Building, Austin, Tex., appearing here today, Mr. Chairman, on behalf of the Texas Optometric Association.

I would like to say that a substantial number of the members of our association, Mr. Chairman, are members of the Second District, and before I could get out of Texas, some of them contacted me and told me that they did not know what was in the District of Columbia Optometric Act, or the proposal, but they felt certain that if it had anything to do with raising standards of ethics and conduct, that you would be for it, and if it didn't have anything to do with it, or if it had anything to do with lowering them, I would do well to stay in Texas. So, on behalf of them as well as the other members of the association, it is a pleasure to be here, Mr. Chairman.

As Americans and optometrists, Texas members of this profession believe they have a legitimate interest in the standards of practice which prevail at the home of their Federal Government. In addition to their concern for the visual welfare of their fellow citizens who reside here, including the highest Federal officials, it is disheartening to them that in this great city the professional care of human vision reflects considerably less than the high standards of ethical conduct prevailing by law in the overwhelming majority of States.

Texas optometrists are hopeful that this proposed act will become law during the administration of President Lyndon B. Johnson, for it was through the active support and advocacy of his father, Hon. Sam E. Johnson, as a member of the House of Representatives of the 37th Texas Legislature, that Texas first recognized optometry as a profession and passed the original Texas Optometry Act in 1921. However, contrary to experience here in the District, the original Texas act has been strengthened and reinforced by amendment six times to meet the challenges of a rapidly changing profession. It has been further implemented by numerous rules and regulations of the Texas Optometry Board under a regulatory authority similar to that contained in the act now proposed for the District. Each such rule has been vigorously challenged by commercial optical interests, but the Texas Supreme Court has repeatedly held each rule valid, constitutional and directed toward safeguarding the visual health and welfare of Texas citizens. While Texas is still behind most other American jursidictions in achieving the highest ethical and professional standards in the practice of optometry, it is moving forward to carry out the direction of the Texas Legislature, and this is expressly in Texas law, Mr. Chairman, the legislature directed that optometrists be placed upon the same plane as the other learned professions of medicine, dentistry, and other high professions. The board is trying to carry that out.

This bill, or what all the argument or dispute is about, without at least a brief sketch of the development of optometry and its relationship to the optical products industry would seem senseless.

This strict provision of the bill, not only this bill but of optometry laws throughout the country, makes sense only when it is understood that this is Government's response to the forceful efforts of the optical products industry, whether that be commercial optometrists or wholesale products, to control the doctors and to interject the business part of this into the doctor-patient relationship.

Experience in this country and all States has demonstrated that antiquated optometry licensing laws are inadequate to maintain the professional freedom and independence of the practitioner, to assure

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the efficacy of the optical prescription or safeguard the confidential relationship between doctor and patient. In the early 1920's when this District committee and many of the State licensing laws were first enacted, eyeglasses just were not a very popular item. Instead of being stylish, they were strictly functional appliances which the public sought to avoid if at all possible. Today, people wear glasses to be stylish or because they think it improves their appearance. Optometric science developed the contact lens so that now they can be worn with ease and comfort by most people. Eyeglasses, stylish frames, and contact lenses have become highly merchantable items. and extremely attractive to commercial interests seeking to reap profits from millions of dollars in sales annually to an eyewear-conscious public.

However, as this market began to grow, the optical merchants had one big problem. Most people buy glasses on a prescription. Before there can be a prescription there must be, has to be, a doctor, either an optometrist or a physician, the only two health care practitioners licensed by law to practice optometry. In such a rapidly expanding market, the doctor became the fly in the optical ointment. The optical business world, sitting on top of an exploding market for lenses and frames, which they saw strictly as merchandise, was frustrated by doctors who wasted time with talks about professional ethics, adequate eye examinations, a duty to the patient, and refusal to solicit patients by advertising. What the commerically minded optical industry wanted was sales volume. To get it the doctor would have to prescribe more often, he would have to see more patients, so it became obvious to the people in charge of the optical industry that they were going in some way or other to have to deal with the doctors in this situation and deal with them they did and there began what has become known as the optical rebate or kickback.

At that time optometry had not become sufficiently prominent to deserve the attention of the optical industry, so they concentrated their financial arrangements on the medical doctors, whether he be oculist or opthalmologist.

The optical rebate or kickback system helped sales of glasses tremendously. With the average rebate amounting to almost 50 percent of the sales price, the oculists together suddenly discovered that more of their patients needed glasses. Also, the price of glasses went up. Under medical ethics the doctor would have been concerned that his patients not be robbed, but now the higher the price the greater the rebate.

Just before World War II, such practices came to the attention of the Justice Department, resulting in six antitrust suits brought. against several of the largest American optical manufacturers and wholesalers and also naming as defendants 75 individual oculists, some of whom were ophthalmologists, as representative of some 3,000 oculists as a class throughout the United States. These are commonly known as the optical rebate cases. The Government's evidence revealed that the 75 named doctor defendants garnered some $783,000 from the defendant companies in rebates and kickbacks in a single year. It was never determined what the total take of all 3,000 doctor defendants amounted to but, assuming that on the average they fared equally well as the 75 named defendants, it would have amounted to more than $30 million a year out of the pocketbooks of the American public.

Although these cases were terminated in 1946, the threat of optional rebating, in new and more subtle forms, remains a threat today not only in medicine but also optometry, and we commend the author of this bill for including section 8(a) (7) which makes it unlawful for an optometrist writing a prescription—

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 the person writing a prescription any part of the sum paid or other value considerations received by such third person for the filling of such prescription.

I don't know whether there is a parallel provision in the Medical Practice Act of the District or not, but we would commend that, as that would apply to all States.

While optical rebates and kickbacks have to be guarded against, they never became a widespread technique in optometry. With the filing of the optical rebate cases the commercial optical interests looked around for a safer and cheaper way to keep sales booming. They found it. By this time optometry was emerging as a leader in the field of visual care. Each year there were more and more optometrists licensed, and they were seeing more and more patients. And I believe today 65 to 75 percent of the eyeglasses or contact lenses prescribed are prescribed by optometrists. However, as the optical merchants soon discovered, unlike State laws regulating medicine, the optometry laws in most of the States were weak and untried. The profession of optometry was not as powerfully organized as medicine and didn't have the control over its members such as the medical associations exercised over physicians. They didn't need to rebate or kick back anything to the optometrists. They could control them, optometrists and optometry.

In many States they could form corporations and hire optometrists to turn out prescriptions as fast as they wanted them to. Or, they could find them a puppet optometrist, set him up in practice under an assumed name, open up as many offices as they wanted, have their puppet doctor hire other optometrists to staff the other offices and establish a chain optical operation. Also, through subterfuge lease and leaseback arrangements they could legally set optometrists up along the aisles of department or jewelry stores and operate "optical departments" just like the home appliances department. Under the weak laws prevailing at the time and without any regulations to stop them, some optometrists without regard for the standards and ethics of their profession, set up such operations and became known as commercial optometrists to distinguish them from their professional brethern who were unwilling to abandon their professional ethics or their patients to enter the competition for commercial sales of optical products.

But the real bonanza for the commercial operators lay in the lack of enforceable restrictions in most of the early optometry laws on soliciting patients by all forms of advertising.

Now, I want to make it clear, Mr. Chairman, while I am talking about this subject, the advertising media through their association in Texas, through their own code of ethics, have tried to avoid misleading advertising and are working hard at the problem. The problem is, however, that the advertising media are not any better able to distinguish whether or not an ad dealing with health care is true than the patient is able to judge the efficacy of a prescription, and if I had

any suggestion of adding a provision to this bill, it would be one that is in the Optometry Act in Oklahoma and some of the other States that regulate advertising, to stop this misleading and fraudulent advertising. That would be able to exempt the advertising media from any liability for publishing an advertisement by any vendor of optical goods. This is in the Oklahoma law and many other States. It will not be hard to find the provision similar to that, and I would highly recommend it.

Under the rebate-kickback arrangement with the medical doctors, getting the patient to the doctor for glasses was relatively slow since most of the State medical practice acts took a dim view of medical doctors stimulating their practice by advertising. This was, of course, based on the "old-fashioned" theory that a doctor ought to build his practice on satisfied patients and not try to buy patients through an investment in advertising, and I have cited an authority in my filed statement in support of that.

So

Unrestrained by such limitations in most of the optometry laws of that day, the commercial optical interests had a field day. No longer need they wait for the potential patient-customer to decide they needed glasses. Get them to the optometrist by constantly reminding them in newspaper ads, on the radio and television that they might be going blind with glaucoma. And don't forget the children. With the population explosion statistics showed there were millions to be made in sales of glasses to children. Tell the parents their children may be suffering from any variety of eye diseases which might cause blindness. Of course, the fact that the doctor knows such an eye examination is no assurance that glaucoma, cataract, or many other diseases are not present did not deter the optical merchants. what. The patient would never know the difference-until he went blind, and they would be out of it by that time, anyway. And along with the scare technique goes the appeal to save money. Unfortunately, there are many families in this country to whom the matter of a dollar or even less makes the difference in health care or no health care. So the promise of glasses at "lowest possible price" or at a low, fixed price has powerful appeal to all budget-minded families but especially to the poor who may be suffering from defective vision. Here again, the credulous, unsuspecting patient is at the mercy of whoever supplies the glasses. The patient has no way to judge whether he has been cheated or not. The price may be right but the prescription may be wrong. The glasses may be comfortable, they may even enable the patient to "see better," and at the same time be doing serious damage to his vision.

Needless to say, under these conditions, the sales volume of eyeglasses, contact lenses, et cetera, broke all records. As the commercial control of optometry spread across the country State by State, the issue, in practically every State legislature in the country, came to be this, and it is greatly what the issue is before this committee, whether the commercial interests were going to control and regulate the profession and manipulate the doctors for their own financial benefit, or the States were going to control and regulate the profession to make sure the public was honestly and competently served. As I see it, this is the issue which this committee must solve. The overwhelming majority of State legislatures have considered and passed optometry laws substantially similar to the act

now proposed for the District. In other States, such as Texas, legislatures have delegated to the optometry boards the responsibility of regulating the profession in the public interest, like we have in Texas.

And such State legislation and regulations have been consistently upheld by the courts. For there is no dispute really any more about whether or not the basis of protecting the public's visual health and welfare supports this type of restriction. I have attached as an appendix to my statement quotations, very brief ones, from the supreme courts I believe of about 34 or 35 States stating the rationale of the legality of these provisions like this act. Surely it is in the best interest of the District to keep pace with the rest of the country. As the trend continues among the States and it is continuing to move the professions and the doctors from the control of commercial and merchandising interests, it is inevitable that those few unethical practitioners in these States will look elsewhere to profiteer and seek those areas with the lowest level of regulation. This is not a promising future for the visual welfare of the District nor for the ethical and reputable optometrists of the District who seek to practice optometry in a spirit of public service and dedication to the vision of their patients. Accordingly, we respectfully urge the purpose for which this bill, and the objection to this bill be favorably considered by this committee.

Before concluding, I would like to put into the record, with the committee's permission, just a few little items of evidence that we talked generally about, these evils under this thing, and I would like to leave the committee with some specific things they could put their fingers on.

First is a brief filed in the court of appeals in Dallas, Mr. Chairman, in a case now going on, by the Optometry Board of the State of Texas. The brief is important because it was extracted in the first 75 pages, and I especially call your attention to the first 75 pages, extracted from the record, undenied, undisputed testimony of some of these things that are going on when you allow the doctor to be controlled by commerical interest.

I will hand up to the reporter or clerk the first exhibit to this brief, just a few of the gems out of the first 75 pages of testimony from commercial optometrists that own chain operations, and the board is trying to stop them.

Of one doctor that had a practice under a number of assumed names, different names, one was a business organization, one was a partnership; and one of his patients that he fitted with contact lenses in one of these offices had his cornea damaged and he hired a lawyer to bring a personal injury lawsuit and the lawyer even, let alone the patient, trying to find out who is responsible, the lawyer sued the wrong organization because there are so many of them, all having the same name, all alike, put his client to the expense of having an abortive lawsuit trying to fix responsibility for damaging his vision.

The testimony of the arrangement in some of the optical offices of bonuses paid to the doctor for selling a second pair of glasses, but he didn't get the bonus unless he sold the second pair of glasses at least in 50 percent of the cases, clearly an objective of just a commercial, promotional operation.

In the record is testimony of 3-minute eye examinations, 10-minute eye examinations, and each of these chain optical offices would have