or other reasons
which would disqualify him.
Dr. MOCRARY. It could be, but I agree with you, Congressman, it
would probably be a little more desirable to narrow our sights a little
more on that particular item.
Mr. JACOBS. Would you distinguish subsection number (7) from
subsection (19), the final one in the series, or perhaps either one w-ould
be superfluous, namely, subsection (7).
Dr. MOCRARY. Well, it seems to me that subsection (19) refers to
unprofessional conduct as defined by the Commissioners, and regula-
tions which are issued personally to this Act.
Mr. JACOBS. Would that not about cover the waterfront, as far as
subsection (7) is concerned?
Dr. MOCRARY. I think it probably does. I do not know whether
mental incompetence is unprofessional conduct or not. I suppose it
could be. But I do not know that it necessarily is.
Mr. JACOBS. No, I do not know `that it would be, actually. I think
if you want to deal with such disability, it would be far better to be
specific about it. I just think that subsection (7) is so broad as possibly
to render the Act not only unconstitutional in terms of a delegation
of legislative power, but perhaps even unconstitutional for the legis-
lation it is to enact in terms of controlling conduct.
Dr. MCCRARY. I see. Our intention there is `to regulate those condi-
tions which the optometrist may or may not be aware of, which would
constitute a danger to the public health; whereas (19), unprofessional
conduct, refers primarily to his mode of practice. It seems to me they
are two separate things.
But I agree with you that subsection (7) could stand some
clarification.
Mr. JACOBS. Right.
Dr. MOCRARY. And, any suggestions you would make to help do
that would be certainly most welcome.
Mr. JACOBS. I do not mean to nit-pick, but the fact is when you
draft legislation, what happens to people is not what you meant, but
what you say. So you ought to be very careful.
Dr. MCCRARY. Yes, sir.
Mr. DowDy. Are you saying that subsection (7) dealt with mental
competency? Is that what you intended to tell us?
Dr. MCCRARY. That is what I read into it.
Mr. DOWDY. Well then, if that be true, you have (4), (5) and (G),
which are gross incompetence; chronic or persistent inebriety, or the
habitual use of narcotics; affliction with a contagious-you could say
affliction with mental, contagious or infectious disease, and eliminate
(7), and take care of that problem.
Dr. MCCRARY. Yes, sir.
Mr. JACOBS. That is, unless there is some other dangerous conduct
that does not relate to unprofessional conduct.
Dr. M0CRARY. I am not aware of any. I certainly agree with your
suggestion that it could be taken care of in that manner. That might
very well be the best way of handling that situation.
PAGENO="0038"
34
Mr. FtJQUA. You have (3) and (19) that are very similar also. They
could be incorporated into one.
Mr. JACOBS. I suppose, Mr. Chairman, subsection (19) would be
useful in dealing with a clearly unprofessional act that would not
happen to be specifically enumerated in the legislation.
Mr. FUQUA. Mr. Kyros.
Mr. Kynos. Thank you, Mr. Chairman.
LAWS IN OTHER JmnSDICTI0N5
Dr. McCrary, on page 3 of your prepared statement, you say, in
the first full paragraph, second line, "Provisions of the bill present no
new or unusual regulations or conditions. Every section and every
paragraph is comparable if not identical to a section or paragraph
in one or more optometry laws in effect elsewhere in the United States
today."
Then you say that compared with some State laws, this particular
bill, H.IR. 2388, is less stringent.
What further information do you have besides your statement that
this is not a revolutionary bill in terms of optometry laws that now
obtain throughout the country?
Dr. MCCRARY. I had some thoughts on this subject which I consider
quite important.
If we take a close look at this bill and compare it to other State
laws governing the practice of optometry, we see H.R. 2388 is not an
attempt to write the strongest optometry law in the country. On the
contrary, if this bill were passed it would be less stringent than some
and more stringent, perhaps than others.
A few examples might illustrate the situation. Section 2 of H.R.
2388 states "optometry is to be practiced as a profession." This termi-
nology can be compared with such States as Florida, Virginia., New
Jersey, Montana, and South Dakota, where optometry is declared to
be a profession.
Many States go even further in their definition by referring to op-
tometry as `a learned profession. This has been done in such States as
Arkansas, Colorado, Georgia, and Kentucky.
Many other States refer to the practice of optometry "as a profes-
sion," the same terminology used in the bill under consideration today.
The point is that the present D.C. law does not even make reference to
optometry as a profession in any form.
Moving on now to another much-discussed section of the `bill, section
3(2) (h), at the top of page 2, where the phrase "the identification of
any departure from the normal condition or function of the human
eye" is found, no less than 12 States, including Alaska, Delaware,
Florida, Georgia, Indiana, Massachusetts, Minnesota, Montana,
Nevada, New Hampshire, and New York, use the word "diagnosis"
when referring to the optometrist's `ability to detect the presence of
diseases.
In the interest `of committee time, I will try to be brief on this point,
but let me say the goals we seek through this bill are law in most
States. `Certain price advertising is prohibited `by statute or by State
Board rule in no less than 43 States. And the corporate practice of
optometry is likewise prohibited in at least 35 States of the Nation.
PAGENO="0039"
35
So if H.R. 2388 were to be enacted into law, it would simply make
the District of Coiurrthia Optometry Act at least equivalent to the ma-
j ority of similar acts among the several States.
Let me say this bill is certainly no attempt to write any model law.
We have heard this charge before. It is intended solely for the purpose
of creating a proper environment and an ethical framework for the
delivery of professional optometric eye care services in the District of
Columbia.
We hope that it will be a good bill, but it certainly will not be a
model bill and it certainly will not begin to be the strongest optometry
statute in the Nation, even if it were adopted in toto as written.
Mr. FITQUA. Thank you, Dr. McCrary.
Dr. McCn~RY. Thank you, Mr. Chairman.
Mr. FUQUA. Mr. Dowdy, any questions?
Mr. DOWDY. No.
ADVERTISING
Mr. FUQUA. Dr. McCrary, you mentioned advertising and particu-
larly price advertising. How does this affect the optician who has a
shop and is attempting in some means to acquaint the piThlic with the
product that he has for sale.
Dr. MOGRARY. Well, in our judgment, it will have a very minimal
effect on the optician.
Mr. FUQUA. It primarily applies to the optometrist; is this true?
Dr. MCORARY. That is my understanding.
Mr. FUQ1JA. And not to the optician?
Dr. McC~nY. I believe the prohibition against advertising applies
to the advertising of any ophthalmic material in terms of price.
Mr. FUQUA. Of price?
Dr. MCCRARY. Yes, sir, by anyone. That prohibition would include
opticians in terms of price advertising.
TECHNICIANS
Mr. FUQUA. Now, the concern has been expressed by the medical
profession that this would prohibit technicians from assisting in the
care of eyes and so forth. Is the medical profession covered under the
propoal as contained in H.R. 2388?
Dr. MCCRARY. No, sir. There is an exemption in section 9(b) for the
medical profession. That is found on page 13.
This Act shall not be deemed to require a physician or surgeon licensed under
the laws of the District of Cfiumbia 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.
Mr. FvQUA. So they are not even included?
Dr. MCCRARY. No, sir, and it certainly is not the intention of the
proponents of this legislation to interfere in any way, shape, or form
with the practice of medicine or with the practice of osteopathy.
Mr. FvQUA. Are you trying to get under the door where you can
prescribe medicines and diagnose organic illnesses of the eye?
Dr. McGn~RY. No, sir. Optometry bears a responsibility to search
for signs of disease with every patient. But any time any departure
I torn normal is found, that patient is referred to other health care
PAGENO="0040"
36
practitioners. There is no attempt made to diagnose or engage in dif-
ferential diagnosis of any kind.
Mr. FTJQUA. Nor to prescribe drugs?
Dr. MCCRARY. No, sir. The prescription of drugs is specifically pro-
hibited in this Act, in section 9(f).
Mr. FUQUA. Unless anyone else has any questions, we thank you
very much, Dr. McCrary, for a very excellent statement.
Dr. MCCRARY. Thank you very much, Mr. Chairman.
Mr. FUQUA. I believe also, for the record, you were speaking for the
Optometric Society of the District of Columbia?
Dr. McCI~&RY. Yes, sir. -
(Subsequently, the following letter from Dr. Zacha.ry Ephra~m.
President, The Optometric Society of the District of Columbia, was
submitted for the record:)
THE OPTOMETRIC SOCIETY OF THE DIsTIUCT OF COLUMBIA,
Washington, D.C., May 5, 1969.
Hon. DoN FUQUA,
Chairman, ~ubeommittee No. 4, District of Colupibia Committee, T].$. House of
Representatives, Washington, D.C.
DEAR MR. FUQuA: This is to advise you that the Optometric Society of the
District of Columbia, an organization representing over two-thirds of the optome-
trists licensed in the District, supports and urges approval of HR. 2.388, the legis-
lation proposed to amend the D.C. Optometry Act.
The Society believes passage of this legislation would work effectively to
correct the existing dangers to the public health and the abusive commercial
practices which have plagued the vision care field for so long in the District
of Columbia.
The Optometric Society of the District of Columbia supports this bill and
urges that it be given faorable consideration by this subcommittee.
Cordially,
ZACHARY EPHRAIM, O.D.,
President.
Mr. FIJQUA. We will hear from Mr. Osby L. Weir, President of
the Metropolitan Washington Board of Trade.
Mr. Weir, we are happy to have you here this morning and are
pleased to hear from you.
STATEMENT OP OSBY L. WEIR, PRESIDENT, THE METROPOLITAN
WASHINGTON BOARD OP TRADE, AND GENERAL MANAGER,
SEARS, ROEBUCK & COMPANY
Mr. WHIR. Thank you.
Mr. Chairman and gentlemen:
I am Osby L. Weir, Gelleral Manager, Washington Area, Sears
Roebuck and Company, and President of the Metropolitan Washing-
ton Board of Trade. I appear here today on behalf of the Board of
Trade to express that organization's opposition to two particular as-
pects of H.R. 2388.
The stated purpose of this bill is to rewrite and update the Optom-
etry Law of the District of Colunibia. 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 on similar legislation the medical profession,
the Guild of Prescription Opticians of America, the Guild of Prescrip-
PAGENO="0041"
37
tion Opticians of Washington, D.C., the National Association of
Optometrists and Opticians, as well as the Metropolitan Washington
Board of Trade have opposed the proposed rewriting of the Opto-
metric Law on the ground that it deprives the public of freedom of
choice in the selection of optical aids, at considerable expense and no
corresponding benefit.
OPPOSITION TO TIlE BILL
The Metropolitan Washington Board of Trade directs its opposition
to two particular aspects of the bill, which appear to have no relation to
public health, and safety, but have simply the effect of creating an
economic advantage to some persons at the economic expense of others
and the public.. At the outset I should like to emphasize that no evi-
dence submitted in previous hearings supports any alleged benefit
to the health of the public, nor does any evidence support any allega-
tion that any economic detriment to consumers would be prevented
by enactment of t.he particular sections opposed.
The sections of the bill to which opposition is particularly directed
are Section 8(a) on the one hand, and Sections 7(a) (9), 7(a) (17) and
8(a)(2) asagroup.
READY-TO-WEAR GLASSES
Section 8(a)-The existing Optometric Law of the District of Co-
lumbia provides in Section 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 pra.ctice or profess to practice optometry.
IHI.R. 2388 not only eliminates this provision, but provides in Section
8(a):
It shall be unlawful for any person ~ with the exception of
nonprescription sunglasses or nonprescription protective eyewear, to
sell or offer to sell to t.he public eyeglasses, spectacles, or lenses to fit
or duplica.te lenses, without a written prescription from a licensed
physician or optometrist.
Section 9(d) (7) provides in relation to the quoted section that:
Nothing in this Act shall be deemed to prevent a person from
selling nonprescription sunglasses or nonprescription protective
eyewear.
The Board of Trade opposes Section 8(a) as proposed, because it
believes that Section 9(d) (7) does not provide sufficient exceptions to
its prohibitory scope. The Board proposes that the following words be
added to Section 9(d) (7) after the word "sunglasses":
"or nonprescription, magnifying, ready-to-wear glasses".
Section 9(d) (7) would then read as follows:
Nothing in this Act shall be deemed to prevent a person from
selling nonprescription sunglasses, or nonprescription, magnifying,
ready-to-wear glasses, or nonprescription protective eyewear.
PAGENO="0042"
38
ARGUMENT IN SUPPORT OF AMENDMENTS
The following points support the Board's position:
I.
THE PROPOSAL To ELIMINATE THE SALE OF READY-TO-WEAR READING
GLASSES Is DESIGNED BY ORGANIZED OPTOMETRY To ELIMINATE Co~r-
PETITION
It seems quite illogical that men who seek to insure for themselves
a "Professional" 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 public was deceived, or (3) that the
public could obtain better or equal services from them at lesser cost.
In none of these instances can they maintain their position. In
fact, the contrary 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.' " But they do aid in
reading by simple magnification.
II.
READY-TO-WEAR MAGNIFYING SPEOTACLES 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 farsighted-
ness. It is a pair of magnifying glasses for reading and close work.
These magnifying 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.
III.
THESE GLASSES A~ SAFE To WEAR
Many millions of pairs of these glasses have been produced, distri-
buted 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. Resolu-
tions by the Medical Society of New Jersey and the New Jersey
Academy of Ophthalmology and Otolaryngology have disapproved
of the enactment of legislation which would have outlawed the sale
PAGENO="0043"
39
of these ready-to-wear glasses as H.R. 2388 proposes to do. (These
resolutions were made a part of the record in hearings on H.R. 12276,
90th Congress, August, 1967).
As the bill is now drawn, it could reasonably be construed as pro-
hibiting the sale other than by optometrists of such aids to the human
eye as microscopes, telescopes, and the ordinary hand magnifying
glass. If this construction is not intended, with its absurd result, then
it follows that the bill does not prohibit or restrict the sale of the
ordinary hand magnifying glass.
If ordinary hand magnifying glasses are not subjected to the iegu-
latory scope of the bill, the same persons who would perhaps purchase
magnifying eyeglasses will be able to use hand lenses, nevertheless.
Nothing more is required to demonstrate. the economic purposes of
the legislation than the illogic of permitting unregulated purchase
of hand magnifiers, while restricting the purchase of the more con-
venient magnifying eyeglasses except from an optometrist. Thus, the
effect of the bill in this respect is merely to require persons who wish
the convenience of nmgnifying eyeglasses to pay double or triple
their actual worth for this convenience, as opposed to the equally
harmless but less convenient hand magnifying glass.
IV.
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 reqiured to participate
in the sale, but to be available if guidance is needed.
Attached hereto as Exhibit A is a statement prepared in 1967 by
the Counsel of the Metropolitan Washington Board of Trade showing
the State statutory authorizations to sell ready-to-wear reading
spectacles. The state of the. law is substantially the same today as it
was in 1967.
These glasses are and for many years have been freely sold in Mary-
land, 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 reacTing glasses would merely
force residents of the District of Columbia to go into the two adjoining
states to purchase their ready-to-wea.r reading glasses.
Sale of these ready-to-wear glasses is likewise approved by the
Federal Trade Commission.
The Board urges the Committee to include the amendment which
would allow sales of nonprescription, magnifying, ready-to-wear eye-
glasses in the District of Columbia.
CORPORATE PRACTICE
Sections 7(a) (9), 7(a) (17) and 8(a) (2)-The Board also opposes
Sections 7(a) (9), 7(a) (17) and 8(a) (2), the combined effect of which
is to prohibit a licensed optometrist from practicing under the name
PAGENO="0044"
40
of a company, association, corporation trade name, or business name,
or from practicing under the auspices of a retail, trade, or commercial
store. We propose that these sections be stricken from the bill. The
present licensing act does not prohibit a retail organization from
maintaining an optometrist on their premises to service customers.
Silver v. Lansburg, F. 2d 518 (1940). These provisions work against
the interests of optometrists as well as retail merchandising organiza-
tions, by establishing what is in effect a monopoly on the practice of
optometry for those who can afford to set up an independent practice.
These provisions are, in fact, just as unreasonable as would be legisla-
tion which prohibited licensed pharmacists from dispensing prescrip-
tions while employed by a drug store.
Further, the sections in question would if enacted prevent a licensed
optometrist from practicing in any form of business organization ex-
cept, possibly in a partnership. It is questionable whether a partner-
ship practice would be possible under this stringent language. Previous
hearings on similar legislation have resulted in no evidence other than
the merest speculation of any public benefit to be gained from the
imposition on optometrists of restrictions which may well be more
stringent than those imposed on any other profession by law or by
professional ethical standards.
The more modern trend among the States with regard to regulation
of the forms of business association in which professionals are per-
mitted to engage is to liberalize rather than further to restrict. Pro-
fessional associations and professional corporations are now permitted
in 36 jurisdictions. The same considerations which have led to this
liberalization with respect to doctors, lawyers, dentists, etc., militate
strongly against the sort of restrictions embodied in Sections 7(a) (9),
7(a) (17),and8(a) (2) of H.R.2388.
The Board of Trade urges that Sections 7(a) (9), 7(a) (17) and
8(a) (2) be deleted from the bill, as well as the amendment of Section
9(d) (17) to provide an additional exemption from its scope of non-
prescription. magnifying, ready-to-wear glasses.
I would also like to submit, along with my statement, another state-
ment which is an article which has been already distributed to the
clerk. It~ is an article called "Are Eyeglasses Inevitable?" written by
Dr. Andrew S. Markovitz, M.D.
Mr. Markovitz, born in California, 1929. received an M.D. degree
in 1953 from St. Louis TJniversity School of Medicine. He was licensed
in California in 1955, member of the American Medical Association,
was a registered general practitioner for 13 years in California. How-
ever, a year or more ago, was appointed resident physician in Ophthal-
mology, in Eye Clinic of the University of California, San Francisco,
California.
I thank the Committee for the opportunity to appear and express
the position of the Board of Trade on this proposed legislation.
(The document referred to follows:)
[Reprint from Meehanix Illustrated, February 1969]
ARE EYE GLASSES INEVITABLE?
(By Andrew S. Markovitz, M.D.)
The perfect eye sees sharply at infinity, which for purposes of testing is con-
sidered to be 20 ft. Likening the eye to a camera, the lens bernis the light rays
PAGENO="0045"
41
(refraction) and focuses the image on the retina or film at the back of the eye.
Obviously, when an object is at 5 ft., say, with the same amount of refraction
as at 20 ft., the image will fall behind the retina. The normal young eye corrects
this by contracting a muscle in the eye which rounds up or makes the uniquely
pliable lens more convex-achieving the same effect as would be obtained by
moving the camera lens forward from the film. This results in greater refraction
of the light rays and subsequent placement of the image squarely on the retina.
The process is called accommo&Ition.
Most people with appreciative refractive errors of youth-nearsightedness,
farsightedness, astigmatism-have corrective eyeglasses prescribed for them.
The real surprise is to the person with hitherto 20/20 vision who at age 45 finds
he no longer can read the newspaper comfortably. If his living depends on sharp
vision, he may get panicky. There's no real cause for alarm, however. It's just
that his lens is getting less elastic and his accommodative muscle is imable to
make the lens convex enough to place the image on the retina. So reading glasses
are prescribed to converge the light rays for him.
Although most processes of aging, such as gray hair, wrinkled skin and
arthritis, occur with great individual variation, there is one that is almost
calendar exact in its onset and progress and that is loss of visual accommodation.
The medical term for this debilitation is presbyopia, or, a rough translation of
the Latin, old eyes. And, because of it, the answer to the questions posed in our
title must be.. . yes, glasses are inevitable.
Aha, you may say. Uncle Max is 75 and never wore a pair of glasses in his life!
But Uncle Max seldom reads. He does have perfect distant vision not requiring
correction but you must be aware that he employs a magnifying glass on the
rare occasions when he does read print.
All right then, how about Aunt Gertie? She's close to 70 and reads the Bible
without glasses. Well, Aunt Gertrude is a special case. She is nearsighted and
wore glasses for years. She doesn't bother to wear them now because she spends
most of her time reading or crocheting-close work which her nearsightedness
allows her to do without glasses.
The person who was a little farsighted all his youth but never needed glasses
because he could accommodate to overcome the condition needs glasses for
reading years earlier than the person who grew up with normal or even near-
sighted eyes. Naturally, the laborer who carries a hod all day and watches TV
at night won't need reading glasses nearly as soon as an accountant.
Because presbyopia and eye diseases become more common with age, a good
checkup by an opthalmologist is indicated every two to four years after age 40.
But if you're the type who wouldn't be caught dead in a doctor's office, there's
no danger in dime-store glasses for simple correction. Pick out a pair that fit
comfortably and give you good reading vision plus a little range. No glasses, how-
ever bad, can injure the eye. The worst that can happen is some eyestrain,
which is reversible.
Nor are reading glasses likely to become a crutch. The wearing of them doesn't
in any way weaken the muscle responsible for accommodation. It does keep it
from constant (and often uncomfortable) spasms.
So, if weakening eyesight has you on the verge of panic, relax. You probably
can't do the 100-yd. dash in ten seconds anymore, either.
(Also, Exhibit A to Mr. Weir's statement follows:)
Exhibit A
STATE STATUTORY AUTHORIZATIONS TO SELL READY-TO-WEAR RIL&IING SPECTACLES
Alabama: Sec. 209. "Nothing in this chapter shall be construed to applying
to resident merchants who sell eye glasses or spectacles as merchandise in
permanently estabilshed places of business***"
Alaska: Sec. 4~ ~ "Nothing in this act shall be construed to apply to the
sale of * * * completely ready-made spectacles and eyes glasses sold as mer-
chandise only * * ~"
Arizona: Sec. 32.1721. "This chapter shall not * * * prohibit the sale of spec-
tacles and eye glasses as merchandise from a permanently established place of
business."
Arkansas: Sec. 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 i~ made to practice optometry."
PAGENO="0046"
42
California: Sec. 3043. "The provisions of this chapter do not prohibit the sale
of * * * complete ready to wear eyeglasses as merchandise by any person not
holding himself out as competent to examine, test or prescribe for the human
eye or its refractive errors."
Delaware: Chapter 1017 Sec. 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: Sec. 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."
Florida: Sec. 463.16. "Nothing in this chapter shall be construed to prevent
the sale of * * * ready-made nonprescription glasses."
* Georgia: Sec. 84-1108. "Nothing in this Chapter shall be construed * * * to
prevent any person or persons selling glasses as articles of merchandise * *
Idaho: Sec. 54-1515. "The following persons, firms and corporations are ex-
empt * * * 3. 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 * *
Illinois: Sec. 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: Sec. 154.2 (1) Similar to the Illinois Optometric Law.
Kentucky: Sec. 320.200, subdivision (3). "* * * nothing in this Act relating
to the practice of optometry shall be construed to limit or restrict, in any re-
spect, the sale of completely assembled eye glasses or spectacles designed and
used solely to magnify."
Louisiana: Sec. 1065. "The provisions of this Chapter shall not apply * * * to
retail dealers selling glasses as merchandise in their established places of
business."
Maryland: Sec. 384. Similar to the Illinois Optometric Law.
Michigan: Sec. 7 (e) "~ * * nor shall such provisions apply to prevent per-
sons selling spectacles or eyeglasses as an article of merchandise and not traf-
ficking or attempting to traffic upon assumed skill."
Missouri: Sec. 336.120. (3) Similar to the Illinois Optometric Law.
Nebraska: Sec. 71.1134. Similar to District of Columbia Optometric Law.
Nevada: Sec. 630.390 Subdivision (3) Similar to California Law.
New Hampshire: Sec. 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 perma-
nently located and established places of business."
New Mexico: Sec. 67-7-14. Similar to District of Columbia Law.
North Carolina: Sec. 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: Sec. 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 piano lenses
used for industrial eye protection, when sold as merchandise at any established
place of business and where the selection of the glasses is at the discretion of
the purchaser."
Ohio: Sec. 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: Sec. 604-Sec. 3. Similar to Ohio Optometric Law.
Oregon: Sec. 683.030. Similar to District of Columbia Law.
Pennsylvania: Sec. XII Similar to California Law.
South Carolina: Sec. 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
aidthe purchaser in the fitting thereof."
South Dakota: Laws of 1957. Similar to North Dakota Optometric Law.
Mississippi: Sec. 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
in their place of business at time of sale."
PAGENO="0047"
43
Tennessee: Sec. 63-816. Persons and practices exempt-Nothing in this chap-
ter shall be construed (3) To prevent a retail resident merchant, in a perma-
nently located place of business to sell ready-to-wear spectacles and eye-glasses
as merchandise, without advertising other than the price marking on same,
after they have been selected by the customer alone, w-ithout 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: Sec. 4565e "Selling as Merchandise-For the purpose of this Act the
words `Persons who sell spectacles and eye glasses as merchandise' as employed
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 the customer in
person from trays or other containers, containing such merchandise, and any
other method of sale or delivery shall be construed as practicing optometry."
Utah: Sec. 4 subdivision (c) Similar to Illinois Optometric Law.
Vermont: Sec. 6883. Similar to California Optometric Law.
Virginia: Article 1. Sec. 54-369. "~ ~` * nor shall 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: Sec. 18.53.040 Similar to District of Columbia Law.
West Virginia: Sec. 4 (d) Similar to District of Columbia Law.
Wisconsin: Sec. 15302 (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: Sec. 37.1802. Similar to California Optometric Law.
Mr. FIJQTJA. Thank you very much, Mr. Weir, for your very ex-
cellent statement.
Let me say that I think that it will be the attitude of the subcom-
mittee to clarify the point relating to the so-called "Granny" glasses,
the magnifying glasses. Even though I have questions about them,
I think that this can be clarified and this will be permitted.
Now, then, a second point. You are President of the Metropolitan
Washington Board of Trade and also General Manager of Sears?
I recognize the interest of Sears and the District in the so-called
corporate practice that you relate. Is this the position of the Board of
Trade, as well as Sears, or do you wear two hats?
Mr. WEIR. It is both, I can take my hat off and put it on.
Mr. FUQUA. Is this the position of both?
Mr. WEHI. Tile Board of Trade relates to other retailers who ob-
serve tile same practice, namely, department stores.
MARYLAND AND VIRGINIA PRACTICE
Mr. FUQUA. Is this permitted in Maryland and Virginia?
Mr. WEIR. it is permitted in Maryland and Virginia.
Mr. FUQUA. The corporate practice?
Mr. WEIR. Yes. Virginia permits the manufacturing of the lenses,
not the examinations.
Mr. FUQUA. Yes. You cannot hire an optometrist to work in one
of your retail outlets in Virginia?
Mr. WEIR. In Maryland, but not in Virginia.
Mr. FUQUA. Yes.
PAGENO="0048"
44
COLE NATIONAL
Does Sears have any relation with Cole National Corporation?
Mr. WEIR. Yes, they have a concession to operate our optometry
departments.
Mr. FUQUA. They are the people, as I recall, who give certain points
to the optometrist who sells the second pair of eyeglasses. Does your
optometrist, working for Sears, have a so-called bonus-the more he
sells, the more he makes?
Mr. WEIR. I am not aware of any such arrangement
Mr. FUQUA. Does Cole National provide this for them?
Mr. WEIR. They provide the service. They pay their people, and I
am not aware of their individual compensation arrangements.
Mr. FUQUA. But, this information that has been submitted to the
committee from Cole National that they do provide points for the
sale of the extra pair of eyeglasses. Are you aware of this?
Mr. WEIR. I am not aware of this.
Mr. FUQtTA. This could be going on in a Sears store?
Mr. WEi~. It is possible.
Mr. FUQUA. How many other large retailers in the District pro-
vide this corporate type practice in the District of Columbia?
Mr. WEIR. My understanding is there are three other major de-
partment stores who do.
Mr. FUQUA. Now, Cole is a supplier to Sears; is that right, you
are under contractual arrangement?
Mr. WEIR. That is right.
Mr. FUQUA. They hire their own personnel?
Mr. WEIR. That is correct. They merely observe the basic policies
within the framework of Sears and its policies in terms of hours
of opening, et cetera.
Mr. FUQUA. Sears is a very progressive retail establishment, recog-
nized throughout the country. Do you feel as though you should offer
dental services in the store, the corporate practice of dentistry, maybe
of law?
Mr. Wi~rrt. I think it would be possible. It has not been done, it is
possible it could get to that situation.
Mr. FUQUA. That you could possibly hire M.D.'s to administer cer-
tain types of shots during epidemic periods, say flu shots, in the
store?
Mr. WEIR. It could be possible.
Mr. FUQUA. Do you think this could contribute to improvement
of health conditions?
Mr. W1~IR. With an authorized doctor, an authorized M.D., if they
so choose. Department stores are a good congregation place for many
people, and a shopping center.
Mr. FUQUA. Mr. Dowdy?
Mr. DOWDY. No questions.
Mr. FUQIJA. Mr. Gude?
Mr. GUDE. No questions.
Mr. FUQIJA. Mr. Jacobs.
THE OPTOMETRIST
Mr. JACOBS. On page 6 of your statement, you analogize the pharma-
cist with the optometrist. Do you not think the analogy would be a little
PAGENO="0049"
45
more valid if you used, rather than the pharmacist, a medical doctor?
Mr. WEIR. You could use a medical doctor with a similar illustra-
tion, yes.
Mr. JACOBS. In other words, the pharmacist actually does not pre-
scribe, he merely fills the prescription of the examiner, of the doctor.
Whereas the optometrist, as I understand, makes the prescription for
the glasses.
Or is it the oculist?
Mr. FUQUA. The optician.
Mr. JACoBs. The optician who really would be more analogous to
the pharmacist; is that not right?
Mr. WEIR. I think that would be correct, yes.
Mr. JACOBS. It seems to me that the difficulty at which this legisla-
tion is trying to get is the old problem of a conflict in interest, that
if the fellow who can make money selling glasses is the same fellow
who tells you whether you need glasses; there is a possible conflict in
interest.
Do you think that is true?
Mr. WEIR. I do not necessarily think that is true, no.
I think the optometrist who is acting independent also is in a position
to fill the prescription and sell glasses and represent a certain one who
produces the glasses. We know there are fees that are received and
kicked back, or referrals, and so forth. I am not familiar with exact
cases, but-
Mr. JACOBS. Let me direct a question to the Chairman.
Under this law, then, the optometrist would be permitted to sell
glasses in his place of practice?
Mr. FUQUA. Yes. Under the provisions of the bill.
Mr. JACoBs. I find that enlightening. I did not realize this. I think
the base of the problem is that where the same fellow who sells some-
thing is the one who professionally recommends the purchase of it, you
do tend to have a conflict in interest. If you ask a general, he will tell
you you need a war; if you ask a plumber, he will tell you you need
plumbing; and so forth.
So I just wonder if that is not something that really we should con-
sider very carefully.
I have no further questions.
Mr. Wrm. Thank you.
Mr. FUQUA. Thank you very much, Mr. Weir.
Mr. WEIR. Thank you, sir.
Mr. FUQUA. Now, the representative of the Medical Society of the
District of Columbia, Dr. Melvin G. Alper, Past President of the
Section on Ophthalmology; and Dr. L. Edward Perraut; and Mr.
Magee, the Counsel.
We are happy to hear from you, gentlemen.
STATEMENT OP DR. MELVIN G. ALPER, PAST PRESIDENT, SECTION
ON OPHTHALMOLOGY, MEDICAL SOCIETY OP THE DISTRICT Op
COLUMBIA; ACCOMPANIED BY DR. L. EDWARD PERRAUT AND
WARREN MAGEE, COUNSEL
Dr. ALPER. I am Dr. Melvin G. Alper, immediate Past President of
the Section on Ophthalmology of the Medical Society of the District
of Columbia.
29-179-----69----4
PAGENO="0050"
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The Medical Society of the District of Columbia is the only medical
society ever chartered by Act of Congress and it is the oldest scien-
tific organization chartered by Congress having been founded in 1817.
The Medical Society consisting of 2,462 members, is very much
alarmed about numerous features of H.iR. 2388 dealing with the prac-
tice of optometry in the District of Columbia. If this bill is 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 members who are ophthalmologists (eye physicians and sur-
geons) but is shared by all members regardless of their specialty status
or field of interest because this bill, 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.
This bill 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 Univer-
sity School of Medicine, and Howard University School of Medicine.
rllhe professors of the above-mentioned schools are concerned about
this bill. Their concern is that proposed legislation will grossly inter-
fere with the teaching 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 this bill would also apply to all nonprofit,
government, or private hospitals and clinics in the District of
Columbia.
OPPOSITION TO DISTRICT OF COLUMBIA MEDICAL SCHOOLS
Mr. Chairman, I would like to attach to this a joint statement from
the professors of ophthalmology of the various medical schools, and
the deans of these medical schools.
Mr. FUQUA. This will be a part of the record.
(The document referred to follows:)
JOINT STATEMENT Rn HR. 2388
Ma. CHAIRMAN, MEMBERS OF THE COMMITTEE: This bill has many fine fea-
tures, 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 possible through education. Being engaged in the training of ophthal-
mologists 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 school, M.D. degree, one year internship and a three-year resi-
dency in ophthalmology. The doctor must then spend at least another year in some
phase of ophthalmology before he is eligible to taken an examination in order to
be certified by the American Board of Ophthalmology. For the foregoing reason
we specifically object to the first sentence of Sec. 2 which declares optometry to
be a profession 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
which would permit the employment of any objective and subjective examination
PAGENO="0051"
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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
optometrist to extend himself beyond his training. In H.R. 2388, Sec. 9, 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 optometrist, doctor
of medicine or osteopathy, when an assistant performs such acts for which they
are well trained. We would substitute the terni under the "direction of."
We also specifically object to Sec. 3 which would perniit 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 on the one hand permit an optometrist to extend him-
self 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 tests 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
Medicine 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 glauconia technician is also employed to
J)erform 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 ophtalmnic assistants. The duration of each course
program is for 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 simiiilar programs 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 compre-
hensive eye care of our population.
It must be realized that the community-conscious efforts of Washington's
three medical schools are reflected not only in their eight affiliated major hos-
pitals 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 physicians and qualified ophthal-
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.
Iii tIme case of Certified Orthoptists the situation created by the proposed bill
HR. 23S8 is almost unbelievably anachronistic. For over 30 years the American
Orthoptic Council with its stringent criteria for training and certification of
orthoptists has voluntarily rendered an invaluable service to the American pub-
lic. Sec. 3 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 Dis-
trict of Columbia.
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 w-orld. 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
PAGENO="0052"
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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 1966. A good illustration of
some of the anachronisms bidden in H.R. 2388 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 Indi-
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
support of training centers for Optometric Technologists and Ophthalmic
Assistants.
The deans of the three medical schools of the District of Columbia join
unanimously their Professors of Ophthalmology in opposing H.R. 2388 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'RounKE, M.D.,
Chief, Div. of Ophthalmology,
Georgetown University.
JOHN W. MCTIGUE, M.D.,
Chief, Dept. of Ophthalomolgy,
The George Washington University.
ALBERT K. HARDEN, M.D.,
Dean, College of Medicine,
Howard University.
JOHN C. ROSE, M.D.,
Dean, School of Medicine,
Georgetown University.
JOHN PARKS, M.D.,
Dean, School of Medicine,
The George Washington University.
DEFINITION OF OPTOMETRY
Dr. ALPER. The definition of optometry attempting to equate this
skilled art with the profession of medicine is objectionable to the
Medical Society. And aside from my statement, Mr. Jacobs just
brought this out in his questioning of the previous witness. The broad
definition of optometry set forth in Section 3 of the Act and the limit-
ing of this broad practice of optometry to licensed optometrists in
the District of Columbia would place the optometrists in the practice
of medicine and would interfere with the practice of medicine as it
is now authorized by the Healing Arts Practice Act in the. District
of Columbia.
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Also, as an aside, Mr. Chairman, it was illuminating to me that
Congressman Jacobs did not realize that optometrists sell glasses in
their own offices to patients whom they have examined.
On the principle of "Equal Justice 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 the fact he is licensed to do so. Many Members of Congress
are also members of the legal profession and know that all expert wit-
nesses, including medical, must qualify on the basis of their individual
merits, and not on the basis of a licensing procedure. Furthermore,
such expert witnesses must be acceptable to the court and subject to
cross examination by both prosecuting and defense attorneys.
NoNmscimmrINATIoN PRovIsIoN
The so-called nondiscrimination portion of this bill 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
eve care, is certainly not in the best interest of the citizens of this city.
To illustrate, suppose the school physician or school nurse is con-
fronted 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
directly to a physician, regardless of his specialty of medicine, for
immediate and definite 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 unnecessary expense in obtaining
proper medical care and, at worst, could result in the child going blind.
DIAGNOSING DISEASES
The Medical Society of the District on Columbia is not prepared to
accept the claim of the American Optometric Association that optom-
etrists are capable of identifying and diagnosing diseases and of refer-
ring for proper medical care. Practicing physicians in all humility
state that the most difficult diagnosis for a physician to make is that
no disease is present.
EXISTING LAw
Our present law enacted by Congress clearly and properly defines
optometry and has served the public interest of this community well
over the past 43 years. Under the Reorganization Act authority is
properly given to the Government of the District of Columbia to
regulate optometry in the best interest of the public. In fact the Com-
missioners 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 Gov-
ernment of the District of Columbia.
The Medical Society of the District of Columbia recognizes the fact
that optometry plays a role in the vision care needs of this community.
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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 re-
quires a much higher level of training of the physician than it does of
the optometrist. In keeping with this the law grants a much broader
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 serv-
ices they need. This distinction of licensing qualifications is true of
all physicians. In addition, the ophthalmologist eye physician) is
required by the self-imposed standards of the medical profession and
the standards 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. However, 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 considera-
tion 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. 2388 which is attached to this statement and are summarized
briefly as follows:
Mr. MAGEE. May that be submitted into the record, Mr. Chairman.
Mr. FUQtIA. Let me look at it.
We will have it, but we do not want to try to make the record look
like a Sears, Roebuck catalogue.
Mr. MAGEE. Attached to it are the corrections suggested which are
not a part of this record, Mr. Chairman.
Mr. FUQUA. Fine, Mr. Magee, without objection, they will be made a
part of the record for the whole benefit of the committee.
We will make it a part of the record. I can see it is not very long.
(The document referred to appears in the appendix, p. 144.)
EXPLANATION OF PROPOSED AMENDMENTS
OPTOMETRY DEFINED
Dr. ALPER. In regard to these proposed amendments, section 2. on
pages 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 optometry in the District of Columbia under the provisions
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51
of this act." This should be. done because as the act is now drawn the
practices covered by the 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 physician's supervision or
direction.
Section 3 should be amended and optometry should be defined as
it is now defined in the District of Columbia Code. As presently de-
fined by law, "the practice of optometry is defined to be the applica-
tion 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."
This bill would authorize optometrists to engage in "the identifica-
tion of any departure from the normal condition or function of the
human eye including its associated structures." Such broad terminol-
ogy will carry the optometrists into the field of practicing medicine.
"Associated structures" in medical terms includes the brain, the lac-
rimal apparatus, the eye lids, the pa.rnasal sinuses, the endocrine
glands, and many other things which the optometrist should not be
involved with at all.
USE OF DRUGS
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; there-
fore, Congress should make this clear by adding on page 6 of the bill
a new subsection titled (la) or should add the words "the use of drops,
dyes, drugs, or other chemicals in the human eye."
We suggest that the words "ophthalmic" and "profession" or "pro-
fessional" should be deleted from the bill and the word "optometric"
be substituted as indicated.
Section 8(a) which appears on page 10 of the bill should be amended
for clarification.
NONPRESCRIPTION EYEGLASSES
Page 11 of the bill should be amended to eliminate nonprescription
eyeglasses from the bill's prohibitions.
EXEMPTIONS
Section 9(a) (2) of the bill should be amended to read as follows:
"To any member in the armed services in the District of Columbia
acting in the performance of his military duties ;"
Section 9(b) should be amended to read as follows:
This Act shall not apply to a physician, surgeon or osteopath
practicing medicine or surgery under the laws of the District of
Columbia, nor to nurses, technicians and paramedical personnel acting
under their direction.
Section 9(c) page 13 of the bill should be. clarified and it should have
added to it, "unless such person shall have a. prescription therefor from
a physician, surgeon or osteopath."
Section 9(f) at page 15 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 followed by the title optometrist."
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Other changes should be made on page 15, for clarity, to permit the
sale as now authorized by law of nonprescription eyeglasses, to pro-
hibit the use by optometrists of drops, dyes, chemicals or medicine in
the human eye and to permit the fitting and adapting of contact lenses
only on the authorization of a prescription of a physician, surgeon or
osteopath.
RULES AND REGULATIONS
In section 10(a) at page 16, the word "ophthalmic" should be deleted
and "optometric" inserted in lieu thereof, and after the word "mate-,
rials" insert; "by optometrists." Line 20, "ophthalmic" should be de-
leted and "optometric" be substituted.
The word "ophthalmic" also appears on lines 15, 16 and 20 of the
same section. This word should be deleted and in its place the word
"optometric" inserted in lieu thereof.
On line 5 of page 16, the words "by optometrists" should be inserted
after the word "sale."
COURT TESTIMONY
Section 13(b), page 19, should be deleted in its entirety. This sec-
tion of the bill attempts by legislation to make the optometrist an ex-
pert to testify by merely possessing a license and also attempts to have
his certificates accepted as qualified evidence once he obtains a license
under the act to practice optometry.
Mr. Chairman, we object very strongly to this section.
ANTIDIScRIMINATION
Section 14, appearing on page 19, should be deleted in its entirety.
Our objection to this so-called antidiscrimination provision is that it
will prevent a public health physician or a nurse who determines that
a medical problem is involved, from sending a pupil in a public school
to his family physician or medical specialist for examination and treat-
ment. It's just that simple.
REFERRALS TO PHYSICIANS
Delay in referring and treating a diseased or injured eye could re-
sult 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 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 or until the
optometrist receives written approval from a physician or surgeon.
Violators of this section shall be enjoined or prosecuted under Sections
12 and 13 and punished under Section 8(b).
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 section 14, Congress sl~ou1d consider adopting a provision similar
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53
to the State of Colorado Statuterelative to the optometric bill passed
in 1961 which reads as follows:
101-1-16. 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 ophthal-
mologist or other physician.
EyE CARE
On June 24, 1954, in Seattle, Washington, the American Optometric
Association 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 resolution 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 encroachments by un-
trained, unqualified and unlicensed persons into the exclusive field
of optometry be prevented through the established enforcement agen-
cies in the respective states."
An optometrist has nothing to do with the care of the human eye.
The function of an optometrist is to attempt after an examination of
the eyes to alleviate certain visual problems in the eye at the time 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 furnish 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 func-
tion 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 ophthalrnological
community. It has three universities which are training residents in
Ophthalmology. It has several hospitals with active programs. At
least 40 residents in ophthalmology are currently being trained by
these jurisdictions. 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, and
local hospitals which train men in eye care. This is eye care in the
sense of the word.
CoNcLnsToN
The Medical Society of the District of Columbia believes that no
new legislation is necessary to regulate optometry in the District of
Columbia. If the Congress sees fit to change existing legislation, we
request that due consideration be given to our suggested changes which
are substantially similar to those suggested by the Board of Coinmis-
sioners of the District of Columbia by letter to the Chairman of the
Committee of the District of Columbia, dated May 18, 1967, the Guild
PAGENO="0058"
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of Prescription Opticians, the Bar Association of D.C., concerning
H.R. 1283, H.R. 595 and H.R. 732, so that the fields of eye care and
visual needs 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 present its views concerning this pro-
posed legislation.
Mr. FUQiJA. Thank you very much for your testimony. We certainly
appreciate it very much and recognize the concern that the medical
profession may have.
ANTIDISCRIMINATION
You mentioned the fact that this bill would perfect the Healing
Arts Practice Act. Would you show me in the bill where this would
perfect the Healing Arts Practice Act, or where it repeals or even
amends that?
Dr. ALPER. The very definition of optometry as a profession implies
equality with a medical doctor, which it is not.
The recognition of an optometrist as an expert witness, the solici-
tation of a nurse or a Public Health nurse or a teacher to refer an
injured child or a child with an infection-
Mr. FUQUA. Now, at this point, would not a Public Health nurse
have enough training to know if someone had a stick in his eye?
Certainly the optometrist would not be the appropriate person to
refer it to?
Dr. ALPER. She definitely has that training.
Mr. FUQ1JA. This would not prohibit that?
Dr. ALPER. The bill states that, does it not, sir?
Mr. FUQTJA. The bill does not state that. If she found that Johnny
did have poor eyesight and could not see the writing on the blackboard,
she could suggest someone he could see to help improve his eyesight.
But certainly if there was an accident at the school-
Dr. ALPER. May I read, Mr. Fuqua, on page 19, section 14:
No officer or employee of the District of Columbia shall, in the
administration 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.
Mr. FUQtTA. But since an optometrist is not licensed to treat injured
eyes, then therefore it would not be a violation of this section, would
it?
Dr. ALPER. But all diseases of the eyes do not manifest themselves
by blood pouring from an eye.
I recently had a patient with a brain tumor who was referred to an
optometrist and who was given glasses, a little child, 8 years of age,
and lost valuable time in obtaining proper medical care.
PHYSICIANS EXEMPT
Mr. FUQUA. Well, let's proceed to another section.
How does the bill amend the Healing Arts Practice Act relating
to technicians and other people who would be under your supervision?
Does not the section on page 13, section 9, subsection (b) read:
This Act shall not be deemed to require a physician or surgeon
licensed under the laws of the District of Columbia for the prac-
PAGENO="0059"
55
tice of medicine or osteopathy to have a license under this Act to
perform those services defined by this Act as the practice of
optometry.
Does not that include you?
Dr. ALPER. I am sorry, Mr. Fuqua, I have not turned to the proper
page.
Mr. FUQUA. Page 13, line 13, subsection (b).
Dr. ALPER. You stated the way the Act reads:
This Act shall not be deemed to require a physician or surgeon
licensed under the laws of the District of Columbia for the prac-
tice of medicine or osteopathy to have a license under this Act to
perform those services defined by this Act as the practice of
optometry.
We would like this to be more specific, and to state-
Mr. FUQUA. There is no attempt to regulate your profession under
this bill.
Dr. ALPER. But if you specifically stated so, we would be certainly
wholeheartedly in favor of it.
Mr. FIJQUA. If you have questions, we will certainly try to make
this explicitly clear, because we are not trying to regulate your
profession.
Dr. ALPER. Yes, this is where we had asked that a substitute state-
ment be placed.
Mr. FUQUA. It will be certainly considered.
Do ophthalmologists sell any type of glasses or ophthalmic
materials?
Dr. ALPER. No, sir, not in the District of Columbia.
Mr. FUQIJA. In any place in the country?
Dr. ALPER. In places in the country they do, but not in the District
of Columbia.
Mr. FUQUA. But in other States, this may be true?
Dr. ALPER. In other States, where there are no equal facilities
available, the AMA has an edict that it is considered unethical in
areas where there are-
Mr. FUQUA. But just so, this conflict of interest could apply to the
ophthalmologists?
Dr. ALPER. It certainly could. And in accordance with this, the
section on ophthalmology of the District of Columbia passed a reso-
lution no ophthalmologist in the District of Columbia should dispense
lenses or sell eyeglasses or eye frames.
CORPORATE PRACTICE
Mr. FUQUA. What is the feeling of the Medical Society about the
so-called corporate practice that it has been mentioned which this
bill would eliminate?
Dr. ALPER. We feel that is an optometric matter, and they should
clean their own house in this regard.
Mr. FIJQUA. Do you have any objection to the removal of corporate
practice as it relates to optometry?
Dr. ALPER. We do not have any objection to removing it.
Mr. FUQUA. Do you think it would be good? You do not support it
for ophthalmologists.
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56
Dr. ALPER.. Dr. Perrault, who is a Past President of our Society,
has a statement on that, which he had prepared.
Mr. FUQUA. On corporate practice?
Dr. ALPER. Yes.
Dr. PERRAULT. As part of my statement.
Mr. FUQUA. Yes, excuse me. Did you intend to make a statement?
Dr. PERRAULT. Yes.
Mr. FUQtTA. Do you want to submit it or make it orally?
Dr. ALPER. He would like to make it.
Mr. FUQUA. You had better proceed then.
Mr. MAGEE. Just to clarify, may I answer one question, Mr. Fuqua?
Mr. FUQUA. Certainly.
Mr. MAGEE. You asked how this provision which has just been read
affects the medical profession. It excludes only the surgeon and the
doctor. It does not exclude the osteopath who is a practicing physician.
It does not influence any of their technicians, help, or personnel.
Then another provision in this Act requires that their personnel
act under their personal supervision.
Mr. FUQUA. That is for optometrists.
Mr. MAGEE. No, it applies to anyone performing any of these serv-
ices, and it applies to the personnel working for the physician. Because
they do many of these things which the optometrist does, like taking
the visual field. This is the problem. We are merely trying, if the
optometrist means they are not interfering with the practice of medi-
cine, the amendment which we have submitted will clarify, the
optometric aides, and nurses' aides, and assistants, which I think is
the intention of this committee.
That is why we have given careful thought to this and gone word
for word through the Act to give you the Medical Society's thought
for changes.
Mr. FUQUA. I appreciate very much the fairness with which you did
recommend some changes. It is very helpful.
Mr. DowDy. I would like to ask a question.
Mr. FUQUA. Mr. Dowdy.
Mr. Downy. On this point raised by the Chairman about ophtha1-
mologists-I believe dispensing glasses-do you mean that here in
the District of Columbia-because my ophthalmologist is in Texas-if
I went to an ophthalmologist here and had my eyes examined, then I
would have to go somewhere else to get my glasses and lenses fitted?
Dr. ALPER. Yes, sir.
Mr. Downy. You would not do that in your office?
Dr. ALPER. No, sir.
Mr. Downy. That seems like it is inconvenient on your patients.
Dr. ALPER. But it would be, by the same token, you are fully
aware the furor that has been caused by doctors in remote areas giv-
ing out medicine in their office and selling. It would be the same thing.
It would be the same thing if we gave a prescription for a drug.
Mr. Downy. That point is clarified. I would go to a doctor because
I trusted him. If I did not, I would go to another one. I just wanted to
be sure that if I had an ophthalmologist here-
Dr. ALPER. If you had an ophthalmologist here, he would give
you a prescription and then you would have free choice to go to what-
ever optician that you wanted to or wherever you wanted to go to get
your eyeglasses.
PAGENO="0061"
57
Mr. Downy. I guarantee, if you tested my glasses and gave me a
prescription, I would ask you what optician to go to. I would not risk
my own judgment on that.
Dr. ALPER. Many patients do that.
Mr. FUQUA. Dr. Perraut, please.
STATEMENT OF DR. L. EDWARD PERRAUT, PAST PRESIDENT,
SECTION ON OPHTHALMOLOGy OF THE MEDICAL SOCIETY OF
THE DISTRICT OF COLUMBIA
Dr. PERRAUT. I am Dr. Perraut. I am a past president of the Section
on Ophthalmology of the District of Columbia Medical Society. I
graduated from the University of Louisville School of Medicine in
1946. I took an 18-month internship and 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 began 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.
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 Ameri-
can Board of Ophthalmology examinations and became certified by
the Board.
Mr. MAGEE. May Dr. Alper be excused? He has an office full of
patients, and we are running a little late this morning.
Mr. FnQnA. Yes, certainly.
Dr. ALPER. Thank you very much. Thank you, gentlemen.
Dr. PERRATJT. During the past year as President of the Section on
Optometry is not a learned profession comparable to law, medi-
cine and theology, notwithstanding standards of education that
are prescribed by the statute and rules of the Board. It certainly
has nothing in common with law and theology and until recently
it never claimed to be a part of medicine.
PROPOSED AMENDMENTS
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 Columbia have so held.
In the Silver v. Lansburgh Brothers case, the United States District
Court for the District of Columbia held:
Optometry is not a learned profession comparable to law, medi-
cine and theology, notwithstanding 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.
PAGENO="0062"
58
In affirming our United States Court of Appeals for the District of
Columbia, in Silver v. Lansburgh Brothers, held:
Optometry is a mechanical art which requires skill and a knowl-
edge 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. Optomrtry is
not a part of medicine.
Such measurement of the eye and modification of the light entering
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 for-
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 medicine, either by inheritance, basic principles, develop-
ment or 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 rays 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.
Our amendments are necessary to exclude the dispensing optician
from being barred in filling written prescriptions of physiQians, 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 who sell
spectacles, eyeglasses or lenses as merchandise as now provided in the.
present optometry law, Section 20(b), and is now provided generally
in optometric laws throughout the United States.
EXEMPTIONS
Amend Section 9 to read "This Act shall not apply to physicians
or surgeons practicing medicine or surgery under the laws of the Dis-
trict of Columbia, nor to nurses or technicians and para-medical per-
sonnel acting under their direction."
Amend Section 9 to read as follows: "(c) (p. 13) unless such person
shall have a prescription therefor from a physician, surgeon or osteo-
path." Contact lenses present a medical risk to the wearer.
Section 14 (court testimony) ,s:hould be deleted and the following
inserted in lieu thereof:
REFERRALS TO PHYSICIAN
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 30 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 the eye diseases
and do refer persons with such diseases to physicians for medical care..
PAGENO="0063"
59
The North Carolina report casts doubt on these claims and state-
ments of optometrists. With the low percentage of referrals as shown
by the North Carolina report, is also shown by optometry's own survey
of Dale F. Kitner, O.D. survey and in the testimony of Meredith W.
Morgan, Jr., O.D., Dean of the School of Optometry, University of
California, which show referrals of only 2.9 per cent of the grand
total of patients seen by optometrists.
The Canadian Royal Commission on Health Service, in its two
volume report published in 1964 stated optometrists in Canada report
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 asso-
ciated 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 opthalrnol-
ogists. 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 integral
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. FUQTJA. Thank you very much. We appreciate that.
Mr. MAGEE. Mr. Chairman, we had another witness scheduled here
today, Dr. Daniel G. Albert, who is not only an optometrist but he is an
ophthalmologist and Past President of the Section on Ophthalmology
of the Medical Society of the District of Columbia.
However, we only contacted him late Monday night and he was
unable to arrange his schedule, but he has prepared a statement which
I would like to submit and make it a part of the record, if I may.
Mr. FIJQTJA. We will make it a part of the record.
(The prepared statement of Dr. Daniel G. Albert is as follows:)
STATEMENT OF DR. DANIEL G. ALBERT, PAST PRESIDENT, SECTION ON OPHTHAL-
MOLOGY OF THE MEDICAL SOCIETY OF THE DISTRICT OF COLUMBIA
I am Dr. Dan G. Albert. I have practiced ophthalmology in the greater Wash-
ington 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 HR. 2388, 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 I entered one of the few schools of optometry that was associated 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 needed medical treatment
and who were therefore referred to medical services. It was the thirty percent
PAGENO="0064"
60
of these people I saw that year who I felt I was incapable of servicing that added
to my desire to obtain a medical degree.
In 1042 I entered the Armed Services and during my four years in the Medical
Corps of the Army I 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
University in 1050. Following a year of general internship in Rochester, New
York, I took a three year residency program at the old Episcopal Eye, Ear, Nose
and Throat Hospital here in Washington. There, under the excellent guidance
and teaching of many of Washington's fine ophthalmologists, I obtained the edu-
cation 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 ophthalmolo-
gist training enables one to provide the public with complete eye care.
In 1953 I entered private practice with Dr. Frank D. Costanbader here in
Washington and in 1955 and `56 I took special examinations in ophthalmology
for certification in the American Academy of Ophthalmology. Only ophthalmolo-
gists who have had similar training to mine are entitled to take this examination.
A very comprehensive written examination is taken. If passed, one is~ then
entitled to be examined by a Board of nationally famous ophthalmologists who
for three days give a very extensive oral examination 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 organization of over 120 members,
all of whom 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 discus-
sion do the public a disservice. It seems inconceivable to us why the practice
of optometry, as defined in H.R. 2388, tried to equate optometry and medicine.
As stated, the practice of optometry means the employment of an 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 con-
fined to those whose training and experience assure safety to the public.
This same sentence then concludes by adding its appendages to the examina-
tion 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 (b) in the definition 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 ophthalmolo-
gical diagnosticians, but make them internists and put them into all other
medical specialties.
The practice of optometry, according to Section 3 of 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 optometry but is allocat-
ing 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 technicians working under the physician's direction which the Medical
Arts Practice Act now provides.
We object to the portion of the bill which makes it unlawful for any person
except a physician or an optometrist to sell nonprescription eyeglasses or dupli-
cate lenses without a prescription. We believe that opticians should not be dis-
PAGENO="0065"
61
criminated 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 cur-
tailed. 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 apparatus. Unfortunately,
this is all too frequently not done or, if recognized, is not referred for definite
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 unfortunate patients who
could have preserved priceless vision if the diagnosis and treatment had 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 substitution submitted for Section 14, and I would like to read this proposed
substitution, sir:
"Every optometrist shall within ten days after the coimpetion 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."
Such a step would be a step in protecting the patient.
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. FUQUA. Mr. Broyhill, do you have any questions?
VIRGINIA LAW
Mr. BROYIIILL. Mr. Magee, are you familiar with the Virgina Law?
Mr. MAGEE. Yes, sir, to some extent. I have read the Act.
Mr. BROYHILL. The law might be acceptable to the optometrists,
but would it be acceptable to the ophthalmologists, if it were adopted
in principle or in toto, for the District of Columbia?
Mr. MAGEE. Actually, the Virginia law acts precisely as the pres-
ent law acts without the guide even we have in the District. Because
in your Virginia law, delegates to a Board, without any restriction on
that Board, to adopt all rules and regulations necessary for the prac-
tice of optometry in the State of Virginia. This is how Virginia does
it. The present Act in the District gives this power to the Commis-
sioners to adopt regulations, but gives them guidelines.
In other words, it gives them a minimum of education require-
ments.
Mr. BROYHILL. Are you saying that you agree with the Virginia
law as an instrument for the District of Columbia, or do you disagree?
disagree? .
Mr. MAGEE. We would agree to it because it is almost similar to
the present law of the District of Columbia. There is only one pro-
vision in the Virginia law which, of course, Congressman Fuqua
was very much interested in, and this is called corporate practice.
Corporate practice. by optometrists is forbidden by Virginia law,
except for all optometrists under our grandfather clause who were
practicing at the time of the Act.
Mr. BROYHILL. But, about the term "professional"?
29-479-69-----~5
PAGENO="0066"
62
Mr. MAGEE. Our feeling on that is it is not a profession.
Mr. BROYHILL. But the Virginia law does designate it as a pro-
fession; does it not?
Mr. MAGEE. If it is treated in the same category as the Supreme
Court pointed out in the Williamson v. Lee Optical, if you treat it
as you treat engineers and architects and in that category, it is a pro-
fession. And because they are dealing in an area where the public are
involved, it can be regulated. But our problem is not to consider it
a learned profession. This is the problem.
Mr. FUQUA. But the bill does not call it a learned profession.
Mr. M~mi~. No, sir, it just calls it a profession. But we think it is
misleading because the Court of Appeals says flatly it is not. It says
it is a mechanical skilled art. This is the decision of the highest court
of the District of Columbia, which clearly defines it, and the William-
son case in the Supreme Court has a very good definition of optometry,
which, as mentioned by Dr. McCrary, we have no objection to that
definition of optometry at all.
But, for example, this definition brings in any subject and puts it
as the practice of optometry that is included in the curriculum of
any college. Thus, this committee gives up control of what is the
practice of optometry, unless every optometry school in the United
States amends the Act, every year, by adding another subject, and
that becomes a part of the practice of optometry.
This is the real problem. We think the definition of optometry as
Congress laid it down in 1924, which has been considered by the
courts, is a correct and proper one. There is no reason to change it.
This is all every optometrist does. He refracts and fits glasses. In this
sense, he is different from the optician, who fits the glasses under
prescription. He is a refracting optician, and this is where your prob-
lem is.
But when you permit optometrists not trained in medicine to get
into medical fields and diagnose any abnormal condition of the eye
and its appendages by any objective or subjective means, then the
Medical Society says this is in the practice of medicine and it objects
to this type of definition.
We do not think Congress intends to put it in the practice of medi-
cine. There is nothing wrong with our present definition. Optometry
has not changed. They said they have got new equipment, surely, but
this is only for refracting, that is all these gentlemen can do. And to
put them in the field of diagnosis is dangerous, because if they miss
something and it is early glaucoma, a person with glaucoma would
lose the sight of the eye because they delayed seeing a doctor.
This is what upsets the physician and it upset the `Governor of
Maryland when he vetoed a. section 14 which was passed by his legis-
lature. It went through the legislature quickly, medicine was not.
given an opportunity to be heard, but the Governor vetoed this sec-
tion 14.
And what did he say-"I cannot equate optometry with medicine."
And that is what this does. "I will follow the advice of my Public
Health officers who are opposed to this."
And you have here today the Public Health Officer from the Dis~
trict who will testify on this, as well.
This is our problem with which I am sure Congressman Broyhill
is quite familiar.
PAGENO="0067"
63
What happened in Virginia under the Optometry statute there, they
did not put a section 14 in the bill, gentlemen. But the optometrists
went to someone in the attorney general's office and got an opinion to
the effect that no employee's of the State could discriminate between
an optometrist and a doctor.
Then the optometrists wrote a letter to the heads of every school
in Virginia-and this is a part of the record in the hearings held
here before-informing these people that they had to take the word
"physician," "family physician," or "eye doctor" out of that referral
schedule which the State had been using for years and years and
years, because it discriminated against optometrists.
So what is section 14 in here for? If it is not for this very purpose
of trying to deceive the public in distinguishing between the training
of these two groups and they are not the same.
Mr. FUQUA. I think there are many more important sections in here
than section 14.
Mr. Dowdy, do you have any questions?
CONTACT LENSES
M. DOWDY. Yes. Pursuing along the line-this is for my informa-
tion, I do not remember now who it was or what it was from, that the
complaint was made about opticians fitting contact lenses.
Now, I do not remember the witness, but what does the ophthalmolo-
gist do in that regard?
Mr. MAGEE. What is done, a resolution was passed where, of course,
all fitting of contact lenses had to be done under the written direction
of a doctor. Then he goes to the technician, who is the dispensing
optician. The dispensing optician actually grinds this lens, trial meas-
ures it into the eye, and then sends that patient back to the doctor for
further checking. We say this is the best way of doing this, in the
contact lens field, because this is a dangerous area. When you put. a
contact lens in the human eye, you are putting a foreign object in the
body. You can have abrasions and you can put it in eyes which will
not receive them. Because you can have diseased eyes, particularly
people with diabetes, persons who should not have contact lenses be-
cause the eyes can be damaged.
Now, in the Fields case, the Court of Appeals here recognized that
there the optician went beyond the authority given him by the doctor,
changed the prescriptions.
Mr. DOWDY. I have read the Fields case. (See appendix, p. 127.)
Mr. MAGEE. But in the affirmation, they pointed out this is a very
dangerous area and they specifically stated that they thought instead
of them deciding that this is a matter the Congress should act upon,
pointing out that medical testimony showed-and they reported mcdi-
cal records-and here is what they said. On page 8 of the opinion, I
think it will clarify what the other gentleman mentioned in the Fields
case.
In each of the steps by which the contact lenses were fitted, expert-
ness in training with essentials of the consequences of improper fitting,
instructing, and follow-np obsei~vation are well documented. They
include actual curvature changes of the cornea, painful abrasions,
alterations of the cornea, infections, blindness, and surgical removal of
PAGENO="0068"
64
the eye. The fitting of a contact lens is the introduction of a foreign
body in the immediate contact of the sensitive part of the body, the
cornea, which can result in serious injury. This was a consequence
which might well come from the appellant's unsupervised fitting.
Without belaboring the point, we feel that the actual fitting of contact
lenses is the adaptation of lenses within the meaning of the optometry
statute. Placing a foreign object on the surface of the cornea may have
consequences far more immediate and serious than the prescribing
therefor and the adaptation of spectacles or eyeglasses worn some
distance from the eye.
Then in the last page of their opinion, it may well be-and I quote
again-that Congress should take some further review of these. prob-
lems involving adaptation and fitting of lenses.
Obviously, what the Court had in mind, with these dangers in mind,
contact lenses should never be put in the human eye without (1) prior
medical examination to determine whether they can rest there, and
(2) on a written prescripion of an ophthalmologist.
Mr. DOWDY. Of course, this is purely personal to me. I do not want
contact lenses or anything else in my eyes. But I w.a.s wondering-
maybe it is reading the Fields opinion that I got the idea in my mind
there had been some testimony about that here.
Well, trying to get all angles of the bill-
Mr. MAGEE. Yes, sir. We had put testimony in. Dr. Perrault just
pointed out within the contact lens field, this presents medical
problems.
Mr. DOWDY. When you prescribe glasses, and they have been ground
by the oculist according to your prescription, do you have a patient
come by and test the glasses to see if you are fixed up for correct
prescription and all that?
Dr. PERRAtTT. Yes, sir, I do.
Mr. FUQUA4 You mentioned you had comments to make regarding
corporate pract.ice.
Dr. PERRAULT. I was mistaken. It was not in my statement.
Mr. MAGEE. Mr. Fuqua, may I answer that?
Mr. FUQtTA. Briefly.
Mr. MACER. Because at the last session, Mr. Forrestal came to see
you and Congressman Sisk on this problem. I think we told you if
this bill were restricted to these areas, that is the lifting up of the
standards of these people and barring what they consider to be un-
ethical practice or unethical corporate practice, the Medical Society
would not oppose it and would be inclined to support it. But, of course,
the bill has not been changed, it is still the same as it was in 1938 when
these type.s of bills were committed to Congress.
I am sure the Medical Society is not going to oppose lifting stand-
ards and you do not need this bill to do that.
That is our position.
CORPORATE PRACTICE
Mr. FUQUA. What is your feeling about corporate practice?
Mr. MACER. Corporation practice, we have-the Medical Society
does not engage in corporate practice, or our medical physicians, and
the position of the Medical Society is the same as the AMA. If it is
authorized by State law, it is not unethical. And there is no exploita-
tion to the patient.
PAGENO="0069"
65
This is medicine's basic position. If you find there are evils in the
corporate practice structure, which you feel should be corrected, and
you take a position on corporate practice, the Medical Society is not
going to oppose this. I am sure, given the reasons for it and evils to
be corrected, they would be inclined to support, lifting the standards
of this group of people and also cleaning up anything which is wrong
in the corporate practice setup.
Of course, you do have a problem in the District of Columbia on cor-
porate practice because our Court of Appeals says they have the inher-
ent right to work for corporations. So we have got to find an evil to
correct, and if that is done, of course, the Medical Society is all for cor-
recting evils anywhere-in corporate, or l)rivate, practice-that affects
the health of the citizens. That is our position.
Dr. PERRAuLT. In my own experience, Mr. Chairman, as far as pa-
tients being referred to me and my colleague that I have discussed this
with, we feel that the percentage of patients who are referred to oph-
thalmologists for further eye care is practically the same from optome-
trists in corporate practice as those in private practice.
As far as the rest of the problems. we do not feel that is really part
of our domain, as far as their advertising and so forth.
REFERRALS TO PHYSICIAN
Mr. FUQTJA. Doctor, it was mentioned in testimony that in Colorado
in 1961, they passed a~n Optometry Act relating to referral of patients
within ten das `after a certain diagnosis. say, of an optometrist. Has
there been any recent Sta.te which has enacted that since Colorado?
Is that the last one?
Mr. MACRE. I can apparently answer that, I do not think t.he Doctor
researched it. I know of none.
Mr. FUQUA. Would not an optometrist be covered under the mal-
practice suits if he did not. render the proper professional judgment
of a diagnosis of an eye; could not a malpractice suit be filed against
huin?
Mr. MAGEE. Our Court of Appeals has held that where the optome-
trist sees the condition which is outside of his area, that he recognizes
and then fail's to refer, or should refer to another optometrist rather
than to a physician, and that optometr~st fails to refer, they both can
be held in either malpractice or negligence in not referring, if the
delay of referral caused damage.
Mr. FuQUA. But the same rules apply to the optometrists that would
apply't.o ophthalmologists, as far as malpractice or negligence?
Mr. MAGEE. Well, actually, there is this to be sold about it. Dr.
McCrary was very clear to point. out to you that the optometrist is
in the marketplace `and there are regulations now under the Federal
Trade Commission statute which regulates optometrists. The Supreme
Court has held that medicine is not in the marketplace.
Mr. FuQUA. I do not believe the Federal Trade Commission reports
necessarily affected optometrists. As I recall, it was a New York
jewelry company which was operating a little differently than an
optometrist operated.
Mr. MAGEE. He pointed out the rise of optometrists by the New York
Jewelry Company in exploiting him and bringing in favors. It was
PAGENO="0070"
66
unfair trade practice and there was a cease and desist order against
the jewelry company in doing this.
I point out there are two different schools of laws that govern these
areas. If you are in a learned profession, different rules apply than
apply to the market place. But the optometrist, he thinks it is un-
fortunate, but nevertheless, this is a skilled art and he, with architects
and engineers, is what the Supreme Court of the United States s~iys
is in the market place. So the rules of the market place govern. So you
could have different principles apply.
But the rule of negligence would probably be the same. That would
be lack of due care. That is all it is. And failure to exercise due care,
if there is a delay in sending that patient to a doctor, and a damage re-
sults, our Court of Appeals has held they can recover.
Mr. FtTQtJA. I feel if an optometrist had not treated me right, he
misdiagnosed and if I came to you, you would take this, would you
not?
Mr. MAGEE. Yes, sir, I would now take it because these men have
stated publicly and openly that they can recognize diseases and if he
fails to do this, I would try him.
Mr. FUQTJA. This would not be necessary in the bill then, because a
malpractice suit could be filed?
Mr. MAGEE. Yes, and they are filed under the present Act and Con-
gress and the Courts have upheld them. One was dismissed on the
theory I have stated as a cause of action, but our Court of Appeals has
reversed. They say where the optometrist misses something and fails
to refer promptly is negligence. So they state a cause of action and
they send it to trial on the merits. Usually the cases never get to trial.
That was settled.
We had a case in Virginia, but it was settled because of a later
referral.
But that can be done now, Congressman, under present law.
Mr. FUQUA. Mr. Dowdy, do you have any further questions?
Mr. DOWDY. No further questions.
Mr. FUQUA. Thank you very much. I appreciate your taking your
time to come here.
Mr. DOWDY. These witnesses presented their cases pretty well, and
I do not have to ask questions often to get more additional
information.
The question I asked a while ago was more out of curiosity on my
part to see how you operate.
Mr. MAGEE. We have sent to each member of the Committee our bill
with the corrections, so you will not have to reproduce it. Each mem-
ber of your staff has the bill as the Medical Society has corrected it,
as we think we can live with. It will give these gentlemen all of the
things they say they want.
But I think the real problem is if you are going to prevent double
sales, then you have got to separate refracting from sales. There is no
other way that I can see to do it.
If they are going to refract, then sell, they are in the same position
as the person who works for someone else and who has to push sales,
because he is in just as much the position to sell an extra pair of eye-
glasses as anyone else. They are very desirable in some instances, but
if this is their problem, this can be settled.
PAGENO="0071"
67
Let them adopt the passage they do not sell eyeglasses just as sec-
tions of ophthalmology did. Then let them have them ground and
fitted by registered opticians of their choice or optometrists who do not
refract. Some optometrists can grind their lenses and fit glasses, others
cannot.
This would get to the heart of the problem if these gentlemen are
sincere. This is a problem. We could handle it in this fashion, take
dispensing away from refracting and that would solve this problem
over night.
Mr. FUQUA. Thank you, gentlemen.
Is Mr. Paul Conrad here?
Mr. CONRAD. Yes.
Mr. FIJQUA. Could we hear your statement now, or do you want to
submit it for the record?
Mr. CONRAD. If I had my choice, I think I would prefer to appear
tomorrow morning, assuming you are going to continue the hearings
tomorrow.
Mr. FUQITA. Yes, we will. We are very crowded. I do not know how
lengthy they will be tomorrow. We would like to continue today, if we
could.
Mr. CONRAD. Very well.
STATEMENT OF PAUL CONRAD, ON BEHALF OF THE NATIONAL
NEWSPAPER ASSOCIATION
Mr. CONRAD. Mr. Chairman, I am Paul Conrad, General Counsel
of the National Newspaper Association, offices here in Washington.
Our Association is an association of newspaper publishers. We have
some 7,000 daily and weekly newspapers represented in our Associa-
tion, in all 50 States. The Association was known as the National
Editorial Association until 1966. It is affiliated with 47 States and
regional associations.
I appreciate your interest in moving things along, and possibly it
would be best for me to submit the statement. I do have some com-
ments that I think I would like to add.
Mr. FUQIJA. Certainly.
Mr. CONRAD. In my statement, we quote the language of the Dis-
trict of Columbia Code, with regard to fraudulent advertising, and I
think I would like to read those few words in advance of some other
things I would like to mention.
ADVERTISING
Section 22-1411 of the D.C. Code states:
"It shall be unlawful in the District of Columbia for any person,
firm, association, corporation, or advertising agency to display or
exhibit to the public in any manner whatever"-I am skipping over
language-"or to deliver, exhibit, mail or send to any person, firm,
association or corporation any false, untrue or misleading statement,
or representation or advertisement, with the intent to sell, barter, or
exchange any goods, wares, or merchandise or anything of value"
"or use any of the aforesaid methods with the intent or purpose
to deceive, mislead, or induce any other person, firm, or corporation
PAGENO="0072"
68
for a valuable consideration to employ the services of any person,
firm, association or' corporation so advertising such services."
One of the points our Association wishes to make, Mr. Chairman, is
that the District of Columbia has ample provision for enforcement
of prohibitions against fraudulent `advertising. There is also provi-
sion for fine, imprisonment, as a part of these fraudulent advertising
statutes.
It strikes us that that citation here today of the New Fork Jewelry
Cornpar~y case, rather points up the value of the existing laws in
treating this problem of advertising any faults and deceptive practices
on the part of optometrists. The Federal Trade Commission took ac-
tion in the New York Jewelry Uom~xtny case.
I might point out the very presence of the Federal Trade Commis-
sion in the District of Columbia particularly serves the interests of
the residents of the District of Columbia, because while the FTC
often says it cannot control and police trade practices throughout the
nation, it is in a rather favorable position to take care of problems in
the District of Columbia.
I would think that the legislation which does provide for investiga-
tion of the practice of optometry in the District can of itself take
better care of the interest of the residents of the District than simply
making advertising illegal. I should think that using a team of in-
vestigators to probe practices of individual pra~tioners, whether they
be corporate optometrists or optometrists in offices in obscu're loca-
tions, would better serve the interests of the public than using the
other device of simply eliminating competition.
Obviously, the corporate advertising optometrists have a great deal
more visibility for purposes of investigation and continued surveil-
lance than the individual who is practicing privately.
I am wondering whether the Subcommittee has asked the Federal
Trade Commission, since it has had this recent experience with re-
gard to optometry practice in the District, for its attitude toward
this piece of legislation and, in particular, those sections of the legis-
lation that deal with advertising and the elements of price competition.
We would point out that while it has been noted that the existing
optometry law in the District of Columbia was written in 1924, the
Sherman Act was passed in 1890, and the Federal Trade Commission
Act in 1915. Both of these Acts seem to have served the interests of the
American people very well. Certainly," so far as the optometry bill
relates to advertising and competition, the prinicples that are con-
tained in the Sherman Act and the FTC Act are a great deal more per-
tinent than any developments which may have come along in recent
years in the actual practice of optometry.
Finally, I would point out that our Association does not advocate
that all optometrists should advertise. If in their associations they wish
to make advertising grounds for explusion from the Association, this
is, of course, their business and their privilege. But for the Government
to make advertising so that no optometrist can introduce competition
into the practice of optometry is, as far as we are concerned, playing
right into the hands of a small group.
We would think that the experience of Congress and the American
publice in recent years and, certainly, recent months, watching the cost
of health care skyrocketing, would seem to indicate that these past
PAGENO="0073"
69
adoptions of anti-priced advertising legislation in relation to health
here and the various States have not served the public very well and the
District of Columbia, as a matter of fact is very fortunate in still hav-
ing the circumstance in which price competition is an element at
least in eye care.
I think those are the remarks we would like to add to our prepared
statement.
Mr. FUQTJA. Thank you, and your prepared statement will be made a
part of the record.
Mr. Conrad.
(The complete prepared statement of Mr. Conrad on behalf of the
National Newspaper Association, follows:)
STATEMENT OF THE NATIONAL NEWSPAPER AssoCIATIoN
Mr. Chairman, may name is Paul Conrad. I am general counsel of the National
Newspaper Association, with offices at 491 National Press Building here in Wash-
ington. The National Newspaper Association is an association of newspaper pub-
lishers. These members publish some 7,000 daily and weekly newspapers in all
50 states. The Association, known until lG6 as the National Editorial Associa-
tion, is currently in its 84th year. It is affiliated with 47 state and regional
newspaper associations.
The National Newspaper Association supports standards of training, examin-
ation and licensing to insure that the practice of optometry in the District of
Columbia is conducted according to highest professional standards. Insofar as
H.R. 2388 strengthens existing statutes to this end, NNA makes no objection to
this legislation.
In the area of advertising, however, the District of Columbia code already
prohibits any form of fraudulent advertising and makes ample provision for
enforcement of this statutory prohibition. If I may quote pertinent language
from Sec. 22-1411-Fraudulent Advertising:
It shall be unlawful in the District 01 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 dis-
seminate to the public; or to deliver, exhibit, mail, or send to any person,
firm, association or corporation any false, untrue or misleading statement,
representation, or advertisement with the intent to sell, barter, or exchange
any goods, wares, or merchandise or anything of valve or to deceive, mislead,
or induce any person, firm, association 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 ftitent or purpose to deceive, mislead,
or induce any other person, firm, or corporation for a valuable considerable
to employ the services of any person, firm, association or corporation so
advertising such services. (Emphasis supplied.)
Sec. 22-1413 provides a fine of up to $500, or imprisonment up to eo days, or
both, for violation of the fraudulent advertising statutes.
HR. 2388 adds nothing in the way of a further distinction between fraudulent
or misleading advertising of optometric services and truthful advertising of
these services. Instead it would prohibit all advertising of optometric services,
and all price advertising of optometric and ophthalmic devices with the exception
of non-prescription sunglasses. This ban on advertising, the National Newspaper
Association submits would:
1. Deprive the public of information about the cost of optometric services
and the availability of credit terms and deferred payment-information
which will in many instances influence individuals who need eye care but
are fearful of the expense they may incur.
PAGENO="0074"
70
2. Eliminate the "reminder value" of advertising, which by its every pres-
ence in advertising media, serves to encourage those needing eye care
services to take advantage of optometric services available.
3. Eliminates competition-particularly price competition-which is. the
only effective deterrent to excessive charges.
This Subcommittee will recognize this third point as most vital. It underscores
the motivation of the bill's proponents-to eliminate all competiton in optometry
in the District of Columbia. It suggests the very real threat this legislation consti-
tutes to the consuming public.
The National Newspaper Association submits that truthful advertising is
neither criminal nor immoral. Therefore, Congress should make no law which
renders truthful advertising a criminal act punishable by the municipality.
Such would be the effect of Sec. 8 of this bill.
Nor should Congress make truthful advertising grounds for license revocation,
as would be the result of adopting Sec. 7. I call attention in particular to sub-
sections (8) and (14). .111 addition to these specific prohibitions against adver-
tising by a licensed optometrist, Sec. 7 (19) provides for suspension of licenses
for "any other unprofessional counduct." From our experience in the various
states where similar anti-advertising bills,, have been introduced in behalf of
non-advertising optometrists, we know from experience this "other unprofes-
sional conduct" catch-all would be used against advertising, as well. In other
words, removal of subsections (8) and (14) will not necessarily preserve competi-
tion in optometry. If these subsections were removed, the Commissioners would
be under continual and heavy pressure to declare advertising "unprofessional
conduct" under subsection (19).
The National Newspaper Association also urges elimination of portions of Sec.
10 which relate to advertising. I would suggest starting with line 19 on page 16
in contemplating the implications of this section. Note that, despite similar pro-
hibitions in sections 7 and 8, the drafters have added a second layer of insulation
against .any form of price competition:
"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.".
This makes abundantly clear the purpose of the legislation-to, by law, elim-
inate price competition in optometry. Language from line 5 through 19 further
limits the display of information intended to attract customers and patients. In
the name of dignity and "ethical considerations", this legislation seeks to with-
draw from the public the benefits of competition among practitioners.
It should be the province and the responsibility of the municipality to insure
that optometry is practiced only by persons properly trained and licensed. Once
so trained, examined and licensed, however, these practitioners should be free to
determine for themselves whether they wish to advertise their services-and
their prices-or not. The public has everything to gain from healthy, open com-
petition for their business.
It should not be a function of government to enforce arbitrary standards of
so-called "ethical" restraint, as conceived by a segment of the optometric profes-
sion. On the contrary, it should be a function of government to insure that the
practice of optometry be conducted in as free and competitive an atmosphere as
is possible, in the interest of affording the public these services at the lowest
possible cost. This can best be accomplished by protecting the right of the in-
dividual practitioner to advertise if he so chooses.
Mr. FTTQUA. Do you have any objection to the prohibition on adver-
tising restraint in the District contained in the District of Columbia
General Code?
Mr. `CONRAD. Yes, Mr. Chairman, if we thought there were any
choice, any opportunity or possibility that these prohibitions could be
removed, we would certainly say the principle is the same as far as
that is concerned.
Again, if the practitioners either individually or as a group do not
choose to advertise, this could be certainly their choice. But we would
submit as long as the advertising is neither false, deceptive., and is
truthful, the public should have the benefit of any competition that
the practitioners are willing to allow themselves to become involved in.
PAGENO="0075"
71
Mr. FUQUA. Are any members of your organization within the Dis-
trict of Columbia?
Mr. CONRAD. No. None of our members are publishers in the District
of Columbia. The Washington Post, for example, is a member now,
and only very recently, of the Maryland-Delaware Association, and our
Association is affiliated with the Maryland-Delaware Association, but
technically, as of yet-
Mr. FUQUA. But this would not directly affect any of your member-
ship, then?
Mr. CONRAD. No, not insofar as the right to advertise in the District
of Columbia is concerned. That is right.
Mr. FrJQrTA. Thank you very much, Mr. Conrad.
I appreciate your statement and the interest that you have on behalf
of the National Newspaper Association in appearing here and giving
us your comment today, relating to particularly the advertising aspect
of the bill.
Mr. CONRAD. Thank you.
Mr. FUQTJA. We will insert in the record at this point a letter and
statement to Congressman Dowdy, from the Washington Publishers
Association.
(The documents referred to follow:)
WASHINGTON (D.C.) PunLIsnims ASSOCIATION,
Washington, D.C., May 6, 1969.
Hon. JOHN DOWDY,
Member, Honse standing Committee for the District of Columbia, House of
Representatives, Washington, D.C.
DEAR MR. DOWDY: At present the House District Subcommittee No. 4 has under
consideration HR-2388, a bill to regulate the practice of optometry in the District
of Columbia.
Enactment of this bill appears to go beyond the limits of useful regulation and
control of the services traditionally provided by opticians, optical companies
and others. This proposed legislative measure is strongly opposed by The Wash-
ington Publishers' Association, composed of The Evening Star, The Washington
Daily News and The Washington Post.
In particular, we oppose the prohibitions in this bill upon advertisements for
optometrists and references to prices of optical products in advertisements by
opticians and others. Restrictions of this nature really serve no legitimate purpose
other than elimination of competition, which is contrary to the public interest.
It is requested that the attached position statement addressed to the members
of the Committee be given full consideration and made a part of the record. We
respectfully urge that the Committee not act favorably with respect to these
bills.
Very truly yours,
HENRY 0. GRONKIEWIOZ,
Ecoecutive Director.
STATEMENT OF WASHINGTON PTJBLISHERS ASSOCIATION WITH REGARD TO HR. 2388
We understand that Subcommittee No. 4 of the House District Committee is
presently considering HR. 2388 which is a bill to regulate the ~ractice of opto-
metry in the District of Columbia. The present bill is substantially similar to
H.R. 12937 and related bills which were before Subcommittee No. 4 in i966 and
H.R. 12276 and related bills which were before Subcommittee No. 5 in 1967.
The Washington Publishers Association, composed of The Evening Star, The
Washington Daily News and The Washington Post, strongly opposes enactment
of HR. 2388 as it has opposed the enactment of the previous bills referred to
above. The Association particularly opposes the prohibitions against advertise-
ments by optometrists and references to prices of optical products in advertise-
ments by opticians and others.
PAGENO="0076"
72
I. The Restrictions On Advertising Are Not Neces.sarV To Prevent Deceptive
Advertising
The proposed restrictions on advertising are unnecessary to prevent false and
~misleading or "bait" advertising. There are already specific prohibitions against
:false and misleading advertising in the District of Columbia Code, Section 5 of
the Federal Trade Commission Act and the Trade Practice Rules adopted by
the Federal Trade Commission for the Optical Products Industry.
Section 22.1411 of the District of Columbia Code makes advertising which
contains any false or misleading statement a crime punishable by a fine up to
:$500 and/or imprisonment up to 60 days.
Section 5 of the Federal Trade Commission Act declares unlawful "unfair
I methods of unfair competition in commerce and unfair or deceptive practices in
commerce." 15 U.S.C. 45.
Finally, the Federal Trade Commission's comprehensive Trade Practice Rules
for the Optical Products Industry which became effective on July 30, 1962 set
forth in detail advertising practices in connection with the sale of optical prod-
nets which the Commission deems to be in violation of the Act. These rules
upecifically cover "bait" advertising (Rule 4). A copy of Rule 4 and the preced-
mg rule relating to false advertising of contact lenses is annexed hereto for
the consideration of the Committee.
II. The Restrictions On Advertising Are Unwise
As succinctly pointed out in the statement of the National Newspaper Associa-
tion, the prohibitions on advertising in the present bill would be unwise because
they would:
1. Deprive the public of information about the cost of optometric services
and the availability of credit terms and deferred payment-information
which will in many instances influence individuals who need eye care but
are fearful of the expense they may incur.
2. Eliminate the "reminder value" of advertising, which by its every
presence in advertising media, serves to encourage those needing eye care
services to take advantage of optometric services available.
3. Eliminate competition-particularly price competition-which is the
only effective deterrent to excessive charges.
Section 7(a) of the proposed bill authorizes revocation of a license to practice
optometry if the licensee:
(8) [engages in] advertising, directly or indirectly, the performance of
optometric service or any part thereof, including the furnishing of
opthalmic or optical material in any form, manner or way . . . [or]
(14) [causes or permits] 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.
We fail to see why an optometrist should not be free to make the availability
of his services known to the public through advertising. The United States
Court of Appeals for the District of Columbia has held in Silver v. Lansburgh
and Bro. et al., 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.
The record of the prior hearings does not establish that there is a necessary
casual relationship between advertising and lower standards or abuses in the
practice of optometry. On the contrary, there is evidence that optometrists who
advertise, or who are employed by corporations which advertise, have provided
competent optometric services at relatively low prices to many people in the
Washington metropolitan area that might not otherwise have been able to
afford such services.
To the extent that there may be abuses of the practice of optometry by op-
tometrists 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 of regulating or preventing them.
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 impose their views as to the priority of advertising upon all members
of their profession without a clear and conclusive showing that advertising neces-
sarily has a detrimental effect upon standards in the profession.
PAGENO="0077"
73
Section 8(a) (4) of the proposed bill makes it unlawful for asty person: "with
the exception of nonprescription sunglasses or nonprescription protective eye-
wear, to advertise or cause to be advertised any optometric or ophthalmic mate-
rial 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."
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
dresses, are frequently purchased primarily on the basis of cosmetic consid-
erations.
While the manufacture and grinding of lenses and glasses requires consider-
able 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 innovation and fre-
quently results in better products being made available to the public.
The record of the prior hearings with respect to this type of legislation fails
to establish that healthy price competition fostered by advertising is incom-
patible with the maintenance of acceptable quality standards in connection with
the sale of optical products. If the use of inferior materials or inferior workman-
ship is or becomes prevalent, we submit that proper protection of the public re-
quires the establishment of minimum quality standards `and/or required checks
of the finished lenses and glasses by a qualified optometrist or opthalmologist
rather than the stifling of competition through a blanket prohibition against
price advertising.
In conclusion, we submit that the proposed prohibitions against legitimate ad-
vertising are both unnecessary and unwise and that their effect will be mainly
to eliminate competition contrary to the public interest.
Respectfully yours,
WASHINGTON PUBLISHERS ASSOCIATION,
By HENRY C. GRONKIEWICZ, Ecceoutive Director.
[~J 41,192] OPTICAL PRODUCTS INDUSTRY
Promulgated June 30, 1962; 16 CFR 192; 27 P.R. 6222;
Effective July 30, 1962.
SECTION 192.0. The industry and its products deflned.-(a) Members of the
industry are persons, firms, corporations, or organizations engaged in the man-
ufacture, processing, assembly, sale, offering for sale, or distribution of any kind
of industry products as the term "industry products" is defined in paragraph
(b) of this section.
(b) The term "industry products," as used in paragraph (a) of this section
and in the following sections, includes eyeglasses and contact lenses which
are designed to provide correction and improvement of eyesight, and parts
(lenses, frames, etc.) or accessories therefor. As here used, the term "eye-
glasses" includes spectacles and eyeglass clip-ons having nonprescription magni-
fying lenses, as well as eyeglasses with prescription lenses. Sunglasses, goggles
and safety spectacles which are designed solely for the protection of eyes or eye-
sight, as distinguished from correction or improvement of eyesight, are not
included; nor are precision lenses for telescopes, binoculars, etc., to be considered
as included.
NOTE: It is to be understood that the word "sale," as used in paragraph (a)
of this section and in the sections which follow, is to be construed as including
the dispensing of prescription eyeglasses or contact lenses by ophthalmologists,
oculists, physicians, or optometrists, to their patients, as well as the dispensing
of such products by optiêians to their customers.
SEC. 192.1. Deception (general).-(a) It is an unfair trade practice for any
industry member to sell or offer for sale `any industry product under any repre-
PAGENO="0078"
74
sentation, circumstance, or condition, having the capacity and tendency or effect
of deceiving a purchaser or prospective purchaser in any material respect.
(b) Among thepractices which are to be regarded as prohibited by paragraph
* (a) of this section are advertisements and sales presentations in newspapers,
magazines, catalogues, telephone directories, radio or television broadcasts, or
otherwise, which deceive purchasers or prospective purchasers with respect to:
(1) The composition, construction, design, type, quality, durability, or
efficacy of any industry product or part thereof;
(2) The identity of the manufacturer, processor, or distributor of any
industry product or part thereof;
(3) The conformance of contact lenses, and lenses and frames of eye-
glasses, to the requirements of the purchaser as prescribed by an. opthal-
mologist, oculist, physician, or optometrist;
(4) The extent of vision improvement that may reasonably be expected
from use of the advertised eyeglasses or contact lenses;
(5) The probable length of time that the lenses of an advertised product
`will be satisfactory for use by the wearer without need for polishing, proc-
*essing, or replacement; or
(6) The immunity or degree of resistance possessed by an industry prod-
uct, or part thereof, with respect to breakage, discoloration, tarnish or
corrosion. [Rule 1]
SEc. 192.2. False advertising of ~on-presaription magnifying spectacles.-It is
:an unfair trade practice for any industry member to publish, or cause to be pub-
lished, any advertisement or sales presentation relating to nonprescription mag-
nifying spectacles (sometimes referred to as ready-made spectacles) which repro-
*sents, directly or by implication, that the spectacles so offered will correct, or are
capable of correcting, defects in vision of persons, unless it is clearly and con-
spicuously disclosed in the advertisement or sales presentation that the correction
of defects in vision by such products is limited to persons approximately 40 years
of age and older who. do not have astigmatism or diseases of the eye and who
require only simple magnifying or reducing lenses; or to publish or cause to be
published any advertisement or sales presentation which has the capacity and
tendency or effect of deceiving purchasers or prospective purchasers in any other
material respect. [Rule 2.]
SEC. 192.3. False advertising of contact lenses.-It is an unfair trade practice,
in the offering for sale, sale, or distribution of contact lenses, for an industry
member to publish or cause to be published any advertisement which represents
directly or by implication that contact lenses:
(a) Are suitable and safe for all persons, regardless of their age, health,
or eye condition;
(b) Can be worn satisfactorily and without discomfort by all, or nearly
all, persons;
(c) Can be fitted without any discomfort;
(d) Can be worn for any short or long period without discomfort unless
the advertisement clearly reveals that practically all persons will experience
some discomfort when first wearing them and that in a significant number
of cases the discomfort period may be prolonged:
(e) Can be worn all day without discomfort by any person except after
that person has become fully adjusted thereto and unless such is the fact;
(f) Will completely replace eyeglasses in all, or nearly all, cases, or will
provide better correction of vision than eyeglasses in all, or nearly all, cases;
(g) Which are bifocal are as satisfactory to the wearer as prescription
eyeglasses having bifocal lenses;
(h) Will correct all defects in vision;
(i) Will stay in place under all conditions; or under any specified con-
ditions when such is not the fact;
(j) Are unbreakable in all circumstances; or are unbreakable in any indi-
cated circumstances when such is not the fact;
(k) Can be adequately tried without financial obligation, unless such is
the fact;
(1) Will protect .the eyes., unless such representation is limited in applica-
tion to the portion of the eyes covered by such lenses and does not denote
or connote a greater degree of protection to such portion, than is in fact the
case; * .
(m) Do not rest upon, orhave contact with, the eyes;
(n) Are more comfortable than all other types or kinds of contact lenses;
PAGENO="0079"
75
(When represented as more comfortable than all other types or kinds, they
must be of unique design or construction or have unique features which
assure of comfort during wear superior to that of any other contact lenses
currently available for purchase;)
(0) Or which is misleading in any other material respect. [Rule 3]
SEC. 192.4. Bait advertising.-It is an unfair trade practice for an industry
member to offer for sale any industry product when the offer is not a bona fide
effort to sell the product so offered as advertised and at the advertised price.
NOTE: In determining whether there has been a violation of this section, con-
sideration ~vi1l be given to acts or practices indicating that the offer was not
made in good faith for the purpose of selling the advertised product, but was
made for the purpose of contacting prospective purchasers and selling them a
product or products other than the product offered. Among acts or practices
which will be considered in making that determination are the following:
(a) The creation, through the initial offer or advertisement, of a false
impression of the grade, quality, make, value, currency of model, size,
usability, or origin of the product offered;
(b) The refusal to show, demonstrate, or sell the product offered in
accordance with the terms of the offer;
(c) The disparagement, by acts or words, of the product offered, or the
disparagement of the guarantee, credit terms, availability of service, repairs
or parts, or in any other respect, in connection with it;
(d) The showing, demonstrating, and in the event of sale, the delivery,
of a product which is unusable or impractical for the purpose represented or
implied in the offer;
(e) The refusal, in the event of sale of the product offered, to deliver
such product to `the buyer within a reasonable time thereafter;
(f) The failure to have available a quantity of `the advertised product at
the advertised price sufficient to meet reasonably anticipated demands.
It is not necessary that each act or practice set forth above be present in
order to establish that a particular offer is violative of this section. [Rule 4]
Mr. FUQUA. The Committee will stand in recess until tomorrow
morning at 10 o'clock, at which time we will resume.
(Whereupon, `at 12:55 p.m., the Subcommittee adjourned, to re~
convene at 10 a.m., Wednesday, May 7, 1969.)
PAGENO="0080"
PAGENO="0081"
OPTOMETRY
WEDNESDAY, MAY 7, 1969
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No.4 OF THE
CoM~u2"rRE ON THE DISTEICT OF COLUMBIA,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in Room
1310, Longworth House Office Building, Honorable Don Fuqua
(Chairman of the Subcommittee) presiding.
Present: Representative Fuqua (presiding), Dowdy, Jacobs,
Harsha, Broyhill, Gude, and Steiger.
Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel;
Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk;
LeonardO. Hilder, Investigator.
Mr. FUQUA. The Subcommittee will be in order.
The purpose of this hearing this morning is to resume hearing on
H.R. 2388 relating to the practice of optometry in the District of
Columbia. The first witness this morning will be Mr. Jerry A. Miller,
Executive Secretary and Treasurer of the Guild of Prescription Op-
ticians of America.
Mr. Miller, for the record, would you identify your associate?
Mr. Mu.u~. Yes, sir. He is Mr. Joseph Stoutenburgh of the firm of
Dawson, Quinn, Riddell, Taylor and Davis and is special counsel for
our National Association.
Mr. FUQUA. Thank you, sir.
STATEMENT OF JERRY A. MILLER, ON BEHALF OF THE G~UILD OP
PRESCRIPTION OPTICIANS OP AMERICA, ACCOMPANIED BY
MR. M. JOSEPH ST0UTENBURaH, SPECIAL COUNSEL FOR THE
NATIONAL ASSOCIATION
Mr. MILLER. Mr. Fuqua, I would first like to say that Mr. Burton,
who is the counsel for the Guild of Prescriptions Opticians of Wash-
ington, D.C., listed as a witness has requested me to speak for him and
he also would ask for the privilege of submitting for the record a
brief written statement.
Mr. FUQUA. Do you have this now or will he submit it later?
Mr. MILLER. He will submit it later.
Mr. FUQUA. Thank you, sir.
Mr. MILLER. My name is Jerry Miller, Executive Secretary of the
Guild of Prescription Opticians of America, Inc. I speak 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 Opticians is a national, non-profit membership corporation
(77)
29-479-69-----6
PAGENO="0082"
78
representing skilled and ethical dispensing opticans throughout the
United States including the District of Columbia.
I appear in opposition to the bill, H.R. 2388, to regulate the prac-
tice of optometry in the District of Columbia.
I wish to submit for the record a detailed list of our objections to
the bill (See Exhibit A) I shall discuss several of these in this
statement.
At the outset, we should like to thank the Committee for the oppor-
tunity to appear and testify.
We are also somewhat surprised. In the course of preparing our
statement, we carefully compared the present bill, H.iR. 2388, with
H.iR. 12276, introduced in behalf of the Optometrists in 1967. We were
dismayed to discover that IE[.R. 2388 is identical to the previous bill
in every respect, down to the errdrs made by th~ Government Printer.
Our surprise is compounded by another fact. The prior bill was
strongly opposed by numerous interested parties in addition to our-
selves, including the District of Columbia Government, the District
of Columbia Medical Society, and the Board of Trade, and we were
assured by Subcommittee No. 5, in 1967, that the proposed bill would
be carefully considered in light of those objections and redrafted
accordingly if reported.
* In an effort to assist the Committee, the District of Columbia Med-
ical Society and the Guild of Prescription Opticians drafted amend-
ments which would correct the major objections. The District Com-
mittee, in its sound discretion refused to report the bill in its original
form and did nOt report an optometry bill.
It would be interesting to know why this Subcommittee is being
imposed upon to consider a bill identical to the one considered by
Subcommittee 5 of the 90th Congress and rejected after extensive
testimony in 1966 and 1967.
One fact is manifest. There is no apparent change in the thinking
and aims of the optometrists. They are still driving to reduce the role
of the optician in the field of eye care to the point where he is literally
legislated out of business. They appear completely disinterested in
the positions taken by the District of Columbia Government, the Med-
ical Society, and other parties who have vital interest in the public
welfare in the District of Columbia.
Fields v. District of Colunibia
The facts have not changed since 1967 except that the prosecution
of Norman Fields (232 A. 2d 300) in the District of Columbia has
been completed and the District of Columbia Court of Appeals (not
our U.S. Circuit Court of Appeals) has decided that the 1927 Optom-
etry Act precluded Mr. Fields from his particular activity in the
fitting of contact lenses.
I have submitted in previous testimony evidence that a dispensing
optician holds the controlling patents on the current contact lenses
and that a member of our association was the first person to fit suc-
cessfully the modern contact lens-of course under medical direction.
In our opinion the decision in the Fields case constitutes bad law,
first because it was arrived at by an incorrect application of the rules
of statutory construction, and second because it is indefinite and un-
PAGENO="0083"
79
clear. The District of Columbia Court of Appeals clearly recognized
that its opinion in Fields does not constitute the immutable law, of
the ages. In fact, it stated in its opinion that the Congress should look
at the matter of contact lens fitting again. The Congress is completely
free to do whatever it wants to do. If these is the slightest possibility
that the Fields case will be construed to. prohibit generally the fitting
of contact lenses by opticians in the District, then we urge the Com-
mittee to heed the strong suggestion of the District of Columbia Court
of Appeals in the Fields opinion of July 25, 1967, where it stated:
It may well be that the Congress should make some further review
of the problems involved in the adaptation and fitting of such lenses.
We agree with the Court's conclusion that the Congress should take
action because the optician wants to continue rendering his traditional
and useful service to the public in the District of Columbia, including
the fitting of contact lenses. He does not want to be legislated out of
business in an Act purporting merely to regulate optometrists. Con-
gress, as the legislature of the District, has a right to protect him.
He has been so protected by the legislature in the neighboring State
of Virginia which gives him the specific right to fit contact lenses.
There has not been the slightest evidence in any hearings of any
physical harm to a person or to the public from the fitting of contact
lenses by an optician on the prescription of a doctor. The spectre of
physical injury is constantly raised by the optometrists, however.
If this spectre of damage which is raised by optometrists over and
over is the crux of the problem, then it may logically follow that there
should be a physician in the picture. Only a doctor of medicine can
diagnose illness and prescribe medication and treatment for injury.
Hence, the combined services of the doctor of medicine and optician
can provide the public with the safest and surest means of protection.
Opticians in the District of Columbia are and have been perfectly
ready, willing and able to submit to reasonable licensing requirements.
As a matter of fact, we were proceeding with the District of Columbia
Government and the Medical Society to draft regulations when the
Fields decision was rendered. Optometrists oppose these efforts. Why?
One is led to believe that their opposition is largely on an economic
rather than public health ground. On the one hand they decry a
supposed inadequacy on the part of the optician. On the other, they
oppose at every opportunity his drive to submit himself to more
stringent regulations.
ROLE OF DISPENSING OPTICIAN
In order to put out objections to this bill in proper perspective, I
would like to identify and define the role which the dispensing opti-
cian plays in the eyecare field.
The dispensing optician prepares and dispenses prescription lenses,
spectacles, eyeglasses or any other type of vision-correcting optical
devices to the intended user. Dispensing opticians do not refract eyes
iior are the members of our Guild associated in any way with any
refractionist, whether he be physician, surgeon, osteopath or optome-
trist.
Dispensing opticians perform any or a combination of the following
functions:
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80
1 Interpret optical prescriptions issued by an opthalmologist, op
tometrist or physician for the laboratory optician who fabricates
vision-correcting optical lenses;
2. Measure interocular or pupilary distances to determine the proper
position of vision correcting lenses;
3. Determine the necessary type or shape of lenses of position of
multifocal segments and optical centers for the intended wearer of
vision-correcting optical lenses;
4. Measure any part of the person's face or head for the purpose
of adapting any vision-correcting optical device thereto;
5. Adapt or align frames with vision-correcting lenses to the faces
of the intended wearer.
In two volumes of testimony on bills similar to H.R. 2388, none of
the optometric proponents have adduced any evidence to show that
dispensing opticianry has harmed the public in any way by carrying
out its traditional functions just described. In spite of this, H.R.
2388 abrogates many of these functions, as described in detail in
Exhibit A, whereas it is in the public interest that these functions;
be protected.
CONTACT LENSES
Because of the medical considerations involved in the fitting of
every contact lens, I submit that the Section on Opthalmology of the
Medical Society of the District of ColunThia is eminently qualified to
determine what is necessary for the protection of the public in con-
tact lens fitting, this group approved the following procedure:
1. Opticians or contact lens fitters must make it clear to their cus-
tomers 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. That the ophthalmologist should have placed on the bottom of his
prescription the following: "Patient to contact me upon delivery of
contact lens." Of course other pertinent information regarding the
refraction, as seen fit in the medical opinion of the prescribing doctor
should be included.
3. That the optician should notify the medical doctor in writing
when he has delivered the contact lenses to the patient.
We agree that this procedure is correct, and therefore include in
our amendments suggested wording to permit opticians to dispense'
contact lenses on the written prescription and at the direction of a
physician.
Dispensing opticians are proud of the service they have renderd
in the District of Columbia. They want to be able to continue this
service and improve it if and as necessary, but they strongly object to'
this bill which would seriously threaten, if not eliminate altogether,
a dozen or more of the dispensing opticians' traditional functions and
drive him out of business or into the suburbs.
Opticians must and will oppose this bill as long as it contains the
all encompassing definition of optometry in Section 3 and as lono~ as:
the inadequate language of the nonapplicability clause in 5ectio~ 9e
is retained.
PAGENO="0085"
81
OBJECTIONS TO SEC. 9(c).
While the bill contains numerous objectionable features treated
more fully in the appendix to our statement, Section 9(c) is cruc~a1iy
*destructive to the optician's business. Presumably it purports to
exempt him from the Act but it would not have this effect.
Section 9(c) reads:
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 eyeglasses or spec-
tacles to their previous conditions 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 author-
ize such a person to fit contact lenses.
What are our objections to this purported exemption or nonap-
plicability 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 his normal and important functions which are all in the pub-
lic interest.
Second, this clause states "this act . . . shall not apply to any per-
son" (namely, an optician) "who fills the written prescription of a per-
son licensed to practice optometry, medicine or osteopathy." We object
to this clause because the requirement that the prescription must be
written is unreasonable and will work unnecessary hardship on opti-
cians and extra expense and hardship 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 he 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 he be subjected to the hardship of sight-
seeing without glasses when any optician could easily get the prescrip-
tion 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.
Third, can an optician under 9(c) fill prescriptions written by a
physician, optometrist or osteopath not licensed in the District? Sec-
tion 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."
Hence, Section 9(c) prohibits an optician from filling a prescription
written by an optometrist, who is not licensed in the District of Colum-
bia.. Section 9(c) can also be interpreted to prohibit the optician from
filling the prescription of a physician or osteopath not licensed in the
District.
Fourth, Section 9(c) specifies that the act shall not apply to any per-
son "who repairs or restores eyeglasses or spectacles to their previous
condition or 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 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
PAGENO="0086"
82
replace both temples so long as he does not put on a new front? If
he can put on a newfront,. which requires remounting 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 eye-
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 and put them back, in the frame where the cement might par-
tially obstruct vision. But, would it permit the optician without any
obstructions or interference It is not clear
Many words have been spoken by the proponents of this bill in the
past about why the optician should be prohibited from duplicating
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 t.o supply new frames and to
duplicate lenses w ithout a prescription, it should be clearly st'~ted
Unless the optician is permitted to supply new frames and dupli
cate lenses without a prescription the bill will subject the. public to.
great inconvenience and expense. It. wifl .mean that the eyeglass wearer,
unless there is a, second or third written prescription must have his
eyes re-examined-whether he wants to o,r not-each and every time
he needs a new or extra pair of prescription glasses, whether he just
want a pair with plastic prescription lenses in them to protect his eyes'
while he 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 Tenses will do nothing but.
guarantee that the ."professional" optometrist will get more busi-
ness at the expense of the public and of the optician.
Section 9(c). as it relates to' restoring eyeglasses to their previous'
condition of usefulness i.s ambiguous a.nd would result in ridiculous
difficulties. It would work hardship on the public, and seriously limit
the traditional services and business of the optician.
Fifth,'Section 9(c). then states "This Act . . . shall not apply t~
any person . . who practices optometry as defined in Section 3 (2)
(3) ." (The subparagraph is corrected from "f" to "e").. Section 3 (2)
(e) defines part of the practice of dispensing opticians. We do not
practice optometry. 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 ispensing opticians in our own right by virtue
of our noble heritage a.nd experience and by virtue of the unequalled
public service dispensing opticians have rendered for centuries.
The final clause of Section 9(c) prohibits the ont:ician from filling
contact lenses. This clause should he eliminated because. again, the
proponents of this bill are trying to take away from opticia.n his tra-
ditional function of fitting contact lenses upon the prescription of an
ophthalmologist, the specialist of the medical nrofcssion in eyecare.
We believe that the District, of CoTi~mbia should have regulations
on the flt.tinq of contact lenses by opticians. We also believe that these
rules should be as strict as, but no more strict than, rules worked out
at a conference between the Section on Ophthaimolo&ry of the District
of Columbia Medical `Society and representatives of the Guild of Pre-
PAGENO="0087"
83
scription Opticians and other opticians who dispense contact lenses.
To conclude my comments on Section 9 (c), this bill gives to optom-
etry everything dispensing opticians own and then a 9(c) optometry
parcels out a few tidbits which cannot for long sustain the life of
dispensing opticians.
PROPOSED AMENDMENT
The amendment which would preserve the traditional functions of
dispensing opticians is to Section 9, subsection (c), and reads as
follows:
This Act shall not apply to any person who as a dispensing opti-
cian 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 re-
produces previously prepared lenses, eyeglasses, spectacles or appur-
tenances thereto including their adaptation to the wearer and who
does not practice or profess the practice of optometry.
We have devoted considerable time to portions of Section 9. Sec-
tion 9 and the remainder of the bill cont'un numerous other objection
able features more fully analyzed in the appendix.
CoNcLusIoN
We support wholeheartedly the efforts of all groups within the
field of eye care to raise their standards and improve their service to
the public. We particularly commend the efforts of groups to "clean
house" where necessary. The optometrists apparently feel this need
within their ranks. We support their efforts to the extent that optom~
etrists clean their own house, but we strongly oppose any efforts which
would result in exterminating opticians in the process.
In short, dispensing opticians do not refract eyes. They do not pre-
scribe what they dispense and sell. They fill the prescriptions of
physicians. Physicians in the District do not sell or dispense what
they prescribe. Optometrists, on the other hand, prescribe and sell
what they prescribe.
Is not this hybrid nature of optometry one of the root causes of
the dissension caused by H.R. 2388?
Most of what optometry complains about would be eliminated if
the Federal Trade Commission Rules for the Optical Products Indus-
try were given the force of law in the District and if everyone abided
by them. The ophthalmologists abide by them. But since it is my be-
iie~ t,hat 96 percent or more optometrists sell what they prescribe, one
wonders whether optometry by the very nature of its practice does
not violate Rule 7 C of the FTC Rules which prohibits the tying of
refraction with the dispensing of glasses when it tends to affect com-
petition. If all optometrists abided by this rule and made it clear to
all their patients that they could have their glasses made at the place
of their choice, they would avoid the possible charge of trying to
monopolize the dispensing of optical aids through this proposed
legislation.
PAGENO="0088"
84
In conclusion, Mr. Chairman, we oppose }L1R. 2388 because it will
substantially dhange the tradition pattern of eyecare in this city with-
out justification; it will without justification place unbearable hard-
ships on dispensing opticians forcing them out of business in the Dis-
trict of Columbia and instead of being in the publicinterest, the bill
will place unreasonable expenses and inconvenience upon the general
public.
(The exhibit referred to follows:)
EXHIBIT A
The following are detailed comments on the objectionable features in HR.
~2388.
SECTION 2
In Section 2 of H.R. 2388 as well as in other sections of the bills, there is in-
creased preoccupation with identifying optometry as a profession. Defining op~
tometry "as a profession" seems designed to give optometry an unnecessary pro-
fessional 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. 2388, 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 col-
leges of optometry"? The meaning is indefinite because by changing the sub-
ject matter of a course dealing with one of the practices 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.
SECTION 4.
In section 4, (7) which deals with the subject 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 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 demain of optometry,
whereas the optician 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 restric-
tions which these bills place upon the practice of dispensing opticians.
SECTION 8
Section 8 (a) (4) prohibits advertising the price or cost or a~ay 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 what constitutes optometric
or ophthalmic materials, as Mr. Whittener 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 needs to be de-
fined for it certainly cannot be the intent of the proponents to prohibit ad-
vertising the price or cost or any reference thereto of such materials as lens
tissue, lens cleaner, magnifiers, binoculars, Murine and eyeglass cases.
Actually, the use of the adjective "optometric" to describe any kind of mate-
rials is inconuruous. 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
PAGENO="0089"
85
pave the way for the legislative restrictions on opticians 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. There 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 a pul)lic service and yet this bill-
in the interest of "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 Commis-
sion Rules for the Optical Products Industry amply cover rebates and similar
stratagems.
Section 8() (7) makes it unlawful for anyone other than a licensed optom-
etrist, 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 riot 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 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
hill 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.
SECTION 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 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 an-
other jurisdiction. The inference is that it applies to one who holds an opto-
metric license, for certainly we are not speaking about a plumber or a barber
licensed in another jurisdiction. However, it is not specific. Suppose an un-
licensed optician should be invited to give a clinical demonstration of the fitting
of contact lenses before a government agency. This oi)tician could well be an
international authority on contact lens fitting, yet under this l,ill if he gave such
a demonstration he would be subject to criminal prosecution and penalties.
A second o'bjection is that this subsection presumably enumerates all the cir-
cumstances under which a clinical demonstration may he 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 demonstra-
tion 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 arid 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 he changed.
Let me say again, this bill treats the eyecare field as though it were the
optometrist's exclusive `domain.
In Section 9(c), this hUh pretends 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 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 eyeglasses or spectacles to their
previous condition of usefulness, or who practices optometry as defined in
PAGENO="0090"
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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.
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.
Secondly, this clau.se states "this act * * * shall not apply to any person"
(namely, an optician) "who fills the writtei~ prescription of a person licensed to
practice optometry, medicine or osteopathy." We object to this clause because
the requirement that the prescription must be 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 viistor 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. Section 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 law~ *s of the Dis-
trict of Columbia."
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 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 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 remounting 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
Optician without a prescription to duplicate your old lens and give you a new
one without any obstructions or interference? It is not clear.
Many words have been spoken by the proponents of this bill in the past about
why the optician should be prohibited from duplicating lenses and supply 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 will inflict serious injury on the public. It will mean
that the eyeglass wearer, unless there is a written prescription must havehis 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 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.
The clause in 9(c) as it relates to restoring eyeglasses to their previous condi-
tion of usefulness is ambiguous. It will cause ridiculous difficulties. It will work
PAGENO="0091"
87
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 . . . who practices optometry as defined in Section 3(2) (e)." (The subpara-
graph is corrected from "f" to "e"). Section 3(2) (e) defines part of the practice
of dispensing opticians. We do not practice optometry. We do not wish to practice
optometry and we do not wish to be char~ged with practicing optometry, even by
way of an exception. We are dispensing opticians 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 regulations on the fitting
of contact lenses by opticians. We also believe that those rules should be as strict
as, but no more strict than, rules worked out at a conference between the Section
on Ophthalmology of the District of Columbia Medical Society and representa-
tives of the Guild of Prescription Opticians and other opticians who dispense
contact lenses.
To conclude my comments on Section 9(c), this bill gives to optometry every-
thing dispensing opticians own and then in 9(c) optometry 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 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 he performs nothing
but menial tasks. The words "direct and personal" and everything after the word
"osteopathy" should be eliminated.
Section 9 (d) (6) states that "nothing in this act shall be deemed to pre-
vent . . . persons from supplying spectacles or eyeglasses on prescription from a
person 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
intended 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 extensive
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 HR. 2388.
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 optom-
etry 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 tak-
*ing 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
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 Section 3, and which
contain the inadequate language of the nonapplicability clause in Section 9 (c).
PAGENO="0092"
88
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 this pending bill.
I want to single out for your special attention our proposed amendment 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 pre-
scription and at the direction of a physician or surgeon, or to any person who
duplicates, repairs, replaces or reproduces previously prepared lenses, eye-
glasses, 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 ll.R. 2388 should not be reported out
of this Subcommittee.
1. It would substantially change the traditiOnal pattern of eyecare in this city-
without sufficient justification;
2. It would-again without justification-place unbearable hardships on dis-
pensing opticians forcing some of them either out of business or into the suburbs;
3. Instead of being in the public interest, this bill would place unreasonable
and ridiculous burdens of expense and inconvenience upon the general public.
Mr. MILLER. Mr. Chairman, I thank you very much for this oppor~
tunity to present this statement.
Mr. FTTQUA. Thank you, Mr. Miller, for your nice statement and the
position on behalf of the Guild of Prescription Opticians and the
people in Washington, D.C.
CONTACT LENSES
The comment was made regarding the Field.~ case and you in effect
say that this is a bad case because you should be able to fit contact
lenses; however, on the other you say that the ophthalmologists are
the only ones capable of performing this. Could you clarify this?
Mr. MILLER. I do not think that I meant to give that impression. If I
did give that impression, I did not mean tO give it, Mr. Chairman.
What I meant toindicate is that because of the medical considera-
tion involved in the fitting of contact lenses that really your ophthal-
mologist-optician team gives to the general public the safest and surest
way of giving to a patient contact lenses.
Mr. FUQ~A. Does an optician or an ophthalmologist have any train-
ing in this field?
Mr. MILLER. Opticians are trained to fit contact lenses. They are
trained specifically for the fitting of contact lenses, yes, sir.
Mr. FUQUA. Then you think it is possible that you are capable and
qualified to fit these?
Mr. MILLER. I think-I do not think-there is no question about that.
I would like th say, furthermore, as I indicated in my statement,
however, that there shouM be some regulations on opticians for the
fitting of contact lenses. I certainly am against, as much as anyone
else is, against the discriminating fitting of contact lenses without any
kind of a prescription and by unqualified personnel and we were
actually working with the District Government to get such regulations
established when the Fields case as instituted by optometry, and at
that time the District of Columbia stopped work on the case.
PAGENO="0093"
89
Mr. FUQUA. Do you feel that the ophthalmologist is qualified to fit
contact lenses if they have the training and background to qualify
them for fitting contact lenses?
Mr. MILLER. It seems to me that they do, but I think the main issue
in which your group is interested is in the protection of the traditional
right of opticians who have been fitting contacts for 30 years, Mr.
Chairman, long before ophthalmologists ever thought about fitting
contact lenses.
Mr. FUQUA. Was that brought out in the Fields case?
Mr. MILLER. Without harm to the public.
Mr. FIJQUA. Was that brought forward in the Fields case?
Mr. MILLER. I am not sure. I could ask Mr. Stoutenburgh if he
knows.
Mr. STOUTENBURGH. Mr. Fuqua, we were not present at the trial on
that case. I am sure there was some testimony, but as we pointed out
in our prepared statement quite frankly, we feel that the Fields
decision is bad law.
Mr. FUQUA. It adversely affects the optician?
Mr. STOUTENBURGH. It absolutely does, but it is bad law in addition
to that.
Mr. FUQuA. Most people feel that if the ruling does not go with them,
then it is a bad ruling.
Mr. STOtTTENBURGH. You are right, sir. We certainly are glad to have
another forum in which to argue.
Mr. FUQUA. We had ophthalmologists before the Committee yester-
day and of course they stated very strongly that they felt the only one
who would be qualified to make a determination on contast lenses
would be themselves. Apparently everybody feels that they are the
only ones, particularly the ophthalmologists to fit the lenses, as was
brought forth yesterday.
Mr. MILLER. I do not want to give the impression that we are the
only ones. We certainly feel that we ought to be at our traditional
right.
Mr. FUQUA. In effect they stated that they felt that they were about
the only group that had the proper training to administer contact
lenses in this area.
Mr. MILLER. I think, if I understand the position correctly, it was
to make a medical determination, not necessarily to prescribe and fit,
but to make the medical determination in the first instance, but I be-
lieve that this point was brought forth on the medical aspect of contact
lenses, which we are not-certainly, I am not-capable of discussing
and which is a whole si~bject within itself.
DEFINITION OF OPTOMETRY
Mr. FUQrrA. You mentioned the definition of optometry. What is
~ the definition that you dbject to?
Mr. MILLER. Is the all-inclusive nature of it, Mr. Chairman. The
-definition of optometry includes every particular, every particular
-function, of dispensing opticians and then when we get to the non-
-applicability clause in Section 9(c), it does not exclude from the
definition of optometry all of the functions which opticians rightfully
PAGENO="0094"
90
perform in the District of Columbia, and this is the basis upon which
we object to the d~finitdon of optometry.
Mr. FUQUA. You object to optometry being called a profession?
Mr. MILLER. I do not think it is necessary, but I do not have any
strong feelings one way or the other on it. The term "profession" is a
very broad term and we have the same discussion with our group as
to whether we are a profession or not and it seems to me that Tab A
illustrates the discussion at least from our point of view.
The question is the type of service that you give to the public and
the way in which you continually strive to upgrade your own opera-
tion and your own education.
Mr. FUQnA. On page 7 of your testimony-if you will turn to that,
please. You mentioned that there was a correction of Section 9(c)
and this is on page 13 of the bill, line 18, and other than the con-
tact lenses, what is the basic change from your suggested amendment
and that contained in Section 9(c) of the bill under consideration?
Mr. MILLER. First of all, in our amendment we omit the reference to
Section 9 and I think this omission is very important because there
are several things in Section 9. We do not disagree with everything
in Section 9, but several things in Seëtion 9 which take away from
the optician his tradition.
Mr. FUQUA. What are these? That is what I want to know specifi-
cally.
ADVERTISING
Mr. MILLER. On page 11, line 11, for instance, we speak of adver-
tising to the public any ophthalimic material of any character which
includes or contains any price cost or any reference thereto. Our own
association, Mr. Fuqua, maintains that the advertising of price of a
pair of prescription eyeglasses is of the very nature misleading and
bait advertising because you are speaking not of a~
Mr. FUQUA. You are speaking of price advertising?
Mr. MILLER. Price advertising. Also any other type of advertising
that is not false or misleading or deceptive.
Mr. FUQUA. Or contains price?
Mi. MILLER. Or contains price. I mean any other type of advertising
that does not contain price we see no objection to it..
I think it is very good and very healthy to make known to the pub-
lic what service you render so they know where they can recelve
these services and where they can be obtained and from our advertising
of over 40 and some years we had a tremendous impact on educating
the public on the importance of good eye care so that. today the public
is better aware by actual survey is more aware of the importance of
better eye care than it has ever been at any time in our history of
civilization.
We do not take sole credit for this. There are many other factors
involved, but the Optical Manufacturers Association, for instance, has
actually given credit to our program for-
Mr. FUQUA. Advertising? .
Mr. MILLER. That is correct.
Mr. FUQUA. I just want to address one comment to this. I think you
made a very good point and we certainly will consider this in the
Committee.
PAGENO="0095"
91
Mr. MILLER. Thank you, Mr. Chairman.
On the same page, Mr. Fuqua, on line 18, it relates to free eye exam-
ination. It says that we give courteous service and that we offer dis-
counts. Now, it depends on what you mean by that. It mentions
bonuses and premiums and discounts and credit. I think there is room
here for considerable amount of discussion; for instance, take a dis-
pensing optician, and I am sure anyone who wears eyeglasses at one
time or another has gone into an optician's store and gotten his eye-
glasses adjusted for nothing. Now, this is a service that opticians gen-
erally perform. Now, I cannot see what is wrong with an optician tell-
ing the public that he will adjust their eyeglasses for free in an adver-
tisement, and yet this would be prohibited under this bill.
Mr. FUQUA. Considered baitS advertising. It is considered to bring
him in and tell him that his frames need adjusting or something else.
Mr. MILLER. I do not think it is bait advertising, Mr. Chairman, as
long as the free service is performed and if the person wants it. I think
the reason the optician does this is that he checks it off whatever the
cost is. He checks it off as a cost of doing business in order to gain
the good will of the public, not necessarily for this particular interest,
but where that person gets his new prescription for eyeglasses and he
hopes that then, because of this free wonderful service that he is
rendering, that the customer will come in again. He will go to him to
have his eyeglasses made. I do not think it is bait advertising and, of
course, as I indicated in my statement on this, we do adhere to the
FTC Rules in every aspect of advertising and we would be most happy
to abide by the rules of the FTC in regard to advertising.
DISCOUNTS
Another example is let's take discounts, for instance. Now if a cus-
tomer comes into the optician's store and says that he wants to have a
pair of clear glasses for his desk work but that he would like also to
have a pair of prescription sunglasses made at the same time, there is
to the optician a saving when he makes two pairs of glasses at the
same time that he makes one. He has to do one set of measurements
and only one record ar4d so forth and so on. There is a savings and
some opticians whether I agree with it is beside the point, but some
opticians do say in advertising that there is a discount when more
than one pair is bought at the same time.
Now, I do not think this is bait advertising. I think this is a simple
statement of fact that it is cheaper for the opticia.n to make two pairs
of glasses at one time than it is to make simply one pair and what he
is saying is because of this saving we will pass this on to some of you
in the public.
Mr. FUQUA. But you cannot do that without it being called a
discount.
Mr. MILLER. I am sure that you could do it without calling it a dis-
count, but it would seem to me that the terminology would be imma-
terial if the word "discount" in this section were still left in here that
the practice can be termed violative of the provisions of the Optom-
etry Act which I do not think is fair. That would create another thing.
I do not see the difference, Mr. Fuqua, if an optician puts on his desk
or on his doorfront "Member of Central Charge." I do not see the
PAGENO="0096"
92
principle of a difference between that and putting the Central Charge
thing in front out where it says optician. I see no difference whatso-
ever in it, and yet in this bill, by in Section 9(c), by making Section 8
apply to opticians they are saying that we cannot do that. I do not
think that is in the public interest, Mr. Fuqua.
Mr. FUQUA. You mentioned the fitting of glasses of a man who
comes to Washington and drops his glasses on the street and breaks
them. I recognize your concern, but I do not think there is anything
to prevent opticians from restoring glasses. If I broke a lens out of my
glasses, you could repair them or you could put a lens in them.
Mr. MILLER. I must admit that the wordage to restore eyeglasses to
the previous condition of usefulness is certainly much better than the
original bill introduced in 1966 which flatly prohibited the indication
here of lenses. This does give opticians some leeway that it did not
have under that flat prohibition. The optometrist-permitting opti-
cians in this bill to duplicate lenses, I think that because of the possible
misinterpretations of this indefinite wording it would be much better
to adopt our wording where it says that we can duplicate previously
prepared eyeglasses. I am sure, however, that the present language of
H.R. 2388 in this regard would seem to prevent the optician from giv-
ing the customer a new frame and putting his old lenses in.
It would seem to me this would be a very easy and logical interpre-
tation. Then you are doing more than restoring a pair of eyeglasses to
their previous condition of usefulness, and there are instances where it
is necessary-suppose this part of the frame, this part of the frame
that holds your lenses is broken here. There is only way you can do it
and that is to take a frame which is the same shape as the lense or one
thing or another and put the old lenses in the new frame and fit them
that way.
I think the wording is unclear on this extent and it would prevent
the selling of a new frame and I do not think that is in the public
interest.
BILL'S EFFECT ON OPTICIANS
Mr. FTJQUA. In the present bill you mentioned that it was going to
take from the life of the opticians. How many do you think would
be placed out of business or out of work in the District of Columbia?
Do you have any figure?
Mr. MILLER. I think eventually if this is passed it will effect every
dispensing optician in the District of Columbia and they would be
reduced to the status of a medical optician and a mechanical optician
is the fellow who works in the back room in a laboratory that the dis-
pensing optician, the one who waits on the customer when he comes
into the store and who performs the function that I described in my
statement, that all of this area of opticians' responsibilities for eye-
glasses would be completely taken away from him. So there would be
nobody.
Mr. FIJQUA. What do you mean by eye care?
Mr. MILLER. Well, eye care is to supply the eyeglasses on prescrip-
tion. This is what I mean.
Mr. FtJQUA. Not to diagnose?
Mr. MILLER. Mr. Chairman, the optician never has-the difference
between the dispensing optician and the refractionist, who later be-
PAGENO="0097"
93
came the optometrist, I mean dispensing optician, has given up what-
ever they did in the way of refracting prior to the scientific discovery
of refraction.
Mr. FUQUA. You mentioned on page 12 that in effect there may be
violation by optometriists in Rule 7(c) of the Federal Trade Corn-
mision rules. Do you have any cases of that in the District of
Columbia?
Mr. MILLER. I would like to make it clear, Mr. Fuqua, that this
is simply a question in as much as it is my belief that 96 percent or
more of the optometrists sell what they prescribe and Section 7(c)
of the FTC Rules states that it is a violation of those rules to tie in
the dispensing with the refraction. I just raised the question as to
what-
Mr. FUQIJA. Would a dentist come under a FTC Rule if he sells me
a pair of dentures? Now, he determined tha.t I needed the partial
plate or something like that. He would want to pull my original teeth
out and then by that time I am sure I would need something to replace
them and immediately I purchased it from him. Does this apply to
him?
Mr. MILLER. I am saying here the tying in of the Rule 7(c) of the
Federal Trade Commission Rule is a tie-in where you condition the
refraction of the eye upon the dispensing of the glasses.
Mr. FUQUA. I go to the dentist and he decides that I need a partial
plate or crown or full plate or whatever he determines, and in his
judgment this is what he has to do. I get it from him, is that not true?
It is tied in with my work? He is already beginning to take work. They
use the-what is the word I am looking for?
Mr. DOWDY. Impression.
Mr. FTJQITA. Impression. While I am still sitting in the chair
bleeding.
Mr. MILLER. I do not think there is anything wrong with that, but
I think that the patient should be given the free choice as to whether
he wants eyeglasses made.
Mr. FTTQUA. But I go to the dentist and say that I know a dentist
who will be able to do it for me for a little cheaper and I get out of
the chair-
Mr. MILLER. You ought to have the freedom to go to the other
dentist. It would not be right for that dentist to make you stay there
while he does the dental work.
Mr. FUQuA. If an optometrist decided that a patient may be sug-
gesting that he wanted him to check out his eyes, but he tells him
that he wants to go down to tile optician to get it filled, could he not
do that?
Mr. MILLER. I am saying that is what he should be able to do.
Mr. FUQUA. Are there any cases where people have been denied
this right?
Mr. MIrn~n. I do not know, but our experience shows-
Mr. FUQUA. You mentioned 96 percent. I am just raising this as a
question.
Mr. MILLER. I think you have some instances at the American Acad-
emy of Optometry; for instance, Mr. Fuqua, in the membership re-
quirements, I believe I will remember this right, but it has been a long
29-179-69-----7
PAGENO="0098"
94
time since I have looked at them, but where it, for instance, will not
permit the optometrist to make eyeglasses on the prescription of an
ophthalmologist and I know that there was one State optometric~
society which clearly issued a bulletin or a statement to the effect that
no optometrist will accept a patient unless that patient specifically
agrees to have his eyeglasses made by that optometrist.
Mr. FIJQUA. Is that in the Manual of Professional Conduct or some-~
thing of that-any citation on that?
Mr. Munoi. I would like to see that Manual on Professional Con-
duct. I was referring to this-
Mr. FUQUA. Well, Section (e) relates to that. The other citation
that you have there, I would like to see, because I have the book here
and I would like to look over it.
Mr. MILLER. I will send the statement to you. I think it was by the'
Michigan Society of Optometry.
Mr. FtTQtJA. Not by the District of Columbia or by the American
Optometric Association?
Mr. MILLER. I thought I indicated a State. I thought that I indi-
cated that this was the type of thinking that exists within optometry
on that question.
Mr. FUQUA. Thank you, Mr. Miller.
Mr. Dowdy, do you have any questions?
Mr. DowDy. No questions.
Mr. Gude?
Mr. GtrDE. No questions.
Mr. MILLER. I would like to thank you, gentlemen, for this oppor-
tunity.
Mr. FtTQUA. Thank you, sir.
FIELDS CASE
Mr. STOUTENBtTRGH. Mr. Chairman, I would like to make one refer-
ence to the Fields case. Hopefully, it has not been lost and I say that
for two reasons; first of all `as I understand the decision it is the con-
viction of a single optician, whose practices we don't necessarily agree
with, and we did not agree with in that case.
Second, and perhaps more importantly, the court at the end of
its opinion specifically suggested that this question of contact lenses
was one which the Congress should consider. We are both anxious
and hopeful that this committee will do just that, and that the Con-
gress will make it abundantly clear that opticians in the District d&
have the right to fit and dispense (not prescribe) contact lenses.
Mr. FUQUA. We have this under consideration.
Mr. STOtTTENBURGH. Thank you.
Mr. MILLER. Members of the committee, thank you for the oppor-
tunity to appear here.
Mr. FUQuA. Thank you, Mr. Miller.
Next, we have William N. McLeod.
Mr. MOLEOD. We have submitted a list of names of people that I
represent. One of them is Sterling Optical Company. Mr. Stein, of New
York, will testify for them `and we have agreed that I would permit~
him to stand for the rest of us in order to save time.
Mr. FtTQtTA. Yes. The witness will be Alvin M. Stein.
PAGENO="0099"
95
STATEMENT OP ALVIN M. STEIN, REPRESENTING STERLING OPTI-
CAL COMPANY, COLE NATIONAL CORPORATION, E. J. KORVETTE,
OPTICAL DEPARTMENT, KAY JEWELRY STORES, INC., KINSMAN
OPTICAL COMPANY, VENT AIR CONTACT LENS SPECIALISTS,
NATIONAL ASSOCIATION OP OPTOMETRISTS AND OPTICIANS,
AND THE NEW YORK STATE OPTICAL RETAIL ASSOCIATION
Mr. STEIN. Mr. Chairman, I have prepared a formal statement.
We are appearing here today on our position on this bill. We have
submitted a formal statement and a comprehensive statement on our
position on the matter and we are addressing ourselves to the bill as
a whole and to specific provisions of the bill.
We also have included a significant number of exhibits which we
regard as relevant and material. (See appendix, pp. 170-199.)
STERLING'S OPERATIONS
Let me say at the outset that Sterling is as much concerned with
providing the public with high quality optometric service and mate-
rials as is anyone in this room, or anyone connected with these
proceedings.
Sterling has served the public for over 50 years. It has 15 retail
storos throughout the State of New York and one in the District of
Columbia. We operate first rate high quality laboratory facilities.
Since 1959 alone we have dispensed more than 1 million pairs of
glasses. I should say that 35 percent of our eyeglasses supplied in the
District of Columbia pursuant to prescription provided by inde-
pendent, separately operated ophthalmologists.
I might say, parenthetically, that almost no prescriptions are filled
by privately practicing optometrists. This is not an accident. I will
show this later on. This is a matter of private practicing optometrists
in the sale of glasses with the refracting of orders.
Getting back to my original trend. Sterling is, I believe, the largest
supplier of eyeglasses to the public both in New York State and in the
District of Columbia.
It is a subsidiary of the Hospital Supply Corporation. That is one
of the nation's largest suppliers of hospital supplies and equipment
to American hospitals and health care institutions.
I mention this to indicate that Sterling Optical is not only a long-
established company, but one that has a very prominent position in
the health community and one which we regard very zealously and
one we protect zealously.
The Court of New York States on 20 occasions-and I might say
that this was arising out of efforts by the American Optometric Asso-
ciation or the New York affiliate to eliminate competition. In any
event, from both of those cases the court after one instance, I think
it was a seven-week trial and the other off-hearings and arguments
concluded that Sterling and other similar situations over the years
made available consideration to the public welfare and interest and
that in no instance in all of those years of service and in serving the
public was there any evidence of the public having been the loser.
PAGENO="0100"
96
I say that we have in common this desire to serve the public on a
fair and equal basis. That is an interest we have in common, I am sure,
with most people.
Our point of departure with many, and in particular with the
Optometric Association is the fact that `we feel it is important that
the public be provided the opportunity to thtain high quality refrac-
tions through licensed, qualified optometrists and high-quality eye-
glasses at moderate cost. We submitted clear and irrefutable proof
that in the District of Columbia, Sterling eyeglass prices for com-
parable products are about one-half the ave.rage price of the so-called
privately-practicing optometrists. This is based on an actual survey
conducted in the District in 1967, in connection with the hearings be-
fore the Subcommittee then `hearing the comparable bill.
In addition, Sterling prices for eyeglasses are in all instances clearly
submitted and disclosed. They are, in all instances, clearly marked.
We invite each of you to visit our premises at 520 10th Street, North-
west to determine `first hand the truth and accuracy of the representa-
tions which I here make. No optometrist or optical dispenser employed
by Sterling derives any personal profit or gain from the sale of
glasses-which, as I will demonstrate-is not true of the so-called
privately-practicing optometrist.
PRIVATE OR CoRPoi~TE OPTOMETRISTS
It is submitted that this bill would, and it is intended, at least by
the American Optometric Association to have the effect of denying to
the public the opportunity to select Sterling, or others similarly situ-
ated, as a source for eyeglasses and eye refractions.
In other words, the bill would merely serve to permit so-called pri-
vately practicing optometris'ts to sell eyeglasses to the public at prices
not affected by competition, without any commensurate gain or ad-
vantage to the public.
It is abundantly clear that the idea of substantially all privately
practicing optometrists in the District of Columbia are to engage in
the sale of eyeglasses at exorbitant profits. I think this `has `been dis-
played. We have the prices. We have the idea of what they are charg-
ing here. There is evidence in this regard.
There was evidence, specifically, in the New York State and the
court concluded beyond question that this existed `among the privately
practicing optometrists in the State of New York, and I have no reason
to believe that the situation is different here in the District of
Columbia.
It is the general practice of privately practicing optometrists when
supplying eyeglasses to the public, to purchase from suppliers of eye-
glasses fully assembled eyeglasses and to resell these eyeglasses to the
public at more th'an two or `three times the optometrist's cost in `addi-
tion to a substantial "examination fee."
Th'e point I want `to make `clear is that about 75 percent of th'e pre-
scriptions that are filled consist of dark lenses. There is no grinding
to order of those lenses, and in effect wh'at an optometrist does is simply
call the lab and he says, "Send me a pair `of glasses having lenses", so
and so and so on and he provides him with them and he jus't resells them.
He puts not one iota of his personal skill or `attention into `the prepara-
PAGENO="0101"
97
tion of those eyeglasses. Clearly then he is nothing more than a reseller
of a product.
Since it is rarely the practice of such optometrist when selling eye-
glasses to patients to be examined to segregate or otherwise. disclose
the items of the tota.l billing to the customer, the public is generally
unaware of the excessive cost involving in dealing with such privately-
practicing optometrists.
In other words, to make that clear, it is the practice, and we notice
this again from our surveys which has been conducted, that when some-
one goes to a privately-practicing optometrist he will examine the
patient and wind up in most instances prescribing a pair of glasses and
then rendering a bill to the patient in a lump sum for $50 for the
examination and the glasses.
The patient has no real way of knowing how much he is paying for
the glasses and how much he is paying for the examination. He has no
real way of knowing whether he can take the prescription and go
down the street and have those glasses prepared or dispensed or sold
for a lesser amount.
I believe you, Mr. Fuqua, asked whether the American Optometric
Association which prescribes, precludes an optometrist from giving a
patient a prescription to have him fill it down the street. I do not
know at the moment whether there is such a canon of ethics or practice
or not, but I can tell you that the practice generally is for the op-
tometrist not to issue such a prescription to have it filled elsewhere.
The practice generally is when an `optometrist is confronted by such a
question to discourage the patient from doing that and the proof is
that in virtually no instance do optometric establishments such as
Sterling have the right to fill optometric prescriptions.
ADVERTISING
To the extent that H.R. 2388 would prohibit price advertising, the
public could not conveniently make the price comparisons necessary
to determine the extent to which it is the victim of this practice. He
should have that information at hand.
To the extent H.R. 2388 would prevent false advertising, the pubhc
would be denied information as to alternative more economical `sources
of supply.
There can be little question that since privately-practicing optome-
trists derive so major a portion of their income, their total income, in
the form of profits obtaining upon the sale of eyeglasses, these self-
employed optometrists are "commercially motivated" and should not
be protected against reasonable price competition and competitive
advertising.
Using the very words of Mr. McCrary, appearing on behalf of the
AOA, the optometrist's income in such a situation is closely related to
the numbers of pairs of glasses lie prescribes and supplies.
I should say that perhaps those who `are not the exact words of
Mr. MoCrary. This is in context to what he said
As vendors of merchandise in the manner described, privately prac-
ticing optometrists are clearly distinguished from health care practi-
tioners such as physicians and podiatrists whose canons of profes-
sional ethics prohibit profiteering in the sale of merchandise.
PAGENO="0102"
98
We find no such prohibition in practice among optometrists. Now,
`it is also the custom of the private-practicing optometrists to discour-
* age their customers from purchasing eyeglasses from more economical
retail sources and to withhold from the customer whose eyes they
examine any written prescription which would enable the customer
"to purchase eyeglasses from other available retail sources.
These tie-in practicing of optometrists are classified and it is a situa-
tion which formerly existed in the cases of ophthalmologists and of
which note was taken, critically, by the Justice Department in its
report rendered after the decision in the so-called "optical rebate"
cases, and of which note was taken critically `by them. In those cases
it more particularly referred to a formal presentation to this corn-
mittee.
Were privately-practicing optometrists to be denied the opportu-
nity to both prescribe and sell eyeglasses, so that they would not be
found in this position of conflict, I can assure you my position in the
matter would be materially different. I can assure you that my client's
position would be substantially different than it is today.
The fatal concern here is that relationship between the optometrist,
the privately-practicing optometrist prescribing and selling. Now,
turning to the bill itself.
What possible public interest is served by sections of a bill which
would preclude truthful price or source advertising by optometrists
or other sellers of eyeglasses? Presumably, the sections also might
preclude truthful informational advertising to refute the false im-
pression engendered by the AOA that optometrists are "doctors"
qualified to discern the presence or absence `of eye diseases, brain
tumors or diabetes. I tell you that I am not exaggerating when I state
that. Optometrists make that claim because they made that claim
under oath in the proceedings in New York about which I have made
mention.
To move on to what we have talked about a little bit here today is
bait advertising. Advertising false in other material respects, may
effectively be dealt with under local law or, where appropriate, by
the Federal Trade Commission.
What possible public interest is served by the provisions of this
bill Section 7(a) (17) and 8(a) (7), prohibiting the practice of optom-
etry, under lease or otherwise, in "retail, mercantile, or commercial
store"?
I do not conceive of how the surroundings of one's practice will
affect his professional ethics and his professional conduct.
What possible public interest is served by Section 7(a) (11) and
8(a) (8), requiring that eyeglasses be "bootlegged"-I use that term
rather than openly saying that they are displayed and offered for
sale. In other words, there is a prohibition in this field dealing with
those sections which would prevent eyeglasses from being displayed
in a store window so that the public can see what products are being
sold inside that establishment. I just cannot conceive of any signifi-
cant reason having regard to the public interest which would allow
the selling of eyeglasses and they should not freely disclose to the
public the product he is selling or offering for sale.
PAGENO="0103"
99
CORPORATE PRACTICE
Finally, what possible public service is served by the provisions of
Section 7(a) (9), 7(a) (18) and 8(a) (7), which would prohibit the
corporate employment of optometrists?
The notion that employment taints or corrupts is totally un-Amen-
can. It is just something that I cannot comprehend. As an attorney
I know of fellow attorneys who work for corporations and who work
for banks and who work for non-professionals and I would be shocked
if any one seriously suggested that the ethics of those professionals be-
cause they work for corporations is less high than mine.
In this respect, I quote from my memorandum an article appear-
ing in March 15, 1967, an edition of the "Optometric Journal and
Review of Optometry," adversely commenting upon the relentless
condemnation of the employed optometrist by the professional opto-
metric associations. This is a most highly regarded publication among
professional optometrists and Mr. Wolfson is privately practicing in
`Garden Grove, California. I have no reason to believe that he is in any
way connected with any corporate establishment and he says this-
or he says this:
"We have been talking of higher fees, or 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." He went on and said:
"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 sur-
roundings do not indicate the quality of care the patient will receive
~nd 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."
Now, needless to say, since this bill contains no grandfather clause,
preserving or protecting the established interest of employed optome-
trists, as well as the established rights of their corporate employers
serious constitutional issues arise. It raises constitutional questions
as to firms and business establishments in the community such as
`Sterling and with regard to the rights and interests of the employed
optometrist.
LICENSE RENEWAL
I should also point out that a somewhat similar question is raised
irnder Section 2, page 20 of the bill which makes important the an-
nual renewal of licensing and then seems to require, as I read it, that
in order to have a license renewed an optometrist has to comply with
the present new requirements for licensing contained in the bill which
is more training and has to comply with the other requirements. If I
read this matter correctly, the licenses of many optometrists in the
District of Columbia will be seriously jeopardized.
I might also say that the problem of substandard optometrists in
`the District of Columbia will be seriously jeopardized because our
survey indicates that I think about 20 or 25 practices in a store are
commercial or mercantile establishments of one kind or another, and
accordingly, they would have to remove themselves from their premises
under this bill.
PAGENO="0104"
100
For all of these reasons, gentlemen, I suggest this bill does not reach
the core of the problem. It does not serve the public interest. It will
merely increase cost of eyeglasses and eye care with no commensurate
gain to the public.
Thank you.
Mr. FUQUA. Thank you very much. Thank you, Mr. Stein, for your
statement on behalf of your client and the others.
How many optometrists are employed by Sterling in your operation
here in the District of Columbia?
Mr. STEIN. I believe there are two or three. Three, I am sorry.
Mr. F[TQnA. I am not trying to get into the private salaries or any-
thing, but are they on a salary or what?
Mr STEIN. Yes, a strict salary. They are in no way dependent on
the number of examination that they perform or the number of glasses
sold at the establishment.
Mr. FITQUA. Are there any bonuses paid to the optometrist?
Mr. STEIN. No, to the refracting optometrist, no sir.
Mr. FUQIJA. One of the groups in here does advertise with fliers
and advertises to their employees that if they fill an extra pair of
glasses tha.t they get a certain bonus and later get certain fringe bene-
fits because of this. I did not know if Sterling had the same type of ar-
rangement with their optometrists as maybe some of the others had.
Mr. STEIN. Mr. Fuqua, that practice is not followed by us, but I
might say that there are many that do not condone that practice. I
think it is small potatoes compared to the inducement which exists
in the case of the privately-practicing optometrist to over-prescribe
smce he pockets every dollar of that sale and there is othing in this
bill which in any way prevents him from doing that.
Mr. FIJQUA. I think that if we were to enact this bill there cer-
tainly would be a better enforcement of the code of ethics by the
Board in the District of Columbia. These questions you have men-
tioned can certainly be corrected when they are in violation of the
Optometric Code of Ethics.
Mr. STEIN. Mr. Fuqua, let me say this. this is a rather interesting
situation because in most States and jurisdictions, where a board is
provided, for a Board nominally consists of the confreres and in-
Mr. FtJQUA. Such as the Bar?
Mr. STEIN. Pardon me?
Mr. FUQUA. Such as the Bar?
Mr. STEIN. Of their peers in that case, but I am saying that we have
seen no evidence of these Boards consisting of privately-practicing
optometrists attempting to eliminate or curtain this abuse in the
area that I mentioned.
Mr. FUQUA. Set forth in the bill are some rather rigid requirements
of the practice and rules that can be made by the District of Colum-
bia Government that will regulate and conduct the approach they
want. It will regulate the conduct the same as in the legal profession
or the medical profession and most other professions.
Mr. STEIN. Excent that under this bill the Commission is permitted
to delegate the authority to the Board and the Board consists, would
consist, of privately practicing optometrists in most instances~ and
we can tell you that the privately practicing optometrist a.nd many
optometric associations seem to think that it is not unethical for the
PAGENO="0105"
101
privately practicing optometrists to mark up a pair of glasses two
or three times.
Mr. FUQtTA. But the Grievance Committee of the Bar Association
is made up of lawyers, is it not?
Mr. Sr~uN. Yes, and I might say that fortunately for the public
the standards of most Bar Associations is much above that, I am
afraid to say, of the American Optometric Association.
Mr. FUQUA. I appreciate your opinion.
CORPORATE PRACTICE
You have no stores, I believe, in Virginia or Maryland, is that
true?
Mr. STEIN. We have just recently established a store in Mary-
land.
Mr. FUQTJA. And you engage in a corporate practice there?
Mr. STEIN. No, we do not.
Mr. FUQUA. It is prohibited by Maryland law?
Mr. STEIN. Yes.
Mr. FUQtTA. It is prohibited by both Virginia and Maryland, but
l,T~~gjflj~ did have a grandfather clause.
Do you have any free examinations? Do you give free eye ex-
aminations to people that come in?
Mr. STEIN. We do not. We did the last time that I testified.
Mr. FUQUA. But you do not?
Mr. STEIN. Not now, no, sir.
Mr. FUQUA. Mr. Dowdy, any questions?
Mr. DOWDY. I do not believe so.
Mr. FUQUA. Mr. Jacobs.
Mr. JACOBS. I was just wondering what your opinion is about medi-
cal doctors dispensing drugs? That is a controversy that is going on
now and it is tinder some congressional investigation on the subject.
What is your feeling about that? Do you have an opinion concerning
that practice?
Mr. STEIN. Yes, I do. I do not approve of it.
Mr. JACOBS. You do not aprove of an ophthalmologist privately
practicing and selling eyeglasses?
Mr. STEIN. That is right. This prescribing is so intimately and di-
rectly related to the sale of glasses there is this tendency to over-
prescribe.
Mr. JACOBS. Why is that true?
Mr. STEIN. Because your optometrists, as I say, are on a fixed salary
when they refract. They do not derive any commission or any profit
from the sale of eyeglasses.
Mr. JACOBS. Wouldn't that be containing an element of loyalty to
the employer?
Mr. STEIN. I would say that there is a great loyalty to the employer.
There is a great loyalty to the other professions to serve the commu-
nity and to do the very best of their ability.
Mr. JACOBS. The final success of the organization for which they
work will be and have some factor, I presume, in their own well-being?
Mr. STEIN. I think that they look at this in terms for themselves.
PAGENO="0106"
102
His salary is on a commission and all he can think about is a lesser or
greater sah~ry in the sale of eyeglasses.
Mr. JACOBS. Sir, as I understand your testimony, you would take
this Board and turn it right around and head it in the opposite direc-
tion and prohibit the optometrist to practice privately from selling
eyeglasses but permit the employment of such an optometrist by eye-
glass selling organizations?
Mr. S~rEIN. Mr. Jacobs, frankly, I am not here to dispute any other
bill except for the one that is here, but I certainly think that a bill is
being required in the public interest and it ought to be addressed to
what I believe to be the major investment; namely, the privately
practicing optometrist being able to prescribe and dispense.
Mr. JACOBS. Do you think that the highest degree of protection
against conflicting, even from the point of view of the public, might be
to divorce the prescription from the sale altogether?
Mr. `Si'1~IN. Mr. Jacobs, I said in my prepared statement that if that
were the purpose and end effect of this bill, my motion before you'
would be substantially different and my idea is that I might not even
be here today if that was the way it was.
Mr. JACOBS. Even though it might be prescribed and from that it is
kind of encouraging, isn't it?
Mr. STEIN. Yes, yes. Let me say this also, it would probably en-
hance our business, such a bill, because we would get an opportunity to
sell eyeglasses according to prescriptions of optometrists and we do not
have a chance at that `today.
Mr. JACOBS. Thank you, sir.
Mr. DOWDY. Some comments that you just made that I would like
to inquire about.
Your testimony about doctors' prescriptions, as well as prescriptions
for glasses, obviously was intended only to apply to the large cities?
Mr. STEIN. Oh, yes, let me make that very, very clear. I am sorry
that I did not do that before, Mr. Dowdy. Certainly, in the rural
communities if an optometrist is there, and there were no optician
in the vicinity or readily available, there would be no alternative but
to go to him to have him design the eyeglasses. I would be in favor
of that if there was none available or readily available. I think he
should be able *to sell the prescription.
Mr. DOWDY. I wanted to give you an opportunity to make that clear.
Mr. STEIN. Mr. Dowdy, I came from New York City, and obviously
I did not recognize the problem. I am sorry.
Mr. FnQUA. Does Sterling fit contact lenses?
Mr. STEIN. We have, yes. Contact lenses are fitted by opticians under
the direction, the immediate supervision, of an optometrist. The
optometrist, incidentally, who does that is probably one of the most
highly qualified optometrist in that regard because he is doing that
just about every day of the year. In the case of most practicing
optometrists, private optometrists, I would say that they may do three
or four or five a year. Some may do more, unless they happen to
specialize in them. So' with them it is something of a hit or miss
proposition. In our case the optometrist is one who does it all the time.
Mr. FTJQUA. Thank you very much, Mr. Stein. We appreciate your
testimony.
Thank you.
PAGENO="0107"
103
Mr. S1~IN. Thank you.
Mr. FUQUA. Our next witness will be Thomas Moyer, Assistant
Corporation Counsel, for the District of Columbia.
STATEMENT OF THOMAS F. MOYER, ASSISTANT CORPORATION
COUNSEL, DISTRICT OF COLUMBIA; ACCOMPANIED BY DR.
:CHAR~LES R. HAYMAN, ASSOCIATE DIRECTOR FOR THE PRE-
VENTIVE SERVICES OF THE DEPARTMENT OF HEALTH
Mr. Mo~n. Thank you. I am glad to be here this morning. I have
with me Dr. Charles iR. Hayman, the Associate Director for the
Preventive Services of the Department of Public Health. I would
like to have the doctor give his statement first.
Mr. FUQUA. We will be happy to hear from the both of you.
Mr. HAYMAN. I would like to speak for the Department of Health.
Dr. Grant was supposed to speak before the committee and Dr. Grant
regrets that he is unable to be here in person and he has asked me to
give his statement for him.
We believe that this bill represents some improvement over H.IR.
595, 732 and 1283, on which we commented on August 1967; how-
ever, we believe that this bill, as currently submitted, is still in need
of a considerable refinement. Our specific comments are as follows:
PROPOSED AMENDMENTS
1. Section 3 contains the same definition of "optometry" to which
we have previously objected. We believe that optometry should be
more properly defined as measurement of the powers of vision and
the adaptation of prisms or lenses for the aid thereof, utilizing any
means other than drugs.
2. It is essential that the practice of allowing visual screening pro-
cedure.s to be legally accomplished by teachers, nurses and other per-
sons who have had proper instruction and the necessary experience
to sufficiently accomplish such procedures be continued. It would be
against the public interest to forbid visual screening procedures to
be made by such persons as there are not enough optometrists and
physicians available to accomplish all these necessary `procedures. The
provisions of Section 9(a) (5) as it occurs on page 15 of the bill would
seem to forbid such activity.
3. The provisions of Section 5(a) as to reciprocity are still too
restrictive as has been indicated in our comments on the previous
bills. The requirement for a compulsory practical and oral examina-
tion is not warranted in every case.
4. Section 9(c) does not seem to be warranted as it would probably
restrict the traditional operations of opticians and may have other
restrictions in its reference to Section 8 and to section 3 (2)(f) that
are not warranted.
5. Section 7(a) (17) prohibits the practice of optometry in any
retail, mercantile, or commercial store, which seems now to be a gen-
erally acceptable practice. There is no pt~blic health reason for such
a prohibition.
6. The provision of Section 13(b), which requires that certificates
of visual condition, acuity~ and efficiency issued by a licensed optom-
PAGENO="0108"
104
etrist be accepted as qualified evidence by officers or employees of the
Government of the District of Columbia, does not seem to be neces-
sary and might cause prdblems if the certificate was in conflict with
the medical evidence produced within or without the Government of
the District of Columbia.
If the aforementioned amendments are made, we believe that the
bill, as amended, would be an improvement over existing law and we
would support its enactment with the amendments we have outlined
herein.
I would like to add that our procedures are directed technically to
school children and we are talking aibout in the neighborhood of 70,000
examinations `a year. Between 70,000 or 90,000.
We have had a great bit of success with Section 7(a).
That is the end of our formal statement. I believe that you may wish
to hear from Mr. Moyer before questioning me.
Mr. FUQITA. Do you have a statement to make, Mr. Moyer?
Mr. MOYER. I have a very short statement which summarizes the Dis-
trict's position which we have submitted.
Mr. FUQTJA. Thank you, Mr. Moyer. Go ahead with your statement.
Mr. MOYER. Mr. Chairman and members of the Subcommittee, I
have submitted a letter dated May 5, 1969, from the Assistant to the
Commissioner to the Chairman of the Committee. I ask that this
letter and accompanying analysis of the bill and proposed amend-
ments be made a part of the record. (See appendix, p. 165.) The pri~
mary points made in the letter and analysis are as follows:
1. `The District Government would prefer general licensing legisla-
tion which would authorize the District Government to make changes
in all of the licensing statutes, from time to time, as needs arise.
2. In any case, the District Government considers the provisions of
this bill to be inferior to the existing optometry law both in its medi-
cal aspects and its anti-competitive provisions prohibiting all adver-
tising and corporate practice.
3. In summary, the District Government has been aware of no
compelling reasons for enactment of this legislation. No reasons have
been submitted to the District Government to justify the curtailment
of the number of long established practices of opticians, District em-
ployees, and others in the District of Columbia which would result
from the passage of this legislation. Therefore, the District strongly
recommends against the enactment of the bill.
Mr. FUQUA. Thank you, Mr. Moyer and Mr. Hayman.
Mr. Hayman, in part of your statement you related to the definition
of optometry and certain language you requested to be added.
Do you object to optometry being called a profession?
Mr. HAYMAN. I would say that I object particularly to the language
in the last paragraph of the definition.
Mr. FUQUA. What page is that on?
Mr. HAYMAN. Page 3, the top of page 3, line 2.
Mr. FUQUA. Yes, sir, I see it now.
Mr. HAYMAN. I feel that goes beyond the measurement of vision and
the adaptation of lenses.
Mr. FUQUA. Do you think that if an optometrist detected what he
considered might be diabetes of the eye, he should not be able to tell
the patient that? That would be varying from the form?
PAGENO="0109"
105
Mr. HAYMAN. I think that he should refer that patient to a person
to make a medical diagnosis.
Mr. FUQUA. What? Not do what?
Mr. HAYMAN. He might or might not.
Mr. FIJQUA. Pardon me?
Mr. HAYMAN. He might or might not. According to the language
~f this law he would not have to. I do not say that in our transactions
with optometrists in the District we have not found this to be a par-
ticular problem; in fact, the Department has a contract with the
Optometric Association for Virginia about-
Mr. FUQUA. But we should not refer him to an ophthalmologist?
Mr. I-IIAYMAN. No, we want to be sure that he does.
Mr. FTJQUA. Yes, but that is the main objection that you have to
the definition.
Mr. HAYMAN. Yes. In other words, the possible infringement on
medical capacity which he may not be capable of performing.
Mr. FLTQUA. We are not in any way trying to make an opthalrnol-
ogist out of an optometrist. The visual screening process by teacher
and nurses. This would be nothing like in the school, like they have
a routine examination of where you stand so many feet back and look
at the test and in which you turn around and you have a little card
hung on the wall.
Mr. HAYMAN. This is a very important aspect of our program.
Like I said, we do almost a hundred thousand of these a year, and the
legislation states that it would have to be supervised by an optom-
etrist or a physician. Now, if this means daily supervision, this is
not possible.
Mr. FUQUA. But if this was taken care of in the school and as long
as the teachers were not performing as an optometrist, or ophthal-
mologist, or working iii this area-you are not trying to do that, are
you? You are just trying to limit it to the actual examination made
which detects that a child may be suffering from bad vision. Is that
all that you are intending?
Mr. HAYMAN. Yes, we are just saying that we do not feel that it
is necessary to have this kind of supervision. The Motor Vehicle
Department does this every day.
Mr. FUQUA. Yes, sir. That is the case that I was talking about where
you put a little card up on the wall and you say this is the E and
which wa.y is it facing.
The reciprocity that you speak of is in the case that is now dealing
with the medical profession and the dental profession in the District
of Columbia.
Mr. HAYMAN. It is in the medical profession, but not in the dental-
well, if you are speaking about the requirement for practical or oral
examination?
Mr. F~QuA. Yes, sir.
Mr. HAYMAN. it is not in the medical profession, but it is in the
dental profession.
Mr. FUQUA. But there is a certain amount of reciprocity between
other States? .
Mr. I-lAYMAN. Let me clarify this. There are reciprocity agreements
for medicine and dentistry by various ways with each State. In
dentistry the dental board requires the practical and oral examination
in every instance.
PAGENO="0110"
106
Mr. FUQUA. Well, then this would be a departure for optometry
then?
Mr. HAYMAN. Right.
Mr. FUQUA. Do you feel as though-
Mr. HAYMAN. Mr. Chairman, let me just say that our position in
reciprocity is that we feel particularly in medicine and probably in
dentistry also and probably in optometry that we have progressed here.
Mr. FUGUA. You feel as though they should be qualified and be able
to give the examination?
Mr. ITAYMAN. The general stand throughout the country is getting
pretty much the same.
Mr. FUGUA. Yes, sir.
Mr. HAYMAN. A license in one State for all purposes should be
recognized in another, but this is not true in the other professions.
Mr. FUQUA. It is not?
Mr. I-lAYMAN. Well, it is more true in medicine than in others.
Mr. FUQTJA. You feel as though the practice of optometry in retail
or mercantile or commercial stores is performed as a service of good
eye care?
Mr. HAYMAN. Well, from the professional viewpoint, we do not feel
that there is any difference. There may be economic questions which
we are not aware of.
Mr. FUQUA. But if a man can get a free vocation for selling a second
pair of glasses in a commercial establishment, this constitutes good
eye care?
Mr. I-lAYMAN. WTell, if those things were brought out, it would not be.
If there was documentation.
Mr. FUQUA. How about the practice of a bait advertising and some
of these methods that were recently revealed in a Federal Trade Com-
mission case? It happened right here in the District of Columbia. Is
that good eye care?
Mr. HAYMAN. No, it is not.
Mr. FUQUA. You mentioned also about the optometrists, and this is
under Item 6 on page 2 where it says certificates issued by a licensed
Optometrist must be accepted as qualified evidence by officers or em-
ployees of the District of Columbia, and I believe in the bill it states
that this is what it is all about. On page 19, line 5, it says:
Optometrists licensed under this Act shall be considered competent
and qualified by the court to present testimony relating to the practice
defined by this Act.
This would be like qualifying the medical doctor or some other person
as an expert witness and he could be disqualified by the Board if they
felt his qualifications were not competent. Is it not true that under
Social Security we grant optometrists the right to make certain evalua-
tions as to a person's visual ability?
Mr. HAYMAN. We have no strong objection to this. We just feel that
there may be some conflict. There are cases which may be identified by
the optomertists as opposed to the opinion of the ophthalmologist.
Mr. FUQUA. In a case of identifying diabetes in the eye, this is a
strictly medical question.
Mr. HAYMAN. This is the only thing we are concerned about. This is
possibly the conflict.
Mr. FUQUA. Thank you.
PAGENO="0111"
107
Mr. Jacobs, any questions?
Mr. JACOBS. No.
Mr. FUQUA. Thank you, gentlemen, very much and we appreciate
your testimony.
Our next witness will be Mr. Richard A. `Weinrnann. He is represent-
~tive from the Optical Council of the International Union of the
Electrical Workers, AFL-CIO and the Ti rnted Optical `Workers Un-
ion, Local 408.
STATEMENT OP RICHARD A. WEINMANN, ON BEHALF OF OPTICAL
COUNCIL OP THE INTERNATIONAL UNION OF ELECTRICAL
WORKERS, AFL-CIO, AND UNITED OPTICAL WORKERS UNION,
LOCAL 408, IUE, AFL-CIO
Mr. WEINMANN. Thank you, gentlemen, for the opportunity to
appear at these hearings. I will hope that you will excuse the short-
ness of the statement but we had short notice of these hearings. Thank
you for affording me the opportunity-
Mr. FUQUA. Excuse me. Identify the gentleman helping you to pre-
pare to do that.
Mr. WEINMANN. We have sitting at your left and my right Mr. John
Callahan from the International Union of Electrical Workers, and
sitting to your right and my left is Marting Rosen, a member of Local
408, United Optical `Workers Union, Local 408, and he has been an
optometrist for the past 27 years.
I might point out to you that having sat in the hearings yesterday
*and heard the testimony that you placed a great deal of importance
on the question of having confidence in the person that you are going
to, and I would like to say, Mr. Dowdy, that I have known Mr. Rosen
for approximately 15 years and I have no hesitation whatsoever in
saying that I get glasses from Mr. Rosen and I got them and I have
the utmost confidence in him. He is employed by a corporation in the
State of New York.
Now, my name is Richard A. Weinmann. I am a partner in the law
firm of Sipser, Weinstock, Weinmann and Eisner, 50 Broad Street,
New York City, counsel for the past 27 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 which are vitally inter-
ested in the rising costs of eye care, which this bill will bring about if
enacted. I am here today to testify in opposition to H.R. 2388 on be-
half of the Optical Council of the International Union of Electrical
Work~rs, AFL-CIO, consisting of optical local unions in the IUE,
and Local 408.
Ou;~ analysis of H.R. 2388 brings us to the conclusion that like its
1967 predecessors, H.R. 595, H.R. 732, H.R. 1283, H.R. 10075, J-LR.
12251, H.R. 12276, and H.R. 12297, it is a bill inspired by the Amen-
can Optometric Association, heavily weighted in favor of what we
call salon optometrists and against the consuming public of the Dis-
trict of Columbia, as well as against opticians, employed optometrists,
corporations and other employers of optometrists and opticians, the
unions which represent such employees, their pension and welfare
funds, employers who contribute to such funds and others.
PAGENO="0112"
108
We do not quarrel with efforts to update a law which is 45 years
old. That is commendable. But the main thrust of this bill is to out-
law the employment of licensed optometrists by firms and corpora-
tions, and we say to corner the eyeglass market for the optometrist.
An optometrist is a hybrid which grew up in our national life,
combining paraprofessional and merchandising characteristics, with
the accent on the merchandising side. He makes his living selling eye-
glasses. If one were to suggest to salon optometrists that they could
be accorded professional status provided they abandon the sale of eye-
glasses, they would immediately withdraw their sponsorship and sup-
port H.R. 2388. Test the American Optometric Association and see.
The raison d'etre of optometrists is precisely the sale, euphemistically
referred to as "dispensing," eyeglasses. All the high sounding phrases
to the contrary notwithstanding, 75 percent of all the monies earned
by optometrists are earned from the sale of eyeglasses. Proof of this
fact was submitted to Subcommittee No. 5 of this Committee 2 years
ago.
Optometrists studiously avoided involvement in the Hart bill hear-
ings before the United States Senate in 1967. The AOA Journal
warned its members about this bill. The Hart bill, as you may recall,
would prohibit practitioners as defined therein from the sale of drugs
or eyeglasses. H.R. 2388 and all its sisters are the reverse of the Hart
bill. H.R. 2388 would professionalize the optometrist while at the same
time authorizing him to sell eyeglasses. We agree with the ethical
premise of the Hart bill.
This was sought to be made in prior testimony. This goes to the
question that Mr. Fuqua asked with regard to the comparison of the
dentist and dentures. Now, the fact of the matter is that while a
dentist does obtain dentures for his paient, it would be unthinkable to
me, if he is a member of a learned profession, it would be unthinkable
to me that a dentist would get a profit from the denture itself from
the item, physical item. I think what a dentist does is, he does the
work. He does what he gets paid for and when he gets a laboratory
to prepare the denture he acts as a pass-on in the cost. To him that
denture is a totally different proposition than what the optometrist
does. The optometrist does not do that.
The optometrist takes that pair of glasses, even in a small town,
Mr. Dowdy, in a small town where you have no ophthalmologist, for
example, where he has his problem and there is nobody around to
make the eyeglasses and he needs someone to get those eyeglasses.
I would not object to that, provided he then did not charge for
those eyeglasses at a profit, making a profit on top of the cost of the
item itself is just not fair. It just does not serve the fee.
We say that it is clear that the optometrist is not just a service.
We say that it is clear that the optometrist-that it is not just a
service by the optometrist-that he has a reason for existing and so
that is where he makes his money and the statistics of funds that is
found. That is so. The examination is one thing in itself and the
money he makes on the sale of ~ny glasses that he sells are really his
bread and butter.
CORPORATE PRACTICE
Now, we say that the guts of H.R. 2388 are found on page 9, lines
4 through 9 (Section 7(a) subdivisions 17 and 18); on page 10, lines
PAGENO="0113"
109
10 through 14 (Section 8(a) (2); and on page 12, lines 3 through 9
(Section 8(a) (7). These provisions would prohibit the practice of
optometry anywhere except in a salon or office, would prohibit an
optometrist from employment as such by a company, association, cor-
poration or anyone else, except, interestingly enough, employment by
another optometrist (page 9, line 9) and would prohibit the practice
of optometry by companies, associations or corporations.
~\That would be the result of the passage of this bill? It would re-
sult in the elimination of low cost optical care for many thousands
of people of modest income in the District of Columbia, precisely
those who need it most, because salon optometrists charge higher
prices; and it would also greatly reduce the number of trained indi-
viduals in the optical field who could provide eye care.
I would just like to point out that optometrists are doing very well.
We have got 20 optometrists now and I do not think that they differ
from the corporate practice of optometry one iota. This is the practice
of optometry by companies and associations or corporations.
Now, that is so because obviously many of our employed optomet-
rists have to leave the field. Their alternatives find some capital and
they start to build a practice, but optometrists may be 50 or 60 years
old by now and they are not in the position to do that, so they leave
the operation and who is going to do anything about it? It is a void
and that void is going to result in a detriment of the citizens of the
District of Columbia.
Further, it would result in layoffs and the creation of a block of
unemployed optometrists, opticians and other employees of corpo-
rations and other employers, and would forced tra.ined employed li-
censed optometrists to leave the field and to give up valuable rights as
employees. Moreover, it would drive the cost of eyeglasses and eye
care sky high, 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-
plo.yed optometrists, despite malarky to the contrary. This question,
in fact, was recently litigated in the State of New York and its highest
court, 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
instant bill in the District of Columbia is intended as a forerunner for
other States. It corresponds with simultaneous efforts in other States
to introduce similar legislation. Such legislation, for example, was
passed in the dying moments of the New York State Legislature in
1967 (Senate Intro 3335-A, Gordon) and was promptly vetoed by
Governor Rockefeller. A similar bill was vetoed previously by the then
Governor Harriman.
I might add that in 1969 New York, in the New York Legislature.,
in their closing days, had another anti-corporate practice bill with
those bills that were not passed by the Houses of the State Legislature.
We cannot fail to note that the broad proscriptions set forth on page
12, lines 10 to 13 (Section 8(a) (9) and page 11, lines 8 to 15 (Section
8 (a) (4) make it unlawful to advertise eyeglasses or any other
29-179---G9--------8
PAGENO="0114"
110
ophthalmic material to the public. In this instance, the salon optome-
trist seeks to undermine competition from opticians and exposes the
dichotomy of his position, i.e., he at one and the same time claims to be
.a member of a learned profession, i.e., he at one and the same time
claims to be a member of a learned profession and as a businessman
seeks to corner the market for his product, eyeglasses. There is no more
reason to preclude such advertising by opticians than to preclude an
automotive repair shop from advertising mechanical repairs.
OPTOMETRY A PROFESSION
There has been testimony that all the States consider optometry a
"profession." The term is used very, very loosely, however. In practi-
cally all instances it was so described in order to justify the State's
right to license optometrists. At the same time, corporations are per-
mitted to practice optometry in the very States which describe optome-
try as a profession, such as New York, for example, Ophthalmic
dispensing and physical therapy are also professions by the same loose
definition. So are baseball playing and prize fighting, among other
occupations.
Pharmacy is in the same category. Would any member of this com-
mittee suggest that corporations should not be permitted to employ
licensed pharmacists, and that pharmacy should be restricted to in-
dividual pharmacists in their own salons or offices? That suggestion is
no more reasonable when applied to optometrists.
In fact, a Pennsylvania statute to that effect with regard to optome-
trists was held unconstitutional by the United States Supreme Court.
Liggett Company v. Baidridge, 278 U.S. 105. A more accurate way of
describing the aforementioned occupations would be to call them para-
professions.
What is the test of a true learned profession? We say the test is
whether the individuals concerned offer a product for sale or whether
the individuals concerned offer a product for sale or whether there is
a higher ethic controlling in the particular occupation than the mar-
ket place. So long as opticians sell eyeglasses, optometry cannot be a
true profession. We note in this respect that two predecessors of H.R
2388, namely, H.R. 595 and H.R. 732 (1967) declared optometry a
profession by fiat. 2388 avoids getting into an argument about this by
simply assuming that optometry is a profession. However, so long as
optometrists earn 75 percent of their income from eyeglass sales, as
they do, the assumption is unwarranted.
I would like to point out that this question was asked by Mr. Fuqua
earlier today. He asked if there was any objection to calling optometry
a profession. Dr. McCrary stated, on page four and five of his state-
ment: "H.R. 2388 does not state that optometry is a learned profes-
sion," and "This bill will make it a profession."
Mr. FUQUA. It says, nevertheless, that optometry is a health profes-
sion just like medicine.
Mr. WEINMANN. Well, I think that is a contrary position and I think
the reason for that is that profession is a matter of semantics today.
It is a learned profession. They deal with fundamental problems. They
deal with life itself.
PAGENO="0115"
111
Then you have the question of calling somebody a professional and
trying to call somebody else an amateur. In short, you see that many
complications are involved in this.
Take for example, we have ball players and we have players. Player
I is a pro and 1 is an amateur, and those are professionals, so you can
say, does anybody have an objection to calling a prize fighter profes-
sional? Frankly, I do not. Then you have a third category of profes-
sionals. That is the new professional that gets up there by virtue of a
skill. He is not a member of a learned profession and he does not have
real education. He just requires a license. I am talking about architects,
engineers, optometrists, physical therapists, nurses, teachers, ophthal-
mologists, opticians.
Really, these people, I would say are paraprofessionals, but do you
ivant to call them, loosely, professionals in the common use of the term?
In that sense, I would not have any objection or any client because we
would not have any objection. What we do object to, though, is that
the optometrists are trying to describe themselves as a profession not
merely as a piece of nomenclature like a teacher or an architect, but
they want to build on that title and use that as a gimmick whereby they
leave them by their own bootstraps and be, therefore, as a result of
~being a professional by that fact alone, being called a professional, they
then want all of the surrounding privileges and sanctity that comes
with a learned profession and that is the thing we object to strongly.
It is clearly that that is the kind of profession we are talking about.
There is no objection. Now, New York, for example. There was a bill
that passed one of the Houses of the State Legislature and that was the
Dominic bill. It was on an educational bill which was with regard to
optometry and this is really the first one in the State of New York.
Now, the AOA agreed with that bill. So you now can go down the
line and where you stop, I think, is really of no great consequence. I
think that it is really losing significance to describe anyone as a
professional and they are trying to claim themselves to be a learned
professional.
Now, as long ago as 1936 an effort was made to prevent corporations
from organizing to engage in the sale of eyeglasses in New York by
the New York State Optometric Association, Inc., Dickson v. Flynn,
246 App. Div. 341. The Appellate Division upheld the right of such
corporations to organize for that purpose, saying:
The Legislature did not deem it necessary to create a professional
O1)tOmetriSt monopoly. 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.
The decision was later affirmed by the State's highest court, the
Court of Appeals, at 273 NY 272, because of this bill.
In the Dickson case, the Court likened corporate practice of op-
tometry to a private or other hospital, saying of the latter that:
An institution of this character, possession 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.
PAGENO="0116"
112
That would prevent a businessman from opening up and getting a
profit. That is not found in the medicine profession. We would not
think of it, and yet he could be in a corporation or in any event,
certainly, a profit-making enterprise and it just relates to the different
types of profit.
The important question, of course, is whether there is on the staff
of the hospital duly registered physicians, or whether there is on the
store staff duly registered optometrists.
Suppose an ethical optometrist in private practice wanted to be-
come a lawyer or perhaps he wanted to work part time as an optom-
etrist. Does he look at his ethics? Suppose an individual has been
working somewhere in employment and he now has enough money, we
will say, to do well as a private practitioner and he does that, does
that mean that he is going to be unethical as a private practitioner?
CONCLUSIONS
Based on the above, one must conclude that H.IR. 2388 should not be
passed for the following reasons:
1. It will eliminate low-cost eye care for the general public and
especially for those who need it most, the Negro and working popula-
tion of the District of Columbia, without any corresponding benefit.
2. It will reduce the number of competent persons available to pro-
vide eye care.
3. It will drive out all optometric firms and corporations, together
with all their employees of all descriptions, thereby creating unem-
ployment and undermining the economic security, 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, all with-
out due process.
5. The Congressional imprimatur will have been placed upon a bad
bill which is intended to serve as a model in all 50 States by the real
sponsor and sole beneficiary, the American Optometric Association
and its salon optometrist members.
We know from experience in New York with a similar measure
that H.R. 2388 is a so-called corporate practice bill primarily designed
to eliminate corporate employers of optometrists as competitors. This
is the heart of the matter. Leave this provision in and all the other
provisions objected to by ophthalmologists, osteopaths, opticians and
others would gladly be deleted or amended by the AOA. Some of
these have already been deleted. On the other hand, as we pointed out,
two years ago, make illegal the right of optometrists to sell eyeglasses
and bills such as H.R. 2388 will be quickly abandoned by the 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 inherent-
ly paraprofessional group to artificial "professional" status, while it
continues to sell eyeglasses in the market place which it claims to abhor.
We urge the rejection of H.R. 2388 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
PAGENO="0117"
113
modernize the optometry law in the District of Colum~bia. However,
this bill creates far greater evils than it solves, and therefore should
not be permitted to become law.
I might have a few other comments on modernization.
If I may, I would like to make just a few comments with regard to
some of the statements made by Mr. McCrary on behalf of the AOA
because I believe he was the only witness who spoke in favor of this
bill.
Mr. McCrary on page nine of the statement raised the questions of
profit-making. I submit that you maintain that there is not a private
practicing optometrist who is not in the business of selling eyeglasses
and making money thereby. You say it is not optometrist employer-
profit motivated in an operation where they operate. He is in a posi-
tion of profit-making.
We have seen materials published by AOA or other organizations
which it dominates controls and established, which we may or may not
consider as the professional term, but material put out by-inciden-
tally, not just by Sears, Roebuck or any other corporation which is pro-
moting optometry, but by optical suppliers.
I do not think that any optometrist is responsible for literature that
is put out by optical suppliers and we say that such corporations are not
responsible for that kind of material even if there was something
wrong with that material. I am not sure that I am not saying any
position, or whether there was anything wrong with regard to it. For
example, I have over here four pairs of eyeglasses. I have been walking
around f or 25 years and I might say that I first got these from a cor-
porate employer.
I got these four pairs of glasses from a private practicing optome-
trist, and I got them, and I feel that he did me a service.
I needed four pairs of glasses for my particular needs. I have a
prescription sunglasses, because I found myself walking into doors in
the summertime and when I walked out into the~ sun it hurt, and some-
time.s in the wintertime. I have a pair of reading glasses which I wear
when I am reading and I have, a pair of driving glasses which I call
my driving glasses. I use them when I have the automobile out at night
and I also use them to recognize a congressman from a considerable
distance.
Then I have a pair of ordinary glasses I use for every day-
Mr. HARSHA. Do I understand you to say that you can walk around
with the same pair of glasses?
Mr. WEINMANN. Not the same pair. Four pairs of glasses for 25
years. That is my statement, and I got those four pairs from a private
practicing optometrist and I used them for different purposes all the
time. I keep changing my glasses. I change them when I feel I need
to do so. For my own personal purpose this was desirable. I do not see
anything wrong with doing it. I do it out of choice and out of recom-
mendation from the private practicing optometrist who suggested it
to me and I feel that he did me a service and I have no faults to find
with it.
The point I am making is that there was a great criticizm of litera-
ture which indicates that this might be a professional service to the
public to suggest to them that they might need a pair of prescription
PAGENO="0118"
114
sunglasses along with another pair of glasses. I do not think there is
anything wrong in that kind of a suggestion. It stands by itself.
Maybe I am not talking now about pressure operation. Now then,
you get into the area that is the next point that I wanted to raise. That
is the question of unethical practices and bait advertising. I could
not agree with you more, Mr. Fuqua, and you, Congressman. I am 100-
percent opposed to that policy. Of course that is improper. Who are we
to say that there is no difference at all between honest advertising and
bait advertising? Is all advertising bait advertising? I do not think so,,
and I do not see anything wrong with truthful advertising~
See, here again you get into the question of "professional." Now, if
you want to call optometrists a profession, that is perfectly okay with
me, but it takes the term "profession" in the same sense that the teacher
and optician and other professions do. That does not mean they cannot
advertise because who is to say that they are not a member of the
learned profession? So if they sell a product and the product is eye-
glasses, I do not see any great harm in advertising. I think this is our'
life's blood.
I do agree with you that there are also other private practicing
opticians and optometrists and there are people in every walk life and
in every business indulge in improper advertising and usually are
picked up by the Chamber of Commerce or picked up by the Better
Business Bureau or picked up by the FTC. That is fine when the'
FTC goes over and picks them up. I feel that they are doing their duty,.
but the fact is that they are doing this.
I would like to point out the FTC is doing its duty. They are doing
their duty particularly since what Mr. McCrary says on page 9 of his
statement that advertising is decreasing, so what is this great need that
has to be shown now? I do not see that advertising is evil. I only see
that bait advertising or improper advertising as evil, and I feel that
the subcommittee should deal with legislation to regulate advertising'
that is desirable.
Still in all, I would go along with legislation which restricts im-
proper forms of advertising. We say other than that there is no adver-
tising problem.
Now, there is another problem, and that is found in the bill itself
on page 9, which outlines the practice of the optometrist in retail,.
mercantile, or commercial stores. Well, the simple fact of the matter'
is that of the approximately 73 optometrists in the District of Co~
lumbia, 48 of them are themselves in retail stores.
IVell, if this bill-if it is the intention of this bill to prohibit that
kind of practice that 48 optometrists are gong to have to leave their
stores and cease that practice. You are left with a nucleus of about
25 holier than thou optometrists in the entire District of Columbia
and they are the only people that do not benefit from the legislation
and benefit at the expense of everybody else in the District of Columbia.
I also do not understand why the limitation on the store is there.
I would like to know if there is such a big difference between a loft
and a store. The only difference I can find is that you have to walk
upstairs and in the other case all you do is walk straight in. When you
start eliminating the people that are in the loft you may get down
to about six optometrists practicing from an office and then this legis-
lation would be solely on their behalf.
PAGENO="0119"
115
CORPORATE PRACTICE
Two more points. One is that we say the employed optometrist is
far less likely to be concerned with profit. than the private practicing
optometrist who puts his entire fee into his own `pocket after he dis-
tributes his costs. He says at most the employed optometrists are indi-
vidual workers.
All optometrists, to my knowledge, in the city of New York and
elsewhere are practically all on the salary basis and we say that the"
salary makes for quality because an individual on a salary does not
have the incentive for making a profit and he has a far less incentive
than the profit practicing optometrist who has this incentive. He can
make his profit on the selling of glasses and in the other cases the
individuals on a salary. In fact, that is why they are given th&
incentive.
Now, I would like to point out in that connection that the Army
Surgeon General of the United State.s said that their people work on
a salary and they do not work on a commission basis. Is there anything'
wrong with their method of medical care? 1 would like to see it. I
do not believe that they have any problem.
That is an additional protection against the employer who seeks..
to force his optometrist to violate their oaths.
Further, we do not c'ontend that-I wouJd just like to say that.
Union Local 408 sees to it that they are paid on a salary.. They do not'
do anything to violate their oaths and if they did the unioii would
be on their backs and-he would have 100 percent of' the union there
to back him up.
On page 14 lie cautions ab'out various other things which I perhaps
agree with. In any event., the use of the drug that he mentioned here
is in debate. It is legal, as far as we are concerned, and in fact it is.
one of the problems which your bill would deal with the use of drugs.
for the first time.
Under tile definition it says that, "Ophthalmology is the employ-
ment of any objective or subjective means for the examination of tile'
human tendencies that would mean through tile use of drugs."
That is terrible. We certainly do not. condone that. Nevertheless, in
this area tile AOA comes into the pictui~e iii the ophthalmologist who
is zealously guarding his prerogatives is opposed to the use of this
drug and he says tha.t something should l)e done to the ophthalmolo-
gist because it was left to the other when it was needed.
I dare say there is no evidence to substantiate the comments made by'
Mr. McCrary.
OPTOMETRIC BOARD
The final point, that I would like to make is a question that arose
earlier that. Mr. Fuqua raised about when lie compared' the Optometric'
Board with the Bar Association-well, I must say that there is no
comparison at least in some areas, first of all, the heart of the matter is
that in the case of the Bar Association we make t.he' assumption that
the Bar Association represents the Bar. It should and does represent
all the segments of the Bar, whereas there are no divisions among'
lawyers of the type that exist.s in the optometric field. There are many'
optometrists who are in private practice. There are very'good reasons
PAGENO="0120"
116
for that because you do have employed lawyers, but they are house
counsel and you do not have the employed lawyer by a corporation who
then is engaged in a private practice. The reason you do not is that he
is a member of the profession and he is a member of a learned profes-
sion. That is the point that Mr. Stein was making and I just wanted to
bring it out.
You do not have the problem of setting rules and regulations. Any
view that comes out of it is not a colored view. It is a view of the group
that they represent. That is wi1ere the difference is, from the situation
in connection with the Bar Association.
Gentlemen, I thank you very, very much for your patience and for
hearing me out.
Mr. FUQUA. Thank you, sir.
Mr. Dowdy, any questions
Mr. DOWDY. One. I noticed in your statement that you were opposed
to the bill for one thing because it would deprive employees of the right
to work. I hope you would take that position on any bill that would
deprive any workman of the right to work?
Mr. WEINMANN. Mr. Dowdy, I might say that my law partner took
that very position in a case in South Carolina in the past several weeks.
Mr. DOWDY. Thank you, sir.
MODERNIZE PRESENT LAW
Mr. HARSHA. Can you tell me, Mr. Weinmann, within five minutes or
less, what you would do to modernize the optometry law in the District
of Columbia? You say you support the modernization of it.
Mr. WEINMANN. I said, Mr. Harsha, that I have no objections to this
committee looking into the need, really the; need for modernization. I
do not know anything else about it because nothing has come to my
attention at all. I have heard nothing and I have read through all of
the testimony for 1966 and 1967 and really nothing has come across my
desk or that I have seen in which my judgment even warrants the
modernization, but I do not want to close the door on that at all. I
may be looking at it with a prejudice.
Mr. HARSHA. On the contrary, you say that you support efforts
to modernize optometry.
Mr. WEINMANN. Yes. If there is any need for it, I do support it, and
I think this committee would serve a useful purpose to continue to
look into the question of what evils there are which need a remedy
here, but I have not heard of any evil that needs a remedy. Bait
advertising-that is a possibility. I will go along with that.
Mr. HARSHA. Are you saying that there is no need to modernize
optometry?
Mr. WEINMANN. My position is that I think that any time you have
a bill that is 45 years old you have to take a look at it. There are
some bills that were brought out yesterday-you got the Sherman
Antitrust Act that goes back to 1918. There are all kinds of laws that
are on our books that go back hundreds of years and some of those
are salutary and still should be in effect.
On the other hand, you have got the community which might be
interested. You have got many things which you have really got to
take a look at and wipe it from the books.
PAGENO="0121"
117
Mr. HARSHA. You are familiar with the D.C. Optometry Law?
Mr. WEINMANN. I am. I said before that I have not read very much
about it. The committee may feel that it is desirable to update the law
in connection with whatever abuses there are. This bait advertising
has become a serious problem for the District of Columbia, then, by
gosh Congressmen, let's have a bill which will deal with that par-
ticular problem. What I am saying is that the problem of advertising
in general is not a real problem, as I see it.
The problem of the-
Mr. HARSHA. You discussed this during the past 30 or 40 minutes.
\~Te have heard all that. I want an answer to my question. You said a
minute ago that you thought any law 45 years old ought to be looked at,
and you said in your testimony that you support efforts to modernize.
Mr. WEINMANN. Yes, sir.
Mr. HARSHA. How would you modernize the optometry law in the
District of Columbia?
Mr. WEINMANN. Well, I would direct your attention to bait adver-
tising, or any improper practice whereby the individuals are being
sold glasses which they do not need or do not want, and the rest of it.
Mr. HARSHA. You say there ought to be a change; something should
be done about it?
Mr. WEINMANN. I think that is a proper area for legislation.
Mr. HARSI-TA. You said a few minutes ago that the FTC has handled
that?
Mr. WEINMANN. Yes; but I feel that you may believe that the FTC
is sufficient to cope with the problem. Frankly, I think it might be
sufficient to cope with the problem.
Mr. HARSHA. Mr. Rosen, I have a question for you.
By the way, are you a doctor?
Mr. ROSEN. Some people don't call me doctor. I do not hold the
title of doctor, no. I am addressed as Doctor by some people.
CORPORATE PRAOTICE
Mr. HARSHA. I see. Now, all right, Mr. Rosen, did you hear Dr.
McCrary's testimony the other day?
Mr. ROSEN. Yes, sir.
Mr. HAR5HA. He made this point, and I assume that you work
for a corporate employer?
Mr. RosEN. Yes, sir.
Mr. HARSHA. He brings his point out about corporations hiring
optometrists on a salary plus commission, or just a commission, and
they are constantly being driven to sell more glasses and to bring in
more profit and employing to the very least the ethical oath that
they take, whatever it may be. Would you comment on that?
Mr. ROSEN. In my own case, I found that it is just not true. I
worked on a flat salary basis, with no commission at all. That is what
I do now.
As a matter of fact, several years ago there was a small bonus
arrangement in relation to contact lenses and at my insistence we
discontinued it. It was discontinued for the simple reason that I found
it standing between me and my judgment as to whether I should
recommend contact lenses for a patient.
PAGENO="0122"
118
Now, it is not true in all cases. It is true of a small segment of
the cases where you are not sure of what you want to do and the
fact that you have a commission coming helps you to decide, and
it did play a part in my judgment, and we ceased that practice about
three years ago.
Mr. HARSHA. You say that there is a small percentage in the area
where that kind of a profit is in practice?
Mr. ROSEN. No, no. I said that there is a judgment that I have to
make to recommend or not to recommend contact lenses. Some cases
`are different than others and my judgment would be colored in some
subtle way because of the commission involved and so I discontinued
~this and I refused to operate that way.
Mr. HARSHA. I see.
Can you tell us if there are a number of men who have the same
high ethical standard that apparently you have, in this same field,
`working a corporate practice?
Mr. ROSEN. I know many optometrists and I would say some are
ethical and more ethical than men in private practice. It is totally
`an irrelevant question as to a man's ethics. A man is what he is be-
cause of some internal thing within himself. It has nothino~ to do
with where he works or how he works or the manner in w~iich he
`does it.
Mr. HARSHA. Would you feel, if you were working on a commission,
that that would color your judgment?
Mr. ROSEN. Yes, it might and I would be totally opposed to it.
Mr. HARSHA. Would your profit-motive as an employee of the cor-
`poration be any greater or less than that of the private practitioner in
the field of optometry?
Mr. ROSEN. I can only answer that for myself and for myself I
feel more comfortable as an employed optometrist because there is
`no fee for service and at all times I am dealing with a patient who
`needs some help and I can apply the help.
The question of what the corporation makes money on, it is of no
interest to me. The corporation makes a lot of money and whatever
`happens in this individual case is totally irrelevant to the financial
`status of the corporation.
Mr. HARSHA. I apparently did not make my point clear. What I
am trying to indicate is `that the profit motive is not solely peculiar
to the optometrist who works for the corporation but the private
optometrist is also in business for profit, or he wouldn't be in there,
`riaht?
~Mr. ROSEN. Right.
Mr. HARSHA. So I think that there is a degree of how you determine
`whether or not the profit motive of an employee of a corporation is
~unethical yet the profit motive of private practitioners is not. I just
do not buy his argument that one person is less motivated by profit
and more motivated by a desire to perform as a public servant than
~the other individual.
Mr. ROSEN. TI agree with you.
Mr. HARSHA. Thank you. That is all I have.
Mr. FUQUA. `Mr. Jacobs.
Mr. JACOBS. I was just wondering, Mr. Rosen, in a year's time, how
:many individua~l'patients will you see?
PAGENO="0123"
119
Mr. ROSEN. This varies tremendously. I really do not have the
~answer to that. I just do not. I never counted them.
Mr. JACOBS. I stretched it out to a year. I could ask you on the
basis of a week or a month. Can you give me a percentage on a month's
time? How about a day's?
Mr. ROSEN. Well, ten to fifteen people a day. Maybe more in some
cases. It depends.
Mr. JACOBS. How many out of ten or fifteen do you think that from
your actual experience, have you advised not to buy glasses?
Mr. ROSEN. An enormous number. If I were to make a guess of the
people that I had to tell that they needed no change in glasses, or they
should seek other optometrist's advice or other medical advice, or
psychiatric advice, I would venture to say it is a good fifteen to twenty
percent of the total amount of people.
Mr. JACOBS. Good. I think it is interesting to have that for the
record.
Mr. DOWDY. I would like to be clear on this about the contact lenses.
You said in most cases, the choice is clear and obvious whether to
recommend glasses or contact lenses, but in some instances you would
have a problem because of a close question which to recommend to
*a patient. Was this because of the fact that there was a commission
for you, or was it just that you had a doubt which way to recommend
and you did not want the commission to influence or color your
judgment?
Mr. ROSEN. Yes, sir.
Mr. DOWDY. I thought I understood you correctly.
Mr. ROSEN. It was because of the commission.
Mr. DOWDY. That is all.
Mr. FnQ1JA. Mr. Weinmann, I appreciate your statement and par-
ticularly the comments that you made about the profit motive that
may prevail in the private practice of optometrists because I cer-
tainly hope if this is existing in the District of Columbia that this
legislation will put the funds in the hands of `the representatve body
and that this can be enforced, and that this will not prevail.
Now, you mentioned the use of drugs in the definition of optometry.
Page 15, starting on line 16 of the bill where it specifically excludes
the use of drugs and medicine and even to write a prescription for
the obtaining of drugs and medicine iii any form for the treatment
or examination of the human eye.
Mr. WEINMANN. There is a difference between the use of drugs and
medicine, that is right. That is a good provision.
Mr. FUQIJA. We are not attempting-
Mr. WEINMANN. I feel that is contradictory, Mr. Congressman. I
agree that it would s'ow this whole problem down. I think that the
limitation should be there and it is on page two, line 15 through 17,
that should be cut down to size. That should be greatly narrowed.
Otherwise, you will run into a snag of having to look at other sections
of the bill to find an exception. It is just too broad a statement.
Mr. FUQUA. On page two, line 15 through 17?
Mr. WEINMANN. On page two.
Mr. FUQUA. Subsection (a)?
Mr. WEINMANN. That is right, (a), and also (b), (c), and (d).
1 feel that there are other terrible shortcomings of that whole defini-
PAGENO="0124"
120
tion and those are the words that were brought out yesterday, about
the Board as they are included in curriculum of recognized schools
and colleges of optometry. That would seem to mean that as a recog-
nized school and college of optometry it would add a particular course
to its curriculum so that it would then extend the definition of practice
of optometry so that the practice of optometry, insofar as the District
of Columbia is concerned, would be determined by the procedures in
schools and colleges of optometry and, incidentally, I assume they
would vary all over the United States because it does not specify
which school and college, but how can you tie in the practice of optom-
etry in the District of Columbia with procedures determined by
schools outside the District of Columbia. That does not seem to me
to be a logical way of defining the practice of optometry at all.
It would mean that optometry in any school would severely throw
many new crosses into the curriculum and immediately this would
seem to have proper respective effect on the definition of optometry in
the District.
Mr. FUQUA. In your testimony you cite the cases of Dickson V.
Flynn (1936), New York State. When was that corporate practice ap-
proved in New York State?
Mr. WEINMANN. Well, the corporate practice., really, appears in the
statute almost by indirection. What it does is, there is a provision in
the law of the State of New York which said that no person, firm, or
corporation, shall do so and so and so, and it was sort of a limitation on
some of the functions which they may not do, and that provision then
came up in a court for determination many, many years ago, and even
before-
Mr. FUQUA. Are you familiar with the 1959 decision?
Mr. WEINMANN. I am not sure.
Mr. FUQtA. That dealt with Optical Service, Inc.
Mr. WEINMANN. Well, I know that there was a case called in the
matter of Skayton.
Mr. FUQUA. I am talking about the 1959 case.
Mr. WEINMANN. It is earlier than that, Mr. Fuqua.
Mr. FUQUA. It is the most recent case regarding corporate practice.
Mr. WEINMANN. Yes.
Mr. FTTQUA. You are familiar with it?
Mr. WEINMANN. It is the Optical Service case.
Mr. FUQ1TIA. Yes, Optical Service, Inc.
Mr. WEINMANN. I would have to be refreshed about that.
Mr. FUQUA. It states that in the case of Optical Service, Inc., that
a corporation cannot join ophthalmology for that purpose by corpora-
tion as a practice of ophthalmology by the corporation, and this is the
most recent, I think, case in New York.
Mr. WEINMANN. That is just not so. We had a case involving this
problem, and that was the Sterling case, and I think that the entire
testimony-the entire decision is a part of the record in the 1967 r'°-
ceeding and what is more, there are bills introduced every year to make
legal the corporate practice in New York. I mean corporate practice
a fact.
Mr. Martin Rosen is an employer of a corporate practice in the
Southside. .
Mr. FUQUA. Are you familiar with the Hart bill, S. 1575?
PAGENO="0125"
121
Mr. W'EINMANN. Yes.
Mr. FIJQTJA. Are you familiar with the provisions of the bill in
this 91st Congress as it relates to optometrists?
Mr. WEINMANN. I should be, but I am not.
Mr. FUQUA. It excludes eyeglasses in it.
Mr. WEINMANN. Do you mean that it excludes the optometrist by
definition, by definition of those that may not?
Mr. FiIJQUA. It exempts the dispensing of eyeglasses by optometrists
and ophthalmologists.
Mr. WEINMANN. That may be permitted. That is all right. Then
you cannot claim to be a member of a learned profession. It may be
that I have not said optometrists should stop selling. I think they
should be permitted to sell them.
HART BILL
Mr. FUQUA. You mentioned the Hart bill, and I thought I would
refresh you as to the latest-
Mr. WEINMANN. And I would dare say that AOA is possibly-no
doubt in my mind, that that is why the provision was changed from
S. 260, which was in 1968, and I am sure that AOA is responsible for
that decision and I can understand that decision because I think this
is a part of our normal life for optometrists to sell eyeglasses. I think
they are in some places doing that, but they have a right to. They have
a right to declare themselves as learned professionals who dare not
advertise and dare not do this and dare not do that. That is the
problem.
Mr. FUQUA. You would not think that the ophthalmologists were
asleep, would you, because they are exempt also?
Mr. WEINMANN. I am assured that the Hart bill sees exemption to
the ophthalmologists, does it not?
Mr. FUQUA. Yes.
Mr. WEINMANN. The ophthalmologist?
Mr. FUQUA. Yes.
Mr. WEINMANN. I have to familiarize myself.
Mr. MCGEE. You will have a problem on that if you introduce that.
You know that medicine is not in the Sherman Act. It is not in the
Sherman Act because it is not a trade of commerce and there are cases
all up and down the West Coast and in the District Court which
follow the employee to the Sherman Act to a learned profession. It is
a problem for Senator Hart. This was the real problem involved, and
I am sure that is one of the reasons why he took ophthalmology out
of the Hart bill.
Mr. FTJQUA. Thank you.
Mr. MCGEE. Senator Hart was very much concerned because in cer-
tain areas, as we have pointed out here, in the rural areas, one 0±
the Congressmen pointed it out, the only way you can get glasses
would be through a dispenser or ophthalmologist or a dispensing op-
tometrist in the servicing areas, and this is a problem. This goes to
a great segment of our population in the rural area and we have to
send away to cities to get a pair of eyeglasses, and it is just not in
the best public interest to do this.
Mr. FUQUA. I am aware that there are corporations existing here
in the District of Columbia.
PAGENO="0126"
122
Mr. MCGEE. Yes, sir, and contrary to the State of New York, the~
Silver case is quite in point on this. The Silver case held, as tlre~
Committee has been informed over and over again, that optometry
in the District of Columbia is not a profession. They say it is a
mechanical art of refraction and adapting of lenses; therefore, none
of the rules controlling the learned profession apply. And, therefore,
the corporation can hire an optometrist and they can advertise and
this is within their own constitutional rights. This is the problem.
Optometry has been trying for years to get the Silver case reversed,
without going into court, by asking the Committee to reverse it. This is
the constitutional problem that is involved.
As I think you pointed out very clearly, Mr. Chairman, the
Trade Commission Act has been applied to optometrists in the New
York Jewelry case and they are correcting the bait advertising by
assessment in the New York Jewelry case. That is precisely an exam-
ple. That was involved in that case~ sir, but you have a constitutional
problem in the District that you will not have in Maryland because the
Castelberg's decision in the Landburg versus Silver in this case arid by
Silver versus Landburg, which I am sure this Committee is familiar
with.
This is our basic problem.
The Act reverses the Silver case very definitely. It is contrary to the
Silver in its whole provision as applied to the professional advertising
employments, and all of this is hinging on the theory that optometry is
a profession and is a learned profession because if it is not a profes-
sion then you run into a constitutional requirement.
The Supreme Court in Williamson v. Lee, they said these Acts are~
very ill-conceived, but we are not going to overrule the Legislature
because they are leading into areas which are not professional areas*
but in the Legislature they can find that evil is to be corrected in a
State. They said that we are not going to interfere with it. That is all
they said in the Wiflianwon v. Lee, but they did define the three'
practices.
I think that definition is excellent that Dr. McCrary mentioned. He-
mentioned it in regard to your question of what should be done with
this Act. I think the two courts of appeal involved made it clear what'
should be done. They said Congress should clarify it. They said that~
they needed clarification because it conflicted.
I have some material that I `would like to insert into the record on
which the C'ourt of Appeals relied. I think this Committee should
have this information because this is a highly dangerous medical'
field. The Committee should be aware of the official report and what
the Court of Appeals relied on in these reports when it said that the"
matter should be resolved by Congress.
We should not be trying to do it in this case. See what they have'
done in the field is merely to say that opticians have to fight under the
direction of the ophthalmologist. Those were the only two people
involved.
Now, if this is so, then the ophthalmologist will fight because he
has to stand there while it is done. This, of course, changes the prac-
tice which has been indoctrinated 450 years on ophthalmology, and
I would like with your permission, to submit the material which was'
certified by the Court of Appeals because I think this Committee.'
PAGENO="0127"
123
should know the public health problems that are involved and which
concerned the Court, and why the Court asked this Committee to in-
vestigate and pass legislation on it, and why the Commission deferred
adopting a resolution, `because in this bill we have attempted to submit
to the complete medicine field in the public interest.
Our amendments are drawn-
CONTACT LENSES
Mr. FUQUA. Do you want to get on to contact lenses? [Laughter.]
Mr. MCGEE. Contact lenses?
Well, you asked what aspects-
Mr. FUQUA. We discussed this yesterday.
Mr. MCGEE. But you asked how this bill had been updated and this
is the updating that has been done. That is what we are considering.
May I have permission to file the material?
Mr. FUQTJA. I would like to look at the material. The only reason
why I do this is because some of the material was submitted last year
and it saves the cost of reprinting material previously submitted.
Mr. WEINMANN. I would like the official position taken by the Medi-
cal Society in its memorandum filed with the Court in the Fields case.
This is the official position so that there is no misunderstanding of
what position the Medical Society took in the public interest in the
Fields case.
I have a memorandums here which was handled with the Court,
which I would like to leave with the Committee and have it be made
a part of the record.
Mr. FUQUA. Thank you.
Mr. WEINMANN. I would like to leave with the Committee the re-
port which the Court relied upon in the Fields case, in asking that'
Congress reconsider this problem, which is a report which is published
in the June Issue of AMAL, March 14, 1967. It is associated with the
wearing of contact lenses. It is a medical report that I think the
Committee should be fully informed on the problem.
They issued another report in 1969 on contact lenses and the dangers
involved in their use.
Following that is the most recent report that was done by Dr.
Dickson and has been taken under the wing of the American Associa-
tion of Ophthalmology and entitled, "Medical Problems of Contact
Lenses." It is very short, but I think that is should be permitted be-
cause this is a very understandable medical report that I know of in
this area.
The Committee asked the question in respect to after the hearings
were concluded in March of 1966 the news, of course, had started
the Felds case. This was Mrs. Crawford's stand and her position, that
this brought about the Act, that it was not needed and it was not for
the public interest in the District of Columbia.
I would like to put in there a final position on the matter. It is an
editorial of our position and it is dated March 23, 1966.
That is the material which I have before me, but there are a few
other items that I would like to submit to the Chairman if the Chair-
man decides whether he would like to include it into the record or not.
Mr. FUQUA. I would like to review those items because there might
be some items that other people might have to submit.
PAGENO="0128"
124
Mr. MCGEE. One position was made and it was stated incorrectly.
I do not think that Dr. MeCrary meant to do this, but he used the
practice of ophthalmology in the Armed Services as an example of
interest, practicing by optometry. This was attempted by optometry,
but very recently the Surgeon General of the United States in a final
decision decided that all optometrists in the Armed Services could
not act independently in rendering eye care to soldiers.
Mr. FUQTJA. Very good rebuttal, Mr. McGee.
I would like to point out in a statement to Mr. Rosen that we appre-
ciate his comments here and his feelings are apparently in coordina-
tion with the ethical conduct and practices that he is engaged in. Un-
fortunately, we do not have all of them in that situation in the District
of Columbia because there is overwhelming evidence of the profit in-
centive being available to corporate practitioners and that is one of
the things that we are trying to correct.
In this statement, I wish to commend all of those who apparently
have a high standard in this field.
Mr. DOWDY. I want to get clear in my mind, Dr. Rosen, I will ask
you this: I am not too familiar about what the optometrist uses. Does
the optometrist use drops or drugs in the examination of eyes?
Mr. ROSEN. No.
Mr. DOWDY. Should he do so?
Mr. ROSEN. No.
Mr. DOWDY. All right. I think that settles that. I have had my eyes
examined over a period of some 40 years and they have been examined
at various times by optOmetrists and ophthalmologists and I could
not remember which did what, or whether both of them did it.
Under the definition of optometry, as stated in this bill, it would per-
mit the use of drugs or drops in the examination of eyes. I believe Mr.
Weinmann, you stated that. Now, over on page 15 of the bill, there is a
prohibition of the prescription of drugs or medicine in the treatment
of eyes by optometrists.
It says that optometrists should not be permitted to perform surgery
or to treat diseases of the human eyes by the use of drugs or medicine
and they would not be permitted to write or issue prescriptions for
obtaining of drugs or medicine for the treatment or examination of
human eyes, but it does not prohibit the use of drugs or drops in the
examination?
Mr. WEINMANN. You are right, Mr. Dowdy. You are right on the
button. That is the problem that comes when you have a very broad
definition and then you start putting exceptions, on page 15, into it,
and you have covered part of the problem but not all of the problem.
That is the same as 2(a) is on page 2.
Mr. DowDY. Is there any other prohibition section in the bill?
Mr. WEINMANN. Not that I know of.
Mr. DOWDY. I do not recall it either. That is something that we will
have to straighten out, in the event the bill is reported. I want to be
sure that I have it right-I want to be clear in my own mind about it.
Thank you.
Mr. FUQIiA. Thank you, Mr. Dowdy; and thank you, Mr. Rosen, for
appearing this morning.
This will conclude the public hearings on bill H.R. 2388.
(Whereupon, at 1:10 p.m., the committee adjourned.)
PAGENO="0129"
125
(Subsequently, the following documents were filed with the
committee:)
AMERICAN OPTOMETRIC ASSOCIATION,
Washington, D.C., May 9, 1969.
Hon. DON F[IQUA,
43~ Cannon House Office Building,
Washington, D.C. 20515
Da&i~ CONGRESSMAN FUQIIA: During the questioning directed at one of the wit-
nesses appearing in opposition to the District of Columbia Optometry bill, there
was expressed the opinion that it might be advisable to separate the prescribing
and dispensing of eyeglasses or contact lenses. The comment was made that this
might solve any conflict of interest problems relating to the providing of good
eye care.
Under H.R. 2388, optometrists would be permitted to continue the dispensing
of ophthalmic materials. The medical witness substantiated this point and fur-
ther stated that this is a common practice among optometrists.
The statements by the opponents of this bill have been unfair in this regard.
Ophthalmologists also dispense eyeglasses. This fact was not clearly established
in the testimony. According to statistics released by the American Association
of Ophthalmology in 1963, forty-two percent of all physicians in ophthalmology
include the service of fitting eyeglasses in their practice. I have enclosed a xerox
copy of the statements made in this regard during Senate hearings on the Medical
Restraint of Trade Act (1967).
We find no fault with the practice of dispensing eyeglasses by the ophthalmolo-
gists. It is incident to the rendering of professional serFices and a convenience
to the patients. These same factors hold true for the practicing optometrists.
It is unethical for an optometrist to profit on the dispensing of ophthalmic
materials. They are passed on to the patient at laboratory costs. This is clearly
stated on page 7 of the attached Code of Ethics and Rules of Practice of the
American Optometric Association. Thus, no conflict of interest exists.
The Association feels very strongly about the enforcement of the Code of
Ethics. Passage of H.R. 2388 would, for the first time, give the local optometry
board the power to write and enforce rules against unprofessional conduct and
thus eliminate any bad practices presently existing in the District.
During the second day of hearings much discussion centered on Senator Hart's
bill to regulate the trade of drugs, S. 1575. I have enclosed a copy of the bill and
call your attention to Section 3(a), on page 2. Optometrists (and ophthalmolo-
gists) are specifically exempted from the term "Medical Practitioners." The
sponsors of the bill have demonstrated their awareness of the need for exempting
the dispensing of eyeglasses from the prohibitions of Section 5, page 5. We con-
sider this exemption to be in the best interest of the public.
It is my hope that the information in this letter will be informative to you in
your consideration of H.R. 2388.
If I can be of any further assistance in this regard, please do not hesitate to
contact me.
Cordially,
RICHARD W. AvERILL, Director.
[From the Washington Post, May 7, 1969]
POTOMAC WATCH: OPTOMETRY BILL MAY RUN HUSTLERS OUT OF BUSINESS
(By William Raspberry)
House Resolution 2388 is unlikely to cause much of a commotion, being a bill
"to revise existing law relating to the examination, licensure, registration and
regulation of optometrists
But it may turn out to be a very important piece of legislation, particularly
for the poor people who have been lured into buying eyeglasses they didn't need
at unconscionable prices.
The bill is being fostered by the American Optometric Association and has as
one of its key aims the upgrading of optometry as a profession. But it also in-
cludes these provisions:
It would ban price advertising of prescription eyeglasses.
It would prohibit such come-ons as "free eye examinations or other gratui-
tons services, bonuses, premiums discounts, credit, or any other inducements."
2~d7D O-69-----~-9
PAGENO="0130"
126
It would make it unlawful for department and other retail stores to employ
optometrists.
The target of these provisions is the sort of business, often found in ghetto
communities, that hires an optometrist primarily for facilitating the sale of eye-
glasses, usually at inflated prices.
One Washington store was accused by the Federal Trade Commission of luring
customers with the offer of "free" eye examinations and glasses for $7.50,
The store owner was unable to show either that any "free" examinations had
been performed or any glasses sold for $7.50. He did acknowledge that 72 per cent
of his eyeglass sales had been for $39 or better and 17 per cent at $79.50.
Customers often were lured into the store by offers of free gifts, persuaded
to undergo the eye examination, then talked into buying as many as five pairs of
eyeglasses, the FTC said.
Backers of HR 2388 contend that such practices would be eliminated, or at
least substantially curtailed, through the banning of price advertising and the
prohibition of optometric services in conjunction with a retail business.
Some opponents claim that the bill may go too far. They note, for example, that
while optometrists in some ghetto stores may victimize the ignorant poor, in more
reputable department stores they are likely to be a convenience.
Spokesmen for the American Optometric Association are unimpressed. Any
optometrist in the employ of a retail establishment, they said, is there to move
merchandise at least as much as to provide a service.
Their defense of the advertising ban is less enthusiastic.
Some would limit the ban to price advertising only on the theory that price
advertising shifts the emphasis from the medical to the monetary. Others would
go all the way to ban all advertising, save for the use of "modest professional
cards which are truthful, accurate" and limited only to optometrist's name, office
hours, location and specialty, if any.
The major argument in favor of the total advertising ban appears to be that
physicians and lawyers are forbidden to advertise. The ban would make it illegal
to advertise in the press or to display eyeglasses, optical tools or even diplomas
"in such manner that they may be seen from the outside of the premises."
Even opticians, defined as "artisans qualified to grind lenses, fill prescriptions
and fit frames," would be forbidden to advertise prescription work. (Pharma-
cies don't advertise prices for prescription drugs, the bill's backers point out.)
Insofar as it will help to run the hustlers out of the eyeglass business, the bill
could be a valuable piece of legislation.
But some of its provisions, particularly some of its advertising restrictions,
seem aimed more at enhancing the prestige of optometrists' (by bracketing them
with physicians and lawyers) than at protecting the public.
Sponsors of the measure are Reps. B. F. Sisk (D-Calif.), Ancher Nelsen (R-
Minn.) and Don Fuqua (D-Fla).
PAGENO="0131"
APPENDIX
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 4066
NORMAN FIELDS, APPELLANT,
V.
DisTiller OF COLUMBIA, APPELLEE.
Appeal from the District of Columbia Court of General Sessions
(Argued March 6, 1967 Decided July 25, 1967)
George Greenberg, with whom Morton Kudgsh was on the brief, for appellant.
John B. Hess, Assistant Corporation Counsel, with whom Charles T. Duncan,
Corporation Counsel, Hubert B. PeAr, Principal Assistant Corporation Counsel,
and Richard W. Barton, Assistant Corporation Counsel, were on the brief, for
appellee.
Before HOOD, Chief Judge, MYERS, Associate Judge, and QUINN (Associate
Judge, Retired).
HOOD, Chief Judge: Appellant was convicted of practicing optometry with-
out a license in violation of D. C. Code 1961, § 2-502 (Supp. V, 1966), which
makes it unlawful to engage in the practice of optometry without a license.1 The
practice of optometry is defined by Section 2-501 of our Code as
the application of optical principles through technical methods and de-
vices 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.
The major question presented by this appeal is whether the adaptation and
fitting of. contact lenses constitute the practice of optometry within the meaning
of Section 2-501.
Appellant has had some twenty years of experience as an optician, most of
which has been in the District of Columbia, and has been licensed as such by
the State of New York.2 He has worked directly with several optometrists and
has had training as a contact lenses technician. Subsequently, he entered into
a partnership which operated two optical stores in the District of Columbia, one
of which was the Embassy Optical Company.
In January of 1966 a Mrs. Crawford, hereinafter sometimes referred to as
patient, visited the Embassy Optical Company to obtain contact lenses. Appel-
lant informed her that Embassy would not fit her with contact lenses without
a doctor's prescription. Several days later she again contacted Embassy and
was referred to a local ophthalmologist3 who, after examining her eyes, gave
her the required prescription to return to Embassy. This prescription gave the
readings necessary to fit eyeglasses. There was some conflict in testimony as to
whether she was requested to return to the ophthalmologist after the fitting of
contact lenses by appellant. According to Mrs. Crawford, the doctor told her she
1Persons selling spectacles or eyeglasses who do not attempt to adapt them to the eye,
and do not practice or profess the practice of optometry are exempt from this provision.
§ 2-520(b).
2Phere is no optician licensing requirement in the District of Columbia. An expert
witness testified that to be an optician in the District of Coiumbia one would only have
to find a store, "go ahead and rent it, and call yourself an optician."
"An ophthalmologist is a duly licensed physician who specializes in the care of the
eyes. An optometrist examines eyes for refractive error, recognizes (but does not treat)
diseases of the eye, and fills prescriptions for eyeglasses. The optician is an artisan qualified
to grind lenses, fill prescriptions, and fit frames." Williamson v. Lee Optical of Oklahoma,
348 U.S. 483, 486 (1955).
(127)
PAGENO="0132"
128
should return "only if you want," while the doctor testified that he told her
appellant would ask her to return.4
Mrs. Crawford took the doctor's prescription to Embassy where appellant then
proceeded to fit her with contact lenses. The initial step in the fitting was to make
certain measurements of her corneas by use of a keratometer. Once a keratometer
is properly focused upon the eye, the operator is able to measure, as accurately
as possible by instrument, the radius of curvature of the anterior surface of
part of the cornea in order to determine the approximate curve of the eye.5
Through use of a conversion table the keratometer readings were converted
into millimeter figures for the selection of the initial lenses tried on the patient.
Appellant made a vital judgment at this point; i.e., whether the curvature of the
particular lens should match the measurement obtained through use of the kera-
tometer. He testified that
the spectacle prescription given to me by the ophthalmologist will be ef-
fective if I use the same keratometer reading, if I take it off this kera-
tometer. Now, however, in the fitting of contact lenses, you don't use this
curvature all the time. Occasionally, you may change this to get a better
fit. You may make the fit of the lens a little deeper [steeper] or a little
flatter, as was described by the other witnesses.6
Expert witnesses testified that in fitting a patient a decision must be made
whether or not to exactly match the curvature given by the keratometer read-
ings, or, for a better fitting, centering, or positioning of a lens, make the curva-
ture steeper or flatter. Although there were slight differences in testimony on
whether to use the exact keratometer readings in determining the curvature of
a lens, it appears that changes have usually been made by the time a final lens
has been prepared. In addition to taking these readings, appellant made certain
measurements of the diameter of the cornea and the lid openings.
A contact lenses laboratory then prepared a set of trial lenses from the meas-
urements and judgments made by appellant. The patient was informed that these
lenses would not .be her exact prescription, but were for determining the proper
fit. Appellant testified that if you deviate from the keratometer readings to
make the fit of a lens steeper or flatter
you have to change the power of the lens itself to allow for the change
in curvature of the lens that is fitting on the eye, to approximate what is
written on the prescription [of the prescribing doctor].
This is necessitated by the lacrimal or tear lens factor. When a contact lens is
placed on the eye, one side is bordered by air and the other by the fluid tears,
the latter, in effect, becoming a tear lens. When the curvature of the lens is made
steeper in relation to the cornea, the negative power of the tear layer increases
since the tear layer is deeper over the apex. When the curvature is made flatter,
this power decreases as the tear layer is thinner over the apex. The vertex dis-
tance, how far the lens is in front of the eye, can be estimated and by reference
to a vertex distance conversion table, changes made in the power of the lens. It
appears that the correct estimate of the vertex distance is one of the larger
sources of error when making a change in a spectacle prescription for the power
of contact lenses.7 Accordingly, depending upon the fit of the lens, the power usu-
ally varies from that of a prescription for spectacles. Appellant unequivocably
~ Appellant admittedly had not done contact lenses work for this particular doctor.
Accordingly, the doctor at most would be assuming that appellant would refer patients
back to him. (The initial referral apparently resulted from their geographical proximity,
the offices being "right around the corner.") She did return some time after appellant's
arrest and her lenses were found "to be somewhat overcorrected."
The keratometer measures the meridian of greatest curvature and the meridian of least
curvature. Using the measurements of the anterior surface of the cornea, the initial pos-
terior curve (the back surface) for a contact lens can be determined. It appears that it
may actually be impossible in some cases to obtain, accurate measurements of the corneal
curvatures with the keratometer as the surface of the cornea is not a smooth curve, but
flattens out at varying distances from the center. CORNEAL CONTACT LENSES 105,
125 (Girard ed. 1964) [hereinafter cited as CORNEAL~. There was expert testimony
that the actual area of the cornea measured by a keratometer is approximately three milli-
meters while the total surface of the cornea is several times greater. Further testimony
indicates that a contact lens' size is usually at least seven millimeters, so unmeasured areas
of the cornea will necessarily be under a contact lens.
In a deep (steep) lens, the distance between the central portion of the lens and the
cornea is increased; or in other words, the lens vaults the apex. In a flat lens, the center
of the lens is fitted closer to the cornea. CORNEAL 253-4.
~CORNEAL 73, 129-30, 132. There was testimony at trial that the power of a contact
lens cannot be accurately determined from a spectacle prescription, but can only be accu-
rately done by placing a lens of known power upon the eye and then through refraction
determine what changes In power are necessary.
PAGENO="0133"
129
testified that he changed the power of the lenses from that initially prescribed
by the doctor.
It is not clear from the record at what point appellant determined the optical
zone width and what was to be the diameter of the central optical zone of the
lenses and their total diameters. These judgments were made by appellant, how-
ever. Further, he determined the central thickness of the lenses and the peripheral
curves8 to be incorporated.
Appellant testified that it was his procedure to get an unfinished lens contain-
ing only the power and base curvature from the laboratory. A secondary curve,
any change in diameter and the finishing of the edges would be done by hiS own
company to "get exactly what we
The patient was fitted with trial lenses approximately one week after these
preliminary determinations by appellant. He inserted the lenses in her eyes,
"with some difficulty," then applied a colored dye, fluorescein, to observe the fit
of the lenses.'° From his evaluations through use of fluorescein, appellant judged
whether the lenses were fitting properly at this point. Approximately five days
later the patient returned for another fitting and this time was instructed how
to insert and remove the lenses.1' She returned several days later for her final
lenses and was further instructed on cleaning the lenses, their handling and
storage.
Appellant then gave the patient her lenses to take home and prescribed a
schedule for her to wear he lenses in order to build-up her wearing-time. She
was instructed to wear the lenses two, two and one-half, three and four hours
on four consecutive days, and an appointment was made for the following
week. In the event sh& "had trouble," she was to call him "day or night" at
his home or office. She paid the remaining portion of her bill and left.
Appellant testified he intended to determine by subsequent examinations if
the lenses were fitting properly and then send the patient to the prescribing
doctor for his ultimate approval. Before this was done, appellant was arrested
and charged with the unlicensed practice of optometry.
I
Appellant first contends that the government failed to establish beyond a
reasonable doubt that he practiced optometry. His position is that since he did
not make an examination of the eyes for the purpose of determining visual
defects, he did not practice optometry within the meaning of our statute. In
other words, since the statute is in the conjunctive, and, rather than the dis-
junctive, or the government has to establish that he did both to support his
conviction. We do not agree.
The purpose of the Act regulating the practice of optometry in the District
of Columiba was to provide protection for the public. E:vers v. Buxbaum, 102
U.S. App. D.C. 334, 253 F. 2d 356 (1958); Silver v. Lansburgh & Bro., 72 App.
D.C. 77, 111 F. 2d 518, 128 A.L.R. 582 (1940)." This purpose includes protection
from ignorance, deception, fraud and inexpertness, and logically covers either
the examination of eyes for visual defects or the adaptation of lenses. We agree
with appellee that appellant's construction would permit those unlicensed indi-
viduals who examined the eyes and then failed to adapt lenses to avoid the
statutory prohibition." It "is a well-recognized principle of statutory construc-
8 Peripheral and intermediate, or secondary, curves are used to blend the steeper curva-
ture of the central area with the flatter edge of a lens. CORNEAL 28-31, 188-90.
A secondary curve had been put in, the diameter had been reduced and the edges
finished on the lenses furnished the patient. The determination of what curves are to be
incorporated in a lens is especially important in regard to comfort. One expert testified
that a proper edge would allow a patient to wear a lens with a faulty curvature for a brief
period with no sensation of pain.
10 Fluorescein is used to evaluate the manner in which a lens is resting upon the cornea.
The dye is applied above the lens and stains the tears in the eye, including the tear layer
beneath the lens. (The tear layer is exceptionally thin. It supplies oxygen for the cornea
and removes waste material. There must be an adequate flow of tears between the lens
and the eye in order to maintain the proper metabolic state of the cornea.) By use of an
ultraviolet or black light the effect of the lens upon the cornea can be evaluated through
observation and analysis of the tear pattern. Through this procedure the area where a
lens may be touching the cornea, instead of resting upon the tear layer, and where there
are insufficient or excessive peripheral and intermediate curves can be observed. Whether
a lens is too steep or flat is also evaluated. CORNEAL 253-61 (text and illustrations).
11 This was again accomplished with some difficulty as one of the lenses went off-center.
After some effort, she properly relocated the lens herself.
125cc HR. Rep. 410 and S. Rep. No. 388, 68th Cong., 1st Sess. (1924).
13 See Blohm v. District of Columbia, D.C. Mun. App., 113 A. 2d 111 (1955).
PAGENO="0134"
1.30
tion that the conjunctive and disjunctive are signified interchangeably if to do
so is consistent with the legislative intent." .New Jersey State Bd. of Optometrists
v. Koenigsberg, 33 N.J. Super. 387, 110 A. 2d 325, 328-9 (1954). The absurd
results, at plain variance with the purpose of the Act, of appellant's construe-
tion persuade us that the legislature intended the examination and the adapta-
tion to be separate acts of optometry.
Appellant further contends that the evidence produced by the government
did not establish beyond a reasonable doubt that his acts violated the statute in
question. For this proposition, he relies strongly upon a Pennsylvania case, Com-
monwealth v. Stemet, .21 Pa. D. & C. 2d 295 (1959), involving the narrow issue
of whether measuring the curvature of the eye in order to grind contact lenses
violated that State's optometry statute. Recognizing that when dealing with a
statutory, and not a common-law, crime the conduct to be penalized must be
proscribed by the clear wording of the statute, United States v. Capital Traction
Co., 34 App. D.C. 592 (1910), we are convinced that the wording of our Act is
clear on the conduct barred and, for reasons we will now discuss, that there was
sufficient evidence to support the trial judge's finding that appellant had prac-
ticed optometry.14
II
The major question is whether the fitting of contact lenses by appellant con-
stituted "the adaptation of lenses for the aid and relief" of her visual defects.
Even assuming that the keratometer is a measuring and not a diagnostic instru-
ment,15 appellant went beyond simple measurement of the patient's eyes and
requesting of lenses on the bases of those measurements. It was at this point that
he began to adapt lenses to her eyes. Judgments had to be made for the fit of
the lenses beyond the areas measured by the instrument; changes were made in
their base curvatures for the purpose of fit; changes were made in their powers
as based upon his deviations from the instrument's exact readings; the sizes and
optical zones of the lenses had to be judged; and the placing of curves in the
lenses for the purpose of comfort (not power) had to be determined. Further,
appellant inserted a colored dye into the eyes to observe tear patterns and
thereby the position and effect of the lenses upon the eyes. Changes in the
lenses would be based upon such observations. Without repeating the entire
procedure by which appellant fitted the patient's lenses, it is clear that this
involved areas of judgment and skill necessary to the adaptation of lenses within
the meaning of our optometry statute.18 This was much more than the technical
preparation or sale of a pair of spectacles or eyeglasses.17 Further, appellant pre-
scribed the wearing schedule for the patient in building-up the wearing-time of
her lenses. By directing the patient to call him "day or night" if she "had
trouble," appellant acknowledged that difficulties may arise in the early wearing
stages. This procedure would appear to vary with each patient.
In each of the steps by which the contact lenses were fitted, expertness and
training were essential. The consequences of improper fitting, instructing, and
follow-up observation are well documented. They include actual curvature
changes of the cornea, painful abrasions and ulcerations of the cornea, infections,
blindness and surgical removal of the eye.18 The fitting of a contact lens is the
introduction of a foreign body in immediate contact with a sensitive part of the
body, the cornea, which can result in serious injury. This was a consequence
which well might have flowed from appellant's unsupervised fitting. Without be-
laboring the point, we feel that the actual fitting of contact lenses is the adapta-
tion of lenses within the meaning of our optometry statute. Placing a foreign
object upon the surface of the cornea may have consequences far more immediate
and serious than the prescribing for, and adaptation of, spectacles or eyeglasses
worn some distance from the eye.
In 1951 the District of Columbia Board of Commissioners ordered that future~
applicants for optometry licenses be examined in the "theory and practice of.
14 ~ee ~5iegman v. District of Columbia, D.C.Mun.App., 48 A.2d 764 (1946).
15 There was testimony that it may have diagnostic value in patients with keratoconus.
(In keratoconus the patient has a cornea with a conical protrusion making spectacles un-
satisfactory. This is one condition for which contact lenses were originally designed.) There
was further testimony that a keratometer is "primarily" a measuring instrument, indicating
It does have additional uses. See also CORNEAL 306-7.
18 Appellant, as well as other witnesses, testified that the procedure involved judgments.
17 Thus, the exemptions set forth in § 2-520 (b) are not applicable.
18 See 195 J.A.M.A. 901-03 (1966) ; 1 Brit.Med.J. 751-52 (1966) . 55 So. Med.A.J.
862-69 (1962).
PAGENO="0135"
131
contact lens' fitting." This was recognition that the public should be protected
from improper fitting of contact lenses by optometrists, and that contact lenses
fitting constitutes the practice of optometry. While not bound by the interpreta-
tions of the Commissioners, and the subsequent acquiescence of the legislature in
such rulings, they are worthy of some weight in our deliberations.19
We are aware there is a split of the authority in other jurisdictions on this
issue. In High v. Ridgeway's Opticians, 258 N. C. 626, 129 S.E.2d 301 (1963), it
was held that under North Carolina statutes opticians could fit contact lenses
when prescribed by a physician, oculist, or optometrist, and the patient returned
to the examining professional for further examination. However, the court took
note that in North Carolina opticians were specifically permitted to measure,
adapt, fit, and adjust lenses after being licensed. To be licensed an applicant
had to pass an examination in various fields of the optician's skills as well as
the practical anatomy of the eye.2°
Also, in State Board of Optometry v. Chester, 251 Miss. 250, 169 So.2d 468
(1964), an injunction was granted against an optician for fitting contact lenses
without a prescription. The court stated that it would have been proper had the
optician acted under prescription. It is interesting to note that two ophthalmolo-
gists testified in that case they did the fiting in their own offices and that even
optometrists were not qualified to fit contact lenses.
There is strong authority in accord with our decision. In State e~ rd. Reed v.
Kuzirian, 228 Ore. 619, 365 P.2d 1046, 88 A.L.R.2d 1284 (1961), it was held that
fitting contact lenses was the practice of optometry under the Oregon statutes
and an optician was properly enjoined from such practice. (One of the bases used
by the court in High v. Ridgeway's Opticians, supra, to distinguish this holding
was that Oregon had no licensing requirement for opticians.) The Oregon court
did rule that an optician could fit contact lenses when acting under the direct
personal supervision of legally qualified personnel.
In Ketring v. Sturges, 372 `S.W.2d 104 (Mo. Sup. Ct. 1963), lit was held that in
view of an agreed statement of the parties and the absence of a statute author-
izing opticians to measure the eyeball, insert and adjust contact lenses, the fitting
of such lenses constituted the practice of optometry.
Also, in New Jersey State Bd. of Optometrists v. Reiss, 83 N.J.Super. 47, 198
A. 2d 816 (1964), it was held that fitting contact lenses was the practice of optom-
etry within the meaning of the New Jersey statutes, and, further, that it was
no defense that the optician doing the fitting was doing so wider a doctor's pre-
scription, even though the doctor had pronounced the work satisfactory three
weeks after completion. It was recognized that the "crucial period requiring
professional supervision was at the time of the adaptation of the lenses, their
initial adjustments and the early stages of wearing." Id. at 822. The court also
noted that the fitting of the lenses involved an immediate exposure to possible
eye damage which required professional skill and judgment.
Other decisions in this area are Louisiana State Rd. of Optom.. Ea,am. v. Pearle
Optical, 177 So.2d 164 (La. App. 1965), annulled on other grounds, 248 La. 1062,
184 So.2d 10 (1966), where advertisements that "personnel ~vill be happy to dis-
cuss contact lenses with you" were held to be a violation of a statute barring
advertisements of optometric services; Delaware Optometric Corp. v. Sherwood,
36 Del. Cli. 223, 128 A.2d 812 (1957), where it was conceded by a group of opti-
cians that fitting contact lenses was an act of optometry; Kelly e~v rd. Michigan
Rd. of Exam. in Optometry v. Peterson, 4 Mich.App. 612, 145 N.W.2d 386 (1966),
enjoining unsupervised opticians from fitting contact lenses, even though a sepa-
rate criminal action could have been brought; and Burt v. People e~r rd. Dunbar,
421 P.2d 480 (Sup. Ct. Cob. 1966), reversal of a finding that an optician violated
an injunction barring his flitting or adaptation of contact lenses.
The wording and purpose of our optometry statute convince us that the fitting
of contact lenses by the appe1bent was the adaptation of lenses within the mean-
ing of that provision. Appellant's contention that he would have referred the
19 Hearings on ten identical bills to amend the laws governing the practice of optometry
in the District of Columbia. were held in 1966 by Subcommittee No. 4 of the House of
Representatives Committee on the District of Columbia. The Committee did not report
out any of the bills. The Commissioners' order was brought to the attention of the mem-
bers of the Committee by various witnesses.
~° The court apparently felt that insertion and removal of a contact lens was a "merely
routine procedure." Id. at 305. For the possible consequences to the cornea due to the
improper removal of contact lenses, see the Illustration on page 865 of Vol. 55, So. Med. A.J.
PAGENO="0136"
132
patient back to the prescribing doctor does not excuse his practice of optometry
at the time of fttting.n
[Petition filed on August 3, 1967 for appeal to the U.S. Court of Appeals.]
The present optometry statute for the District of Columbia was originally en-
acted in 1924 while the wearing of contact lenses' did not come into general use
until about twenty years later. Our decision is based upon the clear wording and
purpose of the statute as enacted. It may well be that the Congress should take
some further review of the problems involved in the adaptation and fitting of
suc~h lenses.
Affirmed.
AMERICAN OPTOMETRIC AssocIATIoN's CODE OF ETHICS AND SUPPLEMENTS-
RULES OF PRACTICE
The Code of Ethics of the American Optometric Association sets forth
briefly certain basic duties of its members, and it reaffirms "the benevo-
lent and humane fundamental purpose of the, profession of optometry:
To protect and conserve and improve human vision."~-
FOREWORD
This booklet presents to the profession a copy of the Code of Ethics, the Supple-
ment to the Code of Ethics adopted in 1946 then revised in 1968, and the Rules
of Practice adopted by the House of Delegates of the American Optometric
Association in 1968.
In organizing its rules of conduct, optometry must always respect the tried and
tested principles of ethics that have withstood the assault of time and changing
practices over the decades. Further than that, it must respect the natural affinity
that shall exist between optometry and other professions.
This booklet has been compiled and published by the American Optometric
Association in accordance with the direction of the AOA Board of Trustees.
Code of Ethics
It Shall Be the Ideal, the Resolve, and the Duty of the Members of the American
Optometric `Association:
To Keep the visual welfare of the patient uppermost at all times;
To Promote in every possible way, in collaboration with the Association,
better care of the visual needs of mankind;
To Enhance continuously their educational and technical proficiency to
the end that their patients shall receive the benefits of all acknowledged
improvements in visual care;
To ~ee That no pe,rson shall lack for visual care, regardless of hi's financial
status;
To Advise the patient whenever consultation with an optometric colleague
or reference for other professional care seems advisable;
To Hold in professional confidence all information concerning a patient and
to use such data only for the benefit of the patient;
To Conduct the,mselves as exemplary citizens;
To Maintain their offices and their practices in keeping with professional
standards;
To Promote and maintain cordial and unselfish relationships with mem-
`bers of their own profession and of other professions for the exchange of
information to the advantage of mankind.
Adopted b~ the House of Delegates or the American Optometric Association, Inc., at
Detroit, Michigan, June 28, 19~4.
L BASIC RESPONSIBILITIES `OF AN OPTOMETRIST
Section A. The Welfare of Humanity
A profession has for its prime object the service it can render to humanity;
reward or financial gain should be a subordinate consideration. The practice of
21 Our decision does not bar an optician from grinding, or fabricating contact lenses In
accordance with a complete proscription furnished by a doctor, and delivering the lenses
to the doctor for fitting.
*prom the preamble to the Code of Ethics adopted at Detroit, 194k.
PAGENO="0137"
133
optometry is a profession. In choosing this profession an individual assumes an
obligation to conduct himself in accord with its ideals.
Section B. Self-Improvement
It is the duty of every optometrist to keep himself in touch with every modern
development in his profession, to enhance his knowledge and proficiency by the
adoption of modern methods and scientific concepts of proven worth, and to
contribute his share to the general knowledge and advancement of his profession
by all means in his power. All these things he should do with that freedom of
action and thought that provides first for the welfare of the public within the
scope and limits of his endeavor.
Section C. Scientific Attitude
An optometrist should approach all situations with a scientific attitude, weigh-
ing all that is new against the present fund of knowledge and his experience, and
accepting only that which is truth as nearly as lie can ascertain.
Section D. Personal Deportment
An optometrist should be an upright man. Consequently he must keep himself
pure in character, must conform to a high standard of morals, and must be dili-
gent and conscientious in his studies.
Section E. Optometrists as Public Citizens
An optometrist should bear his full part in supporting the laws of the com-
munity and sustaining the institutions that advance the interests of humanity.
II. RELATIONS BETWEEN AN OPTOMETRIST AND 1115 PATIENT5
Section A. Confidential Aspects of Patient Relations
Patience and delicacy should characterize all the acts of an optometrist. The
confidence concerning individual or domestic life entrusted by a patient to an op-
tometrist and the defects of disposition or flaws of character observed in patients
during attendance should be held as a trust and should never be revealed except
when imperatively required by the laws of the state.
Section B. The Presence of a Pathological Condition Should Be Communicated
by an Optometrist to His Patient
An optometrist should give to the patien.t a timely notice of manifestations of
disease. He should neither exaggerate nor minimize the gravity of the patient's
condition. He should assure himself that the patient or his family has such knowl-
edge of the patient's condition as will serve the best interests of the patient.
Section C. Patients Must Not Be Neglected
Optometrist is free to choose whom he will serve. He should respond to any
request for his assistance in an emergency. Once having undertaken a case for-
mally, an optometrist shall not abandon or neglect the patient. Frequently the
immediate, prior need of the patient for the professional services of another must
be recommended by the optometrist. In any event, he shall not withdraw from a
case until a sufficient notice has been given the patient or his family to make it
possible to secure other professional services.
Section D. Compensations and Fees
The compensations and fees that an optometrist receives are based in general
on three factors:
1. The type and character of the optometrist charging the fee.
2. The character of the service and the skill and knowledge involved in
rendering the service.
3. The value of the service to the patient and his ability to pay.
Section Fl. The Relations of Services and Materials
The ophthalmic materials an optometrist may consume in the performance
of his professional duties only interpret his services. Such materials have a
value which is represented by their laboratory costs to the optometrist.
Section F. Gratuitous Service
The poverty of a patient and the humanitarian, professional obligations of
optometrists should command the gratuitous services of an optome~trist. Other
individuals and endowed institutions and organizations have no claim on the
optometrist for gratuitous services.
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134
Section G. Contract Practice
It is unethical for optometrists to enter into contracts which impose con-
ditions that make it impossible to deal fairly with the public or fellow practi-
tioners in the locality.
Section H. Interference of Unrelated Practices
The acts which an optometrist performs and which are outside the confines
of his profession must not mislead the public as to the scope of his profession,
and must not be inimical to the public welfare or to that of his fellow
practitioners.
III. RESPONSIBILITIES TO OTHER OPTOMETRISTS AND TO THE PUBLIC
Section A. Uphold the Honor of the Profession
The obligation assumed upon entering the profession requires the optometrist
to comport himself as a gentleman, and demands that he use every honorable
means to uphold the dignity and honor of his vocation, to exalt its standards
and to extend its sphere of usefulness.
Section B. Optometric Societies
In order that the dignity and honor of the optometric profession may be upheld,
its standards exalted, its sphere of usefulness extended, and the advancement
of optometric science promoted, an optometrist should associate himself with
optometric societies. He should contribute his time, energy, and means to the
end that these societies may represent the ideals of the profession.
Section C. Advertising
The following are deemed, among others, to be unethical and to constitute
unprofessional conduct in accordance with the laws and regulations of each
particular state:
Soliciting patients directly or indirectly, individually or collectively
through the guise of groups, institutions, or organizations.
Employing solicitors, publicity agents, entertainers, lecturers, or any
mechanical or electronic, visual or auditory device for the solicitation of
patronage.
Advertising professional superiority, or the performance of professional
services in a superior manner.
Any advertising or conduct of a character tending to deceive or mislead
the public.
Advertising one or more types of service to imply superiority or lower fees.
Holding one's self forth to the public under the name of any corporation,
company, institution, clinic, association, parlor, or any other name than
the name of the optometrist.
Holding one's self forth as possessed of, or utilizing exclusive methods of
practice or peculiar styles of service.
Displaying certificates, diplomas, or similar documents unless the same
have been earned by the optometrist.
Guaranteeing or warranting the results of professional services.
Advertising of any character which includes or contains any fee whatso-
ever, or any reference thereto, or any reference to the cost to the patient,
whether related to the examination or the cost or fee for lenses, glasses,
frames, mountings, or any other optometric services, article, or device nec-
essary for the patient.
Offering free examination or other gratuitous services, bonuses, premi-
ums, discounts, or any other inducements.
Permitting the display of his name in any city, commercial, telephone,
or other public directory; or directory in the lobby of public halls in any
office or public building, using any type which is in any way different from
the standard size, shape, or color of the type regularly used in such me-
dium.
Permitting his name to be put in any public directory under a heading
other than "Optometrist."
Printing professional cards, billheads, letterheads and stationary with
illustrations or printed materials other than his name, title, address, tele-
phone number, office hours, and speciality, if any.
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135
Displaying large, glaring or flickering signs, or any sign or other depic-
tion containing as a part thereof the representation of an eye, eyeglasses,
spectacles or any portion of the human head.
Using large lettering or other devices or unusual depictions upon the
office doors or windows.
Section P. Patents
It is* unprofessional for an optometrist to exploit a patert for lenses, appli-
ances, or instruments used in the practice of optometry in such a way as to
deprive the public of its benefits, either through refusal to grant licenses to
competent manufacturers who can assure adequate production and unimpeach-
able quality, or through exorbitant demands in the form of royalty; or for similar
forms of monopolistic control in which the interests of the public are exploited.
Section E. Rebates
It is unprofessional and unethical to accept rebates on prescriptions, lenses, or
optical appliances used in the practice of optometry.
Section F. Safeguarding the Profession -
An optometrist should expose withoTht fear or favur, before the proper opto-
metric tribunals, corrupt or dishonest conduct of members of the profession. All
questions affecting the professional reputation or standing of a member or mem-
bers of the optometric profession should be considered only before proper opto-
metric tribunals in executive sessions, or by special or duly appointed commit-
tees on ethical relations. Every optometrist should aid in safeguarding the pro-
fession against the admission to its ranks of those who are unfit or unqualified
because deficient either in moral character or education.
Section 0. Professional Service of Optometrists to Each Other
An optometrist should always cheerfully and gratuitously respond with his
professional services to the call of any optometrist practicing in his vicinity, or
of the immediate family dependents of optometrists.
Section H. Consultations of Optometrists Should Be Encouraged
in doubtful or difficult conditions where the services of another may be re-
quired, the optometrist should request consultations.
Section I. Consultant and Attendant
When an optometrist has been called on a case as a consultant, it is his re-
sponsibility to insure that the patient be returned to the original optometrist for
any subsequent care that the patient requires.
Section J. Criticism To Be Avoided in Consultation
The optometrist, in his relations with a patient under the care of another
optometrist, should observe the strictest caution and reserve; should give no
derogatory hints relative to the nature and care of the patient's disorder; nor
should the course of conduct of the optometrist directly or indirectly tend to
diminish the trust reposed. in the attending optometrist. In embarrassing situia-
tions or wherever there may seem to be a possibility of misunderstanding with
a colleague, the optometrist should always seek a personal interview with his
fellow.
Section K. General Practitioner Responsible
When the general practitioner of optometry refers a patient to another optom-
etri~t, the former remains in charge of the case and is responsible for the care
of the patient until properly dismissed.
Section L. Services to Patient of Another Optometrist
An optometrist should never take charge of, or prescribe for, a patient who
is under the care of another optometrist, except in an emergency, until after
th.e other optometrist has relinquished the case or has been properly dismissed.
Section M. Criticism of a Colleague to be Avoided
When an optometrist succeeds another optometrist in the charge of a case, he
should not make comments on, or insinuations regarding the practice of the
one who proceeded him. Such comments or insinuations tend to lower the esteem
of the patient for the optometric profession and so react against the critic.
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Section N. A Oolleague's Patient
When an optometrist is requested by a colleague to care for a patient during
his temporary absence or when, because of an emergency, he is asked to see
a patient of a colleague, the optometrist should treat the patient in the same
manner and with the same delicacy as he would have one of his own patients
cared for under similar circumstances. The patient should be returned to the
care of the attending optometrist as soon as possible.
Section 0. Arbitration of Differences Between Optometrists
Should there arise between optometrists a difference of opinion which cannot
be properly adjusted, the dispute should be referred for arbitration to an ap-
propriate committee of impartial optometrists.
Section P. Fee Splitting
When a patient is referred by one optometrist to another for consultation or
for care, whether the optometrist in charge accompanies the patient or not,
it is unethical to give or receive a commission or secret division of fees, by
whatever term it may be called or under any guise or pretext whatsoever.
Section Q. Official Position
A member holding an official position in any optometric organization shall
avoid any semblance of using this position for self-aggrandizement.
IV. RELATIONS BETWEEN AN OPTOMETRIST AND OTHER PROFESSIONALS
Section A. Interprofessional Relations
Dignity, propriety and a proper regard for their individual fields of service
must characterize the relationship between optometrists and members of other
professions.
Section B. Referring Patients
Whenever, to complement the services of an optometrist, the patient's condi-
*tion requires the professional services of another, every cooperative effort shall
be made to the end that the patient's welfare be safeguarded.
Section C. Public Health
Professional responsibility demands that the optometrist `actively participate
in public health measures to the end that every step be taken to safeguard
the welfare of society.
AOA Rules of Practice
A. Members shall hold it to be their ideal, resolve `and duty to abide by the
constitution and `by-laws, code of ethics, and rules of practice of their national,
state, and local optometric organizations.
B. Members shall practice in, such location and manner as is customary with
other health care professionals in the area.
0. Members shall maintain their offices so that the physical appearance is
similar to that customary with other health care professionals in the area:
Signs shall `be unpretentious, limited to four inch letters at street level, seven
inches above. Ophthalmic materials and certificates shall be visible only from
within.
D. Members shall present themselves to the public in a manner similar to
that customary with other health care professionals in the area: Telephone and
other directory listings shall be in ordinary type size. Announcements shall be
limited in size to two columns by two inches, and limited in context to name,
profession, address, telephone number, office hours, and practice limited to.
Enforcement of the provisions of the Rules of Practice shall be the duty of
the various state associations. It is recommended that when a member is doubt-
ful of the ethics or advisability of any action he contemplates, he shall submit
a detailed statement to the proper committee of his state association for ap-
proval. This committee, if in doubt as to the point involved, shall in turn submit
the question to the executive committee of the state association for final opinion.
Logically, the trustee of the American Optometric Association will give an
opinion if asked by the state associations.
Passed unanimously by the A.O.A. House of Delegates, June 29, 1968.
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THE MEDICAL RESTRAINT OF TRADE ACT
Our next witness speaks for the American Association of Ophthalmology, Dr.
Joseph J. Beitel, Jr. and I understand he is accompanied by Dr. Joseph J. Dixon,
also of the American Association of Ophthamology.
STATEMENT OF ROBERT J. BEITEL, JR., M.D., ON BEHALF OF THE AMERICAN Asso-
CIATION OF OPHTHALMOLOGY; ACCOMPANIED BY DR. JOSEPH J. DIXON, ALSO OF
THE AMERICAN ASSOCIATION OF OPHTHALMOLOGY
Dr. BEITEL. Mr. Ohairman, menTbers of the committee, my name is Roijert J.
Beitel, Jr., M.D., and I would like to present information regarding the supply
of eyeglasses and drugs, and some considerations of Senate bill 260 in practice
and principle as it might affect medical service. I represent the American Asso-
ciation of Ophthalmology.
The American Association of Ophthalmology (formerly National Medical
Foundation for Eye Care) was organized approximately 10 years ago by a
group of outstanding ophthalmologists, dedicated to the fundamental principle
of education-education of our colleagues-education of the American people in
matters pertaining to complete medical eye care. This group of nationally known
ophthalmologists, headed by the late Dr. Ralph 0. Rychener, included profes-
sors of ophthalmology, directors of departments of ophthalmology (full and part
time) and leading ophthalmologists in private practice from all sections of the
country.
The basic objectives of the founders of the American Association of Ophthal-
mology in the public interest, remain the same today.
As members of the American Medical Association, we subscribe to the "prin-
ciples of medical ethics" as established by the AMA. We are an organization
composed of ophthalmologists who do not dispense glasses and ophthalmologists
who do dispense glasses in the care of eye patients.
We support the immemorial right and responsibility of the ethical physician
to decide for himself "what is best" for his patient in all circumstances and to
administer these services consistent with the principles of ethics of the AMA.
I am a physician licensed to practice medicine in the State of Pennsylvania.
I specialize in diseases and surgery of the eye and practice in Allentown, Pa. My
background, training and experience include the following:
(1) A graduate of the Pennsylvania College of Optometry, Philadelphia, Pa.,
and licensed to practice optometry in the State of Pennsylvania from 1929 until
my resignation of that license when I began to practice ophthalmology.
(2) A.B. degree from Temple University, Philadelphia, 1932. Master of arts
and doctor of philosophy degrees from Clark TJniversity, Worcester, Mass., where
I did research and specialized in psychological and physiological optics, the
results of which research have been published.
(3) Service as a member of the Bureau of Visual Science, a technical division
of the American Optical Co., Southbridge, Mass.
(4) During World War II, I was project supervisor for the Office of Scientific
Work and Development under the National Defense Research Council and
conducted research under these auspices at the Dartmouth Eye Institute,
Hanover, N.H. Upon conclusion of the war, I entered Dartmouth Medical School,
completing its first two preclinical years and completed my medical education at
Temple University Medical School, Philadelphia. My postgraduate requirements
in ophthalmology were obtained at Temple University School of Medicine, Depart-
ment of Ophthalmology, and I also had special training in the American Academy
of Ophthalmology and Otolaryngology basic science courses, and in pathology at
the Armed Forces Institute of Pathology.
(5) For some years I was instructor in ophthalmology at Temple University
Medical School.
(6) I am a diplomate of the American Board of Ophthalmology and a member
of variou medical organizations.
At the present time I hold the following offices:
(a) A member of the American Medical Association's study committee on
ophthalmology.
(b) Third vice president and trustee of the American Association of Ophthal-
mology.
(c) Chairman of the Conservation of Vision Committee of the Pennsylvania
Academy of Ophthalmology & Otolaryngology.
PAGENO="0142"
138
(d) Consultant in vision to the Council on Scientific Advancement of the
Pennsylvania Medical Society.
(e) President-elect of my local Lehigh County Medical Society.
I would like to state a factual premise.
Eyeglasses are a form of treatment for a physical condition which is a de-
parture from the normal and which gives rise to symptoms. They are prescribed
not only for simple optical defects (error of refraction), but also to compensate
for inadequacies of the focusing mechanism resulting from disease, injury,
surgery or the aging process, which also give rise to symptoms. The symptoms
may be indistinguishable by the patient from those of the most serious eye clis-
eases, such as glaucoma. Examination and diagnosis by the physician is therefore
not carried out for one condition in isolation from the others. The management
of the refractive problem is thus an incident in the general medical care of the
eye patient.
The medical management of "errors of refraction" and inadequacies of the
focusing mechanisms consists of:
(1) Diagnosing the nature of the optical defect and its significance, per se, and
determining the lens which will optically compensate for it.
(2) Diagnosing the significance of this optical defect as it may be related to
other departures from the normal (diseases, for example), which may also be
present and diagnosed.
(3) Prescribing the optical characteristics of the lens when relief of the ab-
normal optical condition of eyeglasses or other visual aids is indicated.
(4) Making anatomical measurements of the face and stipulating the labora-
tory specifications for preparing the eyeglasses-frames and lenses-on the basis
of the optical prescription data and the facial measurements so that eyeglasses
may be promptly prepared which, when adjusted, will have the optical effect
prescribed by the physicians. Without this service, prescription eyeglasses can-
not be supplied and the optical prescription data are useless.
(5) Providing the eyeglasses or causing them to be supplied in conformity with
the specifications.
(6) Fitting the eyeglasses by adjusting the frame, with reference to the eye,
to the anatomy of the head, especially the nose and ears, `and maintaining this
fitting over a period of years. Without this service `the eyeglasses may not even
be `usable.
(7) In many instances, forms of optical correction, other than eyeglasses.
will be deemed necessary. These may `take the form of contact lenses, intraocu-
lar lenses of the Ridley type, intracorneal lenses, telescopic spectacles, or
subnormal vision a'ids. No attempt will be made here to describe the intricate
and complex procedures involved in their application.
Suffice it to say, all of `these procedures are within the province of the physician.
Such treatment by the physician is the practice of medicine.
"Moreover the physician does not make sales, and his dispensing of eyeglasses
or contact lenses as well as other devices of pharmaceuticals is clearly not a
sale in the legal sense, but rather is merely an incident of his rendition of a
professional service." (F. J. L. Blasingame, M.D., executive vice president, AMA,
in letter June 4, 1962, to Federal Trade Commission.)
The nature of three of these services, (4, 5, and 6) permits their delegation.
The measuring and fitting is commonly delegated to a nonphysician whose tech-
nical competence the physician has determined and who may or may not be in
his employ, but over whom he exercises direction.
If the delegation of the measuring and fitting services is to someone not in the
physician's employ, the procurement and supply of the necessary eyeglasses is
customarily simultaneously delegated. Conversely, when the physician directs the
patient to an optical shop to have the prescribed eyeglasses provided, he is dele-
gating to the optician not merely the supplying of the required eyeglasses, but
all of the fitting services-facial measurement, specification writing, and fitting
and adjustment. (A substantial number of patients, however, procure their eye-
glasses, but not fitting services, from their industrial employers in the form of
prescription safety glasses. Tinder this circumstance all of the fitting services
must be provided, according to the physician's practice, either by the physician
and his staff, or, on his delegation, by the optician.)
The fitting of eyeglasses is not something for which an order can be written on
paper with every detail clearly defined, but is like the fitting of a cast. differing
only in the degree to which the fitting can be prescribed and delegated. TTnlike
drugs, which require no technical service once prepared, eyeglasses require the
PAGENO="0143"
139
performance of technical services not only in the laboratory but directly with
reference to the person of the patient. The fitting of eyeglasses is not necessarily
a benign service, as is evident on occasion by dermatitis, and injuries to the nose
and ears-the pathological results' of poor fitting.
It is the right and duty of the physician to provide or cause to the provided
whatever service or medical item the patient's medical care requires. From time
immemorial the physician has exercised his right to assign to a nonphysician
under his direction the performance of technical procedures whose delegation is
consistent with sound medical practice. Under certain circumstances the provision
of a service, as well as' its performance may be delegated; this is the procedure
that is being followed when the physician refers a patient to an optician for the
supply of eyeglasses.
The American Association of Ophthalmology in 1963 established and published
the fact that 42 percent of all physicians in ophthalmology include the service
of fitting eyeglasses in their practice, while 58 percent delegate the fitting to the
optician. Preliminary investigations indicate that this service has been supplied
in physician's office for several generations (sometimes the same medical office)
and in many for the past 20 or 30 years.
Whether or not the physician delegates, he remains morally and legally respon-
sible. No different principle applies to one physician than to another by virtue of
the form of his service, or whether he delegates or provides the fitting and sup-
ply of eyeglasses.
The physician's first responsibility is to his patient, and he must fulfill that
responsibility through the best exercise of his professional judgment. If, in his
medical judgment, the physician determines that it is in the best interest of his
patient that the physician himself or technician under his direction should fit the
eyeglasses, then he should be free to make that decision. Whether and what the
physician is to delegate must be his decision.
Consumer groups have developed prepayment plans for payment of eye exami-
nation and for lenses. In some cases union-management welfare plans with such
benefits stipulate that the eyeglasses are to be provided by the prescriber.
Industries which supply prescription protective lenses sometimes assume the
cost of eye examination by the physician. In some instances they too, have stipu-
lated that the physician provide the combined services of examination and fitting.
Whenever the employer supplies protective prescription glasses, the required
services include not only examination and prescription, but also fitting.
Therefore certain fundamental principles in the supply of glasses and lenses
from whatever source must be recognized:
(1) When the medical care of the patient requires the use of eyeglasses, the
patient should be so advised.
(2) the patient should understand that he may obtain optical aids from any
qualified source he chooses. The physician, on whom rests the ultimate responsi-
bility for treatment, must fulfill his responsibility to his patient through the best
exercise of his professional judgment. He must reserve the right to advise the
patient where he may obtain proper quality of material and workmanship, and
medically acceptable fitting. (This may `be properly accomplished by having avail-
able a list of qualified dispensaries within his area of service.)
(3) It is to the patient's interest that the patient be supplied with a copy of
his lens prescription and such specifications as the physician may deem indicated
to enable him to obtain necessary service in emergency, for example, in travel,
from another physician or from an optician.
(4) Accuracy and acceptability of eyeglasses can and will be determined by the
prescribing physician. The physician will require, and assure by adequate in-
spection, that from whatever source his patient is provided with eyeglasses, the
quality of materials and workmanship shall meet medically acceptable standards.
The prescribing physician determines whether eyeglasses are acceptable.
(5) When the physician provides for the fitting or fitting and supply of eye-
glasses to his patient, this service is an integral part of his medical care of the
patient. `The physician will avail himself of the assistance of technical personnel
in this area on the same basis as he does in other areas of his medical practice
where he is assisted by professional and technical personnel in his office.
(6) The cost of fitting and supplying eyeglasses to his patient is the proper
concern of the physician whether he provides these services or delegates `their pro-
vision to other sources.
(7) The physician's prescription is for eyeglasses,not merely lens powers; the
optician may supply only those eyeglasses which the physician prescribes.
PAGENO="0144"
140
Testimony on the subject of contact lenses will be presented by Dr. Joseph M.
Dixon for the American Association of Ophthalmology.
Artificial eyes, like contact lenses, alter body tissue, and how they are to be
supplied must be determined by the physician.
The procedures involved in the use and application of intraocular and intra-
corneal lenses and prosthetic implants, involving surgery as they do, can be per-
formed only by a physician. The necessary medical item will be supplied only by
the physician or by the hospital.
With respect to the supply of drugs:
(1) Those consideration that apply generally to the dispensing of drugs in
the office by the physician to his patient generally apply to the ophthalmologists.
(2) Two categories of ophthalmic drugs merit special consideration. These are
mydriatics/cycloplegis and mfotic. The potential hazards in the use of these
drugs and the high stakes involved may require that the physician supply drugs
in these categories when he may not find indication to supply drugs in general.
(3) Our surrey showed that 10 percent of ophthalmologists supply mydriatic/
cycloplegis and another 3.5 percent supply miotics'. A small percent (10 percent)
supply some other drugs.
The total medical and economic interest and the convenience of the patient
must be the considerations in all of the physidian's decisions.
We are opposed to S. 260 for the following reasons:
1. The bill places restriction on the physician's license.
The principle involved in any restriction of the right of the physician to
delegate or not to delegate, and to determine to whom~ he delegates, is `applicable
to all areas of medicine.
The license to practice medicine in almost all states authorizes "the use of
any means" to treat any physical condition., In a number of States-for example,
Ohio, Michigan, Vermont, South Carolina-the law specifically defines the supply
of an applian~e and/or drug as the practice of medicine. In the State of Cali-
fornia, physicians are specifically authorized by virtue of the license to "dispense
eyeglasses." In a number of States-for example, Indiana- the sales tax law
identifies the physician-as it recognizes the dentist-as the consumer of mate-
rials necessary in the treatment of the patient, not as the "seller" of eyeglasses.
The bill 5. 260 constitutes a limitation on the practice of medicine and a
reduction of the rights granted the physician-licensed by the State to practice
medicine without limitation. The successful restriction of the physician's right
of choice to delegate the service of fitting eyeglasses would open a Pandora's
box by setting a legal precedent for any ancillary group to seek by means of
legislation the power to compel the physician to be subject to the discretion or
indiscretion of' his supporting worker or ancillary group.
For example, to mention but a few, the physician's decision to:
(a) perform laboratory procedures or to delegate to his o~sm personnel or
to an outside laboratory;
(b) fit a prosthesis of any kind or to designate who shall fit;
(c) develop his X-ray film or to make the film exposure, or to determine who
shall do either;
(d) give a blood transfusion or intravenous or to delegate this under his
decision.
The imposition of a restriction on the physician's use and supply of eyeglasses
or contact lenses, or other optical aids, is a restriction on the patient as to the
sources from which he may procure his eyeglasses. In many instances so-called
"opticians" are, to be precise, `optical business firms, sometime large corpora-
tions, which employ optician-fitters or both optician-fitters `and optometric re-
fractionists, while the owners and/or managers may also not possess technical
or professional skills in these areas. In many other instances where the establish-
ment is individually owned and operated, the same individual owner or major
stockholders of a corporation may be an optician-fitter or both optician-fitter
and optometric refractionist. To require the phys'ican's patient t'o procure his
eyeglasses from such a source merely because the source is available is to require
that the physician submit his patient and that the patient expose himself to
circumstances that can and have been known to lead the patient to `a misunder-
standing of the nature of eye care rendered by a physician, with the result that
he may thereafter discontinue medical care and accept in lieu thereof simple
optical services without prior examination by a physician. To restrict the physi-
cian's right to practice medicine or to hamper the physician in his practice of
medicine by making it unlawful for the physician to provide certain services
PAGENO="0145"
141
to his patients for the purpose of advancing the economic interests of others is
not in the interest of the public and infringes the rightful interests of the licensed
physician.
2. The bill proposes an impractical practice.
We are aware that S. 200 which is before the Congress would authorize the
supply of drugs or medical appliances "in any emergency." If the ophthamolo-
gist is prohibited by law from furnishing optidal service in. the routine care
of his patient, there is no way he could provide this service in emergencies
since he would not be able to maintain adequate supplies, equipment, facilities
and personnel.
3. The bill is discriminatory.
The bill places restrictions on one supplier of eyeglasses, the physician,
which it does not place on other suppliers-the optometrist and the optician.
Of these three groups, physicians suppy the smallest fraction of eyeglasses to
Aemrican people. The elimination of the physician from this area would often
impose great inconvenience on a patient or require him to visit nonmedic,al
persons where he may be exposed to suggestions that he discontinue medical
care of his symptoms of disturbance of vision.
4. The bill attempts to regulate with civil penalties an intrastate activity.
Where it attempts to regulate practices in medicine in each State in order to
strengthen the antitrust laws, we believe this is unconstitutional as the prac-
tice of medicine in a State is not interstate trade or commerce.
Mr. Chairman, at this time I would like to have Dr. Joseph M. Dixon, who is
with me, present our statement on contact lenses.
Senator HRTJSKA (now presiding). Very well, Dr. Dixon, you may proceed.
Dr. DIXON. Thank you, Mr. Chairman and members of the committee.
My name is Joseph M. Dixon. I am a physician licensed to practice medicine
and surgery in the States of Virginia, West Virginia, and Alabama. I specialize
in diseases and surgery of the eye and practice in Birmingham, Ala., where
part of my work is with contact lenses, which I furnish; but I do not supply
eye glasses.
Professional positions I hold at this time are as follows:
1. President-elect, and chairman of the Contact Lens Committee of the Ameri-
can Association of Ophthalmology.
2. President-elect of the Contact Lens Association of Ophthalmologists with
a membership of 600 physician eye specialists interested in contact lenses.
3. Associate examiner of candidates for certification by the American Board
of Ophthalmology. I am also certified by the Board.
4. Member of the American Medical Association Study Committee on Ophthal-
mology.
5. Consultant to the Surgeon General of the U.S. Public Health Service for the
past 3 years.
6. Associate professor of ophthalmology at the University of Alabama Medical
Center and director of the Eye Pathology Laboratory.
During World War II, I served 5 years in the Army as hospital commander,
and professor of military science and tactics with the rank of lieutenant colonel.
I am a past president of the Alabama Academy of Ophthalmology and Oto-
laryngology.
During the past 7 years I have directed a program of research at the University
of Alabama to study the changes in tissues of the eye caused by wearing contact
lenses and have published scientific papers on this subject.
Today I represented the American Association of Ophthalmology with a mem-
bership of nearly 3,000 physician specialists in diseases and surgery of the eye.
In my understanding, a contact lens is an optical device as defined in section
3(d) of this bill because it affects the visual function of the human eye. Licensed
and practicing ophthalmologists are practitioners as defined in this act because
they are qualified to administer drugs or devices in the practice of medicine for
the diagnosis, cure, or prevention of disease of any structure or function of the
human body. Ophthalmologists are physicians who specialize in diseases and
surgery of the eye.
The proper fitting of contact lenses includes g medical examination for disease
of the eye and the use of drugs. The contact lens is a foreign body in the contact
with delicate eye tissues. It sometimes leads to serious complications that require
emergency medical diagnosis and treatment. A report by our association in the
Journal of the American Medical Association, i~Iarch 1066, has documented 14
29-179 O-69------10
PAGENO="0146"
142
instances in which eyes were blinded by contact lenses and 157 others perma-
nently damaged.
That is included with this statement.
(The material referred to follows:)
EXHIBIT A
[Reprinted from the Journal of the American Medical Association, Mar. 14, 1966, vol. 195,
pp. 901-903, copyright 1966, by American Medical Association (from the Committee on
Contact Lenses of the American Association of Ophthalmology, Washington, D.C.)]
COMPLICATIONS ASSOCIATED WITH THE WEARING OF CONTACT LENSES
(Joseph M. Dixon, M.D.; Charles A. Young, Jr., M.D.; Joseph A. Baldone, M.D.;
G. Peter Halberg, M.D.; Whitney Sampson, M.D.; and William Stone, Jr.,
M.D.)
(`NOTE.-Ophthalmologists in a national survey reported case histories of 14
eyes lost or blinded in patients wearing contact lenses. All of the eye losses were
due to infections, four of which were by fungi. There were 157 other eyes per-
manently damaged and 7,607 with reversible changes. These physiologic and
pathologic eye changes indicated the medical problems of diagnosis, treatment,
and routine follow-up of these patients.)
Thepopularity of contact lenses has exceeded the public knowledge of potential
hazards associated with their use. The Committee on Contact Lenses of the
American Association of Ophthalmology (formerly the National Medical Founda-
tion for Eye Care) conducted a survey of American Ophthalmologists to deter-
mine the extent of these medical problems. This is a report of that survey.
The ocular complications of the wearing of contact lenses reported in this stud3'
may be divided into three groups: (1) eyes removed or blinded (corrected vision
not more than 20/200) ; (2) eyes and/or vision permanently damaged (corrected
vision more than 20/200) ; (3) reversible ocular changes.
PROCEDURE
Questionnaires were mailed to ophthalmologists covering contact-lens expe-
rience with new patients or patients recalled during the 12-month period prior to
the survey, April 1960. There were 8,181 questionnaires mailed, of which 1,904
were returned. Of the 49,954 patients wearing contact lenses seen by the reporting
ophthalmologists during the 12-month period, 30,777 patients had contact lenses
prescribed by the reporting ophthalmologists, and 13,177 had contact lenses not
prescribed by the reporting ophthalmologists.
RESULTS OF SURVEY
Group 1
This group includes cases in which eyes were removed or blinded because of
contact-lens wearing or associated factors. Available information does not include
all data on types of lenses, wearing habits, and complete laboratory reports. Each
case was reported by an ophthalmologist as a complication of wearing contact
lenses. The cases were reported from widely scattered states in the nation.
CASE 1.-A 50-year-old Arizona woman with bilateral aphakia and small iris
prolapse with filtering bleb in each eye had been fitted with contact lenses by
her ophthalmologist about six months after surgery in 1959 and had found the
vision far superior to conventional glasses.1
In early July 1901, the lenses were returned for adjustment. On subsequent
examination, these lenses showed no defects or roughness of the edges or surface.
During the time the patient was without lenses, there was purulent conjunctivitis
which had cleared by the time the lenses were returned to her. The lenses were
worn only two or three hours daily for five days after their return.
On the sixth day, the left eye was uncomfortable and red. That afternoon the
patient's ophthalmologist found the bulbar conjunctiva diffusely red, a minimal
purulent exudate, and a 1+fiare and cells in the *anterior chamber, and no
staining of the cornea with fluorescein. Systematic and topical administration of
chloramphenicol was started immediately, but the next morning there was
purulent endophthalmitis. The right eye was normal.
PAGENO="0147"
143
The patient was hospitalized, and cultures were taken from the conjunctival
sac for bacteria and fungi. The only organism recovered was nonhemoly.tic
Stap1vylocooc~s albus, coagulase negative. Penicillin, chioramphenicol, and
adrenal corticosteroids were given systematically. The eye gradually improved,
STATE LAWS AND BOARD RULES RELATING TO THE PROHIBITING OF THE CORPORATE PRACTICE OF OPTOMETRY
State Section of Law Section of Board Rules
Alabama Act No. 218, Aug. 4, (1965)
Alaska 119 (K)
Arizona 2 A 2.
Arkansas 72-812, 72-815 VI I (i)
California 3103 (B. & P. Code) Art. 3 1514 (a)
Colorado 102-2-16 Sec. 1:0, 1:1, 1:2, 1:3, 1:4, 5,6, 11:0
Connecticut 20-133 and 133a
Delaware Rules 14 and 15
Florida 463.11 250-1, 1.30, 31 & 34
Idaho 54-1511 54-1503 8, 14, 17,29
Indiana 63-101 8(a), 63-1019
Kansas 65-1504 & 1510 65-7-11(1), 65-7-12(1)(2X3X5)
Kentucky 320. 300 & 310 Opto E: US No. 2 & 3
Maine re #2452(Formerly #12), #2556 (Formerly #10) #10
Massachusetts 112-72 17 & 22
Michigan 14. 648
Montana 66-1312 (Formerly 3167?) 3 &4
Nevada 636.300 14(a)
New Hampshire 327: 26 & 27 #10
NewJersey 45: 12-11, 19,&19.1 4&5
New Mexico 67-7-13 3&4
North Carolina 90-125 VII 3, 5, 10, 11, 12
North Dakota 43-13-22 & 28 7, 8(7) (c)
Ohio 4725.11 Sec. C 3. & 10
Oklahoma 59-585, 588 & 942 #4
Oregon 683.140 & 180
Rhode Island 5-35-20
South Carolina 56-1051 (Some) L., M, & N
Texas Corporation Practice Rule
Administrative Interpretation
Professional Responsibility Rule
Utah 58-16-11 9a.&d.
Vermont 25-26-1601
Virginia 54-388 1.(i)2.(c)
Washington 18.53.010 I. The Washington State Supreme Court has
declared . . . etc.
West Virginia 30-8-10
Wyoming 33-292
PAGENO="0148"
144
PROPOSED AMENDMENTS OF D. C. MEDICAL SOCIETY. TO H.R. 2388
91ST CONGRESS
1ST SEssioN I-I. R~. 2388
TN Till4 HOTi~E OF REPRESENTATIVES
JANUARY 7, 1969
Mr. SISK (for himself, Mr. NELSEN, and Mr. FUQUA) introduced the following
bill; which was referred to the Committee on the District of Columbia
ABILL
To amend the Act of May 28, 1924, to revise existing law
relating to the ~aminatiOri71Thensi e, registration, and regu-
lation of optometrists and the practice of optometry in the
District of Columbia, and for other purposes.
1 Be it enacted by the Senate and House of Representa.-
2 lives of the United Slates of America in Congress assembled,
3 That the Act entitled "An Act to regulate the practice of
4 optometry in the District of Columbia", approved. May 28,
* 5 1924, as amended (D.C. Code, sees. 501-522), is amended
6 to read as follows:
7 "Si~o~rio~ 1. This Act may be cited as the `District of
8 Columbia Optometry Act'.
skilled mechanical art involving human
9 . "S~o. 2. The practice of optometry as a ~ ~tt vision
PAGENO="0149"
145
C)
the District of Columbia is hereby declared to affect the pub-
lic 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 -tm-u prafoooi~n- be limited to qualified persons.
admitted to the praotioo of optomot1'y in the Di~triet of
7 -t~ominrna under the-~re~~jpipns-of this A-et~
8
"Sec. 3. As used in this Act-
9
"(1) `Commissioners' means the Board of Corn-
10
niissioners of the District of Columbia or its designated
ii
agents;.
the application
12
"(2) `practice of optometry' rnean~' any-onc~--any
of optical principals through technical methods
13
14
`~mbhiation, or all of the follewing aete ~potioos~as~
and devjces in the examinations of the human eye
they are ineludocl~in ~
for the purpose of determining visual defects and
15
~-~mI ealleges ef eptemetry:\ (a) the empleyme~t e~aay
16
the adaptation of lenses or prisms for the aid
*objeotivo or aubjoctivo.mncan~ for tb~e orarr~in~t,m of ti-to
and relief thereof.
17
U-WO~fr
18
rneit of h~pewere or range- of human- vi~ion~-44.the
19
~oterniina~on of the aooeinedativo end ref raot~ve powers
20
21
of the human -eye; (d) the prescription of lonsos,
r~ierno, or framee for the ~j~j of the human eye; (e)
22
The adaptation, utilioition, or famishing of louses, prisms,
23
orframes-for the avid ~of the human eye; (f) the-pre~mrib-
JI11~ inr~ nt~c~ of, or n(l1ninioterif~g-fi0n...tI'auu.f4.~.
1
2
3
4
5
6
26
24 i~,~~iiae+~L0 :~.
25 ~ -oithoptios,-nnd the ~t4~ of ~y optical d~vi~ ~n
:4-1. . I-.\ 4.1
PAGENO="0150"
or the fittii~g ~n' adaptatioii of con-tact 1en~e~ to~the~
-human-eyo-;-~md~ -~h) 41ie~ident ettion-of~ny departure-
from the normal condition ci' function of the human cyc,
including ita appen4ag~
"(3) `optometrist' means, except as otherwise pro-
vided in this Act, an individual licensed to engage lii the
practice of optometry in the District of Columbia;
"(4) `person' means any natural person, corpora-
tion, association, company, firm, partnership, or society;
(5) `individual' ineatis only a natural person; and
(6) `State' means the States of the United States,
the Commonwealth of Puerto flico, and the territories
of the United States.
"SEC. 4. The Commissioners shall issue a license to
practice optometry in the l)istrict of Columbia to any indi-
vidual who-
"(1) is at least twenty-one years of age;.
( 2) is of good morn I 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 completed a preoptonietric course of at.
least two years at college level;
146
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PAGENO="0151"
147
4
1 "(6) has graduated from a school or college of
2 optometry approved by the Commissioners after comple-
3 tion of a course of study of not less than four years;
"(7) has passed written, oral, and practical exam-
inations as prescribed by the Commissioners in the fol-
6 lowing subjects ~-geom~trio, phy8ical and physiolo~oal
7 eptiea theoretic optometry and optics; anatomy~ phyn
8 1~1ogy, ~nd pathology, especially as they relate to the
9 eye and to vision; general practice of optometry; special
10 practice of optometry; practical optometric dispensing
11 and such other subject matters as are taught in the
12 schools and colleges of optometry and which the Com-
13 missioners deem necessary to determine the applicant's
14 competence to practice as an optometrist. The Com-
i r missioners may accept the results of written examina-
16 tions given by the National Board of Optometry, but
17 shall conduct their own oral and practical examinations.
18 The Commissioners are authorized arid empowered to
19 alter, amend. and otherwise change the educational
20 standards at any time, but in altering, amending, or
21 changing said standards, the Commissioners shall not
22 be l)ermitted to lower the same below the standards
23 herein set forth; and
24 "(8) has paid all the required fees.
25 "SEc. 5. (a) The Commissioners are authorized to is-
26 sue a reciprocity 1icei~e to an individual who holds a license
PAGENO="0152"
148
5
1 to P1~l(l iCC 01)1011 id IV iii a i iot her State. A a a j)J)1i( a nt for
2 a reciprocity liceiise may, at the discretioti of the Cornniis-
~ sioners, be licensed without a Writfefl examination 1)llt lie
4 must be given and pass a practical and oral examination.
5 A reciprocity license shall be granted only if-
6 " (1) the State in which the applicant's license has
7 been granted accords like privileges to the holder of a
8 license to practice optometry in the District of Columbia;
9 "(2) the license of the applicant shall not have
10 been suspended or revoked by any State for any cause
11 which is the basis for suspension or revocation of a
12 license under this Act (other than for nonpayment of
13 fees) unless such a license has been reinstated by such
14 State atid is ill full force and effect at the thne of the
applicatioii for a reciprocity license under this section;
16 "(3) the applicant for a reciprocity license has not
17 failed to pass an examination for a license under this
i~S Act in the District of Columbia after his admission to
practice ni another State.
(ii) If an individual holding a reciprocity license
21 granted wider this section fails to actually practice optom-
22 etry in the 1)istrict of Columbia within one year after such
23 license has been granted, the Commissioners. may revoke
24 such license at any time before such i11(liVidual actually he-
25 gins the practice of optometry in the District of Columbia.
PAGENO="0153"
149
6
1 "Sue. 6. Every license issued in accordance with the
2~ provisions of this Act, subject to the provisions of section 7
3 of this Act, shall automatically be renewed aitnually upon
4 application by the holder of the license and payment of the
5 annual renewal fee. Such annual renewal fee shall be fixed
6 by tl1e Commissioners. If the holder of a license fails to
7 renew his license in accordance with this section, such Ii-
8 cense shall be suspended and such individual shall not there-
9 after practice optometry in the District of Columbia until
10 such license shall be reinstated or a new license issued to
11 him under this Act. If such individual thereafter applies
12 for reinstatement of his license, it shall automatically be
13 reinstated upon payment of all intervening renewal and oth-
14 er fees. If such individual fails to have his license reinstat-
15 ed within five years after the date it is suspended under this
16 section, he shall not thereafter be licensed to practice op-
17 tornetry in the District of Columbia until lie shall have
18 passed a practical examination given by the Commissioners
19 and paid all intervening renewal and other fees.
20 "Sue. 7. (a) The Coniiuissioiiers are authorized (A)
21 to refuse to renew, or reinstate any license authorized by
22 this Act, and (B) to ~uspend or revoke aiiy license issued
23 under authority of this Act, for any of the following causes-
24 " (1) thc use of tniy title or ttny other word ot'
25 abbreviation 111(11(0 $ing ho I the Ii(~('I1Sc(1 IS (`flgltged in
26 the practice okmnedicine or surgery; or the use of drops,
drugs or othth~ ~hemica1s in the human eye;
PAGENO="0154"
150
`.7'
* : "~ ~` (2) conviction of `~ a crime involving moral
.2.. "`~turpitude; *.~ `. ` `` :" .`.
* 3 ` ` ` ." "(3) willful violation or repeated violations of any
* provisions of this Act or any of the regulations promul-
* gate~f. by the tJominissioners under this Act;
6" . ~` " "(4) gross incompetence;
* `" (5) chronic or persistent inebriety, or the habit-
* 8. " ual use of narcotics;
.9 .` *" (6) affliction with a contagious or infectious dis-
10 ,; ease which, in the opinion of the Commissioners, renders
the practice of optonietry by the licensee or applicant
12' ` for a license, dangerous to the public health;
~13 . ` ~. ." (.7) conduct which disqualifies the licensee from
14 ` practicing optometry with safety to the public;
"(8) advertising directly or indirectly the perform-
16 ` ance of optometric service or any part thereof, includ-
17 , , ing the furnishing of ~ithalm~ o~ optical material,
18 ~. , ~. in ally. foi'iii, imuiner, or way, or through any medium
19 * ` ` whether `it, be printed, audible, visible, electronic, or
20 * **` ill any other fashion, except as authorized by regula-
* 21 .. , tions issued under section 10 of this Act;
* ` 22 * *.. * "(9) practicing or offering to practice optometry
* , * 23 . under any iiame other tliaii that under whicli lie has
24 . *:. been duly licensed; `
25 "(10) soliciting patients by offering free exami-
26 nations or other gratuitous services, bonuses, premiums,
PAGENO="0155"
151
S
1 discounts, credit, or any other inducements for the p1w-
2 pose of obtaining patronage;
* "(11) the display of any spectacles, eyeglasses, or
4 . spectacle frames or mountings, goggles, sunglasses,
5 lenses, prisms, spectacle or eyeglass cases, ophthalmic
6 material, optometric instruments, diagnostic devices,
7' optical tools, or machinery, or any merchandise, mate-
S rial, Or advertising in a manner so as to make it visible
9 from the street or the public corridor of a building;
10 . . ".( 12) the display of his license, diplomas, or cer-
11. . tificate, in such manner that they may be seen from the
12 outside of the premises where lie practices;
13 . "(13). except as provided in section 9, the use of
14 the words `clinic', `infirmary', `hospital', `school', `col-
15 lege', `university', or `institute' in English or any other
16., , language in connection with an activity which is essen-
17 . . tially the practice of optometry;
18 "(14) to `cause or permit the use of his name, pro-
19 , ~ession, or profecrional title or in conjunction with the
20 . advertising of his rofc~ionaI- services in any form or
21 . manner by any person;
22 * "(15) holding himself forth by any means or
23' *. manner of `possessing profo~iaiomutl- superiority or the
24 ability to perforn'i prof~oional services in a superior
25 manner;
PAGENO="0156"
152
9
1 `` (1 fi) the employment' of or :lnv :lrrangerner1t~
unauized-
2 wi'i(teti or oraL wit ll~)el'sO!Ls who use their efforts or
3 influence to direct patronage to the optometrist;
4 " (17) practice optometry in any retail, mercantile,
5 01' coimnereml store
.6 " (IS) *` except 85 provided ill sectioii 9. the pine-
7 ticing of optometry as `an employee of and l)U1'siiallt to
8 any wPitten or oral arrangement with any person other
9 than a duly licensed optometrist;
10 "(19) OILV 01h(~1' m~~f~umal conduct as defined
11 *` liv the Comnussioners in regulations issue(1 pursuant to
12 this Act.
13 ` " (li) The denial, suspension, or revocation of a license
14 iSSlle(l rul(ler this Act shall he made only upon specific
15 charges ill writing a 11(1 #ft(r 1101 ice and hearing (urikss such
I 6 licailug is waived) . A (Pit ified copy of iiiiy siidi charge and
17 11 notice 4)1 heitnuig. specifying the time 8114.1 Place tiiei'eof,
18 shall be serve(1 upon the holder of or applicant for such
19 lieeiise to practice aS 811 optometrist iii the District of Co-
20 lumhia, at least twenty days before the hearing. The re-
21. spondent may waive the requirement of hearing contained
22 111 thig 5Ul)section hit only in' writing. The respondent shall
2~ be entitled to counsel and to call witnesses in his defense.
24 " (c) Upon written application and after hearing, pur-
PAGENO="0157"
153
10
1 suant to notice, the Conunissioiieis may reinstate a license
2 which has been previously revoked, except that no applica-
3 tion for reinstatement of a license ~ha11 be accepted for con-
4 sideration prior to the expiration of at least one year follow-
5' ing the date on which the applicant's IiCCIISC w~is revoked.
not exempted from the provisions of this Act
6 "SEc. 8. (a) It shall be unlawful for any person-f-
7 " (1) to engage III the practice of optometry in the
:8 i)istrict of Colunibia without a valid license issued under
9 this Act so to do;
10. *. "(2) to practice or offer to practice optometry
U. . under the name of aiiy conipimy, association, corpora-
12 tion, trade name, or business name, or any other name,
13 .. except his OWII proper iiaine flS appears on the license
14. issued to him timler this A ct by time Commissioners;
15 . " (3) (A) to sell or fraudulently obtain or furnish
any diploma, license, or record required by this Act
17, . or required by the Corumimissioners tinder authority of
18 this Act, or. aid or abet in ih~ selling, fraudulently ob-
19 taming, or furnishing thereof;:
20 , , "(B) to practice optometry as an optometrist Un-
21 . der cover of any diploma, license, or record required
22,. . by this Act or required by the . Commissioners under
23 authorit~y of this Act, illegally or fraudulently obtained
24 `, or signed or issued unlawfully or undit' fraudulent
~ representation;
PAGENO="0158"
* 154
It
1 " (Ct) to use in (OuIflCCtJout ~viiIi his natuie any desig-
2 nation tending to mu pl~ that he is an opt oluiet rist
3 1ic~nsed to practice uiiidei' this Act if lie is not licensed
4 to practice tuider this Act; or
" (1)) to pract ice OptOtitetI'y as ~UI O1)tOlfletrist duir-
~i ing any time his license issuc(1 under this Act shall
be sllspende(1 or revoked.
S " (4) with the exception of iioiiprescriptioii stilt-
nonprescription eyeglasses,
9 g1a5st's,'~i' 11OIt1)I'CS('Ii Pt 1011 l)l'otCCl i ye eyewear, to a(lVPr-
10 tise 01' (ause to 1)e a(IVCI't.ise(l to I he ptthulio a tiv oh)tU-
~ 1 II 1(1 tie ~i' 01)1)11 mm I-RI- 11111 Iei'ial of aiiy ci iii u'aet Ci' WI) id i
12 titi tideS ut CU)) I it itis a I I)~ P `iCC Cost 0)' at iy i'efei'ei ice
13 tliei'eto. \VlIethICl' 1'(hitC(l to any eve cxaniina.tioii or to
the~ cost * or price of lenses, glasses, iiiountiugs, or
- optometric
* ~ththaIi~ articles or devices;
(~) to solicit patients or (~1t1sC patients to be
17 * solicited liv niea us of Ii'ee eye exaiiiitiations 01' other
18 gratuitous SCl'ViCCS, bonuses, pt'CIiliUIIIS, discounts, credit,
19 * or any other naluceumuents for the ptil'l)ose of obt-aiiuiuig
~)af.rorlage;
21 * " .(() if he \\`i'ites 0 l)l'eSt'l'ih)tiull 101' ilIi(ttliCt', to 1'('-
22 * ceive any pai't of the sum paid or other valual)le (On-
sidei'iutioiis p0i(1 by such 11(15011 to a third person for
24 filling such presci'iptioii; or for such third person to pay
to the person writing a prescription any part of the suni
PAGENO="0159"
155
12
1 paid oi' other VtiliiaI)le (OliSid(i'iItiOllS received by such
.2 third person for filling of such Pre~1'il)ti01u;
3 " (7) other than a 1)C1'~011 lic~iiscd to l)nlctiCe
4 optometry, medicine, or osteopathy under the laws of
5 the District of Colunilua, to utilize the services of an
6 optometrist on a salary, conilnission, lease. or any other
7 basic, or to engage or undertake to engage, directly or
8 indirectly, in a~iy maimer whatsoever, in the practice of
~Pt~1~t~Y
optometric
10 " (8) to display iuiy sigh oIl ciii ig *~pIifl ad~ ii moo te-
11 rials for sale in violation of any regulation of the Coin-
12 missioners issued under authority of section 10 of this
13 Act;
14 . " (9) to pl'acti(c ol)tuilictry witimoont (oiIsl)i('Uousl
displaying his license ?lld his current. annual. renewal
16 registration where he practices.
17 " (b) A violation of any of the provisions of this section
18 shall constitute a. misdemeanor and shall lie l)urmishled for the
19 first offense by a flue of not. moore thou $500, an~l upon a
20 ~ecoimtl oi' subsequent comm virtiom I hio'i'vo of, shall 1 oc 1)ilmmishetl by -
21 a fine of miot more I him mm $ 1,000, or by 11 prism iii cot iii the
22 1)istrict. jail for not more than oime year, or by both fine and
23 imprisonment.
24 "SEc. 9. (a) ThisAct shall not apply-
2o " (1) to any bonn fide studeim.t of optometry. mne(1i-
PAGENO="0160"
156
I `)
I.)
1 clue. 01 OStCOI)iltllV ill the ClifliC 100105 of ;i 5(11001 of
2 optolllctry. mcdiciiic, or osteopathy ILI)plOVC(l by the
3 Commissioners;
member
4 (2) to any eomnnt~ionod otheor in the armed
3 services wh& is engaged -in th~ prentice of optometry in
acting
6 the District of Columbia~~r a~uch practice is in the
7 performance of his military duties;
8 . " (3) to an individual licensed in another jurisdic-
9 tion who is in the District of Columbia to make a
10... (`imicCi demonstration before a professional society, con-
.11 .- . vention, professional association, school, or college, or
12 agency of governthent.
apply
13 "(b) This Act shall not ~o-deomod to roguir~ a physi-
or ~teo~ath
14 cian~ ~nrgeon~icensed under the laws of the -District of
nor to nurses,
1~,) Coltunlim for the lmIcti(e of mediciiie or f)StCO1)atlIV/~ hft.v~
technicians and para-medical pers~onnel acting under
16 ~hicenae under tln~ Act to portoim -there e'rvie'i~ defined Ry
t~meLr di,~ectiOn~.~'
17 this ~1ct ec the praetmco-oi-optometr~.
18 "(c) This Act, other than section 8, shall not apply to
19 OIlY l)Vl'SOiI \V1I() fills the writteim l)rCSCi'il)ti(iIl of ~
20 licetised tø l)iiiCtiCe O1itoiiietl'3', BIedicii1(~, 01 ostco1)athy, or
21 Who reI)airS (11' restores eyeglasses 01' Spectflcl(5 to their pie-
22 ViOUS eouditioii of usefuhiess1 ~ ~vho practicer npton+etr~- ~
23 ~efliwd iw rection q (2)~~-~ and who does not OtliciWiSe
24 practice optometry, but thi5 sul)section shall not be deemed
25 to aut.honze such a person to fit contact lenses, unless such
-. shall have a prescription therefor from a physician,
surgeon or osteopath.
PAGENO="0161"
157
14
1 `` (d) 1\othiiig in tins Act 510111 he (l(bclI(c(l to 1)rcVellt-
2 " (1) 011 opt oi iiet flC (`liJilt a p~)1() VCd I )V the Coi ninis-
3 sioners from l)cing conducted on a nonprofit basis b
4 a school or college of optometry oi' by Oil association
5 of optometrists;
6 " (2) all optoineti'ist fi'oin being eiiiplocd by or
7 associated with any hospital, clinic, group health prac-
8 tiec, noilpiOfit health Service, health eXpense indemnity
9 corporation or group, or any department, agency, or in-
10 strumentahty of the (iovernment of tile UnIted States
11 or of the govcrmnent of the District of Columbia, or as
12 ;ni employee of aiiy pei'son to render optometric service
13 . and care solely to employees of such pei'son;
14. "(3) the executor or administrator of time estate
13 . . of a deceased optometrist from employing a. licensed
16 optometrist to carry on the practice of such deceased
17 . licensee (luring the administration of the estate, or tile
18 legal representative of a mentally disabled optometrist
19. . from employing a. licensed optometrist to carry on the
20 .. . practice of such licensee for a period not to exceed one
21 . year; . .. 5 5 5
.22 . . . . " (4) a person frdm acting as an assistant under the
23 `~ dlrectA~~~ ~ of a person licensed by the
24 . District of Columbia. to practice optometry, medicine, or
23 osteopathy provided t.iiat such assistant does not perforni
29-179 O-69----11
PAGENO="0162"
158
15
optometric or
1 an act which would require /professional judgment or
2 discretion;
3 " (5) vision screening programs conducted under the
4 direction or supervisioii of a person licensed to practice
5 optometry, medicine, or osteopathy; *
~ør veproducin
6 (6) persons from supplymg~spectac~es or ey -
7 glasses on prescription from a person licensed to practice
8 optometry, medicine, or osteopathy;
9 "(7) a person from selling nonprescription sun-
,nonprescription eye~lasses,
10 glasses,for nonprescription protective eyewear.
autl-~Q~'ize
11 (e~ Notlung in tins Act shall be deemed to ~liun~
tous~
12 an optometrist fi~tm uomg the title `doctor' or any abbrevia-
13 tion thereof except that if he uses such title or such abhrevia-
A . . fQllowed b~z.:he. title
1~ tion it must be with ~uo1i qu~1iheation~ ao may ho n~c~sai~y
15 ~to cl~rly iiidicatc to the publie that ho i~-~ optometrist.
16~ "(f) Nothing in this Act shall be construed as con-
17 fei nn~ upon the holdei of any hecnse issued b~ the Corn-
18 missioners the right to perform surgery upon or to treat
or to arops, chemicals,
19 diseases of the human eye ~ use ~rugs or medicine
* ~n the human eye
20 for to write or issue prescriptions for the obtaining of drugs
21 or medicine in any form for the treatment or examination of
22 the human eye, or to prescribe; fit or adapt contact lenses
2~ without written authorizatj,on or a prescription from a
SEc. 10. (a) FIie (OiiIfluiSSiOflel'S fi'ont time to time physic ian,
24 shall prescrih)e and adopt such rules and regulations as ~flV g or *
osteopath.
25 be necessary to carry out this Act and govern the practice
PAGENO="0163"
159
16
optometric
I of optometry and the sale of ~jtht.hnhni.~- materials which shall
2 include, bitt, not bt~ liiiiifrd to, rules auid regnintions govern-
3 ing the number, size, location, and illumination of signs offer-
4 ing the services of (1) an individual as an optometrist and
optometric by optometrists.
5 (2) uphthahn~ materials for saW With respect to the
6 offering of SerViCes of an nidividutal as an optoitietrist, such
7. regulations shall limit the offering thereof to time carrying or
8 publishing of a modest lwofoueiml4 card and the display of a
.9, modest window or street sign at the location of the mdi-
10 vulual's practice, wl~ich ~feoiion~ card or window or street
practice
11 sign shall display only the name, address, ~ office
12 hours, telephone connections, and if time practice is ~ limited
~o desc~ibe the ]j.tnited.
13 ~~pcoiti1t~ Practices by the imlivnhial, and in the ease of
14 change of address or the starting of practice, to modest an-
15 nouncemnerits thereof. With respect to the offering for sale
oP~tQmetric .
16 of ~~mmann~ materials, such regulations shall limit the offer-
1 7 ing for sale thereof to a modest window or street sign at the
18 location of time person's place of I)nSineSs and other modest
19 advertisemnents._. Nothing in~ this section shall be deemed to
op~QmetVic
20 authorize aimy optometric service or o1Ththa1n~ materials
21 to be advertised in any manner which includes or contains
22 ai~y price, cost, or reference thereof.
23 "(b) (1) The Commissioners are authorized and em-
24 powered, after public hearing, to. estnl)lish, abolish, increase,
23 or decrease, from time to time, such fees and charges as are
PAGENO="0164"
160
17
1 necessary to defray the approximate cost of administering
2 the provisions of this Act.
3 "(2) All funds derived from fees and charges collected
4 in connection with the administration of this Act shall be paid
* `i into the Treasury of the United States to the/credit of the
* 6 District of Columbia.
* 7 "(c) The Commissioners shall design and' adopt a seal
S to be used for authenticating records and papers pertaining to
9 the licensing and regulation of optometrics in the District of
10 Columbia. Copies of all records and papers duly certified
11 and authenticated by such seal shall be received in evidence
1~ in all courts of time District of Columbia equally and with like
13 effect as the original. Records kept by the Commissioners
14 pertaining to the licensing and regulation of optometrists in
15 the District of Columbia shall be open to public inspection
16. under reasonable rules and regulations prescribed by the
17 Commissioners. ` *
18 "SEc. 11. The Commissioners may make such inspee~-
19 tions, studies, and investigations, and obtain or require the
20 V furnishing of such information under oath or affirmation
21 or otherwise, as they deem necessary or proper to assist
22 them in prescribing any regulation or order under this Act,
23 or in the administration ~ enforcement~ of this Act and any
24 regulations or rules or orders thereirniler. For such par-
25 poses, the Commissioners may muinmimster oath arid affirma-
PAGENO="0165"
161
18
1 tions, may require by subpena or otherwise the attendance
2 and testimony of witnesses, and the production of documents
3 at any designated place within the District of Columbia.
4 In the event of contumacy or refusal to obey any such
5 subpena or requirement under this section, the Commission-
6 ers may make application to the District of Columbia Court
7 of General Sessions for an order requiring obedience thereto.
8 Thereupon, the Court, with or without notice and hearing,
9 as it, in its discretion, may decide, shall make such order
10 as is proper and may punish as a contempt, any failure to
11 comply with such order in accordance with sect iOn 11-982
12 of the District of Columbia Code.
13 "SEc. 12. Whenever, in the judgment of the Commis-
14 sioners, any person has engaged in or is about to engage in
15 a.ny act or practice which constitutes or will constitute a
16 violation of any provision of this Act, the Commissioners
17 may make application to the District of Columbia Court of
18 General Sessions for an order either temporarily or perma-
19 nently enjoining such act or practice, and upon showing by
20 the Commissioners that such person has enga.ged in or is
21 about to engage in any such act or practice, an injunction
22 restraining order, or such other order as may be appropriate
23 shall be granted by the court, without bond.
24 "SEc. 13. (a) Prosecutions for violations of any of the
25 provisions of this Act shall he conducted in The name of the
PAGENO="0166"
162
* : .1 `Djstri~t of Columbia in the District of Columbia Court of
2 General Sessions by the Corporation Counsel or any of his
3 assistants.
Delete:
*
`
`1b) An opt~meti'is~ licensed im~er thie Act ~~ll-ho---
Sec. 14. Every optometrist shall, wittiin ten days
5 considered competent after qualification by The court--to ~p~e-
after the completion of an optometrist's retraction,
6 -cónt testimony rolt~ting to the practice of optometry as do~-
refer to a physician for a medical eye examination any
7 fIned in thia Act. Certificates of -visual condition, acuity,
pe~sç~p.whos~ vi~ial acuity the .oytometrist has not
8 ~n~i ~onioionoy iaouoa iiy any duly licensed optometrist -under
improved 20 over 30J Snellen in ea&h eye. The optometrist
9 this Act,-chnll be &ioopod'as q fled ~enoj of the yb-mi
shall not thereaft~ pres~iribeprismS or'ocular exercises
10 .oondition, acuity nd-s~fl1ciency.oLthc person to whom such
fo~ such person unless and unttl the optometrist re-
U ~ertifleat.e -abtill relate, by ofliosra or employQas of tho g~o~
ceives written. approva3~ frop ~ physiciang surgeon or
12 ~mnont of t!io Thrtnot of Uoljimkia in -the porformaiioo-~of . -.
osteopath. Violation ot ttus becti'bn may be enjoined or
13 ~theirñutios,. prosecuted under Sections 12 and 13, and
punished under Section 8(b). *
14 * * ~`f3~c. 14. No officer or employee of the Thstriet of
la 43olumhii~- sh~l1, in- ~th~- aduthilatration of any law- applicable
16 ~e-tho 1)istriot -of Columbia, deprive any Imrson of his right
17 to-' e~r.orciso his- ireedom ~of choice of -an- optometrist or Sr
18
.
*
19 "SEc. 15. The Commissioners are authorized to delegate
20 to the Board of Optometry established by Reorganization
21 . Order Numbered 59 all or any part of the powers, duties, and
22 functions vested in them by this Act. The Commissioners
are authorized to delegate to any other officer or employee
24 of the government of the District of Columbia all or any
25 part of such powers, duties, and functions. Any delegation
PAGENO="0167"
163
20
1 made under authority of this section shall be for such periods
2 and subject to such conditions as the Commissioners deter-
~ mine necessary."
4 Sno. 2. Every license to practice optometry in the
5 District of Columbia which is valid on the effective date
6 of this Act shall continue to be valid under the District of
.7 Columbia Optometry Act, as amended by this Act, until such
8 date within one year of the effective date of this Act, as the
9 Commissioners of the District of Columbia fix as the date
10 for the automatic annual renewal for such license under the
11 District of Columbia Optometry Act, and any such license
.12 which would have expired between the effective date of this
13 Act and the annual renewal date fixed for such license by the
14 Commissioners under this section shall continue in effect until
15 such renewal date, unless sooner suspended or revoked in
16 accordance with the District of Columbia Optometry Act~
17 SEC. 3. Subsection (a.) of section 11-742 of the J)is-
18 triet of Columbia Code is amended (1) by striking out
19 "and" at the end of paragraph (9); (2) by striking out
20 the period at the end of paragraph (10) and inserting in
21 lieu thereof a semicolon; and (3) by adding at the end
22 thereof the following new paragraph:
23 "(ii) final decision and orders of the Oomrnis-
24 sioners of the District of Columbia denying, suspending,
25 or revoking any license, denying any renewal of a.
PAGENO="0168"
164
21
1 license or reinstatement of a license, pursuant to the
* 2 District of Columbia Optometry Act."
3 SEc. 4. This Act shall take effect on the ninetieth day
4 after the date of its enactment.
PAGENO="0169"
GOVERNMENT OF THE DISTRrcr OF COLUMBIA, EXECUTIVE Omen,
Washington, D.C., May 6, 1.969.
Hon. JOHN L. MCMILLAN,
(Th,airman, Committee on the District of Columbia, U.S. House of Representatives,
Washington, D.C.
DEAR Ma. MCMILLAN: The Government of the District of Columbia has for
report H.R. 2388, 91st Congress, a bill "To amend the Act of May 28, 1924, to
revise existing law relating to the examination, licensure, registration, and
regulation of optometrists and the practice of optometry in the District of Colum-
bia, and for other purposes." The bill 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 District Government desires to note that it intends to forward to
the Congress draft legislation to revise and modernize procedures relating to
the licensing by the District of Columbia of persons engaged in certain occupa-
tions, professions, businesses, trades, and callings. A primary purpose of the
District's proposed bill is to relieve the Congress of the constantly recurring
necessity cxf 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 District Government
authority by regulations to revise and modernize these statutes. If the District's
proposed bill should be enacted, it would be possible for the District to' estab-
lish 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 District's proposed bill, without the necessity for continual requests to the
Congress respecting amendments to these various statutes. The District accord-
ingly urges favorable consideration of its proposed District of Columbia Licens-
ing Procedures Act, rather than HR. 2388.
In addition, the District has considered the provisions of this bill and has con-
cluded 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
this bill is attached for the consideration of the Committee.
Representatives of the District Government have discussed the merits of the
bill with representatives of the Guild of Prescription Opticians and with repre-
sentatives of the Medical Society of the District of Columbia. Both groups, for
reasons which appear sound to the District Government, expressed the strongest
opposition to the enactment of the bill.
However, if the Committee determines that the enactment of this bill is.
desirable, the District recommends the attached amendments, which are sub-
stantially similar to those proposed by the Medical Society of the District of
Columbia, the Guild of Prescription Opticians, and the former District of
Columbia Board of Commissioners, to similar bills in the 89th and 90th
Congresses.
In the attached analysis, the District Government has indicated Its concern
respecting provisions of the bill which the District anticipates will have an
adverse effect on the mechanics of providing adequate and convenient eye care
for the members of the general public. Accordingly, the District recommends that
the bill not be enacted, not only because of the District's support of its proposed
District of Columbia Licensing Procedures Act, as has been stated in this report,
but also because the District has been made aware of no compelling reasons for
enactment of this legislation. No reasons have been submitted to the District
Government to justify the curtailment of the number of long established prac-
tices of opticians, District employees, and others in the District of Columbia
which would result from the passage of this legislation. Therefore, the District
strongly recommends against the enactment of the bill.
Sincerely yours,
THOMAS W. FLETCHER,
Asnistant to the Uonvrn~issioner.
(For) WALTER B. WASHINGTON,
Co~n~nUssioner.
(165)
PAGENO="0170"
166
ANALYSIS OF THE PROVISIONS OF H.R. 2388
The first section of the bill replaces the Act with an act comprised of fifteen
sections. References 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 regulation;
and declares that the practice of optometry should be limited to qualified persons,
admitted to practice under provisions of the bill.
The proposed section 3 contains definitions, including the following:
"(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
recognized schools and colleges of optometry; (a) the employment of any
objective or subjective means for the examination of the human eye, includ-
ing 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 the human eye; (e) the adoption, utilization, or furnishing of lenses,
prisms, or frames for the aid of the human eye; (f) the prescribing, direct-
ing the use of, or administering vision training or orthoptics, and the use
of any optical device in connection therewith; (g) the prescribing of con-
tact 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 the human eye, including its appendages~,..."
Section 1 of the present Act provides:
"The practice of optometry is defined 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 adapta-
tion 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 District Government believes 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 District recommends that if the Committee accepts the broader definition
of the practice of optometry, as contained in the bill, that at least simple visual
screening procedures conducted by 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 sets out qualifications for licensure, requiring that
applicants be 21 years of age or older; be of good moral character; mentally
competent; possess the education equivalent to a high school education; com-
plete a two-year college preoptometric 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 District Government to alter, amend, and otherwise change the educational
standards at any time, provided they are not lowered.
The proposed section 5 provides for reciprocity with the States. However, there
are requirements that an applicant for license by reciprocity must practice in
the District within one year of receiving the license by reciprocity. It occurs to
the District that this provision might work a hardship on a qualified optonietrist
who, after receiving a 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 District Govern-
ment is authorized to refuse to issue, renew, or restore a license or to suspend
or revoke a license. At least one of these 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 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; . .
PAGENO="0171"
167
"(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;
"(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*,..."
With respect to causes for suspension or revocation related to advertising,
practicing under a name other than the licensee's own name, practice in stores,
display of eye glasses, and the like, the District Government wishes to bring to
the attention of the Committee the decision of the United States Court of Appeals
for the District of Columbia in the leading District case of silver v. Lans burgh
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 per~ons 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 & Bros., a corporation conducting a large department store in Washing-
ton City, and Buhi Optical Company, a District corporation organized to operate
and own optical and optometrical stores, to restrain them from directly or
indirectly engaging in the practice of optometry in the District of Columbia.
The right to bring the suit is not challenged. Cf. Ezell v. Ritholz, 188 S.C. 39,
198 S.E. 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 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 com-
parable 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 ex-
ploitation. We cited many authorities holding that a corporation engaged
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 practice
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 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, 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 History of Optometry, p. 24 (192fi).
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 universally all are deemed professions.
"We find nothing in the statute to indicate that Congress intended to
prohibit corporations from employing licensed optometrists.' Its primary
PAGENO="0172"
168
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 corporation.
"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 District Government believes that some of
the causes for the suspension or revocation of a license, or for which the Dis-
trict 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
revocation of a license.
The proposed section 8(a) specifies nine 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 optome~-
trist; practice during suspension or revocation; advertising the cost of any
optometric or ophthalmic material; offering `inducements to obtain patronage;
splitting prescription fees; hiring an `optometrist on salary; displaying a sign
offering ophthalmic materials for sale in violaton of the regulatons adopted by
the District Government; and not displaying in one's office his license to practice
optometry.
With respect to the prohibitions relating to advertising by optometrists, and
the hiring of an optometrist by anyone other than another optometrist, the
District Government is of the view that prohibitions of this nature do not serve
the best interests of the general public, and accordingly the District reconi-
mends their deletion from the bill.
The proposed section 8(b) declares violations of the section to be misdemeanors,
with a first offense fine of not more than $500, and for second or subsequent
offenses, not 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 District notes that these penalty provisions are a substantial restatement
of those contained in section 2 of the Act. However, if penalty provisions are
to be provided in a new section, the District recommends that an `alternative
jail sentence to the first offense fine should be provided. Further, the District
believes the bill should not restrict the place of incarceration to the "District
jail" and that the Corporation Counsel should be named as the prosecutor.
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 District of Columbia
Court of Appeals, in Fields v. District of Colambia, 232 A. 2d 300, decided July 25,
1967, held that the actual fitting of contact lenses is the adaptation of lenses
within the meaning of the present District of Columbia optometry statute.)
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
employees, and the like; (3) a widow or widower continuing the practice
through a hired optometrist during administration of the estate or the legal
representative utilizing `the services of another optometrist to continue the
practice of a mentally incapacitated optometrist for a period not exceeding
one year; (4) a person acting as an assistant to an optometrist or doctor;
(5) vision screening programs conducted under the direction or supervision of
a licensed optometrist or physician; (6) persons supplying glasses on pre-
scription; and (7) a person selling sunglasses and protective eyewear. This
last clause should also include magnifying, ready-to-wear glasses, a retail
product sold without restriction throughout the United States.
The proposed subsection 9(e) permits the use of the title "doctor" bçy
optometrists, with a qualification indicating he is an optometrist.
The proposed subsection 9(f) states that nothing in the bill authorizes the
treatment of diseases of. the eye.
PAGENO="0173"
169
The proposed section 10(a) directs the District 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 District 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 District to adopt a seal for the au-
tlientication of records and papers relating to the licensing and regulation of
optometrists.
The proposed section 11 authorizes the District in its administration of the
bill to make inspections, studies, and investigations, to require furnishing of
information under oath, and to subpoena documents.
The proposed section 12 authorizes the District Government to seek injunc-
tions against violations of the provisions of the bill.
The proposed section 13(a) provides for the prosecution of violations, while
the proposed section 13(b) declares that an optometrist is a competent witness,
upon qualification, as to the practice of optometry and his certificate shall be
accepted as qualified evidence of visual condition, acuity, and efficiency of a
person by the District Government. The District Government believes that
evidence of visual condition, acuity, and efficiency is of a medical nature, which
should be supplied by a medical doctor. The District therefore opposes this
provision of the bill.
The proposed section 14 prohibits officers and employees of the District Gov-
ernment from "depriv (lag) any person of his right to exercise his freedom of
choice of an optometrist or a physician". The District is informed that this pro-
vision of the bill is intended to prevent school nurses from advising the parents
of children with eye problems to seek medical treatment for them. The District
strongly opposes a statutory provision which prohibits any person, including Dis-
trict personnel, from advising anyone to seek medical care.
The proposed section 15 authorizes the District Government to delegate its
functions under the bill to the Board of Optometry or to any other agency of
the District Government.
Section 2 of the bill continues existing licenses in effect.
Section 3 of the bill 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 agencies of the Dis-
trict, so as to extend its jurisdiction to the review of optometry license cases.
Section 4 of the bill makes the legislation effective on the ninetieth day after
the date of its enactment.
PROPOSED AMENDMENTS TO H.R. 2388, A BILL "TO AMEND THE ACT OF MAY 28, 1924,
TO REVISE EXISTING LAW RELATING TO THE EXAMINATION, LICENSURE, REGISTRA-
TION AND REGULATION OF OPTOMETRISTS AND THE PRACTICE OF OPTOMETRY IN THE
DISTRICT OF COLUMBIA AND FOR OTHER PURPOSES."
1. Section 2, strike "profession" in two places and insert, in lieu thereof,
"mechanical art involving human vision".
2. Section 3(1), strike definition of "Commissioners" and insert, in lieu thereof,
the following:
(1) "`Commissioner' means the Commissioner of the District of Columbia,
or his designated agent." (Throughout the bill substitute "Commissioner" for
"Commissioners" except in section 10.)
3. Section 3(2), amend definition of "practice of optometry" to read as follows:
"(2) `practice of optometry' means 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."
4. Add to section 3 a clause (7), reading as follows:
"`Council' means the District of Columbia Council."
5. Section 4:
(a) Redesignate existing section as section 4(a).
(b) Amend clause (7) of such section 4(a) by striking "in the following
subjects :" and inserting in lieu thereof "in optometric subjects, which
may include the following
(c) Insert a subsection "(b) ", reading as follows:
`(b) The Commissioner is authorized and empowered to alter, amend,
and otherwise change the educational standards at any time, but in alter-
PAGENO="0174"
170
ing, amending, or changing said standards, the Commissioner shall not
be permitted to lower the same below the standards herein set forth."
6. Section 5, amend to read as follows:
"Sec. 5. The Commissioner is authorized to issue a license, without ex-
amination, to any applicant licensed to practice optometry in any State
which through reciprocity similarly accredits persons licensed by the Dis-
trict of Columbia to practice optometry, on his filing with the Commis-.
sioner a true and attested copy of the license issued him by said State:
Provided, That the standard of requirements for the practice of optom-
etry in said State is at least equal to that provided by this Act and the
regulations promulgated hereunder; And Provided Further, That such
applicant has not previously failed an examination given by the Commis-
sioner of the District of Columbia under the authority of this Act."
7. Section 7(a):
(a) strike clauses (8), (9), (10), (11), (14), (16), (17) and (18), and
renumber remaining clauses accordingly.
(b) amend clause (19) to read as follows:
"any conduct specified by the Council, by regulation, after public
hearing, to be unprofessional conduct."
8. Section 8(a):
Strike clauses (2), (4), (5), (7) and (8).
9. Section 8 ( b), amend to read as follows:
"(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 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 im-
prisonment for not more than one year, or by both such fine and imprison-
ment. Prosecutions shall be in the District of Columbia Court of General
Sessions by the Corporation Counsel or one of his assistants.
10. Section .9(c), strike "written" and "and who does not otherwise practice
optometry,".
11. Section 9(d):
Clause (3), strike "during the administration of the estate" and "for a
period not to exceed one year".
Clause (7), insert, after "sunglasses" the following:
", non-prescription, magnifying, ready-to-wear glasses".
12. Section 10, substitute "Council" for "Commissioners" throughout the
section.
13. Section 10(a), insert a period after "optometry" and strike the remainder
of section 10(a).
14. Section 13(b), strike second sentence.
15. Strike section 14, and renumber remaining section accordingly.
STERLING OPTICAL Co., INC.,
Lake Success, N.Y.
Re H.R. 2388.
Hon. Dox FUQUA,
Chairman, Subcommittee No. 4 of the House Committee on the District of Colum-
bia, Cannon House Office Building, Washington, D.C.
This memorandum is submitted on behalf of the Sterling Optical Companies
in opposition to HR. 2388 which is designed to accomplish the following:
(a) Prevent the employment of optometrists by firms such as Sterling, lay
persons, health and welfare plans and unions providing eyeglass needs for
members.
(b) Prevent truthful informational or price advertising, including such adver-
tisements with respect to optical and/or opthalmic materials.
(c) Prevent the practice of optometry and certain sales of optometric and~
ophtalmic materials "in any retail, mercantile, or commercial 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 unqualified persons.
(e) Create an optometric monopoly and prohibitively increase the cost of eye-
glasses 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.
PAGENO="0175"
171
It is submitted that the proposed legislation responds to no need of the people
of the District of Columbia and is, in fact, contrary to their interests. Rather,
the sole purpose of the proposed legislation is to serve the economic advantage
of the less than 100 optometrists engaged in the so-called private practice of
optometry in the District of Columbia. Thus, without bringing about any improve-
ment in eye care in the District of Columbia, the adoption of HR. 2388 would
significantly increase the cost of eye care and ophtalmic or optical materials and
deprive many persons and corporations of valuable business relationships earned
by years of effort.
The Sterling Optical companies, on whose behalf this memorandum is sub-
mitted, have for more than fifty years, been engaged in the retail sale of eye-
glasses. In connection with such sale of eyeglasses, the Sterling companies
provide 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. S
The Sterling companies operate fifteen retail stores in New York State and
one 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 approxmately 200 persons, including 35 optometrists,
at an annual gross payroll of about $1500000. The ralue 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 repre-
sents the investment in plant and facilities in the District of Columbia alone.
Approxmately 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.
More than 100,000 eye examinations are performed yearly by Sterling's employed
optometrists. Sterling is believed to be the largest sthgle 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 eyeglass
needs are supplied by the Sterling companies, is generally approximately 50%
less than the cost of persons whose eyeglass needs are served by privately prac-
ticing optomertists. S
Thus, one cannot gainsay the salutary effects of the operations of the Sterling
companies. Qualified optometrists and opticians provide vital services on a~
economical basis. Capital investment and employment have been generated in
the District of Columbia and elsewhere. Moreover, the standards of service
observed by tl~e Sterling companies remain high. 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. f~terling Optical Co., Inc., defendant, 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 wa5s 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)
In 1968, another court commented on this passage and noted:
"Now, seven years later, no instance has been called to the attention
of this court of any disciplinary proceedings taken by . . . any agency vested
with disciplinary powers against any employee optometrist of Sterling for
either an improper eye examination or malpactice in prescribing lenses for
eyeglasses. Sterling Optical v. Univ. of N.Y.S. 55 Misc. 2d 852,859 287
N.Y.S. 2d 827,835 (Sup. Ct. Albany County 1968)
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. 2388 w-ould (a) deprive the public of this source for satisfying eye-
*Recently Sterling companies have entered the optical field in Wisconsin and Maryland.
PAGENO="0176"
172
glass needs; (b) create an optometric monopoly and increase prohibitively the
public's cost of eye care, with no' commensurate gain or `benefit to the public
welfare or well being; (c) cause loss of employment and attendant vested rights
and benefits of the employees, including optometrists employed by Sterling and
other firms similarly situated, and (d) unreasonably destroy the valuable busi-
ness and business goodwill of Sterling and other firms similarly situated, as well
as privately practicing optometrists presently engaged in practice in store
locations.
This proposed legislation would thus work a mischievous interferance with
the manner in which eye care and optical and ophthalmic materials have been
made available in the District of Columbia without responding to any need or
remedying any abuses. Moreover, the group to whose benefit the legislation
would work, i.e., so-called privately practicing optometrists, have not earned
the protection from competition and elevation in stature which they seek at
the expense of the people of the District.
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 ey~ball or
surface of the cornea-and eye muscle disturbances. In his treatment, the
Optometrist uses glasses, prisms, and exercises only."
To suggest or, even worse, to legislate that optometrists `be relied upon to
do more than refraction would not tend to improve eye care. Rather, by granting
the Congression imprimatur to the belief that reliance on optometrists for rec-
ognition of pathology of the eye is justified, the Congress could well discourage
the necessity of consulting ophthalmologists, i.e. licensed physicians special-
izing in medical and surgical care of the eyes. Such a result is undesirable. Par-
ticularly opposite in this regard are the conclusions in the Report of the Naitonal
Advisory Commission On Health Manpower:
basically, optometrists are prepared as refraction technicians, `rather
than as diagnosticians of diseases of the eye and of other diseases . . . It
is not rea~listic, however, that `optometrists, especially with present training,
should carry the critical responsibility for referral to a physician on. sus-
picion of eye or other disease."*
In a recent decision in Wisconsin, the court, in rejecting a regulation prohibit-
ing truthful advertising by optometrists observed:
"It is the established legislative policy, as announced by the Supreme Court,
that the practice of optometry is not a learned profession, but is a skilled
trade, art or calling." KINDY et al v BOARD OF EXAMINERS, Circuit
`Court of Wisconsin, Dane County, Case No. 124204 (1968).
The Supreme Court of Missouri sitting en bane reached the same result in
Bresler v Tietjin, 424 S.W. 2d 65 (1968).
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 optome-
trists and is misled into believing that optometrists who widely and in some
instances legally, employ the title of "Doctor", are physicians with medical train-
ing. The air of professionalism employed by a large segment of the privately
practicing optometrists, which would be perpetuated and enhanced by HR 2388,
fosters further harmful confusion. Investigation reveals that the title "Doctor"
employed by many optometrists was obtained as "quickie" or, in some instances,
"mali-order" degrees. A recent mailing of the New York State Optometric Asso-
ciation, Inc., dated April 21, 1967, discloses that the Massachusetts College of
Optometry is offering the degree of "Doctor of Optometry" upon a course of
study consisting of two days' attendance a week during the period from July to
the second week of September upon presentation of 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 publication
of professional optometry, and a statement of "Professional Terminology" which
appeared in the "Manual of Professional Practice for the American Optometrist"
1966 revision, published by the American Optometric Association (Exhibit 3)
which indicate further continuous attempts on the part of the privately practic-
lug optometrists to confuse the public and falsely pass themselves off as medical
practitioners.
*~IJ~. II, November 1967, p. 431.
PAGENO="0177"
173
It is additionally abundanty clear that it is the practice of substantially
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 op-
tometrists' 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
2388 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 2388 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 portion of their income in the form of profits obtaining upon the sale of eye-
glasses, these self-employed optometrists are "commercially motivated" and
should not be protected against reasonable price competition and competitive
advertising. As vendors of merchandise, in the manner described, privately
practicing optometrists are clearly distinguished from health care practitioners
such as physicians and poditarists whose cannons of professional ethics pro-
hibit profiteering in the sale of merchandise (Exhibit 6 "Principles of Profes-
sional 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 pre-
scription which would enable the customer to purchase eyeglasses from other
available retail sources.
Since HR 2388 would permit optometric eye examinations to be made only be
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",1 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
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 condemnation
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 most cases do, give adequate visual care; at the same time,
they promote optometry to the public. Physical surroundings do not indi-
cate the quality of care the patient will receive and neither does the method
*In Sterling Optical v. Univ. of N.Y.S. cited above, p. 3, the Court found that certain
optometrists who vigorously sought to convince the court of their status as professionals
"that each dispenses eyeglasses, charges for eye examinations and derives more than one-
half of his income from the sale of merchandise. i.e., the dispensing of lenses and frames."
1 U.S. v. Bausch i Lomb Optical Co., et al., Civil Action No. 46C1332: U.S. v. American
Optical Co., et al., Civil Action No. 46C1333; U.S. v. House of Vision-Belgard-Spero, Inc.,
et al., Civil Action No. 48C607; U.S. v. U1?lmann Optical Co. of Illinois, et al., 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
Justice Department referred to clearly applicable.
29-179 O-69------12
PAGENO="0178"
174
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
carriers 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 01 Columbia
v. Fiekis, Criminal Action No. DC 3628-60 (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 Com-
missioners are vested with authority to promulgate other appropriate or needed
regulations (District of Columbia Code, Sections 47-2344; 47-2345). "Bait" ad-
vertising or advertising false in other material respects may be dealt with effec-
tively 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, promulgated
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 em-
ployment of optometrists as provided for iii HR 2388. In 1937, the Apellate Di-
vision 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 Section
7107 of the State Education Law as sanctioning the corporate employment of op-
tometrists, 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 rela-
tion to public health. The benefit was intended for the public, not the opto-
metrist. Otherwise, the statute would have been unconstitutional. The legis-
*lature did not deem it necessary to create a professional optometrist mono-
poly. 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."
In 1967, during the closing days of the session of the New York State Legisla-
tion, a bill sponsored by the professional optometric associations, similar in ma-
terial respects of HR 2388, was favorably voted upon without hearing or mean-
ingful discussion.
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 12) citing the opinion of the New York State Insurance De-
partment that such legislation would "increase costs * with no increase in
the quality of services". Similar legislation was sponsored in the 1968 session
and present session2 of the New York State Legislature. When the proposed
legislation was exposed to public scrutiny and legislative reflection, none of the
proposed bills have ever reached the floor of either house.
In 1967, after the passage of the bill and in 1968 and 1909 when the legislation
was under consideration, the Governor and the legislature respectively were
urged to reject this legislation by news media (Exhibit 13), labor (Exhibit 14),
business and professional groups (Exhibit 15) and governmental agencies In-
cluding the New York State Insurance Department, the New York State Depart-
ment of Commerce and the Economic Council of the Mayor of the City of New
York, to name only a few. The views expressed by these segments of the public
are equally apt in regard to HR 2388.
It is thus abundantly clear that HR 2388 should be rejected. Its passage would
neither remedy any abuse nor achieve any salutary objective. Rather, the eco~
nomic interests of a small group would be served at the expense of the public
*Cite6 with approval in People of the utate of New York, plaintiff v. sterling Optical Co.,
Inc., fefendant, 26 Misc. 26 412 (Sup. Ct. N.Y. Co. 1960), aff'd 14 AD. 2d 838 (1st Dept.
1962), afC'd, 11 N~Y. 26970 (1962).
1S 3817.
2~ 3150 and A. 4595.
PAGENO="0179"
175
and with severe consequences to the rights and business relationships of many
persons and companys.
For all of the foregoing reasons, it is respectfully urged that HR 2388 be re-
jected in all respects.
Respectfulliy submitted,
SIDNEY WEINRIB, President.
(This memorandum, submitted on behalf of the Sterling Optical
Companies, is intended to accompany the annexed copy of HR. 2388
marked to indicate suggested deletions and changes if further legis-
lation is deemed necessary or appropriate, and to briefly explain the basis
for each such proposed change or deletion. It remains the position of
the Sterling Optical Companies (hereinafter referred to as "Ster-
1"), that no further legislation is needed. The underlying General
Policy objections to H.R. 2388 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 pro-
fession. The United States District Court for the District of Columbia in Silver
v. Lansburglt d~ 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 assume'd 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 curricu-
lum of recognized schools and colleges of optometry." The statutory meaning
of the term "practice of optometry" could therefore be changed without leg-
islative approval merely by virtue of the changes in school curricula or varia-
tions among schools. A definition framed in such terms would thus give no
guidance to anyone seeking to comply with this statute until such person has
exhaustively reviewed the curricula of the schools and colleges of optometry.
The vagueness inherent in such a definition is clearly undesirable. Moreover, 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 notwithstanding the provisions of Section 9(f), which
is merely a limitation upon the construction of the Act itself. Such a delega-
tion of power is clearly inappropriate. Moreover, the term "recognized schools
and colleges of optometry" is not otherwise defined and is not even limited to
schools or colleges "approved" by the Commissioners in accordance with the
provisions of Sections 4(6) and 9(a) (1).
SECTION 3(2) (a): The vague and indefinite language here used has no clear,
certain or generally accepted meaning and could be deemed to authorize opto-
metrists to engage in acts or practices constituting the practice of medicine, which
optometrists are not qualified or trained to perform.
SEcTIoN 3(2) (e) : 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 therefore
not be included in the statutory definition of the "practice of optometry." The in-
clusion of this subsection would, in effect, extend the scope of the bill to persons
engaged in activities which do not require the training or skills of an optometrist,
and are plainly of a business or commercial nature.
SECTION 3(2) (f) : Although it is within 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)~(g) : 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 adapting of contact lenses ought not be con-
fined to practitioners of optometry.
SECTIoN 3(2) (h) : This subsection w-ouIcT 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.
SECTION 4(7) : This subsection mandates the inclusion of numerous subjects
within the examination for the optometrist's license and then purports to grant
authority to the Commissioners to administer such examinations. The inclusion
PAGENO="0180"
176
of all of these subjects in the examination precludes the effective exercise of ex-
pertise by the Commissioners although the subsection purports to recognize their
authority in this regard.
SEcTIoN 7(a) (3) : The grounds for refusal to renew or reinstate licenses or
for license suspension or revocation should be specifically defined 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 delegation 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 can-
not be shown to adversely affect the public interest, health or well being. On
the contrary, the prohibition of such advertising will merely result in pro-
hibitively increasing costs to the public. Accordingly, advertising ought not be
a ground 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
prohibiting the practice of optometry as an employee, or a member of an opto-
metric group, it clearly does not serve the public interest (see Sterling State-
ment). Nor does it otherwise appear that the conduct referred to has any bearing
on the competence of the licensee.
SECTION 7(a) (10) The prohibition by this subsection against the granting
of credit or other inducements does nothing to serve the public interest. Rather,
it would merely make eye care more costly or difficult to obtain, `thereby work-
ing a severe hardship on the more indigent members of the public.
SECTION 7(a) (11) : The ban on the display of certain materials would serve
to keep the public uninformed as to alternative sources of supply of such ma-
terials. The prohibition against display of such material cannot conceivably
advance the public interest, but could only create, or tend to create, an op-
temetric monopoly on the part of certain licensed practitioners of optometry
(see Sterling Statement).
SECTION 7(a) (12) : The display of an optometrist's license, diploma or certif-
icate in open view to the public would permit members of the public to select
the source of such care on a more infomed basis. Clearly, the prohibition against
such a display can be of no meaningful benefit to the public.
SECTION 7(a) (14) : Theprohibition against advertising here contained is not
in the public interest for reasons stated above and in the Sterling Statement.
SECTION 7(a) (15) : The prohibition here contained would deny members of the
public access to meaningful information required to make a better informed choice
in the source of eye care and ophthalmic or optical materials with no conceiv-
able benefit to the public interest.
SECTION 7(a) (16): This subsection would prevent, among other things, ar-
rangements designed to procure more economical 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 Co-
lumbia.
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 materials to be solcT 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 while ad-
versely affecting the public and the right of those presently engaged in providing
eye care or selling and dispensing 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
public interest and in no way tend to improve the level of eye care in the District
PAGENO="0181"
177
* 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 businesses and business interests.' Notwithstanding the
exception contained in Section 9, unions would be denied the opportunity to pro-
vide economical eye care to members. This subsection seems to deny physicians
the right to employ optometrists. Since Section 3(2) (e) defines the practice
of optometry to include purely mechanical or commercial functions, the pro-
hibition 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): For reasons more fully set forth in the Sterling Statement
and above, this prohibition against advertising is unwarranted and contrary
to the public interest.
SECTION 8(a) (5) : See comments to Section 7(a) (10) above.
SECTION 8(a) (7) : As is noted above in regard to Section 7(a) (18) and in the
Sterling Statement, this section wOuld impose an undesireable and perhaps
unconstitutional, prohibition against various manners of employing optometrists.
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) (8): 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 def-
inite meaning. This subsection is further objectionable as delegating to the
Commissioners authority to provide standards of criminality by promulgating
regulations under Section 10 of the Act.
SECTIoN 8(a) (9) : This subsection would impose criminal sanctions for a
failure by an optometrist to "conspicuously" display a license and annual reg-
istration. This is an undesireable provision.
SECTION (9) (c) : Since the preamble of the Act indicates the desire to im-
prove 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
solely of a business or commercial nature, the prohibitions contained in Section
8 and particularly in subsections (a) (2), (4), (5) and (8) are not applicable.
In addition, the last clause does not give recognition to the role performed by
the skilled optician under the supervision of physicians and optometrists. Ac-
cordingly, this subsection should be amended to read as follows:
"Sec. 9(c) This Act shall not apply to any person who fills the written pre-
scription 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 render-
ing of optometric services in any such clinic could by law in any event only be
performed by licensed optometrists.
`These are constitutionally protected rights, the denial of which bring into issue the
constitutionality of the prohibition. See e.g., Greene V. McElroy, 360 U.S. 474 at 492 (1959).
aW1~he bill contains no so-called "grandfather" clause. These business interests are similarly
constitutionally protected. Sterling Optical v. Univ. or N.Y.S., 55 Misc. 2d 852, 859, 287
N.Y.S. 2d 527, S35 (Sup. Ct. Albany County, lOGS).
PAGENO="0182"
178
SECTION 9(d) (2):: If adopted, this subsection should be amended to read as
follows:
"Sec. 9(d) (2) an optometrist from being employed as an employee for any
person to render optometric service and care ;"
so as to clearly sanction the employment of optometrists (See Sterling State-
ment),.
SEcTIoN 9(d) (3) : If no prohibition on employment of optometrists is im-
posed, this subsection, 9(d) (3), would be superfluous. Parenthetically, it is
interesting to note that where the interests of optometrists are directly con-
cerned, the proponents of the bill find no objection to the employment of op-
tometrists by unlicensed persons.
SECTION 9(d) (5): This requirement that vision screening programs be "con-
ducted under the direction or supervision of a licensed opometrist or physician"
is undesireable. There is no apparent reason why visual screening programs
(i.e. eye chart reading) normally carried on in schools, places of employment
and elsewhere, should require the added expense which the direction or su-
pervision here provided for would entail.
SECTION 9(d)(6) : It should be made clear that the persons protected by this
subsection are clearly exempt from this statute. In addition, it should be made
clear that such persons may duplicate or repair spectacles or eyeglasses even
though the prescription for the eyeglasses is not presented.
SEcTIoN 9(e) : As more particularly set forth in the Sterling Statement, the
use of the title "Doctor" by optometrists has been seriously abused. This sub-
section would merely countenance and encourage such continued abuse. More-
over, it could well be read to permit duly licensed optometrists who have not
received an appropriate degree to use the title.
SECTION 10(a) : The granting to the Commissioners of authority to impose regu-
lations On others than optometrists is in no way related to the purported pur-
poses of the statute. Moreover, 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, such authority
should not 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.
Similarly, certificates of optometrists referred to in this subsection should not be
statutorily binding on government officers or employees.
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. Thus while the section
mets no aparent need, it can lead to abuses. For example, it would clearly seem
to authorize prisoners to insist on specific optometrists or physicians.
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 cou'ld, by the exercise of
such delegated authority, promulgate regulations which would favor their per-
sonal and selfish interests at the expense of the public and retail sellers of eye-
glasses with whom they compete and who would not be represented on the Board
of Optometry. This sentence would be even more objectionable if the Commission-
ers remain vested with power to promulgate regulations, the violation of which
would constitute crimes or result in the refusal to renew or reinstate licenses, or
the suspension or revocation thereof.
SECTION 2: This section would appear to bring the licenses of all optometrists
now practicing in the District of Columbia up for review within one year of the
effective date of this Act. If, as the statute seems to indicate, renewal is to be
denied in the absence of compliance with "Sec. 4", there would be imposed on
these optometrists the requirements among others, that they have completed two
years of college and an optometry school of at least four years. It is quite likely
that many optometrists, who have been practicing in the District of Columbia for
many years, would not meet these requirements for renewal of their licenses.
Moreover, there would be created the anamolous situation of persons being eligi-
ble for District of Columbia reciprocity licenses who do not meet the requirements
of this statute.
PAGENO="0183"
179
91ST CONGRESS
1ST SFSSIO'~ H0 ~0 23 8~
IN THE HOUSE OF REPRESENTATIVES
JANUARY 7, 1969
Mr. SIsK (for him~lf, Mr. NELSEN, and Mr. FUQUA) introduced the following
bill; which was referred to the Committee on the District of Co~urnbia
ALL
To amend the Act of May 28, 1924, to revise existing law
relating to the examination, licensure, registration, and regu-
lation of optometrists and the practice of optometry in the
District of Columbia, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the Act entitled "An Act to regulate the practice of
4 optometry in the District of Columbia", approved May 28,
5 1924, as amended (D.C. Code, sees. 501-522), is amended
6 to read a.s follows:
7 "SECTION 1. This Act may be cited as the `District of
8 Columbia Optometry Act'.
9 "Si~o. 2. ~
PAGENO="0184"
180
2
~ {he~ twth~t 4~ heioby. deelaaffeeL-t1~e-pu~b-
2 ~ltth~-w&$i -~fet75T7 -thu& ~ea~ifk egii1aMe~ -and
3 eon 44n-t4 p~thi&4ri~ef'e~t. It is-ftuthe~' declared to be
a matter of public interest and concern that the practice of
5 optometry a ~~oks4o~ be limited to qualified persons
6 admitted to the practice of optometry in the District of
~ Columbia under the provisions of this Act.
S "S~c. 3. As used in this Act-
9 "(1) `Oonirñissioners' means the Board of Corn-
10 missionel's of the District of Columbia or its designated
11 agents;
12 "(2) `practice of optometry' means, any one, any
13 combination, or all of the following acts or practices as~
14 thttl-th-eihHH~f-eeeg1~i~ed seho~
15
16 ehJeet~ive ~ e-means- ~o~-tho- exam *ion- of- ~he
a
17 hffm~fley-mR&l+i4H1g- i-t~ -~ e+lages-; (~) the measure-
b
18 ment of the powers or range of human vision; (~) the
19 determination of the accomodative and refractive powers
C
20 of the human eye; (d') the prescription of lenses,
21 prisms, or frames for the aid of the human eye; fe-)-:
22 ~ ~1~4~144~
d
23 °~ ~4~'t~ -a~1 -o~ .tJ~ ~m-im- eye.; (,f') the presciib-
ing, directing the use of, or administering vision training
25 01' oi'thoptics, fl-}}~l--t-lt-O- ~e- -~4 -a~ e~iea-l-4e~4~e 4M-eot~-
and
26 H41iew4'~g-~ /tlic presciilnng of contact lensc~
PAGENO="0185"
181
3
1 for -~tel ~oNtt1e1~es-to the.
2 human eye; and- -(~-)-ki4~et+~ieR ~
3 from- the- nøi~n1al-ed41~R f+i~et~Gi~ -of 4h~ -h.uma~-~yG,
4 g-s-app~di~ge~j-
5 "(3) `optometrist' means, except as otherwise pro-
6 vided in this Act, an individual licensed to engage in the
7 practice of. optometry in the District of Columbia;
8 "(4) `person' means any natural person, corpora-
9 tion, association, company, firm, partnership, or society;
10 . "(5) `individual' means only a natural person; and
11 . "(6) `State' means the States of the United States,
12 the Commonwealth of Puerto Rico, and the territories
13 of the United States.
14 . "SEC. 4. The Commissioners shall issue a license to
15 practice optometry in the District of Columbia to a.ny mdi-
16 vidual who-
17 ." (1) is at least twenty-one years of age;
18 "(2) is of good moral character;
.19 "(3) is mentally competent;
20 "(4) has satisfied the Commissioners that he has
21 * had a preliminary education equivalent to thecompletion
22 of a four-year course of study in an accredited high
23 school;
24 "(5) has completed a preoptometric course of at
25 least two years at college level;
PAGENO="0186"
182
4
1 "(6) has graduated from a school or college of
2 optometry approved by the Commissioners after comple-
3 tion of a course of study of not less than four years;
"(7) has passed written, oral, and practical exam-
5 * inations as prescribed by the Commissioners in the ~
* Io-w~ng subjects:- ~
* 7 * opt~es-thefffet~& ~Opt&mt~7- and ~ st-a~a~omyr phy~-.
s o~egy,- nd-p~thclog~ -aspeoi~lly-as. -th y-r-elate-to- ~l~e
9 eye afll-to-~4ski-eftl-fa~ee mrp~@i~
10 p~aotioe- epteet~5~-;- p~a~tk4 -opten~e~~~ 4i~ei~&i.ng.
11 and- ~ ~ -~te~s- ~.s-. ~a -t.a~igh~ -ia- .th~
12 ~ the Corn-
13 thissioners deem necessary to determine the applicant's
14 *. competence tO practice as an optometrist. The Corn-
is missioners may accept the results of written examina-
16 tions given by the National Board of Optometry, but
17 shall conduct their own oral and practical examinations.
18 The Commissioners are authorized and empowered to
19 alter, amend, and otherwise change the educational
20 standards at any time, but in altering, amending, or
21 changing said standards, the Commissioners shall not~
22 be permitted to lower the same below the standards
23 herein set forth; and
24 * "(8) has paid all the required fees.
25 "SEc. 5. (a) The Commissioners are authorized to is-
2(~ sue a reciprocity license to an individual who holds a license
PAGENO="0187"
183
5
1. to practice optometry in another State. An applicant for
2 a reciprocity license may, at the discretion of the Commis-
3 sioners, he licensed without a written examination but he
4 must be given and pass a practical and oral examination.
5 A reciprocity license shall be granted only if-
6 . ... "(1) the State in which the applicant's license has
7 been granted accords like privileges to the holder of a
.8 license to practice optometry in the District of Columbia;
* 9 . "(2) the license of the applicant shall not have
10 . been suspended or revoked by any State for any cause
11 which is the basis for suspension or revocation of a
license under this Act (other than for nonpayment of
i3. fees) unless such a license has been reinstated by such
State and is in full force and effect at the time of the
15 application for a reciprocity license under this section;
"(3) time applicant for a reciprocity license has not
17 failed to pass an examination for a license under this
Act in the District of Columbia after his admission to
19 practice hi another State.
20 "(b) If an individual holding a reciprocity license
21. granted under this section fails to actually practice optom-
22 etry in the District of Columbia within one year after such
23 license has been granted, the Commissioners may revoke
24 such license at any time before such individual actually he-
~ gins tile practice of optometry in tile District of Columbia.
PAGENO="0188"
184
6
1 "SEa. 6. Every license issued in accordance with the
2 provisions ot this Act, subject to the provisions of section 7
3 of this Act, shall automatically be renewed annually upon
4 application by the holder of the license and payment of the
5 annual renewal fee. Such annual renewal fec shall be fixed
6 by the Commissioners. If the holder of a license fails to
7 renew his license in accordance with this section, such ii-
8 cense shall be suspended and such individual shall not there-
9 after practice optometry in the District of Coluinbia~ until
10 such license shall be reinstated or a new license issued to
11 him under this Act. If such individual thereafter applies
12 for reinstatement of his license, it shall automatically be
13 reinstated upon payment of all intervening renewal and oth-
14 er fees. If such individual fails to have his license reinstat-
15 ed within five years after the date it is suspended under this
16 section, he shall not thereafter be licensed to practice op-
17 tometiy in the District of Columbia until he shall have
18 passed a practical examination given by the Commissioners
19 and paid all intervening renewal and other fees.
20 "SEc. 7. (a) The Commissioners are authorized (A)
21 to refuse to renew, or reinstate ahy license authorized by
22 this Act, and (B) to suspend or revoke any license issued
23 under authority of this Act, for any of the following causes-
24 "(1) the use of any title or any other word or
abbreviation indicating that the licensee is engaged in
26 the practice of medicine or surgery;
PAGENO="0189"
185
7
1 "(2) conviction of a crime involving moral
2 turpitude;
3 "(3) willful violation or repeated violations of any
4 provisions of this Act ~
* 5 g~d-bhem~ion&r-s-~ie-Aet.;
6 "(4) gross incompetence;
7 "(5) chronic or persistent inebriety, or the habit-
8 ual use of narcotics;
9 "(6) affliction with a contagious or infectious dis-
10 ease which, i~i the opinion of the Commissioners, renders
11 the practice of optometry by the licensee or applicant
12 for a. license, dangerous to the public health;
13 * "(7) conduct which disqua1ifies the licensee from
14 practicing optometry with safety to the public;
15 "(-8-)- ~rthsing- ~e~ly -lhy-the-~~e~4em~-
16 * ~~O+$ ~ ~Y~44~1~fr ~à4-
17
18 ~
19 `~~4~-4t~ -be-- iited,- -a+~hihIer -`~4~444o -eRk~-eP-
20 in- -~ti~- ~-f~-e~p4,-a-s- 4~e~l-k'-- ~eg&~-~
21 ~ i~-A~-;
22 ~ ~-p~rn~e4~
23 tti~dci-- y-iit~-e~-~hn-n- 4h~1- u÷~*b~ _whk.~i±. 4ie-b~+s-
24 . e~-1~ee~&e4f
25 "(40.)- -søl1eitkg- .p~4~t.s- e~h~-g--freo- -ox~rn~--
26 ~
PAGENO="0190"
186
8
11
2 *pf~S& ~ ~b4a~÷~ng ~i~o-nage;
3 ~
4 ~ geg~ksr -la~es~
5 1~S~ ~&T ~ o4-eyøg1P~S&- ~~--4l~Iw-i~
* 6 ~
* 7 -o~4ial- 4~l~,- ~ -~eF-V~-&P- y-m d-is~ -n~t~o-
8 ~ 4eke-44sTh4e
9 ~
10 "-e-di~pk~y- ~ 4iis- ~ee d4j7krn1fts~ -or- e&r-
ii 44~-sh-rn~ie~. 4-i~m~-be -ee~
12 -o~s44& ~f -t4ie-p~e~ises- ~e~e-l~e- -p~aet4ee~
8
13 "(~) except as provided in section 9, the use of
14 the words `clinic', `inflrmary', `hospital', `school', `col-
15 lege', `university', or `institute' in English or any other
16 language in connection with an activity which is essen-
17 tially the practice of optometry;
18 "(44)- 4e-oe~e -&-j~en~ -the -ue -of 4±ie i+e-p~e--
19 in~-o~s~i&ito1-t4t4e -er- in- -e~ jnnc+io~i- wiTh- -the
20 ~ ~ 4f~J~ ~
21 ~HH1~W~Jy- y-poi~so~-; ** / *
22 * "f1~)- -ho~4i*g- -1÷i÷1 ~ -~or
23 ~ -the
24 ~ ~ -p~14~l~ -p~ofe l-s-~n---or -~leFi+w
25
PAGENO="0191"
187
9
1 "{4~)- -t4~e- -eii le ie~ - of- -~- -~-t w- - i~&rigeni ei+t~
2 ~
3 ~
4
5 f-~w~l-~to4et
6
7 ~
8 ~-wi~i$t-o~i-- ~ ~ ~
9 ~
10 "fF9) -i~ ~- 4~thW-1+i+l~POfef+sk+F4 -ee thw~- ~s -4efl i~e4
11
14 thi~-AeE
13 "(b) Tue dettial, suspension, or revocation of a license
.14 issued iiiidei this Act shall lie made Only upon specific
Th charges iii \vIitillg and after not ice and hearing (unless such
16 hearing is waived) A certified copy of any such charge and
17 a notice ~ lieariiig. s~)ecifv1ng the time and Place thereof,
18 ~linhl lie served 111)011 the lioldei' of or applicant for such
19 license to 1)l~1ct1Ce 05 011 optometrist Ifl the District of Co-
20 lunibia, at least twenty days before the hearing. The re-
21 spondent may waive the requirement of hearing contained
22 in. this subsection but only in writing. The respondent shall
23 he entitled to counsel and to call witnesses in his defense.
24 * " (c) Upon written apphicatioii and after hearing, P~lu'-
PAGENO="0192"
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10
I suant to notice, the Coiiunissioners may reinstate a license
2 which has been previously revoked, except that no applica-
3 tion for reinstatement of a hee~se shall be accepted for con-
4 sideration prIor to the expiration of at least one year follow-
5 ing the date on whii~Ii the apl)hcant.'s license was revoked.
6 "SEe. 8. (a) It shall he unlawful for aiiy 1~'~~n-
7 " (1) to engage iii the practice of optometry in the
S District of Columbia \vithIout a valid license issued under
9 this Act so to do;
10 "*2-~- +0~ -phre~- ~ - 01.-Q1ku- 49- ~t1-G4~- )14~Qt~'y
11 ~I~-the- ~ai~-ef- ~
12 t~+It,4ifl 4~ iiti+nt~ ~14-~i~HHe~ ~ ~~y-et4'es' a+~+e-,
13 e~ept- -his- -o-wn- pt~pe-i~- ~ .o-p-petu~- ~n~-the-. l4ee~-e
14
2
15 " ($) (A) to sell or fraudulently obtain or furnish
iG any diploma, license, or record required by this Act
17 or required by the Coiiiniissioners under authority of
i8 this Act, or aid or abet in the selling, fraudulently ob-
19 taming, or furnishing thereof;
20 " (B) to practice optometry as an optometrist nn-
21 der cover of. any diploma, license, or record required -
22 by this Act or required by the Conmiissioners imdei'
23 authority of this Act, illegally or fraudulently obtained
24 or signed or issued unlawfully or under fraudulent
25 representation;
PAGENO="0193"
189
11
1 "(C) to use in connection with his nanie any desig-
2 nation tending to illiply tlia t lie is an optometrist
3 licensed to practice under this Act if lie is not licensed
4 to practice under this Act; or
(1)) to practice optoiiietiy as au optometrist dur-
6 ing any time his license issued under this Act shall
7 be suspended or revoked.
S
9 gh~-øi~- ~ ~t+W~- Q~WQI~I~ -t~@-a4v~&r-
10 fi~e -or- ~-1~t~- ~e'i4i~ed4o-4ke 4k-a Ft~ -&p1e-
11 -~ ~ i+ ~ ~~t~t~r- wlreh
12
13 *
14 t.140- -04 - ~ - k4i44'~- .g4~i~ss5- 44-1+g~~T -
15
16
18 ~rim~' i~4e'e~- 4~ui~s- 1k~H~,--e1'efht7
O~W~H14-~-4&1- ~I+e- H~~~-&4&~i+i+g
20
21 ".(~ if lie ,wiites a piesci'ipt iou for auiothiei, to ic-
22 ceive aimy part of the suni paid or oilier valuable coui-
23 siderations pad by such peisoui to a third person for
24 filling such puescuptoii; or for such third person to pay
2~ to the ~i~ii writiiig a P1eSciiPti~11 any part of (lie suni
29-179 O-69----13
PAGENO="0194"
190
12
1 paid or other valuable considerations received by such
2 third person for filling of such PrescriPt1o1~;
3 "(-7-)-o+het'- -~-+e~&ii~- 4-kei~e4- -~- -~wt~et4@o-
4 epi~et~yr ++e4i4÷~e- -oi- ee~4i~- +u-i4~ 4he -1w~- 4
5 i-eHHR~--\~i~-$-O41
6 opo~~t44st. ~ ~1~Tf~Yr ~ ~ O~h~1-
7 ~
8 ~ 4i~ 4h wt~et4c-o- 4
10 "yth~th~4&~ate-
11 4iøla4k+u-e~- ~y-Ieg4lo4io~l.-c~f- ~Co~-
12 ~ -of -th~-
13 ~
14
15 ~4~ig-h- 4~e-r+~e- ~c+4 +i ~+r4eHt -i.n+~iRI.- -PQ14
16
17 " (b) A violation of any of the provisions of this section
18 shall constitute a misdemeanor and shall lie puiuslied for the
19 first offense by a fine of iiot iiiore thati *$500, an~l upon a
20 second or sul)Setlueilt collVi(tioiI tlicicof, shall he piiiiislied by
21. a fine of not more th;in $1,000. Or liv iifl1irisoiinient. in the
2~ * *
1)istrict jail for not more thou one year, or by both fine and
23 imprisonment.
24 "SEC. 9. (a) ThisAct shall not apply-
9j
(1) to an~' hona fide student of ()hitOuuiCt 1V. muiedi-
PAGENO="0195"
191
13
1 cHic, (H' 05tC01)atllV iii the c1i~ic lOO1IIS ~Jf a school of
2 01)tOlIlCtl\r, niediciiic, 01' ostcol)atlly 0p1)1'O\'Cd by the
3 Commissioners;
4 " (2) to any commissioned officer in the armed
5 services who is engaged in the practice of optometry in
6 the District of Columbia insofar as such practice is in the
7 performance of his military duties;
8 " (3) to an individual licensed, in another jurisdic-
9 tion who is in the District of Columbia to make a
10 clinical demonstration before a professional society, con-
11 vention, professional association, school, or college, or
12 agency of government.
13 "(b) This Act shall not be deemed to require a physi-
14 cian or surgeon licensed under the* laws of the District of
13 Columbia for the pm'acti(e of medicine or osteopathy to have
16 a license under this Act to perform those services defined by
17 this Act as the practice of optometry.
iS "(c) This ~ imot apply to
19 ally pci'soii Who fills time written p1'CSCl'il)tiOll of a peisoli
`20 hiceiised to pl'a('ti(e optoiiieti'v, lIle(hicinc, 01' osteopathy, or
21 \Vi1o) 1'C1)~1l'5 01' I'estO)l'eS eyegl~is~es 01' sl)e(tUCiCs. to thmeim' pie-
adapts, utilizes,
22 \`P'US (`OflditiOli of iNefilifless, 01' \viio ±14~44(~_,Ht414}+~F~tn+
fits and sells or furnishes lenses.
23 -~j.j~4- 4~-t~4i~- ~H4)-r -~i+m+T-~-loo- ~ -~&i-
24
25
PAGENO="0196"
192
14
1 "(ci) Nothing in this Act shall be deciiicd to prevent-
2 "(1) au optonietric clink 4~~4w~
sww~ fioun being conducted on a nonprofit basis;'
4 eke<4-ee41~g~ - ep y-~-4~- -~i+~ti~
5
6 "(2) an optonietri~t from `heuig enipioved ~
7 Hv-he~pita4,-elr-giei~p -l+~u4th- ~w&e-
8 ~
9 ci&i4io.ri-- g;p,~G~:~ ~y ~en4~ ~g~i~y,-o~- ~
10 ~ 4H1~4-Gf-th~- ~i~ed- -~k~
11 or-ef- tho- ~ t-ho- D~k4 ~-~H~Ws~ or as
12 au employee of ~ IelsrnI to render optometric service
13 and care; ~&ly-t~-&i+ yoe~ ~ p&&~;-
14 "-(~3-. ~-o-xe~utor-- ~ -ah t4~o+'- ef- 4he -es4&t~
15 Gf-~ec-oflse4-&lRK414~t- -h4~R- ~H~1~- ft.- 4ieu'rseti
16 op~erne~i4s1- ~ -e iy~-om 4he -pi~c&e -ef- sitelt -ck~ee&~eti
17 1kc~n~o- 4u-ving-- ~ ~~i~4k+i.- ~f- 4he -e4a43- -w-t-he--
18 ~ rn~tri~t
19 fre÷i~)4o-y~g -a- 4~4~HSt4 +~ e~4&t-to- 4~*14 -ei+ -t-kQ
20
21
3
22 " (4') a person from acting as an assistant under the
23 direct Personal supervision of a person licensed by the
24 District of Columbia to practice.optometi'v, medicine, or
25 osteopathy provided that such assistant does not perform
PAGENO="0197"
193
15
1 a.n act \vhiel] would require professional judgment or
2 discretion;
4
3 "(p') vision screening programs eot~ltiek~4-Hfl4&r4l~-
4 ~ ~ ~
5 ~
5 . or duplicating
6 "(~(i) persons from supplying/spectacles or eye-
7 glasses on prescription from a. person licensed to practice
8 optometry, medicine, or osteopathy;
6
9 " (7') a. person from selling nonprescription sun-
10 glasses or nonpi-escription protective eyewear.
11 "-(e)- -N h-hig-im ~14~ -Aet sh&'t4 -he- 4eei~e4-to- -pr4±14)rt-
12 a~~- ~ ~tI~ ~tl±i~'
13 bie~i- ~ ~hftt-~4 s~-s~h-{~t1e- or- ~ueh- &&bre~4a-
14 t~om 4t-i~ttst- ~-wi{h-sh-ea~ioi~ e-~ -rnay -he- ~ieeessa~i~y
iç ~ ~ ~
16 " (f)_ Nothing in this Act shall be construed as con-
17 ferring upon the holder of any license issued by the Corn-
18 rnissiOners the right to perform surgery upon or to treat
19 diseases of the human eye by the use of drugs or medicine
20 or to write or issue prescriptions for the obtaining of drugs
21 or medicine in any form for the treatment oi- examination of
22 the human eve.
23 "SEc. 1 0. (a) The Commissioners from time to time
24 shall prescribe and adopt such iiiles and regulations as may
25 be necessary to carry out tins Act ~
PAGENO="0198"
194
16
I of ~ ~
2 ~
3 ~I-~4h& ~w~the+~- ~i ,-1ee*t4e~+~,-~4 ~hH k~1-÷f-s4gHs- effe~-
4 4i+g 4.he es-~--(4-)- ~fl-rn RS~ ~ ep~e1~4~ -fwl-d
5 (~9~--&h~e- fl~e -`-~&k-- -W t-i~e~peet- ~& -~
6 ~ -iyf-~it ~
7 regHH1i~fl -rn~-t4~e-i4itg~ +h~i~e~ +(~ -the ~~ti~-~i
8 ~ f ~ ~
9 ~ ~
10 44k~ ~ -e~ ~4- o ~ w-&i~- ~
11 -~k &-&n~-~--nn~}+}eT ~lr~k4~- 4F4~
12 4~tu~s~ -tek~4i~e ~e~t~s7 .fu+441. 4+&~wak-s-~hn.~4~i
13 43+~ -pee 14y-I+i~a-e~iee4 4~- 1~he- ~ hi+i4,-ai+4 4R-t4~e-~ti~se--&f
14 fth~& -of ~ it~ef- ~fle4e~t-an--
15 ~ -+eef-r--W4.t4i- ~espee~-4~ ~ 4E~F- -~de
16
17
18 4~n-~f- -the pei~ot4 ~ee-~ 4*i~e~- -t~-n~4- e4~-w~e~t
19 ~ ~ ~4H~ 4~d1-1~o- +b~~1+id-tO
20 b4z~- ~e-~e~4e -~e~k-4~d~-
21 40 4~4_~_rn~~ ~T.e~-~-- ~~i4t4~-
22 _p~_e4I~e~.
22 " (b) (1) The Commissioners are aiithorzed and em-
24 powered, after P~1l)lic hearing, to estalilish, ~ho1i~b, increase,
25 or decrease, from time to time, such fees and charges as are
PAGENO="0199"
195
17
* 1 necessary to defray the approximate cost of administering
2 the provisions of this Act.
3 " (2) All funds derived from fees and charges collected
4 in connection with the administration of this Act shall be paid
* 5 into the Treasury of the United States to the credit of the
6 District of Columbia.
7 "(c) The Commissioners shall design and adopt a seal
S to be used for authenticating records and papers pertaining to
9 the licensing and regulation of optometrics in the District of
10 Columbia. Copies of all records and papers duly certified
11 and authenticated by such seal shall be received in evidence
12 in all courts of the District of Columbia equally and with like
13 effect as the original. Records kept by the Commissioners
14 pertaining to the licensing and regulation of optometrists in
15 the District of Columbia shall be open to public inspection
16 under reasonable rules and regulations prescribed by the
17 * Commissioners.
IS "Sno. 11. The Commissioners may m~ike such inspec-
19 tions, studies, and investigations, and obtain or require the
20 furnishing of such infonnation under oath or afflhmation
21.. or otherwise, as they deem necessary or proper to assist
22 them in prescribing' any regulation or ordei' under this Act,
23 or in the administration or enforc.emiient of this Act and any
24 regul:tions or rules or orders thereunder. For SI1(th pul-
P°~~ the Commissioners niay adiiiinister oath and a ffirnia-
PAGENO="0200"
196
18
1 tions, may require by subpena 01' otherwise the attendance
2 and testimony of witnesses, and the production of documents
3 at any designated place within time District of Columbia.
4 In the event of contumacy or refusal to ol)ey any such
5 s~ibpena or requirement under this section, the Commission-
6 ers may make application to the District of Columbia Court
7 of General Sessions for an order requiring obedience thereto.
8 Thereupon, the Court, with or without notice and hearing,
9 a.s it, in its discretion, may decide, shall make such order
10 as is proper and may punish as a contempt, any failure to
11 comply with such oi'der in accordance with section 11-982
12 of the District of Columbia Code.
13 "SEc. 12. Whenever, in the judgment of the Commis-
14 sioners, aimy person has engaged in or is about to engage in
15 any act or practice which constitutes or will constitute a
16 violation of any provision of this Act, the Commissioners
17 may make application to the District of Columbia Court of
18 General Sessions for an order either temporarily or penna-
19 riently enjoining such act or practice, and upon showing by
20 the Commissioners that such poison has cng~ge&in or is
21 about to engage in any such act or pi'actico, an injunction
22 restraining order, or such other order as may be appropriate
23 shall he granted by the court, \vitllout bond.
24 "SEe. 13. ~ Prosecutions for violations of any of the
25 provisions of this Act shall 1)0 conducted in the name of the
PAGENO="0201"
197
19
1 District of Columbia in the District of Columbia Court of
2 General Sessions by the Corporation Counsel or any of his
3 assistants.
4 "(i)- -A~-epto~t~i4 4k~ed- ~ 41$s- .A~-. ~ -he-
5 ~eee~ete~ - &tien-l~4he it-to- ~e-
6 ~ &n~.-rk~ng-~&-the -p a~ee-of-&p et~ -c~s-4e-
7 41~nei4- in- -this- A~etr ~ea1~ee -&f- 4-eon4~t4erk,-- ~
8 ~4-~ffieie~ey s~e4-l~ ~
9 .this-A~ 411-he- ae~pte4. ~
10 ~eeflthtfon5 -.e~eisn~y-o~-the-perseii 4e -whe~- suth
11 .eei4W~ate -1~e-lat4~ .hy- ~1flo~s- ~p1o~e~& -o~-the-ge~-
12 .~n~e~i-the-Distrk,~ f-elumhia-in- the -peorm~nee-ef-
13 their-thitk~s.
14 `1S~-.44~N&-o1l1ee~ .fH~ yee-..e4 1~- ~
15 4~~r-shal4-. iit the Hi OT1-9f -H}y- kbw efd~1o-
`~ -Ue-the-Dis~i4et- 4 ~ ~rnthis~-4 4ve- ~ny-pei~sen -o~-I4s -i4~l±t
17 ~e-ex~e~eiee- his- etlern- ~o~-el±oiee~ -ef- ~n-
18
19 "SEC. 15. ~
20 ~ ..by -~e*n~n&~
21 ~ ~ ~eitref-the-po-we~~ ~~es-,-an~l-
22 4H t4 e4-in-fn-l~y-.~his-~. The Commissioners
23 are authorized to delegate to any other oflicer or ei~iployee
24 of. the goveniment of the District of Columbia all or any
25 part of such powers, duties, arid functions. Auy delegation
PAGENO="0202"
198
.20
1 made under authority of this section shall be for such perio~1s
2 and su~~et t.o such conditions as the Commissioners deter-
* . . p1.
*` mine necessary.
.4 ~
5 t~4ei~ -of- C'ohHflbh~- whieh-i~- ~alid -en -the- ef~eetive- -date
* 6 ~- ~]$s -Aeli- shall -cen~tirnte-to- he-vahiil- tn~dei~ -the-Di~triet- of
7 oluml$a-Optometry-Aet~ ~as ~ niled-by' ~th-Aet- tmtil -stich
8 e-w~n~-y~-of4hdate-of4h4s- Aotr ft& he
9 ~emm~ss~eReI~- ef.the-Disti4et- ~~el ih~a-f4~ -as- ~the -dfi-te
10 fo~-t4 e-a erneti nni±a4-rnewa4 40? -sueh 4icerise- i~hei~ -the
11 st~4e~ -of -C a-Qc~rnetry-A-otj- ~rnd-an~y~ -sueh-lieei~se
.12 w h.~son14 ~
13 A-e~ *a~4 amiu~l- c~a1-4ate ~-f~ suei~ 4ienso-by -the
14 ~
15 sucjh.. ~~o.wa~-~eto -ii~e~~- ~ spei~i4ed-o.~- -revohod-4i~
iG ~e 4ftn-~wflt-the~-Ths~ie~ -of- 0heflh3i1t-0i~ternetry- -Aet~
2
17 * * S~o. $. Subsection (a.) of section 11-742 of the Dis-
1$ trict of Columbia Code is amended (1) by striking out
19 "and" at the cml of paragraph (9) ; (2) by striking out
20 the period at the end of paragraph (10) and inserting in
21 lieu thereof a semicolon; and (3) by adding at the end
22 thereof the following new paragraph:
23 "(11) final decision and orders of the Conimis-
24 sinners of the District of Columbia. denying, suspend:ng,
25 . or revoking any license, denying any renewa.l of a.
PAGENO="0203"
199
21
I license or reinstatement of a license, pursuant t.o the
2 District of Columbia Optometry Act."
3 SEC. 4. This Act shall take effect on the ninetieth day
4 after the date of its enactment.
0
PAGENO="0204"
LI