In the Cards: Betting on Vetrinary Telemedicine Legal Reform

By Dani McVety, Brian DiGangi, Camille DeClementi, Jennifer Hobgood, and Diana Ferguson

Vol. 96, No. 6   November/December 2022   Pg 52

Research demonstrates that many pets do not regularly see a veterinarian, often because their families confront significant obstacles to obtaining veterinary care; obstacles that may result in pet owners forgoing or postponing veterinary care or relinquishing pets. In 2020, the chief economist for the American Veterinary Medical Association (AVMA) estimated that over 50 million pets, approximately one-third, are not seen by a veterinarian at least once a year.^[1] A national study by the Access to Veterinary Care Coalition found that one out of four pet owners experience barriers to veterinary care, and the “overwhelming barrier for all groups of pet owners and types of care (preventive, sick, and emergency care) is financial.”^[2] A study published in the Journal of the American Veterinary Medical Association found that cost was cited frequently as an obstacle to veterinary care.^[3] While finances are a common barrier to veterinary care, many people also live in areas with few or no veterinary services or face other logistical obstacles.^[4] Especially when combined, such factors can force families to make difficult decisions to forgo basic veterinary preventive care, which can lead to more urgent medical conditions.^[5] Telemedicine can help pet owners avoid additional expenses related to unnecessary time off work or transportation and may provide cost-effective options.^[6] Telemedicine can also address problems with bringing pets to clinics that may be faced by many pet owners, such as seniors, disabled individuals, those without transportation, and owners of fearful, large, or potentially aggressive pets.

In a presentation given at the AVMA 2021 Convention,^[7] veterinarian Dr. Greg Bishop demonstrated that according to current research, “clients are really happy with telemedicine and are willing to pay for it. What we lose out on in terms of certain clinical aspects, we make up for by not stressing out animals by coming to the veterinary clinic…. It’s actually an advantage that a telemedicine visit would be cheaper because it’s accessible to a lot of people, and there’s a lot of people that need that.”^[8] Interest in veterinary telemedicine has grown significantly in recent years, driven in part by a critical shortage of veterinary professionals in the workforce and boosted by COVID-19 pandemic emergency orders that temporarily suspended legal barriers to veterinary telemedicine. Research shows a strong agreement between telemedicine and in-person veterinarian treatment recommendations.^[9] Expanded implementation of veterinary telemedicine may alleviate industry problems with workforce shortages of veterinary professionals,^[10] increased caseloads,^[11] and limited work-life balance.^[12] Veterinary telemedicine appointments can be “more efficient for the practice and more convenient and economical for the client,”^[13] and telemedicine services may attract millennial and other clients who are comfortable with technology.^[14]

While veterinary professionals and pet owners stand to benefit from broader access to technology, veterinary telemedicine also has potential to enhance animal welfare. Research has documented that clinical veterinary examinations are stressful for most dogs and cats.^[15] In one study, almost 78% of dogs showed fearful behavior in the clinic, with 13% so frightened they had to be physically dragged or carried into the examination room.^[16] Another study revealed that 40% of cat owners studied had not taken their cat to a veterinarian in the past year.^[17] The cat owners found taking their cat “to the veterinarian highly stressful for the animal and themselves” and reported the following:

that their cats hid when the cat carrier appeared; aggressively, physically resisted being put in the carrier; cried during the car or bus ride to the veterinary clinic; showed signs of stress and fear in the waiting area, particularly when unfamiliar animals, especially dogs, were present; displayed physical signs of tension during the examination; and acted remote and unfriendly for several days after returning home. Many cat owners expressed a desire to avoid the difficulties and unpleasantness associated with bringing their cat to the veterinarian.^[18]

The problem is so significant that the veterinary certification program “Fear Free” uses the motto “Taking the Pet Out of Petrified.”^[19] A key tactic emphasized in the Fear Free training is the use of pharmaceuticals administered prior to clinic visits to reduce fear, stress, or anxiety, which would not be available for a new patient under many existing veterinary laws that require an in-person physical examination as a prerequisite to prescribing.

Know When to Fold ’Em: Outdated Laws Postpone Veterinary Telemedicine Growth

Human health-care providers have long recognized telemedicine technology as a safe, effective tool for delivering care. ^[20] In the post-pandemic era, many states are enacting into law the emergency regulatory waivers that expanded telemedicine access.^[21] Given the dynamic growth in human telemedicine service delivery and its mainstreaming during the pandemic, it may seem ironic that the legal landscape for animal medicine slopes against broad professional and consumer access to the benefits of telemedicine technology. Much of the debate in veterinary medicine centers around a component of legal practice that has long been settled in human health care — the flexibility to establish a new patient-physician relationship over telemedicine. The American Medical Association’s 2018 “50-State Survey: Establishment of a Patient-Physician Relationship Via Telemedicine,” maintains that “all states allow a physician to establish a relationship with a new patient over telemedicine.”^[22] The correlation to the patient-physician relationship in veterinary medicine is the “veterinarian-client-patient-relationship” (VCPR). In recent decades, many state governments enacted a definition of VCPR as a means of providing a legal framework for state regulators to discipline licensed veterinarians and revoke professional veterinary licenses for violations of laws and regulations governing the practice of veterinary medicine.^[23] While state laws differ, similarities in legal VCPR definitions may derive from the AVMA model, which maintains that a recent physical examination is a prerequisite for a VCPR, and VCPRs cannot be established solely by electronic means.^[24]

Accordingly, existing veterinary laws, some decades old, may require a recent physical examination for a valid VCPR. The U.S. Food and Drug Administration (FDA) regulations governing Extralabel Drug Use in Animals and Veterinary Feed Directives — limited in application to circumstances where a veterinarian is using a drug in a manner other than the purpose for which it was approved or in feed directives — require a valid VCPR, which “can exist only when the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal(s) by virtue of examination of the animal(s), and/or by medically appropriate and timely visits to the premises where the animal(s) are kept.”^[25] The FDA suspended enforcement of both regulations during the COVID-19 pandemic.^[26]

Many state laws indirectly restrict veterinary telemedicine through the VCPR and/or “sufficient knowledge” requirements for prescribing treatment. Laws relating to veterinary telemedicine vary, but most are variations on the AVMA model practice act theme, requiring a recent physical examination to establish the relationship that permits a veterinarian to practice lawfully (VCPR). According to the Veterinary Virtual Care Association,^[27] state laws relating to veterinary telemedicine generally fall within the following categories: six states either enable vets to use telemedicine to establish a VCPR or have no VCPR (ID, MI, NJ, NY, OK, VA); seven states require the provider to have “recently seen” or become “acquainted with” the animal (AZ, CO, IN, LA, ME, RI, SD); 24 require an examination or a physical examination for a VCPR^[28]; and 10 states expressly prohibit using telemedicine to establish a VCPR (CA, GA, IL, MS, TN, TX, UT, WA, CT, UT).^[29] On one end of the spectrum, Georgia licensed veterinarians can be disciplined for “unprofessional conduct” if they fail to have an appropriate VCPR, and the rule prohibits establishing a VCPR “solely by telephone, computer, or other electronic means.”^[30] On the other end of the spectrum, states such as Virginia enable veterinarians to establish a VCPR electronically, providing for an examination either physically “or by the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically” as a criterion for establishing a “bona fide practitioner-patient relationship.”^[31] During the pandemic, state emergency orders temporarily waived regulations or laws that might interfere with veterinarians using telemedicine. Emergency orders in Michigan required the fullest possible use of veterinary telemedicine to help curb the spread of COVID-19.^[32] However, in California, veterinarians could only use telemedicine if they had already established a VCPR through a physical examination or for prescription refills based on a physical examination of an animal patient for each specific condition involving a prescription.^[33] California has not waived its prohibition on establishing a VCPR using telemedicine at any point during the pandemic.^[34]

Florida law presents an interesting case study with respect to ambiguous policies requiring a veterinarian to have “recently seen” an animal to meet a “sufficient knowledge” prescribing standard. Florida law is silent on veterinary telemedicine, and the state’s veterinary practice act implicitly allows a veterinarian to establish a VCPR electronically by defining VCPR as one in which a “veterinarian has assumed responsibility for making medical judgments about the health of an animal and its need for medical treatment.”^[35] Under state statute, veterinarians are permitted to prescribe drugs in the course of veterinary practice, provided the veterinarian has “sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the medical condition of the animal, which means that the veterinarian is personally acquainted with the keeping and caring of the animal and has recently seen the animal or has made medically appropriate and timely visits to the premises where the animal is kept,” is available in case of adverse drug reactions, and maintains patient records.^[36] However, the corresponding regulation in the Florida Administrative Code blocks veterinarians from prescribing unless they have “recent contact” with the animal.^[37] Since state statute contains no “recent contact” requirement for a VCPR or for prescribing, the Board may have exceeded its statutory authority to “carry out the provisions of” F.S. Ch. 474, Veterinary Medical Practice.^[38]

Calling a Protectionist Bluff: Are Some Veterinarians Trying to Stack the Deck Against Telemedicine Practitioners?

While an increasing number of veterinarians and associations support policies that broaden access to the benefits of telemedicine technology, some industry actors continue to pursue new laws to mandate physical examinations and prohibit electronic VCPRs. An October 21, 2020, Time magazine article on the lack of racial diversity in veterinary medicine provides a useful backdrop to the persistent opposition to a virtual VCPR, in referring to the veterinary industry as “[a]n industry slow to change”:

When an industry is stifled by homogeneity, it can breed a culture of leaders often inflexible to change, advocates say. Amid a pandemic, when social distancing restrictions limited in-person appointments, some veterinarians criticized the AVMA for not tweaking its telemedicine policy, which discourages vets from prescribing medication or diagnosing new pet patients remotely except in emergency situations.…[S]ome vets say industry leaders should be better champions for changing those laws nationwide. For some, it was the latest example that the industry was not keeping up with the times. “The veterinary industry, in general, has been very resistant to change in every facet,” [Tierra] Price [DVM] says.^[39]

Such resistance to change has played out in legislative and regulatory proceedings in recent years, with policies to require a recent physical examination for a VCPR and/or prohibit a virtual VCPR proposed in several states from 2019-2022, including Oregon, California, Connecticut, Florida, Michigan, Montana, North Carolina, West Virginia, Nevada, Kentucky, Hawaii, Wisconsin, and Iowa.^[40] While the legislation failed in some states, retrograde proposals passed in North Carolina, Montana, Connecticut, Nevada, Hawaii, California, Oregon, and West Virginia, with the West Virginia bill mandating a “face to face, in-person, examination of the patient” within 12 months for veterinary telehealth.^[41] California’s veterinary medical practice act was amended to clarify that a VCPR cannot be established solely by telephonic or electronic means, and with respect to prescribing, a VCPR in California is limited to a specific medical condition, meaning that a VCPR must be reestablished through a physical examination in each case, with a prescription duration not to exceed one year from the date of an examination.^[42]

A primary argument made by those backing regressive legislation is that animals cannot articulate symptoms like humans, making physical examinations necessary to diagnose animal ailments. However, veterinarian Dr. Patty Khuly suggests that such contentions may be more about protectionist, political subterfuge than quality care:

In its wariness of telemedicine, professional organizations like AVMA and state veterinary medical associations (VMAs) argue the definition of VCPR is at the heart of the issue. A VCPR, they say, cannot be established without a hands-on physical examination. This literal “laying of the hands” is what cements the VCPR, according to the AVMA’s Model Veterinary Practice Act (MVPA). The argument advanced is that animals can’t talk, thereby rendering a hands-on VCPR so indispensable. But is this a genuine ethical argument about quality of care, or is this disingenuously fabricated to serve a protectionist position favoring brick-and-mortar medicine? Need the VCPR be so restrictive? Or is the limitation based on the ability to speak a specious argument in service of the status quo?^[43]

No states force licensed physicians to conduct physical examinations of infants or other nonverbal humans before providing treatment. While animals cannot verbally communicate, they provide behavioral signals, which can potentially be more informative than seeing an animal in an unfamiliar place where the animal is not behaving as it customarily would. In a clinic setting, dogs and cats may become extremely fearful and withdrawn, and, in a situation that they perceive as threatening, animals may mask their pain as a survival mechanism.^[44]

Know When to Hold ’Em: Uptick in Forward-thinking Legislation Points to Legal Reform

Historically, physicians resisted emergent telemedicine expansion in human medicine for similar reasons to those offered by some veterinary medical associations. According to A History of Telemedicine, in the early days of telemedicine technology, “the broader culture in medicine viewed this modality of care with a great deal of skepticism….It was seen as a challenge or a threat to the prevailing paradigm of the traditional doctor-patient relationship — the laying on of hands….”^[45] By the 1990s, however, “any latent resistance in the medical community subsided to a large extent.”^[46] Growing support for new patient access to telemedicine from veterinarians, veterinary businesses, and professional associations, coupled with the introduction of policy proposals aimed at removing regulatory barriers to telemedicine technology, suggests a dismantling of antiquated “laying on of hands” ideology and increasing technological innovation within the industry. In many situations when using modern telemedicine technology, a licensed veterinarian can appropriately “see” and “examine” an animal within its normal environment. In 2019, the American Association of Veterinary State Boards (AAVSB) updated its “Veterinary Medicine and Veterinary Technology Practice Act Model” to empower veterinarians to establish VCPRs using telemedicine technology.^[47]

From 2019-2022, several states considered legislation that would expand access to veterinary telemedicine services, including Virginia, New Jersey, Michigan, Alaska, Nevada, Oklahoma, Indiana, and Florida.^[48] During these years, New Jersey, Virginia, Michigan, and Oklahoma enacted policies to expand access to veterinary telemedicine. A 2020 veterinary board proposal in Alaska sought to establish a VCPR definition that did not require an in-person physical examination,^[49] although after the AVMA and state VMA engaged in opposition to the measure, it failed to advance. Indiana lawmakers amended a forward-thinking 2021 bill, and the enacted law does not permit a virtual VCPR. In 2021, Michigan and New Jersey regulations became effective, enabling veterinarians to begin working with a client for new patient care using telemedicine.^[50] A recent Hawaii bill sought to prohibit the board from revoking or suspending the license of any veterinarian or fining any veterinarian solely because the veterinarian engaged in telehealth without a previously existing VCPR or physical examination. Collectively, these innovative proposals call for greater professional discretion and changes to outdated policies that block expansive access to telemedicine in veterinary care.^[51]

Texas Hold ’Em: Will Litigation be a Game-Changer?

Several court cases illuminate issues relevant to the legal status and future of veterinary telemedicine. In 2010, the Federal Trade Commission (FTC) filed an administrative complaint against the North Carolina State Board of Dental Examiners for violating subsection five of the Federal Trade Commission Act, alleging that N.C. Dental Board’s actions to exclude non-dentists from the market for teeth whitening services in the state constituted an antitrust and unfair method of competition. The Supreme Court upheld FTC’s determination that the N.C. Dental Board violated federal antitrust law, since “active market participants cannot be allowed to regulate their own markets free from antitrust accountability….Indeed, prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy.”^[52] On the heels of the Supreme Court’s 2015 ruling, one of the largest telemedicine companies, Texas-based Teladoc, Inc. and its physicians filed a lawsuit against the Texas Medical Board (TMB) alleging violations of federal antitrust law and the Commerce Clause of the Constitution, claiming that state requirements, including a law that physicians must see patients in person prior to treatment, constituted anticompetitive behavior.^[53] The FTC intervened on behalf of Teladoc, flagging a lack of “evidence that any disinterested state official reviewed the TMB rules at issue to determine whether they promote state regulatory policy rather than TMB doctors’ private interests in excluding telehealth — and its lower prices — from the Texas market.”^[54] A federal judge rejected the TMB’s motion to dismiss on state action immunity grounds, and in 2017, after Texas lawmakers enacted legislation that dramatically expanded access to telemedicine, Teladoc dropped its lawsuit.

The same year Teladoc filed its suit, Texas veterinarian Ron Hines challenged the constitutionality of the state’s law requiring veterinarians to conduct a physical examination in person (Hines v. Alldredge, 783 F.3d 197 (5th Cir. 2015)).The Fifth U.S. Circuit Court of Appeals rejected the case, finding that “state regulation of the practice of a profession, even though that regulation may have an incidental impact on speech, does not violate the Constitution.”^[55] Following a decision by the Supreme Court in NIFLA v. Xavier Becerra, No. 16-55249 (9th Cir. 2018), wherein the Court found that “[s]peech is not unprotected merely because it is uttered by ‘professionals,’” Dr. Hines filed his complaint de novo (Hines v. Quillivan, 982 F.3d 266 (5th Cir. 2020)), and in late 2020 the court ruled that NIFLA abrogated Alldredge in part with respect to professional speech, though the court rejected Dr. Hines’ equal protection claim based on Texas’ different telemedicine rules for human physicians and veterinarians, with a majority of the court accepting the state’s rationale that “the regulating of telemedicine differently than televeterinary services was rationally related to human patients’ ability to communicate about their symptoms with doctors via electronic means, and the inability of animals to do so.”^[56]

However, in an opinion concurring with the court’s professional speech finding and dissenting from its rejection of Hines’ equal protection claim, Circuit Judge Jennifer Walker Elrod rejected the state’s rationale for differential treatment based on animals’ inability to articulate symptoms as “nonsensical explanations for regulation,” maintaining that veterinarians and physicians indeed are similarly suited regarding regulation of their professional use of telemedicine:

[T]he state has failed to demonstrate a rational basis for their disparate regulation….Rational basis review is a level of scrutiny, not a rubber-stamping exercise …and economic protection of a favored industry is not, on its face, a legitimate state interest….The magistrate judge concluded that the state’s rationales were irrational, and aptly explained why in his report and recommendation: ‘If a pediatrician can use telemedicine to treat a three-month old infant…the court cannot adduce why a veterinarian cannot do the same for a dog, cat, or hamster.’ Babies and other non-communicative adults were intentional beneficiaries of Texas’s expansion of telemedicine….Texas has never shown a preference for animals over humans that would support requiring higher standards for animals’ medical treatment.^[57]

In the opinion echoed by Judge Elrod, U.S. District Court Magistrate Judge Ronald Morgan points out that “A three-month-old infant is no more able to describe his symptoms than can a German Shepherd. A veterinarian must rely on the descriptions of symptoms from a pet owner the same way that a pediatrician must rely on a parent or a geriatrician must rely on the caretaker for an elderly patient with severe dementia,” finding that Hines “has shown that doctors and veterinarians are similarly situated persons who are treated differently.”^[58] A pending suit filed by the San Francisco Society for the Prevention of Cruelty to Animals in federal court challenges California’s VCPR regulations on free speech on equal protection grounds, similarly to Dr. Hines’ latest challenge in Texas.^[59] Plaintiffs point out that California veterinary regulators also offer nonsensical justification for the disparate treatment and that California’s regulations broadly allow telemedicine communications between a physician and parent for a nonverbal child.

Conclusion: Learn to Play it Right

To protect public health during the COVID-19 pandemic, state and federal policymakers relaxed longstanding rules restricting veterinary telemedicine, and according to the Veterinary Virtual Care Association, no U.S. or Canadian jurisdiction reports problems with harm to pets from telemedicine.^[60] Policies that respect a veterinarian’s individual professional judgment to serve more patients using telemedicine, under reasonable regulatory licensure and oversight, could reform the legal infrastructure, enhance the veterinary profession, and broaden veterinary care access across the economic and geographic spectrum. At its core, expanding access to veterinary telemedicine is about expanding access to veterinary healthcare, and the animal welfare stakes are high. Amidst an ongoing veterinary workforce shortage, research shows that 75 million pets in the U.S. could be without veterinary care by 2030 if we do not update our approach to providing these services.^[61] Approximately 6.3 million homeless pets enter U.S. animal shelters annually.^[62] A national study showed that 40% of low-income owners who rehomed their pets reported that access to affordable vet care would have helped them keep their pet.^[63] Increasing access to veterinary telemedicine may improve animal health and may reduce the number of animals surrendered to shelters by owners who struggle to obtain veterinary care. Courts of law and the court of public opinion are leaning toward broader use of veterinary telemedicine. The longer recalcitrant sectors of the veterinary industry continue to bluff, calling for protectionist policies that foreclose telemedicine under the guise of quality care, the longer we postpone the serious business of ensuring access to vital veterinary care for those that need it most.

This column is submitted on behalf of the Animal Law Section, S. Brent Spain, chair, and Ralph A. DeMeo, editor.

Vol. 96, No. 6   November/December 2022   Pg 52