All Visual Exams Are Not Created Equal

Should Opticians or Technicians Be Performing Subjective Examinations With Automated Technology?

by: Merrill D. Bowan, O.D.
Neurodevelopmental Optometrist Director, The Learning Clinic

Information without education is meaningless. To have visual exam data at hand without an adequate grounding in how to use it – or even, how to properly acquire it – is either meaningless, or dangerous, or merely entertainment.

There is an inherent assumption buried within the nature of the question about automated or technician-based exams that all any examiner needs to satisfy a patient’s visual needs are the right numbers in the LCD display, in the phoropter windows or in the printer output. Will the day come when we have to tolerate vision kiosks in our malls with a pair of peepholes, a knob, a printer, and an optician in the back?

Were it all that simple! The overall question is a difficult one for a number of reasons.

A professional who is overly focused on maximizing traffic and yet minimizing the time spent in patient contact (or as some have said, “…to use the time more wisely”) is not likely to be persuaded to warmly embrace a counter-point argument to the question being raised here. Yet as we myopically do this, we may fail to realize that automating and minimizing patient chair time tends to justify the trend toward further reduction in fee reimbursement schedules. To be utterly fair to the patient, the question, and ourselves as a profession, we need to soberly consider the problem from a point that takes into account the operational role of vision in human behavior.

Much of the problem may lie within our own optometric family: we are losing sight of what the goals of optometry are, what defines a patient’s needs, and what the point of a patient exam is – the why of an examination. Within that frame of thinking, the examiner must determine his or her own role: are we merely objective data gatherers, data processors, or is there a subjective component to the patient’s responses?

To strictly apply a definition to a complete exam as one that meets the patient’s needs is either inadvertently naïve or, in a worst-case scenario, it is self-serving. Yes, I’m aware of how strong those words are – for sure – but here is why I say that: the patient simply cannot be aware of all of their needs. It is not responsible behavior on our part to wait for a patient to be complaining. They are limited in their observational ability. They are poor reporters because they have an auto-centric experience of their worlds. They are just not aware of how the world is supposed to look. In illustration of this, as he reported in the Journal of Learning Disabilities many years ago, I Love Lucy producer Jess Oppenheimer only discovered his intermittent alternating exotropia when, while shaving in an Army latrine, he asked a fellow soldier how long it took his eyes to come back together after he looked away when he shaved! If we as doctors wait and only respond to patient complaints, then public health will suffer.

Indeed, patient evaluations in all allied medical fields take on two general forms:

1) Problem-focused: The patient brings in a set of symptoms. This follows a pathology-driven mentality; and,

2) Health Screening: The patient is assessed for all aspects of healthy performance. This follows a wellness mentality, an enhancement of health-based thinking.

Arguably, optometry as an institution has been drawn further and further into the first. The latter seems mostly to thrive in a small sector of the realm of private practice as a word-of-mouth, mentored phenomenon, and is now beginning to see greater quantification through post-graduate programs like the OEP/BABO confederation.

The doctor (or for purposes of this topic, the refractionist) must be educated enough to make proper assessment of the patient’s responses. To understand why, we must be willing to consider the human factors. The central concern is that mankind is a visual creature:

  •   Years ago, a physiologist noted that the entire design of the human body appears to be solely to support the eyes and the brain in an upright position.
  •   Between 25% and 50% of human neuro-anatomy is dedicated to vision directly or indirectly.
  •   With the eyes open, two-thirds of the brain’s electrical activity is related to visual processing.
  •   The visual creature in our chair is manifesting his/her adaptations to his world as he/she sits before us. Head torts, slouched posture, bodily motor overflows, visual tics and even language and tone of voice – all reflect ocular, torso, and neck tensions.
    Vision dominates perceptions so greatly that as physiologist Samuel Renshaw demonstrated, strong yoked prisms base right or base left change spatial perceptions so dramatically that vertical edges not only look distinctly curved, but for most people, they actually feel curved. How does the technician integrate this dominance of central visual processing into their results? How can a subjective refractor device know how loose or how tight the patient’s visual system is?Leonard Press, optometric author of a significant visual therapy text,1 illustrated the point this way: if, on the positive relative vergence tests, a patient breaks fusion every two prism diopters but recovers until a final break occurs at 22^, how does the mere recording of that value differ from a patient who broke at 22^ the first time? Both final values read 22^, but it would be an unwise prescriber who treated both with the same treatment plan.

    Does the question of delegated or automatic refraction boil down to patient- centered care versus something less? Is not pathology/medically-oriented optometry more important? The question is somewhat moot. No one would argue that we should abandon our medico-legal responsibilities to identify, refer, or treat ocular medical conditions. Yet would we ignore our accountability to identify, refer, or treat the up to 30% of the population who manifest binocular or developmental visual dysfunctioning?

    To think of the refraction/visual analysis process as just “another piece of data” is to risk second-rate care to our patients. Are all refractions the same? Perhaps the more important question is looked at a bit differently, in this way:

    What is the nature of ametropia? If ametropias are strictly genetic in origin, or perhaps merely idiopathic, then we have no choice as care-givers but to follow and palliate the patient. However, if there is ever any functional component to ametropia, or any medical condition that can alter the refraction, then our focus, even our responsibility, to our patient is altered. We then ethically owe it to our patient to apply our scientific ministrations to either correct or prophyllactically intervene and interrupt the process.

    This brings up an extremely important question: does stress ever manifest itself in the refraction? Do medical conditions ever alter a refraction? Will a patient in emotional distress respond in a usual and customary way and render a valid prescription? How do black and white numbers or cryptic notes from a technician reflect the picture that the prescriber would see if they were personally involved in monitoring the quality of responses from the patient?

In a nutshell, it may be said that there is a lack of understanding of what vision represents to the organism, what it really is. This is the endpoint of much of the very confusion in optometry, as to what we are as a called profession. Are we:

  1. Medical optometrists?
  2. Refraction jockeys?
  3. Visual researchers?
  4. Behaviorists?
  5. Visual rehabilitationists?
  6. Alternative care providers? Or, are we;
  7. All of the above?

There is a saying that those who want more theory often need more clinical practice. Those who want only clinical results usually need more theory. Extending this thinking, we might say that those who want only refractive data need more clinical observation, and that those who want only clinical observation need more data.

What we can’t do, because of the moral, ethical and medico-legal ramifications of the question being posed, is to ignore the problem. It must be resolved within optometry, for the public’s welfare.

A further dimension to this discussion is that many patients expect optometrists to be the experts to deal with school-related vision problems. This covers the whole behavioral spectrum from ADD/ADHD to visual processing-based learning disabilities to autism. Only the examiner can understand the numbers before him in relation to the patient’s needs, the patient’s performance, the patient’s responses. To equate the results of a refraction with those of an EKG as some have done – with technicians performing each – is to discount the objective versus subjective nature of the two tests. The qualities of the responses of a refraction are revealing – they can be as important to an artful examiner as are the actual findings.

The refraction is a road test of the visual system under controlled conditions. Has the visual system the resources to cope (as measured by the duction tests)? Is it distorting due to performance stresses (as reflected by the phorias)? Has it begun to collapse (as in Streff Syndrome)?

Vision is an operation that involves the total organism.

Optometry is the only profession capable of bridging visual perceptual processing with the manifestation of any external distortions. AM Skeffington, the father of modern developmental visual science, said many times that refractive error is the last stage of a visual problem and that a visual problem is an outer manifestation of an inner problem. These platitudes are far from philosophical only; they are seen daily in all of our exam rooms. They have proven themselves true hundreds of thousands of times: they just need a proper examiner to observe and evaluate them.

To restate the initial postulation of this discussion, information with education is highly meaningful. To have data at hand with adequate grounding in knowing what to do with it is not only meaningful, but it is healing and it enhances the quality of life of the recipient. A visual exam requires the observation of a trained professional, a doctor, and the patients will be benefit from and be grateful for it.

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Lewin Survey Finds Large Optometry Surpluses: An Editorial Analysis

Lewin Survey Finds Large Optometry Surpluses: An Editorial Analysis
Kenneth J Myers, Ph.D, OD
October 1, 2014 members may comment on this article here

Lewin Finds:

  • Optometrists Total 39,600 in 2012
  • Optometry Surplus of 12,672 in 2012
  • Future Shortages of Ophthalmologists
  • Replacing Ophthalmologists with Optometrists Still Leaves Large
  • Optometry Surpluses
  • Supply of Eye Care “Providers” is “Adequate”

The author would like to thank his many colleagues who generously took their time to read and comment upon drafts of this paper and Jennifer Spangler, Research Survey Manager at the AOA St. Louis, MO. Office for her assistance. Please address questions, corrections, or comments to

Executive Summary

The 2012 Lewin National Workforce Survey of Optometrists gathered extensive demographic data about the average optometrist’s practice.

The survey found in 2012 the average optometrist could see 32% more patients (19.8/week) without adding staff or increasing hours reserved for patient care. This was the equivalent of 12,672 full-time surplus optometrists.

Lewin next developed three eye care supply-demand models. Models 1 and 2 ignored the 2012 surplus. Model 3 did not, but assumed a future “total” eye care market in which 1.36 surplus FTE optometrists fill each 1.0 FTE ophthalmologist shortage.

Model 1 (zero 2012 OD surplus) projected a surplus of 3,100 optometrists and a shortage of 5,400 ophthalmologists by 2025.

Model 2 used all surplus optometrists to replace ophthalmology shortages which reduced the ophthalmology shortage from 5,400 to 4,300 in 2025.

Model 3 recognized the 2012 surplus of 12,672 FTE optometrists and projected OD surpluses would fall to 4,400 FTE by 2025 if all ophthalmology shortages were filled with surplus optometrists and demand for eye care increased significantly. If optometrists did not fill all ophthalmology shortages and demand did not increase, the 2025 optometry OD surplus would be about 11,000 FTE.

The OD surpluses and OMD shortages will continue to increase until 2045.

All three Lewin Models are seriously flawed. But the 2012 surplus of 12,672 FTE optometrists found by the Lewin Survey must be addressed to mitigate its damaging effect on younger optometrists burdened by student loan debt.

The Survey found that of those under age 30, 65% practiced at two or more locations as did 40% of those aged 30 to 39. In fact, 11.5% of those under the age of 30 practiced at four locations.

Despite its flawed manpower models, the Lewin Survey report itself provided much needed data on the extent of the optometry surplus and its effect on younger optometrists. That Survey was the first to document there is a surplus of optometrists and to evaluate its impact on younger practitioners as shown by the high percentages of younger optometrists attempting to practice full-time by piecing together two or more part-time practice sites.

But Lewin’s total eye care supply and demand model, that uses the optometry surplus to replace future shortages of ophthalmologists, is highly implausible as explained in this analysis, as it assumes all future shortages of ophthalmology care will be provided by optometrists at the rate of 1.36 optometrists providing the same services as one ophthalmologist.

In the total eye care supply and demand Model 3, Lewin shows a surplus in 2012 of 12,672 optometry FTE that could only decline by 2025 to a surplus of about 4,400 if:

All ophthalmology shortages are filled by optometrists.
There is a large future increase in demand for eye care.
The author believes it more likely the current surplus will grown rather than decline by 2025 due to the untenable nature of the above assumptions.

Finally, thought must be given to the nature of the optometry surplus. The 2012 surplus of 12,672 is distributed across some 40,000 ODs and Lewin’s assumption this surplus FTE pool will be tapped to replace ophthalmology services and thus reduce optometry surpluses somewhat, ignores market place realities and licensing laws.

While a portion of ophthalmology shortages may be filled from the optometry surplus, it is likely those shortages will be filled by greater efficiencies, enhanced technical means and support practitioners affiliated with medical physicians and ophthalmologists. The surplus optometrists will likely remain as entropy within the “optometry market”, in competition with other optometrists which, due to population growth rates of only 0.87% per year, will produce increasing difficulties for younger practitioners attempting to establish viable independent office-based practices.


ACA = Affordable Care Act (Obama Care)

CHI = Children’s Health Insurance

Diabetes Demand = Expected demand for eye care due to its complications

OD = An optometrist

OMD = An ophthalmologist

ODe = A surplus optometrist providing all services of an ophthalmologist
at the rate 1.36 ODe FTE=1.00 OMD FTE.

Lewin Models 2 & 3 solve future shortages of OMDs by
assuming they are all replaced by ODe FTE. A 1.00 OMD
FTE shortage is replaced by (1.36) x (1.00 OMD FTE) = 1.36
ODe FTE using surplus optometry FTE.

Optometrist Defined FTE = In Lewin manpower Models 2 and 3, a hypothetical “total eye care market” is used in which ophthalmology supply and demand is converted into equivalent optometry supply and demand and all shortages of ophthalmologists are filled using surplus optometry FTE. The author uses ODe to refer to surplus optometrist FTE used by Lewin to fill ophthalmology shortages. See below.

D = Density = Numbers of optometrists per 100,000 population

Supply OD FTE = An average OD treating 2,956 patients per year

Supply OMD FTE = An average OMD treating 4,027 patients per year

Supply ODe FTE = A surplus OD FTE seeing 2,956 OMD patients per
year in place of an ophthalmologist [4,027/2,956 =

Demand OD FTE = Demand for OD treatments in OD FTE

Demand OMD FTE = Demand for OMD treatments in OMD FTE

Demand ODe FTE = Demand for OMD treatments using ODe FTE
surplus at the rate 1.36 ODe FTE = 1.0 OMD FTE.

Surplus = The amount by which the supply of manpower exceeds the amount of manpower required to equal, or match, the demand or need for that manpower. Lewin measures supply, demand and surplus in “Optometry Defined FTE” in its Model 2 and 3 “total eye care markets”, in which an OD is assumed to supply the same services as an OMD except at the lower rate per year of 2,956 patients.

a, 1 OD FTE = services of one OD at rate of 2,956 patients per year
b, 1 OMD FTE = services of one OMD at rate of 4,072 patients per year
c, 1 Optometry Defined FTE= services of one OD = 1/1.36 = 0.74
OMD FTE = 2,956 ophthalmology or optometry patients per year.

FTE Surplus or Shortage

The surplus, or shortage, of ODs or OMDs expressed in FTEs of supply and demand for each respective provider type. ODe FTE denotes surplus OD FTE used to fill ophthalmology FTE. 1 ODe FTE = 1 OD FTE = 0.74 OMD FTE.

Surplus OD FTE Supply

Lewin’s optometry survey determined an average OD in 2012 could see 19.8 (32%) additional patients/week without additional patient care hours, staff or equipment. This “excess capacity” totaled 12,672 OD FTE in 2012.

Lewin’s Models 1 and 2 assumed the supply of OD FTE in 2012 equaled (matched) demand: ie, there was no surplus of optometrists in 2012.

Lewin’s Model 3, however, used the 2012 surplus OD FTE to fill all ophthalmology shortages which still leaves large future OD surpluses.

Impact of Increased Enrollments on OD
The driving force behind current surplus numbers of practicing optometrists began around 1990 as schools began to enlarge their enrollments and new schools began to open. Surpluses first began to appear around 1995.

For decades, the density D, of optometrists per 100,000, had been at about 10.0 but, by 1997, had reached 11.5 and then 12.8 at the time of the 2012 Lewin National Optometry Survey. This was a 28% increase in numbers of optometrists per 100,000 since 1997, which correlates well with the Lewin finding of a 32% “optometry excess capacity” in 2012. The small difference between 28% and 32% indicates there was “excess capacity” already present in 1997 as the Abt. Survey at that time did not ask optometrists how busy they were and merely assumed supply equaled demand at D=11.5.

The two projections of D beyond 2015 reflect graduation rates of 1,700 or 1,900 per year. Lewin assumed a future rate of 1,800 per year which will
result in D reaching 16.0. The author believes these future D values will create still larger surpluses of optometrists after Lewin’s end point of 2025.


A: The Three Lewin Manpower Models.

Understanding the Lewin Eye Care Workforce Study requires careful study because Lewin employs three different, flawed, supply-demand models and makes varying, often unrealistic assumptions which require the reader to pay strict attention as to which projections correspond to which assumptions.

Only Model 3 recognizes an optometrist surplus in 2012, as Models 1 and 2 assume OD supply exactly equaled optometry demand in 2012.

Model 1 assumes zero optometry surpluses in 2012 and projects separate supply-demand data for optometrists and ophthalmologists that show a future OD surplus of 3,100 FTE and a 5,400 FTE OMD shortage in 2025.
[Figures 1, 2 and 3 below]

Figure 1 shows Lewin’s projected numbers of optometrists and resulting lower net FTE by Lewin assuming future entering optometrists would see fewer patients, a questionable assumption since entering optometrists have always seen fewer patients. As a result the Lewin supply projection is not compatible with other studies and underestimates future surpluses.

Figures 2-3 show Lewin Model 1 projections of an optometry surplus of 3,100 FTE and an ophthalmology shortage of 5,400 FTEE by 2025. They each assume zero optometry and ophthalmology surpluses in 2012.

Model 2

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The Optometry Surplus: A Quantitative Determination of Excess Densities

The Optometry Surplus:
A Quantitative Determination Of Excess Densities

Kenneth J. Myers, Ph.D., O.D.
President, American Board of Certification in Medical Optometry
Director Emeritus, Optometry Service, Dept. of Veterans Affairs, Washington, D.C.
June, 2014

Table of Contents
1. Executive Summary
2. Future Surplus Numbers
3. Purpose of Study
4. Methodology, Parameters Determining Density, Past Studies
5. Concluding Opinions
6. Footnotes
7. Appendix
8. Bibliography

Executive Summary

This study calculates the degree to which additional schools of optometry, and increased enrollments at existing schools have, and will, produce record densities (D) of optometrists and an increasing surplus of optometry manpower.

Since 1997, graduates will, this year, have increased by 42%, enrollments by 55% and density of optometrists by 11%, from D=11.5 in 1997 to over D = 12.8 per 100,000.

In 1997 the national Optometry Census led to the conclusion supply equaled demand for the density at that time of D=11.5. A manpower study, released in 2000 by Abt. Associates, sponsored by the AOA, projected surpluses from 1998 to 2030 if graduation rates remained at 1,127. But, graduation rates have increased and will reach 1,700 by 2016 and perhaps approach 1,900 by 2018 when two additional schools begin to produce graduates. In the past 80 years D has only once, briefly, reached 14 in the early 1950’s.

This surge in enrollments, if unchecked, will cause densities to reach record highs each year until eventually peaking at D=15-17. Creditable projections of future population growth and demand for optometry care do not require these high densities, and will create market disorders as population growth rate is low and falling.

A surplus density creates real hardships for optometrists burdened with educational loans and especially new graduates, and is a misuse of valuable human resources. Then, if applications decline as candidates question entering an overpopulated profession, this can drive schools to accept less qualified applicants. Applicants for the 2013 entering classes, for example, were already below 1.4 per seat.

Free-standing schools unaffiliated with universities, have higher enrollments and are most vulnerable. Two have begun training physician assistants or audiologists to mitigate effects of optometry oversupply and declines in applicants.

As in other education “bubbles” there are three key drivers:

• Overly optimistic predictions of future demand and employment opportunities.
• Accreditation Council on Optometric Education standards that, unlike medical and dental accrediting bodies, lack quantifiable, clinical, training requirements.
• Guaranteed student loans for which schools have no re-payment obligations.

This paper quantifies the impact increased enrollments have had, and will have, on future supply as measured by the density (D) of optometrists.

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Vision Service Plan vs The United States of America

Why VSP lost its tax-exempt status: Court documents reveal high salaries and bonuses for executives, and propensities to operate like for-profit companies
Copyright 2008, Gil Weber, MBA. All rights reserved

Two recent court decisions likely will impact the competition among vision care plans. Twice in just over two years VSP has been handed stunning defeats in a protracted battle to regain its tax-exempt status. And the decisions might push VSP to make changes that, in time, will adversely impact your practice.

Here’s a look at why VSP lost and how, in my opinion, the collateral financial fallout could land squarely on your practice’s bottom line. I’ll also tell you about some financial revelations from the court cases that may partially answer a question so many ODs have asked for so many years: “Where does all the money go?”

That was then; This is now

In 1955 a group of Northern California optometrists established California Vision Services as a vehicle to contract with employers and other entities, and to gain access to captive populations, thereby driving business to participating practices. The company later renamed itself Vision Service Plan and, in 1960, was granted tax-exempt status.

From the beginning VSP’s mantra has been “By optometry; for optometry,” and at least initially it certainly seemed that this was the case. There is no question that many new patients have come into optometric practices as a result of VSP’s sales and marketing prowess. But over the years VSP’s policies, protocols, and participation requirements have evolved dramatically.

Where once most optometrists felt the organization was private practice optometry’s friend, now many opine that it has become too big, too powerful, and certainly too arrogant. From postings on Internet list-serv discussion boards it is clear that many ODs feel VSP has strayed far from its initial founding principles and has intruded beyond reason into their daily operations, even to the point of hurting them financially.

For example, VSP has contracted with some CIGNA plans to manage the delivery of medical eye care services. ODs who, to that point, had billed CIGNA directly, describe how they have found themselves suddenly placed onto a VSP medical eye care panel that reimbursed at noticeably lower rates than they received before the change. In that switch ODs got back the same CIGNA patients they had been treating all along, but now at lower reimbursements through VSP.

Thanks a lot, VSP,” was the commonly expressed sentiment. And ODs rightly wondered why VSP imposed itself between the payor and doctors who already were providing medical eye care. What added value did VSP bring to ODs in this and similar arrangements? The only things obvious were that VSP would get paid to serve as the middleman, and that if ODs wished to continue seeing their medical eye care patients their now-reduced reimbursements would be coming from “optometry’s friend.”

A dollar here; a dollar there… Pretty soon it adds up to… Wow!!!

One enduring irritation for many optometrists is that while growing into a financial juggernaut, VSP has not openly shared financial information with the panel participants who provide the patient care. Not surprisingly, many ODs resent VSP’s secretive nature, and they wonder where the money goes once claims and administrative expenses have been paid.

In the September 2003 issue of Optometric Management I presented some financial information collected from the website of California’s Department of Managed Health Care, the regulator of most California health plans. Read at:\2003\september\0903069.htm

Based on reader reaction, that VSP data must have been a revelation to most of the nation’s ODs. It indicated the enormity of VSP’s financial resources, particularly in terms of net income and cash-on-hand. And many ODs wondered why some of that profitability was not coming back to the very doctors who made it possible in the first place through the discounting of their professional services.

VSP promoted itself as non-profit, yet they certainly did not appear to be operating like a non-profit company. Rather, their business practices seemed more like those of for-profits. And, as it turns out, the IRS agreed.

Time to pay the piper: VSP loses its tax-exempt status

VSP was set up as a tax-exempt entity under IRS code 26 U.S.C. (“IRC”) Section 501(c)(4). In 1999 the IRS started to look at VSP and, thereafter, concluded it was not entitled to tax-exempt status under 501(c)(4).

The IRS issued a final determination and revoked VSP’s 501(c)(4) status, effective prospectively from January 1, 2003. VSP paid the tax on its 2003 earnings and then filed suit in the United States district court, eastern district of California. (Vision Service Plan, Plaintiff, v. United States of America, Defendant NO. CIV. S-04-1993 LKK/JFM)

That case is summarized next. Here, I’ll use court documents to explain why VSP felt it was entitled to tax-exempt status, and why the government and, ultimately the district court, felt the opposite. And I’ll cite court documents revealing where some of the money went rather than going to the doctors. Many of the numbers may astound, and when the dust finally settles the results could be significant for all concerned.

VSP vs The United States

On November 7, 2005 the parties presented their cases before Judge Lawrence Karlton. VSP asked to be confirmed as a social welfare organization under 26 U.S.C. §501(c)(4). Further, it asked for return of the 2003 tax payments and an order that the United States issue it a private letter recognizing VSP’s 501(c)(4) status. In opposition, the government asked for summary judgment on the grounds that VSP did not qualify for tax exemption under 501(c)(4).

Judge Karlton ruled against VSP on December 12, 2005. Here, I’ll summarize the arguments from both sides and Judge Karlton’s decision.

Applicable law

On pages 6 and 7 of his opinion the judge wrote, “Section 501(c)(4) of the Internal Revenue Code (26 U.S.C.A. § 501(c)(4)) provides federal tax exemption to a social welfare organization. Section 501 provides, in pertinent part, that ‘organizations not organized for profit but operated exclusively for the promotion of social welfare’ shall be exempt from taxation.” 26 U.S.C. §§ 501(a) and 501(c)(4)(A)

He also clarified an important point that, “Although the words ‘exclusively’ and ‘primarily’ have different meanings, courts interpret the word ‘exclusively’ to mean, ‘primarily.’

And he wrote, “In like fashion, the regulations provide: An organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community…. (and) … is operated primarily for the purpose of bringing about civic betterments and social improvements.” 26 C.F.R. § 1.501(c)(4)-1(a)(2)

Conversely, he pointed out that if an organization’s primary activity is doing business with the public in a manner similar to a for-profit organization, then it is not operated primarily for the promotion of social welfare. 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

So to make its case VSP had to demonstrate to the court’s satisfaction that its operations were primarily for the promotion of social welfare and, further, that it was not organized for profit. Ultimately, on these points the judge found that, “VSP is unable to demonstrate satisfaction of either of the two requisite criteria.”

The promotion of social welfare – VSP fails to make its case

VSP argued that it qualified for exemption under 501(c)(4) because its operations were primarily for the promotion of social welfare through direct (contracted) services to broad segments of the community as well as through charity work. While Judge Karlton described VSP’s charitable work as admirable, he found that VSP failed to establish it operated primarily for the promotion of civic betterments and social improvements within the meaning of the tax regulations. On page 8 he noted that, “[E]ven though there may be aspects of the organization that greatly benefit society, if the majority of the organization’s services benefit private members, the organization cannot qualify for an exemption under 501(c)(4).”

VSP’s client base (“We are the world”)

VSP opined in so many words that its broad spectrum of patients essentially was the community and, thus, qualified it for the requested status. VSP said it served small businesses, geographic areas designated as medically needy or under-served, Medicaid and Medicare participants, and low-income children through the California Healthy Families Child Heath Assistance Program (“Healthy Families”). But Judge Karlton was not persuaded.

On page 11 he stated, “Servicing small employers or rural subscribers and enrollees does not equate to promoting social welfare… Small employers or rural employers are still paying for VSP’s services and VSP is making a profit from these contracts. VSP submits that the Internal Revenue Manual lists servicing smaller employers and rural enrollees as a factor in determining if an HMO qualifies for exemption under 501(c)(4)… This argument is unavailing… VSP is not an HMO.”

Judge Karlton continued on pages 11 and 12, “VSP argues that servicing Medicaid, Medicare and Healthy Families participants is a central part of how VSP promotes social welfare…. VSP submits that it suffered substantial losses from providing services to Medicaid, Medicare and Healthy Families participants…. VSP argues that these facts support a finding that VSP is primarily engaged in promoting social welfare. The court cannot agree.”

And on pages 12 and 13 he made a particularly pointed comment regarding VSP’s ostensible financial losses, including a footnoted observation that ODs will surely find ironic.

“First, VSP competitively bid for the Medicaid, Medicare and Healthy Families contracts…. Second, in calculating the alleged losses, VSP includes discounts given by participant doctors. This does not appear appropriate. As the court understands it, the providing doctor incurs the loss and not VSP.(4) Therefore, the court does not accept as accurate the alleged ‘losses’ as calculated by plaintiff.”

(4) “Defendant’s example is helpful in understanding how it is that VSP does not absorb the loss: For example, suppose the customary doctor fee was $100 per patient and the reduced doctor fee for Subscribers with Medicare enrollees was $75 per patient; VSP does not suffer a $25 loss because, while it receives $75 per patient from the Subscriber, it is required to pay the doctor provider only $75 per patient, not $100. Thus, there is no net ‘loss’ to VSP. The doctor is the only participant who arguably suffers a ‘loss.’”

Judge Karlton wrote on page 14 that VSP profited on these programs. Further, he stated that even if the Court concluded that servicing these enrollees did constitute the promotion of social welfare, they accounted for less than half of VSP’s total enrollment and were incidental. And that negated any argument that VSP was “…primarily engaged (much less exclusively engaged) in promoting social welfare.”

VSP’s charity services

While VSP maintained that it provided charity care to many non-enrollees, the court found that the number of these services was relatively small and did not establish VSP as primarily engaged in promoting social welfare. On page 15 Judge Karlton stated, “Indeed, children receiving care under the Sight for Students program constituted only .19% of VSP’s total enrollment.”

On page 17 of the opinion the judge summarized and stated, “VSP’s services are most beneficial to private paying members, the subscribers and the enrollees…Serving the interests of these private subscribers is clearly a non-exempt purpose. This non-exempt purpose destroys VSP’s exemption status, regardless of the number or importance of truly exempt purposes.”

Operating as a non-profit? The court says no

VSP also argued that it was organized as a non-profit, and that it operates like one. VSP referenced its by-laws that were quoted, in part, in the court record. “This Corporation shall operate as a nonprofit corporation and shall be organized and operated exclusively for the promotion of social welfare within the meaning of Section 501(c)(4) of the Internal Revenue Code of 1986, as amended, or any successor provision.”

But Judge Karlton brushed aside VSP’s position. On page 18 he pointed out that, “The issue, however, is not whether plaintiff is a nonprofit corporation for corporation law purposes, but whether it is one for federal tax purposes…. According to the Treasury regulations, an organization is not operated primarily for the promotion of social welfare if its primary activity is ‘carrying on a business with the general public in a manner similar to organizations which are operated for profit.’” 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

One can only speculate as to which specific activities caused the judge to view VSP’s activities as more like those of for-profit companies than non-profits. Perhaps he wondered why a company professing non-profit status and whose business since 1955 had been the administration (i.e., paper-processing) of vision care benefits would, in the 1990s, get into the dramatically different business of importing and selling frames (Altair). Perhaps he found it incongruous that a “non-profit” company was into supply chain management.

Certainly no OD in this country has any misconception about why Luxottica, a for-profit company, is in managed vision care. They bought LensCrafters, gave a huge funding kick-start to EyeMed, and ramped-up those operations to build EyeMed into a major competitor for VSP. And everyone knows, understands, and accepts that Luxottica is in managed vision care through EyeMed to sell frames – to grow its profits. Perhaps Judge Karlton viewed it as incongruous when VSP argued its primary purpose was the promotion of social welfare, yet it had set up this new company with a sales force that actively promoted Altair frames to panel doctors.

Whatever his specific considerations, he presented a hard-hitting summation of financial matters, literally cutting out the heart of VSP’s argument that it did not operate like a for-profit company. His comments invite the question, “Where does the money go?”

He wrote, in part, on pages 18-20, “Moreover, a corporation that devotes much of its revenues to improving its ability to compete commercially through accumulation of large surpluses and expansion of its income producing facilities is not entitled to exemption under Section 501(c)(4)…. In this regard, I begin by noting that VSP engages in cost cutting measures common to for-profit businesses. For example, a portion of VSP’s bonus structure paid to its employees is directly tied to reducing VSP’s costs…

“Second, VSP strives to remain competitive in ways that do not appear to be consistent with the operations of a non-profit. For example, VSP pays commissions to brokers who bring new clients. In 2003, VSP paid $19 million in broker commissions. (This is more than VSP spent on charity work in 2003.)…

“Moreover, the court is unable to agree with plaintiff that no one profits from its activities. Although VSP’s by-laws provide that VSP has no equity owners who are entitled to share in its net earnings, in fact VSP executives and officers receive bonuses that are taken directly from the net earnings…. Furthermore, VSP offers its executives high salaries and other forms of compensation that are more consistent with a for-profit corporation than an non-profit…. (Author’s note: see financial revelations below.)

“Chief officers and executives are also provided with luxury company cars…. VSP specifically targeted the executives’ salaries to median market levels, making no distinction between salaries paid to executives working at for-profit businesses, and executives working at non-profit entities….

“The court concludes that VSP carries on business with the public ‘in a manner similar to organizations which are operated for profit.’” 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii) ”Therefore, VSP does not operate primarily for the promotion of social welfare.”

Judge Karlton’s final words

“Plaintiff has failed to establish that it qualifies for exempt status under 501(c)(4). VSP is not operated ‘exclusively for the promotion of social welfare’ as provided for in 501(c)(4). For these reasons, summary judgment for the defendant, United States, is granted. Summary judgment for the plaintiff, VSP, is denied. The Clerk is directed to enter judgment accordingly and close the case.” (page 20)

VSP appeals, and then loses again

The potential ramifications of the decision were profound, and nobody expected VSP to fold its tent and accept this ruling without contest. They appealed to the Ninth Circuit Court of Appeals, and arguments were heard in December 2007.

Then, in January 2008 the Ninth issued its opinion, upholding the district court and Judge Karlton. (Vision Service Plan, Inc. v. United States of America, 2008 WL 268075 (9th Cir. Cal). How far this whole affair goes from here remains to be seen.

The hearing in the Ninth Circuit Court was held before a three-judge panel. But on March 13th VSP requested an “en banc” hearing before the same court, meaning its case would be presented to a larger panel of judges.

If VSP wanted to appeal to a higher court the next step would be the United States Supreme Court. But it’s hard to imagine that the Supreme Court would hear VSP’s appeal. That court likely could care less whether VSP is or is not a 501(c)(4), and it’s unlikely the Supreme Court would devote the time to making that sort of determination for one company.

However, as reported in Jobson’s VMail Extra on February 21, 2008, current president and CEO, Rob Lynch, stated, “The court’s determination calls into question the tax-exempt status of all not-for-profit organizations with a membership structure, including other healthcare delivery systems and educational institutions. VSP delivers vision care benefits to its members under the same delivery model as other tax-exempt health plans such as Kaiser and Delta Dental.”

And in that statement is a very interesting point, for the tax-exempt status of an entire class of not-for-profit organizations might be exactly the sort of thing that the US Supreme Court would choose to review. The Supreme Court might consider a case that appears to present an important question of law needing clarification, or if the decision by the Ninth Circuit conflicts with one rendered by another Circuit Court such that the state of the law is uncertain.

As this story was being prepared in February and March 2008, VSP continued fighting on another front, this time in the United States District Court, Southern District of Ohio (2:07-MD-01829-JLG-TPK). There, VSP was arguing essentially the same case it unsuccessfully put before the district court in Sacramento.

In this instance, five local VSP affiliate companies are asking for the return of more than $26 million in corporate income taxes paid for the years between 1994 and 2000. And, again, the government has asked for summary judgment.

And so it is conceivable that this matter is far from settled, and we may be seeing the ophthalmic industry’s version of Microsoft in action – a company with essentially limitless financial resources litigating endlessly.

Assuming the decisions stand and there is no reversal, it seems reasonable to postulate that the loss of tax-exempt status may cause VSP to consider some changes to its business model. If VSP must now pay considerable taxes, then recovering that lost “profit” and maintaining or growing its present market-dominating position might be attempted in one or more of several ways including: 1) by raising the rates charged to health plans, employer groups, unions, etc. — a difficult undertaking given the unrelenting competitive pressure from EyeMed, Davis Vision, and others or, 2) reducing the fees paid to the providers of patient care (i.e., you!) or, 3) by pushing even harder into expanding its book of business as middleman-administrator of medical eye care services or, 4) by adding new charges to the doctors for certain goods and services.

And it’s easy to come up with a list of new doctor-funded revenue streams VSP could consider. It might choose to start assessing an annual participation fee for each doctor, or a credentialing fee for the dispensary. VSP might elect to tie the use of Altair frames to continued participation. It might decide to charge a processing fee per claim, or it could put into place proprietary claims submission software, mandate its use, and then charge some sort of fee to panel doctors.

I have no knowledge that these or other possibilities are under consideration at this time. But going forward if VSP is unsuccessful in its appeal, nothing should surprise given how the loss of tax-exempt status suddenly changes the game. And while you think about the possibilities, also consider this information that was made part of the court records.

Financial revelations from VSP vs the United States

For years many ODs have wondered about the inner workings of VSP, in particular the compensation paid to VSP’s executives. They’ve also wondered about the implementation of certain controversial policy decisions. Court documents provide a fascinating look at various decisions and where some of the dollars went. The following documents regarding the 2005, 2007, and 2008 matters before the district and appeals courts are available on the Internet:

1) Various IRS form 990s (“Return of Organization Exempt From Income Tax”) that list base compensation paid to the top tier execs,
2) Roger Valine’s deferred compensation agreement,
3) Depositions of several top VSP executives describing compensation, bonuses, and other benefits including luxury cars,
4) Financial statements and memoranda to the Board of Directors regarding those statements,
5) Internal VSP memos regarding doctor compliance with requirements of the eCLAIM and Altair frame programs,
6) A transcript of the November 2005 proceedings before the district court,
7) A transcript of Judge Karlton’s December 2005 district court decision,
8) An audio recording of the December 2007 arguments before the Ninth Circuit Court of Appeals,
9) The affirmation issued by the Ninth Circuit Court,
10) Briefs and declarations submitted for the 2008 Ohio district court case.

Here are some snippets from those documents. You’ll likely find them fascinating and, perhaps, agitating.

Base Salaries

The 2004 IRS Form 990s list that year’s compensation for some top executives as follows. (Note: deferred compensation is itemized separately.)

Roger Valine – $1,299,682
Gary Brooks – $474,530
Patricia Cochran – $366,713
Don Price – $256,431
Cheryl Johnson – $242,097
Walter Grubbs — $330,405
Richard Steere — $666,770


The depositions reveal that top executives can (and do) receive sizeable annual bonuses depending on corporate results and meeting individual performance targets. For example, on pages 112 and 115 of his August 10, 2005 deposition Richard Steere, Vice President of Sales stated that, “My bonus is based upon primarily growth in our business…That’s calculated on a percentage of our revenue and administrative income growth…and then I get a small portion of that.”

When asked approximately how much he received as a bonus Mr. Steere replied, “It could be three or $400,000 depending upon how much the company grows.”

Roger Valine’s deferred compensation agreement

Perhaps nothing about VSP has generated more speculation than Mr. Valine’s compensation. Certainly under his leadership VSP has grown and prospered. And there’s no doubt that ODs have benefited.

As CEO of a successful company he would be expected to earn a sizeable salary. And as noted above, the 2004 tax filings submitted to the court indicate he did that in spades. But he also was the beneficiary of a handsome deferred compensation package, the details of which were revealed in the various court documents.

Mr. Valine executed a new deferred compensation agreement on March 8th, 2002. Paragraph 2 of this bonus agreement states the following, “Measuring Account. VSP shall create a memorandum book account entitled, Vision Service Plan Executive Deferred Compensation Plan (hereinafter the “Measuring Account”) to track the amount of Officer’s deferred compensation generated as a result of this Agreement. This Agreement is intended to be an excess benefits plan that will provide Officer deferred compensation only to the extent that the Measuring Account exceeds the proceeds received from the sale or redemption of Officer’s stock in Altair Holding Company over his cost of acquiring the stock, including any interest paid.”

Thus the Measuring Account was an accounting vehicle to determine the amount he potentially could receive at retirement and upon meeting all obligations. The amount ultimately available for distribution would be the fair market value of the Measuring Account reduced by the difference in the sale and acquisition prices of his stock in the Altair Holding Company. On page 75 of Mr.Valine’s deposition he states his acquisition cost for this stock was $150,000.

There were multiple streams of dollars feeding the Measuring Account. For all employees VSP contributed up to 15 percent of salary into a retirement account. At the time, the federal ceiling for such contributions was roughly $30,000.

But on pages 81 and 82 of his deposition Mr. Valine affirms to the government’s attorney that VSP contributed an additional amount in excess of that $30,000 limit to his Measuring Account. In fact, paragraph 5(a) of the Deferred Compensation Agreement states, “Excess Benefit Plan. VSP shall credit to the Measuring Account the excess amount which would have been contributed to the Officer’s qualified profit sharing plan account, but for the maximum limitations imposed by Internal Revenue Code section 415 and section 401(a)(17).”

So VSP was to pay in the amount in excess of $30,000 that equaled fifteen percent of his salary.

He also was entitled to a “Total Revenue Incentive.” As described on page 3 of the agreement, for each month in 2002 and each month thereafter VSP credited to the Measuring Account, “…an amount equal to VSP’s Total Revenue for the month, multiplied by .04% (.0004).”

How much did that represent on an annualized basis? First one must know what is being referenced as “Total Revenue.” On page 82 of his deposition Mr. Valine is asked if this meant the total revenue of VSP California or of VSP Consolidated? He replied that it was VSP Consolidated.

Then, for example, looking at the 2003 financial statements (“Combined Statements of Operations, VSP and Affiliated Corporations”) the annual revenues are stated as $1,968,488,157. Multiply that by .0004 and the result is $787,395.

Mr. Valine was also the beneficiary of a “Cost of Benefits Paid Incentive.” It is defined on page 3 of the deferred compensation agreement. “For each month in 2002, and for each month in each year thereafter, an amount equal to the Cost of Benefits Provided for that month by VSP multiplied by .05% (.0005).” 

Again referring to Mr. Valine’s deposition, on page 83 he is asked to explain “Cost of Benefits Paid” and says, “It would be all costs associated with providing services to patients, so it’s not admin cost. It’s related to claim cost.” And, again, he confirmed that this was for VSP Consolidated.

Looking again at the 2003 financial statements, “Costs of benefits provided” are shown as $1,640,203,947. Multiplying by .0005, the result is $820,101.

Another potential source of bonus account growth was designated the “Administrative Expenses to Revenue Incentive.” This bonus was an incentive to drive down administrative costs and had nothing to do with claims expenses. On page 4 of the agreement the amount was defined as, “Such amount shall be equal to four thousand dollars ($4,000) for each one-tenth of one percent (1/10th%) that the Actual-Administration-to-Revenue-Ratio for the prior year is less than the Administration-to-Revenue Benchmark.” 

The Actual-Administration-to-Benefit-Ratio was defined by this formula:

General and administrative expenses – Board approved adjustments + indirect marketing costs allocated to Altair Eyewear ÷ (total revenue – interest revenue). And the Administration-to-Revenue benchmark was pegged at 13%.

Note: Given the uncertainty of variables that could go into the calculation of this bonus pool — for example, the addition or subtraction of Board approved adjustments — it was not possible to estimate any amount paid in for 2003.

Mr. Valine could benefit from yet another potential bonus pool, the “Personal Performance Incentive,” described on pages 4 and 5 of the agreement as, “From time to time, the Board, in its sole discretion, may credit additional amounts to the Measuring Account based upon Officer’s performance in the prior year. Prior to the beginning of each year, the Board shall inform Officer of its objectives for the upcoming year, and based upon Officer’s actual performance, the Board may credit additional amounts to the Measuring Account.”

During his deposition Mr. Valine was asked if there were any upper limit on the amount the Board could give, and he replied that he was not aware of any. He also was asked if he had received this Board-approved bonus each year since 2002, and answered in the affirmative. And when asked how much he received as these bonuses he replied on pages 85 and 86 of the deposition that the amounts, “…would have been between $175,000 and $275,000.”

A seventh potential source of contributions to his Measuring Account came from what was called the “Phantom Stock Plan.” Described on page 5 of the agreement, the name is really something of a misnomer since there actually was no stock. Rather, this was another accounting vehicle whereby Mr. Valine was credited with 42,125 “shares” out of a total “share” count of 10,000,000.

The agreement states, “The amount credited to the Measuring Account shall be equal to the Actual Value per phantom share on the first day of January each year this Agreement is effective less the Actual Value per phantom share on the first day of January in the immediately preceding years multiplied by 42,125.” 

The actual value of a share was the Cost of Benefits Provided during the preceding year ÷10,000,000. So if things went well from year to year the value of his “shares” would increase over the previous year’s value, and his Measuring Account would then receive an amount equal to the annual increase in a share’s value X 42,125.

Yet another source of potential funding into his retirement account came from a bonus described on pages 90-92 of his deposition, and designated the “Increase In Members Covered By MedVision, PEC, AEC, and IPEC Plans Incentive.” This was a straight-forward and simple measure of net gain increases in annual enrollment. If the number of lives covered by any of these plans rose, then Mr. Valine’s account was credited twenty cents per increased life.

Finally, page 6 of the deferred compensation agreement provided for an “Additional Phantom Stock Plan.” It granted Mr. Valine 1,024,000 phantom shares of Eyefinity, Inc. Again, these “shares” were simply an accounting tool.

Upon his retirement the Measuring Account would be credited an amount equal to the value of one share of Eyefinity stock multiplied by 1,024,000. If Eyefinity had done well and a share of stock had value, then 1,024,000 shares could represent a considerable sum.

Highlights from the 2003 financial statements

Court documents include the 2003 financial statements and a memo to the Board regarding them. Here are some interesting numbers.

1) Assets at an all time high – More than $850 million, a 15% increase over 2002,
2) Cash and marketable securities – More than $621 million, an 18% increase,
3) Cash and cash equivalents – Almost $104 million, a 22% increase,
4) Excess of revenues over costs and expenses (after income taxes) – More than $82 million. Described in the Board memo as “Actual Profit.”

And there were also these comparative figures:


And now what?

If the prospect of VSP intruding into practices is worrisome, consider that the loss of tax-exempt status possibly could result in even more intrusion accompanied by lower reimbursements. Is it any wonder discussions on the various list-servs increasingly ask why practitioners continue to participate?

Many have opined in the past that they are fed up with the many ways VSP gets “into” their private practices. Given the financial revelations that have come out of these court cases member doctors are likely to say, “I’m mad as hell, and we must change our working relationship with VSP.”

One optometrist familiar with the recent decisions suggested to me that maybe it’s time VSP doctors took back control of what used to be their affiliate VSPs. He said, “We turned over control of our local VSP affiliate to VSP of California for marketing purposes. They have done a fantastic job marketing our services as a much-needed conduit for vision care, but they seem to have little regard for member doctor concerns such as low reimbursement and excessive control of our private practices. What we have now is the tail wagging the dog.” 

He continued, “VSP Management places high priority on patient and employer satisfaction, as well as VSP employee job satisfaction, but clearly does not seem to value member doctor concerns. VSP member doctors should regain their rightful place at the head of the bargaining table rather than wait powerlessly to see what scraps are left over from the fruits of their labors. Enough is enough.”

And that’s certainly an interesting thought – to take back control and run local VSPs to serve local interests. Assuming compliance with antitrust laws and insurance regulations, and assuming establishment of a financially and administratively sound infrastructure, is that a possibility or is it wishful thinking?

VSP has done a lot of good things over the years. For example, its efforts on behalf of Hurricane Katrina victims were admirable. But a lot of other companies also provide much needed help to the needy, and they do it without wrapping themselves in the mantle of “social welfare.”

The decision of the district court and affirmation by the court of appeals told VSP it was time to drop pretenses.

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Gil Weber, MBA is a nationally recognized author, lecturer, and practice management consultant to practitioners and the managed care and ophthalmic industries. You can reach him at (321) 433-0623, or see his website,

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