Opinion: Eagle Post

Tom Donnelly reports from the USA.

The COVID-19 pandemic has allowed a temporary relaxation of rules around remote animal care by veterinary telemedicine.  The American Veterinary Medical Association (AVMA) fiercely contends that establishing a “veterinarian-client-patient relationship” (VCPR) by in-person examination is a prerequisite for telemedicine. Many states use the AVMA’s model veterinary practice act to create laws.

However, the American Association of Veterinary State Boards, a national organisation for state regulators that advocates for relaxing rules, revised its model practice act in 2018 with telehealth guidance for establishing VCPRs remotely.

Advocates contend that the profession is evolving beyond bricks and mortar practices, and regulations should change to foster advancements in remote care, such as bringing veterinary care to poor and/or underserved populations. Many states permit physicians to consult with patients without first examining them in-person. But a critical argument is veterinary medicine is different because animal patients cannot tell veterinarians their symptoms. Babies cannot tell physicians their symptoms, but regulators have established that a parent describing the symptoms and a visual examination will create a doctor-patient relationship remotely.

Telemedicine rules vary by country. In the Canadian province of Ontario, veterinarians may engage in telemedicine without an in-person examination required. Not travelling to and waiting in a veterinary practice places less stress on animals, and long-distance prescribing can make care accessible to those living in areas with no veterinarians. In the UK, veterinarians cannot diagnose conditions or prescribe treatments without hands-on examinations according to the RCVS’s code of professional conduct. For farm animals, the guidelines imply exceptions, such as visiting one or two animals can provide ongoing treatment for a herd.

Two important telemedicine deregulation battles have occurred recently in Florida and Texas. Unlike many other states, Florida did not suspend the state’s VCPR requirements under a pandemic-related emergency order permitting veterinary telemedicine. A telemedicine company called Dutch Pet hired the lobbying firm Corcoran Partners (established by Michael Corcoran, whose brother Richard Corcoran was a former Florida House Speaker and now serves as the education commissioner) to fast-track deregulation bills in the Florida House and Senate. The Regulated Industries Committee and Agriculture Committee passed the Senate bill, and the Regulatory Reform Subcommittee passed the House bill. Both bills are pending in different committees. The Florida Veterinary Medical Association (FVMA) was shocked as, for years, it had unsuccessfully attempted to bolster telemedicine limitations through the Legislature. Now it is sending emails in rapid succession to FVMA members, urging they contact their representatives to slow the initiatives that, if enacted, could deregulate veterinary telemedicine in Florida by July 1.

Dutch Pet was created by entrepreneur Joe Spector and financed by the venture capital firm Trust Ventures. Its director of legal and policy, Dan Epstein, was as a senior associate counsel and special assistant to the president in the Trump White House. Spector co-founded the wellness company Hims & Hers Health Inc, a direct-to-consumer business providing a telemedicine platform for users seeking Viagra and other medications. Spector has said he wants veterinarians to have the flexibility to decide how to create a VCPR rather than have the government dictate the relationship.

Petitioning by the state’s practitioners resulted in amendments to the Senate bill restricting telemedicine without an in-person VCPR to cases involving nutrition, emergencies, training, skin conditions, and anxiety. It reflected a compromise between organised veterinary medicine and deregulation proponents. However, the House bill still allows veterinary telemedicine providers to establish a VCPR remotely in all instances without a hands-on physical examination.

The FVMA’s position has been that telemedicine is a useful tool but does not believe it can establish a VCPR. In testimony to the Senate Agriculture Committee, Jennifer Hobgood, the senior director of state legislation for the American Society for the Prevention of Cruelty to Animals (ASPCA), disagreed, calling expanded access to veterinary medicine as vital. Existing Florida law prohibits veterinarians from employing telemedicine unless they have seen the patient within 12 months. Hobgood contends the law is outdated, arbitrary and an unnecessary regulatory impediment preventing consumers and veterinarians from using telemedicine technology.  The AVMA is recommending members in Florida contact their lawmakers to fight the bills 

In Texas, Ronald Hines, a 77-year-old veterinarian, has had two lawsuits over eight years that use First Amendment rights (protection of freedom of speech, the press, and assembly) to challenge a Texas Board of Veterinary Medical Examiners ruling. Hines claimed that regulators violated his First Amendment rights by directing him to stop providing online medical advice. The state veterinary board suspended his licence for one year and assessed a $500 fine. Hines had been consulting with pet owners via phone and his website, often free or for a $58 fee, for more than a decade when regulators shuttered his online practice because he flouted state rules requiring that he first physically examine the patients in-person. Hines counters that the restriction stifles his right to speak freely as a professional. 

His first case was filed in 2013 and rejected by the Fifth Circuit Court of Appeals, which declared that Hines’ professional veterinary advice was not a form of protected speech but instead similar to occupational conduct such as surgery. The US Supreme Court declined to hear an appeal in 2015. Constitutional rights are not unfettered as a court may find the government has correctly balanced the interest in freedom of speech against, for example, the interest in protecting animal welfare. But in June 2018, aspects of Hines’ free speech argument were renewed June 2018 when the US Supreme Court ruled in National Institute of Family and Life Advocates v. Becerra that First Amendment protections apply to professional speech. The case challenged a California law that obliges pro-life centres to inform women about low-cost abortion services. In a 5-4 majority opinion, the high court determined that the First Amendment protects professionals’ speech, including individuals who must acquire a licence to practice. With that, the Institute for Justice, a libertarian public interest law firm representing Hines, refiled his case, bringing his second free speech lawsuit. Hines has said, “I don’t like a lot of bureaucracy between me and what I like to do.”  In March, the Fifth Circuit agreed, overturning a lower court ruling that the First Amendment does not protect occupational speech. It sent the case back to the trial court, where it originated in 2013. In the fall, Judge Hilda Tagle, in US District Court for the Southern District of Texas, Brownsville Division, will consider the merits of Hines’ suit. In the coming months, lawyers will gather to schedule proceedings in round two of Hines’ case. The outcome will have extensive consequences for the different laws about veterinary telemedicine and change the balance between First Amendment rights and government regulations. 

Tom Donnelly

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