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 area. 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 Í 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

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 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 say 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

ist. It seems very clear to me that what is sought here is not discrimination.

Mr. MAGEE. May I answer that, sir?

Mr. SISK. Surely.

Mr. MAGEE. Attached to my exhibit was a form which was involved. This was worked out by the State authorities and

Mr. SISK. What does the form suggest it be changed to?
Mr. MAGEE. This is the one they wanted changed.

Mr. SISK. Change it to what now?

Mr. MAGEE. Change it to eliminate, it says at the beginning:

The results of the routine vision screening at school show that your child may need an eye examination. We suggest that you discuss this with your family

physician and get his advice about an examination by an eye specialist. This is what they want out.

Mr. SISK. What did they suggest putting in?

Mr. MAGEE. They don't want the words "family physician," but words like "eye doctor," or "eye specialist," which they call themselves.

Mr. SISK. All right. Do the ophthalmologists deny they are eye doctors?

Mr. MAGEE. They are not eye doctors

Mr. SISK. What are they?

Mr. MAGEE. They are not doctors treating the eye.

Mr. HARSHA. He said ophthalmologists.

Mr. SISK. What do ophthalmologists refer to themselves as?
Mr. MAGEE. Oh, I beg your pardon. They are eye doctors.

Mr. SISK. That's right. In other words, refer them to someone who is qualified to care for the eye. This is the point of referring the child. I'm sorry, but I think you are trying again, as I suggested yesterday to Dr. Dryden, trying to drag some red herrings in, or twist and distort language. There is nothing in the words of that letter there that precludes sending of the child to an ophthalmologist, nothing that they suggest, no change of language that they suggest, as you have read it to us, that would preclude sending the child to them.

Mr. MAGEE. The whole tone of that letter, as I said, reads that way when you read it in connection with the Attorney General's opinion and in connection with the forms. It is to send this child to either, let's put it in the most favorable light, either to an optometrist or a doctor.

Now, the problem is this: the child has already had a visual test, and this is all the optometrist is going to find when she goes to the optometrist, may it please you, Mr. Chairman, and this calls for a pathological report, what caused this condition in the eyes.

I respectfully submit, sir, an optometrist cannot make that report. That is diagnosis, in the field of medicine, and for an optometrist to even ask for these reports I think is improper.

Mr. SISK. This is where you and I wholeheartedly disagree.
Mr. MAGEE. I disagree wholeheartedly in this field.

Mr. SISK. It is being practiced in most of the States of the Union, on a strictly nondiscriminatory basis; that is all that is requested, and that is all the change in language does all that was required under the Virginia law. I don't care if you twist it or distort it, that's all there is to it.

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Mr. MAGEE. I am not twisting or distorting anything. I read their letter.

Mr. SISK. I did, too.

Mr. MAGEE. I think the form is quite plain, and I think that they are asking to diagnose an eye condition, and I say they are not qualified to do it, sir. This is what the school doctor wants, a medical pathological report of the child's eye condition, not that he needs to be fitted with glasses, that isn't proper. They want to know medically what is wrong with the child.

Mr. SISK. I am as familiar with doctors' referrals as you are, Mr. Magee.

Mr. MAGEE. Yes, sir.

Mr. SISK. It is taking place by the thousands in my State and in my hometown. It is done as a regular thing. And a child may go to an optometrist, or may go to an ophthalmologist, but in either case they are practitioners of the art of eye care and checking the eyes. So this is all that is being requested here, under the letter you have read from the State of Virginia.

Mr. MAGEE. My position is, sir, that the letter asks for a field in which these gentlemen are not qualified to operate in, because they say this: "detection of ocular diseases." This is to be done by an optometrist, I think this is clearly the practice of medicine, sir.

Mr. HARSHA. Mr. Chairman, we can argue back and forth on the same point. I think we will have to weight the letter and each member decide for himself.

Mr. MAGEE. I have left the letter here so it won't be misinterpreted. Mr. SISK. Does the gentleman from North Carolina have any further questions?

Mr. WHITENER. Mr. Magee, I think in fairness to Mr. Kohn, who as general counsel represented the American Optometric Association here, that some of the questions that have been raised by you are ones that Mr. Kohn has agreed need to be rewritten.

Mr. MAGEE. I wasn't here when Mr. Kohn was. learned gentleman.

He is a very

Mr. WHITENER. I don't think we are going to have any argument between him and the bar association and you on the proposition of the qualifications of an expert witness.

Mr. MAGEE. A learned profession.

Mr. WHITENER. I think we can work out something about the agencies of the District government accepting the test of visual acuity, I believe was the term. Some of the things we are taking a lot of time with, I don't believe there is much difference of opinion about, since we have had an opportunity to look at the bill together here in the committee room.

I certainly appreciate your giving us the benefit of your views about it, and I know with the different skilled attorneys we have had and will have testifying, that some of these little legal nubs will be knocked off the bill, and we will straighten them out. Then the proposition you mention is one of philosophy, which makes it pretty difficult for you folks ever to find any area of agreement, and that will be our job to try and do that.

Mr. MAGEE. We appreciate the opportunity to be here. I might say that I have represented, I not only represent the Medical Society, I am general counsel for the American Psychiatric Association, the

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