BILL ANALYSIS                                                                                                                                                                                                    







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          |Hearing Date:April 23, 2007    |Bill No:SB                |
          |                               |969                       |
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               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  





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            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.   






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          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  





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               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  





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            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  





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               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  





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               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.
              





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          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):






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             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  





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               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  





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            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.  







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          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