BILL ANALYSIS
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|Hearing Date:April 14, 2008 |Bill No:SB |
| |1205 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC
DEVELOPMENT
Senator Mark Ridley-Thomas, Chair
Bill No: SB 1205Author:Aanestad
As Amended:April 9, 2008 Fiscal: Yes
SUBJECT: Veterinary medicine.
SUMMARY: Establishes an advisory committee to the
Veterinary Medical Board (VMB) to make recommendations to
the VMB regarding the implementation of rules and
regulations by the VMB; makes changes to the registered
veterinary technicians committee; clarifies that the
equivalent of education considered by the VMB must be
educational or a combination of education and clinical
experience; prioritizes cases handled by the VMB for
purposes of investigation and prosecution; provides
reasonable opportunity for a veterinarian to comply with
any deficiencies found during the VMB's inspection of their
premises; and, for the VMB to cite for minor infractions,
rather than for negligence when a minor violation occurs.
Existing law:
1)Provides for the licensing and regulation of
approximately 11,600 veterinarians and 3,700 registered
veterinary technicians (RVTs) by the VMB in the
Department of Consumer Affairs; the VMB consists of
seven members, three of whom are public members, and that
members of the VMB shall hold office for a term of four
years.
2)Provides that the VMB shall become inoperative on July 1,
2011, and as of January 1, 2012, is repealed.
3)Provides that the VMB has authority to adopt, amend or
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repeal such rules and regulations as are reasonably
necessary to carry into effect the provisions of the
Veterinary Medicine Practice Act (Act).
4)Provides that the VMB may at any time inspect the
premises in which veterinary medicine, veterinary
dentistry, or veterinary surgery is being practiced and
that the VMB shall establish a regular inspection program
which shall provide for random, unannounced inspections.
5)Requires the VMB to establish an advisory committee on
issues pertaining to the practice of registered
veterinary technicians (RVTs) and vests the RVT Committee
with various powers and duties and requires the VMB to
give specified consideration to the recommendations of
the RVT Committee.
6)Requires that an applicant for registration as an RVT
furnish satisfactory evidence of graduation from a 2-year
curriculum in veterinary technology in a college or
postsecondary institution approved by the VMB, or the
equivalent thereof as determined by the VMB.
7)Authorizes the Executive Officer of the VMB, upon
completion of an investigation, to issue a citation to a
veterinarian or unlicensed person for violations of the
Act, as specified, and provides that each citation may
contain an order of abatement of the violation and may
contain an assessment of a civil penalty, but that before
any citation may be issued, the Executive Officer shall
submit the alleged violation for review and investigation
to at least one designee of the VMB who is a veterinarian
licensed in or employed by the state.
8)Requires the VMB to adopt regulations covering the
assessment of civil penalties which give due
consideration to the appropriateness of the penalty with
respect to specified factors which include the gravity of
the violation, the good faith of the person charged and
the history of previous violations.
9)Authorizes the VMB to deny, revoke, or suspend a license
for various acts, including, but not limited to
unprofessional conduct, as specified.
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This bill:
1)Requires the VMB to appoint a voluntary, advisory
multidisciplinary committee to assist, advice, and make
recommendations for the implementation of rules and
regulations of the VMB, and provides that appointments
shall be made from a list of nominees solicited by the
VMB.
2)Provides that the multidisciplinary committee shall
become inoperative on July 1, 2011, and as of January 1,
2012, is repealed.
3)Requires that the RVT Committee consist of five RVTs and
that appointment be for a term of three years and
staggered accordingly, that the RVT Committee meet no
more than three times annually except as authorized by
the VMB, and that the scope of the RVT Committee shall
not exceed the authority as provided in the current Act.
4)Specifies that the equivalent of graduation from a 2-year
curriculum in veterinary technology from a school
approved by the VMB, be the educational equivalent or a
combination of education and clinical practice experience
as determined by the VMB.
5)Requires the VMB to prioritize its investigative and
prosecutorial resources to ensure that veterinarians and
RVTs representing the greatest threat of harm are
identified and disciplined expeditiously, and specifies
priority cases including the highest priority cases
identified as those involving negligence and
incompetence, that involve death or serious bodily injury
to an animal patient, animal cruelty, unlicensed
activity, drug or alcohol abuse and injury to animal
patient results, repeated acts of excessive prescribing
or furnishing or controlled substances, and practicing
veterinary medicine while under the influence of drugs or
alcohol.
6)Provides that the veterinarian who reviews a
complaint/citation before issuance of the citation by the
VMB be either a full-time or part-time veterinarian who
has not been out of practice for more than two years.
7)Provides that if during an inspection by the VMB of a
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veterinarian's premises, as defined, that it is not in
compliance with the standards established by the VMB,
then the VMB shall provide a notice of any deficiencies
and provide a reasonable time for compliance with those
standards prior to commencing any further action against
the veterinarian such as a citation and fine.
8)Allows the VMB to cite for minor infractions, rather than
for negligence every time a minor violation occurs.
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 (CVMA). According to the
Sponsor, the purpose of this measure is to provide much
needed reforms to the VMB. Specifically, the legislation
proposes to 1) establish priorities for enforcement
cases, 2) establish a more open and productive system of
reviewing and refining enforcement standards, thus
allowing the VMB to adequately train inspectors and
consultants,
4) create terms, limited appointments and structure for the
RVT Committee, and 5) allow flexibility in educational
standards for RVTs.
CVMA argues that there have been problems with the VMB
using its inspection and enforcement authority and that
it has been haphazard and inconsistent for the last few
years. CVMA indicates that currently the VMB has
contracted with two veterinarian consultants retained to
review cases involving complaints against veterinarians.
The consultants have wide, varying interpretations of the
law and have applied standards differently states CVMA.
In addition, the CVMA indicates that hospital facility
inspections are being conducted by RVTs, not
veterinarians, and these inspections are also wildly
inconsistent relative to their independent
"interpretation" of the law. The perception of the
veterinary community, according to CVMA, is the VMB has
focused its enforcement efforts on small cases where they
can collect countless cite and fine revenues, instead of
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serious cases directly affecting consumer protection or
harm to an animal.
In regards to the RVT Committee, the CVMA argues that there
was a failure to establish the number of appointments and
terms of this advisory committee when it was created ten
years ago and to place other specific statutory
requirements regarding their meetings and scope of the
committee's authority. The CVMA believes that because
this committee lacks some of these parameters it has
deviated significantly from their charge, which has led
to the introduction of wide-sweeping issues that have
taken the VMB off course.
2.Similar Legislation This Session. SB 1584 (Padilla)
would allow an increase in the maximum amounts that the
VMB may set for certain specified fees and would delete
the provision of existing law requiring the VMB to set
and collect a fee for the national licensing examination,
and would require an application fee to be paid by a
school or institution seeking approval of RVT curriculum.
SB 1584 is set to be heard also in this hearing.
3.Arguments in Opposition. The Veterinary Medical Board is
opposed to this measure and argues that although the CVMA
is presenting this bill as a means to strengthen the
enforcement authority of the VMB, in actuality it dilutes
the authority of the VMB to take disciplinary action on
behalf of California consumers and animals for no viable
reason . The VMB indicates that they have worked with the
profession and the CVMA on many practice issues including
a major update of the minimum standards of practice in
2004. They are one of the first licensing board's to
implement a cite and fine program in 1990. The VMB
agrees that a review of the program is appropriate and it
has initiated an audit of its citation and fine program
and added a discussion of the program to its April, 2008
meeting agenda. The VMB indicates they are willing to
work with the profession and to explore alternate
solutions but are requesting a no vote on the bill to
allow time for discussion of other options.
The California Registered Veterinary Technicians
Association (CaRVTA) is also opposed to this measure and
argues that this bill is self-serving and bad for animals
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and for consumers because it will add new restrictions
that make it more difficult for the VMB to impose civil
penalties and fines on negligent and incompetent
practitioners, increase bureaucracy by appointment of a
new multidisciplinary committee to advise the VMB on
regulations, reduce consumer input by eliminating public
members on the RVT Committee, and with the Governor's
appointments required for the RVT Committee, would cause
the work of the committee to be curtailed.
4.Recent Amendments Appear to Address Concerns of the VMB.
The recent amendments to this measure no longer requires
Governor appointments to the RVT Committee, it provides
instead that the VMB will still make appointments,
however it does change the composition of the RVT
Committee from 3 RVTs, 1 veterinarian and 1 public, to 5
RVT members. Also, the requirements for when a civil
penalty or fine may be assessed have been clarified so
that there is an opportunity for a veterinarian to comply
with deficiencies found during an inspection by the VMB
of their premises, as defined, without having a fine
assessed against the practitioner, but that the VMB still
has authority to assess a fine or penalty when necessary.
Amendments also eliminated the terms "gross negligence" and
"repeated negligent acts as it related to actions taken
by the VMB for any unprofessional conduct of the
veterinarian. Although this measure still creates a new
committee for the VMB, the amendments provide that this
committee shall be voluntary and advisory in nature as it
pertains to providing recommendations to the VMB
regarding implementation of its regulations. The VMB has
raised the following concerns prior to additional
amendments made to this measure on April 9, 2008. The
following reflects how the recent amendments have
addressed these concerns:
a) New Multidisciplinary Committee and Subcommittee to
Advise and Recommend on VMB Rules and Regulations.
The VMB argues that the provision for a new
multidisciplinary committee and subcommittee is
arbitrary, vague and unnecessary. The VMB indicates
that it is unclear how the Board would determine what
is "adequate" and "proper" representation of "all"
persons affected by the veterinary law to serve on the
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committee and why a subcommittee would be needed to
deal directly with overseeing regulations of the VMB's
hospital inspection program. They assert that based
on a questionnaire sent to hospitals there has been no
indication of problems with the VMB's inspection
program. Also there would be expenses for the VMB in
serving these committees.
The recent amendments clarified that committee would
only advise on the implementation of rules and
regulations of the VMB, not in the establishment of
rules and regulations and also eliminated the
requirements that the committee be made up of
"adequate and proper representation of all persons
affected by veterinary law." Amendments also
eliminated the need to establish a subcommittee.
b) Changes in the RVT Committee. The VMB argues that
the intent of this proposed change is unclear. The
changes create an artificial limit on the number of
committee meetings by specifying only three, and
curtails the number that serve on this Committee by
eliminating a veterinarian and a public member and
limiting the Committee to only 3 RVTs. It is
important for this Committee to be balanced since it
is a working committee whose members assist in
preparing RVT examinations, participate in school
inspections and assist the VMB in issues related to
the RVT profession.
The VMB recommends either maintaining the existing
composition of this committee or eliminating the
committee entirely and adding two RVTs to the VMB
rather than arbitrarily changing the current
composition. The VMB also indicates that the notice
requirement of two weeks for RVT Committee meetings
would be in conflict with the Bagley Keene Act.
The recent amendments changed the number of members on
the RVT Committee from 3 to 5, but does not require a
public member or veterinarian to be a member of that
Committee. This is consistent with other practitioner
committees of other boards which are made up of
practitioners within the classification only and do
not include public members since they are not
considered as consumer boards but are only advisory
committees to the board.
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c) Prioritization of Investigative and Prosecutorial
Resources. The VMB is not opposed to prioritizing its
disciplinary authority; however, it is unclear why in
its consumer protection role, the VMB would wait for
"repeated acts" of negligence to take action. In
addition, this language does not include the VMB
mandate to protect the public and animals in cases of
animal cruelty, deemed by the VMB in its Disciplinary
Guidelines, to be the most egregious offense that any
veterinarian can commit.
The recent amendments eliminated the "repeated negligent
acts" standard and the prioritization list now
includes animal cruelty.
d) Assessment of Civil Penalty "Upon Failure to Comply
with Citation." The VMB believes that the amendment
which provides for assessment of a civil penalty "upon
failure to comply with the terms of the citation after
the time period allotted for compliance has expired"
is unclear as to whether there can be no order of
abatement and/or fine until after the veterinarian is
provided with the opportunity to first come into
compliance. This would mean a letter of caution and
follow up by enforcement staff to ensure compliance
and could result in a huge fiscal impact for the VMB
and licensees or no remedy for consumers.
The recent amendments clarify that the ability of a
veterinarian to comply with deficiencies found during
an inspection of their premises no longer involves the
VMB's fine authority. The amendments do, however,
provide the veterinarian with a reasonable time to
comply with the deficiencies before the VMB can cite
and fine the licensee.
e) Requirement for Complaint/Citation to be Reviewed
by "Current, Practicing" Veterinarian. The VMB
indicates that it is greatly assisted by licensees who
are retired or working part time who are able to
assist in the initial complaint process. They must
have a current license and be current with continuing
education and therefore authorized to practice at all
times. It is difficult to find veterinarians who are
currently practicing full time. Restricting the VMB's
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authority to choose consultants for complaint review
will have a significant negative impact on the
consumer complaint review process, the length of time
involved in the process and would increase the cost of
the complaint review dramatically.
The recent amendments eliminated the "current,
practicing" requirement and now states that the
veterinarian who reviews complaints/citations be
either full time or part time and not been out of
practice for more than two years.
f) Unprofessional Conduct Includes "Gross Negligence,
Negligence, or Incompetence." The VMB argues that it
is unclear why the CMVA wants to place gross
negligence, negligence or incompetence into the
generic "unprofessional conduct" heading unless it is
an attempt to undermine the VMB's authority to protect
consumers and animals and to soften the affect of
stated violation for purposes of public disclosure.
Negligence and incompetence are serious stand-alone
violations that the VMB currently has the authority to
cite specifically under Section 4883 (i) of the
Business and Professions Code. The VMB recommends
that the standard of "gross negligence" be added to
the current authority under 4883 (i), not under the
generic heading of "unprofessional conduct."
The recent amendments deleted both the "gross
negligence" and "repeated negligent acts" standards
and maintains the negligence standard for pursuing
disciplinary action against a veterinarian.
NOTE: Double-referral to Senate Judiciary Committee
(second). Recent amendments remove the concerns of the
Judiciary Committee regarding the use of the terms "gross
negligence" and "repeated negligent acts" in the context of
unprofessional conduct or in setting priorities for the VMB
in pursuing its enforcement actions. Once the Judiciary
Committee receives this measure it will more than likely be
withdrawn and re-referred to Appropriations Committee.
SUPPORT AND OPPOSITION:
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Support:
California Veterinary Medical Association (Sponsor)
Opposition:
California Registered Veterinary Technicians Association
California Veterinary Medical Board
Consultant: Bill Gage