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Mr. HARSHA. I wonder if in that amendment that you refer to, if you just had "under the direction," would you have any objection to the words “direction and supervision”?

Dr. DRYDEN. Yes, sir; we do have objection to that, and I will tell you why.

It has been the time honored practice by all physicians, not only ophathalmologists, to direct certain technical aspects of their work to technicians. For example, a cardiologist will send his technician out to a home to get a cardiogram. We send our technicians to the hospital to do readings, get a technical reading, and bring back the information so we can correlate the data, and if you put that word "under immediate supervision,” you have eliminated all of that, and the physician feels that he is qualified to determine what a technician can do, he is assuming personal responsibility, sir, for everything that he does do, and he is subject to any bad effects therefrom and, therefore he feels like he should be qualified to determine who his technicians will be and just what they can do, and he assumes responsibility for them. It is not necessary for him to be there personally.

Mr. HARSHA. You feel that the word "supervision" would-
Dr. DRYDEN. Yes, sir.
Mr. HARSHA. So that he couldn't conduct his business normally?

Dr. DRYDEN. There are many times, sir, in which a physician ordinarily would not be present to supervise the immediate action, but he gets the report, he evaluates the information therefrom and applies it to his case record and his patient as the needs may demand.

Mr. Harsha. Well, could the word “supervision” be interpreted to mean that his physical presence is necessary?

Dr. DRYDEN. If it is felt that his physical presence is not necessary then we would have no objection to the word “supervision."

Mr. WHITENER. Mr. Magee, another position you have taken as attorney for the medical society is that under the Reorganization Act, the District Commissioners have rather broad powers to change the licensing procedures and supervisory procedures over the practice of optometry.

Mr. MAGEE. That is correct, sir. Mr. WHITENER. I assume you are basing that on the fact that in 1952 there was a rather general order of the Commissioners under the Reorganization Act.

Mr. MAGEE. That is one of the orders, and they issued one earlier than that, in 1930, under the Optometric Act itself, in which they raised, by order of the Commission, the educational qualifications of all optometrists in the District, at the request of the optometrists themselves.

Mr. WHITENER. Don't you have doubt, as a lawyer, that the District Commissioners have very broad authority, particularly in view of the fact that there is positive legislation already on the books in the District Code relating to the practice of optometry and qualifications and definitions of what constitutes it? You don't take the position that the Commissioners could act, under the Reorganization Act, in such a way as to nullify the statutory law?

Mr. MagEE. No, sir. I do not take that position. The statutory law defines optometry. It is the recommendation of the medical society that that is an accurate, definite definition of the act, and it has been so defined by the court of appeals.

This is the language of our court of appeals in the Silrer case, which is in this act, and they approved this. And what they gave the Commission is the power to adopt the regulations and particularly in the field of qualifications and the manner in which this act should be carried out.

The Virginia act delegates all of these authorities to the Board. They are not spelled out at all. It said all qualifications, all authority overophthalmologists is vested in the board of ophthalmology appointed in the State.

These delegations have been upheld in the courts as valid delegations of legislative authority.

Mr. WHITENER. But, as a legal matter, would you take the position that the optometric society could attain the goal which they seek by this legislation under the provisions of the Reorganization Act?

Mr. VAGEE. I would say, with these exceptions: I would say—I would doubt very much that the Commissioners have authority to declare this calling to be a learned profession, and apply professional principles to the practice of optometry.

I doubt this very much, because our court of appeals has said it is not a learned profession. This issue has been litigated and held to be defined exactly as a mechanical art. They said it is not a part of theology, it is not a part of law, and it is not a part of the practice of medicine. And so I don't think you can do that by regulation.

Mr. WHITENER. What do you think they can do, under the Reorganization Act?

Mr. MagEE. I think everything that these gentlemen asked for in the way of qualifications. We want

We want so much time in college, we want these restrictions, we want you to do this, the way they prescribe their prescriptions, whether they can write the prescriptions. These things the Commissioners can regulate, and they have done it in a few instances, at the request of the optometrists.

As you pointed out, sir, in the 1950's, they put the fitting of contact lenses under the act. There was not a word in the act about contact lenses. And Judge Green, in the criminal case which has just been tried, held that that was a valid delegation, an exercise of the delegated power of the Congress.

Mr. WHITENER. But the District Commissioners, and I assume they have had the advice of the Corporation Counsel, have recently asked the Congress to enact into law a broad act which would give them the authority to regulate the trades and the professions

Mr. MAGEE. Yes, I have seen it. That is the Bible bill, I understand.

Mr. WHITENER. Which I assume they would not have sent down here if they already had that authority under the Reorganization Act, because the Reorganization Act mentions practically every one of these areas of trades and professions.

Mr. MAGEE. Our position is, sir, that they have that authority. If the Corporation Counsel takes the view that they don't have this authority or power under the Reorganization Act, frankly I would disagree with them.

Mr. WHITENER. Whether you or I disagree or not, they still would be obligated to take action under their understanding or advice as to what the law is, and apparently what their understanding or advice is, is contrary to what your view is.

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Mr. MAGEE. That may very well be, sir, as we lawyers sometimes differ.

Mr. WHITENER. So, if that be true, the Optometric Society would not be in position to effect or to accomplish anything under a reorganization plan which the District Commissioners might have the power to set up.

Mr. MAGEE. The Commissioners, whether they tell you they need the power to act, have acted in this field already, sir. They have issued orders, they have changed the standards, they changed them in 1930 and they reorganized it in 1950 to bring the fitting of contact lenses under the act. Their exercise of this power, to me, is testimony to the effect, sir, that they have the power, because they have exercised it, and one court has upheld this power in a criminal case. It has not gone to our court of appeals, but it has been tried at the trial court level, and they have been upheld in this authority, under these sections which are cited in the little memorandum which you will find, I sent to the Corporation Counsel's office, which is part of the statement which was submitted by Dr. Dryden, I say the Commissioners have this power to regulate optometry. They have the power to change the standards and the so-called practices, if they are sharp practices, I think they can stop them.

The Corporation Counsel that I talked to took the position that they could do practically anything, everything in this act, as I understand it. Of course, he will speak for himself. I had best not quote him. I think the Corporation Counsel can speak for himself in this

I think I had better not get into this. My view is that except for the constitutional problem which involves the three things in this act, making this a learned profession, forbidding corporate practice, making them experts by law, which I think these involve constitutional questions, and that is my view, sir. I don't think they can do this by regulation.

Mr. SISK. Mr. Horton.
Mr. HORTON. I don't think we can do that by legislation either.

Mr. MAGEE. I agree with that. I don't think you can either, because the courts can determine who is an expert witness, and I think it is getting into their field.

Mr. WHITENER. On that, I don't think there is any argument between you folks or the committee or the Optometric Society representatives about the expert witness.

Mr. MAGEE. They put it in the bill, there must have been an apparent reason.

Mr. WHITENER. It isn't going to be in the bill long.

Mr. MAGEE. The bar association is here. I don't want to speak for the bar association. They want to be heard on this matter too.

Mr. WHITENER. They won't have any trouble about that provision, I believe.

Now, getting to your contention about section 14 of the bill, would it remove objection which you have to it if instead of the word “practitioner” they use the word “optometrist''?

Mr. MAGEE. I think it should be eliminated. This is done for one purpose,

it was put in the bill in order to use it just as it is used in the State of Virginia. I don't know whether you were here, sir, when I submitted this exhibit, which is what the optometrists are using this

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language for. I left with you the opinion of the attorney general of Virginia about nondiscrimination.

The letter of the optometrists to every director of every school in Virginia, saying in effect that if you refer, and this goes to a medical director, if a medical doctor refers any student in any school to the family practitioner, he is going to be involved in a lawsuit, that is what they told them.

Mr. WHITENER. If you change section 4, or wherever it is, by striking out the word "practitioner' and inserting the word "optometrist,' it would read that "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 freedom of choice of practitioner, and substitute “optometrist” “with respect to his visual problems."

Mr. MagEE. Freedom among optometrists. If it is among them, I don't know. I think this would still give them what they want in the way that optometrists would then take it as being exactly what it means in Virginia, but if you refer it to a doctor, you are violating the section. That is exactly what it is in here for. I don't know what other purpose it could be for. I don't understand, if it isn't for that purpose.

If they want freedom of choice among optometrists, of course that in one thing, but that is not what this is designed for. This is designed to prevent a doctor employed by a State or the District of Columbia from sending a child with a disease in his eye to the family physician for the initial examination. That is what it is designed to do. And their letter is pretty clear on it.

Mr. WHITENER. I can't believe that optometrists would want to do that.

Mr. MAGEE. May I read the letter? May I read their letter? It would clarify it.

This comes from Virginia Optometric Association. It is dated October 9, 1964.

Now, this letter went to the head of every school in the State of Virginia. This one is addressed to Mr. Earl C. Funderburk, Superintendent of Schools, Fairfax County, 400 Jones Street, 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 ophthalmologist or a family physician. In many instances, also, forms sent home with the child direct the parent to take the child to an ophthalmologist 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.

That is not a proper statement, as you gentlemen know. But this is what the letter says:

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.

They are not authorized to do that, sir. In the District of Columbia they are not recognized as being allowed to do that. And if they do, they are really practicing medicine.

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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. And this is the official letter from the Virginia Optometric Association. (For complete letter, see pp. 187–188, supra.)

Mr. WHITENER. What is the language of the Virginia statute?
Mr. MagEE. I have it here, sir. There wasn't

There wasn't any antidiscrimination provision in the statute. I will explain how this was arrived at.

The Virginia Legislature refused to put a section 14 in their act. So what the optometrists did, they went to the attorney general of the State, and his opinion is here, as part of this which I will leave with you gentlemen, this exhibit, and they have him in turn say that a reference by a school physician to a family physician was discrimination against an optometrist.

That is exactly what it is.
Mr. WHITENER. So, it is not in the Virginia statute?

Mr. MAGEE. It is not in the statute at all, but once again, this language in here reads very much like this section 14.

Mr. WHITENER. If we leave section 14(b) in here and substitute the word “optometrist” for the word "practitioner," then the lawyers won't have any grounds for making such a row, will they?

Mr. MAGEE. I frankly don't know, because I think if you put in in that way, they will sãy you can't go to a doctor of medicine, or a doctor or nurse can't send you there.

Mr. Sisk. Will the gentleman yield?
Mr. MAGEE. Yes.

Mr. Sisk. Mr. Magee, I followed this letter during your reading, but there is nothing in the Virginia bill that prohibits the sending of or referral of a child, or a child going to an ophthalmologist or a physician or anyone else. I think it is very clear. So far as I know, these are exactly the same regulations that we have in California. I would venture to say they are the same regulations that they have in New York and practically every other State in the Union on nondiscrimination.

When a teacher or anyone else is referring a child who apparently has some defect in vision, as from time to time develops, in fact I happen to have a granddaughter not too long ago who was in this situation, and through the teacher it was called to the attention of the parents. It simply means that from the standpoint of eye care, the checking of the eyes, that the optometrist shall not be discriminated against. In other words, that they will be on an equal par with the ophthalmologist and the family physician and all the others.

I just don't see anything in this bill which says that you are forbidding a child to be sent to a family physician or to an ophthalmolog

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