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