Calls to broaden veterinary telemedicine conflict with laws – Information

Nevada Sen. Dina Neal

Screenshot of Nevada Senate Commerce and Labor Committee

Nevada lawmakers grilled telemedicine newcomer Dutch Pet, whose attorney lobbied Wednesday to amend a bill that mandates an in-person examination prior to remote care. “Why do you care if you have no clients here?” asked Sen. Dina Neal, vice chair of the state Senate Commerce and Labor Committee. Dutch attorney Virginia Mimmack said the company wants to do business in Nevada.

In an explosion of recent developments, courts, lawmakers and companies in the emerging online animal health care market are poised to influence how veterinary telemedicine is regulated, and their activities are testing the resolve of organized veterinary medicine.

The topic in recent weeks has been the focus of active, sometimes frenzied, legislative efforts to loosen restrictions in Florida and tighten restrictions in Nevada. A lawsuit filed this week in California asserts that the state’s veterinary telemedicine rules violate the U.S. Constitution. And a mysterious new company is vying to control the telemedicine narrative.

A catalyst to all the activity is the pandemic, which has prompted the emergency suspension of state restrictions governing telemedicine across much of the U.S. to help stop the spread of coronavirus. As COVID-19 made remote care necessary, a question that preceded the pandemic has become more urgent and contentious: Is allowing a veterinarian to treat an animal without having ever touched it potentially harmful or beneficial to patient care in the long term?

The crux of the issue is how to establish a veterinary-client-patient-relationship, or VCPR, which is the foundation for all veterinary care. Historically, in the vast majority of states, a VCPR is considered established only after an in-person exam. In states that have codified the requirement, it is illegal for veterinarians to treat, diagnose and prescribe medications for patients online if they haven’t had a face-to-face visit.

That stance is backed by the American Veterinary Medical Association, which asserts that because animals can’t talk, a hands-on exam is indispensable. But some key players in the veterinary community advocate loosening the restrictions. Since 2018, the American Association of Veterinary State Boards, a national organization for state regulators, has promoted the online establishment of VCPRs, consistent with regulations in 48 states that permit physicians to establish relationships with human patients remotely, no face-to-face visit required.

The landscape is rapidly changing, and not in a consistent direction. Michigan, for example, recently repealed the need for an in-person exam, effective April 15. Days later, lawmakers in Indiana did the opposite, affirming that a VCPR can be established only if the veterinarian first conducts a hands-on exam or, in the case of herd management, is “personally acquainted” with the keeping of the animals and husbandry practices. Alaska and North Carolina are mulling similar restrictions. 

Narrow miss in the Sunshine State

Rep. René Plasencia had a ringside seat to the controversy in Florida, where a bill promoted by Dutch Pet, a newly formed company at the forefront of deregulation efforts, put the Florida Veterinary Medical Association on the defensive. Incorporated in February in Delaware, Dutch Pet is led by California entrepreneur Joe Spector, co-founder of Hims & Hers Health Inc., a direct-to-consumer business that provides a telemedicine platform for human patients seeking Viagra and related medications.

Pushed by the company’s lobbyists and with backing from the American Society for the Prevention of Cruety to Animals, the Florida House passed the measure on April 23, despite opposition from veterinarians; Plasencia was one of nine representatives who voted no. The bill, which would have relaxed the requirements to practice veterinary telemedicine, didn’t make it to the Senate floor before the legislative session ended April 30.

The experience was a wakeup call for the FVMA, which had been trying to legislatively cement telemedicine parameters in the state for years but did not submit a bill in 2020, after losing its longtime executive director, Phillip Hinkle, who died in August.

Now at the FVMA’s helm is Plasencia, who accepted the job in March and is in his first week in the office. The part-time lawmaker and former teacher who previously directed an education foundation, said his move to the FVMA is serendipitous and had nothing to do with the bill. Seeking a career change, he applied after seeing an advertisement for the job posted on LinkedIn.

He aims for the FVMA to renew its efforts to draft telemedicine legislation and have it ready when legislative committees convene in September, ahead of the session’s start in January. Plasencia said he plans to deploy his political influence on the FVMA’s behalf.

“I will have the ability to work with the relationships I have with my colleagues and make sure that whatever bill that comes out is reflective of the best interest of the patients that veterinarians serve and the families that they serve,” he told the VIN News Service on Wednesday. “We want to get something that goes through smoothly and keep any amendment that we find unfriendly off of the bill.”

Dutch Pet surfaces in Nevada

The Nevada Veterinary Medical Association wants to do something similar with AB 200, a bill aimed at clarifying veterinary telemedicine parameters. The bill: 

  • codifies existing regulations that require a physical examination to establish a VCPR;
  • authorizes licensed veterinarians to practice telemedicine with animals they’ve previously examined in person; and
  • clarifies the Nevada State Board of Veterinary Medical Examiner’s authority over telemedicine practices.

Assemblywoman Shannon Bilbray-Axelrod, the legislation’s sponsor, conveyed in a hearing Wednesday before the Senate Commerce and Labor Committee that an in-person exam is necessary because animals cannot talk to the doctor to describe their clinical signs or express how they feel.

Testifying in support of the bill, several veterinarians recounted times when a pet’s serious medical condition would have been missed but for a physical exam. Dr. John Pinnell, a Las Vegas practitioner and former president of the Nevada State Board of Veterinary Medical Examiners, told of a dog he once boarded who came in, tail wagging, only to hours later need emergency surgery for a surprise stomach tumor.

“For thousands of years, animals have instinctively hidden illness and pain as a means for survival,” he said. “I feel there are just too many things that can be missed by not actually examining and touching a patient.”

Dr. Susie Costa of Spencer Springs Veterinary Hospitals in Las Vegas acknowledged the convenience of virtual visits and the “countless” advertisements for veterinary telemedicine software. “But when not regulated, these have the potential to harm both the consumers and their pets,” she told lawmakers. “In my opinion, nothing can replace a thorough physical exam of our veterinary patients; it’s the foundation of veterinary medicine.”

A Dutch Pet representative pushed back on the bill provision that requires a physical examination before using telemedicine. Asking for an amendment to permit veterinarians to establish a VCPR remotely, attorney Virginia Mimmack said, “As currently written, the only veterinarians that can take advantage of the many benefits of telemedicine are those veterinarians that already have a brick-and-mortar practice in Nevada.”

Committee members responded by needling Dutch Pet on its motives for entering the market. Mimmack replied that the objective is to provide pet owners with greater access to care. Telemedicine, she said, “is having its moment because of COVID.”

Some lawmakers probed further. “How long have you been in business as Dutch Pet?” asked Sen. Dina Neal, committee vice chair. She noted having read recent news articles about the company that prompted her concern. 

Mimmack tried to evade the question after clarifying that Dutch Pet is not currently active in Nevada: “Our testimony today is not related to Dutch Pet … Our testimony is about this prohibiting a VCPR to be established remotely.”

That didn’t satisfy Neal, who responded: “OK, so ignore Dutch Pet and focus on the arguments. OK. Cuz that’s super confusing.”

Mimmack relented: “Dutch Pet is a business that seeks to be able to provide telemedicine to pets for anxiety … but we don’t want to make this about Dutch Pet or any one particular business. We just want to make this about what’s best for all of Nevada’s pets.”

Sen. Roberta Lang echoed Neal’s concern: “… I’m a little confused because we’re talking about Nevada veterinarians, so I’m trying to get the linkage about why you’d to want testify in the Nevada Legislature about Nevada veterinarians, when you don’t have any veterinarians here.”

“That’s a great question,” Mimmack replied. “It’s because Dutch Pet would want to be a new entrant into the market, and believes that the way it would be providing care, it could establish a VCPR remotely.”

Sen. Melanie Scheible pressed further: “I am also, like my colleagues, a little bit confused about Dutch Pet and its role in this conversation. If the amendment is not adopted, Dutch Pets’ business model would not be allowed in Nevada. And that’s the real deal, right?”

Mimmack rambled in her response: “I tend to favor expanding competition and opportunities and access to care … Do you trust the vets in your community to use their discretion to provide the appropriate standard of care? And if you do, then what this allows them to do is use diagnostic images, videos, pictures, things to make a diagnosis other than physical exam. This will hopefully open up more access to people who have a hard time getting to a brick-and-mortar vet.”

Sen. Keith Pickard noted that while he favors expanding competition and access to care, he has reservations. “This is about trusting our local people, but we’re talking about people from outside the state who now would obtain a license here, but they aren’t here, and the concern I have … the vets in the original presentation mentioned that they discovered things only because that animal was in their physical care.

“Unless you have Dr. Dolittle on staff, you’re not going to be able to talk to the patient,” he added. “If we’re talking about the local practices … because they have an ongoing relationship, that mitigates the lack of physical contact because that patient will eventually come back into the office.”

Pennelle, the former regulatory board official, followed Mimmack’s testimony by noting that animal behavior, dermatology and other such conditions are not easily assessed remotely.

“I find it interesting that they want to treat behavior and dermatology,” he said of Dutch Pet. “Dermatology is one of the worst [to treat remotely]. You have to see that animal … do skin scrapes and cultures, otherwise you can misdiagnose it. And anxiety, to see an animal at home, a video, that would be priceless. But what if that anxiety is partially caused by pain or other things?

“We can treat animals by telemedicine, we don’t doubt that at all, but we need an in-person VCPR,” he continued. “Our bill allows everything Dutch Pet wants to do, after an in-person examination.”

Pursuing the fight in court

In California, the San Francisco Society for the Prevention of Cruelty to Animals announced Monday that it is taking the state Veterinary Medical Board to court over the issue.

Lawyers for the SF SPCA filed the case in the U.S. District Court for the Eastern District of California, Sacramento Division. The lawsuit challenges the state regulation that forbids veterinarians from speaking to owners about an animal’s health virtually without first having met in person. The suit contends that the restriction violates veterinarians’ and owners’ First Amendment rights to free speech, and asks that veterinarians be allowed to engage in telemedicine based on their judgment and training.

“With a growing pet population, it is the San Francisco SPCA’s top priority to ensure access to veterinary care for all animals in California,” said Brandy Kuentzel, general counsel at the SF SPCA, in a statement. “By limiting telemedicine, this law is restricting equitable access to animal care among California’s diverse people and geographic regions.” 

By phone, she said the SF SPCA, which operates two full-service veterinary hospitals and a host of clinics, would like to offer telemedicine services, but that’s not why the organization is suing. “We didn’t bring this suit because we have some business play at hand,” she said. 

Rather, the SF SPCA has made widening access to veterinary care part of its strategic plan, believing that telemedicine is one way to expand access to pet owners who have limited mobility or live in areas where there aren’t a lot of veterinary practices. “If anything, it’s really intimidating for a nonprofit to lead the way on something new and cutting-edge, but also exciting because we have to do what’s right for pets,” Kuentzel said. “We firmly believe that the restrictions on telemedicine harm animals and people.”

The case builds on the ongoing decade-long legal saga of Dr. Ronald Hines and the Texas Board of Veterinary Medical Examiners. Hines has sued the board, alleging that regulators infringed upon his First Amendment rights by ordering him to stop giving medical advice online and suspending his license. He is represented by the Institute for Justice, a libertarian public interest law firm based in Arlington, Virginia.

Hines’ current case against Texas regulators is the veterinarian’s second First Amendment challenge involving the board. His first, filed in 2013, was rejected by the U.S. Court of Appeals for the Fifth Circuit, which ruled that Hines’ professional veterinary advice was not a form of protected speech but instead akin to occupational conduct, much like surgery. The U.S. Supreme Court declined to hear an appeal in 2015. 

Hines refiled his lawsuit in 2018, when the U.S. Supreme Court ruled in another case that First Amendment protections do apply to professional speech. National Institute of Family & Life Advocates v. Becerra challenged California law forcing pro-life centers to inform women about abortion services. In its 5-4 majority opinion, the high court said the First Amendment protects the speech of professionals, including those who obtain a license to practice.

In light of the new legal precedent, the Fifth Circuit in December reconsidered Hines’ case, reversing its earlier decision and sending it back to the federal trial court in Brownsville, Texas, where it originated. U.S. District Judge Hilda G. Tagle, who heard Hines’ case in 2013, is expected to rule on the matter sometime this summer, after considering briefs from both sides. 

“With the Court of Appeals having concluded that there is no exception to the First Amendment for ‘occupational speech,’ meaning speech subject to occupational-licensing laws, we’re now explaining to the trial court that Dr. Hines really just wants to speak, and he doesn’t want to engage in any conduct,” said Jeff Rowes, Hines’ attorney.

In other words, “Dr. Hines just wants to email and talk to people over the internet and phone from the comfort of his home,” Rowes said. “He doesn’t want to engage in any physical aspects of vet practice such as spaying/neutering, surgery, vaccinations, etc., without first examining the animal. … This should mean that the First Amendment fully applies to this case.”

The SF SPCA suit, Rowes said, is modeled after the Hines’ case. It argues that veterinarians should be allowed to engage in telemedicine based on their judgment and training, no in-person VCPR required. “People can use telemedicine for themselves and their children, so why not for their pets?” asked Kuentzel, the SF SPCA lawyer

Officials with CVMB could not be reached regarding the lawsuit. Asked to comment on the constitutional challenge, the California Veterinary Medical Association declined because the case is in early stages. “Yes, this is quite a development,” acknowledged Dr. Grant Miller, CVMA’s director of regulatory affairs. He noted that a subcommittee of the CVMB recently proposed that regulators permanently adopt a pandemic-related waiver permitting veterinarians to establish VCPRs remotely; the waiver expired on April 30.

The CVMA has objected to talk of a permanent extension. In a letter to the board, CVMA President Dr. Dirk Yelenick wrote: “Telemedicine only allows the veterinarian to make an educated guess based on limited information … Thus, those who utilize telemedicine receive a lower quality of care than those who present their animal in person to a veterinarian.”

VIN News Service commentaries are opinion pieces presenting insights, personal experiences and/or perspectives on topical issues by members of the veterinary community. To submit a commentary for consideration, email news@vin.com.