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therefore, advertising should be permitted. A simple analogy refutes this argument. When the orthopedist furnishes his patient with the neck collar or the brace to support a limb or a back, these too are articles of personal property, but they may not ethically be advertised. When the dentist supplies his patient with dentures, bridgework, or similar dental appliances, he, too, is furnishing articles of personal property but these likewise do not fall in the category of being ethically advertised.
Likewise, in optometry. Eyeglasses are not optometry per se; they are incidents of the practice of optometry, the results which may be indicated. The practice of optometry is primarily and basically the exercise of training, talent, discretion, and professional judgment involved in the examination of a person's eyes to determine whether anything is needed, and just what it shall be, for the purpose of correcting, improving, and making comfortable the vision of the patient.
Perhaps the reasons have been best stated by Chief Justice Hughes in the case of Semler v. Oregon State Board of Dental Eraminers. Dr. Semler had been an advertising dentist. The Oregon Legislature had passed a law against advertising. Dr. Semler attacked the validity and constitutionality of this action. The Chief Justice stated:
“We do not doubt the authority of the State to estimate the baleful effects of such methods and to put a stop to them. The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the marketplace. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. * * *” (9) Practicing under a name other than that under which he has been licensed.
The name of a professional practitioner is his most valuable asset. Practicing under a trade name or fictitious name is not only an imposition upon the public but is deemed unethical by all health-care professions.
(10) Offering free examinations and other forms of bait.
There is no such thing as "a loss leader” in the practice of a profession. It is demeaning and belittling to the very essence of a profession to seek patronage by allegedly offering free services, bonuses, premiums, and the like. What confidence could the public have in the profession of medicine if the physician were permitted to advertise a premium of a free appendectomy with every gall bladder operation.
(11) Display of spectacles.
This is simply the implementing of another part of the underlying reason for the existence of a profession, that the professional services offered must be based upon skill and ability, not an advertising or show-window display. Physicians do not have scalpels or forceps in display cases outside their offices, dentists do not have crowns and artificial teeth, bridgework and dentures displayed in the windows of their offices.
(12) The act requires that the license be displayed, but not in such that it can be seen from the outside of the premises.
The display of the license is for the patient's protection, not as a form of quasiadvertising.
(13) Except as provided in section 9, the use of certain words, such as "clinic," "infirmary," "hospital," etc., either in Fnglish or any other language in connection with any activity which is essentially the practice of optometry, is prohibited.
Many people are inclined to attach importance to descriptive words such as clinic, infirmary, hospital, etc., which may be misleading.
(14) Authorizes the Commissioners to discipline an optometrist who permits the use of his name or professional title in conjunction with advertising of his professional services in any form or manner by any person.
The public seeks out the optometrist because of the respect and confidence they have in him for excellency in the practice of his profession rather than because he might happen to be associated with some other group or association.
(15) Prohibits an optometrist from claiming professional superiority or the ability to perform professional services in a superior manner.
(16) Authorizes disciplinary action against an optometrist who employes a third person to influence or direct patients to him.
(17) Prohibits a licensed optometrist from practicing in any retail, mercantile, or commercial store or premises not exclusively devoted to the practice of optometry or other health professions.
This section follows the sociological trend of furnishing the public a comprehensive health-care service. While the optometrist usually practices in his own office which is devoted exclusively to optometry, there exists a growing trend to small health centers housing the offices of physicians, dentists, and optometrists.
The day has long passed when physicians might practice in mercantile or commercial surroundings. A decade or two later, dentistry adopted the same ethical principle of location. As with these other professions, it is important to the health and welfare of the citizen that the optometrist practice only in a professional office.
A retail or commercial store office for an optometrist does not lend itself to a professional practice. Such locations do not generate an atmosphere conducive to a proper doctor-patient relationship and seldom afford the optometrist the opportunity to provide the patient total vision care as defined in the bill, section 3. (2).
(18) Authorizes disciplinary action against an optometrist who practices as an employee of a third person other than a duly licensed optometrist or in accordance with the provisions of section 9 of the act.
It is fundamental that the sole and exclusive responsibility of a professional practitioner is to his patient. To be employed by a lay person, firm, or corporation, to be dictated to either directly or indirectly, implicitly or explicitly, as to how long an examination should take or how much care and attention the practitioner should give to the patient, is completely contrary to the concept of proper practice. Neither the optometrist nor any other health-care practitioner should be subject to the conflicting interest of two responsibilities (a) to his patient and (b) to a nonprofessional employer whose primary concern is making a profit.
It is proper and normal for an optometrist to be what might be termed a “house” optometrist. In such case, he offers his services and performs his professional tasks for the employees of an industrial plant, bank, or any other organization which seeks to have an optometrist in its health-care department. On the other hand, the bank, insurance company, or manufacturing plant which employs the optometrist should not be permitted to offer the optometrists' services to the outside public. There is a very proper public antipathy to the sharing of fees.
A lack of confidence must ensue where the fee the optometrist receives from the public never belongs to him at all, but goes to an employer who simply pays the optometrist a salary and thereby promotes and exploits the professional services of a heath-care practitioner. Respect for a profession is vital. Respect deteriorates when a practitioner may be hired at will by an unlicensed person to perform professional services upon the public. Optometry and the care of vision are far too important to permit such a situation to exist.
(19) Applies to any other unprofessional conduct.
Section 7(b)—Revocation.-Specifies the procedure for disciplinary actions, requires written charges, notice of hearing, service upon the respondent at least 20 days before hearing, waiver of hearing must be in writing, respondent is entitled to counsel and to call witnesses at the hearing.
This conforms to the usual procedure before administrative agencies to conform with the Supreme Court's interpretation of the "due process" clause of the U.S. Constitution.
Section 7(c)-Reinstatement.-Authorizes the Commissioners to reinstate a license previously revoked, provided at least a year has expired from the date of revocation.
It is customary to permit the reinstatement of any license which has been revoked. The provision specifying that 1 year must elapse before the application for reinstatement may be accepted is to protect the Commissioners from a multiplicity of reinstatement applications.
Section 8(a)—Unlawful acts. This section applies to "any person,” including a licensed optometrist, and declares it to be unlawful to do numerous acts, including the following:
(1) To practice optometry without a valid license.
(2) To practice or offer to practice optometry under the name of any company, corporation, trade name, etc., except the name which appears on the license issued under the act.
(3) (a) To sell or fraudulently obtain a license or diploma or to aid and abet therein; (b) to practice under cover of any document or record required by the Commissioners under authority of the act which was illegally or fraudulently obtained; (c) prohibits designation that one is an optometrist if he is not licensed under the act; (d) prohibits an individual from practicing during any time his license is suspended or revoked.
(4) Prohibits the sale of eyeglasses, frames, etc., without a written prescription from a physician or optometrist licensed under the act.
(5) Prohibits price advertising of ophthalmic materials.
This is to outlaw bait” advertising for the protection of the public and was sustained by the U.S. Supreme Court in the Oklahoma case referred to above.
(6) Prohibits offering free eye examinations, premiums, discounts, credit, or other inducements to obtain patronage.
(7) Prohibits rebating by persons filling prescriptions to the individual who wrote the prescription.
(8) Prohibits any person other than an optometrist to utilize the services of an optometrist on a salary, commission, lease, or any other basis in the practice of optometry.
This protection for the public outlaws corporate practice, which for more than 20 years has been barred in the great majority of jurisdictions. The District of Columbia is one of the few jurisdictions where it exists.
(9) Prohibits the use of any sign offering ophthalmic materials for sale in violation of the act or the Commissioners' regulations issued under the act.
(10) Requires an optometrist to display his license and his current annual renewal registration certificate where he practices.
Section 8(b).- Declares a violation of any of the provisions of this section to be a misdemeanor, provides punishment for the first offense by a fine of not more than $500; on second conviction a fine of not less than $500 or more than $1,000 or by imprisonment for not less than 3 months or more than a year, or by both such fine and imprisonment.
Section 9(a)-Exemptions.- Provides for exemptions from this act as follows: (1) A student of optometry in a school approved by the Commissioners.
Although there presently is no optometry school or college within the District of Columbia, it is possible that one could be commenced in the future. During the last 2 years of the 4 years of required professional study, the student optometrist is obliged to perform refractions and do other optometric work in the clinic attached to the school. This subsection exempts the student-optometrist from the provisions of the act.
(2) Commissioned officers in performance of military duties.
The authority of the Defense Department takes precedence over the District Commissioners with all personnel performing functions which require a license.
(3) Exempts an individual licensed in another jurisdiction who is in the District of Columbia for the purpose of making a clinical demonstration before an optometric society, convention, association, or school or college of optometry.
This exemption enables students and practicing optometrists in the jurisdiction to benefit from recognized authorities in the field without requiring those authorities to secure a District of Columbia license.
Section 9(b).- Relieves physicians from obtaining a license to practice optometry if they are licensed to practice medicine in the District of Columbia.
Section 9c).-This exemption enables opticians to fill the written prescriptions of physicians or optometrists, excluding the fitting of contact lenses.
It conforms to the existing practice; and the fitting of contact lenses by opticians is, in an opinion of the District of Columbia Corporation Counsel, in violation of the present law.
Section 9(d).—(1) This exemption permits nonprofit optometric clinics approved by the Commissioners to be conducted in the District of Columbia.
Such a clinic exists at the present time. It serves the District of Columbia by providing vision care for indigent and needy patients.
(2) Permits optometrists to be employed by hospitals, clinics, group health practices, nonprofit health services, and health expense indemnity corporations or groups, and also to act as an employee to render optometric services solely to the employees of the employer.
This conforms to present practice and to the rules in practically all other jurisdictions.
(3) Permits a surviving spouse of a deceased optometrist to continue his practice for not more than 1 year through the services of a duly-licensed optometrist.
The practice of a licensed professional practioner is built up after a lifetime of service. If he dies or is incapacited and the practice cannot continue for a reasonable period of time, not only will the practice be destroyed, but the interests of his patients will be seriously affected. The patient desires and seeks continuity of professional care, The purpose of this section is to afford a reasonable time so that continuity can be established and the best interests of the visual care of the patient served.
(4) This section permits a wife or husband of an optometrist who is temporarily mentally incapacitated to continue the practice through the services of another optometrist.
Where the incapacity is temporary, the husband or wife should be permitted to employ a licensed optometrist to continue the practice for a temporary period.
(5) Where an optometrist is permanently mentally incapacitated the husband or wife is given the sine right to continue the practice as though the spouse were deceased.
The purpose is to protect a valuable asset of the incapacitated individual.
Section 9(e).-Authorizes the use of the title “Doctor” or any abbreviation thereof by an optometrist if he clearly indicates to the public that he is an optometrist.
In all States, license to practice optometry requires graduation from a school or college of optometry. All such schools in the United States are recognized by the National Commission on Accrediting and give the 0.D. (Doctor of Optometry) degree.
Section 10(a).–Authorizes the Commissioners to adopt rules and regulations on such subjects as signs, professional cards and announcements not in violation of the specific provisions of the act.
Section 10(6).-(1) The Commissioners are authorized after public hearing to fix fees and charges to defray the approximate cost of administering the act.
(2) Funds collected are to be paid into the Treasury of the United States to the credit of the District of Columbia.
Section 10(c).-Authorizes the Commissioners to adopt a seal and provides that documents authenticated by the seal shall be received in evidence in all courts of the District of Columbia equally and with like effect as the original record. Also provides that the records pertaining to the licensing and regulation of optometrists shall be open to reasonable inspection.
Section 11-Investigations. — Authorizes the Commissioners to make studies, investigations, require answers under oath, and issue subpenas in connection with the enforcement of the act. The court of general sessions, upon application of the Commissioners, may enter an order requiring obedience to the subpena, which if ignored may be punished by contempt.
Section 12-Injunctions.-Authorizes the Commissioners to obtain a restraining order to prohibit violations or threatened violations of the act.
Section 13(a)-Prosecution.- Directs that prosecutions for violations 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 his assistants.
Section 13(b).-Provides that proof of a single act prohibited by law, without proving a general course of conduct, shall constitute a single violation.
Section 13(c)-Certification.-Directs that the testimony of a licensed optometrists shall be received at any trial or hearing in the courts of the District of Columbia as qualified expert evidence and testimony in respect to the practice of optometry. Also that certificates of ocular or visual condition, acuity, and efficiency issued by any duly-licensed optometrist should be accepted as qualified evidence of ocular condition, acuity, and condition to whom such certificate shall relate.
Section 14-Freedom of choice.--Provides freedom of choice of practitioner. Prohibits officers or employees of the District from administering any law applicable to the District from depriving any person of his freedom of choice of practitioner with respect to his visual problems.
Section 15—Delegation.-(1) Provides the Commissioners with the necessary authority to delegate to the Board of Optometry, established by Reorganization Order 59, or to any other officer or employee of the District, all or any part of the powers, duties, or functions invested in them by this act.
This conforms to the present law.
(2) Continues in effect valid licenses issued when the amendment becomes effective.
This is a necessary and common practice in an amendment of this character.
(3) Adds a paragraph to subsection (a) of section 11 (742 of the District of Columbia Code, as amended) by adding a new paragraph to read as follows:
“(11) final decisions and orders of the Commissioners of the District of Columbia denying, suspending, or revoking any license, denying any renewal of a license or reinstatement of a license, pursuant to the District of Columbia Optometry Act."
The effect of this is to make such actions by the Commissioners reviewable in the courts.
(4) Provides that the act shall take effect on the 90th day after its enactment.
A reasonable time should be allowed in which those who are now engaged in activities contrary to the new law will have an opportunity to conform to it.
Mr. Dowdy. Is there any other Member here sponsoring these other bills? If not, we will proceed with the witness list. have Dr. McCrary, president of the American Optometric Association. Come around, Doctor, and have a seat. If you have others with you, you might bring them around at the same time and introduce them. I don't know if you all come as a group.
0.D., PRESIDENT AMERICAN OPTOMETRIC ASSOCIATION
Dr. McCrary. Mr. Chairman, the Optometric Society of the District of Columbia and the American Optometric Association are the principal proponents of the bill which is now before you, and I do have with me today Dr. Henry J. Hoff, president of the Optometric Society of the District of Columbia; Dr. Meredith W. Morgan, Jr., who is the dean of the School of Optometry at the University of California; and Mr. Harold Kohn, Esq., general counsel of the American Optometric Association, and with your permission I would like to have them join me.
Mr. Dowdy. Yes, sir, all of you have a seat there.
Dr. McCRARY. We would like to file for the record a statement and make a brief oral statement.
Mr. Dowdy. That will be satisfactory. Your statements will be made a part of the record. You may be seated and just brief it for us.
Dr. McCRARY. Mr. Chairman, we realize the tremendous demands of time placed on this committee, and we, therefore, plan to present our testimony in four parts which will be both complementary and supplementary to each other.
In the interests of time and because we believe the complete four parts will answer many of the questions which will doubtless be raised in the minds of the members of the subcommittee, we would like to present our four parts as a unit. With your permission, sir, I will proceed with the first statement.
My name is V. Eugene McCrary. I am an optometrist engaged in the private practice of optometry at 6901 Baltimore Avenue, College Park, Md. I am a past president of the Maryland Optometric Association, and have served two terms as a member of the Maryland Board of Examiners in Optometry. I am here today as president of the American Optometric Association, an organization with more than 14,000 members.
The American Optometric Association is supporting H.R. 12937 because the public, the citizens of the District of Columbia, are today subjected to hazardous and slipshod eye care, and our paramount concern is the protection of the public from unethical and harmful practices. Specific examples of these unethical practices will be detailed in subsequent testimony by myself and my colleagues.
We are also here today because the District of Columbia Optometric Society has requested our assistance.