PROPOSED RULEMAKING
STATE BOARD OF VETERINARY MEDICINE
[49 PA. CODE CH. 31]
Professional Conduct
[37 Pa.B. 1038]
[Saturday, March 3, 2007]The State Board of Veterinary Medicine (Board) proposes to amend § 31.21 (relating to Rules of Professional Conduct for Veterinarians) to read as set forth in Annex A. The amendments to Principle 1 (relating to competency) would mandate that a veterinarian report to the Board certain conduct regarding issues of professional competency of another veterinarian. Amendments to Principle 3 (relating to professional behavior) would state more comprehensively conduct that is unprofessional. In addition, the Board proposes to amend Principle 7 (relating to veterinarian/client relationships) to specify limits on refusal or discontinuation of treatment.
Effective Date
The proposed rulemaking would become effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
Section 5(1) of the Veterinary Medicine Practice Act (act) (63 P. S. § 485.5(1)) authorizes the Board ''[a]dopt reasonable rules and regulations governing the practice of veterinary medicine as are necessary to enable it to carry out and make effective the purpose and intent of this statutory law.'' Section 5(2) of the act authorizes the Board to ''[a]dopt rules and regulations of professional conduct appropriate to establish and maintain a high standard of integrity, skills and practice in the profession of veterinary medicine.''
Background and Need for Amendment
The Board's proposed amendments arise from the Board's ongoing review and commitment to keeping its regulations consistent with current standards of veterinary medicine practice, from disciplinary matters that have come before the Board and from input from the public regarding the need to regulate in particular areas of professional conduct.
Description of Proposed Rulemaking
The Board proposes to amend Principles 1, 3 and 7 as follows:
Proposed Amendment to Principle 1
Subsections (a)--(c) concern the duty of veterinarians to maintain the aspirational goals of competency in the veterinarian's individual practice. Current subsection (d) concerns a veterinarian's responsibility concerning issues regarding the professional competency of another veterinarian.
The Board proposes to amend subsection (d) to make mandatory a veterinarian's duty to report to the Board when a veterinarian has been unable to informally resolve with another veterinarian an issue of gross professional incompetence. The Board's current regulation is aspirational. The Board proposes to make the duty to inform the Board mandatory. In a related amendment, the Board proposes to amend Principle 3 by adding subsection (k) to provide that unprofessional conduct includes failing to report a matter described in Principle 1(d) to the Board.
Proposed Amendments to Principle 3
The Board proposes to maintain Principle 3(a)--(d) and add subsections (e)--(l). The Board has amended Principle 3 to clarify that a licensee may be disciplined for unprofessional conduct under section 21 of the act (63 P. S. § 485.21). Specifically, a licensee may be disciplined under section 21(1) of the act for willful or repeated violations of any of the rules and regulations of the Board. A licensee may be disciplined under section 21(20) of the act for professional incompetence. This proposed rulemaking clarifies this statutory term. Some of the examples of incompetent, unprofessional or immoral conduct may also subject a licensee to discipline under other subsections of section 21 of the act. For example, the Board believes that fraudulently issuing a health certificate is immoral conduct. This conduct may also be disciplined under section 21(6) of the act.
Proposed subsection (e) would prohibit a veterinarian from attempting to induce or attempting to influence, through coercion, undue pressure or intimidation, a person to file, not file or withdraw a complaint before the Board. Licensees subject themselves to the jurisdiction of the Board, including the statutory and regulatory rules of conduct and processes for disciplining professional licenses. This process includes the ability of the public to file a complaint against a professional licensee, to have that complaint investigated and, when appropriate, to have formal charges brought against the licensee in accordance with the licensing act and 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law). A licensee who attempts to induce or inappropriately influence a member of the public to file, not file or withdraw a complaint has attempted to undermine the disciplinary process of the Board. The Board concludes that this conduct is unprofessional.
Proposed subsection (f) would prohibit a veterinarian from abusing a client, former client, colleague, associate or staff, including verbal abuse, harassment or intimidation. The proposed language adds necessary specificity to allow the Board to discipline licensees for certain misconduct.
Proposed subsection (g) relates to section 21(11) of the act, which authorizes the Board to discipline a licensee for ''[i]ncompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing veterinary medical practice.'' Proposed subsection (g) also relates to section 21(20) of the act, which authorizes the Board to discipline a licensee for ''[p]rofessional incompetence.'' Proposed subsection (g) would clarify that the two statutory prohibitions against incompetence encompass both performing a task incompetently and performing a task the licensee knows or was reason to know he is not competent to perform. Subsection (g) is consistent with the Commonwealth Court's opinion of conduct prohibited by section 21(11) and (20) of the act.
Proposed subsection (h) prohibits a veterinarian from making a false, deceptive or misleading statement or claim as defined in Principle 5(a) (relating to advertising). While Principle 5 applies only to advertising, the Board believes that veterinarians should be prohibited from making false, deceptive or misleading statements or claims in all aspects of context professional practice, such as in a conversation with a client.
Proposed subsection (i) would prohibit a veterinarian from delegating a veterinary medical service to a certified veterinary technician or unlicensed person who the veterinarian knows or should know is not qualified by education, training, experience, license or certification to perform the service. In addition, the new subsection requires a veterinarian to make a reasonable investigation of the delegatee's education, training, experience, license or certification before delegating a veterinary medical service. Finally, the proposed subsection requires the veterinarian to provide appropriate supervision to the delegatee.
Proposed subsection (j) prohibits a veterinarian from inhumanely treating or abusing an animal, whether or not the animal is a patient. This provision is consistent with the acceptable and prevailing ethical standards of the profession and with many states' practice acts and regulations.
Proposed subsection (k) prohibits a veterinarian from failing to report another licensee to the Board when the veterinarian knows or has reason to believe the licensee has engaged in incompetent practice, unprofessional conduct or animal neglect or abuse.
Proposed Amendments to Principle 7
As with the proposed amendments to Principle 3, the proposed amendments to Principle 7 clarify and expand existing provisions. Consistent with the statutory amendments of December 2002, defining the ''veterinarian-client-patient relationship'' in section 3 of the act (63 P. S. § 485.3), Principle 7 will be renamed ''veterinarian-client-patient relationships'' to mirror statutory language and reflect the duties required to both the client/owner and the patient/animal. The Board proposes two amendments to provide additional clarity to existing subsection (a).
The Board proposes to add exceptions to the general rule that veterinarians may choose whom they will serve to account for circumstances in which a veterinarian is presented with an animal in a life-threatening condition that is physically presented to the veterinarian during the veterinarian's regular business hours. The proposed amendment provides that a veterinarian shall, at a minimum, triage the animal (evaluate the need for immediate treatment in light of the other cases currently requiring treatment by the veterinarian), assess the animal, determine the animal's prognosis, and provide basic life support or euthanasia. This provision places on veterinarians a minimal duty that will allow an owner to determine whether further treatment should be sought. The amendment recognizes that a sole practitioner who may be in the middle of surgery when an animal is brought into the veterinary facility in a life-threatening condition may not always be able to step away from the surgery to attend to the emergent animal. The proposed language requiring the veterinarian to triage the animal ensures that the animal will be taken care of in the proper order of medical necessity.
The proposed rulemaking permits a veterinarian to provide care to an animal in a life-threatening condition without the owner's consent if the owner is unknown or cannot be reached for consultation. This provision would allow a veterinarian to provide emergency treatment to, for example, a dog hit by a car that is brought in by a bystander without first having to find the owner. This provision would also allow a veterinarian to euthanize an animal brought to the veterinary facility in a life-threatening condition without the owner's consent if, in the veterinarian's professional judgment, euthanasia is the only appropriate option.
The Board proposes to require a veterinarian to give notice to a client if the veterinarian determines that he can no longer provide veterinary services to an animal and to allow the client reasonable time to obtain alternate veterinary care. This provision protects the public by ensuring that the public will have a reasonable time to find another veterinarian.
The Board proposes to amend subsection (b) to make mandatory the veterinarian's duty with regard to balancing a client's ability to pay for veterinary services and alleviating or ending an animal's suffering. The proposed amendments to subsection (b) are related to the proposed amendments to subsection (a), in that, read together, the provisions require a veterinarian to provide limited emergency care or medically appropriate euthanasia without regard to a client's ability to pay. These provisions do not limit the veterinarian from seeking, after the services have been provided, remuneration for the services through an appropriate judicial forum.
The Board proposes to delete the current text of subsection (d). As with a similar provision that the Board proposes to delete from subsection (a), the Board believes that the concept is self-evident and does not need to be set forth in regulation.
The Board proposes significant amendments to current subsection (e), which will become subsection (d). An individual approached the Board with the suggestion that the Board mandate that veterinarians inform clients of the contraindications and possible side effects of nonsteroidal anti-inflammatory drugs (NSAIDs). The individual suggested that the Board mandate that veterinarians provide a ''client information sheet'' whenever the veterinarian dispenses an NSAID. The Board is aware that some drugs of this class have been documented to cause adverse reactions in dogs. In addition, as with all drugs, NSAIDs are not indicated for use in animals with certain health problems or for animals receiving certain other drug therapies.
The Board believes that its regulations should provide broad protection to the public in relation to veterinary medical diagnosis and treatment rather than focusing on one narrow class of drugs. The Board addressed this concern in proposed subsections (d) and (e) and in a separate rulemaking package with proposed amendments to § 31.22(d) (relating to recordkeeping rationale). The Board finds that the public protection will be advanced by requiring veterinarians to be aware of drug contraindications, to inform clients of the benefits, risks and side effects of all recommended treatments, from surgeries to drug therapies, and to document client consent or rejection of treatment, including drug therapy, in the animal's veterinary medical record. The Board proposes the following amendments to ensure that consumers of veterinary medical services are well informed:
(d) Veterinarians shall familiarize themselves with advancements in veterinary medicine, including new techniques, drugs and scientific research that may affect treatment decisions. Veterinarians shall be familiar with the pharmacologic properties and contraindications of drugs and biologics used in their practice.(e) Veterinarians shall explain the benefits, risks and side effects of treatment alternatives to clients.In addition, in a separate rulemaking, the Board is proposing the following amendment to § 31.22(d):
The veterinary medical record shall document all communication with the client, including the client's consent to or rejection of recommended diagnostic testing and treatment, including drugs. A veterinarian in production animal practice may document client communication at the veterinarian's discretion.The Board's proposal, because it also applies to biologics, would require veterinarians to be familiar with and to inform clients of the risks and possible side effects of vaccines. The proposed rulemaking, because it applies to all veterinary medical treatments, would require a veterinarian to explain the pros and cons of all treatments. For example, a veterinarian presented with an animal with a broken limb would be required to explain the benefits, risks and side effects of a range of treatment options, such as surgery and internal reduction and fixation, external reduction and fixation through use of a cast, or, where there is a good potential for a successful outcome, external reduction and fixation through use of some type of splint. Principle 4 (relating to fees) already provides that a veterinarian must clearly explain fees for professional services in advance of billing. This provision, together with the Board's proposed amendments to Principle 7 and its recordkeeping regulation, would require a veterinarian to also inform the client of the cost of the various treatment options. The Board finds that this broader regulation provides more protection to the public than the suggestion that veterinarians provide clients with a ''client information sheet'' when the veterinarian dispenses an NSAID.
Dr. Paul Kneply, chairperson of the Department of Agriculture's Animal Health and Diagnostic Commission, submitted comments to the Board on its draft rulemaking. In his comments, Dr. Kneply asked about the implications of proposed subsection (f) for ''normal farming activities and practices used in production animal medicine, such as castration and dehorning.'' Dr. Kneply noted: ''A veterinarian may not normally administer anesthesia for these practices,'' and asked whether the proposed language would ''prohibit 'normal animal agricultural practices' without anesthesia and pain medication.'' The Board is aware that the acceptable and prevailing standard of veterinary medical practice in production animal medicine does not always include the administration of anesthesia or analgesia for the performance of procedures that, if performed on a companion animal, would require the administration of anesthesia or analgesia, or both. For this reason, the Board has amended the draft language of subsection (f) and now proposes the following: ''Veterinarians shall serve as patient advocates especially as regards alleviation of pain and suffering, consistent with the acceptable and prevailing standards of veterinary medical practice. Veterinarians must remain abreast of analgesic drugs, dosages, treatment intervals and combination therapies proven to be safe and effective in different species and in various conditions of age, illness or injury.''
Fiscal Impact and Paperwork Requirements
The proposed rulemaking should not have financial impact on licensees, the Board or any other State entity. The proposed rulemaking will have no fiscal impact on the public. There are no additional paperwork requirements associated with the proposed rulemaking.
Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 21, 2007, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Robert Kline, State Board of Veterinary Medicine, P. O. Box 2649, Harrisburg, PA 17105-2649, www.dos.state.pa.us/vet within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin.
THOMAS J. MCGRATH, D.V.M.,
ChairpersonFiscal Note: 16A-5721. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 31. STATE BOARD OF VETERINARY MEDICINE
PROFESSIONAL CONDUCT § 31.21. Rules of Professional Conduct for Veterinarians.
* * * * * Principle 1. Competency.
* * * * * (d) Veterinarians shall safeguard the public and the veterinary profession against veterinarians deficient in professional competence or ethical conduct as described in this chapter. When [veterinarians know or have] a veterinarian knows or has reason to believe that a professional colleague's actions [reflect] demonstrate professional incompetence, neglect or animal abuse, [veterinarians having first hand knowledge of these activities] a veterinarian should [attempt to resolve the issue informally by bringing] bring the behavior to the attention of the [veterinarian] colleague and, if the matter is not resolved, should bring the matter to the attention of the Board. [When a veterinarian cannot deal with the situation informally, the veterinarian should] If the conduct is grossly incompetent, or involves neglect or animal abuse, the veterinarian shall bring the matter to the attention of the Board by [writing to the Complaints Office of] filing a complaint with the Bureau of Professional and Occupational Affairs, Post Office Box 2649, Harrisburg, Pennsylvania 17105-2649.
* * * * * Principle 3. [Professional behavior] Unprofessional conduct.
A veterinarian who engages in unprofessional or immoral conduct is subject to disciplinary action under section 21(1) of the act (63 P. S. § 485.21(1)) and may also be subject to discipline under section 21(11) or 21(20) of the act. Unprofessional or immoral conduct includes, but is not limited to:
[(a) Veterinarians may not place their] (1) Placing the veterinarian's professional knowledge, attainments or services at the disposal of a lay body, organization or group for the purpose of encouraging unqualified groups or individuals to perform surgery upon animals or to otherwise practice veterinary medicine on animals that they do not own.
[(b) Veterinarians may not perform or participate] (2) Performing or participating in a surgical procedure when [they know] the veterinarian knows that surgery has been requested with intent to deceive a third party.
[(c) Veterinarians may not perform] (3) Performing surgical procedures on a species for the purpose of concealing genetic defects in animals to be shown, raced, bred or sold. If the health or welfare of an animal requires correction of a genetic defect, the surgical procedures will be permitted. In these instances, the veterinarian should clearly note the reason for the surgery on the veterinary medical record of the animal.
[(d) Veterinarians may not engage] (4) Engaging in merchandising.
(5) Attempting to influence through coercion, undue pressure or intimidation, or attempting to induce an individual to file, not file or withdraw a complaint with the Board.
(6) Abusing a client, former client, colleague, associate or employee, including verbal abuse, harassment or intimidation.
(7) Performing a veterinary medical act incompetently or performing a veterinary medical act that the licensee knows or has reason to know he is not competent to perform.
(8) Making any false, misleading or deceptive statement or claim as defined in Principle 5(a) (relating to advertising).
(9) Delegating a veterinary medical service to a certified veterinary technician or unlicensed person who the licensee knows or should know is not qualified by education, training, experience, license or certification, to perform. The licensee shall perform a reasonable investigation of the delegatee's skills before delegating a veterinary medical service and provide supervision of the service consistent with the acceptable and prevailing standards of veterinary medical practice.
(10) Inhumanely treating or abusing any animal, whether or not the animal is a patient.
(11) Failing to report a matter to the Board as required by Principle 1(d) (relating to competency).
* * * * * Principle 7. Veterinarian/client/patient relationships.
(a) [Veterinarians] Except as provided in this section, veterinarians may choose whom they will serve. [Once they have undertaken the care of an animal, however, they may not neglect the animal.]
(1) During a veterinarian's regular business hours, a veterinarian may not refuse to treat an animal which is in a life-threatening condition at the time the animal is physically presented to the veterinarian at the veterinarian's facility. The minimum veterinary medical services that shall be provided include triage of the presenting emergency and other patients present at the facility, assessment of the animal's condition, evaluation of the animal's prognosis and provision of basic life support or euthanasia, as medically appropriate. A veterinarian may provide care for an animal under this paragraph notwithstanding the lack of a veterinarian/client/patient relationship and if the owner is unknown or cannot be reached, without consent of the owner.
(2) If a veterinarian deems it necessary to discontinue the treatment of an animal with which the veterinarian has a veterinarian/client/patient relationship, the veterinarian shall give notice to the client of the intention to withdraw and provide reasonable time to allow the client to obtain necessary veterinary care for the animal.
(b) [In their relations with clients, veterinarians should] Veterinarians shall consider first the welfare of the animal for the purpose of relieving suffering and disability while causing a minimum of pain or fright. [Benefit to the animal should] Alleviating or ending suffering for the animal shall transcend personal advantage or monetary gain in decisions concerning therapy.
* * * * * (d) [Veterinarians shall be fully responsible for their actions with respect to an animal from the time they accept the case until the animal is released from their care.
(e) In the choice of drugs, biologics or other treatments, veterinarians should use their professional judgment in the interests of the animal, based upon their knowledge of the condition, the probable effects of the treatment and the available scientific evidence that may affect these decisions.] Veterinarians shall familiarize themselves with advancements in veterinary medicine, including new techniques, drugs and scientific research that may affect treatment decisions. Veterinarians shall be familiar with the pharmacologic properties and contraindications of drugs and biologics used in their practice.
(e) Veterinarians shall explain the benefits, risks and side effects of treatment alternatives to clients.
(f) Veterinarians shall serve as patient advocates especially as regards alleviation of pain and suffering, consistent with the acceptable and prevailing standards of veterinary medical practice. Veterinarians shall remain abreast of analgesic drugs, dosages, treatment intervals and combination therapies proven to be safe and effective in different species and in various conditions of age, illness or injury.
(g) If a client desires to consult with another veterinarian about the same case, the first veterinarian shall readily withdraw from the case, indicating the circumstances on the veterinary medical record of the animal, and shall forward copies of the animal's veterinary medical records to other veterinarians who request them.
[(g)] (h) * * *
[Pa.B. Doc. No. 07-352. Filed for public inspection March 2, 2007, 9:00 a.m.]
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