on this Subcommittee voted in favor of that bill which is designed to afford more equitable representation to the large Negro population of the District. That in turn we presume will tend to alleviate some of the complaints of this segment of the population. H.R. 1283 is inconsistent with that bill to the extent that it will drive up the cost of optical care for this very population and will tend to heighten their economic disadvantage, instead of relieving it.

VETO MEMO 274, MAY 2, 1967

This bill would prohibit a corporation or other retail firm or store from employing a licensed optometrist to provide optometric services to persons other than fellow employees. The bill would also prohibit an optometrist from establishing a practice in association with other licensed medical practitioners. It appears to require a prescription for optical instruments that have no necessary relationship to the correction of any visual defect or deformity, such as binoculars, microscopes and telescopes. It appears to make it illegal for an optometrist to open an office in any commercial office building or shopping center, since under the provisions of the bill such a building is a "place" where occupations unrelated to the practice of optometry are carried on. "It attempts to permit those now employed by a corporation or other firm to continue this employment, but in another subdivision of the bill, it makes it a misdemeanor to provide such employment."

Moreover, the Insurance Department urging disapproval of this bill, has written to me as follows:

"*** the Department is concerned with the bill since it could prevent union welfare funds and health centers regulated by III-a of the Insurance Law from employing the services of optometrists, and hinder the right to choose optometric vendors, thereby increasing the cost of optometric services, with no foreseeable benefits to members. In addition, ensurers who cover the cost of optometric materials would be faced with increased costs which would have to be ultimately reflected in the rates with no increase in the quality of services for the foreseeable future.

"The Department favors the highest quality optometric care, but this legislation will not accomplish such result. The bill is penal in nature and violation of its vague provisions is a misdemeanor. Because of its defects and ineffectiveness, we urge that it be vetoed."

Also recommending disapproval of this bill are the Department of Commerce, the New York State AFL-CIO, Association of the Bar of the City of New York, and the National Association of Optometrists and Opticians, among numerous others.

The bill is disapproved.

By NELSON A. ROCKEFELLER.

Mr. WEINMANN. First, may I express my appreciation for the fact that you have rearranged this schedule for our convenience.

My name is Richard A. Weinmann. I am a partner in the law firm of Sipser, Weinstock & Weinmann, 50 Broad Street, New York City, counsel for the past 25 years to the United Optical Workers Union Local 408, International Union of Electrical Workers, AFL-CIO, located at 150 Fifth Avenue, New York City. We are also counsel to many pension and welfare funds. I am here today to testify in opposition to H.R. 1283 on behalf of the Optical Council of the International Union of Electrical Workers, AFL-CIO, the National Optical Workers Conference, and the United Optical Workers Union Local 408, Retail, Wholesale and Department Store Union, Flat Glass Workers International Union, United Automobile Workers Union, Building Service Employees International Union, Laborers International Union, all affiliated with the AFL-CIO.

With me, among others is Henry McKinnell, who is sitting on your right, and whose name is incorrectly spelled in our formal statement. It should be M-c K-i-n-n-e-1-1.

He is administrative assistant of the International Union of Electrical Workers.

Sitting to my right and your left is John Golia, Business Representative for Local 408, and also a member of the Advisory Board for Vocational and Extension Education of the New York City Board of Education and of the Advisory Committee on Ophthalmic Dispensing of the New York City Community College.

Now, our analysis of H.R. 1283, confirmed by what we heard here yesterday, is that it is a bill inspired by the American Optometric Association heavily weighted in favor of what we call salon entrepreneur optometrists and against all others, including the public, ophthalmologists, opticians, employed optometrists, corporations and other employers of optometrists and opticians, and the unions which represent such employees, their pension and welfare funds and employers who contribute to such funds.

The main thrust of the bill is to outlaw the employment of licensed optometrist by firms and corporations and thereby to corner the eyeglass market for the optometrist.

In other words, this bill could be well called the "Great Eyeglass Swindle of 1967" on the part of the AOA, of course, and despite all the comments yesterday about behavior of employed licensed optometrists and the length of time it takes them to perform an examination, we know that the salon optometrists will be giving even quicker examinations if they pick up all the volume dropped by the corporate employers.

We believe that the AOA, which should be concerned with clear vision, is taking a very myopic view of the needs of the public for low cost eye care.

An optometrist is a hybrid which grew up in our national life, combining professional and merchandising characteristics with the accent heavily on the merchandising side. He makes his living selling eyeglasses. If we were to suggest to salon optometrists they could be accorded real professional status provided they abandoned the sale of eyeglasses, they would immediately withdraw their sponsorship and support of H.R. 1283 and run for cover. Their raison d'etre is precisely the sale of eyeglasses, euphemistically referred to as "dispensing" in the optical field. All the high sounding phrases in Dr. Chapman's statement yesterday to the contrary notwithstanding, 75 per cent of all the monies earned by optometrists in this country is earned from the sale of eyeglasses.

Optometrists studiously avoided involvement in the Hart Bill hearings before the United States Senate S. 260. In fact, the American Optometric Journal itself warned its members of what it termed "inherent dangers" in this bill. The Hart Bill, as you may know, would prohibit practitioners as defined therein from the sale of drugs or eyeglasses. H.R. 1283 and all its sister bills are the reverse of the Hart Bill. H.R. 1283 would professionalize the optometrist while then at the same time authorizing him to sell eyeglasses. We agree with the ethical premise of the Hart Bill.

If there is a problem with regard to the quality of an eye examination, it should not be difficult to fairly set minimum criteria for such examination, whether given by a salon optometrist or an employed optometrist. In fact, I think this is a point that was made by the Washington Publishers Association at the hearings last year and to that we say "Amen."

This could end the claim once and for all that examinations by licensed employed optometrists are inadequate in any way.

With the above in mind, we can proceed to analyze H.R. 1283 to see if it accords with the public interest. The guts of the bill are found on page 9, lines 7 through 12 (Section 7(a) subdivisions 17 and 18); on page 10, lines 14 through 18 (Section 8(a) (2)); and page 12, lines 12 through 16 (Section 8(a) (8)). These provisions would prohibit the practice of optometry anywhere except in a salon or office, would prohibit an optometrist from acting as such as an employee, and would prohibit the practice of optometry by a company, association or corporation or by anyone else, even by an ophthalmologist, except, interestingly enough, by another individual optometrist.

What would be the result of the passage of this bill? It would result in the elimination of low-cost optical care to many thousands of people of modest income in the District of Columbia, precisely those who need it most, because salon optometrists charge fancy prices. It would also greatly reduce the number of trained individuals in the optical field who could provide eye care.

Further, it would result in layoffs and the creation of a block of unemployed optometrists, opticians and other employees of corporations and other employers and would force trained employed licensed optometrists to leave the field and to give up valuable rights as employees.

Moreover, it would drive the cost of eyeglasses and eye care up to new heights without any corresponding benefit to the public.

It should be noted that it has never been demonstrated anywhere that the public has suffered as a result of eye care administered by employed optometrists, despite Dr. Chapman's malarkey to the contrary. This question, in fact, was litigated in the State of New York and the Court of Appeals there found:

"*** although the corporate employment of optometrists has existed for over half a century in this state, no instance has been cited where such employment caused injury to the public." (People v. Sterling Optical Co. Inc., 11 NY 2d 970).

Our union is particularly concerned because the passage of the instant bill in the District of Columbia is intended as a forerunner for all fifty states. It corresponds with simultaneous efforts in other states to enact similar legislation. This would be one of the first and not one of the last, as has been implied. Such legislation, for example, was passed in the final moments of the New York State Legislature this year. That was Senate Bill 3335-A by Senator Gordon, and was vetoed by Governor Rockefeller. A similar bill was vetoed previously by the then Governor Harriman. So it doesn't matter whether we have a Republican or Democratic Governor, on final consideration the bill was vetoed in both cases.

We note the provisions of Section 8, H.R. 1283, would continue to apply to dispensing opticians so they could not, pursuant to page 12, 8(a) (9), exceed the stringent regulations regarding advertising of eve glasses and could not, as set forth on page 11, lines 17 to 24, Section 8 (a) (5), advertise the price to the public.

In this case he seeks to undermine the opticians and discloses the dichotomy of his position. That is, to at the same time establish himself as a member of a so-called learned profession and as a businessman cornering the market. There is no more reason to preclude an optician

from advertising than to preclude a druggist from advertising. They both fill prescriptions. For the above reasons we must dissent from any description of the practice of optometry in the bill as a profession, if it is intended to be likened to a learned profession such as medicine. Such references appear at page 1, line 9, Section 2; page 2, line 5, Section 2; pages 8-9, lines 20 to 24 and to 3, Section 7(a) (14) and (15) where the reference to professional is subtly taken for granted.

Dr. Chapman testified that all the states consider optometry a profession. That may be true in a sense, but the term is used very loosely in this connection. In many instances it was so described years ago at a time when the courts were upholding the state's rights to license optometrists possibly over the objection of some of the optometrists at the time.

But at the same time, corporations are permitted to practice optometry in the very states which describe optometry as a profession, such as in New York, for example. New York describes optometry as a profession, but it also permits corporations to practice optometry, showing the importance they attach to the term "profession."

Baseball playing is a profession; prize-fighting is a profession. By the same loose definition they are all licensed professionals and are doing very well. What is the test of a true profession?

Under the common law there were only three learned professions: divinity, the law and medicine, and testing whether there is a product for sale, whether there is a higher ethic in the marketplace, we say that so long as opticians sell eyeglasses optometry cannot be a true profession.

We note in this respect that two predecessors of H.R. 1283 which I think were introduced at the same time earlier this year, namely, H.R. 595 and H.R. 732, declared optometry a profession by fiat. They just said "We declare optometry to be a profession."

H.R. 1283 avoids getting into an argument about this by simply assuming optometry is a profession, but a rose by any other name is still a rose and so long as optometrists sell eyeglasses and earn 75 per cent of their income from such sales, optometry cannot be considered a profession.

Based on the above, one must conclude that this myopic bill should not be passed for the following reasons:

It will eliminate low-cost eye care for the general public and especially for those who need it most, the Negro or the working population of the District of Columbia, without any corresponding benefit. It will reduce the number of competent persons available to provide eye care. It will drive all the optometric firms and corporations together with all their employees of all descriptions thereby creating unemployment and undermining the economic health of the District of Columbia.

Next, it will deprive employees of economic security, the right to union benefits and pensions, some of which are vested rights and in general the right to work, and will force them to leave the industry despite their training and license, all without due process, without a grandfather clause.

And next, the Congressional approval will be placed on a bad bill intended to serve as a model in all fifty states by the real sponsor and sole beneficiary, the American Optometric Association.

We know from our experience in New York with a similar measure that H.R. 1283 is what we call a corporate practice bill primarily

designed to eliminate corporate employers of optometrists as examiners. This is the heart of the matter. Leave that provision in and all the other provisions objected to by ophthalmologists, osteopaths, opticians and others would gladly be deleted or amended by AOA. I think Dr. Chapman indicated that in his testimony yesterday. A lot of things amended were satisfactory to him.

On the other hand, make illegal the right of optometrists to sell eyeglasses and H.R. 1283 will be quickly abandoned by AOA. We call upon the subcommittee not to lend itself to this scheme to enrich optometrists who sell eyeglasses at the expense of the rest of the population of the District of Columbia by elevating this inherently quasi-professional group to artificial professional status while it continues to sell eyeglasses in the marketplace which it claims to abhor. We urge the restriction of H.R. 1283 as a myopic bill for the lowincome consumer, government employees and the public in general, so long as it contains its main provision of outlawing the employment of licensed optometrists by corporations and firms. We support efforts to modernize the optometry law in the District of Columbia. However, this bill and all of its sister bills create far greater problems than they solve and I thank you for your attention.

Mr. SISK. Thank you, sir, for your statement.

The gentleman from North Carolina?

The gentleman from New York?

Mr. HORTON. Mr. Weinmann, I note that you do have enclosed a copy of the memorandum veto of Governor Rockefeller of the bill that was apparently passed by the Senate and Assembly in the State of New York. Do you have a copy of that bill?

Mr. WEINMANN. I will be happy to make it available to the subcommittee for study.

Mr. HORTON. I would like to determine if the language in that bill is similar to the provisions in H.R. 12276. I note in the Governor's Message he made some reference to the provision of that bill which would make it illegal to open an office in a commercial office building or shopping center. If there is similar language in this-the gentleman from North Carolina yesterday was asking about that, on page 9, lines 4 and 5, which are prohibitions. Also line 7. The authority of the commission is to refuse and suspend a license where the practice of optometry is in any retail or commercial store.

Mr. WEINMANN. Congressman Horton, you are absolutely correct and S. 3335-a did contain precisely the same language or similar language in connection with a prohibition in retail stores.

I might add that the guts of both bills is still the prohibition of employment of optometrists by corporations and firms. This is the guts of both bills and I think that is readily perceptible and I would be very happy to make a copy of S. 3335-A available to this subcommittee.

Mr. HORTON. We do have a copy of that, Mr. Chairman, and I wonder if we could make this copy part of the record.

Mr. SISK. I would like to have a copy of it for the record.

Mr. HORTON. We do have one here.

Mr. SISK. Without objection, a copy of the New York Bill, S. 3335-A, and veto memorandum thereon, will be made a part of the record. (The documents referred to follow :)