Examining the Veterinary Client-Patient Relationship in the United States: Why the Abolition of the In-Person Examination Requirement Is Warranted.

• Author: Feldmann, Jeffrey P.

"If a pediatrician can use telemedicine to treat a three-month old infant--based upon medical records, the parent's description of external symptoms and a visual examination of the child--the Court cannot adduce why a 'veterinarian cannot do the same for a dog, cat, or hamster." (1)

1. Introduction

   According to the American Veterinary Medical Association (AVMA), there were at least 144 million companion animals in the United States as of 2018. (2) In the same year, the United States Department of Agriculture (USDA) estimated there were nearly ninety-four million beef and dairy cattle across the [micro] The AVMA estimates there are 121,461 licensed veterinarians qualified to attend to those animals. (4) Given the disparity between the total number of animals requiring care and the relatively small number of veterinarians who can provide that care, some commentators speculate--now in part due to COVID-19--that there is a veterinarian shortage in the United States. (5) The veterinary industry continually grapples with how to maintain quality care for animals--both production and companion--while also providing improved access to care for animals and their owners. (6)

   Before a veterinarian can provide care for an animal, irrespective of the animal's classification, the veterinarian must establish a veterinary client-pet relationship (VCPR). (7) Generally, a VCPR can only be established through an in-person, physical examination. (8) The Code of Federal Regulations codified what constitutes a valid VCPR; though, states are free to adopt--or not to adopt--that language in their respective veterinary practice acts. (9) Many states have elected to adopt the model language and adapt their statutes according to their jurisdictional needs, while other states have simply adopted the AVMA and federal government language in its entirety. (10) Some states appear to have no statute at all. (11) Further, because VCPR language also governs veterinarians' ability to prescribe medication for their clients, any change to a state's VCPR definition implicates prescribing habits and access to pharmaceutical treatments. (12)

   Ronald Hines, a retired veterinarian from Texas, has been at the forefront of questioning the constitutional validity of VCPR law since 2014. (13) Hines mounted multiple constitutional challenges to VCPR limitations in Texas, including that: Electronically delivered veterinary advice is protected free speech under the First Amendment; the requirement to examine an animal in person to establish a VCPR violates the Equal Protection Clause of the Fourteenth Amendment because it treats veterinarians who practice telemedicine differently than veterinarians who do not; and the requirement to examine an animal in person to establish a VCPR violates equal protection under the Fourteenth Amendment because it treats veterinarians differently from medical doctors. (14) Courts rejected these claims, reasoning that the burdens on professional speech arising under VCPR laws are incidental and do not violate the First Amendment, and that subjecting veterinarians to different telehealth laws than human doctors does not violate Equal Protection. (15) Though not yet proliferate, there is pending litigation in California on First Amendment and equal protection grounds akin to Ronald Hines's constitutional challenges, thus indicating VCPR issues are poised to gain further traction as veterinary boards, veterinarians, and legislators weigh how to balance VCPR and telehealth moving forward. (16) Future litigation could continue to target VCPR law--partly motivated by COVID-19 and the advent of telemedicine--as veterinarians, animal owners, legislators, and regulators attempt to find the balance between efficient access to care and the provision of quality patient care. (17)

   This Note examines the development of VCPR law, the incorporation--or lack thereof--of telehealth into VCPR law across the United States, and considers VCPR's effect on access to care. (18) After discussing the state of the veterinary industry and the regulatory scheme of veterinary medicine, Part II assesses VCPR laws across the United States, establishing that there is general uniformity from state to state. (19) In Part II, this Note juxtaposes human medicine's widespread acceptance of telehealth to establish valid doctor-patient relationships with the relative absence of such acceptance of telehealth in veterinary medicine to establish valid VCPRs. (20) Part III then discusses and analyzes existing litigation concerning VCPR law and telehealth measures in the Fifth Circuit and in California. (21) This Note concludes by proposing more widespread adoption of telemedicine as a means to establish a VCPR in order to improve access to quality care for veterinarians, clients, and patients more closely aligned with human medicine. (22)

2. HISTORY AND BACKGROUND

   1. Industry Background

      Between 1994 and 2020, the veterinary industry in the United States experienced considerable growth as evidenced by industry expenditures rising from approximately $17 billion to over $123 billion. (23) The spending increase is attributable to a corresponding growth in pet ownership, which has grown from 56% of U.S. households owning a pet in 1988 to 70% of households owning a pet in 2020. (24) Beyond the increase in pet ownership creating demand for services, other factors contributing to the overall expansion of the veterinary industry include technological advancements, minimal regulation as compared to human medicine, and the parallel growth of pet insurance to match pet ownership. (25) As the veterinary marketplace expands, so expands the number of investors entering the market, which in turn increases competition affecting prices, notably creating industry consolidation. (26) Such sustained growth creating market consolidation is illustrated by the acquisition of VCA, Inc. (VCA) by Mars, Inc. (Mars). (27) The natural consequence of market consolidation is a rise in prices for care primarily provided by corporate players, which inevitably results in local, rural, and family-owned veterinary clinics being frozen out of the market. (28)

      Beyond market consolidation, the veterinary industry appears to be plagued by a general shortage in veterinarians themselves. (29) Industry actors posit various theories as to the underlying cause of the purported shortage, but the reality seems to be a combination of several factors, including: enrollment availability in veterinary schools; the coupling of low pay with inadequate career prospects; the rise in demand for services as a result of increased pet ownership creating lack of productivity; and the exacerbation of all such factors by COVID-19. (30)

      The veterinary industry reckoned with the labor shortage long before COVID-19, particularly in rural areas, but the pandemic's impact has prompted renewed interest in providing better access to health care for animals and their owners. (31) One oft-proposed solution in the endeavor to improve access to care both during the pandemic and beyond: telemedicine. (32)

   2. Regulatory Background

      1. Defining VCPR

         The three federal components veterinarians must meet to establish a valid VCPR are: (1) to engage with the client to assume responsibility for making clinical judgments about patient health with the owner's agreement; (2) to have sufficient knowledge of the patient by virtue of patient examination to establish a preliminary diagnosis; and (3) to provide for any necessary follow-up evaluation or care. (33) A veterinarian must initially meet such requirements through an in-person examination. (34) In order for a veterinarian to render any treatment, the veterinarian must obtain informed consent from the animal's owner. (35) State statutory language is generally adopted from AVMA principles, though states may adopt the federal language or modify it to better suit local conditions. (36)

      2. Basic Origins of the VCPR

         The Judicial Council of the AVMA, in conjunction with the University of Iowa College of Medicine, developed the first Model Veterinary Practice Act (MVPA) in the 1960s. (37) The AVMA revised the MVPA in 2003 by adding language to emphasize that veterinarians must practice medicine in accordance with a valid VCPR, including the in-person examination requirement. (38) State legislatures, with insight from veterinary licensing boards, may codify AVMA principles into their state statutes to ensure the law provides practicing veterinarians with adequate oversight and protection. (39) The AVMA's general influence demonstrates that state regulation of the veterinary industry was more a result of organization within the profession itself, rather than organic legislative or regulatory agency action. (40) The FDA then adopted the AVMA's recommended VCPR language as a requirement to establish a veterinary feed directive (VFD), to permit the extralabel use of prescription drugs, and to operate as a simple baseline method for assessing veterinarian misconduct. (41)

      3. VFD Regulation

         A VFD is the manner through which a veterinarian is able to prescribe and distribute drugs to animals via their feed and drinking water. (42) Once a valid VCPR is established and the VFD drug prescribed in accordance with FDA conditions, owners or caretakers are authorized to administer the prescribed drug through the animals' dietary intake. (43) Prior to the enactment of the VCPR, farmers could treat their animals on their own, without having to establish a VCPR. (44) Scholars have considered altering the VCPR on the federal level with respect to VFDs because it creates burdensome challenges on the veterinarians who provide the care, including exposure to liability. (45) The FDA has even proposed eliminating the VCPR framework as the screening means for VFDs, though no such change to the framework has materialized. (46) In considering such changes, the FDA cited regional and geographical variation as one of the...