RULES AND REGULATIONS
Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF VETERINARY MEDICINE
[ 49 PA. CODE CH. 31 ]
Professional Conduct
[39 Pa.B. 1985]
[Saturday, April 18, 2009]The State Board of Veterinary Medicine (Board) amends §§ 31.1 and 31.21 (relating to definitions; and rules of professional conduct for veterinarians) to read as set forth in Annex A. The amendments more specifically define abuse or neglect of an animal by a veterinarian, provide details on competent practice and create mandatory reporting requirements by veterinarians of repeated acts of negligence or animal abuse or neglect by a professional colleague. Finally, the amendments further define unprofessional conduct and unethical conduct.
As published on proposed, the Board set forth amendments to Principles 1, 3 and 7. After reviewing the comments, the Board determined that it should separate its rulemaking on professional conduct from its rulemaking related to emergency services. The Board's rulemaking related to emergency services will be promulgated separately, as number 16A-5722.
Effective Date
The amendments will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
Section 21(12) of the Veterinary Medicine Practice Act (act) (63 P. S. § 485.21(12)), provides that the Board ''shall suspend or revoke'' a licensee or certificate holder who is found guilty of ''[e]ngaging in practices in connection with the practice of veterinary medicine which are in violation of the standards of professional conduct as defined herein or prescribed by the rules of the board.'' Section 5(2) of the act (63 P. S. § 485.5(2)) 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.'' These amendments update the Board's rules of professional conduct and set forth standards to maintain high standards of integrity, skills and practice in the profession.
Summary of Comments and the Board's Response
Notice of proposed rulemaking was published in 37 Pa.B. 1038 (March 3, 2007). The Board received comments from individual veterinarians and the Pennsylvania Veterinary Medical Association (PVMA). Both the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) provided comments as part of their review of the proposed rulemaking.
At the suggestion of the PVMA, the Board amended the definitions of ''animal abuse'' and ''neglect'' in § 31.1. The current definitions of ''animal abuse'' and ''neglect'' track those in 18 Pa.C.S. (relating to the Crimes Code). The Board amended the definitions to tailor them to conduct by its licensees. In addition, the Board added language to Principle 1(a) to provide licensees with a specific suggestion regarding improving veterinary practice in this Commonwealth. The Board also added language to Principle 1(b) to mandate that a veterinarian suggest a referral if the care required by an animal is beyond the veterinarian's capabilities or equipment. The Board provided that a veterinarian could continue care of the animal after referral with written consent from the client. PVMA has reviewed all of the Board's amendments and indicated its support for the final-form rulemaking.
HPLC commented that the combination of discretionary and mandatory reporting requirements in Principle 1, subsection (d) was confusing. HPLC suggested that if the Board were to retain both discretionary and mandatory reporting requirements, they should be broken into separate paragraphs. IRRC commented that the use of the word ''should'' is inappropriate because it is nonregulatory language that indicates that the provision is optional. IRRC also commented that the subsection should indicate how a licensee should ''bring the matter to the attention of the Board.'' Finally, IRRC commented that, as drafted, it was unclear whether the Board intended the reporting requirements for abuse and neglect to be discretionary or mandatory.
Many veterinarians, and the Board, feel strongly that the rules of professional conduct must set both aspirational goals and mandates. As a learned profession, collegiality among licensees is essential to the provision of quality care. Therefore, the Board separated the aspirational goals set forth in subsection (b) from the mandatory provisions set forth in a new subsection (c). The current subsection (c) has been redesignated subsection (d) and subsequent subsections have been redesignated accordingly. The Board has separated the elements related to accepting or continuing care when the veterinarian lacks the capability or equipment to accept or continue into separate paragraphs, as suggested by the HPLC. The Board has added instructions on how a licensee should bring matters to the attention of the Board, as requested by IRRC. Finally, as requested by IRRC, the Board has clarified that if the conduct involves animal abuse or neglect, reporting is mandatory. Reporting is also mandatory if a veterinarian cannot informally resolve an issue with another veterinarian or if a veterinarian learns of repeated deviations from the standards of acceptable practice, professional incompetence or other misconduct set forth in the act or regulations.
Regarding the preamble to Principle 3, the HPLC requested that the Board strike the phrase ''but is not limited to,'' as redundant, asserting that the word ''includes'' indicates that the enumerated provisions are not exhaustive. The Board has eliminated the redundant language.
IRRC commented that Principle 3(3) should make mandatory the notation on the veterinary medical record of the reason for surgical correction of a genetic defect. The Board agrees and has made the suggested amendment.
The Board added a new paragraph (5) to address conflicts of interest for veterinarians and, at the request of the HPLC, gave additional examples of prohibited conduct related to representing conflicting interests.
Regarding Principle 3(5), which has been renumbered as 3(10), HPLC noted the presence of two conditions that made the language confusing and suggested that the paragraph be redrafted for clarity with one paragraph addressing coercion and another addressing inducement. IRRC suggested that the Board consider replacing the word ''immoral'' with the word ''unethical.'' The Board has made the suggested amendments. IRRC also questioned what would constitute ''undue pressure'' or ''attempting to induce'' an individual. The word induce has its general meaning of offering something of value in exchange for not filing or withdrawing a complaint. ''Attempting to induce'' would include making a payment to an individual. The Board has clarified the language in new Principles 3(10) and (11). The Board has stricken the term ''undue pressure'' because it is impossible to define.
The Board believes that the disciplinary process set forth in the act and the 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law) should be independent of any ''amicable agreements'' between contracting parties such as those mentioned by IRRC. The regulation does not restrict veterinarians from providing no-cost corrective treatment to animals and has added clarifying language to the subsection.
Regarding proposed Principle 3(6), which has been renumbered 3(12), HPLC questioned whether the paragraph should be restricted to acts occurring while acting within the scope of the veterinarian's practice or extend beyond the scope of practice. IRRC commented that the section was unclear, and stated that the Board needs to define, clarify and limit the breadth and scope of this provision in the final-form regulation. The provision provides that a veterinarian may be subject to discipline for behavior that is abusive, harassing or intimidating, as those terms are in defined in common usage, toward a client, former client, colleague, associate veterinarian or employee, would constitute unprofessional or unethical conduct, subject to discipline by the Board. Because that conduct only subjects a veterinarian to discipline if it is directed at individuals in these capacities, the conduct is necessarily limited to conduct related to the profession. IRRC also asked what was meant by the term ''colleague.'' A veterinarian's colleague is another veterinarian who is a partner in the practice, a veterinarian who does not work in the practice, or another person who has a professional relationship with the veterinarian but who is not employed by the veterinarian, such as a freelance ultrasound technician.
Regarding proposed Principle 3(7), IRRC noted that the PVMA questioned how competence is to be determined and what level of training or expertise is required to be competent in a medical procedure. IRRC commented that the Board should include the standards that will be used to make these determinations in its final-form rulemaking. The Board determined that the conduct sought to be prohibited is already prohibited under section 21(11) or (20), or both of the act; therefore, the Board has deleted this subsection.
Regarding proposed Principle 3(8), renumbered as 3(13), IRRC noted that making false or misleading statements is already prohibited under Principle 5, and questioned the need for the new language. Principle 5 prohibits false or misleading statements only in advertising. IRRC noted that the PVMA questioned how it could be proven. When the false or misleading statement was made in writing, proof would include admission of the writing. When the false or misleading statement was made orally, proof would most likely be offered in the form of testimony.
IRRC asked whether the new documentation required in the Board's recently promulgated regulation on recordkeeping includes the client's signature and stated that the Board should explain how it intends to implement or enforce this new code of conduct. The Board's recordkeeping regulation requires a veterinarian to note in the patient's veterinary medical record, the diagnostic tests and treatment options discussed with the client and to indicate the client's consent to or rejection of the options. The regulation does not require the client to sign the veterinary medical record. Records are open to inspection by the Board as set forth in section 27.1(b)(2) of the act (63 P. S. § 485.27a(b)(2)). The provisions of the recordkeeping regulation will be enforced as are all other provisions of the practice act, in accordance with the Administrative Agency Law. Specifically, recordkeeping violations are usually charged as violations of section 21(1) of the act.
Regarding proposed Principle 3(9), renumbered Principle 3(14), related to delegation of veterinary medical services, IRRC noted that a commentator questioned the impact of the rule on shelters or animal rescue groups where unlicensed persons are often involved in providing medical care to animals and suggested that the Board carefully examine the impact of the provision on volunteers or nonprofit organizations that seek to assist stray, unwanted or abused animals. The Board is sensitive to the concerns of organizations that provide care to stray, abused and unwanted animals. The types of treatments most often performed by unlicensed persons in a nonprofit animal welfare setting involve the provision of drugs and wound care. Drugs most frequently administered in these settings include antibiotics, antimicrobials, antithelmetics and parasiticides. The public interest is served when veterinarians are involved with the care of animals, including these treatments. The Board believes that all licensed health care providers should be responsible for making a reasonable assessment of the skills of persons to whom the licensed professional delegates the performance of professional services. This paragraph has been renumbered as Principle 3(14). In addition, the Board has added a reference to veterinary technician specialists, a title recognized by the Board.
Regarding the new Principle 3(9), which prohibits a veterinarian from allowing inappropriate use of the veterinarian's signature stamp, the HPLC asked the Board to provide at least two examples of inappropriate use in the Preamble to the final-form rulemaking. A veterinarian could allow inappropriate use of a signature stamp if the veterinarian allowed the signature stamp to be used on a document that requires an original signature. A veterinarian could allow inappropriate use of a signature stamp if the veterinarian permitted others to perform examinations or immunizations that are required to be performed by the veterinarian and then verified that the veterinarian provided the services by means of signature stamp.
Regarding proposed Principle 3(10), renumbered Principle 3(15), HPLC questioned whether the paragraph should be restricted to acts occurring while acting within the scope of the veterinarian's practice or extend beyond the scope of practice. The Board intends to include the abuse or neglect of any animal as unprofessional or unethical conduct by a veterinarian. The Board grants individuals the privilege of practicing the profession and is charged with upholding the integrity of the profession and ensuring that the public has confidence in members of the profession. By virtue of their education and training, veterinarians are expected to know the proper and acceptable way to treat animals. Abuse or neglect of any animal by a veterinarian would demonstrate a shortcoming in the veterinarian that must be remedied by appropriate Board action. The HPLC and IRRC questioned whether other states prohibit the abuse or neglect of any animal by a veterinarian. The Board's research indicates that at least one-third of the states prohibit the misconduct by a veterinarian.
The Board added new Principles 3(5)--(9) at the suggestion of the PVMA. Principle 3(5) prohibits a veterinarian from representing conflicting interests without disclosure to the client. Principles 3(6)--(8) provide needed detail to the statutory prohibition related to falsifying health certificates. See, section 21(6) of the act. Finally, Principle 3(9) clarifies that it is unprofessional for a veterinarian to allow another to misuse his or her signature stamp.
Principle 3(11) clarifies the proposed rulemaking's prohibition on inducing a client to file, not file or withdraw a complaint. Principle 3(6), renumbered 3(12), is amended for clarity. The terms used in this principle are in common usage and do not require definition. Finally, Principle 3(10) was renumbered Principle 3(15) and amended for clarity by cross-referencing § 31.1 proposed.
Fiscal Impact and Paperwork Requirements
The amendments should not have any financial impact on licensees or any other State entity. The proposed amendment will have no fiscal impact on the public. The amendments may have a small fiscal impact on the Board related to additional disciplinary matters if technicians violate the regulation. There are no additional paperwork requirements associated with the 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)), the Board submitted a copy of the notice of proposed rulemaking, published at 37 Pa.B. 1038, to IRRC and the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on March 18, 2009, the final-form rulemaking was approved by the HPLC. On March 18, 2009, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC approved the final-form rulemaking on March 19, 2009.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code §§ 31.1 and 31.21, are amended to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
THOMAS J. MCGRATH, D.V.M.,
Chairperson(Editor's Note: The proposal to amend Principle 7, included in the proposed rulemaking at 37 Pa.B. 1038, will be published as a separate final-form rulemaking.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 1770 (April 4, 2009).)
Fiscal Note: Fiscal Note 16A-5721 remains valid for the final adoption of the subject regulations.
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
GENERAL PROVISIONS § 31.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Veterinary Medicine Practice Act (63 P. S. §§ 485.1--485.33).
Advertising--Newspaper and periodical announcements and listings, professional cards, office and other signs, letterheads, telephone and other directory listings, and other forms of communication designed to inform the public about the availability, nature or prices of products or services.
Animal abuse--To do, order or aid another to do any act likely to cause unnecessary pain, injury, debility, disease or lameness, or unnecessary fright, stress, panic or hysteria in an animal.
Approved school--A school accredited by the American Veterinary Medical Association, including provisionally, probationally and fully accredited programs.
Board--The State Board of Veterinary Medicine.
Certified veterinary technician--A veterinary technician certified by the Board.
Client--A person who engages the professional services of a veterinarian for the care and treatment or the prevention, cure or alleviation of disease or injury, of an animal.
Consultation--A deliberation between two or more licensed veterinarians or a licensed veterinarian and other licensed professional concerning the diagnosis of an animal's condition, the care to be provided and the proper management of the case.
Direct veterinary supervision--A veterinarian has given either oral or written instructions to the certified veterinary technician or noncertified employee, is on the premises and is easily and quickly available to assist the certified veterinary technician or the noncertified employee.
Endorsement or testimonial--A statement of recommendation made through a form of mass communication or correspondence by a veterinarian to the general public which is commercially rather than educationally motivated and is intended to influence attitudes regarding the purchase of a veterinary drug, device, product or procedure.
Immediate veterinary supervision--A veterinarian is in visual and audible range to assist the noncertified employee.
Indirect veterinary supervision--A veterinarian is not on the premises but is acquainted with the keeping and care of the animal by virtue of an examination of the animal or medically appropriate and timely visits to the premises where the animal is kept, and has given written or oral instructions to the certified veterinary technician for treatment of the animal patient.
Merchandising--Buying and selling of professional veterinary products without a veterinarian/client relationship.
Neglect--To abandon an animal or deprive, either personally or through one's employees or agents, an animal over which one has a duty of care, whether belonging to himself or otherwise, of necessary sustenance, drink, shelter or veterinary care appropriate to the animal's condition or access to sanitary shelter and support for an animal's basic physical and emotional needs.
Noncertified employee--An employee of a veterinarian who does not hold certification as a veterinary technician and whom the veterinarian deems competent to administer medication or render auxiliary or supporting assistance under direct veterinary supervision or immediate veterinary supervision.
Professional veterinary product--One which requires professional veterinary knowledge in the administration of or in the giving of instructions for safe and proper use of the product, including prescription drugs, biologicals, pharmaceuticals and prescription diets.
Solicitation--Advertising intentionally directed to specific individuals.
VTS--Veterinary technician specialist--A certified veterinary technician who holds current certification from a specialty organization recognized by the National Association of Veterinary Technicians in America (NAVTA).
Veterinarian--A licensed doctor of veterinary medicine as defined in section 3 of the act (63 P. S. § 485.3).
PROFESSIONAL CONDUCT § 31.21. Rules of Professional Conduct for Veterinarians.
Preamble The Board is empowered under section 5(2) of the act (63 P. S. § 485.5(2)) to adopt rules and regulations of professional conduct appropriate to establish and maintain a high standard of integrity, skill and practice in the profession of veterinary medicine. In accordance with this authority, the Board has determined that the following rules are necessary in the public interest to protect the public against unprofessional conduct on the part of veterinarians. The Board therefore adopts this professional conduct code for veterinarians practicing veterinary medicine in this Commonwealth. Some of the rules of conduct are imperatives, cast in the terms, ''shall'' or ''may not.'' Veterinarians who fail to adhere to these rules will be subject to professional discipline. Other rules, generally cast in the terms ''may'' or ''should,'' are intended as aspirational goals and define areas under which the veterinarian has professional discretion. No disciplinary action will be taken when a veterinarian acts within the bounds of discretion. References throughout this professional conduct code to imperative conduct on the part of veterinarians also apply to applicants for licensure and temporary permit holders where these persons render services under qualified supervision.
Principle 1. Competency.
(a) Veterinarians should strive continually to improve their veterinary knowledge and skill, making available to clients and their colleagues the benefit of their professional attainments. A veterinarian should provide opportunities for professional colleagues who request to observe the veterinarian's practice to develop or improve a professional colleague's veterinary medical skills.
(b) Veterinarians should seek, through consultation, the assistance of other veterinarians or other licensed professionals when it appears that the quality of veterinary service may be enhanced through consultation.
(c) A veterinarian shall recommend referral to a specialist or otherwise more qualified veterinarian in any case when the care and treatment of the animal is, in the veterinarian's sound judgment, beyond the veterinarian's capabilities or equipment. In that case, a veterinarian may accept or continue care and treatment of an animal after the veterinarian has done the following:
(1) Suggested referral.
(2) Explained the rationale for referral.
(3) Explained the possible complications from the veterinarian's lack of expertise or equipment.
(4) Obtained written consent from the client.
(d) Veterinarians shall participate in continuing education programs as provided under section 18 of the act (63 P. S. § 485.18).
(e) Veterinarians shall safeguard the public and the veterinary profession against veterinarians deficient in professional competence, professional conduct or ethical conduct as described in this chapter.
(1) When a veterinarian knows or has reason to believe that a professional colleague's actions demonstrate deviation from or failure to conform to the standards of acceptable and prevailing veterinary medical practice or professional incompetence, a veterinarian shall bring the behavior to the attention of the colleague.
(2) A veterinarian shall bring the behavior of another veterinarian to the attention of the Board by sending a written report to the Bureau of Professional and Occupational Affairs, Professional Compliance Office, P. O. Box 2649, Harrisburg, PA 17105-2649 if one or more of the following applies:
(i) The veterinarian cannot informally resolve an issue of the deviation from or failure to conform to the standards of acceptable and prevailing veterinary medical practice or professional incompetence with the other veterinarian.
(ii) The veterinarian learns of repeated deviation from or failure to conform to the standards of acceptable and prevailing veterinary medical practice, professional incompetence or misconduct.
(iii) The matter involves animal abuse or neglect.
* * * * * Principle 3. Unprofessional or unethical conduct.
A veterinarian who engages in unprofessional or unethical conduct may be subject to disciplinary action under section 21(1), (11), (12) or (20) of the act (63 P. S. § 485.21(1), (11), (12) or (20)). Unprofessional or unethical conduct includes:
(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.
(2) Performing or participating in a surgical procedure when the veterinarian knows that surgery has been requested with intent to deceive a third party.
(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 shall clearly inform the owner of this fact and note the reason for the surgery on the veterinary medical record of the animal.
(4) Engaging in merchandising.
(5) Representing conflicting interests, except with written consent of parties known to the veterinarian given after a full disclosure of the facts. Representing conflicting interests includes being employed by a buyer to inspect an animal for sale and accepting a fee from the seller and providing veterinary medical advice regarding a common matter to multiple persons interested in the matter.
(6) Issuing any certificate attesting to the physical condition or soundness of an animal without first having personally examined the animal within a reasonable period of time and, by actual inspection and appropriate tests, determined that the animal meets the requirements for issuance of the certificate. A veterinarian may permit an employee to collect samples from animals for tests under the veterinarian's direct supervision.
(7) Failing to personally sign any official health document issued by the veterinarian unless the use of a signature stamp is authorized by law.
(8) Issuing a presigned or prestamped official health document.
(9) Allowing inapropriate use of the veterinarian's signature stamp.
(10) Engaging in conduct which a reasonable person would believe is intended to coerce, pressure or intimidate another person to file, not file or withdraw a complaint made to the Board or any law enforcement official regarding matters related to a veterinarian's practice.
(11) Offering compensation beyond continued or corrective treatment of an affected patient or the replacement value of a patient, which a reasonable person would believe was intended to induce another to file, not file or withdraw a complaint made to the Board or any law enforcement official regarding matters related to a veterinarian's practice.
(12) Abusing, harassing or intimidating a client, former client, colleague, associate veterinarian or employee in the course of professional practice.
(13) Making any false, misleading or deceptive statement or claim as defined in Principle 5(a) (relating to advertising).
(14) Delegating a veterinary medical service to a certified veterinary technician, veterinary technician specialist or individual not licensed to practice veterinary medicine that is beyond the scope of practice for that individual as defined by law or regulation or who the veterinarian knows or should know is not qualified by education, training, experience, license or certification, to perform. The veterinarian delegating a veterinary medical service shall perform a reasonable investigation of the delegatee's ability to competently perform the service before delegating the service and shall provide supervision of the service consistent with the acceptable and prevailing standards of veterinary medical practice. A veterinarian who delegates a veterinary medical service to an individual not licensed to practice veterinary medicine shall be responsible for the acts and omissions of the delegatee.
(15) Abusing or neglecting any animal, as defined in § 31.1 (relating to definitions), whether or not the animal is a patient.
(16) Failing to report a matter to the Board as required by Principle 1(e).
* * * * *
[Pa.B. Doc. No. 09-696. Filed for public inspection April 17, 2009, 9:00 a.m.]
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