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Mr. Sisk. That will be made a part of the record.
THE OPTICIAN AND CONTACT LENSES
In recent years throughout the United States, a far-reaching controversy has developed concerning the proper function of the dispensing optician in the contact lens dispensing field. Various agruments have been advanced on all sides of the controversy, primarily by those persons who are intimately involved therein: ophthalmologists, optometrists and opticians. It is the purpose and objective of the following discussion of this problem to reach a sound conclusion, based on all relevant factors, as to the legal and proper scope of the optician's responsibility in this area.
A. Contact lens fitting in historical perspective
The concept of what is now known as a contact lens is by no means a new one. The idea from which contact lenses subsequently developed originated in the early 19th century. Early experimentation is said to date back to the era of Leonardo da Vinci (1452-1519).
The position of the dispensing optician in the early years of contact lenses cannot be clearly defined, as there was no distinction made in those years between an optician and what is now known as an optometrist. While early refraction and eye care was performed by physicians, opticians played an important role in optical dispensing and in the development of equipment relating to eye care. One writer has suggested with respect to a popular instrument, the keratometer, that if the keratometer's use were to be restricted, “* * * historically it should be restricted to astronomers, opticians, physicists, and physicians.” Dr. Arthur H. Keeney, “Scientific Tools and Proprietary Prerogatives” 52 American Journal of Ophthalmology 277 (August 1961). Thus is illustrated the importance of the optician in optical history.
In the 19th century, eyeglasses were generally sold by opticians, either according to a physician's prescription or as selected by the wearer. Prior to the turn of the century, some opticians began to engage in refraction and adopted the name "refracting opticians.” Those refraining from this practice became known as "dispensing opticians.". The “refracting optician” became legally and commonly identified as “optometrist” between 1901 and 1925.
It can be seen from the above that the distinction between an optometrist and an optician developed not from any legislation or legal basis but rather from custom. Optometry evolved out of opticianry when certain opticians began engaging in refracting. Only after this evolution did legislation begin to appear authorizing optometrists to measure the powers of vision and to adapt lenses for the aid thereof.
The immense popularity and public acceptance of contact lenses is of relatively recent date, as is the controversy over the optician's function in contact lens dispensing. Historically in the contact lens field, the roles played by the physician, optometrist, and optician in this field followed those in the general eye care field. Opticians pioneered in contact lens dispensing in the early 1930's. When contact lenses became developed for general use by the public, opticians assumed as a matter of course the function of designing contact lenses upon written prescription and delivering them to the customer. Similarly, the physician and the optometrist assumed the same functions with respect to contact lenses as they performed with respect to regular eyeglasses. This situation, and the division of functions between physicians, optometrists, and opticians, exists generally today except where modified by statute.
In the contact lens field even as in the area of regular eye care, the optician has played a tremendously important role historically. Indeed, many of the early contact lens pioneers and persons most responsible for the development of contact lenses were engaged primarily in optical dispensing. It is noteworthy to set forth a few of the accomplishments of opticianry in the contact lens field. Some of the original contributions of opticians in this area are as follows:
(1) Development of a molding technique for taking impressions of the eyes;
(2) Discovery of the fluorescein and blue light method for checking contact lenses;
(3) Production of the first all-plastic contact lens;
(5) Development of scientific design methods and techniques of insertion and removal;
(6) Production and patenting of corneal lenses;
(11) Publication of numerous textbooks concerning contact lenses. The above contributions, and many others not listed, demonstrate the fact that opticianry has played a crucial part in the development of modern contact lens technology. This role of the optician in the contact lens field, and the contributions of opticianry in this area, are of continuing importance today. B. The contact lens process and the optician's function
(1) Mechanics of contact lens dispensing.- We do not attempt here to discuss in detail the technical matters and procedures involved in contact lens dispensing, but rather the general procedures and basic decisions involved in such dispensing. An understanding of these basic mechanics is essential to defining the proper function of the optician in contact lens dispensing.
The overall process of contact lens fitting can be separated into three fairly distinct phases. The first phase encompasses general and special medical history and diagnostic examination. In this phase, decisions must be made as to whether or not the person needs a visual aid of any sort and then whether or not contact lenses should be applied to correct the visual defect. This latter decision must be based in large part on a diagnosis of the capability of the cornea to adapt physiologically to contact lenses. If the decision is in the affirmative, then the refractive prescription is obtained.
The second phase of the contact lens process involves the actual designing of the lens from the prescription and delivery to the customer. During this phase, the physical characteristics, primarily curvature, of the appropriate lens are finally determined. The primary instrument utilized in this process is the keratometer, scmetimes called ophthalmometer. This is primarily a measuring tool used to check the curvature of the contact lens. In the hands of an optician, the keratometer is a purely nonrefractive instrument used for measuring contact lenses. In addition to the keratometer, another instrument commonly used by opticians in contact lens dispensing is the slit lamp. The slit lamp is used to study the fit of the contact lenses; it determines the accuracy of the design of the lenses. Other mechanical and technical tests of the lens are also conducted. After these tests, complete information is at hand concerning the radius, size, power, and other details of the lenses. From this information the lenses are fabricated. Upon inspection after fabrication and design, the lenses are delivered to the wearer, who is instructed on the proper wearing and care of the lenses.
The third phase of this process involves the followup medical examination and evaluation of the effect of the lens on the eye. This should generally be a continuing process, since periodic examinations are needed to diagnose possible latedeveloping complications.
(2) The optician's function in contact lens dispensing.—The three phases of contact lens dispensing described above are basically those which are followed today. This first phase, which involves medical examination and prescription, obviously cannot be performed by an optician. In fact, many physicians seem to be of the opinion that examination for contact lenses should not be performed even by an optometrist, because of the potential pathological consequences of contact lens wearing. In spite of this contention, no statute or reported decision has forbidden an optometrist from prescribing contact lenses. The third phase described above is also properly the function of the physician, since it in volves continuing medical examination of the physical effect of the lenses on the patient's eyes.
Opticians are presently engaged in carrying out the second phase of the abovedescribed contact lens process. The duties performed by the optician in this phase are set forth below.
First of all, a dispensing optician will design and deliver contact lenses only upon a written prescription of an ophthalmologist which specifies that the customer's eyes are suitable for contact lenses. Without this specification, contact lenses will not be dispensed by the optician. When the patient first arrives at the optician's office, the optician endeavors to impart to the customer any mechanical information which the customer may desire concerning contact
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lenses. In no instance does the optician attempt to give any medical advice or suggestions concerning treatment or examination of the eyes. Such advice or suggestion has previously been given by the ophthalmologist during the eye examination.
After the discussion with the patient has been concluded, the optician utilizes a keratometer, which is also called an ophthalmometer. This instrument determines the radius or curvature of the contact lens, and is an instrument designed somewhat like a range finder. The measurements are determined by reflected light on the cornea of the eye, and there is no actual contact with the eye itself. The keratometer is simply a measuring device, not unlike a ruler, a level or a compass. The slit lamp, discussed above, may also be used at this stage. From the keratometer readings and other mechanical tests, the lenses are fabricated. After the lenses are fabricated the optician thoroughly inspects the same and verifies them for curvature, size, power, polish and the various curves and edges so that the lenses can be safely used. During this entire process, if any abnormality, or Wiusual condition is found to exist, the optician makes immediate contact with the prescribing physician. After the lenses are ready for delivery, the customer is notified, and he is then instructed in the procedure in putting the lenses on his eyes and removing them. The lenses are not delivered until the optician is entirely satisfied that the customer understands and is able to handle the contact lenses satisfactorily, and has been instructed as to length of wearing time. He is then returned to the prescribing physician. Thereafter, at 6-month intervals, the optician contacts the wearer and asks him to return to his physician for a periodic eye examination.
Throughout the contact lens dispensing procedure, the optician feels a great responsibility for assuring his customer of the best possible eye care. suant to this sense of responsibility that the optician makes sure that his customer returns to the prescribing physician for the final examination and then urges his customer to have periodic medical checkups thereafter.
The design and delivery of contact lenses by an optician takes place only after the licensed physician authorizes contact lenses, and the dispensing is done only upon the direction of such physician. At any time in the process that any unusual circumstances or conditions may be observed or occur, the optician refers the customer back to the physician.
Thus it is this second phase of contact lens dispensing in which the dispensing optician is presently engaged and over which the controversy has arisen. The question is whether or not an optician can legally perform the functions as above described in the fabrication, design, and deliver of contact lenses. C. The legal status of opticianry in contact lens dispensing
(1) The opponents of contact lens dispensing by opticians.--It is relevant in determining the legal role of opticians in the contact lens field to consider the forces which are opposing contact lens dispensing by opticians. There has been much literature published lately criticizing contact lens dispensing by opticians. There has been much legislation introduced to prohibit opticians from entering this field. Many court actions have been filed against opticians who were dispensing contact lenses. It is a fact that the major portion of the literature, the legislation, and the legal actions stemmed from one common source-optometry. It is also an interesting fact that the rise in opposition by optometry to contact lens dispensing by opticians has paralleled the increase in public sales of contact lenses. Optometrists and the eye physician-optician team are in direct competition in the contact lens field. The fact of this competition reflects rather strongly on the motives of optometry in opposing opticianry in this area.
While optometry has consistently and strongly opposed contact lens dispensing by opticians, the medical profession has generally favored the role of the optician in dispensing contact lenses. This is illustrated by the fact that practically all contact lens prescriptions filled by opticians are prescribed by physicians.
(2) The traditional role of the optician as applied to contact lenses. The historical development of the functions of opticianry is discussed above. Traditionally, the optician has the responsibility of taking a written prescription of a physician and from that prescription preparing the eyeglasses and fitting them to the face of the wearer. This traditional function of the optician has not been challenged legally. Indeed, it has been incorporated by statute in some States.
The long-assumed and traditional function of the optician would appear to authorize a clear and definite role for the optician in the contact lens field, the same role which the optician performs in the regular eyeglass field-that of designing and delivering contact lenses upon the prescription of a physician. This is particularly true where no legislation has been passed to alter the traditional functions of the optician.
Since the basic function of the optician in contact lens dispensing is the same as in the dispensing of regular glasses, the only persuasive reason for excluding opticians froin this field would be potential adverse effect on the public health. The overall direction by the physician and his ultimate responsibility for the eye care of his patient positively refutes any argument based on the public health.
The traditional role of the dispensing optician in the eye care field is the dispensing of eyeglasses and other optical appliances. The dispensing of contact lenses upon a physician's prescription is appropriately within that traditional role of the optician. The numerous important contributions of opticians to contact lens development; the high degree of skill and responsibility with which the optician designs and delivers contact lens; all of the elements discussed above illustrate the fact that the optician may legally and rightfully dispense contact lenses upon the written prescription of a physician.
Mr. MILLER. Thirdly, this proposed legislation prohibits the optician from advertising his services to the public. He cannot advertise sunglasses or their price. He cannot advertise frames. He cannot advertise magnifiers or their price.
What is wrong with suggesting through an advertisement that a customer might like to have a second pair of glasses in a sturdy frame and with break-resistant lenses for use in his basement workshop? What's wrong with advertising that a lady might like additional pairs of glasses in different colors and styles for use with different wardrobes? Such advertisements perform a public service.
In addition the bill is ambiguous concerning what the optician can advertise. What is a "modest” advertisement? It prohibits the optician from advertising the price of "ophthalmic articles." What is an ophthalmic article? Is a bottle of Murine an ophthalmic article? If so, does this bill prohibit a drugstore from advertising the price of a bottle of Murine, or the optician from advertising the price of a bottle of lens cleaner? The same questions might be asked about hand magnifiers and other ophthalmic articles.
Fourth, this proposed legislation prohibits the optician from advertising or from even mentioning prior to a sale the availability of credit. If a customer is sitting in the optician's store and is debating whether to purchase a second pair of glasses (for which he has a written prescription) the optician would violate the law if he mentioned the availability of credit in order to help him decide on the second pair.
With all these restrictions and uncertainties, opticians can hardly be blamed for opposing this legislation out of fear of being put out of business.
Our third reason for opposing this bill is that the proposed legislation will work to the detriment of the public.
How can the residents of the District of Columbia be served by being made to have a written prescription in order to get a broken lens repaired or to have new frames when a mere mechanical process is involved?
How can the residents of the District of Columbia be served by being forced out of the hands of physicians into the hands of optometrists for eye care?
How can the residents of the District of Columbia be served if they are deprived of the double protection they now have in getting contact lenses—an examination by an ophthalmologist, skillful services by the optician and reexamination and check by an ophthalmologist' How can this bill benefit the 9,100,000 persons who come to our Nation's Capital yearly?
These are all rhetorical questions because we know that if this proposed bill is passed, it will force opticians to move out of the city to the suburbs where they can do business in the traditional fashion. It will force District residents and visitors to seek optical services across the river or in Maryland. It will steer them away from complete medical eye care.
The only way in which the optician can effectively stay in businessdoing business in his traditional way-with the best possible protection being offered to the public by his close cooperation with ophthalmology--is to cease being an optician and to become an optometrist. The optician does not desire this-it is unreasonable to force it upon him.
Opticians have no objection to any reasonable regulation of optometrists as may be required for the protection of the public.
We ask, however, that this regulation be restricted to optometry, that it be done without putting opticians virtually out of business, that it be done without infringement on ophthalmology, and that it be done without detriment and serious inconvenience to the residents of the District of Columbia and the millions of visitors to this city each year.
If I may continue, Mr. Chairman.
There are several areas that have come up during the hearings so far that I would like to have opportunity to comment on.
Mr. Sisk. You may proceed.
The first is that earlier testimony has cited or has used the New York law as being quite similar to the law of the proposed bill of the District of Columbia.
I have here a copy of this law and I would like to read at least two provisions from it which will show that this statement is not correct.
Mr. Sisk. I might suggest, if you have any lengthy statement, that it would simply be made part of the record, because we have all the laws here, and we have a compilation of every State law, and we are really frankly trying to move along. I don't think it is necessary to repeat that in the record.
Mr. Miller. I will merely enter it in the record as marked, then, Mr. Chairman.
Mr. Sisk. Yes.
(The statutory provisions of the State of New York, contained in the booklet referred to, entitled “Optometry and Ophthalmic Dispensing-Law, Rules, Information," appear in the appendix, pp. 286–305.)
Mr. Miller. Mr. Chairman, basically these two passages show the opticians may perform duplications and that the opticians may fit contact lenses in the State of New York.
Mr. Sisk. Right. Mr. MILLER. The first thing came up this morning in connection with the New York law concerning the corporate practice of optometry, and I believe that the highest court of the State of New York has upheld the right of the Sterling Optical Co. in New York to practice optometry corporately. 1 Printed in italics.