BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:May 14, 2012 |Bill No:SB | | |1162 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: SB 1162Author:Runner As Amended:May 1, 2012 Fiscal: No SUBJECT: Animal control: tranquilizers. SUMMARY: Provides that an animal control officer, when necessary to protect the health and safety of a wild, stray, or abandoned animal or the health and safety of others, may administer a tranquilizer that contains a controlled substance without contemporaneously consulting or receiving direction from a veterinarian as long as the officer has received training in the administration of tranquilizers from a licensed veterinarian and is otherwise authorized by his or her authorizing agency to administer the tranquilizer. Existing law, the Penal Code (PC): 1) Authorizes any peace officer, humane society officer, or animal control officer (officer) to take possession of a stray or abandoned animal and to provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner and also authorizes the officer to immediately seize the animal, as specified, if the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of the animal or the health or safety of others. (PC § 597.1 (a)) 2) Authorizes an officer to take charge of any animal, including a dog or cat, that by reason of lameness, sickness, feebleness, or neglect, is unfit for the labor it is performing, or that in any manner is being cruelly treated, and provide care and treatment for the animal until it is deemed to be in a suitable condition to be returned to the owner. (PC § 597.1 (b)) SB 1162 Page 2 3) Provides that every sick, disabled, infirm, or crippled animal, except a dog or cat, that is abandoned in any city, county, city and county, or judicial district may be killed by the officer if, after a reasonable search, no owner of the animal can be found. However, it shall be the duty of all officers to cause the animal to be killed or rehabilitated and placed in a suitable home on information that the animal is a stray or abandoned. (PC § 597.1 (b)) 4) Provides that any officer shall convey all injured cats and dogs found without their owners in a public place directly to a veterinarian for a determination of whether the animal shall be immediately and humanely destroyed or shall be hospitalized under proper care and given emergency treatment. (PC § 597.1 (c) (1)) 5) Provides that any peace officer, humane society officer, or any animal control officer may, with the approval of his or her immediate superior, humanely destroy any stray or abandoned animal in the field in any case where the animal is too severely injured to move or where a veterinarian is not available and it would be more humane to dispose of the animal. (PC § 597.1 (e)) 6) Provides that animal control officers are not peace officers but may exercise the powers of arrest, serve warrants, or carry and use firearms if they receive the appropriate training as specified. "Firearms" includes capture guns, blowguns, carbon dioxide operated rifles and pistols, air guns, handguns, rifles and shotguns. (PC § 830.9) Existing law, the Health and Safety Code (HSC): 1)Establishes the California Uniform Controlled Substances Act which regulates controlled substances which are classified according to the degrees of medical usefulness and are subject to restrictions on their use and administration. (HSC §§ 11000-11651) 2)Provides that except in the regular practice of his or her profession Ưas a practitioner], no person shall knowingly prescribe, administer, dispense, or furnish a controlled substance to or for any person or animal which is not under his or her treatment for a pathology or condition other than addiction to a controlled substance, except as otherwise provided, and that no person shall knowingly solicit, direct, induce, aid, or encourage a practitioner authorized to write a prescription to unlawfully prescribe, administer, dispense, or furnish a controlled substance. (HSC § SB 1162 Page 3 11154) 3)Defines a "practitioner" as: (HSC § 11026) a) A physician, dentist, veterinarian , podiatrist, pharmacist, a registered or advanced registered nurse, physician assistant, or optometrist acting within their scope of practice as provided under the Business and Professions Code. b) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer, a controlled substance in the course of professional practice or research in this state. c) A scientific investigator, or other person licensed, registered, or otherwise permitted , to distribute, dispense, conduct research with respect to, or administer, a controlled substance in the course of professional practice or research in this state. 4)Specifies that only a practitioner including a naturopathic doctor may write or issue a prescription as permitted under the Business and Professions Code. (HSC § 11150) 5)Provides that a prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner. (HSC § 11153) 6)Makes possession of a controlled substance a felony unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state. (HSC § 11350) Existing law, the Business and Professions Code: 1)Establishes the Veterinary Medicine Practice Act which provides for the licensing and regulation of approximately 9,800 veterinarians and 4,300 registered veterinary technicians (RVT) by the Veterinary Medical Board within the Department of Consumer Affairs. SB 1162 Page 4 2)Provides that a person practices veterinary medicine, surgery, and dentistry, and the various branches thereof, when he or she does any of the following: (BPC § 4826) a) Represents himself or herself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry in any of its branches. b) Diagnoses or prescribes a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure or relief of a wound, fracture, bodily injury, or disease of animals. c) Administers a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals, except where the medicine, appliance, application, or treatment is administered by a registered veterinary technician or an unregistered assistant at the direction of and under the direct supervision of a licensed veterinarian, as specified. d) Performs a surgical or dental operation upon an animal. e) Uses any words, letters or titles in such connection or under such circumstances as to induce the belief that the person using them is engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry. This use shall be prima facie evidence of the intention to represent himself or herself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry. 3)Allows a RVT or an unregistered assistant to administer a drug under the direct or indirect supervision of a licensed veterinarian when done pursuant to the order, control, and full professional responsibility of a licensed veterinarian. (BPC § 4836.1 (a)) 4)Defines "drug" as specified under the Health and Safety Code (which includes controlled substances), and defines " indirect supervision " as: (Title 16, California Code of Regulations § 2034) 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 instructions ("direct orders") for treatment of the animal patient. SB 1162 Page 5 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. This bill: Provides that notwithstanding any other law, if an animal control officer, when necessary to protect the health and safety of a wild, stray, or abandoned animal or the health and safety of others, seeks to administer a tranquilizer that contains a controlled substance, as defined, to gain control of the animal, he or she may administer that tranquilizer without contemporaneous consultation with a veterinarian, provided that the officer has received training in the administration of tranquilizers from a licensed veterinarian and is otherwise authorized by his or her authorizing agency to administer the tranquilizer. FISCAL EFFECT: None. This bill has been keyed "nonfiscal" by Legislative Counsel. COMMENTS: 1.Purpose. The Author is the Sponsor of this measure. According to the Author, when necessary to protect an animal or the safety of the public, animal control officers are required to take possession of any stray or abandoned animal and provide care and treatment for the animal. Local animal control officers must sometimes use a controlled substance to tranquilize and gain control of an animal. California law requires that such drugs be stored in a central location and officers obtain contemporaneous authorization from a licensed veterinarian prior to administering any drugs. In practice, however, a licensed veterinarian is not always available and the necessity of having a veterinarian supervise when administering the drugs could jeopardize public safety. The Author points out that a recent Attorney General's decision indicates that prior consultation with a licensed veterinarian is insufficient (Opinion 08-505, 12/23/11). Moreover, the Attorney General's opinion finds that "the duties of local animal control officers, which consist of protecting animals and the public through the enforcement of local animal control laws," does not fit within the context of current law. The Author states that animal control officers must act quickly when there is an emergency situation in the field in order to capture SB 1162 Page 6 injured animals or to protect the public from dangerous animals. It is not always possible to immediately determine whether an animal is a stray, abandoned or wild. While animal control officers have general authority to kill an injured animal or one posing an immediate threat to public safety, this is a remedy of last resort. In the case of protected species, like a mountain lion, a depredation permit may be required before killing the animal, which causes further concerns. The Author believes that limited authorization for animal control officers to use tranquilizers under these exigent circumstances would be more humane and would better protect public safety. 2.Background. a) Attorney General's Opinion (AG). According to the AG, California law requires that an animal control officer must take possession of an animal that he or she reasonably believes is a stray or has been abandoned by its owner, and must provide care and treatment for the animal until it is in a fit condition to be returned to its owner or place for adoption. An animal control officer may also seize an animal when reasonably necessary to protect the safety of the animal or the public, and that he or she may destroy an animal when circumstances require, for example when an animal is too severely injured to move and it would be more humane to destroy it. Although they are not peace officers, animal control officers may, under specified circumstances, exercise powers of arrest, carry and use firearms, and serve warrants. The AG further points out, that animal control officers must often react swiftly to emergency situations in the field, in order to capture injured animals or to protect the public from rabid or otherwise dangerous domesticated or wild animals such as dogs, foxes, and coyotes, as well as from inherently dangerous wild animals such as mountain lions and bears. In many cases, it is necessary to use controlled substances (which are stored securely in a city's or county's animal control shelter) to subdue an animal. However, prior to any use of drugs, animal control officers must obtain authorization from a designated licensed veterinarian. The AG indicates that they have been told that in practice a licensed veterinarian is not always available for consultation when an animal-control emergency arises. Moreover, the necessity of retrieving controlled substances from a central location, and SB 1162 Page 7 of waiting for them to be brought into the field, can create delays that may be detrimental to the public's health and safety. The AG was asked to determine whether an animal control officer may ever lawfully administer a controlled substance on his or her own authority to subdue wild or dangerous animals without the contemporaneous consultation of a licensed veterinarian. The AG concluded that the applicable statutory scheme does not give animal control officers independent authority to administer controlled substances. The AG opined that the California Uniform Controlled Substances Act prohibits the possession of a controlled substance, unless upon the written prescription of a licensed practitioner, as defined, or the administering of this type of drug in the field by an animal control officer without first contemporaneously consulting, and receiving direction from, a licensed veterinarian. However, the AG did indicate (as a footnote) that they understand the practice and need for animal control officers in some local jurisdictions to administer controlled substances in the field without contemporaneous consultation with licensed veterinarians and that the reasons why this is done stem directly from the difficulties encountered in trying to manage extreme and dangerous emergencies where time is of the essence and the only other alternative may be to destroy the animal in question. The AG states, "This opinion concludes that this practice does not comport with current law. In view of the asserted need for more humane alternatives. The Legislature may wish to consider examining the circumstances confronting local jurisdictions to determine whether adjustments in the law are in order to ensure that the option of tranquilization will be available as an alternative to destroying the animals. Development of such a policy is, however, beyond the scope of this opinion. b) DEA Enforcement of Controlled Substances Act. The Drug Enforcement Administration (DEA) is the primary federal agency responsible to enforce the controlled substances laws and regulations of the U.S. Recently, the DEA has become concerned about controlled substances which are provided to licensed (practitioner) registrants being stored outside the registered place of business of the registrant. According to the California Veterinary Medical Association, in recent weeks, the Sacramento District Office of the DEA has been actively addressing this issue by notifying veterinary professionals of the current law that these drugs must reside with the registrant. It is unclear SB 1162 Page 8 at this time what problems this may cause, if any, by maintaining the tranquilizer drug (controlled substance) at a location other than that of the veterinarians registered place of business. c) Direct and Indirect Supervision by Veterinarians. The term used by the AG, "contemporaneous consulting" is not normally used within the context of the appropriate level of oversight or direction to be given by a health care practitioner. The degree of oversight, or what is commonly referred to as "supervision" of one practitioner by another, or of someone who is not a licensed practitioner, is usually referred to as either direct or indirect supervision. If direct supervision is required, then it may require the actual presence and consultation with the practitioner, or if indirect supervision is required it may require that special procedures, protocols or written or oral orders be followed with possible consultation either pre- or post-treatment or when the administration of drugs (controlled substances) is provided. The degree or level of supervision is usually determined by the supervising practitioner and with those being supervised and with facilities where treatment or the administration of drugs is to be provided. For example, licensed veterinarians may allow a registered veterinary technician, or an unregistered (un-licensed) assistant to administer a drug, including a controlled substance, under either direct or indirect supervision when done pursuant to the order, control, and full professional responsibility of a veterinarian. Regulations of the Veterinary Medical Board define both direct and indirect supervision and it basically says that the veterinarian does not have to be present at the time and that providing the controlled substance can be done pursuant to either written or oral instructions prior to its administration. 3.Related Legislation. AB 1839 (Ma, 2012) would authorize veterinary assistants to administer a controlled substance if specified requirements are satisfied, including completion of a fingerprinting background check and authorizes the Veterinary Medical Board to limit access to specified dangerous drugs, as defined. This measure passed out of the Assembly and is awaiting a hearing in this Committee. SB 969 (Aanestad, Chapter 83, Statutes of 2007) provided that registered veterinary technicians (RVTs) and unregistered assistants (UAs) can administer drugs, including controlled substances, under the "indirect" supervision of a licensed veterinarian. SB 1162 Page 9 SB 943 (Business, Professions and Economic Development Committee, Chapter 350, Statutes of 2011) extended the sunset date authorizing RVTs and UAs to administer drugs under the indirect supervision of a licensed veterinarian to January 1, 2013. 4.Arguments in Support. The City of Hesperia (Hesperia) is in support of this measure. According to Hesperia, tranquilizer guns have been used for decades without question by both local and state animal control agencies (including State Department of Fish and Game). Over the years, Hesperia has regularly consulted with and received guidance on the use of tranquilizers which have been prescribed by and acquired through their contracted veterinarian. Hesperia believed that as long as their animal control officers used the tranquilizer in accordance with the prior instructions of the veterinarian, they were in compliance with the law. Hesperia indicates that City leaders were recently alerted to the AG's opinion and are now concerned that if a veterinarian must supervise the actual administration of the tranquilizer it would delay action that could jeopardize public safety since a veterinarian is not always available. Hesperia argues that use of tranquilizers is not practice in a vacuum or taken lightly and that officers authorized to use tranquilizer guns have received proper training in the use of controlled substances as well as tranquilizer guns, including proper dosage, tranquilizer dart trajectory and velocity. Moreover, before the use of tranquilizer weapons is authorized, the City animal control officers often coordinate with local law enforcement and, when possible, a licensed veterinarian. Hesperia believes that if this bill is not enacted, the only alternative left for agencies in certain animal control emergencies will be the use of deadly force. "SB 1162 will allow all animal control agencies to safely contain and preserve the lives of domestic and wild animals without destruction of innocent creatures." The Town of Apple Valley (Apple Valley) and the City Adelanto (Adelanto) are also in support of this measure. Apple Valley indicates that when animals are an immediate threat to the health and safety of the animal control officer and/or the public, the officer must have the ability to utilize tranquilizers in order to incapacitate the animal and diffuse a potentially dangerous situation. Apple Valley gives an example recently of a dog which has attacked two people and they are unable to capture because it runs when approached. Because of the recent AG's opinion they have not been able to use a tranquilizer gun due to the immediacy of the problem. Adelanto argues that having to consult and obtain direction from a licensed veterinarian for each and every incident SB 1162 Page 10 where tranquilizers are needed to subdue or seize an animal, as indicated by the AG, will create delays in reaching a veterinarian and waiting for the tranquilizer to be brought out to the location. Cities need an effective way to react in a timely and appropriate manner to dangerous animal encounters. 5.Arguments in Opposition. The California Veterinary Medical Association (CVMA) is opposed and indicates its concerns include the lack of veterinary supervision as required by the California Veterinary Medicine Practice Act, the significant liability for veterinarians who allow their DEA license to be utilized by a contracting animal control agency and that the proposed language is in direct violation of federal law. CVMA indicates that they are aware of the AG's opinion and have been involved in discussions with the State Humane Association of California and the California Animal Control Directors Association and with other stakeholders at both the federal and state level to reach a collaborative resolution to this complicated issue. CVMA believes that compounding the AG's recent opinion is the fact that the current federal law limits the use of controlled substances to licensed registrants with few exceptions and that this bill would violate federal DEA regulations prohibiting the possession of controlled substance outside of the registered place of business. "In fact, in recent weeks, the Sacramento District Office of the DEA has been actively addressing this issue by notifying veterinary professionals of the current law." The CVMA is concerned about the lack of training that animal control officers have when using tranquilizers that contain controlled substances. CVMA points out that this is a potent combination of drugs that could actually anesthetize the animal or render it unconscious with the potential for serious harm if used improperly. "Wild, stray and abandoned animals are unpredictable and improper dosing of these drugs could have a negative impact. Use of such medications is determined by the weight of the animal, the disposition of the animal, and any medical issues that the animal may be experiencing at the time of the drug administration. This evaluation takes extensive training and should only be performed by a licensed veterinarian or under the direct or indirect supervision of a licensed veterinarian." CVMA further argues that due to the medical complexities of each case, that any administration of a controlled substance by an animal control officer should only be conducted after proper consultation and instruction by a California licensed veterinarian. SB 1162 Page 11 CVMA is also concerned that the veterinarian, as the holder of the DEA license - not the animal control officer - is ultimately liable should these drugs be improperly utilized or stored or if an animal is inadvertently injured or killed. CVMA argues that there is no requirement under this bill that the veterinarian who is providing the controlled drug be consulted, at any time, with regard to the use of controlled substances in the public domain. CVMA states, "For obvious reasons, this would subject California veterinarians to significant liability." CVMA understands that there are circumstances in which the public health is at risk from wild, stray or abandoned animals, but that it is important to consider the risks associated with allowing animal control officers the liberal use of controlled substances without adequate oversight. 6.Suggested Author's Amendment. As pointed out by CVMA, by stating that an animal control officer may use a tranquilizer that contains a controlled substance "without contemporaneous consultation with a veterinarian" it could possibly curtail any supervision, consultation or instruction on the part of the veterinarian, except for possibly providing some training to the animal control officer in the administration of the tranquilizer. It should be made clear that at least some level of supervision, consultation or instruction should be allowed. As indicated, the term used by the AG, "contemporaneous consulting" is also not normally used within the context of the appropriate level of oversight or direction to be given by a veterinarian. Either direct or indirect supervision may be required, and in this instance, where animal control officers have exigent circumstances under which a tranquilizer drug may need to be used, and a veterinarian may be unavailable, the ability to allow "indirect" supervision on the part of the veterinarian may be appropriate. Providing for "indirect" supervision of animal control officers by a veterinarian may provide the flexibility which animal control officers need when dealing with what may be dangerous animal encounters where the protection and safety of the public is paramount. Under "indirect supervision" the veterinarian and the animal control officer, and the city or county, would be able to put in place proper procedures and/or written or oral instructions to be followed when using the tranquilizer (controlled substance) without requiring the officer to consult with and obtain direction from a licensed veterinarian each time the tranquilizer is needed for emergency situations. Committee staff suggests that on Page 3, lines 15 and 16, strike, "without contemporaneous consultation with a veterinarian" and SB 1162 Page 12 insert the following: " with indirect supervision as determined by a licensed veterinarian ." NOTE : Double-Referral to Public Safety Committee, second. SUPPORT AND OPPOSITION: Support: City of Adelanto City of Hesperia Town of Apple Valley Opposition: California Veterinary Medical Association Consultant:Bill Gage