The Board adopts new §573.10 to consolidate provisions regarding what a non-veterinarian can do under veterinarian supervision that had previously appeared in other rules in Chapter 573. Specifically, the provisions on supervision for non-veterinarians administering rabies vaccine and using a veterinarian's signature stamp on official health documents such as rabies certificates have been split out from their prior location in §573.51. It also incorporates the limitations set by the Texas Legislature in HB 414 and Texas Occupations Code §801.262 on the services that licensed equine dental providers can perform under general veterinary supervision, and that non-licensed employees of a veterinarian can perform under direct supervision.

Additionally, the Board adopts new §573.10 to clarify and simplify the rules regarding veterinarians supervision of registered veterinary technicians (RVT). The qualifications for registered veterinary technicians (RVT) are simplified so that the adopted rule considers an individual registered as an RVT by the Texas Veterinary Medical Association to be a RVT under the rule. The adopted rule also clarifies that under direct veterinary supervision, a RVT can perform suturing to close both surgical skin incisions and skin lacerations. The adopted rule further clarifies that the emergency care and hospitalized animals provisions are both exceptions to the general supervision rules.

In reviewing the proposed language of the rule, the Board noticed a discrepancy in the reference in subsection (a)(1), regarding delegation to equine dental providers, which referred the reader to subsection (h) for more detail, when the paragraph providing detail on supervision of equine dental providers is subsection (i). The Board therefore adopts the rule with a non-substantive change from the published proposed rule, altering the reference in subsection (a)(1) to read "subsection (i)." The text of the rule is therefore republished.

The Board received one comment from a member of the public who expressed concern that general supervision for equine dental providers was not sufficient to ensure that the equine dental provider performs competently, and other public comments requesting that equine dental providers not be required to work under veterinary supervision. The Texas Legislature specifically created the requirement that equine dental providers practice only under general supervision by a licensed veterinarian in HB 414 and Texas Occupations Code §801.262, so the Board does not have legislative authority to change the level of supervision for equine dental providers by rule. Under new §573.10, the veterinarian is responsible for determining that an equine dental provider is adequately trained and sufficiently competent to perform equine dentistry well under general supervision before the veterinarian agrees to supervise the equine dental provider. The Board did not make any changes to the rule in response to this comment.

The Board adopts new §573.11, regarding Responsibility for Unlicensed Employees, which makes veterinarians subject to discipline for the actions of their employees that violate the Board's rules when the employee is acting within the scope of his or her employment. In recent years, the Board's rule on supervision had been interpreted by some administrative law judges to mean that a veterinarian could only be liable for the actions of an employee if the veterinarian had explicitly told the employee to take some action that violated the Board's rules. This interpretation made it extremely easy for veterinarians to evade responsibility for actions taken by their employees, even if the employee was acting completely within the scope of his or her employment by the veterinarian. The Board adopts new §573.11 with the language of the long-standing respondeat superior doctrine from civil common law, which holds an employer responsible for the actions of employees taken within the scope of their employment. By using the language of the respondeat superior doctrine, the Board intends §573.11 to be easy for courts and the State Office of Administrative Hearings (SOAH) to interpret consistently and in keeping with the Board's belief that a veterinarian should be directly responsible for the actions of his employees. The main defense a veterinarian under investigation for a violation of this rule would have is that the employee was acting outside the scope of their employment--the employee was performing a task he had not been assigned or was doing something that was not part of his job.

The Board received four public comments regarding §573.11, including one comment from TVMA. All four commenters stated that it was inappropriate for the Board to hold a veterinarian responsible for actions of an employee that the employee undertook without the veterinarian's knowledge or authorization. Two of these four, including TVMA, used the example of a veterinarian whose technician strikes a dog, without the direct knowledge of the veterinarian, while treating or restraining the animal, and stated that the veterinarian should not be held responsible for that employee's actions. Under adopted §573.11, a veterinarian's responsibility in that scenario would hinge on whether the employee was acting in the scope of his employment. If the employee struck the dog while restraining or treating the animal and those duties had been delegated to him by the veterinarian, the veterinarian would be responsible for the violation of the standard of care committed by the employee. If the technician struck the dog out of the blue and not while in the scope of his employment--such as if the technician had not been assigned to work with the dog--the veterinarian would not be responsible for the technician's actions. The Board believes that a veterinarian should be responsible for all actions of his employees within the scope of their employment, and should not be allowed to hide behind excuses that the veterinarian did not know about an incident in question or did not explicitly instruct an employee to take a certain action. Otherwise, since there is no regulation of veterinary technicians in Texas, a veterinarian can simply delegate most treatment responsibilities to unlicensed employees and then claim that he should not be held responsible for the technician's actions, which could potentially include everything from injuries to animals, to compounding, dispensing or administering drugs incorrectly, to prescription labels with wrong directions. The public commenters, including TVMA, complained that punishing a veterinarian for the actions of his staff will not have a deterrent effect because the veterinarian cannot control the actions of his staff, but the Board disagrees. The Board expects that the deterrent effect of adopted §573.11 will be to cause veterinarians to supervise their staff more closely, and to make their hiring and firing decisions more carefully, so that veterinarians ensure they employ only staff that they--and their clients--can trust. Thus, the Board did not make any changes to the rule in response to these comments.

Another commenter was concerned about the "scope of employment" wording, because the commenter believed the language was vague. The Board respectfully disagrees. The phrase "scope of employment" has been used and interpreted frequently by courts employing the respondeat superior doctrine in civil litigation, creating a vast body of case law and court precedent that has examined and defined "scope of employment." Under the respondeat superior doctrine, the scope of employment is based on the technician's job duties and particular assignments, and could potentially change from day to day and be different for each technician in a clinic, and among different clinics. Although it is flexible, it is not a vague or undeveloped standard, and should be easily interpreted by the Administrative Law Judges at SOAH. The Board did not make any changes to the rule in response to this comment.

Another commenter was concerned that adopting the respondeat superior doctrine in a Board rule would open veterinarians to non-economic damages in district court. The Board respectfully disagrees. Board rules are only enforceable by the Board, and they do not impact private civil litigation in Texas district court or alter what damages are available in district court. Moreover, economic and non-economic damages are not a part of the Board's analysis--the discipline meted by the Board is the same whether the animal involved in the case was an expensive thoroughbred, a beloved house cat, or a stray dog. The value of an animal, whether economic or non-economic, has no impact on how the Board prosecutes a case or the degree of penalty that a veterinarian receives from the Board. The Board did not make any changes to the rule in response to this comment. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.12, regarding Responsibility for Licensure of Licensed Persons, which requires that a veterinarian ensure that all other veterinarians and equine dental providers that the veterinarian employs or supervises hold active licenses with the Board, because no veterinarian should allow another veterinarian or an equine dental provider to practice under their supervision without a license. This rule has been renumbered from repealed §573.11 to accommodate other new sections added to Chapter 573. The Board did not receive any comments regarding §573.12. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.13, regarding Delegation and Supervision Relating to Official Health Documents, which addresses the supervision requirements for veterinarians who have unlicensed employees assist them with official health documents. The provisions the Board adopts in §573.13 have been split out of the previous version of §573.10, to clarify and simplify the supervision rules that particularly relate to official health documents. The term "official health documents" that the Board uses in new §573.13 has been given a standard definition under adopted new §573.80 to allow uniformity and clarity. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.14, regarding Alternative Therapies--Chiropractic and Other Forms of Musculoskeletal Manipulation, which sets out the conditions under which a licensed veterinarian or an individual under a licensed veterinarian's supervision can perform chiropractic treatments or musculoskeletal manipulation on animals. The Board adopts new §573.14 to apply only to supervision by veterinarians, because equine dental providers are not authorized to supervise others in the practice of veterinary medicine under the Veterinary Licensing Act. The adopted rule does not include the word "non-standard" as a description of chiropractic treatment because some found it to have disparaging implications. The adopted new rule has been renumbered from repealed §573.12 to accommodate other new sections added to Chapter 573. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.15, regarding Use of Ultrasound in Diagnosis or Therapy, which sets out the conditions under which ultrasound equipment can be used on animals. The adopted rule has been renumbered from repealed §573.13 to accommodate other new sections added to Chapter 573, but the text is otherwise unchanged from the text that previously appeared as §573.13. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.16, regarding Alternative Therapies--Acupuncture, which sets out the conditions under which a licensed veterinarian can perform acupuncture on animals, and forbids individuals who are not veterinarians from performing acupuncture on animals. The adopted rule has been renumbered from repealed §573.14 to accommodate other new sections added to Chapter 573, but the text is otherwise unchanged from the text that previously appeared as §573.14. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.17, regarding Alternative Therapies--Holistic Medicine, which sets out the conditions under which a licensed veterinarian can perform holistic medicine on animals, and forbids individuals who are not veterinarians from performing holistic medicine on animals. The adopted rule has been renumbered from repealed §573.15 to accommodate other new sections added to Chapter 573. The adopted rule adds the words "holistic medicine" to subsection (b) to correct an omission, and replaces the word "treating" with "treatment" in subsection (d), but the text is otherwise unchanged from the way it appeared previously as §573.15.

The Board received comments from three members of the public regarding §573.17. Each of these commenters expressed concern that the Board was changing the rules regarding the practice of holistic and alternative medicine on animals. The adopted rules contain no changes regarding holistic and alternative medicine, aside from renumbering those provisions to accommodate other additions to the chapter. Under Texas Occupations Code §801.151, the Legislature has mandated that the Board will adopt rules to ensure that alternate therapies, including holistic medicine, are performed only by a veterinarian or under the supervision of a veterinarian. The Board cannot deviate from that legislative mandate. Therefore, the Board did not make any changes in response to these comments. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board also received a comment from TVMA and one other member of the public, requesting new rules regarding veterinary rehabilitation and physical therapy and the use of therapeutic lasers on animals. Since those comments do not concern the proposed changes and are instead requests for new rules, the Board has interpreted those comments as requests for rulemaking and has requested more information from those commenters so that the Board can evaluate the need for rules specifically covering those areas within the practice of veterinary medicine.

The Board adopts new §573.18, regarding Alternative Therapies--Homeopathy, which sets out the conditions under which a licensed veterinarian can use homeopathy, and forbids individuals who are not veterinarians using homeopathy in the treatment of an animal. The adopted rule has been renumbered from repealed §573.16 to accommodate other new sections added to Chapter 573, but the text is otherwise unchanged. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.20, regarding Responsibility for Acceptance of Medical Care, which sets out requirements regarding a veterinarian's responsibilities, after accepting an animal as a patient, to treat the patient; inform the client of the treatment, diagnosis, and any possibility that another veterinarian will perform treatment on the animal; and the circumstances under which a veterinarian can discontinue treatment.

The published proposed text of §573.20 included subsection (d) a provision prohibiting a veterinarian from refusing to return a client's animal regardless of whether the client owes the veterinarian money for veterinary services rendered to the animal, other than as is allowed for large animals under Texas Property Code §70.010. The Board received four public comments regarding §573.20, one in favor and three opposing the changes to the rule, including a comment from TVMA. Two of the three commenters, including TVMA, stated that they oppose the rule because they believe the proposed clause requiring a veterinarian to return an animal regardless of whether the client has paid interferes unnecessarily with contracts between a veterinarian and his client. These commenters each used the example of a veterinarian undertaking care of an animal owned by a client who has a history of non-payment of bills, and stated that creating a possessory lien would be the best way to protect the veterinarian from a foreseeable financial loss. The other comment the Board received opposing §573.20 stated that the proposed rule would invite more unwarranted litigation.

In response to these comments, the Board adopts §573.20 without subsection (d), which had forbid veterinarians from refusing to return a client's small animal even if the client owed money. This amendment is a non-substantive change from the published proposed version of §573.20, and the rule is therefore republished.

The Board adopts new §573.21, regarding Direct Responsibility to Client, which forbids a licensee from allowing a non-licensed person or entity to interfere with the licensee's practice. The adopted rule applies to all licensees of the Board, veterinarian and equine dental provider alike, because all licensees should be free from influence by non-licensed persons or entities in their practice. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.22, regarding Professional Standard of Care, which requires that licensees uphold the same standard of care as other licensees in their community or similar communities. The adopted rule applies to all licensees of the Board, in keeping with the requirements of HB 414 and Texas Occupations Code §801.263, which state that an equine dental provider shall be held to the same standard of care as a veterinarian providing equine dental services. The rule is adopted with phrase "standard of care" in the title to reflect what the standard is commonly called. The Board did not receive any comments regarding this rule. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.23, regarding Board Certified Specialists, which addresses the higher standard of care to which the Board holds specialists, and how that higher standard of care impacts the Board's investigation process. The language regarding a veterinarian's duty to refer that previously appeared in §573.23 has been split out in the interests of clarity and ease of reference and now appears in adopted new §573.24.

The term "specialist" is now defined under new §573.80 to increase uniformity and clarity in the Board's rules, and is employed in this new adopted rule. The Board did not receive any comments regarding §573.23. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.