quality care, particularly since as was brought out, he knows that he is in fact held legally liable for every act of the person working under him.

This is quite a deterrent to carelessness in this matter.

Mr. SISK. I appreciate what you have said. I am inclined to agree with you. However, as to assistants working under supervision, you can understand where this can be broadly interpreted. We are seeking language that is clear, understandable, and yet will prevent someone who may be licensed to practice from sending assistants into remote areas to do things without any kind of supervision.

I would not call that supervision; I would call it direction on occasion. We seek to avoid that kind of a loophole, and at the same time permit a legitimate type of supervision and direction.

Dr. ALPER. In other fields. Cardiologists, a nurse will take an electrocardiogram and he reads this. A neurologist has a technician who does an electroencephalogram, and an X-ray does the same thing.

In glaucoma work we have technicians who take electric tonography. These are laboratories that are placed in our hospitals or offices. They read the results. Instruments do touch the eye in case of tonography. In the case of encephalography, instruments touch the scalp, skull. We doctors take responsibility for what our technicians who are trained do. This direct personal supervision means to me personally, I am not a lawyer or a semanticist, but this seems to imply a physical presence in the room when the technician or assistant who is adequately trained to do such acts performs adequately trained duties.

That is why we object to this particular terminology.

Mr. SISK. If I could say this: I am not personally interpreting this to mean that the supervisor, in this case the doctor, has actually to be in the room. I certainly would

Dr. ALPER. It says direct personal supervision.

Mr. SISK. That is why I believe this is language which the subcommittee will want to consider and change. That is why, as I said, I was seeking from you suggestions that you might have for us. You are in a position where you work with assistants and nurses. You know about the kind of direction and supervision you should maintain. We want to permit this but at the same time not leaving broad loopholes where we might have assistants out over the country without adequate supervision.

Mr. MAGEE. Mr. Sisk, the Medical Society on this very language did suggest changes in the bill. They changed every section and have given your committee their suggestions as to how they feel the section should read under which they can work and properly keep optometry out of the field of medicine. It is attached to the statement, Mr. Sisk.

Mr. SISK. I appreciate that. We had the language last year. Let me say that no one has a higher respect for the medical profession than I do. However, I do not always agree with some of their positions. Actually, today I think it is quite well recognized that optometry is a profession.

I happen to be on the Committee on Rules and recently the chairman of the Armed Services Committee came before us and was discussing professions in the health field. He mentioned the profession of optometry. I think today the optometrists are basically with you

folks. I feel to the extent that you recognize this fact and help to upgrade, let us say, allied or associated agencies of the profession; to that extent the public is certainly going to be served.

I often think how long it was in my own State of California that the medical profession looked down on osteopaths. Yet today they are practicing side by side in the same hospitals. We are not attempting to put optometrists into medicine. We are attempting to the extent optometrists have a responsibility in the visual care of our people, to see to it that they perform those functions and perform them to the best possible extent.

Gentlemen, thank you very much for your appearance here today. We appreciate your testimony and I assure you that the statements put in the record will be considered.

Mr. MAGEE. Mr. Sisk, may I make one statement for the record? In your prior bill, H.R. 12937, which is similar to H.R. 1283 submitted last year to organized medicine for their review, I don't know if you were aware of this. It was submitted to the House of Delegates of the American Medical Association last June. The House of Delegates voted that organized medicine should oppose his bill. It does put optometrists into the practice of medicine.

Mr. SISK. Let me say that having served on the Veterans' Affairs Committee for a good many years and on the Hospital Subcommittee, I recognize and I have great respect for the medical profession, but I feel we have to open our minds and pride up a little bit at a time. You know what I mean.

I appreciate your stand and I have very many fine friends in the medical profession. I recognize there are differences of opinion. We take these steps one at a time and we gain in the long run.

Mr. MAGEE. Mr. Chairman, I might say this matter has been given thorough review by the Department of Health, Education, and Welfare. You have quoted Dr. Lee. I think we should go to the Commissioner of Social Security, Mr. Robert M. Ball, who has carefully put the optometrists into the proper perspective. We say in the health field. I would like to submit their report regarding how optometrists should be used in the health-care field into this record as a next exhibit.

Mr. SISK. Without objection, the report will be made a part of the record.

(The report follows:)

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE COMMISSIONER, BALTIMORE, MARYLAND

REPORT REGARDING THE COVERAGE OF EYE CARE UNDER THE HEALTH INSURANCE PROGRAM

Background

Section 1862 (a) (7) of the law excludes from coverage routine physical checkups, eyeglasses, or eye examinations for the purpose of prescribing, fitting, or changing eyeglasses without regard to whether these services are furnished by a physician or by another practitioner. The term "physician" as defined for medicare purposes, includes a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which he performs such function or action. An ophthalmologist is a "physician" specializing in the diseases of the eye. Optometrists, however, are not included within the scope of the statutory definition of the term "physician," since they are not legally authorized to practice medicine and surgery.

Present policy

Since an ophthalmologist is a "physician," his medical services are covered in the same manner as the services of any other medical doctor. Likewise, the services he performs which come within the exclusions relating to routine physical examinations and examinations for the purpose of prescribing, fitting, or changing eyeglasses are not covered, just as they would not be covered if any other physician, furnishes eye care services to an eligible beneficiary, the program will cover the physician's services if the examination results in a pathological finding (other than refractive error) and/or treatment of an eye disease or injury. If no eye disease or injury is found, the physician's services rendered to the patient during that visit are excluded from coverage since the services would then come within the exclusions relating to routine physical checkups or examinations for the purpose of prescribing, fitting, or changing eyeglasses. Discussion

Various alternatives were explored in attempting to arrive at an equitable and administratively feasible policy with regard to the exclusions. After extensive consultation with professional associations representing ophthalmologists and optometrists, specialists in the public Health Service, and many insurance companies which presently administer similar provisions in their own health plans, consideration was narrowed down to essentially two basic approaches:

1. Separate the services furnished by an ophthalmologist during an examination of a patient into two component parts-(a) refractive-type services and (b) all other services relating to the diagnosis or treatment of an eye disease or injury. Exclude from coverage the refractive-type service performed by an ophthalmologist (or any other physician) during any given examination of a patient as services representing an "eye examination for the purpose of prescribing, fitting, or changing eyeglasses";

2. Treat all the services furnished during any given examination by the ophthalmologist (or any other physician) as covered or excluded in their entirety depending upon the findings made and/or treatment provided as a result of the examination. For example, when the physician finds no eye disease or injury, treat the entire examination as an excluded service since it will essentially represent either a "routine physical checkup" or eye examination for the purpose of prescribing, fitting, or changing eyeglasses." On the other hand, where a disease or injury of the eye is diagnosed, treat the entire examination by the physician as a covered service.

After careful and extended deliberation, the second approach was adopted. Among the more compelling considerations for adopting this approach are the following: Ophthalmologists have pointed out that, from a professional and practical point of view, there is no distinction made by the ophthalmologist in the type of services performed, that there are many situations where refractivetype services furnished by an ophthalmologist are an essential part of the diagnostic steps required in order to ascertain or confirm the presence of a pathological condition, that ophthalmologists have never treated any portion of their charges as relating specifically to a refraction, and that with respect to any given visit there is essentially no distinction made in charges regardless of whether or not a refraction is performed.

Another practical consideration for adopting the second approach was the experience of the health insurance industry with this type of exclusion. The great majority of the insurance companies and Blue Shield plans which we have contacted and which administer eye care provisions similar to those contained in the medicare law use essentially the second approach in their own programs. Moreover, since beneficiaries and physicians have had considerably more experience with this method under private insurance plans, it can be expected that by using the same approach under medicare, beneficiary and physician understanding of the policy would be enhanced.

One additional significant considertiaon for adopting the "all or nothing" approach is that this approach would not create a situation which would be inequitable to optometrists since there would be no incentive for a beneficiary to go to an ophthalmologist for services which are in reality for the purpose of prescribing, fitting. or changing eyeglasses.

An optometrist is not a "physician" under the medicare law nor are optometric services listed among the other health services covered by the medical insurance

program. Therefore, those services performed by independently practicing optometrists which are not included within the coverage provisions of the law or which are contained in the statutory exclusions are not reimbursable as covered expenses under the medical insurance program. Thus, optometrists' services performed in connection with prescribing, fitting, or changing eyeglasses are excluded from coverage. However, optometrists' services performed in connection with furnishing prosthetic lenses prescribed for the beneficiary by a physician are covered as are the prosthetic lenses themselves. (While eyeglasses are specifically excluded from coverage, a separate provision of the law covers prosthetic devices-other than dental-which replace all or part of an internal body organ. Thus, "eyeglasses" which replace an internal body organ (the lens of the eye), as for example after cataract surgery, are covered as prosthetic lenses.)

ROBERT M. BALL, Commissioner of Social Security.

Mr. SISK. We have to answer an automatic roll call.

Mr. McLeod, I understand that you have a witness who was desirous of leaving town tonight or in the morning.

Mr. MCLEOD. He has to be in New York Thursday.

Mr. SISK. Could he be here Friday?

Mr. MCLEOD. Yes, sir.

Mr. SISK. We will answer the roll call and come back and continue the hearing. This committee will take a temporary recess.

(Recess taken.)

AFTER RECESS

Mr. SISK. The committee will resume its hearing.

Just prior to our recessing, the Medical Society had completed its testimony. Mr. McLeod indicated that he has a man who needs to return to New York so at this time we will hear the witness of Sterling Optical Company.

STATEMENT OF WILLIAM N. McLEOD, REPRESENTING STERLING OPTICAL COMPANY, KAY JEWELRY STORES IN WASHINGTON, KINSMAN OPTICAL COMPANY AND VENT-AIR CONTACT LENS SPECIALISTS

Mr. MCLEOD. I am representing Sterling Optical Company, Kinsman Optical Company and Kay Jewelry Stores here in Washington, and Vent-Air Contact Lens Specialists. I have been working with Alvin M. Stein, General Counsel with Sterling Optical Company of New York. Mr. Stein will make the statement. I will let his statement stand for other people I represent, if that is satisfactory with you.

Mr. SISK. Without objection their statements will be made a part

of the record.

(The statements referred to follow :)

STATEMENT OF ALVIN M. STEIN, GENERAL COUNSEL, STERLING OPTICAL COMPANY

Mr. STEIN. My name is Alvin M. Stein, a member of the firm of Parker, Chapman and Flattau on 53rd and Fifth Avenue, New York, New York; New York attorneys, General Counsel to Sterling Optical Company, and I appear in opposition to the bill.

I have submitted to the committee a full statement, together with exhibits annexed, which opposes the bill in toto, and also a statement

which recommends suggested changes in the bill if the committee deems legislation desirable.

Mr. SISK. Your first statement will be made a part of the record. The balance of this material we may attempt to put in the file. It is rather voluminous. At any rate, it will be made a part of the committee's file and the direct statement will be made a part of the record. (The documents referred to follow :)

MEMORANDUM

This memorandum, submitted on behalf of the Sterling Optical Companies, is intended to accompany the annexed copy of HR 1283 marked to indicate sugguested deletions and changes, if further legislation is deemed necessary or appropriate and to briefly explain the basis for each such change or deletion. It remains the position of the Sterling Optical Companies (hereinafter referred to as "Sterling"), however, that no further legislation is needed. The underlying general policy objections to HR 1283 are more fully set forth in a separate memorandum simultaneously submitted herewith on behalf of Sterling.

Section 2: This section assumes that the practice of optometry is a profession. The United States District Court for the District of Columbia in Silver v. Lansburgh & Bro. et al, 27 F. Supp. 682, aff'd, 111 F. 2d 518 has clearly held to the contrary. For other reasons more particularly stated in the Sterling Statement, it is submitted that optometry should not by this or other proposed legislation be dealt with as, or assumed to be, a profession.

Section 3(2): This subsection would include within the definition of the practice of optometry acts or practices "as they are included in the curriculum of recognized schools and colleges of optometry." The statutory meaning of the term "practice of optometry" could therefore be changed without legislative approval merely by virtue of changes in school curricula. It is conceivable that the introduction of courses in the field of medicine could, as a result of this statutory language, be deemed to sanction the practice of medicine by optometrists notwithstanding the provisions of Section 9(f), which is merely a limitation upon the construction of the Act itself. Such a delegation of power is clearly inappropriate. Moreover, the term "recognized schools and colleges of optometry" is not otherwise defined and is not even limited to schools or colleges "approved" by the Commissioners in accordance with the provisions of Section 4 (6).

Section 3(2)(a): The vague and indenite language here used has no clear, certain or generally accepted meaning and could be deemed to authorize optometrists to engage in acts or practices constituting the practice of medicine, which optometrists are not qualified or trained to perform.

Section 3(a) (d): The words "in general" imply authority to make determinations not limited to the measurement of refractive errors, which by definition of the United States Department of Health, Education and Welfare is plainly the limit of optometric qualification.

Section 3 (a) (f): The acts and practices here referred to have been and are now both within the District of Columbia and elsewhere, normally performed by opticians and other optical workers rather than optometrists and ought therefore not be included in the statutory definition of the "practice of optometry". The inclusion of this subsection would, in effect, extend the scope of the bill to activities which do not require the training or skills of an optometrist, and are plainly of a business or commercial nature.

Section 3(2)(g): Although it is the optometrist's function to prescribe and direct or administer visual training or orthoptics, the use of optical devices in connection therewith has not heretofore been and should not now be confined to practitioners of optometry.

Section 3(2) (h): The fitting or adaptation of contact lenses in the District of Columbia and elsewhere is normally done by persons other than ophthalmologists or optometrists, but under their supervision. Accordingly, subject to such continued supervision. the fitting or adaptation of contact lenses ought not be confined to practitoners of optometry.

Section 3(2)(i): This subsection would appear to authorize optometrists to diagnose pathology of the eye and its appendages. Optometrists are clearly unqualified to engage in such activities, which manifestly constitute the practice of medicine.