By Holzheauser H.B. No. 2614
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the practice of veterinary medicine, including the
1-3 State Board of Veterinary Medical Examiners and dangerous drugs;
1-4 providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 2, The Veterinary Licensing Act (Article
1-7 8890, Revised Statutes), is amended by amending Subsection 2 to
1-8 read as follows:
1-9 <(2) Any person shall be deemed in the "Practice of
1-10 Veterinary Medicine" who represents himself as engaged in the
1-11 practice of veterinary medicine; or uses any words, letters, or
1-12 titles in such connection or under such circumstances as to induce
1-13 the belief that the person using them is engaged in the practice of
1-14 veterinary medicine, or any person who performs a surgical or
1-15 dental operation or who diagnoses, treats, immunizes or prescribes
1-16 any prescription drug, prescription medicine, veterinary appliance,
1-17 or veterinary application for any physical ailment, injury,
1-18 deformity, or condition of animals, for compensation.>
1-19 (2)(a) "Veterinary Medicine" shall include veterinary
1-20 surgery, reproduction and obstetrics, dentistry, radiology,
1-21 ophthalmology, dermatology, cardiology, and all other disciplines
1-22 and specialties of veterinary medicine.
1-23 (b) "The practice of veterinary medicine" shall
2-1 mean:
2-2 (1) the diagnosis, treatment, correction,
2-3 change, manipulation, relief, or prevention of animal disease,
2-4 deformity, defect, injury, or other physical or mental condition,
2-5 including the prescription or administration of any drug, biologic,
2-6 anesthetic, apparatus, or other therapeutic or diagnostic substance
2-7 or technique, also to include the use of any mechanical, manual, or
2-8 surgical procedure for artificial insemination, oocyte and embryo
2-9 collection, pregnancy evaluation, or reproductive soundness
2-10 evaluation, or to render advice or recommendation with regard to
2-11 any of the above; or
2-12 (2) to represent an ability and
2-13 willingness to do an act included in (1) above; or
2-14 (3) to use title, words or letters to
2-15 induce the belief that one is legally authorized and qualified to
2-16 do an act in (1) above; or
2-17 (4) to receive compensation for performing
2-18 an act included in (1) above
2-19 (c) "Compensation" shall include, but not be
2-20 limited to, all fees, monetary rewards, discounts, and emoluments
2-21 received directly or indirectly.
2-22 (3) "Board" means the State Board of Veterinary
2-23 Medical Examiners.
2-24 (4) "Licensee" means any person holding a license to
2-25 practice veterinary medicine issued by the Board.
3-1 (5) "Applicant" means any person requesting that the
3-2 Board examine the person's qualifications for the practice of
3-3 veterinary medicine or requesting the issuance or renewal of a
3-4 license.
3-5 (6) "License" means license to practice veterinary
3-6 medicine.
3-7 (7) "General supervision" shall mean that the actual
3-8 physical presence of the responsible veterinarian is not necessary,
3-9 but means of communication is readily available.
3-10 (8) "Direct supervision" shall mean the actual
3-11 physical presence of the responsible veterinarian on the premise.
3-12 SECTION 2. Section 2A, The Texas Veterinary Licensing Act
3-13 (Article 8890, Revised Statutes), is amended to read as follows:
3-14 Sec. 2A. (a) A veterinarian-client-patient relationship
3-15 exists if:
3-16 (1) A veterinarian assumes responsibility for medical
3-17 judgments regarding the health of an animal and a client who is the
3-18 owner or other caretaker of the animal agrees to follow the
3-19 veterinarian's instructions; <or> and
3-20 <(2) A veterinarian, through personal examination of
3-21 an animal or a representative sample of a herd or flock, obtains
3-22 sufficient information to make at least a general or preliminary
3-23 diagnosis of the medical condition of the animal, herd, or flock,
3-24 which is expanded through medically appropriate visits to the
3-25 premises where the animal, herd, or flock is kept.>
4-1 (2) There is sufficient knowledge of the animal(s) by
4-2 the veterinarian to initiate at least a general or preliminary
4-3 diagnosis of the medical condition of the animal(s). This means
4-4 that the veterinarian has recently seen and/or is personally
4-5 acquainted with the keeping and care of the animal(s) by virtue of
4-6 the examination of the animal(s), and/or by medically appropriate
4-7 and timely visits to the premises where the animal(s) is (are)
4-8 kept; and
4-9 (3) The practicing veterinarian is readily available
4-10 or has provided follow-up medical care in case of adverse reactions
4-11 or failure of the regimen of therapy.
4-12 (b) The professional services of a veterinarian shall not be
4-13 controlled or exploited by any lay agency, personal or corporate,
4-14 which intervenes between the client and the veterinarian. A
4-15 veterinarian shall not allow a non-licensed person or entity to
4-16 interfere or intervene with the veterinarians's practice of
4-17 veterinary medicine; nor shall the veterinarian submit to such
4-18 interference or intervention by a non-licensed person or entity. A
4-19 veterinarian shall avoid all relationships which could result in
4-20 interference or intervention in the veterinarian's practice by a
4-21 non-licensed person or entity. A veterinarian shall be responsible
4-22 for his own actions and is directly responsible to the client and
4-23 for the care and treatment of the patient.
4-24 SECTION 3. Section 3, The Texas Veterinary Licensing Act
4-25 (Article 8890, Revised Statutes), is amended by amending Subsection
5-1 (a) to read as follows:
5-2 (a) The provisions of this Act shall not apply to:
5-3 (1) Treatment or caring for animals in any manner
5-4 personally by the owner thereof, or by any employee of the owner
5-5 thereof or designated caretaker unless ownership, <or> employment,
5-6 or designation has been established with the intent of
5-7 circumventing this Act.
5-8 (2) A person performing acts which the Board has
5-9 prescribed as accepted livestock management practices including,
5-10 but not limited to:
5-11 <(2)> (i) <Performance of t>The operation of male
5-12 castration on animals raised for human consumption, or docking or
5-13 earmarking of animals raised for human consumption.
5-14 <(3)> (ii) <Performance of t>The operation of
5-15 dehorning cattle<, or>.
5-16 (iii) Aid in the non-surgical birth process in
5-17 large animals, as defined by Board rule.
5-18 <(4)> (iv) Treatment of animals for disease
5-19 prevention with non-prescription medication or vaccine. <internal
5-20 or external parasites, or vaccination for black leg, shipping
5-21 fever, or sore mouth with a nonprescription medicine.>
5-22 <(5) Selling by a retail distributor of a
5-23 nonprescription medicine, remedy, or insecticide which is
5-24 adequately labeled.>
5-25 <(7)> (v) Branding animals in any manner.
6-1 (vi) Artificially breeding a food production
6-2 animal with thawed semen.
6-3 <(6)> (3) Performance of cosmetic or production
6-4 techniques to reduce injury in poultry intended for human
6-5 consumption.
6-6 (4) Any employee of a licensed veterinarian performing
6-7 duties involving food production animals other than diagnosis,
6-8 prescription, or surgery under the direction and general
6-9 supervision of such veterinarian who shall be responsible for his
6-10 or her performance.
6-11 <(8)> (5) Acts performed by persons who are full-time
6-12 students of an accredited college of veterinary medicine, or who
6-13 are foreign veterinary graduates of a Board-approved equivalent
6-14 competency program for foreign veterinary graduates and who are
6-15 participating in an extern or preceptor program approved by the
6-16 Board if the acts are performed under direct supervision of a
6-17 licensee employing the person.
6-18 (6) The nonsurgical transfer of embryos from food
6-19 producing and equine animals.
6-20 (7) Recognizing that the American Embryo Transfer
6-21 Association (AETA) certifies embryo transfer (ET) companies and not
6-22 individual ET practitioners, and that a conditionally qualified ET
6-23 practitioner must take and pass the AETA certification exam, that
6-24 person passing the exam, as long as he/she remains current with
6-25 AETA certification, is exempt while performing nonsurgical embryo
7-1 collection and transfer procedures including rectal palpation of
7-2 food production and equine animals. This person must, on an annual
7-3 basis, register with the Board and pay an annual fee equal to the
7-4 current rate, including both licensing fee and Professional
7-5 Licensing Tax, for licensed veterinarians in this state. This
7-6 exemption to perform nonsurgical embryo collection and transfer
7-7 procedures does not in any way exempt that person from the laws
7-8 governing the use of prescription drugs either directly or
7-9 indirectly.
7-10 (8) As of September 1, 1993 any resident of the state
7-11 of Texas who:
7-12 (i) Holds a master's degree in reproductive
7-13 physiology from a Board-approved college and for the last four
7-14 years has practiced ET as a principal occupation; or
7-15 (ii) For the last ten years has practiced ET as
7-16 a principal occupation, may apply for registration with the Board
7-17 to perform nonsurgical embryo collection and transfer procedures
7-18 including rectal palpation of food production and equine animals.
7-19 Persons applying for equine registration must have suitable equine
7-20 ET experience. Application for registration must be made prior to
7-21 September 1, 1994. Applicant must provide suitable documentation
7-22 of qualifications. Registrant must register annually with the
7-23 Board and pay an annual fee equal to the current veterinary
7-24 licensing rate in Texas, including both licensing fee and
7-25 Professional Licensing Tax. Registration to run concurrently with
8-1 the Texas veterinary licensing schedule.
8-2 (e) This Act does not apply to any veterinarian residing in
8-3 another state, lawfully qualified under the laws of that state,
8-4 meeting licensed veterinarians of this state in consultation.
8-5 SECTION 4. Section 4, The Veterinary Licensing Act (Article
8-6 8890, Revised Statutes), is amended by adding a new Subsection (b)
8-7 to read as follows:
8-8 (b) A person commits an offense if the person
8-9 violates this Section. The offense is a Class A Misdemeanor.
8-10 SECTION 5. Section 5, The Veterinary Licensing Act (Article
8-11 8890, Revised Statutes), is amended by amending Subsections (b),
8-12 (c) and (i) to read as follows:
8-13 (b) Appointments shall be made without regard to the race,
8-14 creed, sex, religion, or national origin of the appointees. Six
8-15 members must be non-specialty licensed veterinarians and three
8-16 members must be members of the general public. A maximum of one of
8-17 the six licensed veterinarians may be a member of the faculty of a
8-18 college of veterinary medicine.
8-19 (c) To be eligible for appointment to the Board as a
8-20 licensed veterinarian member, a person must:
8-21 (1) have resided in the state and practiced veterinary
8-22 medicine for the six years next preceding his appointment;
8-23 (2) be of good repute. <and>
8-24 <(3) not be a member of the faculty of any veterinary
8-25 medical college or of the veterinary medical department of any
9-1 college or have a financial interest in a veterinary medical
9-2 college.>
9-3 (i) The State Board of Veterinary Medical Examiners is
9-4 subject to the Texas Sunset Act, as amended (Article 5429k,
9-5 Vernon's Texas Civil Statutes); and unless continued in existence
9-6 as provided by that Act, the Board is abolished, and this Act
9-7 expires effective September 1, <1993> 2005.
9-8 SECTION 6. Section 7, The Veterinary Licensing Act (Article
9-9 8890, Revised Statutes), is amended by adding a new Subsection (b)
9-10 and re-lettering subsequent Subsections to read as follows:
9-11 (b) The Board shall adopt rules to safeguard the public and
9-12 insure that only a veterinarian performs, or is involved in,
9-13 alternate therapies including, but not limited to, animal behavior
9-14 consultants; ultrasound diagnosis and therapy; magnetic field
9-15 therapy; holistic medicine; homeopathy; equine dentistry;
9-16 chiropractic treatment; acupuncture; or laser therapy.
9-17 <(b)> (c) The Board shall require its licensees to maintain
9-18 a record-keeping system for controlled substances as prescribed by
9-19 the Texas Controlled Substances Act, (Article 4476-15, Vernon's
9-20 Texas Civil Statutes). The records are subject to review by law
9-21 enforcement agencies and by representatives of the Board. A
9-22 failure to keep such records shall be grounds for revoking,
9-23 canceling, suspending, or probating the license of any practitioner
9-24 of veterinary medicine.
9-25 <(c)> (d) After notice and hearing, the Board may approve an
10-1 exception to a rule adopted by the Board. The Board may consider
10-2 an exception on the request of a person subject to regulation by
10-3 the Board.
10-4 SECTION 7. Section 9, The Veterinary Licensing Act (Article
10-5 8890, Revised Statutes), is amended by amending Subsection (d) to
10-6 read as follows:
10-7 (d) The investigation files and records, including those of
10-8 complaints found to be groundless, of the Board are confidential.
10-9 SECTION 8. Section 13, The Veterinary Licensing Act
10-10 (Article 8890, Revised Statutes), is amending by amending
10-11 subsection (d) to read as follows:
10-12 <(d) The Board may recognize, prepare, or implement
10-13 continuing education programs for veterinarians. Participation in
10-14 the programs is voluntary.>
10-15 (d) The person has fulfilled the continuing education
10-16 requirements established by the Board.
10-17 SECTION 9. Section 14, The Veterinary Licensing Act (Article
10-18 8890, Revised Statutes), is amended by amending Subsection (a) to
10-19 read as follows:
10-20 (a) Except as provided by this section with respect to
10-21 conviction of a felony under the Texas Controlled Substances Act,
10-22 as amended (Article 4476-15, Vernon's Texas Civil Statutes), or
10-23 Chapter 425, Acts of the 56th Legislature, Regular Session, 1959,
10-24 as amended (Article 4476-14, Vernon's Texas Civil Statutes), the
10-25 Board may revoke or suspend a license, impose a civil penalty,
11-1 place a licensee or a person whose license has been suspended on
11-2 probation, or reprimand a licensee, or may refuse to examine an
11-3 applicant or to issue a license or a renewal of a license, after
11-4 notice and hearing as provided in Section 15 of this Act, or as
11-5 provided by the rules of the Board, if it finds that an applicant
11-6 or licensee:
11-7 (1) has presented to the Board dishonest or fraudulent
11-8 evidence of qualification or has been guilty of fraud or deception
11-9 in the process of examination, or for the purpose of securing a
11-10 license; or
11-11 (2) is chronically, or habitually intoxicated, has a
11-12 chemical dependency or is addicted to drugs;
11-13 (3) has engaged in dishonest or illegal practices in
11-14 or connected with the practice of veterinary medicine;
11-15 (4) has been convicted of a felony under the laws of
11-16 this or any other state of the United States or of the United
11-17 States;
11-18 (5) has engaged in practices or conduct in connection
11-19 with the practice of veterinary medicine which are violative of the
11-20 standards of professional conduct as duly promulgated by the Board
11-21 in accordance with law;
11-22 (6) has permitted or allowed another to use his
11-23 license, or certificate to practice veterinary medicine in this
11-24 state;
11-25 (7) has fraudulently issued a health certificate,
12-1 vaccination certificate, test chart, or other blank form used in
12-2 the practice of veterinary medicine that relates to the presence or
12-3 absence of animal disease;
12-4 (8) has issued a false certificate relating to the
12-5 sale for human consumption of inedible animal products;
12-6 (9) has committed fraud in application or reporting of
12-7 any test of animal disease;
12-8 (10) has paid or received any kickback, rebate, bonus,
12-9 or other remuneration for treating an animal or for referring a
12-10 client to another provider of veterinary services or goods;
12-11 (11) has performed or prescribed unnecessary or
12-12 unauthorized treatment;
12-13 (12) has ordered prescription drugs or controlled
12-14 substances for the treatment of an animal without first
12-15 establishing a valid veterinarian-patient-client relationship;
12-16 (13) has refused to admit a representative of the
12-17 Board to inspect the client and patient records and business
12-18 premises of the person during regular business hours;
12-19 (14) has failed to keep the equipment and business
12-20 premises in a sanitary condition;
12-21 (15) has committed gross malpractice or is guilty of a
12-22 pattern of acts indicating consistent malpractice, negligence, or
12-23 incompetence in the practice of veterinary medicine;
12-24 (16) is subject to a disciplinary action in another
12-25 jurisdiction, including the suspension, probation, or revocation of
13-1 a license to practice veterinary medicine issued by another
13-2 jurisdiction.
13-3 SECTION 10. Section 14B, The Veterinary Licensing Act
13-4 (Article 8890, Revised Statutes), is amended by amending
13-5 Subsections (a) and (b) to read as follows:
13-6 (a) If a licensee or non-licensee <person> violates this Act
13-7 in a manner that constitutes grounds for <disciplinary> action by
13-8 the Board, the Board may assess a civil penalty against that person
13-9 in addition to taking action under Section 14 or 14A of this Act.
13-10 (b) The Board may assess the civil penalty in an amount not
13-11 to exceed <$2,500> $5,000 per violation. In determining the amount
13-12 of the penalty, the Board shall consider the seriousness of the
13-13 violation.
13-14 SECTION 11. Section 17, The Veterinary Licensing Act
13-15 (Article 8890, Revised Statutes), is amended to read as follows:
13-16 Section 17. The Board may through the Attorney General or
13-17 any District or County Attorney <may> institute any injunction
13-18 proceeding or any such other proceeding incident to such injunction
13-19 proceeding as to enforce the provisions of this Act and to enjoin
13-20 any person from the practice of veterinary medicine, as defined in
13-21 this Act, without such person having complied with the other
13-22 provisions of this Act. The venue for such injunction proceedings
13-23 shall be in the county of the residence of the person against whom
13-24 such injunction proceedings are instituted. If the person does not
13-25 reside in this state, venue is in Travis County.
14-1 SECTION 12. Section 18, The Veterinary Licensing Act
14-2 (Article 8890, Revised Statutes), is amended by amending Subsection
14-3 (b) to read as follows:
14-4 (b) A person commits an offense if the person violates this
14-5 Section or Section 4 of this Act. An offense under this Subsection
14-6 is a Class <B> A Misdemeanor.
14-7 SECTION 13. Section 18A, The Veterinary Licensing Act
14-8 (Article 8890, Revised Statutes) is amended by amending Subsections
14-9 (b) and (c) to read as follows:
14-10 (b) The Board shall maintain an information file about each
14-11 complaint filed with the Board relating to a licensee or
14-12 non-licensee.
14-13 (c) If a written complaint is filed with the Board relating
14-14 to a licensee or non-licensee, the Board, at least as frequently as
14-15 quarterly and until final disposition of the complaint, shall
14-16 notify the parties to the complaint of the status of the complaint
14-17 unless the notice would jeopardize an undercover investigation.
14-18 SECTION 14. The Veterinary Licensing Act (Article 8890,
14-19 Revised Statutes), is amended by adding a new Section 18D to read
14-20 as follows:
14-21 Section 18D. A veterinarian shall not violate the
14-22 confidential relationship between self and client and shall not be
14-23 required to disclose any information concerning the veterinarian's
14-24 care of an animal except on written authorization or other waiver
14-25 by the veterinarian's client or on appropriate court order or
15-1 subpoena. Any veterinarian releasing information under written
15-2 authorization or other waiver by the client or under court order or
15-3 subpoena shall not be liable to the client or any other person.
15-4 The privilege provided by this section shall be waived to the
15-5 extent that the veterinarian's client or the owner of the animal
15-6 places the veterinarian's care and treatment of the animal or the
15-7 nature and extent of injuries to the animal at issue in any civil
15-8 or criminal proceeding.
15-9 SECTION 15. Section 22, The Veterinary Licensing Act
15-10 (Article 8890, Revised Statutes) is repealed and a new Section 22
15-11 is added to read as follows:
15-12 Section 22. (a) A personal service corporation that provides
15-13 veterinary services as defined within this Act shall have as its
15-14 shareholders licensed veterinarians only.
15-15 (b) A personal service corporation with shareholders
15-16 composed of non-licensed veterinarians may not employ a
15-17 veterinarian to provide veterinary services to the public.
15-18 (c) In the formation of partnerships for practice of
15-19 veterinary medicine, no person shall be admitted as a partner who
15-20 is not a member of the veterinary profession, duly authorized to
15-21 practice, and amenable to professional discipline. No person shall
15-22 be held out as a practitioner of veterinary medicine or a member of
15-23 a firm who is not so admitted. In the selection and use of a firm
15-24 name, no false or misleading name shall be used.
15-25 (d) Partnerships between veterinarians and members of other
16-1 professions or nonprofessional persons shall not be formed or
16-2 permitted if a part of the partnership employment consists of the
16-3 practice of veterinary medicine.
16-4 SECTION 16. The Veterinary Licensing Act (Article 8890,
16-5 Revised Statutes), is amended by adding Sections 23 and 24 to read
16-6 as follows:
16-7 Section 23. (a) The provisions of this section are
16-8 applicable to any veterinarian who leases space from and practices
16-9 veterinary medicine on the premises of a mercantile establishment.
16-10 (b) The practice must be owned by a Texas licensed
16-11 veterinarian. Every phase of the practice and the leased premises
16-12 must be under the exclusive control of a Texas licensed
16-13 veterinarian.
16-14 (c) All patient and business records shall be the sole
16-15 property of the veterinarian and free from involvement with the
16-16 mercantile establishment or any unlicensed person. Except,
16-17 however, that those business records essential to the successful
16-18 initiation or continuation of a percentage of gross receipts lease
16-19 of space may be inspected by the applicable lessor.
16-20 (d) The leased space shall be definite and apart from the
16-21 space occupied by other occupants of the premises. It shall be
16-22 separated from space used by other occupants of the premises by
16-23 solid, opaque partitions or walls from floor to ceiling. Railings,
16-24 curtains and other similar arrangements are not sufficient to
16-25 comply with the requirement.
17-1 (e) The leased space shall have a patient's entrance opening
17-2 on a public street, hall, lobby, corridor, or other public
17-3 thoroughfare. The aisle of a mercantile establishment does not
17-4 comply with this requirement. An entrance to the leased space is
17-5 not a patient's entrance within the meaning of this subsection
17-6 unless actually used as an entrance by the veterinarian's patients.
17-7 (f) No phase of the veterinarian's practice shall be
17-8 conducted as a department or concession of the mercantile
17-9 veterinary establishment and there shall be no legends or signs
17-10 such as "Veterinary Department," or other of similar import,
17-11 displayed on any part of the premises or in any advertising.
17-12 (g) The veterinarian shall not permit his name to be
17-13 directly or indirectly associated with the mercantile
17-14 establishment.
17-15 Section 24. In the event of a practitioner's death, practice
17-16 ownership and patient records become the property of the
17-17 practitioner's heirs to dispose of as they deem necessary, within a
17-18 reasonable period of time, not to exceed two years.
17-19 SECTION 17. Section 483.041, Health and Safety Code, is
17-20 amended by amending Subsection (c) to read as follows:
17-21 (c) Subsection (a) does not apply to the possession of a
17-22 dangerous drug in the usual course of business or practice or in
17-23 the performance of official duties by the following persons or an
17-24 agent or employee of the person:
17-25 (1) a pharmacy, drug store, dispensary, apothecary
18-1 shop, or prescription laboratory registered by the board;
18-2 (2) a practitioner;
18-3 (3) a person who obtains a dangerous drug for lawful
18-4 research, teaching, or testing, but not for resale;
18-5 (4) a hospital that obtains a dangerous drug for
18-6 lawful administration by a practitioner;
18-7 (5) an officer or employee of the federal, state, or
18-8 local government;
18-9 (6) a manufacturer or wholesaler registered with the
18-10 commissioner of health under Chapter 431 (Texas Food, Drug, and
18-11 Cosmetic Act); <or>
18-12 (7) a carrier or warehouseman<.>; or
18-13 (8) An owner or operator of a food animal production
18-14 operation in which dangerous drugs are administered to livestock or
18-15 poultry under a standing medical directive or treatment guideline
18-16 from a practitioner in the possession of the owner or operator and
18-17 the dangerous drugs are obtained from a duly registered wholesaler
18-18 upon order of the practitioner.
18-19 SECTION 18. This Act takes effect September 1, 1993.
18-20 SECTION 19. The importance of this legislation and the
18-21 crowded condition of the calendars in both houses create an
18-22 emergency and an imperative public necessity that the
18-23 constitutional rule requiring bills to be read on three several day
18-24 in each house be suspended, and this rule is hereby suspended.