Mr. Dowdy. I don't know of any questions we might have. We appreciate the way you have presented your statement. I have known you for a long time, and I knew you would not take too long on this matter, if you had seen what has confronted us here.

There are lots of weaknesses in the present law. We appreciate your brevity and appreciate your being with us. It is good to see you again.

Mr. ANGLEA. Thank you, Mr. Chairman.

(The prepared statement of H. Sanders Anglea, Esq., follows:)

STATEMENT OF H. SANDERS ANGLEA, ESQ., NASHVILLE, TENN., GENERAL COUNSEL, TENNESSEE STATE OPTOMETRIC ASSOCIATION

Mr. Chairman and members of the committee, the Tennessee State Optometric Association has sent me here to speak in behalf of the proposed amendments to the District of Columbia optometry law, at the request of the American Optometric Association and our fellow affiliate association, the Optometric Society of the District of Columbia.

All Tennessee optometrists were informed by our newsletter last week that this bill had been introduced by Congressman Sisk, and that this hearing was scheduled. The association's leaders support the bill, and it is very likely that the entire association's position will be reflected by resolution adopted at the 65th annual session, May 1 to 4, at Nashville.

One provision in Tennessee law has for years been a source of grave concern to the association and the profession. It states: "Nothing in this chapter shall be construed✶✶✶ to prevent any person who is licensed to practice optometry in Tennessee from renting space in a store or business establishment and conducting his independent business there."

This section is, in my opinion, wholly at odds with all other regulatory statutes governing the provision of health care for the citizens of our State. Optometry is not a business. It is a profession. The existence of this section has, by ruse, device, and arrangement, allowed the corporate practice of optometry, which is specifically prohibited elsewhere in the act.

Corporate practice as it now exists in Tennessee misleads the average citizen in respect to optometry and vision care. For instance, in Memphis, Tenn., two of the large stores involved are membership stores, and their customers are limited to government employees and their families. They are generally known as discount stores, yet their customers can obtain the services of optometry there. These customers have no way of determining whether they are receiving professional attention or just being sold a pair of glasses.

Years ago medicine and dentistry were able to clean up blatant, unethical, and commercial-type practices. We believe it is time for optometry to reach that level of attention.

I have suggested possible procedures to our association. The profession's course of action will be decided at the forthcoming Nashville meeting.

Optometry's problem in Tennessee is less than what I understand is the situa tion in the District of Columbia. Only a few of Tennessee's 335 licensed optome trists practice in commercial locations.

Not only is price advertising not allowed, but no advertising at all by any health care group in Tennessee. Cards, stationery, office signs, directory listings, and announcements are all covered by law and board regulations.

A 1947 act created the State board for licensing the healing arts, and it has superior jurisdiction over the State boards for medicine, dentistry, optometry, osteopathy, chiropractic, and dispensing opticians.

A statute enacted in 1955 created a State board of dispensing opticians. The opticians were licensed and brought under the healing arts board, though specifically were not classified as a profession. There are no optical stores in TenProfessional vision care is provided by duly licensed physicians and optometrists. The provision of these services now appears to be in a generally salutary state, except for optometry's commercial blot.

nessee.

Optometry in 1955 opposed the licensing of the dispensing opticians, but an incident which developed last year has brought some change in this position. Our doctors arriving in Chattanooga from throughout the State for the optometric association convention May 16-18, 1965, were greeted with billboard signs, radio commercials, and, later, television and newspaper advertisements about the opening for business of the EYEar Corp. The firm styled itself as

"merchant opticians," "any doctor's Rx honored," etc., and advertised prices for eyeglasses and contact lenses.

Medicine and optometry were greatly disturbed by this development, as well as opticianry. Counsel for the board of dispensing opticians decided this was the first challenge of the 1955 statute. In July the State attorney general and the dispensing opticians board brought suit before Chancellor Ray L. Brock, Jr. After a 5-hour hearing on September 10, the chancellor permanently enjoined the firm from violating the Dispensing Opticians Act. The decision was appealed to the Tennessee Supreme Court.

With the view that, in your consideration of the legislation proposed here, you may benefit from the latest of judiciary action where the application of laws regulating health care is involved, and of the judiciary's great relaince on the respect for the legislative branch in its enactment of such statutes, I want to bring to your attention certain portions of the opinion announced by the Tennessee Supreme Court on March 9, 1966.

The court affirmed the chancellor's ruling in its entirety. court, Chief Justice Hamilton S. Burnett stated:

Writing for the

"It certainly was the purpose of the legislature in passing this act to require trained and licensed individuals to do these things so as to protect in every way the eyes of the individual. The legislature clearly felt, and it was their intention, in enacting this act that such an act had a direct and real connection with the health and welfare of the general public, and the purpose of the act was to protect such health and welfare. ***

"We next come to the constitutionality of the Dispensing Opticians Act. It is argued that this statute might deny some citizens their inherent right to earn a livelihood in a private field of work, thus depriving them of a valuable property right without due process of law under the Tennessee constitution, article I, section 8; article II, section 8; and under amendment 14 of the U.S. Constitution. The argument along this line is that being a dispensing optician is not a profession, and such opticians are not and cannot be truly subject to the provisions of the Healing Arts Act, T.C.A. S. 63-102, and other similar acts which cover basic sciences, such as dentists, nurses, etc. In other words, it is argued that the Dispensing Opticians Act shows absolute inconsistency and cannot be harmonized with those other acts for obvious reasons that these acts do not undertake to 'diagnose, treat, operate on,' etc., and it is said that the dispensing optician is not a profession because there is no school for it or course of study and things of the kind to make it a profession.

"It seems to us that the act in question represents a valid regulation by the general assembly of this State of a business or calling affecting the public interest and having a direct relationship to public health and welfare, and, when the legislature thus elects to pass an act for this purpose to regulate the practice of dispensing opticians, it is clearly a reasonable and salutary act. The sections of our constitution and of the U.S. Constitution that are relied upon are so closely alined that they are almost identical. The question under this contention is whether the legislature, under its police power, may constitutionally regulate the conduct of preparing lenses, etc., for the betterment of the eyes. When the legislature in its wisdom has seen fit to enact legislation of this type the courts have consistently felt that under our constitution and under the Federal Constitution this was a matter for the legislature and one that we as a court should not, unless the constitution is violated, encroach upon.

"Here the legislature has before it facts and things known to it and has enacted legislation that is apparently for the protection of the public safety, public health, or public morals. The court in its wisdom should not encroach upon this act or the right of the legislature. Our only purpose in such matters is to determine whether or not there is plausible reason for the enactment of such legislation. It is true that the court at all times reserves the right to pass upon the constitutionality of a statute, but in doing so we do not inquire into the policy of the legislature, that is, the factual background of why it acted as it did, if there is a plausible reason back of such legislation. See many cases cited and relied upon in State ex rel Loser v. National Optical Stores, 189 Tenn., 433, 225 S.W. 2d, 263. It is not at all unreasonable for us to believe that the legislature had the purpose in mind in enacting this legislation of the protection of the public health, to wit, the eyes of individuals. Having thus determined that the legislation is reasonable certainly under these sections of our constitution and that of the U.S. Constitution, the act is not unconstitutional.* * *

"By the enactment of this statute the general assembly has obviously found that persons who prepare, adapt, and dispense eyeglasses, spectacles, and the

63-977 0-66-11

like should be regulated and controlled by a license and that any method of advertisement which they use is not conducive to maintaining desirable standards and is a reason for revocation of the license. We agree with such a conclusion even though this conclusion of the legislature is not subject to judicial review. "It is shown in a footnote under T.C.A. S. 63-1401 that a number of States have adopted similar legislation to this act governing dispensing opticians. We have made some independent investigation of the statutes of some of these States and reported decisions thereon and find that without exception they have been upheld.* * *

"It is argued very forcibly that the chancellor erred in striking certain portions of the appellant's answer. Particularly, it is argued that the chancellor's action in striking *** portions dealing with the practice rules of the Federal Trade Commission are erroneous. We do not think so. Assuming that these portions of the answer should not have been stricken and the material contained therein proved, this would not in any way aid the Eyear Corp.'s case. It must be remembered that here the allegations concern the violation of this very salutary act for the benefit, help, and aid of the most, or at least one of the most valuable possessions any individual has, that is, his eyesight, and when it is shown, regardless of other acts, that things are being done by the individual which might, or do, injure them, clearly the chancellor acted correctly in striking these particular immaterial allegations to the point involved in this lawsuit, that is, the protection of the human eye.

***

"The argument and contention in regard to the practice rules of the Federal Trade Commission it seems to us are entirely immaterial and irrelevant to any issue involved in this proceeding which is the care of fixing material things to aid the vision. The Federal trade rules have to do with price fixing and the like and have nothing in the world to do with the questions here involved, consequently we see no possible error in the ruling of the chancellor on this question."

The Tennessee Supreme Court opinion, from which I have cited selected por tions, is surely a forceful and encompassing affirmation of the statute regulating dispensing opticians in our State.

I believe that when the need is evident to bring up to date, to revise, to amend the laws governing the profession of optometry in any State or here in the Nation's Capital, that the legislative bodies concerned should devote very serious and thoughtful consideration to changes proposed by responsible groups and individuals.

I will be glad to answer, or give my opinion on, any questions the committee may wish to ask me.

Mr. DowDY. Our next witness this morning will be Mr. Charles M. Babb, of Austin, Tex., representing the Texas Optometric Association.

STATEMENT OF CHARLES M. BABB, ESQ., APPEARING ON BEHALF OF THE TEXAS OPTOMETRIC ASSOCIATION

Mr. BABB. Mr. Chairman, with your permission, since these other people were testifying yesterday, I wonder if I might wait and let them proceed. I hate to interrupt their testimony, they are right in the midst of it, if that would be permissible?

Mr. DOWDY. As I understood, I had to leave here the other day, before the hearing was completed, and I will have to leave again because of another committee I am on. I am going to have to leave shortly, and if my information is correct, they were being interrogated, and the members who were interested in questioning them are not here at the present moment, but may resume their questioning when they get here.

However, I am not interested in pursuing interrogation, so, if you want, please proceed.

Mr. BABB. I will proceed, Mr. Chairman.

My name, for the record, is Charles M. Babb, of the State Bar of Texas, practicing attorney with offices at 505 International Life

Building, Austin, Tex., appearing here today, Mr. Chairman, on behalf of the Texas Optometric Association.

I would like to say that a substantial number of the members of our association, Mr. Chairman, are members of the Second District, and before I could get out of Texas, some of them contacted me and told me that they did not know what was in the District of Columbia Optometric Act, or the proposal, but they felt certain that if it had anything to do with raising standards of ethics and conduct, that you would be for it, and if it didn't have anything to do with it, or if it had anything to do with lowering them, I would do well to stay in Texas. So, on behalf of them as well as the other members of the association, it is a pleasure to be here, Mr. Chairman.

As Americans and optometrists, Texas members of this profession believe they have a legitimate interest in the standards of practice which prevail at the home of their Federal Government. In addition to their concern for the visual welfare of their fellow citizens who reside here, including the highest Federal officials, it is disheartening to them that in this great city the professional care of human vision reflects considerably less than the high standards of ethical conduct prevailing by law in the overwhelming majority of States.

Texas optometrists are hopeful that this proposed act will become law during the administration of President Lyndon B. Johnson, for it was through the active support and advocacy of his father, Hon. Sam E. Johnson, as a member of the House of Representatives of the 37th Texas Legislature, that Texas first recognized optometry as a profession and passed the original Texas Optometry Act in 1921. However, contrary to experience here in the District, the original Texas act has been strengthened and reinforced by amendment six times to meet the challenges of a rapidly changing profession. It has been further implemented by numerous rules and regulations of the Texas Optometry Board under a regulatory authority similar to that contained in the act now proposed for the District. Each such rule has been vigorously challenged by commercial optical interests, but the Texas Supreme Court has repeatedly held each rule valid, constitutional and directed toward safeguarding the visual health and welfare of Texas citizens. While Texas is still behind most other American jursidictions in achieving the highest ethical and professional standards in the practice of optometry, it is moving forward to carry out the direction of the Texas Legislature, and this is expressly in Texas law, Mr. Chairman, the legislature directed that optometrists be placed upon the same plane as the other learned professions of medicine, dentistry, and other high professions. The board is trying to carry that out.

This bill, or what all the argument or dispute is about, without at least a brief sketch of the development of optometry and its relationship to the optical products industry would seem senseless.

This strict provision of the bill, not only this bill but of optometry laws throughout the country, makes sense only when it is understood that this is Government's response to the forceful efforts of the optical products industry, whether that be commercial optometrists or wholesale products, to control the doctors and to interject the business part of this into the doctor-patient relationship.

Experience in this country and all States has demonstrated that antiquated optometry licensing laws are inadequate to maintain the professional freedom and independence of the practitioner, to assure

the efficacy of the optical prescription or safeguard the confidential relationship between doctor and patient. In the early 1920's when this District committee and many of the State licensing laws were first enacted, eyeglasses just were not a very popular item. Instead of being stylish, they were strictly functional appliances which the public sought to avoid if at all possible. Today, people wear glasses to be stylish or because they think it improves their appearance. Optometric science developed the contact lens so that now they can be worn with ease and comfort by most people. Eyeglasses, stylish frames, and contact lenses have become highly merchantable items and extremely attractive to commercial interests seeking to reap profits from millions of dollars in sales annually to an eyewear-conscious public.

However, as this market began to grow, the optical merchants had one big problem. Most people buy glasses on a prescription. Before there can be a prescription there must be, has to be, a doctor, either an optometrist or a physician, the only two health care practitioners licensed by law to practice optometry. In such a rapidly expanding market, the doctor became the fly in the optical ointment. The optical business world, sitting on top of an exploding market for lenses and frames, which they saw strictly as merchandise, was frustrated by doctors who wasted time with talks about professional ethics, adequate eye examinations, a duty to the patient, and refusal to solicit patients by advertising. What the commerically minded optical industry wanted was sales volume. To get it the doctor would have to prescribe more often, he would have to see more patients, so it became obvious to the people in charge of the optical industry that they were going in some way or other to have to deal with the doctors in this situation and deal with them they did and there began what has become known as the optical rebate or kickback.

At that time optometry had not become sufficiently prominent to deserve the attention of the optical industry, so they concentrated their financial arrangements on the medical doctors, whether he be oculist or opthalmologist.

The optical rebate or kickback system helped sales of glasses tremendously. With the average rebate amounting to almost 50 percent of the sales price, the oculists together suddenly discovered that more of their patients needed glasses. Also, the price of glasses went up. Under medical ethics the doctor would have been concerned that his patients not be robbed, but now the higher the price the greater the rebate.

Just before World War II, such practices came to the attention of the Justice Department, resulting in six antitrust suits brought against several of the largest American optical manufacturers and wholesalers and also naming as defendants 75 individual oculists, some of whom were ophthalmologists, as representative of some 3,000 oculists as a class throughout the United States. These are commonly known as the optical rebate cases. The Government's evidence revealed that the 75 named doctor defendants garnered some $783,000 from the defendant companies in rebates and kickbacks in a single It was never determined what the total take of all 3,000 year. doctor defendants amounted to but, assuming that on the average they fared equally well as the 75 named defendants, it would have amounted to more than $30 million a year out of the pocketbooks of the American public.