The Texas Board of Veterinary Medical Examiners (Board) proposes the repeal of Chapter 573, Subchapter A, General Professional Ethics, §§573.2 - 573.9; Subchapter B, Supervision of Personnel, §§573.10 - 573.16; Subchapter C, Responsibilities to Clients, §§573.20 - 573.29; Subchapter D, Advertising, Endorsements and Certificates, §573.30 and §§573.32 - 573.37; Subchapter E, Prescribing and/or Dispensing Medication, §§573.41 - 573.45; Subchapter F, Records Keeping, §§573.51 - 573.54; and Subchapter G, Other Provisions, §§573.60, 573.61, 573.63 - 573.66 and 573.68 - 573.77. The Board also proposes the following new rules: Subchapter A, General Professional Ethics, §§573.2 - 573.9; Subchapter B, Supervision of Personnel, §§573.10 - 573.18; Subchapter C, Responsibilities to Clients, §§573.20 - 573.29; Subchapter D, Advertising, Endorsements and Certificates, §§573.30, 573.32 - 573.37; Subchapter E, Prescribing and/or Dispensing Medication, §§573.41 - 573.45; Subchapter F, Records Keeping, §§573.51 - 573.55; and Subchapter G, Other Provisions, §§573.60, 573.61, and 573.63 - 573.80.

The proposed repeal and replacement result from the Board's rule review of Chapter 573 conducted in accordance with Texas Government Code §2001.039. Elsewhere in this issue of the Texas Register, the Board proposes the review of Chapter 573.

The Board proposes the following changes to 22 TAC Chapter 573, to clarify, organize and improve the organization of the Board's rules of professional conduct, and to implement changes necessitated by recent legislation, including House Bill (HB) 414, 82nd Legislative Session, which gave the Board the authority to license and regulate equine dental providers.

Proposed new §573.2, regarding avoidance of encroachment on another's practice, is proposed to apply to all licensees, both veterinarians and equine dental providers alike. The proposed rule replaces the term "unfaithful" with "substandard" to clarify that licensees have the right to complain about another licensee's substandard or negligent work. The clause suggesting but not requiring that a licensee speak with the licensee accused of performing substandard work before making a complaint has been removed from the proposed rule because it had created too great a deterrent effect and led many veterinarians to believe falsely that they could not file a complaint against another licensee. The proposed rule includes new language intended to protect licensees who file complaints with the Board, or act as witnesses for the Board, from any sort of reprisal or intimidation by another licensee, because the Board has seen several instances of attempted witness intimidation by licensees under investigation by the Board against other licensees.

Proposed new §573.3, regarding exposure of corrupt or dishonest conduct, is proposed to apply to all licensees, both veterinarians and equine dental providers alike.

Proposed new §573.4, regarding adherence to the law, is proposed to apply to all licensees, both veterinarians and equine dental providers alike. The proposed rule includes new language referencing the list of crimes that the Board considers to be related to the practice of veterinary medicine and the practice of equine dentistry, located in §575.50, to clarify which violations of law by a licensee are also a violation of the Board's rules. The proposed language reflects the Board's long-standing interpretation of this rule.

Proposed new §573.5, regarding avoidance of corruption of others, is proposed to apply to all licensees, both veterinarians and equine dental providers alike.

Proposed new §573.6, regarding restriction of partnerships to members of veterinary profession, is proposed to apply only to veterinarians, because the Veterinary Licensing Act only precludes veterinarians from partnering with non-veterinarians and has no similar preclusion for equine dental providers.

Proposed new §573.7, regarding no abuse of position or trust, is proposed to apply to all licensees, both veterinarians and equine dental providers alike. The proposed rule includes new language stating that a licensee may not attempt to influence the opinion of any person that has given a statement or opinion to the Board. This new language is intended to stop licensees under investigation from attempting to intimidate or influence witnesses that are assisting the Board with investigations, or testifying on the Board's behalf in contested case proceedings.

Proposed new §573.8, regarding loss of accreditation, is proposed to apply to all licensees, both veterinarians and equine dental providers alike. The rule is also proposed to require that a licensee report any revocation or suspension of any accreditation, licensure, certification or registration to the Board within 30 days. This change will put the onus on licensees to report revocations or suspensions, and expands the list of reportable revocations and suspensions to those involving all licenses, certifications and registrations, in order to include equine dental providers licensed or certified by other states, veterinarians licensed in other states or countries, and veterinarians with DEA and DPS certifications and USDA accreditation.

Proposed new §573.9, regarding non-resident consultants, is proposed to clarify that for purposes of the rule, a veterinarian may enter Texas for purposes of consultation in person, by mail, or by electronic means. This change is intended to modernize the rule to ensure that it applies in all consultations by veterinarians not licensed in Texas, including but not limited to internet sites and web conferencing. The definition of consultation, which previously appeared in §573.9, has been moved to proposed new §573.80 with other definitions that apply throughout Chapter 573 for clarity and ease of reference.

Proposed new §573.10, regarding supervision of non-licensed persons, is proposed to clarify both the responsibility of a veterinarian for individuals he supervises, and the limitations on what a non-veterinarian can do under veterinary supervision. The language of the proposed rule clarifies that a veterinarian is subject to discipline if he either improperly delegates duties to any non-licensee, whether an employee or an independent contractor, or if he fails to properly supervise any non-licensee, whether an employee or an independent contractor, to whom he has delegated treatment responsibilities.

Proposed new §573.10 also limits the types of independent contractors a veterinarian can supervise to chiropractors and licensed equine dental providers; all other individuals working under veterinary supervision must be direct employees of the veterinarian. This carve-out for licensed equine dental providers and chiropractors is intended to create a very limited exception to the proposed new §573.11, which requires the veterinarian take direct responsibility for the actions of all employees working under his supervision. Both licensed equine dental providers and licensed chiropractors are independently regulated by the state of Texas, and therefore are separately accountable for their actions while working under veterinary supervision. By allowing licensed equine dental providers and chiropractors to work under veterinary supervision as independent contractors rather than employees, the veterinarian will only be responsible only for improper delegation of care to, or improper supervision of, these separately regulated independent contractors.

Proposed new §573.10 also consolidates 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, proposed new §573.10 is intended to clarify and simplify the rule. The qualifications for registered veterinary technicians (RVT) are simplified so that the proposed rule considers an individual registered as an RVT by the Texas Veterinary Medical Association to be a RVT under the rule. The proposed rule also seeks to clarify the suturing a RVT can do under direct veterinary supervision by including suturing to close both surgical skin incisions and skin lacerations. The proposed rule further clarifies that the emergency care and hospitalized animals provisions are both exceptions to the general supervision rules.

Proposed new §573.11, regarding responsibility for unlicensed employees, is intended to make veterinarians subject to discipline for the actions of their employees that violate the Board's rules if 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 proposed new §573.11 invokes 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, proposed new §573.11 is intended to be easy for courts and the State Office of Administrative Hearings to interpret consistently and in keeping with the Board's belief that a veterinarian should be directly responsible for the actions of his employees.

Proposed new §573.12, regarding responsibility for licensure of licensed persons, is proposed to require that a veterinarian ensure that all other veterinarians and equine dental providers that the veterinarian employs or supervises hold active licenses with the Board. The proposed rule has been renumbered from §573.11.

Proposed new §573.13, regarding delegation and supervision relating to official health documents, has been split out from where it previously appeared in §573.10 to clarify and simplify the supervision rules that particularly relate to official health documents. The term "official health documents" used in proposed §573.13 has been given a standard definition under proposed new §573.80 to allow uniformity and clarity. Otherwise, the text has not been substantively changed.

Proposed new §573.14, regarding alternative therapies--chiropractic and other forms of musculoskeletal manipulation, is proposed to clarify that the supervision requirements relate only to supervision by veterinarians. The word "non-standard" as a description of chiropractic treatment has been removed because some found it to have disparaging implications. The proposed new rule has been renumbered from §573.12.

Proposed new §573.15, regarding use of ultrasound in diagnosis or therapy, has been renumbered from §573.13, but the text is otherwise unchanged.

Proposed new §573.16, regarding alternative therapies--acupuncture, has been renumbered from §573.14, but the text is otherwise unchanged.

Proposed new §573.17, regarding alternative therapies--holistic medicine, has been renumbered from §573.15. Two minor errors have been corrected in the proposed new rule: the words "holistic medicine" were added to subsection (b) where they had been previously left out, and the word "treating" replaced the word "treatment" in subsection (d), but the text is otherwise unchanged.

Proposed new §573.18, regarding alternative therapies--homeopathy, has been renumbered from §573.16, but the text is otherwise unchanged.

Proposed new §573.20, regarding responsibility for acceptance of medical care, has been proposed to include 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 Attorney General has stated in Opinion JC 0421, "a veterinarian, in the usual circumstances, at most holds an equitable lien on the animal for those services. Because an equitable lien is not possessory, a veterinarian may not refuse to return the animal to the owner merely because the owner is unwilling or unable to pay for the medical services rendered." Thus, the proposed new rule only removes veterinarian's ability to create a contractual possessory lien by having the owner sign an agreement to that effect prior to treatment. The Board intends this provision to prohibit veterinarians from creating possessory liens against animals--outside of the statutory liens the Texas Legislature has created specifically for large animals--in order to prevent animals from becoming trapped in limbo and to allow animal owners to seek other medical treatment for their animals during fee disputes between owners and veterinarians. The focus on the health and welfare of the animal patient over the economic interest of the veterinarian parallels the policy reasoning behind other Board rules such as §573.53, which holds that veterinarians cannot withhold patient records even when the client has refused to pay the veterinarian amounts owed.

Proposed new §573.21, regarding direct responsibility to client, is proposed to apply to all licensees of the Board, veterinarian and equine dental provider alike.

Proposed new §573.22, regarding professional standard of care, is proposed to apply to all licensees of the Board, in keeping with Texas Occupations Code §801.263, which states that an equine dental provider shall be held to the same standard of care as a veterinarian providing equine dental services. The title of the proposed rule is changed to "standard of care" from "standard of humane treatment" to reflect what the standard is commonly called.

Proposed new §573.23, regarding board certified specialists, has been proposed to address only the higher standard of care for specialists and how that higher standard of care impacts the Board's investigation process, while 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 proposed new §573.24. The term "specialist" is now defined under new §573.80 to increase uniformity and clarity in the Board's rules, and employed in this new rule.

Proposed new §573.24, regarding the responsibility of a veterinarian to refer a case, is split out from the previous version of §573.23 in the interests of clarity and ease of reference, and covers the duty of a veterinarian to refer a case to a more qualified veterinarian if the care and treatment of the animal is beyond his or her capabilities. The term "specialist" is now defined under new §573.80 to increase uniformity and clarity in the Board's rules, and employed in this new rule.

Proposed new §573.25, regarding issuance of official health documents through direct knowledge only, is proposed to clarify that it applies only to veterinarians because the recent licensure of equine dental provider has changed the meaning of "licensee" in Board rules and equine dental providers are not authorized by law to issue official health documents. Proposed §573.25 employs the term "official health documents," which is now defined under §573.80 to increase uniformity and clarity in the Board's rules. The proposed rule has been renumbered from §573.24.

Proposed new §573.26, regarding avoidance of guaranteeing cures, is proposed to apply to all licensees of the Board, veterinarian and equine dental provider alike. It has also been renumbered from §573.25.

Proposed new §573.27, regarding honesty, integrity and fair dealing, is proposed to apply to all licensees of the Board, veterinarian and equine dental provider alike. It has been renumbered from §573.26. Additionally, the rule has been proposed to explicitly require that veterinarians obtain informed consent from clients prior to beginning treatment on a patient. There is no requirement in the new rule that the veterinarian obtain the consent in writing. The Board has long interpreted the honesty, integrity and fair dealing rule as requiring that a licensee obtain informed consent, and the proposal is in keeping with that long-standing interpretation.

Proposed new §573.28, regarding the observance of confidentiality, is proposed to allow veterinarians to waive confidentiality as necessary to collect on a debt owed by a client for veterinary services, in keeping with the Texas Legislature's amendment of the Veterinary Licensing Act, codified in Texas Occupations Code §801.353(d-1). The rule is also proposed to replace "rabies" with "communicable disease" to ensure that veterinarians are free to disclose information regarding communicable disease vaccines to governmental entities for purposes of protection of public health and safety. The proposed rule is also renumbered from §573.27.

Proposed new §573.29, regarding complaint information and notice to clients, is proposed to apply to all licensees of the Board, veterinarian and equine dental provider alike.

Proposed new §573.30, regarding advertising, is proposed to apply to all licenses of the Board, veterinarian and equine dental provider alike. The rule is also proposed to include a clarification of the limitation on the language a licensee can use in advertising, to eliminate any advertising that implies the licensee's services or facilities are superior to those of other licensees, and that is not subject to verification by the public. The proposal is intended to clarify the rule in keeping with the Board's long-standing interpretation that an implication is a form of a statement, and is improper unless it has a basis verifiable by the general public.

Proposed new §573.32, regarding specialty listings, is proposed to include the requirement that a veterinarian indicate his or her specialty when the veterinarian indicates that he or she is a specialist. The proposal is intended to prevent any misleading or confusing advertising by specialized veterinarians, and to allow the public to determine more easily which veterinarians are board certified in a particular area of expertise.

Proposed new §573.33, regarding display of degree, certificate or title from approved institutions, is proposed to apply to all licenses of the Board, veterinarian and equine dental provider alike.