State Legislative Update March 2015

State Legislative Update
Prepared by AVMA Department of State Legislative and Regulatory Affairs
March 12, 2015
Idaho H 8 was signed into law on March 5, making several changes to the law addressing drug distribution and compounding. According to the amended law, veterinary drug outlets, which include places that dispense or distribute drugs, or their agents or employees, may possess legend drugs, excluding controlled substances, for use in the usual and lawful course of their business or practice or in the performance of their lawful official duties, without a valid prescription drug order.

In addition, state legislatures continue to consider many bills affecting veterinary medicine. A few of the significant measures include:
  • Florida  SB 1180, HB 981 and HB 1049 would provide that the Florida Pharmacy Act does not prohibit the dispensing of a compounded drug by a veterinarian.
  • Illinois HB 3585 would provide that no person, except a licensed veterinarian, using anesthesia, may surgically debark or silence a dog or cat, and only if medically necessary to treat or relieve an illness, disease, or injury.
  • Iowa HF 456 would provide that the use of animal massage or applied animal behavior science performed when treating a horse, as defined, is not the practice of veterinary medicine and is not regulated by the Iowa Board of Veterinary Medicine.
  • Maine LD 814 would require that the practice of veterinary medicine must occur within an established veterinarian-client-patient relationship, as defined, and would remove the prohibition against a veterinarian's association for the joint practice of veterinary medicine with a person, corporation or partnership not licensed to practice veterinary medicine.
  • Maryland HB 876 would require an animal shelter to develop and adhere to a specified written veterinary care protocol.
  • Pennsylvania SB 593 would authorize noneconomic damages as compensation for the loss of a pet, with an exemption for actions for professional negligence against licensed veterinarians.
  • Rhode Island S 203 would create exemptions from the definition of practice of veterinary medicine for owners of animals and their regular employees, as well as for livestock management and animal husbandry practices.
  • Rhode Island H 5414 would require a court of competent jurisdiction to order the appointment of an animal advocate where the custody or well-being of an animal is at issue.
  • Texas HB 1740 would provide that a veterinarian who is employed by a county or municipality and administers or supervises the administration of a rabies vaccine as part of a local rabies control program is not required to establish a veterinarian-client-patient relationship before administering or supervising the administration of the vaccine.

 Regulatory Watch

 The Maryland Board of Veterinary Medical Examiners made several changes to its regulations, including an expansion of the list of licensees who may be charged with advertising violations and the types of actions that would constitute violations. The new rules restrict claims of veterinary specialty and advertising as a high volume, low-cost spay/neuter facility. The board also approved several organizations for providing continuing education and now requires a veterinary technician applicant to obtain a certain minimum grade in college courses if the applicant does not have a degree from a veterinary technology program accredited by AVMA.
The Florida Department of Business and Professional Regulation added AVMA-approved chemical methods of euthanasia as a standard for mobile veterinary medical practices for agricultural animals.

 Legal watch

 In a case that likely will impact state veterinary licensing boards, the U.S. Supreme Court ruled in North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC) that the FTC has jurisdiction over that board’s action to exclude non-dentists from the market for teeth whitening services. The state board had issued “cease and desist” letters to teeth whitening service providers and product manufacturers who were unlicensed non-dentists. The FTC had found that the state board’s actions unreasonably restrained trade in violation of federal antitrust law. The Supreme Court held that because a controlling number of the board’s decision-makers are “active market participants” (licensed practicing dentists), the board enjoys immunity from antitrust liability only if it is subject to “active supervision” by the state.
To avoid similar antitrust liability concerns in the future, state licensing boards across all professions will need to make sure that any anti-competitive decisions or actions follow clearly articulated state policy and that the state is actively supervising their decisions and actions. What constitutes sufficient supervision of a state agency is “flexible and context dependent,” but according to the opinion, must include a review of the anti-competitive decision and the reviewer must have power to veto or modify the decision to comport with state policy. The review system must provide “realistic assurance” that the agency’s anti-competitive conduct promotes state policy rather than merely the agency members’ individual interests. Last fall, the AVMA joined with 18 other medical-related associations, including the American Medical Association and the American Dental Association, in submitting an amici curiae brief to the Supreme Court supporting the Dental Board’s position and opposing the FTC.