Reconciling scope-of-practice disputes
State veterinary boards, laypersons work together on legislation
Many state legislatures reconvened at the beginning of the year, and state VMAs and veterinary examining boards have already stepped up their lobbying efforts.
Three states in particular—Texas, Oklahoma, and Arkansas—have been addressing where certain medical procedures should fall under their state veterinary practice acts.
For more than a decade, the Texas VMA has fielded reports from veterinarians who have seen a spike in the use of power tools by nonveterinarians floating horses' teeth and, with it, an increase in the use of sedative drugs.
In early 2007, the Texas State Board of Veterinary Medical Examiners changed the Texas Veterinary Licensing Act to prohibit laypersons from floating teeth. Subsequently, the board sent cease-and-desist letters to nonveterinarians who were clearly violating the act (see JAVMA, Oct. 15, 2008, page 1195). The Institute for Justice, a libertarian public interest law firm, filed two lawsuits on behalf of a dozen lay individuals who claimed they were denied their constitutional rights to earn a living by floating horses' teeth and challenged the legality of the board's actions.
The lawsuits are still pending, but this past November, Judge Orlinda Naranjo made a partial ruling in the case, saying that if the state board wished to change the tooth floating policy, it would have had to go through standard procedures, which the board failed to do. Further, the judge said the state board can't stop laypersons from floating teeth, basing her ruling on a 2003 letter written by the board's executive that stated the board did not consider tooth floating to be veterinary dentistry, giving laypersons authorization to do the procedures. The board later chose a different interpretation and pursued the nonveterinarians for prosecution.
Opponents to the state board's position on tooth floating have also pursued legislative action. In 2009, state Rep. Sid Miller introduced H.B. 378, which said tooth floating should be exempt from the state practice act. The TVMA helped defeat the legislation, and its Equine Committee was inspired to appoint a task force to work on crafting its own legislation on the issue of lay practitioners "and how we can allow them to continue to work but do it in such a way that the public and animals are protected," said Chris Copeland, JD, executive director of the Texas VMA. "Because right now, there is nothing out there that regulates these individuals."
The proposed legislation would create state-licensed "equine dental technicians" who must operate under the supervision of a licensed veterinarian, similar to licensed human dental assistants or hygienists, who operate under the supervision of a human dentist. They would have to complete a board-approved training program, pass a jurisprudence examination, be recommended by two equine veterinarians, and meet continuing education requirements.
Equine dental technicians would be allowed to engage in the practice of equine dentistry under the immediate or direct supervision of a veterinarian. A grandfather clause would be included to allow individuals who can prove that they have been practicing at a high level of proficiency for a number of years to dispense with the educational requirement.
"We are hoping to find some sort of equitable solution to the problem. This has been going on here well over six or seven years. We would really like to find a solution that works for everyone involved, most importantly for the public and their animals. I don't think what we have today is adequately protecting the public and animals," Copeland said.
At press time, a bill was expected to be filed soon.
The clash between the Oklahoma State Board of Veterinary Medical Examiners and the Oklahoma Farm Bureau began in April 2009 when rodeo star Bobby Griswold was arrested. He was accused in a felony count of performing illegal dental work on a horse and in two misdemeanor counts of illegally possessing two veterinary drugs.
Griswold was the first to be charged under a new law that made equine dentistry a felony unless the work was done by or supervised by a licensed veterinarian. His arrest caused an uproar among horse owners and equine dentists in Oklahoma.
Oklahoma State Rep. Don Armes had rallied the help of the Oklahoma Farm Bureau and Oklahoma Cattlemen's Association—the two biggest lobbyist groups in the state—and presented H.B. 3202, which established a certification mechanism for nonveterinary dental providers. It also allowed these trained laypersons to perform tooth floating on horses and other livestock and removed "animal husbandry" from the definition of veterinary medicine. The bill was signed into law April 16, 2010, and went into effect July 1, 2010 (see JAVMA, May 15, 2010, page 1051).
The Oklahoma State Board of Veterinary Medical Examiners responded to that law by saying a definition of "animal husbandry" was needed and by drafting emergency rules, because the legislative session had ended in May. These emergency rules, which were approved by then Gov. Brad Henry and went into effect this past August, declared that companies that provide reproductive services are in violation of the law if they do not have a veterinarian doing those procedures.
This angered opponents, including the farm bureau, which filed a lawsuit in September seeking an injunction against the state board to have the emergency rules lifted, said Cathy Kirkpatrick, executive director of the state board.
At the beginning of the year, however, the Farm Bureau and the state board agreed to sit down together and hash out a compromise. During the negotiations, as a gesture of good faith, the state board voted to withdraw the emergency rules. Current Gov. Mary Fallin is expected to approve the change in the near future, Kirkpatrick said. In turn, the Farm Bureau Legal Foundation withdrew its lawsuit.
The two sides met five times to develop legislation, which was introduced on the first day of Oklahoma's legislative session, Feb. 7. Kirkpatrick said the state board's main concern remains reproductive services. The proposed legislation calls for individuals who perform these services, including ultrasonography, to be certified by the state board. The bill also defines acts not prohibited in the state practice act, such as dehorning, tooth floating, and castration.
"We've been coming up with good compromises. Maybe that's what we should have done all along, but we weren't included in discussions last year (pertaining to H.B. 3202) because they got mad when we arrested (Griswold) two years ago," Kirkpatrick said.
The Arkansas VMA saw it had a potential fight on its hands when H.B. 1055 was prefiled in the Arkansas state legislature Dec. 15, 2010, to amend the Arkansas Veterinary Medical Practice Act concerning large animal practice. The bill was introduced by state Rep. Garry Smith, who is a farrier.
The bill's language defined equine tooth floating not as a part of equine dentistry but as an act of animal husbandry, along with branding, castrating, dehorning, deworming, ear notching, tail docking, farriery, massage, pregnancy checking, artificially inseminating, vaccinating, and collecting, preparing, and freezing semen.
The bill contained a provision to allow any practitioner of acupuncture, chiropractic, or veterinary dentistry to perform these procedures on farm animals under the immediate supervision of a veterinarian licensed in Arkansas, excluding the administration of sedatives.
This bill went before the state agriculture committee Jan. 19. Through a combined effort of the Arkansas VMA membership, its lobbyists, and the Arkansas Veterinary Medical Examining Board, the bill was defeated in committee by a vote of 11-7.
During testimony before the committee, Dr. Lyndon Tate, a member of the board of examiners, explained the purpose of the practice act.
Dr. David M. Blount, immediate past president of the Arkansas VMA, said, "There was a misconception among some of the legislators that the practice act is in place to protect the veterinarian and to guard their services for their right to profit from them. We clearly established that the practice act is the law set forth through the legislature to safeguard animal welfare by setting the standards for proper veterinary medical care—that it is, in fact, the people's practice act to protect the public from substandard veterinary care and to provide the standards for proper animal medical care and welfare."
Dr. Paul Turchi, an equine veterinarian who performs dentistry, then explained why equine tooth floating is, indeed, an act of veterinary dentistry, not a basic act of animal husbandry, and requires regulation.
Dr. Blount said the Arkansas VMA is now having legislation drafted that would request an interim study to evaluate the practice act pertaining to large animal medicine. The bill already has two sponsors, and several others have indicated interest.
"The study will also examine the large animal veterinarian shortage, the need for large animal technician services, large animal health care exemptions, and the impact that exemptions and lay health care have on animal health care," Dr. Blount said. "We will bring to the table those groups and individuals who can provide the best ideas in solving these issues."
So far, that group comprises members of the Arkansas Farm Bureau, the University of Arkansas Division of Agriculture, the Arkansas Cattlemen's Association, public health officials, and large animal veterinarians.
This study would be done over the course of the next two years in preparation for any amendments to the practice act in the 2013 biennial legislative session.