that I think perhaps would need clarification. As you gentlemen know, any piece of legislation such as this that is originally introduced almost invariably and almost without exception finds need of some amendments. I think that is true certainly here, and this matter that you pointed out would be one of those, where, in order to protect the optometrists who would come within the purview of the act, some standards must be set out where they will know from the charges made that this is the foundation of it, this is the reason for it. I think this is a very necessary quality.

I might add that having representative licensing agencies of not only optometrists but others, some of the statutes are prone to make a statement such as this bill has and then, at the time that notice would be given for a revocation, the courts have basically required, detailed analysis of why it is detrimental to the safety, why this practice or a particular act is detrimental to the safety of the public. That, standing alone, may not be evil in and of itself, provided there are other safeguards in giving a man notice and it is spelled out why he violated particular details of it so he has a clear opportunity or his attorney has a clear opportunity to answer a particular charge of that nature. Maybe that helps, maybe it does not.

Mr. WHITENER. It would be very difficult with that language for you as an attorney to represent an optometrist client who was called in under an allegation that he had engaged in "conduct which disqualifies him from practicing optometry with safety to the public", would it not?

Mr. McNEVIN. Yes, and, of course, this brings into play a whole variety of problems; that is, whether or not the lawyer representing a person files a motion to make more specific, for example, and asking them to detail it, and if he fails to do so, then there is quite possibly error in the record, and if he lost his license at the hearing level, I am quite sure that a court of proper jurisdiction would reverse it, basically on that reason alone.

Mr. WHITENER. But this optometrist, meanwhile, who may be a very fine individual, has had his reputation ruined with bad publicity. Mr. McNEVIN. This is quite possible; and, again, that is why I think it is necessary in any legislation where you are involved with the revocation of licenses to spell out with some degree of clarity exactly what your notices shall contain.

I notice on page 9 of the bill, I think under subsection 19(b), it says: 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.

The big question would be whether or not the section or subsection you pointed out, sir, would be sufficient to comply with the other requirements here of specific charges. I doubt very seriously legally, whether we are not.

Mr. WHITENER. But you know as a matter of practice, normally an administrative agency will cite you, whether it is a violation of the motor vehicle law or any other, they will say, probably in printed form, and they will refer to that section by number, violating section (7a) (7) of section so and so of the District of Columbia Code, and that is all they say.

Mr. McNEVIN. If I may answer that, I cannot, of course, speak for how this particular proposed legislation will be ultimately administered. But we have had this same problem in Indiana, not only

under the optometry law but the pharmacy law and others, and I have had the privilege, as I have indicated, while serving as chief counsel for the attorney general for the State of Indiana, of going into this in great detail.

I, for one, resent notice of that like some of the J.P. courts, indicate you are charged with violating this one thing and there is no indication of what it is.

The lawyer on the other side obviously cannot make a proper defense to it. We have guarded this very studiously in Indiana, and over a period of at least the last 7 years, I would say, we have attempted to, from an administrative standpoint, prepare notices that are set up to such a point that anyone getting his license in jeopardy, whether it be optometry or otherwise, would be adequately informed and his attorney could therefore prepare a defense. If for any reason he is unable to do so, we recognize the motion to make more specific which would enable us to broaden it out and give him whatever notice would be necessary.

Mr. WHITENER. Mr. McNevin, may I refer to another subsection of section 7, on page 9, subparagraph (17)-let me point out that I have not studied this. I have just read through it yesterday and made some marks on it.

Mr. McNEVIN. Yes, sir.

Mr. WHITENER. It says one of the grounds of revocation may bepractice optometry in any retail, mercantile or commercial store, office or premises, not exclusively devoted to the practice of optometry or health care professions.

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There are some of us, Judge Smith, I know, and others who have dealt with this word "premises" in the Civil Rights Act. We find that the definition of "premises" is a rather broad term. They are now saying that if you run a place of business in a shopping center, that falls within the term "premises" under the Civil Rights Act. am wondering if you have any apprehension about that. Suppose an optometrist had an office in a shopping center or in an office building where somebody did have an optician's shop totally unrelated to the operation of the optometrist. Do you think, there may be some danger about the use of the word "premises"?

Mr. McNEVIN. I think that is a possibility, Congressman. As you have indicated, the courts have had a tendency to broaden the term "premises" to include some wide areas. By like token, I think you are aware of the cases where not only is it spread out, but in these tall office building structures, premises have also been included to cover the whole area.

Mr. WHITENER. Under the Wages and Hours Act, if you own an office building and there are tenants in the building who engage in interstate commerce, the courts have held that the Wages and Hours Act would apply to the elevator boys and they must be paid the minimum rate.

Mr. McNEVIN. That is true, and I think you have hit upon a point here in which one or two things could happen. Maybe this is one of the areas where clarification is needed. The intent, I think there, is to prohibit the so-called corporate practice. That is what section 17 is intended to strike out. In reading it, or in some judicial decision, I can see where a court might well determine that it is improper in that it is too restrictive. The rules of statutory construction, applied to this particular, I feel, would bring out that the inten

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tion of the legislature on this particular subsection would be that it is designed to prohibit corporate practice. This may not help

Mr. WHITENER. Thirty years ago, it would have been perfectly plain that there was nothing to be alarmed about. But today it may be something to be really alarmed about.

Mr. McNEVIN. I believe that is true. I think if there are two or three buildings apart, or two or three offices 50 feet apart in a shopping center, this particular section is not designed to prohibit that. If you read this literally you might say, heavens, an optometrist would be relegated to practice in an open field in a tent, because he is going to be in business in some commercial building, no matter where he sets up. The idea and intent of this, of course, is to strike at the socalled corporate practice.

I am not an expert on the statutory construction at the Federal level, but I would say that viewing this thing from the standpoint of our rules in Indiana, the intent of the legislature would come out, and this would not prohibit the type of situation that you suggested, sir, but would only be striking out at the so-called corporate practice set up, the captive optometrist, where they are in business together and shifting business back and forth.

Mr. WHITENER. What you mean is that, what is intended, of course, is sharing a location?

Mr. McNEVIN. This is the intent. I believe that is true, sir.

Mr. WHITENER. There may be some way that the language could be clarified and be a little more specific.

Mr. McNEVIN. Clarification. I think there are points in the bill itself which, on second look, perhaps by all of us would require some clarifying language to overcome this sort of thing. Any time you have a situation like this, you always run the risk of having a court not look at it from the standpoint of the true legislative intent. The legislative intent at any given time is not what the legislature says it is, so clarifying language is always necessary in circumstances such as these.

Mr. DOWDY. Mr. Horton?

Mr. HORTON. I have no questions.

Mr. DOWDY. Mr. McNevin is from the hometown, or at least the home county, of our esteemed colleague, Congressman Roudebush. Mr. Roudebush, do you have any questions?

Mr. ROUDEBUSH. Thank you, Mr. Chairman.

I will say that I think your testimony and your presentation here today, Bob, is excellent. Of course, the committee during the course of its business, is studying, clarifying, and correcting amendments for this legislation. We realize that there are some imperfections.

You mentioned during your oral testimony certain changes that you thought should be made. Would you enumerate those very quickly? Mr. McNEVIN. Yes, very briefly, Congressman. One of the things that I think is too restrictive is the provision found on page 11 under our-I will designate it here as subsection 4, which is to sell or offer to sell eyeglasses, spectacles, frames, mountings, or lenses, or to fit or duplicate lenses, without a written prescription from a physician or optometrist licensed to practice in the District of Columbia.

You have a fluid society here which we may not have in Indiana, although we do not require this same thing in Indiana. Oklahoma does require that the prescription be issued by an Oklahoma optome

trist. We do not in Indiana. But you have a fluid society here in Washington whereby-well, Congressman, you, yourself, are from Hamilton County, Ind., and you come to Washington, D.C., and go back and forth. To limit you, if you have a glasses problem or a breakage or a lens problem here, to limit you in getting repairs or getting duplications only upon prescription of a licensed optometrist in Indiana, I think, is too restrictive. I think if you would just put a period, for example, after the word "optometrist" you would certainly clear the problem.

Mr. ROUDEBUSH. This would make it possible, then, for a prescription, let us say, from Alexandria, Va., to be filled here in the District of Columbia or, for that matter, from Noblesville, Ind.

Mr. McNEVIN. That is right. The prescription, no matter where it is from, if it is from a licensed optometrist, he can get whatever is needed.

Another change raised by Congressman Grider, I viewed with some interest. That was the provision with respect to the protection of the widow of an optometrist who dies and she is permitted then to practice for a period of 1 year. I think it is found at least on page 14 under No. 3. It appears to me, gentlemen, as Congressman Grider pointed out yesterday, this may be eking in a little commercialism to the professional plan of this overall bill.

Now, frankly, it is my attitude and my opinion that if a widow of an optometrist desired in any fashion to continue the business, at least continue to the point where it can be sold, there is going to be an estate open and I think this can be done if it is done all under court order. We have many businesses that the widow is left, seemingly without means, and there is a time when it has to be wrapped up, the business has to be wrapped up, closed out, debts paid, and things sold. The provision in this bill to accomplish this, I think, perhaps is unnecessary, and I think does shed some commercialism on it that detracts from the professional nature of it. I think a court of law under an order from the judge would perform the same deed if it were necessary.

Another point is this point on expert witnesses. This was brought out yesterday, and it certainly was discussed prior to that time, and I have considered it myself. I feel that the intent again, even though the statute or the bill may not say it expressly, the intent is this, that if an optometrist who is otherwise qualified goes into court of law for the purpose of testifying in the area of his knowledge, the fact that he is an optometrist, that in and of itself, should not prohibit him from being able to state his opinion.

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Now, in the final analysis, if it is going to be the judge of that court who is going to decide whether this particular optometrist or ophthalmologist orthopedic surgeon, or whatever he may be in the medical field, the judge is always going to decide to render an expert opinion and to say that he shall be considered an expert, I think, is begging the question, and a little circuitous. I think what it should say is that if, in the court's opinion, the man possesses the qualifications and is otherwise qualified, he shall not be barrel or prohibited from testifying and giving his opinion merely because he is an optometrist.

I think that that will get the same result, and I think that it is a desirable result, but I think you get the same job done and clarify the language that now exists in there.

Another point that was raised by Congressman Broyhill yesterday, I think, was well taken. That is on the element of repairs to the temple bars or the nose bar or something of this nature. If you are here, Congressman Roudebush, from Noblesville and your glasses get broken, the temple bars or the nose bridge, it seems to me you ought to be able to secure some repair at an optical store or some place else in order to keep you going until you have an opportunity to get back to your optometrist.

When we deal with the lens, itself, I think under the Indiana law there is a prohibition against the duplication of lenses or repair or working with the lenses without a prescription, the reason being— maybe this is a built-in safeguard which many people do not need, or maybe they do not want, but I think part of the idea is this: that is, after a period of time, your lense is broken and you go back and take it to some place where they readily without prescription duplicate this, then there is a danger that the prescription may not be ground properly, the glasses may not be properly duplicated, and it could end up in serious injury and detriment to you.

So the idea being, I think this statute, this section, could be very easily clarified to include the requirement of a prescription only for the duplication of the lens.

Mr. ROUDEBUSH. What if one lens still exists? Can they duplicate a lens from the existing lens by measurement?

Mr. McNEVIN. It is my understanding that they can, Congressman, and this is often done. The only thing that I can add to that is that we have had some experience through our inspectors with the State board. Dr. Corns can point this out if necessary but, apparently, when these things have been done and the inspectors would go in with a broken lens and try to get it reground and bring it out, in many instances they were not done the same. There are errors in them.

I think it is 54 percent errors in some of the instances, where this was done without a prescription. Maybe this is not a great evil; I do not know.

Mr. ROUDEBUSH. Could not the error be made also with a prescription?

Mr. McNEVIN. Yes, this is quite possible. I think the safeguards around securing the prescription are much greater than they would be if you just walked in off the street and said, "One of my lenses is broken, can you grind another one, put it in there just like the one over here?"

I think there is a tendency-I do not say in every instance there will be, but I think as a matter of safety, a new prescription is quite proper and I think it is a reasonable requirement. But I think it goes too far and becomes an absurdity if you are required or called upon to have a prescription just to repair your temple bar or nose bar. When you get into lens, I think it more reasonable and a better safety requirement to require a prescription than for the other mechanical parts of the eyeglass frame.

Mr. ROUDEBUSH. You feel if a tourist were here from, say, Birmingham, Ala., and broke one lens of his glasses and he went to a local repair place, he should not be allowed, that our law should preclude the local practitioner from making another lens by measurement; he should have to have a complete new prescription for his glasses?