BILL ANALYSIS �
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|Hearing Date:May 14, 2012 |Bill No:SB |
| |1162 |
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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))
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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 �as 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 �
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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