FTC Staff Comment Before the Florida House of Representatives Committee on Regulatory Reform Concerning Sunset Review of Florida Optometry Act

COMMISSION
APPROVED_,...
~ .. --- .
TESTIMONY 	OF 	JUDITH 	WILLINGHAM 	SHI~!
BEFORE 	THE 	COMMITTEE 	ON 	REGULATORY 	RE?ORM
FLORIDA 	HOUSE 	OF 	REPRESENTATIVES
Apr il~, 	1986
Thank 	you, 	Mr. 	Chairman. 	It 	is 	a 	privilege 	to 	be 	here
today. 	This 	statement 	reflects 	the 	views 	of 	the 	Atlanta 	Regional
Office 	and 	the 	Bureaus 	of 	Consumer 	Protection, 	Economics 	and
Competition 	of 	the 	Federal 	Trade 	Commission, 	but 	does 	not
necessarily 	represent 	the 	views 	of 	the 	Federal 	Trade 	Commission
or 	any 	individual 	Commissioner. 	The 	Commission, 	however, 	has
reviewed 	our 	statement 	and 	voted 	to 	authorize 	us 	~o 	submit 	this
testimony.
The 	FTC 	staff 	is 	pleased 	to 	respond 	to 	your 	request 	for
assistance 	in 	your 	sunset 	review 	of 	the 	Florida 	Optometry 	Act.
Our 	interest 	in 	this 	legislation 	stems 	from 	the 	Commission's
mandate 	to 	enforce 	the 	antitrust 	and 	consumer 	protection 	laws 	of
the 	United 	States. 	Section 	5 	of 	the 	Federal 	Trade 	Commission 	Act
prohibits 	unfair 	methods 	of 	competition, 	and 	unfair 	or 	deceptive
acts 	or 	practices.
For 	several 	years, 	the 	Commission 	has 	been 	investigating 	the
effects 	of 	state-imposed 	restrictions 	on 	the 	business 	practices
of 	professionals, 	including 	optometrists. 	It 	has 	sought 	to
encourage 	the 	removal 	of 	restrictions 	that 	impede 	competition,
increase 	costs 	to 	consumers, 	and 	reduce 	consumer 	access 	to 	vision

· \
care, 	but 	that 	provide 	no 	countervailing 	benefits. 	In 	doing 	so,
the 	Commission 	promotes 	a 	policy 	of 	encouraging 	competition 	among
members 	of 	licensed 	professions 	to 	the 	maximum 	extent 	compatible
with 	other 	legitimate 	state 	and 	federal 	goals.
'In 	January 	of 	1985, 	the 	Commission 	issued 	a 	notice 	of
proposed 	rulemaking 	for 	a 	Trade 	Regulation 	Rule 	that 	would 	remove
certain 	state 	laws 	that 	restrict 	commercial 	practices. 	The
affected 	laws 	would 	include 	those 	banning 	branch 	offices,
commercial 	locations, 	the 	use 	of 	trade 	names, 	and 	associations
between 	optometrists 	and 	non-optometrists. 	In 	its 	notice, 	the
Commission 	stated 	that 	such 	restrictions 	appear 	to 	increase
prices 	but 	do 	not 	appear 	to 	protect 	the 	public 	health 	or
safety.l 	No 	final 	action 	has 	been 	taken 	on 	this 	matter, 	but 	the
premises 	that 	underlay 	the 	Commission's 	original 	proposal 	will
also 	guide 	my 	testimony 	today.
The 	FTC 	staff 	appreciates 	the 	concerns 	that 	fostered
Florida's 	regulations 	regarding 	optometrists. 	It 	is 	our
position, 	however, 	that 	portions 	of 	the 	legislation 	being
considered 	here, 	as 	well 	as 	some 	of 	the 	existing 	statutory
provisions, 	go 	beyond 	what 	is 	necessary 	to 	prevent 	deception 	and
maintain 	quality 	of 	care 	in 	the 	optometric 	profession. 	We 	are
primarily 	concerned 	with 	restrictions 	on 	optometrists' 	use 	of
various 	business 	formats 	and 	advertising 	methods, 	and 	the
resulting 	effects 	of 	those 	restrictions 	on 	consumers.
I 	50 	Fed. 	Reg. 	598 	(1985).
2

T. 	Restrictions 	on 	Business 	Format
. A. 	Business 	Relationships 	with 	Nonprofessionals
The 	proposed 	legislation 	(as 	well 	as 	current 	Florida 	law)
contains 	certain 	provisions 	that 	may 	unnecessarily 	restrict
optometrists 	from 	offering 	their 	services 	in 	a 	cost-efficient
manner. 	Under 	§ 	463.0l4(a), 	a 	lay 	organization 	is 	prohibited
from 	engaging 	the 	services 	of 	a 	licensed 	optometrist, 	whether
upon 	a 	salary, 	commission, 	or 	any 	"other 	means 	of 	inducement".2
Similarly, 	under 	§ 	463.0l4(b), 	an 	optometrist 	is 	prohibited 	from
engaging 	in 	the 	practice 	of 	optometry 	with 	any 	organization,
corporation, 	or 	lay 	individual. 3
We 	would 	encourage 	the 	legislature 	to 	consider 	removing
these 	provisions, 	and 	any 	others 	that 	prohibit 	optometrists 	from
working 	for, 	or 	entering 	into 	partnerships 	or 	other 	associations
with, 	lay 	persons. 	Restrictions 	on 	this 	type 	of 	business 	format
prevent 	the 	formation 	and 	development 	of 	innovative 	forms 	of
professional 	practice 	that 	may 	be 	more 	efficient, 	that 	provide
2 	§ 	463.0l4(a) 	is 	numbered 	as 	§ 	463.0l4(b) 	in 	the 	current
statute.
3 § 	463.0l4(b) 	is 	numbered 	as 	§ 	463.014(c) 	in 	the 	current
statute.
3

comparable 	or 	higher 	quality 	services, 	and 	that 	offer 	competition
to 	traditional 	providers.
Those 	who 	propose 	restrictions 	on 	employment, 	partnership 	or
other 	business 	relationships 	between 	licensed 	professionals 	and
non-licensees 	often 	claim 	that 	such 	restrictions 	are 	necessary 	to
maintain 	a 	high 	level 	of 	quality 	in 	the 	professional 	services
market. 	They 	express 	concern 	over 	the 	possibility 	of 	lay
interference 	with 	the 	professional 	judgment 	of 	licensees. 	They
also 	allege 	that 	lay 	firms 	might 	offer 	lower 	prices 	but 	encourage
their 	professional 	employees 	to 	cut 	corners 	to 	maintain
profits. 	According 	to 	those 	who 	oppose 	opening 	the 	market 	to 	lay
corporations, 	harm 	to 	the 	pUblic 	would 	be 	compounded 	because
professionals 	who 	practice 	in 	traditional, 	non-commercial
settings 	would 	be 	forced 	to 	lower 	the 	quality 	of 	their 	services
in 	order 	to 	meet 	the 	prices 	of 	their 	commercial 	competitors.
Available 	empirical 	evidence, 	however, 	suggests 	that
prohibitions 	on 	commercial 	practice 	by 	optometrists, 	including,
among 	others, 	prohibitions 	on 	the 	employment 	of 	optometrists, 	may
raise 	prices 	and 	reduce 	consumer 	access 	to 	services 	without
raising 	the 	level 	of 	quality 	in 	the 	provision 	of 	eye 	care
services. 	We 	are 	not 	aware 	of 	any 	credible 	evidence
demonstrating 	a 	benefit 	to 	consumers 	resulting 	from 	prohibitions
on 	business 	relationships 	between 	optometrists 	and 	non-
optometrists.
4

The 	Federal 	Trade 	Commission's 	Bureaus 	of 	Economics 	and
Consumer 	Protection 	have 	issued 	two 	studies 	that 	provide 	evidence
that 	restrictions 	on 	commercial 	practice 	by 	optometrists
including 	restrictions 	on 	business 	relationships 	between
optometrists 	and 	non-optometrists 	-- 	do, 	in 	fact, 	harm 	consumers.
The 	first 	study, 	conducted 	with 	the 	help 	of 	two 	colleges 	of
optometry 	and 	the 	chief 	optometrist 	of 	the 	Veterans
Administration, 	compared 	the 	price 	and 	quality 	of 	eye
examinations 	and 	eyeglasses 	in 	cities 	with 	a 	variety 	of 	legal
environments. 4 Cities 	were 	classified 	as 	markets 	with 	chain
optometric 	practice 	if 	eye 	examinations 	were 	available 	at 	large
interstate 	optical 	firms.
The 	study 	found 	that 	prices 	charged 	in 	1977 	for 	eye
examinations 	and 	eyeglasses 	were 	significantly 	higher 	in 	cities
without 	chains 	and 	advertising 	than 	in 	cities 	where 	advertising
and 	chain 	firms 	were 	present. 	The 	average 	price 	charged 	by
optometrists 	in 	the 	cities 	without 	chains 	and 	advertising 	was
33.6% 	higher 	than 	in 	the 	cities 	with 	advertising 	and 	chains
($94.46 	versus 	$70.72). 	Prices 	were 	approximately 	17.9 	percent
higher 	because 	of 	the 	absence 	of 	chains; 	the 	remaining 	price
difference 	was 	attributed 	to 	the 	absence 	of 	advertising.
4 	Bureau 	of 	Economics, 	Federal 	Trade 	Commission, 	Staff 	Report
on 	Effects 	of 	Restrictions 	on 	Advertising 	and 	Commercial
Practices 	in 	the 	Professions: 	The 	Case 	of 	Optometry 	(1980).
5

The 	data 	also 	showed 	that 	the 	quality 	of 	vi~ion care 	was 	not
lower 	in 	cities 	where 	chain 	optometric 	practice 	a~d 	advertising
were 	present. 	The 	thoroughness 	of 	eye 	examinat:8~s, the 	accuracy
of 	eyeglass 	prescriptions, 	the 	accuracy 	and 	work=anship 	of
eyeglasses, 	and 	the 	extent 	of 	unnecessary 	prescr:~ing were, 	on
average, 	the 	same 	in 	both 	types 	of 	cities.
The 	second 	study 	issued 	by 	the 	FTC 	staff 	cc~pared the 	costs
and 	quality 	of 	cosmetic 	contact 	lens 	fitting 	by 	7arious 	types 	of
eye 	care 	professionals. 5 	This 	study 	was 	designe~ and 	conducted
with 	the 	assistance 	of 	the 	major 	national 	profes3ional
associations 	representing 	ophthalmologists, 	opto=etrists 	and
opticians. 	Its 	findings 	are 	based 	on 	examinatio~s and 	interviews
of 	more 	than 	500 	contact 	lens 	wearers 	in 	18 	urba~ areas. 	The
study 	found 	that, 	on 	average, 	"commercial" 	optometrists 	-- 	that
is, 	optometrists 	who 	were 	associated 	with 	chain 	cptical 	firms,
who 	used 	trade 	names, 	or 	who 	practiced 	in 	commercial 	locations
fitted 	cosmetic 	contact 	lenses 	at 	least 	as 	well 	as
ophthalmologists, 	opticians, 	and 	other 	optometri3ts, 	but 	charged
significantly 	lower 	prices.
Because 	restrictions 	on 	employment, 	partnership, 	or 	other
relationships 	between 	professionals 	and 	non-professionals
necessarily 	hinder 	the 	development 	of 	chain 	firms, 	these 	studies
5 	Bureaus 	of 	Consumer 	Protection 	and 	Economics, 	Federal 	Trade
Commission, 	A Comparative 	Analysis 	of 	Cosmetic 	Contact 	Lens
Fitting 	by 	Ophthalmologists, 	Optometrists, 	a~d Opticians
(1983) •
6

provide 	important 	evidence 	that 	such 	restrictions 	tend 	to 	raise
prices 	above 	the 	levels 	that 	would 	otherwise 	prevail, 	but 	do 	not
raise 	the 	quality 	of 	care 	in 	the 	vision 	care 	mar<et. 	Further,
because 	of 	the 	increased 	prices, 	it 	is 	likelyt~at these
restrictions 	result 	in 	decreased 	consumer 	access 	to 	vision
care. 	Consumers 	are 	likely 	to 	purchase 	vision 	care 	less
frequently 	because 	of 	the 	higher 	prices.
In 	a 	case 	that 	challenged 	various 	ethical 	code 	provisions
enforced 	by 	the 	American 	Medical 	Association 	(AMA),6 	the
Commission 	found 	that 	AMA 	rules 	prohibiting 	physicians 	from
working 	on 	a 	salaried 	basis 	for 	a 	hospital 	or 	otter 	lay
institutions 	and 	from 	entering 	into 	partnerships 	or 	similar
relationships 	with 	non-physicians 	unreasonably 	restrained
competition 	and 	thereby 	violated 	Section 	5 	of 	the 	FTC 	Act. 	The
Commission 	concluded 	that 	the 	AMA's 	prohibitions 	kept 	physicians
from 	adopting 	more 	economically 	efficient 	business 	formats; 	in
particular, 	these 	restrictions 	precluded 	competition 	by
organizations 	not 	directly 	and 	completely 	under 	the 	control 	of
physicians. 	The 	Commission 	also 	found 	that 	there 	were 	no
countervailing 	procompetitive 	justifications 	for 	these
restrictions.
6 	In 	re 	American 	Medical 	Association, 	94 	P.T.C. 	701 	(1978),
aff'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	aff'd 	memo 	by 	an 	equally
divided 	court, 	455 	u.s. 	676 	(1982).
7

Section 	463.014(c) 	of 	the 	proposed 	bill 	prohibits 	the 	board
from 	forbidding 	the 	practice 	of 	optometry 	in 	or 	on 	the 	premises
of 	a 	commercial 	or 	mercantile 	establishment. 7 However, 	a 	new
portion 	to 	this 	subsection 	states 	that 	"[n]othing 	in 	this
subsection 	shall 	be 	deemed 	to 	authorize 	any 	licensed 	practitioner
to 	enter 	into 	any 	agreement 	. 	which 	would 	ena~le, 	directly 	or
indirectly, 	any 	unlicensed 	person 	or 	entity 	to 	practice 	optometry
through 	control 	over 	the 	licensed 	practitioner's 	provision 	of
optometric 	services 	to 	the 	public." 	The 	language 	"control 	over
the 	. 	• 	• 	provision 	of 	optometric 	services" 	is 	vague 	and 	could
lead 	to 	restrictive 	interpretations. 	For 	example, 	currently 	some
retail 	stores 	make 	their 	credit 	card 	system 	available 	to
professionals 	who 	lease 	space 	in 	their 	buildings. 	Because 	this
provision 	does 	not 	define 	the 	type 	of 	control 	that 	is 	prohibited,
it 	could 	be 	interpreted 	as 	including 	control 	over 	credit, 	refund,
or 	warranty 	policy. 	Such 	an 	interpretation 	would 	make 	illegal 	the
use 	of 	a 	retail 	store's 	credit 	card 	by 	an 	optometrist, 	since 	the
retail 	store 	would 	have 	responsibility 	for 	servicing 	the 	account,
assessing 	any 	finance 	charge, 	and 	collecting 	the 	fee 	charged. 	A
convenience 	to 	consumers 	would 	therefore 	be 	lost.
To 	give 	another 	example, 	"control" 	could 	be 	interpreted 	to
include 	control 	over 	hours 	of 	practice, 	despite 	the 	fact 	that
this 	is 	not 	really 	a 	quality 	of 	care 	issue. 	Such 	an
7 	§ 	463.014(c) 	is 	numbered 	as 	§ 	463.014(d) 	in 	the 	current
statute.
8

interpretation 	could 	be 	fatal 	to 	optometric 	practices 	located 	in
retail 	stores 	and 	shopping 	centers, 	since 	their 	leases 	usually
regulate, 	in 	some 	manner, 	their 	hours 	of 	operation. 	This 	would
be 	a 	particularly 	ironic 	result, 	since 	the 	hours 	dictated 	might
well 	be 	longer 	than 	those 	of 	an 	optometrist 	operating 	in 	a
traditional 	location. 	Thus, 	this 	language 	could 	operate 	to
eliminate 	any 	procompetitive 	effect 	that 	the 	first 	sentence 	in 	§
463.014(c) 	might 	have.
To 	summarize, 	we 	believe 	that 	if 	the 	legislature 	is
concerned 	about 	quality 	of 	care 	issues, 	it 	should 	regulate
quality 	of 	care 	in 	as 	direct 	a 	manner 	as 	possible. 	If 	it 	instead
tries 	to 	regulate 	indirectly 	by 	limiting 	the 	organizational 	forms
in 	which 	optometrists 	can 	practice, 	too 	much 	of 	this 	restriction
will 	miss 	the 	mark. 	Unnecessary 	regulation 	will 	result, 	and
consumer 	costs 	will 	go 	up.
B. 	Business 	Relationships 	with 	Health 	Care 	Delivery
Systems
In 	addition 	to 	prohibiting 	the 	development 	of 	commercial
firms 	that 	employ 	optometrists, 	§ 	463.014, 	by 	limiting 	the
permissible 	relationships 	between 	optometrists 	and 	lay
organizations, 	may 	also 	unnecessarily 	restrict 	the 	development 	of
innovative 	health 	care 	delivery 	systems, 	such 	as 	preferred
provider 	organizations 	("PPOs") 	and 	health 	maintenance
organizations 	("HMOs"). 	PPOs 	and 	HMOs 	can 	promote 	competition 	in
the 	markets 	for 	delivering 	and 	financing 	health 	care 	services 	and
9

can 	provide 	benefits 	to 	patients 	and 	providers 	al:ke. 	However,
because 	HMOs 	employ 	or 	contract 	with 	health 	provi~ers, they 	may
be 	prohibited 	under 	proposed 	§ 	463.0l4(a) 	from 	of:ering 	optometic
services 	to 	consumers, 	except 	to 	the 	extent 	that 	they 	are 	exempt
as 	nonprofit 	corporations 	covered 	by 	§ 	637.001, 	Similarly, 	some
PPOs 	require 	participating 	providers 	to 	remit 	to 	the 	PPO 	a
percentage 	of 	the 	fees 	earned 	from 	treating 	PPO 	patients. 	They
might 	therefore 	be 	interpreted 	as 	violating 	proposed
§ 	463.014(b), 	because 	fee 	splitting 	could 	be 	considered 	a 	means
of 	"engaging 	in 	the 	practice 	of 	optometry 	• 	. 	• 	with 	any
organization, 	corporation, 	group, 	or 	lay 	individual."
c. 	Business 	Relationships 	with 	Other 	Professionals
Section 	463.014 	would 	also 	outlaw 	partnerships 	and 	other
associations 	between 	optometrists 	and 	other 	state-licensed
professionals, 	such 	as 	ophthamologists 	or 	opticia~s. 	Such
arrangements 	would 	be 	beneficial 	to 	consumers 	because 	they 	would
enable 	several 	health 	care 	services 	to 	be 	provided 	in 	a 	single
office, 	thus 	providing 	greater 	convenience 	and 	lower 	costs 	to
consumers 	who 	might 	otherwise 	have 	to 	go 	to 	different 	locations
to 	obtain 	the 	services 	of 	both 	an 	optometrist 	and 	another 	health-
care 	provider. 	Furthermore, 	we 	see 	no 	countervailing 	harm 	to
consumers 	associated 	with 	partnerships 	and 	associations 	of 	this
type. 	We 	urge 	that 	you 	consider 	allowing 	these 	ti~es of
arrangements.
10

D. 	Landlord-Tenant 	Arrangements
We 	are 	also 	concerned 	about 	the 	possibility 	that 	§ 	463.014
may 	be 	interpreted 	to 	prevent 	certain 	types 	of 	landlord-tenant
arrangements. 	For 	example, 	an 	optometrist's 	payrr.ent 	of 	a
percentage 	of 	his 	or 	her 	profits 	or 	sales 	as 	rent 	would 	result 	in
a 	situation 	in 	which 	the 	nonpractitioner 	landlord 	would 	be
sharing 	in 	an 	optometrist's 	profits. 	That 	arrangement 	could 	be
interpreted 	under 	subsection 	(b) 	as 	"engag[ingJ 	in 	the 	practice
of 	optometry" 	with 	a 	non-optometrist 	or 	corporation. 	We 	do 	not
believe 	an 	optometrist's 	professional 	independence 	would 	be
curtailed 	by 	such 	an 	arrangement, 	and 	we 	know 	of 	no 	evidence 	that
quality 	of 	care 	would 	suffer. 	We 	would 	therefore 	recommend 	that
this 	provision 	be 	clarified 	if 	such 	a 	prohibition 	is 	not 	its
intent.
II. 	Advertising 	Restrictions
A. 	General 	Advertising 	Restrictions
Florida's 	current 	Optometry Act 	permits 	advertising 	except
that 	which 	is 	"fraudulent, 	false, 	deceptive 	or 	misleading 	in 	form
or 	content." 	In 	contrast, 	however, 	the 	proposed 	bill 	would
11

impose 	new 	advertising 	restrictions. 	We 	urge 	yo~ 	to 	reject 	these
restrictions, 	because 	we 	believe 	they 	would 	unce:~ine existing
law 	and 	harm 	consumers.
As 	a 	part 	of 	the 	Commission's 	effort 	to 	fC5~er competition
among 	licensed 	professionals, 	it 	has 	examined 	t~e effects 	of
public 	and 	private 	restrictions 	that 	limit 	the 	a~ility of
professionals 	to 	engage 	in 	nondeceptive 	advertis:ng. 	As 	I
previously 	described, 	the 	Bureau 	of 	Economics 	st~dy showed 	that
advertising 	does 	not 	reduce 	quality 	of 	vision 	ca:e 	but 	does
decrease 	prices. 	Other 	empirical 	studies 	have 	confirmed 	the
relationship 	between 	advertising 	and 	lower 	prices 	in 	markets 	for
professional 	services. 8
We 	have 	reached 	the 	conclusion 	that 	only 	fa:se 	or 	deceptive
advertising 	should 	be 	prohibited. 	Any 	other 	sta~dard is 	likely
to 	suppress 	the 	dissemination 	of 	potentially 	use:ul 	information
and 	may 	contribute 	to 	an 	increase 	in 	prices. 	Increasingly, 	state
legislatures 	have 	amended 	laws 	regulating 	professionals 	to 	more
closely 	reflect 	the 	"false 	or 	deceptive" 	standard.
Specifically, 	the 	Florida 	Board's 	proposed 	S 	463.015(2) (b)
would 	prohibit 	"displaying 	any 	sign 	or 	taking 	any 	other 	action
8 	See, 	~., 	Bureau 	of 	Economics 	and 	Cleveland 	Regional
Office, 	Federal 	Trade 	Commisssion, 	Improvins 	Consumer 	Access
to 	Legal 	Services: 	The 	Case 	for 	Removing 	Restrictions 	on
Truthful 	Advertising 	(1984); 	Benham 	& Benham, 	Regulating
through 	the 	Professions: 	A Perspective 	on 	I~formation
Control, 	18 	J. 	Law 	& Econ. 	421 	(1975); 	Benham, 	The 	Effect 	of
Advertising 	on 	the 	Price 	of 	Eyeglasses, 	15 	J. 	Law 	& Econ.
337 	(1972).
12

that 	would 	lead 	the 	public 	to 	believe 	that 	a 	corporation 	or 	other
unlicensed 	person 	is 	licensed 	to 	practice 	optomet~y or 	board
certified 	optometry."
Proposed 	§ 	463.015(2) (c) 	would 	also 	prohibit 	advertising:
the 	availability 	of 	optometric 	services 	on
the 	premises 	of 	a 	commercial 	or 	mercantile
establishment 	which 	implies 	or 	suggests 	that
a 	corporation 	or 	other 	entity 	provides 	such
optometric 	services; 	or 	which 	does 	not 	state
clearly 	that 	such 	services 	are 	provided 	by 	an
independent 	licensed 	practitioner 	not
affiliated 	with 	or 	employed 	by 	the 	commercial
or 	mercantile 	establishment 	and 	which 	does
not 	specifically 	identify 	such 	licensed
practitioner 	by 	name 	as 	licensed 	by 	the
department.
To 	the 	extent 	that 	these 	provisions 	are 	targe:ed 	only 	at
deceptive 	advertising, 	they 	are 	unnecessary; 	the 	law 	already
prohibits 	advertising 	which 	is 	"deceptive 	or 	misleading."
Moreover, 	the 	proposed 	provisions 	may 	have 	harmful 	effects 	on
competition. 	First, 	the 	vagueness 	of 	the 	proposed 	restrictions
may 	discourage 	optometrists 	from 	providing 	accurate 	and 	useful
information 	to 	consumers. 	Second, 	optometrists 	may 	also 	be
discouraged 	from 	entering 	into 	certain 	legal 	business
arrangements 	because 	of 	uncertainty 	over 	how 	these 	restrictions
will 	be 	interpreted. 	For 	example, 	an 	optometrist 	may 	hesitate 	to
rent 	space 	in 	a 	mercantile 	establishment, 	fearing 	that 	his 	or 	her
mere 	presence 	could 	be 	interpreted 	as 	"an 	action 	that 	would 	lead
13

. 	is 	licensed 	to	the 	public 	to 	believe 	that 	a 	corporation 	.
practice 	optometry."
Subparagraph 	(2) (c) 	is 	particularly 	burdensome. 	More 	than
simply 	prohibiting 	deception, 	it 	requires 	every 	advertisement 	to
include 	a 	lengthy 	disclaimer 	as 	well 	as 	the 	name 	of 	every
optometrist 	operating 	on 	the 	premises. 	Although 	these
disclosures 	might 	be 	accommodated 	fairly 	readily 	in 	large 	display
advertisements, 	they 	would 	be 	awkward 	in 	smaller 	ads. 	Moreover,
working 	the 	disclosures 	into 	television 	and 	radio 	commercials
could 	be 	prohibitively 	expensive. 	One 	possible 	justification 	for
requiring 	every 	associated 	optometrist 	to 	be 	listed 	in 	each
advertisement 	is 	that 	this 	would 	ensure 	identification 	and
accountability 	of 	individual 	practitioners 	within 	a 	practice. 	We
believe, 	however, 	that 	this 	goal 	could 	be 	accomplished 	through
less 	burdensome 	methods. 	For 	example, 	the 	names 	of 	individual
practitioners 	could 	be 	conspicuously 	posted 	in 	the 	reception 	area
of 	optometric 	offices 	and 	noted 	on 	bills, 	receipts, 	and 	patient
records. 	We 	fail 	to 	see 	why 	practitioners 	located 	on 	the
premises 	of 	a 	commercial 	or 	mercantile 	establishment 	have 	been
singled 	out 	in 	this 	provision; 	no 	such 	requirement 	applies 	to
traditional 	group optometric 	practices, 	which 	may 	also 	employ 	or
affiliate 	optometrists 	whose 	individual 	names 	do 	not 	appear 	in
the 	name 	of 	the 	practice.
Finally, 	subparagraph 	(2) (b) 	appears 	to 	be 	aimed 	at 	a
problem 	which 	probably 	does 	not 	exist; 	we 	have 	seen 	no 	evidence
14

indicating 	that 	the 	public 	actually 	believes 	tha: 	organizations
can 	be 	licensed 	as 	doctors, 	lawyers, 	or 	other 	prc:essionals.
Such 	titles 	are 	commonly 	understood 	to 	belong 	to 	individuals, 	not
to 	corporate 	entities.
B. 	Trade 	Name 	Restrictions
Section 	463.0l4(a} 	currently 	appears 	to 	protibit 	an
optometrist 	from 	practicing 	under 	a 	trade 	name. 	That 	provision
permits 	an 	optometrist 	to 	practice 	only 	under 	his 	or 	her 	own 	name
or, 	as 	interpreted 	by 	the 	Board, 	under 	the 	name 	of 	a 	professional
association. 	We 	urge 	that 	this 	provision 	be 	repealed 	to 	allow
the 	use 	of 	any 	trade 	name 	that 	is 	not 	false 	or 	misleading. 	Trade
names 	can 	be 	essential 	to 	the 	establishment 	of 	gr~up practices
and 	chain 	operations, 	which 	can 	offer 	lower 	prices. 	They 	are
chosen 	because 	they 	are 	easy 	to 	remember 	and 	beca~se they 	can
convey 	useful 	information, 	such 	as 	the 	location 	or 	other
characteristics 	of 	a 	practice. 	Over 	time, 	a 	trade 	name 	can 	also
come 	to 	be 	associated 	with 	a 	certain 	level 	of 	qua:ity, 	service,
and 	price, 	and 	can 	therefore 	aid 	a 	consumer's 	sea:ch 	for 	an
optometrist. 	Without 	convenient 	and 	enduring 	trace 	names,
development 	of 	high-volume, 	low-price 	practices 	becomes 	more
difficult. 	The 	current 	prohibition 	of 	trade 	names 	thus 	impedes
competition, 	increases 	costs 	to 	consumers, 	and 	reduces 	consumer
access 	to 	vision 	care.
15

In 	contrast 	to 	current 	law, 	the 	Board 	of 	P:ofessional
Regulation's 	proposed 	bill 	would 	allow 	the 	use 	0: 	certain 	trade
names. 	It 	still, 	however, 	would 	prohibit 	practice 	under 	any 	name
that 	did 	not 	include 	the 	name 	of 	the 	licensed 	pr:ctitioner 	or 	the
name 	of 	a 	professional 	association. 	Because 	the 	name 	of 	the
professional 	association 	would 	not 	necessarily 	i~clude the 	name
of 	the 	optometrist 	examining 	the 	consumer's 	eyes, 	a 	trade 	name
permissible 	under 	this 	provision 	would 	not 	necessarily 	provide
more 	information 	to 	a 	consumer 	than 	would 	a 	whol:y 	assumed
name. 	A wholly 	assumed 	name 	might 	actually 	be 	easier 	for 	a
consumer 	to 	remember. 	As 	mentioned 	above, 	adequate 	professional
identification 	can 	always 	be 	achieved 	by 	requiri~g that 	the 	names
of 	individual 	optometrists 	practicing 	at 	one 	location 	be 	posted
at 	that 	location 	or 	noted 	on 	patient 	receipts 	and 	records.
We 	understand 	and 	support 	efforts 	to 	protect 	the 	public 	from
deceptive 	trade 	names. 	We 	believe, 	however, 	that 	it 	is 	preferable
for 	the 	Board 	to 	proceed 	on 	a 	case-by-case 	basis 	against
optometrists 	who 	use 	trade 	names 	in 	a 	deceptive 	manner 	rather
than 	for 	the 	Legislature 	to 	issue 	broad 	bans 	on 	certain 	types 	of
trade 	names.
This 	concludes 	my 	testimony. 	Thank 	you 	very much.
16