On appeal from the New Jersey State Board of Optometrists.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
On this appeal plaintiffs Hillman/Kohan Eyeglasses, Inc. (Hillman/Kohan), a domestic corporation, and its vice-president, Alexius J. Fodor, Jr., a licensed ophthalmic dispenser of this State, attack N.J.A.C. 13:38-6.1(b), adopted by the New Jersey State Board of Optometrists (Board) on July 21, 1978. The rule states in full:
N.J.A.C. 13:38-6.1 Availability of records
(a) A patient record prepared by an optometrist shall be maintained for seven years from the date of the last entry. The patient record, or a copy thereof, shall be released to another optometrist or physician.
(b) The contact lens specification is considered a part of the patient record and shall be given only to another optometrist or physician.
(c) A copy of the patient's prescription for eyeglasses shall be given to the patient or to another optometrist, physician or optician. [Emphasis supplied]
The factual and procedural background necessary for understanding this challenge to the administrative regulation is as follows. Hillman/Kohan does business under the trade name of VISION CENTERS and is a wholly-owned subsidiary of G.D. Searle and Co. It operates outlets for dispensing ophthalmic lenses, eyeglasses and optical appliances in 26 states, including 27 centers in New Jersey. In late 1977 Hillman/Kohan decided to attempt to penetrate the soft contact lens market in New Jersey. As an optical dispenser it
was specifically prohibited from fitting contact lenses. N.J.S.A. 52:17B-41.1; see also, N.J. State Bd. of Optometrists v. Reiss , 83 N.J. Super. 47 (App. Div. 1964). This service must be performed by either an ophthalmologist or an optometrist. The former is a duly licensed physician specializing in care of the eyes and the latter is a profession recognized by statute for the examination of the eye and the prescription of visual aids. N.J.S.A. 45:12-1. Prior to the regulation here in question all shared the dispensing function equally.
Under subsection (b) of the questioned regulation an optometrist may provide contact lens specifications only to another optometrist or physician. An optometrist may not provide contact lens specifications to a dispensing optician. The regulation was adopted by the Board pursuant to its power derived from the Legislature to regulate the practice of optometry so as "to promote the safety, protection and welfare of the public." N.J.S.A. 45:12-4. Its purpose is to prevent an optician from delivering the contact lenses directly to a patient who might then attempt to fit them into his eyes without the essential attention of an optometrist or physician.
Soft contact lenses are distributed by the manufacturer in pre-sealed, pre-formed and pre-labeled vials. The lenses are ordered pursuant to a prescription derived from the examination by the optometrist or the ophthalmologist. The effect of the questioned regulation is to totally exclude dispensing opticians from the available market for purchasers of contact lenses, unlike the eyeglass prescription which must be given to the patient or the dispensing optician if the patient so desires. N.J.A.C. 13:38-6.1(c).
The history of the adoption of this rule is as follows. On November 10, 1977 the Board published a proposed rule relating to the availability of optometric prescription records in 9 N.J.R. 538 which stated in pertinent part: