Amicus Curiae Brief — Metropolitan Life Insurance v. Massachusetts

Pa .

1% j \ “2

Otfice-Supreme Cou

FILED

Nos. 84-325, 84-356 JAN 15

IN THE ALEXANDER L.

CLERK

Supreme Court of the United Stat

OCTOBER TERM, 1984

METROPOLITAN LIFE INSURANCE COMPANY,

Appellant

Ve

COMMONWEALTH OF MASSACHUSETTS,

Appellee

THE TRAVELERS INSURANCE COMPANY,

Appellant

Ve

COMMONWEALTH OF MASSACHUSETTS,

Appellee

ON APPEALS FROM THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

BRIEF AMICUS CURIAE OF

AMERICAN OPTOMETRIC ASSOCIATION

IN SUPPORT OF APPELLEE

ELLIS LYONS*

BENNETT BOSKEY

EDWARD A. GROOBERT

Volpe, Boskey and Lyons

918 16th Street, N.W.

Washington, D.C. 20006

(202) 737-6580

Attorneys for American

Optometric Association

January 15, 1985 *(Counsel of Record)

CASILLAS PRESS, INC. . WASHINGTON, D.C. . (202) 223-1220

(i)

TABLE OF CONTENTS

Page

Interest of American Optometric Association ................... 2

Gr GE 6.00.0 bh odcecceccsctasseucncssseeusesunn 2

Argument in Support of Affirmance ..................00000 eee 4

SI 0 0.0.00-00'0 6:0:0606%0080006000060h00 4000s Eee 15

TABLE OF AUTHORITIES

Cases: Page

Alessi v. Raybestos-Manhattan, Inc.,

ee Es nd ds wi cusndensesedesedescvwelinneeeens 6

Arizona v. Maricopa County Medical Society,

ED .56d.0 bcos ekg kakceneshaennssenenneeen 9

Arkansas Elec. Co-Op. Corp. v. Arkansas Public

ie ods i eueedeacaseeennen 12

Blue Shield of Virginia v. McCready,

EE oc bcconcsee0dineseessdsusensabesenen 12

Garcia v. United States,

MED 6 on cecccccoccuneesdeesecsousieunesseaen 8

Group Life & Health Ins. Co. v. Royal Drug Co.,

ED o vadéecasnccseccaseedans auneeeceueeeene 8

Pacific Gas & Electric v. State Energy Resources

es PE HOUND 6. 006 6icccccescudess cases 12

Shaw v. Delta Air Lines,

EE og anc kn ed nsabedacsteeebunnees 3, 7,13

Teamsters v. Oliver,

EE EE « « co ccececeuksesntacduencacsaauaueeenne 6

(ii)

Page

Terminal Ass’n v. Trainmen,

Neen nec ecce eee. 12

Statutes:

Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. § 1001 ef seg. ............... passim

McCarran-Ferguson Act,

ee 8

National Labor Relations Act,

ee TE Se 4,5, 6,12

Massachusetts General Laws,

Section 47B, Chapter 17S 2.0.0... ccc ccc ccc cece ccc ence passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

Nos. 84-325, 84-356

METROPOLITAN LIFE INSURANCE COMPANY,

Appellant

Vv.

COMMONWEALTH OF MASSACHUSETTS,

Appellee

THE TRAVELERS INSURANCE COMPANY,

Appellant

Vv

COMMONWEALTH OF MASSACHUSETTS,

Appellee

ON APPEALS FROM THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

BRIEF AMICUS CURIAE OF

AMERICAN OPTOMETRIC ASSOCIATION

IN SUPPORT OF APPELLEE

The American Optometric Association submits this

brief amicus curiae in support of appellee, the Com-

monwealth of Massachusetts. Letters granting consent,

received from counsel of record for each of the parties,

have been filed with the Clerk of this Court.

2

INTEREST OF

AMERICAN OPTOMETRIC ASSOCIATION

The American Optometric Association, a nonprofit

membership organization incorporated under Ohio law,

is a national professional association of more than 25,000

members consisting of licensed Doctors of Optometry, op-

tometry students, and educators. The Association’s ob-

jects, as set forth in its Constitution, “are to improve the

vision care and health of the public and to promote the art

and science of the profession of optometry.” The Associa-

tion has as affiliates the state optometric associations in

each of the 50 states and in the District of Columbia and

the Armed Forces Optometric Society.

As the national professional organization representing

the optometric profession, the Association has always

been, and is now, vitally interested in matters which affect

the adequacy of vision care available to the public. This in-

cludes, among other things, its interest in what is called

“freedom of choice” legislation—that is, the widely-

enacted state legislation which prevents insurance com-

panies or others from discriminating against the practice

of optometry and which likewise prevents discrimination

against patients who wish to obtain vision care by utilizing

the professional services of optometrists instead of physi-

cians for those services within the lawful scope of the prac-

tice of optometry. The present cases may have a substan-

tial impact on such matters.

SUMMARY OF ARGUMENT

ERISA has not preempted the mandated benefit pro-

vision of Section 47B of Massachusetts General Laws

Chapter 175 (which requires that health benefit insurance

policies shall include specified minimum benefits for men-

3

tal and nervous conditions). No such issue was before this

Court in Shaw v. Delta Air Lines, 103 S.Ct. 2890 (1983).

Appellants’ niggardly interpretation of ERISA’s insurance

exclusion clause—the clause which excludes from federal

preemption “any law of any State which regulates in-

surance”—is contradicted by the plain meaning of the

insurance exclusion clause and its background and by

the settled federal policy, manifested particularly in the

McCarran-Ferguson Act, of leaving to the states the regu-

lation of insurance.

Appellant insurance companies, and the rest of the in-

surance industry, cannot rightly rely on ERISA to exempt

or relieve them from Massachusetts Section 47B and other

comparable state laws regulating insurance; the fair mean-

ing of ERISA’s insurance exclusion clause is to prevent

just such escapes from being accomplished by the in-

surance industry.

Furthermore, it is submitted that, in any event, in

disposing of these cases the Court should take particular

care to avoid any intimation which might impair or cast a

cloud on the validity of the widely-enacted state legislation

known as “freedom of choice” legislation — which has been

enacted in one form or another in nearly all the states.

These freedom of choice statutes do not mandate that any

particular health coverage be included in health benefit in-

surance policies or in uninsured employee benefit plans.

But they do provide that if certain kinds of treatment

(such as vision care) are covered, then such treatment must

be covered regardless of the provider of the health services

used (that is, in the case of vision care, regardless of

whether the professional service is rendered by an op-

tometrist or by a physician). With respect to plans oper-

ating through insurance policies, such state regulation is a

regulation of insurance and should clearly be sustained

under ERISA’s insurance exclusion clause.

4

An additional ground for sustaining such a requirement

for an insurance policy is that the freedom of choice

Statutes do not in any way interfere with or burden the

area of federal supremacy which the ERISA regime was

intended to establish. This additional ground would also

sustain the freedom of choice statutes applicable in a

number of states to those employee health benefit plans

which do not involve insurance policies but are self-

insured or self-funded and hence do not call into play

ERISA’s insurance exclusion clause. While this issue need

not be addressed in these cases, the Court’s attention is in-

vited to the fact that the subject may well be involved in

future litigation in this Court and that meanwhile it is im-

portant that the validity of these state statutory provisions

not be impaired.

With respect to appellants’ claim that Massachusetts Sec-

tion 47B has been preempted by the National Labor Rela-

tions Act in cases where an employee }ealth benefit plan is

the outgrowth of collective bargaining, that claim has been

adequately answered by the opinion of the Supreme

Judicial Court of Massachusetts and is also being amply

dealt with by the appellee’s brief on the merits.

ARGUMENT IN SUPPORT OF AFFIRMANCE

The American Optometric Association has a strong in-

terest in the disposition which the Court makes of these

two cases.

The cases involve an important controversy as to

whether federal law has preempted Section 47B of

Massachusetts General Laws Chapter 175 which, as

authoritatively interpreted by the Supreme Judicial Court

of Massachusetts, expressly requires that insurance

policies affording health benefits to Massachusetts

5

residents shall include specified minimum benefits for the

care of mental and nervous conditions. There is no merit

in appellants’ claim that federal legislation precludes the

application of Massachusetts Section 47B to insurance

contracts covering Massachusetts residents.

Appellants, Metropolitan Life Insurance Company and

The Travelers Insurance Company, are both engaged in

the insurance business on a nationwide scale, including the

business of writing health insurance policies on a group

basis for employee benefit plans. Some of these insurance

policies cover multi-state groups; many do not. The trial

court’s findings show that, at that time, over 140,000

employees residing in Massachusetts were known to be in-

cluded in the employee health benefit insurance policies

written by the two appellants alone (J.S.App. in No.

84-325 at 40a-42a), apart from the vast numbers of

Massachusetts residents who are covered by such policies

issued by other insurance companies. These circumstances

underscore the reasons why Massachusetts has such a

legitimate special concern to prevent the insurance in-

dustry from escaping the reach of a statute regulating in-

surance which Massachusetts has enacted in order to im-

plement significant public policies of the Commonwealth.

The principal issue in these two cases turns on the fair

scope of the preemption provisions in the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. §§ 1001 et seqg., and of the express exclusions from

preemption which Congress likewise provided for in that

Act.' In Section 514(a) of ERISA, 29 U.S.C. § 1144(a),

'A secondary claim made by the appellants is that, in situations

where the health insurance policy for the particular employee benefit

plan has resulted from collective bargaining, application of the

Massachusetts statute is preempted by the National Labor Relations

6

Congress included the following provision as to preemp-

tion:

“(a) Except as provided in subsection (b) of

this section, the provisions of this subchapter

and subchapter III of this chapter shall supersede

any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan

described in section 1003(a) of this title and not

exempt under section 1003(b) of this title.”

One of the areas expressly excluded from such preemp-

tion, however, is “any law of any State which regulates in-

surance.” This appears in Section 514(b) of ERISA, 29

U.S.C. § 1144(b), which provides in part that:

“(2)(A) Except as provided in subparagraph

(B), nothing in this subchapter shall be construed

to exempt or relieve any person from any law of

any State which regulates insurance, banking, or

securities.”

Act, 29 U.S.C. §§ 151 ef seq. The claim is developed, on behalf of

both appellants, in the brief filed by appellant Travelers in No.

84-356. The claim appears to be nothing more than an unwarranted

attempt at far-fetched extrapolation from this Court’s rulings in

Teamsters v. Oliver, 358 U.S. 283 (1959) and Alessi v. Raybestos-

Manhattan, Inc., 451 U.S. 504, 525-526 (1981). The total lack of

substance to any such claim of NLRA preemption is demonstrated by

the first opinion of the Supreme Judicial Court of Massachusetts in

the present litigation (385 Mass. at , 433 N.E.2d at 1230-1233; see

J.S. App. in No. 84-325 at 25a-31a), and is also, we understand, being

amply dealt with in the brief on the merits being filed by the appellee,

the Commonwealth of Massachusetts. Indeed, even the AFL-CIO,

which has filed a brief amicus curiae supporting appellants’ position

on ERISA preemption, has felt compelled to voice its doubts (see

AFL-CIO Br. at 5-6, note 1) concerning appellants’ claim under the

National Labor Relations Act.

7

Despite the fact that Metropolitan Life and Travelers are

“persons” and are undeniably in the insurance business,

despite the fact that the Massachusetts statute here in issue

regulates the substantive contents of the health benefit in-

surance policies which appellants and other insurance

companies may issue for coverage of Massachusetts

residents, despite the fact that Massachusetts (like many

other states) has a long tradition of regulating the substan-

tive contents of insurance policies which an insurance

company is permitted to issue,? the appellants nevertheless

contend that ERISA’s preemption provision has, in some

magic fashion, operated to exempt and relieve the in-

surance industry from the operation of Massachusetts Sec-

tion 47B whenever the insurance policy is tied in with an

employee benefit plan. This, it is contended by appellants

and ty those amicus curiae briefs filed in support of ap-

pellants, follows from the analysis made by this Court in

Shaw v. Delta Air Lines, 103 S.Ct. 2890 (1983), and from

the emphasis in that opinion on the breadth of ERISA’s

preemption provision which had as an objective the giving

of reasonable encouragement to uniformity in multi-state

employee benefit plans.

But nothing in Shaw can possibly justify the niggardly

interpretation which appellants would here impose on

ERISA’s insurance exclusion clause. The insurance exclu-

sion clause was not at all before this Court in Shaw (as ap-

pellant Metropolitan Life acknowledges, Br. 19); it is now.

It comes buttressed by a well-considered opinion of the

Supreme Judicial Court of Massachusetts to the effect

that, giving full range to Shaw, the applicability of the

Massachusetts statute remains valid as a regulation of in-

2See the Massachusetts statutory provisions dating back at least to

1908 referred to in the Commonwealth’s Motion to Dismiss or Affirm,

filed October 5, 1984, at 21-22, note 8.

8

surance from which insurance companies are not exemp-

ted or relieved by ERISA. It involves a plain meaning —a

principle of interpretation only the other day once more

reaffirmed by this Court in Garcia v. United States, 105

S.Ct. 479, 482-483 (1984). There is nothing in the

legislative history to contradict this plain meaning or to

show that Congress had the slightest intention in 1974 to

preempt state statutes which regulate insurance by requir-

ing insurance companies to include certain minimum

benefits in employee health insurance policies. Instead,

there is an utter silence in the legislative history which ap-

pellant Metropolitan Life (Br. 37-38) seeks painfully to ex-

plain away.

Moreover, our view of the scope of ERISA’s insurance

exclusion clause is further buttressed by the well-known

provisions in the McCarran-Ferguson Act, 15 U.S.C.

§§ 1012(a) and (b), enacted in 1945, that “The business of

insurance, and every person engaged therein, shall be sub-

ject to the laws of the several States which relate to the

regulation or taxation of such business,” and that “No Act

of Congress shall be construed to invalidate, impair, or

supersede any law enacted by any State for the purpose of

regulating the business of insurance,? . . . unless such Act

specifically relates to the business of insurance. . . .” Par-

ticularly in the present circumstances, this expression of

3Compare Group Life & Health Ins. Co. v. Royal Drug Co., 440

U.S. 205, 215-216 (1979), stating:

“Another commonly understood aspect of the business

of insurance relates to the contract between the insurer and

the insured. In enacting the McCarran-Ferguson Act Con-

gress was concerned with:

‘The relationship between insurer and insured, the type

of policy which could be issued, its reliability, inter-

pretation, and enforcement — these were the core of the

“business of insurance.”’ ”

9

basic federal policy cannot be squared with appellants’ ef-

forts to escape the reach of Massachusetts Section 47B.

If this means that insurance companies are at some

disadvantage, as against self-insured or self-funded plans,

in competing for the business of employee benefit plans,

the reason is that Congress deliberately chose to exclude

from ERISA’s preemption provision “any law of any State

which regulates insurance.” Faced with the need to balance

the federal interest in encouraging the possibilities of

uniformity for multi-state employee benefit plans as

against the strong federal policy to leave the regulation of

insurance to the states, Congress made a choice in favor of

preserving the established rights of the states to regulate

insurance. If the insurance industry or their supporters

are dissatisfied with that resolution of the matter, their

remedy would lie in an appeal to Congress, compare

Arizona v. Maricopa County Medical Society, 457 U.S.

332, 354-355 (1982)—and perhaps they perceive the pre-

sent Congress would not be very likely to shift from the

choice an earlier Congress made when ERISA was enacted

in 1974.

The present cases involve a particular mandated benefit

which Massachusetts requires the insurance companies to

offer with respect to the care of mental and nervous condi-

tions. For the reasons we have sunémarized, and which are

more fully developed both in the opinion of the

Massachusetts Supreme Judicial Court and in the Com-

monwealth’s brief as appellee, the Massachusetts statutory

requirement that the insurance companies must include

such a benefit in their health insurance policies should be

sustained.

Similarly, if Massachusetts or some other state were to

enact legislation that certain minimum vision care benefits

10

must be included in employee health insurance policies, it

is the position of the American Optometric Association

that such a mandated benefit provision should be sustain-

ed against comparable attack. We add, however, that we

are not aware that any state presently has on its books a

mandated benefit with respect to vision care. What is on

the books is a vast body of state legislation, ei.acted in one

form or another in about 48 states, which is known as

“freedom of choice” legislation and which safeguards a pa-

tient’s freedom of choice to select a provider of a par-

ticular health care service. With respect to vision care

coverage which is provided for by an employee benefit

plan, this means that the statutes of nearly all the states

call for the reimbursement of the patient who utilizes the

professional services of either an optometrist or a physi-

cian as long as the services performed come within what

may lawfully be performed by a licensed optometrist

under the laws of the particular state.

To assist the Court in its consideration of issues address-

ed by other briefs in the present cases, we invite the

Court’s attention to this vast body of state legislation and

to its true nature. Appellant Metropolitan Life (Br. 3-4,

note 5) discusses the variety of mandated benefit

statutes—that is, state laws requiring health benefit in-

surance policies to provide coverage for a particular illness

or condition —and refers also to the list of such mandated

benefit statutes which Metropolitan Life cited at the

jurisdictional statement stage (J.S. in No. 84-325 at 8-9,

note 5)—none of which statutes involves mandated vision

care.‘

‘Metropolitan Life also (Br. 4, note 5) refers to the survey of state

statutes which had been submitted as an appendix to the brief amicus

curiae filed September 29, 1984, by the Health Insurance Association

of America at the jurisdictional statement stage. That Health In-

11

Metropolitan Life correctly says (Br. 4, note 5) that

“only mandated benefit statutes are at issue on this

appeal” — and not those state statutes which specify that if

certain kinds of treatment are covered by health insurance

benefit policies, then such treatment must be covered

regardless of the provider of the health services selected.

These latter are the freedom of choice statutory provi-

sions which, as we have noted, have been enacted in nearly

all the states to prevent discrimination in insurance

policies against the utilization of the professional services

of optometrists for vision care. These freedom of choice

statutes represent deep-rooted policies of the states con-

cerned. They are aimed at protecting the residents of the

surance Association brief in its Appendix IIA (at 3a), classifying man-

dated benefits by subject matter, correctly does not list vision care as a

mandated benefit required by any state. However, its Appendix IIB

(at 4a) may be inadvertently but distinctly misleading. It is entitled

“State Laws Affecting Group Health Insurance Coverage for Services

Rendered by a Particular Type of Health Care Provider.” On the line

for “Optometrist” it gives the figure “37” (meaning 37 states) in the

column “Coverage Must Be Included in Group Policies” and the figure

“2” in the column “Coverage Must Be Offered to Group Purchasers”

and the figure “39” in the “Total” column. Then in Appendix III (at

Sa-16a) these statutes are identified by state code citations and are

listed by check marks under the column head “Must Be Included” or

“Must Be Offered.” (We accept the citations as being substantially ac-

curate, although somewhat incomplete, and hence do not duplicate

them by compiling an appendix of our own.) The net impression left

on a reader who examines the Health Insurance Association tables

might well be that these statutes generally mandate that health benefit

insurance policies shall provide vision care benefits and that in order

for such benefits to be obtained the services of an optometrist must be

used. The actuality is quite different. The statutes do not mandate that

vision care benefits shall be provided at all; instead they require in

substance that whenever vision care benefits are provided, then the in-

dividual shall have freedom of choice to select either an optometrist or

a physician with respect to any professional service which an op-

tometrist may lawfully perform under the laws of the state.

12

states by assuring that more widespread vision care is

available, by safeguarding the patient’s freedom of choice,

and indeed by discouraging monopolistic or restrictive

practices by insurance companies and others which would

tend to channel away from optometrists and to physicians

the performance of vision care services which otherwise

would flow to optometrists. Compare Blue Shield of

Virginia v. McCready, 457 U.S. 465 (1982). Some of these

statutes regulating insurance policies will be found in the

portions of the state codes which deal with insurance;

some will be found elsewhere. But wherever they are

located in the state code, to the extent that they govern the

provisions of health insurance benefit policies which may

be written by insurance companies, they in any event come

within the insurance exclusion clause of ERISA as a law

“which regulates insurance” and hence on that ground

alone are valid and not preempted by ERISA.°

There is also an additional ground, apart from ERISA’s

insurance exclusion clause, on which the American Op-

tometric Association submits that the freedom of choice

statutes should be sustained. This additional ground is

that the nature of the freedom of choice statutes is not

such that they burden the area of federal supremacy which

the ERISA regime was intended to establish. Compare

Terminal Ass’n v. Trainmen, 318 U.S. 1, 6-7 (1943);

Pacific Gas & Electric v. State Energy Resources Commis-

sion, 103 S.Ct. 1713 (1983); Arkansas Elec. Co-Op Corp.

v. Arkansas Public Com’n, 103 S.Ct. 1905 (1983). The

state freedom of choice statutes do not impose on the par-

‘With respect to any employee benefit plan which is the product of a

collective bargaining agreement (see note 1, supra), we submit that

any contention that a state freedom of choice statute has been preemp-

ted by the National Labor Relations Act would be wholly implausible

and frivolous.

13

ties a substantive health coverage which the parties wish to

avoid contracting for. Instead, the statutes assure that if

vision care coverage is in fact contracted for, then there

shall be no discrimination against persons who obtain such

vision care by using the professional services of op-

tometrists instead of physicians. The preemption issues

which this Court canvassed in Shaw did not involve any

such question; the question is not directly raised by the

present cases which involve mandated benefits; and if it

ever does come before the Court in some subsequent case,

then there would be ample opportunity to develop the

significant differences between the issues it raises and the

issues which Shaw actually addressed.

This additional ground is of especial importance be-

cause some of the state legislation applies the freedom

of choice principle to employee health benefit plans which

are not incorporated into insurance policies written by in-

surance companies and to which the insurance exclusion

clause of ERISA accordingly would not be germane. With

respect to optometry, the freedom o* choice legislation is

applicable to non-insured plans (tiiat is, to what are

variously called self-insured or self-funded plans) in a

number of states. For reasons we have indicated, it is the

American Optometric Association’s position that such

freedom of choice legislation—which clearly was not

before this Court in Shaw— was not preempted by ERISA

and remains a valid exercise of state power for the im-

plementation of important public policies of the states

concerned. ¢

It s) yuld be noted, moreover, that a considerable seg-

ment of the state freedom of choice legislation relating to

vision care—some of it pertaining to insured plans only,

some of it pertaining to plans not incorporated into in-

surance policies, and some of it pertaining to both— was

14

enacted during the 1960s, long before ERISA was passed

in 1974.* Hence the total absence, in ERISA‘s legislative

history, of any suggestion that Congress intended to

preempt this well-known mass of freedom of choice

legislation adds much weight to the other reasons for con-

cluding that no such preemption has occurred.

We urge that in its disposition of the present cases the

Court, in any event, should avoid any intimation which

might impair or cast a cloud on the validity of the widely-

adopted state freedom of choice legislation.

Such freedom of choice legislation relating to vision care dating

from the 1960s is to be found in at least 24 states— namely, Alabama,

Arizona, California, Colorado, Hawaii, Idaho, Indiana, Maine,

Maryland, Massachusetts, Michigan, Mississippi, Montana,

Nebraska, New Hampshire, New Jersey, North Carolina, Oklahoma,

Oregon, South Dakota, Tennessee, Utah, Washington, West

Virginia—and from 1970 through 1973 in at least 10 additional

states—namely, Arkansas, Florida, Kansas, Kentucky, Louisiana,

Missouri, Nevada, New Mexico, New York, Virginia. (This is apart

from the considerable body of freedom of choice legislation dating

from those periods and relating to branches of health care other than

vision care.) Accordingly, much of the freedom of choice legislation

not only antedates the enactment of ERISA in 1974, but will be found

well before March 1970. We mention March 1970 as a line of demar-

cation only because appellant Metropolitan Life (Br. 37, note 15), in

its tortured effort to explain away the negatives and the silences con-

fronting it in ERISA’s legislative history with respect to mandated

benefits, claims March 1970 as the date when the insurance exclusion

clause first made its appearance in one of the predecessor bills which

was not passed. Metropolitan Life, asserting that no mandated benefit

statutes existed before March 1970, then contends (Br. 37-38) that the

silence on the subject in the subsequent legislative history should be ig-

nored. Even if the argument were meritorious — which we submit it

clearly is not—it could not explain away the total lack of any

manifested intention to preempt the freedom of choice statutes which

were so widespread and so well-publicized before the March 1970

date.

15

CONCLUSION

The judgment of the Supreme Judicial Court of

Massachusetts was correct and should be affirmed.

Respectfully submitted,

ELLIS LYONS*

BENNETT BOSKEY

EDWARD A. GROOBERT

Volpe, Boskey and Lyons

918 16th Street, N.W.

Washington, D.C. 20006

(202) 737-6580

Attorneys for American

Optometric Association

January 15, 1985 *(Counsel of Record)