October 15, 2008

 

 Scope-of-practice laws draw attacks - October 15, 2008

 
Please note: the online version of this document contains a correction. The map should not have included Delaware as a state that makes exemptions for nonveterinarians to float horses' teeth.
 

Laypersons challenge veterinary state boards in court

 
posted October 1, 2008
 

chessboard

Veterinarians, like other licensed medical providers, have increasingly voiced concern over laypersons providing care without proper experience, training, or skills. The anxiety centers on quality of care, making sure there's appropriate supervision in place. Nonveterinarians argue they are being hindered or excluded from their right to earn a living practicing their trade.

In a few instances, the conflict has played out in court, all led by one law firm, the Institute for Justice, which challenges a wide variety of government regulations. The Arlington, Va.-based firm has filed four lawsuits against three state veterinary medical boards in the past three years.

The Institute for Justice is defending lay horse teeth floaters and a lay horse massager from what it calls "elitist veterinary cartels" in Minnesota, Texas, and Maryland.

According to court documents, the civil liberties law firm is fighting against the state laws for their clients' "constitutional right to economic liberty." Institute for Justice attorneys claim these veterinary state boards have an established public policy of unreasonable occupational licensing restrictions.

Members of veterinary state boards say they have the authority to regulate the profession and should do so, particularly as new technology and practices must be evaluated to determine whether they fall under the scope of veterinary practice.

Two of the four cases, which were still pending at press time, involve the Texas State Board of Veterinary Medical Examiners. The state agency is being sued by about a dozen nonveterinarian horse teeth floaters.

In early 2007, the board changed the Texas Veterinary Licensing Act to prohibit laypersons from floating teeth. Subsequently, the board sent cease-and-desist letters to affected nonveterinarians. The first lawsuit challenges the new policy, claiming the plaintiffs have been denied their constitutional rights to earn a living filing horses' teeth. The other lawsuit, filed almost a year later in April, goes after the legality of the board's actions.

The Texas board has been granted a temporary injunction while it seeks to work out any pertinent issues through its administrative process, said Clark Neily, senior attorney for the Institute for Justice, who represents the plaintiffs. At this point, laypersons may still float teeth.

Elbert Hutchins, executive director of the Texas VMA, says Texas state law and board policy are clear about what falls under the practice of veterinary medicine.

"The state board has all the rule making it needs to protect the profession and should do so," Hutchins said.

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Hutchins maintains there are adequate laws and rules that define certain procedures in horses' mouths as constituting the practice of veterinary medicine.

"For many years, laypeople have been allowed to use a hand rasp to dress down horses' teeth so long as everything is done above the gumline," he said. "With the advent of power tools, they are noisy and most horses will not allow them in their mouth without sedation. Typically, drugs for sedation are prescription drugs, which are limited to trained professionals."

Hutchins says the veterinary profession is in a new age when it comes to floating teeth and other dental procedures. That, in turn, requires states to adapt their policies.

Maryland did just that in 2007 when the state adopted a rule enabling the State Board of Acupuncture to certify people performing acupuncture on animals under veterinary oversight. Animal massage therapy, however, remains under the scope of veterinary practice.

Mercedes Clemens, a lay horse massager and licensed human massage therapist, argued the law did not apply to her practice, and with representation from the Institute for Justice, filed suit against the Maryland State Board of Veterinary Medical Examiners and the Maryland Board of Chiropractic Examiners in June.

People who are pursuing various veterinary-related jobs are a common complaint, said Maryland State Board of Veterinary Medical Examiners president, Dr. Chris Runde, but "the big issue is how they promote themselves to the public."

Dr. Runde explained, "If the equine massage individual is massaging horses to make them relax or calm them down, then they have no problem promoting themselves like that. It's promoting in such a way that it reflects perhaps to diagnose and treat an ailment. That's when they step over the line."

Institute for Justice Staff Attorney Paul Sherman wants the legislature to overturn the existing Maryland Veterinary Practice Act to allow nonveterinarians to practice therapeutic massage on animals. According to his complaint, it is not reasonable for the state to make those who massage only animals to complete the same schooling as licensed veterinarians and therefore, the Maryland Veterinary Practice Act should be ruled unconstitutional.

The Maryland VMA, in a statement released Sept. 10, refuted that idea, stating: "If therapeutic animal massage were to be excluded from the Maryland Veterinary Practice Act, the State of Maryland would then be powerless to discipline an individual who causes harm to an animal as a result of practicing such therapies."

For ancillary services laypersons can perform, such as acupuncture, these "exist only where there are adequate safeguards to protect animal health and welfare," according to the MVMA statement.

Sherman argues his client "filed this civil rights lawsuit to vindicate her right to earn an honest living free from government regulations that serve no legitimate public purpose."

Many fields—not just veterinary medicine—have increased their requirements that persons be licensed to perform certain technical procedures, Sherman said.

"In Mercedes' case, regulating the animal massage industry has nothing to do with safety and everything to do with financial gain" by veterinarians, Sherman said, because they view her as potential competition.

Dr. John King, executive director of the Minnesota Board of Veterinary Medicine, said the positions that associations and veterinarians take on a legislative topic may be based at times on turf, but the board of veterinary medicine cannot take—and does not take—that position.

"It's all about the protection of the public and the animals they own—period," Dr. King said.

This was proved, he says, by the lawsuit the Institute for Justice lost this past June against the Minnesota Board of Veterinary Medicine.

Legislators passed an amendment to the Minnesota Veterinary Practice Act in 2005 allowing nonveterinarians to float teeth. The law says only licensed veterinarians, laypersons with more than 10 years' experience, and laypersons certified by the International Association of Equine Dentistry are allowed to perform the procedure.

Chris Johnson, a third-generation lay teeth floater, filed suit against the Minnesota board in August 2006 because he did not want to meet the new criteria by getting properly certified.

Clark Neily, who also represents Johnson, calls the requirement of teeth floaters to be licensed "absurd."

"You don't want to be singled out and have livelihoods taken away while others who work with animals on procedures that are more invasive are not subjected to these disabilities," Neily said, citing examples such as farrier work or dehorning.

"Our clients believe they should have a right to earn a living providing a service they are good at, and ultimately the decision to work on someone's horse is between the horse owner and practitioner."

The court disagreed and dismissed Johnson's case with prejudice.

According to court documents: "The state may legitimately exercise its police power to protect public health, safety, or welfare through the regulation of occupations that require specialized training or skill and the public will benefit from assurance of initial or continuing occupational ability ... Veterinarians are the natural group to provide education and training with respect to the overall health and anatomy of animals."

"Basically the ruling says there is reasonable cause for requiring trained individuals to float horses' teeth," Dr. King said. "It doesn't have to be just veterinarians in Minnesota. There are avenues for other people to do it, provided they prove some sort of competency."

Dr. King points to consumer demand for less expensive animal care with more options as a driving force behind laypersons pushing to take up more of the market.

"Where it falls down is, although animals are property, they are also living beings. ... Animals can be harmed by incompetent care," Dr. King said.

Additionally, the only recourse an animal owner has against a layperson creating harm to an animal is litigation. There, only a finite amount of money may be collected, and the nonregulated layperson may be not prevented from working elsewhere, even if found guilty.

"If an individual is regulated and there are complaints to the regulating authority, they can be prevented from doing it further," Dr. King said.

Dale Atkinson, legal counsel for the American Association of Veterinary State Boards, has been representing associations of regulatory boards for 20 years.

He says state veterinary boards exist to carry out the practice act and should work with the legislature to ensure the act sufficiently empowers the board to protect the public.

Ideally, Atkinson said, "they take their vet hat off when looking at things from a regulatory perspective," so that legislative interpretation occurs to protect the health of the public, regardless of internal influence or outside pressure.

"To the extent it allows or disallows people in the practice, so be it," Atkinson said.