The Texas Board of Veterinary Medical Examiners (Board) adopts 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, without changes to the proposed text as published in the January 27, 2012, issue of the Texas Register (37 TexReg 256) and will not be republished. The Board also adopts new Subchapter A, General Professional Ethics, §§573.2 - 573.9; Subchapter B, Supervision of Personnel, §§573.11 - 573.18; Subchapter C, Responsibilities to Clients, §§573.21 - 573.26 and 573.29; Subchapter D, Advertising, Endorsements and Certificates, §§573.32 - 573.37; Subchapter E, Prescribing and/or Dispensing Medication, §§573.41 - 573.43; Subchapter F, Records Keeping, §§573.51 - 573.55; and Subchapter G, Other Provisions, §§573.60, 573.61, and 573.63 - 573.79, without changes to the proposed text as published in the January 27, 2012, issue of the Texas Register (37 TexReg 256) and will not be republished. The Board also adopts new Subchapter B, Supervision of Personnel, §573.10; Subchapter C, Responsibilities to Clients, §§573.20, 573.27, and 573.28; Subchapter D, Advertising, Endorsements and Certificates, §573.30; Subchapter E, Prescribing and/or Dispensing Medication, §573.44 and §573.45; and Subchapter G, Other Provisions, §573.80 with non-substantive changes to the proposed text as published in the January 27, 2012, issue of the Texas Register (37 TexReg 256). The text of the rules will be republished.

The adoption of the repeal and replacement results from the Board's rule review of Chapter 573, conducted in accordance with Texas Government Code §2001.039. The proposed rule review was published in the January 27, 2012, issue of the Texas Register (37 TexReg 363). Elsewhere in this issue of the Texas Register, the Board adopts the review of Chapter 573.

The Board adopts the following changes to 22 TAC Chapter 573, to clarify 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.

The Board adopts new §573.2, regarding Avoidance of Encroachment on Another's Practice, which prohibits licensees from attempting to influence the sound professional judgment of any other licensee, particularly when a licensee has made a complaint to the Board regarding another licensee or when a licensee is providing a professional opinion for the Board as part of the Board's investigation of another licensee. New §573.2 will apply to all licensees, both veterinarians and equine dental providers alike, because the Board believes that regardless of profession, all licensees should have the right to form, present and defend their professional opinions without fear of retaliation by other licensees, which is a problem that the Board has seen with increasing frequency in recent years.

The new adopted §573.2 differs from the repealed version of §573.2 in that the Board has replaces the term "unfaithful" with "substandard" to clarify that licensees have the right to complain about another licensee's work that does not meet the standards for practice set by the Board's rules, including but not limited to the standard of care. The adopted new rule also differs from the repealed version of §573.2 in that it contains new language emphasizing that licensees have the right to file complaints with the Board or act as witnesses for the Board without 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.

The adopted new rule does not include a clause that had appeared in repealed §573.2, suggesting but not requiring that a licensee speak with the licensee accused of performing substandard work before making a complaint, 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 Board received four comments from the public, including one from the Texas Veterinary Medical Association (TVMA), objecting to the removal of this clause from new §573.2. The commenters stated that the eliminated clause had served to encourage collegiality among veterinarians, and therefore should not be removed from §573.2.

In response to these comments, the Board first notes that the deleted clause was merely advisory language, suggesting but not requiring that one veterinarian consult with another before complaining to the Board--it did not contain any requirements for licensees that the Board could enforce. The Board believes that the minimal benefit derived from this unenforceable advisory language was vastly outweighed by the confusion this language has created among licensees, and the chilling effect it has had on the willingness of licensees to complain to the Board or work with the Board on investigations of other licensees. Over the past few years, the Board has encountered several instances of licensees misinterpreting the deleted clause to mean that a licensee, who wanted to complain to the Board or serve as an expert for the Board in a disciplinary case, was required by rule to talk with the licensee under investigation first. These licensees have expressed concern that if they talked to the other licensee before complaining to or working with the Board, the other licensee would become upset and badmouth or black-ball them in the veterinary community. This concern was sufficient to deter these licensees from complaining to or working with the Board. The Board therefore respectfully disagrees with the commenters, and made no change to the adopted language of §573.2 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 §573.3, regarding Exposure of Corrupt or Dishonest Conduct, which requires that licensees expose corrupt or dishonest conduct by other licensees to the Board or other proper tribunal. The adopted new rule applies to all licensees, both veterinarians and equine dental providers alike, because all licensees, regardless of profession, have the duty to root out corrupt or dishonest conduct by other licensees, to ensure that there is no tolerance among licensees for abuse of public trust. 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 §573.4, regarding Adherence to the Law, which prohibits licensees from violating state or federal law in connection with the licensee's professional practice. The adopted new rule applies to all licensees, both veterinarians and equine dental providers alike, because all licensees, regardless of profession, should face Board discipline if they violate laws related to their professional practice, or violate other state and federal laws while in their practice or under the guise of their practice. The adopted rule includes language referencing the list of crimes that the Board considers to be related to the practices of veterinary medicine and 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 adopted language reflects the Board's long-standing interpretation of this rule. The Board did not receive any comments regarding new §573.4. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.5, regarding Avoidance of Corruption of Others, which prohibits licensees from trying to corrupt or deceive others, and from betraying the public's trust. The adopted rule applies to all licensees, both veterinarians and equine dental providers alike, because all licensees should be subject to discipline if they even attempt corruption, deception or betrayal of the public. The Board did not receive any comments regarding this provision. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.6, regarding Restriction of Partnerships to Members of Veterinary Profession, which states that veterinarians may only partner with other veterinarians to practice veterinary medicine. The adopted rule applies 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. The Board did not receive any comments regarding this provision. The text of the adopted rule has not changed from the published proposed text, and therefore will not be republished.

The Board adopts new §573.7, regarding No Abuse of Position or Trust, which states that a licensee may not use his or her position for personal advantage, to coerce, or to deceive the public, and may not influence, or attempt to influence, the statement of any individual to the Board if the individual is making the statement in response to a Board request. The adopted rule applies to all licensees, both veterinarians and equine dental providers alike, because no licensee should use their status as either a veterinarian or equine dental provider to coerce or mislead anyone for personal advantage, or deceive the public, or seek to influence another licensee or a member of the public when the licensee is under investigation by the Board. The adopted rule also includes new language 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--this is an issue that the Board has confronted several times in recent investigations and contested case proceedings.

The Board received five public comments regarding new §573.7, one in favor, and four expressing concerns about the proposed changes, including a comment from TVMA. Three of the commenters, including TVMA, expressed concern that the rule would infringe on the right of a veterinarian to defend him or herself from a Board investigation by keeping the veterinarian under investigation from cross-examining witnesses brought against him or her by the Board. The Board respectfully disagrees with this comment. First, the prohibition on influence is limited to statements that the Board has requested, and the Board will not have requested any statement made by someone under cross examination by opposing counsel. Moreover, a cross examination is not an attempt to intimidate or influence a witness--such behavior is forbidden as witness badgering and harassment by the Texas Rules of Civil Procedure. Instead, cross-examination is an effort to get the witness to complete his or her story, and to point out discrepancies in that story; it is not an effort to persuade the witness to change the story or to refuse to testify. The Board therefore has not made any change in response to this comment.

The other public commenter was concerned that the new language would keep a veterinarian who receives a complaint and a request for a response from the Board from consulting with other veterinarians while formulating his or her response to the Board. The Board respectfully disagrees with this comment as well. Any veterinarian who is under investigation by the Board or party to an adversarial proceeding brought by the Board is welcome to consult with other veterinarians to serve as experts for his case without violating new §573.7, because those experts would be making independent statements that the Board has not requested and therefore are exempt from new §573.7. But when the Board requests that veterinarian explain what happened in response to a complaint the Board has received, the veterinarian should not change his story to the Board, even if he or she consults with other licensees and determines that he or she has violated the Board's rules. Moreover, when the Board has requested that a veterinarian give an expert opinion in a case, no other veterinarian should try to influence or change that veterinarian's independent opinion. The Board did not make any change 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 §573.8, regarding Loss of Accreditation, which makes a licensee subject to Board discipline if their license or accreditation is revoked or suspended by a governmental authority, and requires that licensees report any such revocation or suspension to the Board within 30 business days. The adopted rule applies to all licensees, both veterinarians and equine dental providers alike, to ensure that all licensees are required to self-report any revocation or suspension of accreditation, including equine dental providers licensed or certified by other states, veterinarians licensed in other states or countries, and veterinarians with Drug Enforcement Administration (DEA) and Texas Department of Public Safety (DPS) certifications and USDA accreditation. This provision will allow the Board to receive this information as efficiently as possible, both with regard to time and to agency resources, to allow the Board to determine whether the facts that caused the revocation or suspension of a license or accreditation in another arena should impact a licensee's ability to practice veterinary medicine or equine dentistry in Texas.

The Board received one comment on §573.8 from TVMA, which expressed concern that the new requirement that licensees report any accreditation revocation or suspension to the Board within 30 days will infringe on licensees' Fifth Amendment rights against self-incrimination through document production. The Board respectfully disagrees. First, the Fifth Amendment right regarding document production that the Supreme Court has recognized is extremely limited: it applies only where possession of the documents in question is itself a crime, such as in cases involving child pornography, so that the very act of producing the documents proves that a crime has occurred. There is no crime in possessing documents that show an individual has had their license or accreditation revoked or suspended, so the Board believes that §573.8 does not infringe on a licensee's Fifth Amendment rights. Moreover, the self-reporting requirement of §573.8 parallels the requirement in adopted §573.70 that licensees report when they are indicted or convicted of a crime, a requirement that none of these commenters challenged. TVMA suggested in its comment to §573.8 that the Board should get information about licensees' accreditation and licensure suspension and revocation from the American Association of State Veterinary Boards (AAVSB) rather than requesting that licensees report it to the Board themselves. The Board respectfully disagrees that AAVSB is an adequate source of information because several states are not members of AAVSB, and equine dental providers are not included in AAVSB. The Board's resources are not sufficient to allow board staff to check regularly with each state and federal accreditation agency for both veterinarians and equine dental providers. Without the individual reporting requirement in §573.8, it is possible that some individual licensees, particularly equine dental providers not covered by AAVSB, can lose licensure or accreditation, and the Board would never discover that information and would not have the opportunity to determine whether the issues that caused the loss of licensure or accreditation in another jurisdiction could impact the licensee's ability to practice competently in Texas. The Board therefore believes that the self-reporting requirement is essential to keeping the citizens and animals of Texas as safe as possible. The Board did not make any changes 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 §573.9, regarding Non-Resident Consultants, which states that a veterinarian licensed in another state may enter Texas for purposes of consultation in person, by mail, or by electronic means, but may not establish a routine visit schedule of consultations in Texas without obtaining a Texas license. The Board intends this change to modernize the rule so 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 adopted new §573.80 with other definitions that apply throughout Chapter 573 for clarity and ease of reference. 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 §573.10, regarding Supervision of Non-Licensed Persons, which sets out the limitations on non-veterinarians practicing veterinary medicine or equine dentistry under a veterinarian's supervision. The adopted 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.

Adopted §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 adopted 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.