Conventional Report December 2022

2022-D  ~  Petition for Rule Modification – In accordance with the Administrative Procedure Act, R.S. 49:950 et seq., the Board is amending LAC 46:LXXXV. Chapters 1, regarding the petitions for rulemaking in section 101, providing clearer instructions on submitting petitions for the adoption of new rules or for amendments or repeal of an existing rule. The proposed amendment to section 105 also delivers greater clarity on submitting petitions related to application decisions made by the Board. 

• Board will vote on proposed Notice of Intent with amended language to Rules 101 and 105. [Source: Meeting Agenda – 12-01-22(released one week prior to meeting date)] 
• It will be incorporated into Regulatory Project 2022-03 once/if Notice of Intent has been approved by Board vote. 

2022-02  ~  LAC 46LXXXV.1101-1123.1031.307.700.702.714 – Preceptorship Requirement for DVM Licensure [Source: Regulatory Proposal 2022-C] 

• 08-04-2022     Board voted to discontinue preceptorship program as a requirement for DVM licensure. 
• 11-03-2022     Notice of Intent submitted to Occupational Licensing Review Commission (OLRC). 
• 11-03-2022     OLRC approved continuation of promulgation process. 
• 11-04-2022     Notice of Intent and Fiscal & Economic Impact Statements submitted to Legislative Fiscal Office for review. 
• 12-08-2022     Legislative Fiscal Office approved fiscal and economic impact statement. 
• 12-08-2022     First Report submitted to Senate and House Legislative Oversight Committees on Agriculture, Forestry, Aquaculture, and Rural Development. 
• 12-08-2022     Distributed electronic Notice of Rulemaking Activity. 
• 12-20-2022     Notice of Intent scheduled for publication in 2022 Louisiana Register, Volume 48, December Edition. 
• 01-09-2023     Deadline for submission of written comments to Board.*See instructions for submitting comments in Notice of Intent. Written comments received prior to Dec. 20th and after Jan. 9th will not be accepted. 
• 01-24-2023     Possible Public Hearing scheduled for January 9, 2023 at 1:00pm. *The Public Hearing for oral presentation or argument will be granted if requested within twenty days (by January 9th, 2023) after publication of the rule as provided in this Subsection, by twenty-five persons, by a governmental subdivision or agency, by an association having not less than twenty-five members, or by a committee of either house of the legislature to which the proposed rule change has been referred under the provisions of R.S. 49:968. The Public Hearing will not be held if these conditions are not met. Notification will be made on this page and via email after January 9th if the public hearing is to be held. 

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Informational Practice Queries | Board Meeting 

Emergency Care Obligation(s) & Possible Good Samaritan Laws  
A licensee inquired of the Board concerning the obligations to provide the public with emergency care to a patient in instances where the licensee was fully booked at could not attend to both the animal needing emergency care and the licensee’s patients, at a time when the practice is closed, in instances where a VCPR has been and has not been established prior to the emergency. The licensee also asked of the existence of “good Samaritan laws” related to the practice of veterinary medicine. This informal practice query was placed on the general agenda for opinion ratification as a query previously answered by the Board and/or on which clear regulations exist. The licensee was advised of a prior opinion (1998) of the Board finding a general moral and ethical responsibility to provide emergency care while the facility is open but recognizing that the issue is exquisitely fact sensitive. The consensus of the Board was that if an animal is presented as an emergency case during business hours, the veterinarian should at a minimum provide emergency care sufficient for stabilization and transport to another available facility. The AVMA’s principles were also noted—that when veterinarians cannot be available to provide such services, information should be provided to assist clients in obtaining emergency services consistent with the needs of the locality. Finally, the licensee was advised of the existence of La. R.S. 1731 C, which provides licensed veterinarians who at the scene of an emergency administers in good faith and gratuitously care with civil and criminal immunity for acts and omissions in providing that care, or in failing to arrange for further services.  

Legality of Cutting Un-Scored Pills  
A licensed veterinarian inquired of the Board what “pharmacy laws” exist concerning the cutting of un-scored pills for administration to a patient or the dispensing to a client where administration involves the use of less than a whole pill. This query was placed on the general agenda for adoption or modification of an answered query where a prior Board had weighed in on the issue. The licensee was notified that in this regard the Board is a secondary regulator, requiring that all local, state and federal laws and regulations be followed but without an independent finding by the Board of a violation. Notwithstanding, the licensee was advised that in 2018, the Board found that the “cutting” of prescription pills did not fall neatly into the “adulteration” prohibitions of the FDA, DEA and/or Board of Pharmacy regulations, and noted that cutting is often required to avoid both overdosing and under-dosing, so that whether the veterinarian properly cuts a pill or instructs a client to do so, those acts do not breach the standard of care required by the Board through its Rules.  

Consent Agenda Opinions – Answered 

Modification: Can a DVM Dispense Prescription Dog Food Without VPCR?  
The Board, at its August meeting, ratified an opinion provided by counsel to a licensee asking whether a veterinarian can dispense “prescription food” without a VCPR, but felt that further explanation would be beneficial to the licensee. The licensee was advised that “prescription” food is a trademarked designation for one particular manufacturer. An analysis of the query requires identification of the food as an “ethical product”, a “legend drug” and/or a “controlled substance”. In most instances a “prescription food” is properly identified as an “ethical product”—one in which the sale is governed by the agreement with the manufacturer, who has voluntarily limited the products sale by a licensed veterinarian as a marketing decision. In such instances, the veterinarian is obliged to follow the contractual arrangement, which may be within a sales agreement or product label under ethical considerations not provided for directly by the Board’s Rules. The Board Rules do prohibit the dispensing of a “legend drug” or a “controlled substance” without the establishment of a VCPR. As to the latter two categories, the Board is a secondary regulator. However the licensee was advised that under FDA guidance documents, a food may be considered an animal drug if it is held out by label or other means (e.g. client testimonials) to prevent or cure a disease, although the manufacturer would likely be the subject of improper labeling enforcement by the FDA. The licensee was advised that if in the exercise of sound professional judgment the food product came within the category of an “animal drug”, a VCPR is needed and the scope of the examination consistent with the proposed use of the product required. Further, a licensee cannot act as a pharmacy on behalf of another veterinarian, in instances where a food product may be considered an “animal drug”.  

Modification: Can LA DVM Prescribe Controlled Drug to Former Client Out of State  
The Board was asked whether it was proper under its regulatory authorities for a licensed veterinarian to issue a prescription to a former patient that was now located out of state and in circumstances where there was insufficient time for the client to establish a new VCPR with a local veterinarian. An opinion by counsel was rendered and ratified at the August meeting. However the board felt further information should be given. The licensee was advised that if a VCPR had not been established out of state, the licensee could issue a prescription provided there was sufficient knowledge of the patient’s current condition to maintain the VCPR. Moreover, if a pharmacy located in the new area would not accept a phone order of the medication on behalf of the client, the prescription could be mailed to the client for local filling.  
 

Can a Non-Veterinarian Administer Vaccines (Excluding Rabies)  
A member of the public, a participant/volunteer, asked the Board of the propriety of “free shot clinics” where core vaccinations are given to dogs and cats by lay people not employed by a licensed veterinarian and where there was no licensed veterinarian on premises. The person was advised that the administration of core vaccines constitutes the practice of veterinary medicine and the practice is forbidden by the Practice Act and Board Rules, irrespective of whether a fee is collected for the administration of the vaccines. While lay people are allowed to reciprocally aid neighbors without charge in performing “accepted livestock management practices without compensation”, this does not apply to dogs and cats and is prohibited.  
 

Does Underwater Animal Therapy Require License or Supervision  
A manufacturer/installer of underwater equine and canine treadmill systems for veterinarian and private use asked the Board if Louisiana requires a “certified technician” to be present while an animal is using the unit and, if so, the hours needed for “water certification” and the cost of certification. The Board advised the person making the query of the Rules pertaining to “animal physical therapy” and the requirements of Rule 712—a layperson can on order of a licensed veterinarian with whom a VCPR exists perform Alternative Therapy and Collaborative Treatment only on direct supervision of the treatment where the service provider has obtained a license, certificate or registration issued by a state regulatory authority over the type of service (or training accepted by the Board). Specific consent to the treatment is required of the owner/agent with content as provided for by Rule 701. The supervising veterinarian is then held responsible for the acts and omissions of the service provider, including patient confidentiality requirements.  

Question Regarding Ownership of Medical Records  
The Board was asked whether medical records were the property of the owner of the treated animal or the facility where treatment was given. A second question was posed as to whether an animal hospital can refuse to provide records to another animal hospital and if a refusal is not allowed, the recourse that is provided for that refusal. The Board advised that it does not regulate facilities and that its Rule regarding the ownership of records is in the context of the animal health facility versus the veterinarian departing from the practice. The ownership of the records in the context of the query is a matter of civil law for courts of general jurisdiction. Licensees must provide records upon request of the client or his authorized agent, or prepare a synopsis with the content governed by Rule. Confidentiality principles require the owner/agent to consent to the release of records to another person or facility. Additional information was requested should the inquirer need clarification   

Prescription Requirements for Veterinarians  
A member of the public asked the Board whether a licensed veterinarian was required by the Board to have a client “fill out a form” so that prescriptions could be filled by an online pharmacy. She was advised that a licensed veterinarian cannot refuse to write a prescription for the client solely because someone else will receive the payment (profit), but that there are other considerations the veterinarian can rely on to refuse a written prescription (patient’s life is not in danger without immediate administration, the substance is not medically safe for at home administration, the prescription must be appropriate for the care of the patient). Further, the request need not be honored if the prescription is not directly requested by the client. The veterinarian also has the option to give the written prescription to the client, when appropriate, to have the client have it filled by the pharmacy. Finally, the person was advised that the veterinarian may charge a fee (a reasonable amount) for the service of providing a written prescription to the client.  

Question on Mobile Veterinary Services  
Yet another question was posed to the Board concerning the requirements of providing veterinarian services from a mobile unit. The licensed veterinarian asked, generally, what is required from the Board to “legally run the business” and specifically whether prescriptions could be labeled using a virtual address and whether a special license was required. The licensee was advised that the general question was too broad for an authoritative response but was referred to the specific provisions of Rule 711 (F) and the characteristics and equipment requirements of a “Mobile Practice Vehicle”, the need for a local contract with an animal hospital or clinic, the obligations to remain on premises until patient discharge, record keeping obligations and the other provisions of this Rule. No special licenses are required. However, the licensee was referred to the FDA and DEA concerning the labeling requirements of controlled and legend drugs but also directed to Rule 706 as to Board labeling requirements.  

Are Unregistered Veterinary Assistant Able to Administer Vaccines Other Than Rabies? 
The Board received a query asking a series of questions concerning a lay assistant administering vaccines to canines and felines where no veterinarian at the site of administration had ever examined the patient. The context of these questions were that if a patient is boarded at a facility that requires certain vaccines have been administered, can they be administered by a lay technician who works for veterinarians that have never seen the boarded animals. The person was advised that the vaccines can be administered by a non-veterinarian only as incidental to their employment with a licensed veterinarian who has established a VCPR with the patient.