BILL ANALYSIS
----------------------------------------------------------
|Hearing Date:April 23, 2007 |Bill No:SB |
| |969 |
----------------------------------------------------------
SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC
DEVELOPMENT
Senator Mark Ridley-Thomas, Chair
Bill No: SB 969Author:Aanestad
As Introduced: February 23, 2007 Fiscal: Yes
SUBJECT: Veterinary medicine.
SUMMARY: Changes the clinical requirements for an
out-of-state veterinarian who seeks a temporary license to
practice in California and allows the Board to issue a
license to a veterinarian who has been in practice in
another state and who has been certified by a specified
organization or association in a particular specialty.
Also allows a registered veterinarian technician or an
unregistered assistant to administer a drug (including
controlled substances) under the indirect supervision , as
defined, of a licensed veterinarian.
Existing law:
1)Provides for the licensing and regulation of
approximately 11,600 veterinarians and 3,700 registered
veterinary technicians (RVTs) by the Veterinary Medical
Board (Board) in the Department of Consumer Affairs.
2)Prohibits any person not licensed by the Board from
practicing veterinary medicine, and provides that an
applicant for a license to practice veterinary medicine
shall have graduated from a veterinary college, passed a
national-administered licensing examination, a state
board examination, and an examination on the statutes and
regulations of the Veterinary Medical Practice Act.
3)Provides that the Board may waive the licensing
examination requirement for an applicant if the applicant
has passed a substantially equivalent licensing exam
SB 969
Page 2
given in another state with a score that is equivalent to
the passing score required on the California licensing
exam.
4)Provides that the Board shall waive the examination
requirements and issue a one-year temporary license to an
applicant to practice under the supervision of another
licensed California veterinarian if the following
specified conditions are met. The applicant must:
a) Hold a current valid license in "good standing," as
defined, in another state, Canadian province, or U.S.
territory and have practiced clinical veterinary
medicine for a minimum of four years full time within
the last five years.
b) Passed a substantially equivalent national
licensing exam, at the time of original licensure,
with a score that is equivalent to the passing score
required in California.
c) Meet specified educational requirements.
d) Agree to complete an educational curriculum on
regionally specific and important diseases.
5)Requires the Board to adopt regulations establishing
animal health care tasks and an appropriate degree of
supervision required for those tasks that may be
performed only by a RVT, or a licensed veterinarian, and
allows the Board to adopt regulations for animal health
care tasks to be performed by unregistered assistants
(UAs) and the degree to which UAs would be supervised by
a RVT or a licensed veterinarian.
6)Provides that a person practices veterinary medicine when
he or she, among other things, administers a drug for the
prevention, cure, or relief of a wound, fracture, bodily
injury, or disease of animals, except where the drug is
administered by a registered veterinary technician or an
unregistered assistant at the direction of and under the
direct supervision of a licensed veterinarian. Does not
allow any person other than a licensed veterinarian to
induce anesthesia unless authorized by regulation of the
Board.
SB 969
Page 3
This bill:
1)Requires the Board to waive the examination requirements
and issue a temporary license to an applicant who, among
other requirements, within the 3 years immediately
preceding filing an application, has practiced clinical
veterinary medicine for a minimum of 2 years and
completed a minimum of
3,000 hours of clinical practice. (This changes the
current requirement that the out-of state veterinarians
have practiced clinical veterinary medicine for a minimum
of four years full time within the last five years.)
2)Requires the Board to waive the examination requirements
and issue a license to an applicant, if the applicant:
a) holds a valid license in good standing from another
state, Canadian province, or U.S. territory;
b) is certified by an organization or association that
is recognized by the American Veterinary Medical
Association and that meets the requirements of the
American Board of Veterinary Specialties; and,
c) passes an examination concerning the statutes and
regulations of the Veterinary Medicine Practice Act.
3)Provides that an applicant who does not meet the
requirements for a temporary license shall take a
California state board examination as specified, and that
an applicant who does not meet the requirements of
item # 2) above shall either take a California state board
examination or apply for temporary license as specified.
4)Allows a RVT or an UA to administer a drug under the
indirect supervision of a licensed veterinarian when done
pursuant to the order, control, and full professional
responsibility of a licensed veterinarian.
5)Defines "drug" as specified under the Health and Safety
Code (which includes controlled substances), and defines
" indirect supervision " as:
a) the supervisor is not physically present at the
location where animal health care job tasks are to be
performed, but has given either written or oral
SB 969
Page 4
instructions ("direct orders") for treatment of the
animal patient; and,
b) the animal has been examined by a veterinarian at
such time as good veterinary practice requires,
consistent with the particular delegated animal health
care task and the animal is not anesthetized as
defined in current regulations of the Board.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal"
by Legislative Counsel.
COMMENTS:
1.Purpose. The sponsor of this bill is the California
Veterinary Medical Association . According to the
sponsor, California is facing a shortage of veterinarians
and the current time period in the law, the requirement
that an out-of state veterinarian have had four years of
full time clinical practice within the past five years,
is a barrier for veterinarians who have practiced
part-time and then desire to move to California. An
example given by the sponsor is of an applicant who
practiced veterinary medicine in another state for four
years and then took a leave of absence to have a child.
Upon returning to work, she reduced her hours to 24 per
week. Upon applying to become a veterinarian in
California, she discovered that she is unable to practice
because she had not practiced full time for four of the
last five years.
The second change in the law requested by the sponsor
allows for issuance of a license for veterinarians who
have been in practice in another state and who have been
certified by a specified organization or association in a
particular specialty. As indicated by the sponsor,
California is also facing a shortage of board certified
veterinarians practicing in the areas of small and large
animal, public health and unique specialty practice
veterinary medicine. These individuals are nationally
certified in their specialty and have already achieved a
higher standard than others in the profession. As
explained by the sponsor, current law is a barrier for
out-of-state veterinarians who are specialists in areas
of veterinarian medicine since it only allows them to
obtain a temporary license while they await a permanent
SB 969
Page 5
license, or take the state board exam.
The final change requested by the sponsor, is to allow both
registered veterinary technicians and unregistered
assistants to administer a drug under the "indirect
supervision" of a licensed veterinarian, as defined, when
done pursuant to the order, control and full professional
responsibility of a licensed veterinarian. According to
the sponsor, there are conflicting legal opinions
regarding the laws on this issue. For years, RVTs and
UAs working in veterinary practices in California and
other states have been allowed to administer drugs under
the indirect supervision of a veterinarian. A new
interpretation of the law by the Board's legal counsel
has opined that this practice is not authorized.
2.Background.
a) Recent Board Regulations Attempt to Address
Supervision of RVTs and UAs in the Administration of
Controlled Substances. Traditionally, the Board has
believed that the authority for the administration of
any drug was governed by existing regulations allowing
California licensed veterinarians to delegate the
administration of controlled substances to RVTs or UAs
either under direct or indirect supervision . The
Board, however, on October 18, 2006, promulgated new
regulations to deal with this issue based on new
information in a legal opinion prepared by the Board's
legal counsel, dated April 19, 2006, and a subsequent
legal memo to the Board, dated June 29, 2006,
outlining the restrictive parameters of the Federal
Controlled Substances Act and the Uniform Controlled
Substances Act to the delegation of administration of
controlled substances. (The regulations were
submitted to the Department of Consumer Affairs for
consideration and if approved, will then be submitted
to the Office of Administrative Law to be reviewed and
approved.)
According to the legal opinion, the Federal Controlled
Substances Act (FCSA) restricts the administration of
controlled substance to licensed veterinarians and
limits delegation to support staff to only immediate
supervision (in the physical presence of the
veterinarian); unless or until such time that the
SB 969
Page 6
Board implements regulations to permit otherwise.
However, these regulations are further constrained by
the FCSA in that unknown persons (lay staff such as
UAs) cannot be authorized to administer controlled
substances under indirect supervision unless
legislation is pursued to allow otherwise.
The Board indicated in its rationale for the
regulations, that it supports the restriction of the
administration of controlled substances due to the
high potential for harm with and/or diversion of
controlled substance drugs and believes that it is
essential to restrict their use and define the
specific levels of supervision for times when the
supervising veterinarian is not present. However, the
Board also believed that the Federal standard of
immediate supervision is too restrictive and that
indirect supervision for RVTs and direct supervision
for UAs is a sufficient safeguard for administration
of controlled substances, since the ultimate
responsibility for the drugs falls upon the
supervisor, a California licensed veterinarian. The
Board was concerned that conforming to a strict
interpretation of the laws in the FCSA for "immediate
supervision" only would create an emergency staff
shortage situation in California leading to a severe
lack of available staff to administer controlled
substances that would cause increased pain and
endanger the majority of animals currently under care
leading, in many cases, to possible death.
The Board explained that indirect supervision means that
the veterinarian supervisor is not physically present
at the location where the drugs are being administered
but the veterinarian has previously examined the
animal and has given either written or oral
instructions (direct orders) for treatment of the
animal patient. Indirect supervision is sufficient
for RVTs because they are educated and tested by the
State in the calculation of drug dosages,
pharmacology, controlled drug handling and
regulations. They also undergo State and Federal
background checks before being registered in
California.
The Board further explained that direct supervision
SB 969
Page 7
means that the animal has been examined previously by
the veterinarian and that the veterinarian or RVT is
physically present and easily available at the
location where the drugs are administered. Direct
supervision is required for unregistered assistants
because they are not tested (known) by the State;
therefore, the State cannot assure the public that
they have the skills necessary to perform the
administration of controlled substances without direct
supervision.
As argued by the Board, with the increased awareness of
the need for pain control and pain medication in
veterinary medicine over the past 25 years, there is a
greatly increased and growing use of controlled drugs
in veterinary medicine. Allowing RVTs under indirect
supervision and lay personnel under direct supervision
to administer controlled drugs provide the animal
patient with the needed pain control while protecting
both patient and public safety.
b) Prior Legislation Dealing with Temporary Licensure
for Out-of-State Veterinarians. AB 2760 (Torrico,
2006) provided that the Board could waive the
examination and issue a temporary license for one year
to an applicant who holds a valid license from another
state, Canadian province, or U.S territory, if they
had practiced clinical veterinary medicine for a
minimum of and unspecified number of years within the
past five years. This bill was referred to the
Assembly Business and Professions Committee but was
not heard.
SB 2003 (Knight, Chapter 1070, Statutes of 1998)
required until July 1, 2002, the Board to waive the
examination requirements and to issue a temporary
license to an applicant to practice veterinary
medicine under the supervision of a licensed
California veterinarian, subject to the applicant
meeting certain specified requirements.
AB 1583 (Negrete McLeod, Chapter 167, Statutes of 2001)
removed the sunset date for the waiver of the
examination requirements and issuance of the temporary
licenses for out-of-state veterinary applicants.
SB 969
Page 8
3.Arguments in Opposition. The California Registered
Veterinary Technicians Association (CaRVTA) is opposed to
this measure and argues that this bill is both deceptive
and ill-advised. It is deceptive because the language of
the bill makes no reference to controlled drugs. It thus
deprives members of the Committee of the vital facts they
need to make a responsible, informed decision. It is
ill-advised because the net effect of this legislation
would be to allow unlicensed employees access to
controlled drugs with no on-site supervision. According
to CaRVTA, one of the primary purposes of the Federal and
State Uniform Controlled Drug Act is to restrict access
to controlled drugs to licensed individuals - persons
"known by the state." Veterinarians and RVTs have been
educated and tested in pharmacology and the handling and
administration of controlled drugs. They are
fingerprinted and background checked prior to being
certified by the state. Unregistered assistants could be
anyone, as argued by the CaRVTA. They receive no
particular training or testing. They are not licensed or
certified by the state. They are not "known by the
state."
CaRVTA further argues that the California Veterinary
Medical Association, the sponsor of this legislation, is
attempting to override recent changes to the regulations
made by the Board through the public process which brings
the Veterinary Practice Act into clear compliance with
the Federal and State Uniform Controlled Substances Acts
(FSUCS Acts). These changes remove any ambiguity about
the supervision required for unlicensed persons handling
controlled substances. CaRVTA strongly agrees with the
Board and its regulations which should be consistent with
FSUCS Acts - restricting access to controlled drugs to
persons known by the state through license or
certificate. Removing the provision from the bill that
allows UAs to administer controlled drugs under indirect
supervision will have no impact on the administration of
other drugs by UAs.
4.The Veterinary Medical Board (Board) has a "Support if
Amended" Position on this Measure. The Board has taken a
"support if amended" position on this bill and has
identified the following concerns: (These concerns were
received by the Committee on April 16, 2007):
SB 969
Page 9
a) The current language in the bill regarding the
ability of a RVT or an UA to administer a drug under
indirect supervision of a licensed veterinarian
appears to be misplaced in the Business and
Professions Code and the Board suggests that the
language be placed under Article 2.5 which deals with
the degree of supervision for the "animal health care
tasks" to be performed by a RVT or an UA.
b) The apparent intent of the proposed language is to
grant authority to laypersons (UAs) to administer
controlled substances under indirect supervision.
However, the way it is written, the language does not
identify controlled substances and authority in the
proposed legislation is not exclusive to "controlled
substances." Rather, the bill would apply to all
classes and categories of drugs, excluding
anesthetics. The Board recommends that the entire
section be redrafted towards only permitting the
administration of controlled substances by laypersons
and that the citation of Health and Safety Code,
Section 11014 be deleted. The Board indicates that it
is currently concerned with the administration of
chemotherapy drugs and possibly limiting them to
administration by licensed veterinarians and RVTs
only. The Board is concerned that this legislation
would allow delegation of administration of all drugs
to any layperson under indirect supervision and would
circumvent the Board's authority to determine
appropriate delegation and degree of supervision for
dangerous drugs.
The Board is also concerned that current regulations
limit the location of tasks performed by laypersons to
"an animal hospital setting." This legislation does
not contain any such limitation and would allow the
administration of drugs anywhere, e.g., in a client's
home, a kennel or any other location. This is a
significant expansion of the scope of practice
authority for laypersons working in veterinary
hospitals.
c) The Board's regulations currently deal with
definitions of "direct supervision" and "indirect
supervision" and suggests that both definitions should
be placed into statute or should remain as regulations
SB 969
Page 10
of the Board.
d) It is not clear to the Board why the full time
clinical practice is being lowered from four years to
two years for out-of-state veterinarians. The Board
has not been provided any evidence of shortages
throughout the state for veterinarians. The Board is
also concerned that the short time period of two years
for practice outside the state may cause problems for
the Board in receiving information about enforcement
actions against the out-of-state veterinarian, since
they receive these reports one or two years after
licensure of the veterinarian in another state. Also
the Board is not sure what the 3,000 practice hour
requirement is based on and recommends that the
current regulation defining "full time" practice be
used as a baseline.
e) As to the listed education equivalency assessment
programs, the Board suggests additionally including
the Program for Assessment of Education Equivalence
(PAVE). PAVE is currently approved in California and
25 other states and there are many in California and
other states who have become licensed based on PAVE
certification.
f) The Board believes that the arbitrary standards of
"board certification" determined by the national
professional association eliminates all practice and
licensing requirements and sets up a quasi requirement
to membership in the national association via the
requirement for membership to become "board certified"
and may create an "impermissible delegation of
legislative authority." The current bill allows for
licensure without requiring any clinical practice
experience and eliminates the requirement that the
candidate complete the California curriculum
requirement that all other reciprocity candidates must
meet and strongly recommends amending the language in
the bill to require completion of the California
curriculum.
5.Recent Legislative Counsel Opinion on the Degree of
Supervision for RVTs and UAs. A recent Legislative
Counsel Opinion was issued to Assemblymember Aghazarian
on April 12, 2007. (The Committee received this Opinion
SB 969
Page 11
on April 16th.) The first question asked was whether the
term "drug" as used in the Veterinary Medicine Practice
Act includes drugs that are controlled substances, as
defined in the California Controlled Substances Act
(CCSA). Counsel opined that the term "drug" is broad
enough to include a drug that is a "controlled
substance," as that term is defined in the CCSA. The
next question was whether RVTs and UAs could administer
controlled substances for the prevention, cure, or relief
of a wound, fracture, bodily injury, or disease of
animals. Counsel opined that a RVT and UA could
administer controlled substances but only at the
direction of and under the direct supervision of a
licensed veterinarian. The next question was whether the
Federal Controlled Substances Act (FCSA) prohibits a RVT
or an UA from administering drugs that are controlled
substances under the direct supervision of a licensed
veterinarian. Counsel opined that under the Code of
Federal Regulations, RVTs and UAs may administer drugs
that are controlled substances to the extent permitted by
California law and under the direct supervision of the
licensed veterinarian. Finally, Counsel was asked
whether an amendment to the Veterinary Medicine Practice
Act authorizing a RVT or an UA to administer drugs,
including, but not limited to, controlled substances,
under indirect supervision would violate the FCSA.
Counsel opined that both RVTs and UAs are considered as
"practitioners" under the Code of Federal Regulations and
therefore as practitioners could be authorized under
California law to administer controlled substances under
the indirect supervision of a licensed veterinarian and
would not violate the FCSA.
6.Recommendation of Committee Staff. Because of the recent
concerns expressed by the Veterinary Medical Board and
also recent receipt of the Legislative Counsel's Opinion,
would suggest that the Committee direct staff to work
with both the Author, the sponsor, the Board and other
interested parties to work on the language in this bill,
if it passed out of this Committee, so that it adequately
reflects concerns raised by the Board and others, and
that the Author commit to having the bill referred back
to this Committee if there is still controversy regarding
the bill's language.
SB 969
Page 12
SUPPORT AND OPPOSITION:
Support:
California Veterinary Medical Association (Sponsor)
Support if Amended:
Veterinary Medical Board
Opposition:
Bay Area Veterinary Technicians Association
California Registered Veterinary Technicians Association
Consultant:Bill Gage