ruled that public officers could not discriminate in sending any patients in the schools to the family doctor. Here, and I ask you to read carefully the optometric letter, here is a letter sent out by the Virginia Optometric Association, October 9, 1964. It went to the head of every school in Virginia. It threatened each one of these school gentlemen with prosecution or court action if they did not take the referral provisions on the State form, which merely is a referral by the State health officers to the general practitioners for initial examination, because the report requires an opinion on pathology. Now, this cannot be done in Virginia any more.

This has to be changed under the attorney general's ruling, it is being fought, it hasn't gone into the courts yet, but this is the function of the section which is in the bill and this is how it works, because once you gentleman have put such a provision in, this letter will go out to every school superintendent, to every commissioner, to everyone in the District of Columbia, every university operating in this field with a threat of legal action from the local optometric association if we don't stop referring eye cases to a doctor of medicine. It is just that simple. This is the evidence of it.

This is the construction we placed on it, and it is the construction that we are entitled to place on it and that is why it is here, so that they can be called, and they make it very plain that they do not want to be called a doctor of optometry, they say "We want to be called eye doctors, eye specialists," and take out the words "family physicians," and "ophthalmologists.'

This is the purpose of section 14, and I will leave the exhibit with you gentlemen, so this is our position: the medical society opposes the bill and feels under the grants you have given to the Commissioners, they can regulate it.

(The letter referred, dated October 9, 1964, follows:)

VIRGINIA OPTOMETRIC ASSOCIATION,

October 9, 1964.

MR. EARL C. FUNDERBUrk,
Superintendent of Schools,
Fairfax County, Fairfax, Va.

DEAR MR. FUNDERBURK: This letter is being written to all school division superintendents in Virginia following a meeting with Dr. Woodrow W. Wilkerson. He suggested that superintendents are the logical persons to correct a problem that concerns the profession of optometry to varying degrees throughout the State.

Stated simply, the problem is this: Often, when a child is found to have a vision deficiency, a school nurse refers the child to an ophthalomologist or a family physician. In many instances, also, forms sent home with the child direct the parent to take the child to an opthalmologist or the family physician.

This has resulted in embarrassment to optometrists and is discriminating against these practitioners who are specifically licensed in the State of Virginia and the other 49 States to practice in the eye-care field. A minimum of 5 years specialized training in the examination of the eye for visual defects and the detection of ocular diseases is required prior to examination for this licensing.

In the vast majority of instances, we feel sure that the discrimination is unintentional and we earnestly request your cooperation in the hope that the problem will be eliminated. It would be greatly appreciated if you would review the referral forms currently in use and, where necessary, have them altered. The insertion of the words "eye doctor" or "eye specialist" in place of "ophthalmologist," "family physician" or "physician" will accomplish this.

In connection with this problem, we are enclosing a copy of an official opinion from the Attorney General of Virginia which holds that the discriminatory acts to which we refer are illegal.

It is our sincere hope that the situation, if it does exist, will be remedied locally for we certainly do not wish to seek relief through the courts. If the situation does not exist in your locality, we hope you will understand that notification of all school divisions is necessary in the event complaints are received in the future. Cordially,

J. W. DOSWELL, Administrative Director.

APRIL 30, 1964.

Hon. D. FRENCH SLAUGHTER, Jr.,
Member, House of Delegates,
Culpeper, Va.

MY DEAR MR. Slaughter: This is in reply to your letter of February 22, 1964, in which you requested my opinion and advice concerning alleged discrimination by public health officials and employees and certain school nurses against optometrists. Such alleged discrimination is described in your letter as follows:

"I have been advised that on occasion public health officials or school nurses have been directing patients and schoolchildren to physicians instead of permitting them the free choice of a practitioner in the matter of examination of eyes and prescribing of glasses. I am told that on one occasion a school nurse told a class of children that they could not be excused from class to have their eyes examined by an optometrist but could be excused to have their eyes examined by a physician.

"I am also advised that in some localities the printed health forms given to children by school nurses to take home state that the child has a visual problem and his eyes must be examined only by a physician."

Chapter 14 of title 54 of the Code regulates the practice of optometry and 54-368 thereof declares optometry to be a profession and defines optometrists as those persons who may "examine the human eye, to ascertain the presence of defects or abnormal conditions which can be corrected or relieved or the effects of which may be corrected or relieved by the use of lenses, prisms, or ocular exercises, or employ any subjective or objective mechanical means to determine the accommodative or refractive states of the human eye or range of power of vision of the human eye, or have in his possession testing appliances for the purpose of the measurement of the powers of vision, or diagnose any ocular refractive deficiency or deformity, visual or muscular anomaly of the human eye, or prescribe or adapt lenses, prisms, or ocular exercises for the correction or relief of the same."

Section 54-369 of the Code, in effect, declares that duly licensed physicians authorized to practice medicine under the laws of this State may also practice as optometrists.

An oculist or ophthalmologist is a duly licensed physician who specializes in the care of the eyes and whose practice of medicine and surgery particularly relates to the treatment of diseases of the eye. An optometrist is trained to recognize diseases of the eye but may not treat them. His primary function is to examine eyes for refractive error and to employ means to determine the need of lenses for the correction of defects of eyesight, and the increase of the power and range of vision. See 54-368, Code of Virginia. See, Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 486, 99 L. Ed. 563, 571 and 22 Ala. (2d) 939, 941. It is fundamental that public servants are bound to act impartially in matters pertaining to the administration of their duties. See, 43 AM. Jur., Public Officers, 261, p. 78. Accordingly, public officials and their employees may not show a preference by suggesting or directing a patient to one class of practitioner when two classes are licensed by the State to perform the same service.

To sum up, I agree with your conclusion that the patient, or his parent, should be free to choose an optometrist or a licensed physician for those defects for which an optometrist is licensed to correct or relieve.

With best wishes, I am

Sincerely yours,

FAIRFAX COUNTY SCHOOLS, Fairfax, Va.-VISION REPORT

Date

DEAR PARENT: The results of the routine vision screening at school show that your child may need an eye examination. We suggest that you discuss this with your family physician and get his advice about an examination by an eye specialist.

It is important that the teachers understand your child's individual needs concerning eye sight so that there can be proper directions for reading and close work. The school should have a report of the eye doctor's findings and recommendations. If your child is already under care, such report should also be sent to the school. The form below is for the convenience of your doctor. Please have it returned to school.

If you wish to discuss this further, the public health nurse will be glad to assist you. You may reach the nurse, by calling Telephone Time

Principal or Director of Health and
Physical Education

School

DEAR DOCTOR: The Snellen test in school showed a visual acuity (with/without) glasses of about 20/____ for the right eye, and 20/-- for the left eye. Symptoms observed:

Age

Grade

Approximate grade level in reading

The following information is requested so that we may assist in providing an educational program suitable to the child's needs.

Harold Kennedy, M.D.
Director of Health

Child's Name

Eye Condition (Diagnosis)

Color Blind Test

Fusion

Muscle balance
Depth perception

Vision without glasses R 20/ -- L 20/ -- Vision with glasses R 20/
Rx Recommended R

L

Is there any general pathology evident in this patient?.

Recommendations:

Symptoms to watch for
Use of glasses: Constantly
Date of examination

L 20/

Examiner

Routing

H.R. No.

P.E. Section

Mr. MAGEE. Now, the Commissioners cannot do three things, though. They cannot call this a learned profession. The Commissioners cannot forbid advertising, because the courts have held they can do it and the Commissioners cannot make them a learned profession. All other aspects of the bill which are asked for, the Commissioners can do.

Thank you very much, gentlemen.

Mr. SISK. Thank you very much, Mr. Magee, for your excellent presentation.

Mr. HORTON. Mr. Magee, why condone this corporate practice by optometrists?

it.

Mr. MAGEE. It is not a question of condoning it

Mr. HORTON. You indicate that we shouldn't do anything about

Mr. MAGEE. Well, the court of appeals has said they have a right to do it, sir, and it is a constitutional right because it is a calling, it

60-677-6613

is not a learned-if you could do it you could not do it if it is a learned profession, I agree with you about that.

Mr. HORTON. You don't think there should be some restrictions placed on them?

Mr. MAGEE. Maybe if there is some evil that has to be created here, the Commissioners can do this, just as you gentlemen can do it, they can pass regulations restricting certain things, but I don't think they can forbid advertising. I don't think they could make these gentlemen learned professional people or make them expert witnesses in a court of law.

Mr. HORTON. You don't think there should be some rein put on this type of advertising?

Mr. MAGEE. Advertising, yes; and there is a rein on it.

This gentleman brought in ads which he said were false. If these were ads that were published and they are false, there is a remedy for this. There are fair trade practices. You see this industry is covered by the rules of the marketplace, it is covered by Federal legislation, when it gets into interstate commerce, if it publishes false ads, they are in trouble. If they make false claims, the Food and Drug Administration can go after them.

Mr. HORTON. Of course you recognize we are not acting as a Congress here, we are acting as the City Council for the District of Columbia.

Mr. MAGEE. I understand.

Mr. HORTON. Or as a State legislature.

Mr. MAGEE. Yes, sir.

Mr. HORTON. Why can't a State pass these laws? They have them in New York.

Mr. MAGEE. I don't say that you can't, it's a question of having it tested in court.

Mr. HORTON. They do have them in New York.

Mr. MAGEE. I don't know, sir.

Mr. HORTON. We have got a whole list of them here

Mr. MAGEE. You may have, sir.

Mr. HORTON. I thought by the way you talked you had been going over all of these things.

Mr. MAGEE. Only in the District of Columbia.

Mr. HORTON. You brought out Mississippi law and Tennessee law. Mr. MAGEE. Yes, I was talking about recent decisions, because the decisions just came down in this very field and they are in the same category as this case that was tried before Judge Green, that's the only

reason.

Mr. HORTON. I recognize the difference between the optometrists and the ophthalmologists. I don't think what we are trying to do here is to say that the optometrists by virtue of legislative act has the same professional standing that the ophthalmologist has, nor that he can do the same things that the ophthalmologist can do, but I think the thrust of this bill is to try to put some sort of regulation, more regulation than what is now in existence in the District of Columbia.

Mr. MAGEE. I would like to say this. I am quite sure the medical society has said nothing about the advertising that you have tried to do in this act. We don't oppose this on that ground at all. The doctors do not advertise, they don't believe that there should be an advertisement in the health field, and they would

Mr. HORTON. Is there any reason why we should not put that same restriction on the optometrists?

Mr. MAGEE. The only problem is that you are put in

Mr. HORTON. Aren't you putting a restriction on them if you raise them to the same professional level?

Mr. MAGEE. You are applying professional status-
Mr. HORTON. Is that your argument?

Mr. MAGEE. I am not saying that.

Mr. HORTON. I am asking, is that your argument?

Mr. MAGEE. That is the argument, from what our court of appeals has said. We are not saying, we are not asking this committee on behalf of the medical society not to prohibit advertising. The only way you can find out if you have the

Mr. HORTON. It is not prohibited now, is it?

Mr. MAGEE. No, it is not prohibited.

Mr. HORTON. Do you think it should be?

Mr. MAGEE. In my personal opinion, "yes," if you want my personal opinion.

Mr. HORTON. That is what I was asking for.

Mr. MAGEE. My personal opinion is that this sort of advertising as the gentleman, I think from Texas brought here, should be prohibited, yes. I would go with that and the medical society will be with it 100 percent and we will fight to have it upheld and in that regard I think the medical society will support this committee fully, in the field of advertising. I am sure they will. They have always opposed it, it is against their ethics, and false advertising in any field pertaining to the health field at all, they would oppose it, I am sure of it.

Mr. HORTON. Dr. Albert, I unfortunately had another committee meeting earlier so I could not be here during the presentation of your testimony, but I have looked it over hastily and I noticed in the course of your testimony you have indicated that you are trained in both fields, optometry and ophthalmology, and you do set forth your understanding of the difference in the two fields.

Now on the last page of your testimony you have indicated that the medical society believes that there is no new legislation necessary. With regard to corporate practice, questionable advertising, and the need to provide protection for the public, how do you justify your statement that there is no new legislation needed?

What you have said is different from what Mr. Magee said. Mr. Magee said that the District Commissioners could regulate, and that there should be new regulation, but you have indicated that there is no need for additional regulation.

Dr. ALBERT. No. If you will read the first page, it says that the Commissioners have the power to make these changes, which we agree should be made. That is the statement. I said that there is no need for it because the Commissioners have the authority, according to the advice we have got from counsel, that is all 1 meant, sir; not that we don't agree that these changes should be made.

Mr. HORTON. Then you do feel that there are changes that are needed?

Dr. ALBERT. Yes. On page 2, down about the fifth paragraph there is a sentence: "We realize that the present Optometry Act leaves some things to be desired," and this would be in the field of desirability.