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Q&A: How Are Veterinary State Boards Handling the Pandemic?

Bonnie L. Lutz, BS, JD, Klinedinst Attorneys

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Q&A: How Are Veterinary State Boards Handling the Pandemic?
Published April 9, 2020, at 8:18 AM CST

Will other states follow Oregon’s lead in relaxing the veterinary-client-patient relationship (VCPR) requirements for telemedicine?

The current definition of VCPR in the Oregon Administrative Rules has not changed as of April 7, 2020. However, Oregon has temporarily ordered that telehealth can be provided without establishing a VCPR during the current state of emergency.

Despite this permission to use telehealth without an established VCPR during the current COVID-19 crisis, I do not believe that the majority of states will change their definitions of a VCPR in their veterinary medicine practice acts to relax the requirement of a physical examination. In fact, several states have recently adding language stating that a VCPR cannot be established by telephone or electronic means, following California’s lead.

In short, the definition of VCPR (ie, VCPR by definition requires an in-person physical examination) has not changed, but the requirement that a VCPR exist prior to providing telehealth is temporarily relaxed.

What about the recent FDA statement on VCPRs?

The FDA relaxation of the requirement for a physical examination prior to the establishment of a VCPR only applies to the extra-label use of drugs and to veterinary feed directives.

The FDA has no authority over the individual state veterinary medical boards or over the statutes and regulations in the individual state veterinary medicine practice acts. Consequently, because this FDA guidance only applies to extra-label use of drugs and veterinary feed directives, it has no effect on individual state requirements for a physical examination to establish a VCPR.

What implications could relaxed VCPR requirements have in the long run?

It is difficult to predict how the pandemic will affect VCPR requirements in the long run; however, the state boards that feel strongly about the physical examination requirement will likely maintain the requirement, supported by the many veterinary medical associations that have taken a strong position in favor of requiring a physical examination. 

Finally, there is always the standard of care issue. Whether the physical examination requirement is relaxed temporarily or long-term, or not at all, veterinarian using telemedicine in a case with a bad outcome can still be found negligent because of the failure to perform a physical examination. Several of the states that have currently temporarily relaxed the requirement for a physical examination to establish the VCPR have added language emphasizing that the veterinarian is expected to follow the minimum standard of care in utilizing telehealth for diagnosis.

When this crisis situation is behind us, how do you think state boards will handle complaints and standard of care issues?

This crisis is not likely to have any effect on how state boards handle complaints.

State boards are generally reactive, not proactive. State boards respond to complaints from the public, which could include anyone, not only pet owners. If a veterinarian uses telemedicine without a VCPR and there is a bad outcome and a complaint, the board will investigate 2 issues: violation of the VCPR regulation and standard of care. Even if the board determines that the veterinarian did not violate the regulation by using telemedicine without an existing VCPR, that board can find that the veterinarian was negligent because the treatment or lack thereof was below the standard of care. In general, my clients would rather face violation of a regulation than negligence. Regardless of the requirements for a VCPR in any particular state and regardless of the COVID-19 crisis, veterinarians must be careful to provide veterinary care and treatment within the standard of care. If the pet’s condition warrants a new physical examination, it would be below the standard of care not to perform that physical examination.

It is also imperative that veterinarians continue to keep complete medical records, obtain informed consent, and follow provisions of the state practice act even if they are using telemedicine. I do not believe the COVID-19 crisis gives veterinarians any leeway for failing to follow the state practice act.

Again, as boards are generally reactive and not proactive, I believe they will investigate all complaints during the crisis and after the crisis. Unless a board makes a statement that they are not going to hold veterinarians to compliance, I do not believe there will be any difference in the investigation into complaints or the requirement that veterinarians must comply with the practice acts.

How do state boards factor in whether veterinary practices are deemed essential? We know the AVMA has asserted that veterinary practices ARE essential, but especially looking at state shelter-in-place mandates, how are practices affected?

The official priority for most veterinary state boards is protection of the public—essentially, protection of pet owners and animals, making veterinary practices essential businesses. The California State Public Health officer has designated “workers supporting veterinary hospitals and clinics” as one of the “Essential Critical Infrastructure Workers” in a document dated March 22, 2020. 

Although the AVMA’s position is that veterinary hospitals should stop providing routine services, it is important to note that some services categorized as routine must continue, such as rabies vaccinations or zoonotic disease management critical to public health.

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