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Mr. Moyer, do you want to have Dr. Heath and Mr. Duvall testify with you?

STATEMENT OF THOMAS MOYER, ASSISTANT CORPORATION

COUNSEL, ACCOMPANIED BY DR. FREDERICK C. HEATH, DEPUTY DIRECTOR, DEPARTMENT OF PUBLIC HEALTH, GOVERNMENT OF THE DISTRICT OF COLUMBIA

Mr. Moyer. Mr. Chairman, Mr. Duvall is at an appropriations hearing. We hope we can proceed without him. If any questions come up within his expertise, we hope we can submit answers to them at a later time.

Mr. SISK. Fine.

Mr. MOYER. Dr. Frederick Heath, Mr. Chairman, is the Deputy Director of the District Department of Public Health, and will accompany me today.

Mr. WHITENER. Before you start out, Mr. Moyer, let me ask this question. Is there any statute in the District of Columbia which prohibits a medical man or a physician holding an interest in or operating a drug-dispensing business?

Mr. MOYER. I shall have to refer you to Dr. Heath on that. I am not prepared on doctors holding interests in drugstores.

Dr. HEATH. I do not think it is true in practice. Whether there is a specific law or not, I am not sure at this point, but it is not the accepted practice.

Mr. WHITENER. I wonder if we could get you to give us a little statement on that in the record.

Mr. MoYER. I will certainly try to find out. I am not aware that there is such a statute. I shall do some research on it.

Mr. Sisk. I would like, before you gentlemen proceed, to have made part of the record a letter on this proposed legislation directed to the chairman of the committee, Hon. John L. McMillan, from the Commissioners, signed by the President of the Board of Commissioners, Mr. Walter N. Tobriner.

(The letter referred to follows:)

GOVERNMENT OF THE DISTRICT OF COLUMBIA,

EXECUTIVE OFFICE,

Washington, March 18, 1966. Hon. John L. McMillan, Chairman, Committee on the District of Columbia, U.S. House of Representatives, Washington, D.C.

Dear Mr. McMillan: The Commissioners of the District of Columbia have for report H.R. 12937, H.R. 13049, H.R. 13155, and H.R. 13176, 89th Congress, substantially similar bills, “To amend the Act of May 28, 1924, to revise existing law relating to the examination, licensure, registration, and regulation of optometrists in the District of Columbia, and for other purposes.

Each of these bills amends in its entirety the Act entitled “An Act to regulate the practice of optometry in the District of Columbia," approved May 28, 1924 (43 Stat. 177; D.C. Code, sec. 2-501 et seq.; hereinafter, "the Act').

Initially, the Commissioners desire to note that on January 17, 1966, they forwarded to the Congress draft legislation "To revise and modernize procedures relating to the licensing by the District of Columbia of persons engaged in certain occupations, professions, businesses, trades, and callings, and for other purposes," introduced in the Senate on February 21, 1966, as S. 2953. A primary purpose of the Commissioners' proposed bill was to relieve the Congress of the constantly recurring necessity of amending 20 acts of Congress governing the licensing of more than that number of occupations, professions, businesses , trades and callings

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(including the practice of optometry), by vesting in the Commissioners authority by regulation to revise and modernize these statutes. If the Commissioners' proposed bill should be enacted, it would be possible for them to establish higher standards in the practice of optometry, to the extent such action is indicated, and to take similar action with respect to the standards applicable to the other occupations, professions, businesses, trades and callings specified in the Commissioners' proposed bill, without the necessity for continual requests to the Congress respecting amendments to these various statutes. The Commissioners accordingly urge the enactment of their proposed District of Columbia Licensing Procedures Act.

However, in connection with the consideration by the committee of the desirability of enacting any of the subject bills amending the act relating to the practice of optometry, the Commissioners submit these comments respecting the merits of the various provisions of the bills.

The first section of each of the bills replaces the act with an act comprised of 15 sections. References in this report to a “proposed section" mean 1 of such 15 substitute sections.

The proposed section 1 gives the act the title "District of Columbia Optometry Act.'

The proposed section 2 declares optometry to be a profession; states its practice affects the public health, welfare, and safety, thus requiring regulation; and declares that the practice of optometry should be limited to qualified persons, admitted to practice under provisions of the bills.

The proposed section 3 contains definitions, including the following:

“(2) 'practice of optometry' means any one, any combination, or all of the following acts or practices: the employment of any objective or subjective means for the examination of the human eye, including its associated structures; the measurement of the powers or range of human vision; the determination of the accommodative and refractive powers of the human eye; the determination of the scope of the functions of the human eye in general; the prescription, adaptation, use or furnishing of lenses, prisms, or frames for the aid thereof; the prescribing, directing the use of, or administering vision training or orthoptics, and the use of any optical device in connection therewith; the prescribing of contact lenses for, or the fitting or adaptation of contact lenses to the human eye; and the identification of any departure from the normal condition or function of the human eye, including its associated structures; * * * "

Section 1 of the present act provides:

"The practice of optometry is defined to be the application of optical principles through technical methods and devices in the examination of the human eye for the purpose of determining visual defects, and the adaptation of lenses for the aid and relief thereof."

A reading of the substitute definition indicates a much broader scope than under the present act. The Commissioners believe that this proposed definition is too comprehensive and intrudes not only on the practice of medicine, but on long recognized functions of opticians and other persons, including officers and employees of the District of Columbia. The Commissioners understand that there will be offered to your committee expert medical testimony on this aspect of the bills.

The Commissioners recommend that if the committee accepts the broader definition of the practice of optometry, as contained in the bills, that at least simple visual screening procedures conducted by District teachers, school nurses, and others for the purpose of detecting eye trouble in children and adults be excepted from the definition "practice of optometry.”

The proposed section 4 sets out qualifications for licensure, requiring that applicants be 21 years of age or older; be of good moral character; mentally competent; possess the education equivalent to a high school education; complete a 2-year college preoptometric course; complete a 4-year course in a school or college of optometry; pass the examination; and pay all required fees.

Section 12 of the present act, in addition to setting a 21-year-age minimum and requiring good moral character of applicants for examination, authorizes the Commissioners to alter, amend, and otherwise change the educational standards at any time, provided they are not lowered.

The proposed section 5 provides for reciprocity with the States. However, there are requirements that an applicant for license by reciprocity must have practiced for at least 5 of the last 7 years and must practice in the District within 1 year of receiving the license by reciprocity. It occurs to the Commissioners that these provisions might work a hardship on a qualified optometrist who before or after seeking license by reciprocity was unable to practice because of injury, illness, military service, or other good cause.

The proposed section 6 provides for annual renewal of licenses.

The proposed section 7(a) sets forth some 19 causes for which the Commissioners are authorized to refuse to issue, renew, or restore a license or to suspend or revoke a license. At least one of these is vague and indefinite; i.e., “(19) any other unprofessional conduct.” Others of these are questionable with respect to their definiteness or reasonableness, such as the following:

“(8) advertising directly or indirectly the performance of optometric service or any part thereof, including the furnishing of ophthalmic or optical material, in any form, manner, or way, or through any medium whether it be printed, audible, visible, electronic, or in any other fashion, except as authorized by regulations issued under section 10 of this Act;

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"(15) holding himself forth by any means or manner of possessing professional superiority or the ability to perform professional services in a superior manner;

"(17) practice optometry in any retail, mercantile, or commercial store, office, or premises, not exclusively devoted to the practice of optometry or other health care professions;

“(18) except as provided in section 9, the practicing of optometry as an employee of and pursuant to any written or oral arrangement with any person other than a duly-licensed optometrist; * * *"

With respect to causes for suspension or revocation related to advertising, practicing under a name other than the licensee's own name, practice in stores, display of eyeglasses, and the like, the Commissioners wish to bring to the attention of the committee the decision of the United States Court of Appeals for the District of Columbia in the leading District case of Silver v. Lansburgh & Bro. et al, 72 App. D.C. 77, 111 F. 2d 518 (1940). In this case, involving the practice of optometry in commercial premises by persons affiliated with a corporation, the court said:

“Appellants are licensed and registered optometrists. They brought this suit in behalf of themselves and others similarly situated against appellees, Lansburgh & Bro., a corporation conducting a large department store in Washington City, and Buhl Optical Co., a District corporation organized to operate and own optical and optometrical stores, to restrain them from directly or indirectly engaging in the practice of optometry in the District of Columbia. The right to bring the suit is not challenged. Cf. Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419, 423, and cases cited there.

“Appellants, in the main, base their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a corporation or nonoptometrist. * * *

"The [trial] court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part of medicine. The court was, therefore, of opinion that neither defendant is engaged in the practice of optometry contrary to the statute. In the recent case of United States v. American Medical Association ((decided March 4, 1940), [72] App. D.C. (12), 110 F. 2d 703), we pointed out that the practice of medicine in the District of Columbia is suject to licensing and regulation, and we stated that, in our opinion, it might not lawfully be subjected to commercialization and exploitation. We cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs licensed physicians to treat patients, itself receives the fee, and the profit object is its main purpose, the arrangement being such as to divide the physician's loyalty and destroy the well recognized confidential relation of doctor and patient. This brings us, then, to consider whether this rule applies to the practice of optometry. [Bracketed language added.) "* * * Many States have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the cases, and are of opinion the best considered adopt the view that optometry is not 'one of the learned professions'.

"Optometry is said by a well-known writer on the subject not to be a part of medicine, 'either by inheritance, basic principles, development or practice. It is 'an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye.' Arrington's History of Optometry, p. 24 (1929).

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"* * * There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though universally all are deemed professions.

"We find nothing in the statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. That purpose may be fully accomplished, though the person rendering the service is employed by a corporation.

“We think the lower court was correct in denying injunctive relief, and the decree is, therefore, affirmed with costs.”

In the light of the foregoing, the Commissioners believe that some of the causes for the suspension or revocation of a license, or for which they may refuse to issue, renew, or restore any such license, are not in the best interests of the public.

The proposed section 7(b) sets out procedures for suspension or revocation, while the proposed section 7(c) provides for reinstatement after a year of revocation of a license.

The proposed section 8(a) specifies 10 unlawful practices, including practice without a license; practice under a name which is not the licensee's; fraud in obtaining a diploma, license, or record; holding oneself out to be an optometrist; practice during suspension or revocation; selling glasses or frames without a written prescription from a physician or optometrist licensed in the District of Columbia; advertising the cost of any optometric or ophthalmic material; offering inducements to obtain patronage; splitting prescription fees; hiring an optometrist on salary; displaying a sign offering ophthalmic materials for sale in violation of the regulations adopted by the Commissioners; and not displaying in one's office his license to practice optometry.

With respect to the prohibitions relating to advertising by optometrists, and the hiring of an optometrist by anyone other than another optometrist, the Commissioners are of the view that prohibitions of this nature do not serve the best interests of the general public, and accordingly they recommend their deletion from the bills.

In addition, the Commissioners question the advisability of the provision which prohibits the filling of a prescription for eyeglasses written by a physician or optometrist not licensed in the District of Columbia. This provision might work a hardship on many visitors to the District each year who may break or lose their eyeglasses while here and who would be precluded from having the prescription of their own physician or optometrist filled while they are in the District of Columbia.

The proposed section 8(b) declares violations of the section to be misdemeanors, with a first offense fine of not more than $500, and for second or subsequent offenses, not less than $500 nor more than $1,000, or by imprisonment in the District jail for not less than 3 months nor more than 1 year, or both.

The Commissioners note that these penalty provisions are a restatement of those contained in section 2 of the act. However, if penalty provisions are to be provided in a new section, the Commissioners recommend that the minimum fine or imprisonment provision be omitted as an unreasonable restriction on the discretion of the sentencing judge. Also, an alternative jail sentence to the first offense fine should be provided. Further, the Commissioners believe the bill should not restrict the place of incarceration to the District jail.

The proposed section 9(a) provides that the bill shall not apply to (1) a student of optometry in the clinic rooms of an approved school of optometry; (2) an officer of the armed services in the performance of his military duties; or (3) an individual licensed in another jurisdiction who is in the District to make certain clinical demonstrations.

The proposed section 9(b) exempts from the provisions of the bill physicians and surgeons, while 9(c) exempts those persons filling prescriptions of physicians, surgeons, or optometrists. Such persons are specifically not authorized by this section to fit contact lenses. In this connection, the Corporation Counsel, by opinion dated October 8, 1946, has construed the present Optometry Act as prohibiting the fitting of contact lenses by anyone but an optometrist or ophthalmologist.

The proposed section 9(d) states that the bill shall not be deemed to prevent such activities as (1) an optometric clinic; (2) an optometrist working for a clinic, hospital, the government, an employer solely for the benefit of his employees, and the like; (3) a widow or widower continuing the practice through a hired optometrist for not more than 1 year; (4) a wife or husband utilizing the services of another optometrist to continue the practice of a temporarily mentally incapacitated optometrist; or (5) a husband or wife utilizing the services of another optometrist to continue the practice of a permanently mentally incapacitated optometrist for a period not exceeding 1 year.

The proposed subsection 9(e) permits the use of the title “doctor" by optometrists, with a qualification indicating he is an optometrist.

The proposed section 10(a) directs the Commissioners to prescribe regulations to implement the bill, including the number, size, location, and illumination of signs offering optometric services or the sale of ophthalmic materials.

The proposed section 10(b) authorizes the Commissioners to set such fees and charges as may be necessary to defray the cost of administering the bill.

The proposed section 10(c) directs the Commissioners to adopt a seal for the authentication of records and papers relating to the licensing and regulation of optometrists.

The proposed section 11 authorizes the Commissioners in their administration of the bill to make inspections, studies, and investigations, to require furnishing of information under oath, and to subpena documents.

The proposed section 12 authorizes the Commissioners to seek injunctions against violations of the bill.

The proposed section 13(a) provides for the prosecution of violations, while the proposed section 13(b) declares that only a single prohibited act may constitute a violation, rather than a general course of conduct.

The proposed section 13(c) declares that testimony of an optometrist shall be received at any trial or hearing in the courts of the District as qualified expert evidence, and certificates of optometrists are to be accepted by courts and by District government officers and employees as qualified evidence in respect to the practice of optometry. The Commissioners question the advisability of affording to optometrists, by legislation, the status of expert witnesses in court proceedings, a status which, in the case of all other occupations and professions, must be established by competent evidence, qualifying a witness as an expert.

The proposed section 14 prohibits officers and employees of the District government from "depriv(ing) any person of his freedom of choice of practitioner with respect to his visual problems.' This provision of the bill is intended to prevent school nurses from advising the parents of children with eye problems to seek medical treatment for them. The Commissioners strongly oppose a statutory provision which prohibits any person, including District personnel, from advising anyone to seek medical care.

The proposed section 15 in H.R. 12937 and H.R. 13155 (15(1) in H.R. 13049 and H.R. 13176) authorizes the Commissioners to delegate their functions under the bill to the board of optometry or to any other agency of the District Government.

Section 2 of H.R. 12937 and H.R. 13155 (incorrectly designated as a proposed section 15(2) in H.R. 13049 and H.R. 13176) continues existing licenses in effect.

Section 3 of H.R. 12937 and H.R. 13155 (incorrectly designated as a proposed section 15(3) in H.R. 13049 and H.R. 13176) amends section 11-74 of the District of Columbia Code, relating to the exclusive jurisdiction of the District of Columbia Court of Appeals to review the orders and decisions of certain administrative agencies of the District, so as to extend its jurisdiction to the review of optometry license cases.

Section 4 of H.R. 12937 and H.R. 13155 (incorrectly designated as a proposed section 15(4) in H.R. 13049 and H.R. 13176) makes the legislation effective on the 90th day after the date of its enactment.

The Commissioners have discussed the merits of the bills with respresentatives of the Guild of Prescription Opticians and with respresentatives of the Medical Society of the District of Columbia. Both groups, for reasons which appear sound to the Commissioners, expressed the strongest opposition to the enactment of any of the bills.

In the above analysis, the Commissioners have indicated their concern respecting provisions of the bills which they anticipate will have an adverse effect on the

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