Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
Pursuant to 9 CFR 160 to 162, a veterinarian must be specifically authorized by the United States Department of Agriculture – Animal and Plant Health Inspection Service to perform animal disease eradication and control functions under federal animal health laws. Licensure requirements to practice veterinary medicine are established by each state and should not be affected by federal requirements.
Summary of Comments Received during Hearing and Comment Periods
Preliminary Public Hearing and Comment Period on the Statement of Scope
The Board held a preliminary hearing on SS 064-20 on August 19, 2020, with a written comment period through August 26, 2020. The Board received three comments. One comment was for information. Two comments expressed support of the scope, both expressed support of including telehealth in the scope, and one also expressed support of including addressing the circumstances under which a veterinarian may dispense a drug for a patient of another veterinarian in the scope. Comment Period on the Economic Impact Analysis
The economic impact analysis was posted for 14 days, with comments accepted through June 21, 2021. One comment was received. The comment noted a typo in the plain language analysis, which has been corrected. The comment also expressed objection to the term “veterinary nurse,” stated that there are objections from the national nursing organization regarding the term, and stated that “nurse” does not adequately encompass the skills and knowledge base of veterinary technicians. The rule draft does not use “veterinary nurse” to refer to veterinary technicians, but does include a note that states that the Board accepts the classification of “veterinary nurse” in other jurisdictions as equivalent to “veterinary technician.” While the Board, and this rule, does not use “veterinary nurse” to refer to veterinary technicians, this note clarifies that the Board accepts the term as equivalent when used by other jurisdictions.
Public Hearing and Comment Period on the Preliminary Rule Draft
The Board held public hearings on the preliminary rule draft on September 9 and 15, 2021, with comments accepted through September 29, 2021. Both hearings offered a combination of in-person access and remote access. The Board sent an email notice to licensees notifying them of the hearing and comment period, in addition to the posting in the Administrative Register. The Board received 3 comments at public hearings and 25 written comments. There were 26 total commenters. Of these 26:
— Nine expressed support of the proposed rule. Of these nine:
— Nine also specified support of the veterinary-client-patient relationship (VCPR) definition
— Eight also specified support of the omission of Assisted Reproductive Technologies (ART) procedures in delegation changes
— Two also expressed that ART procedures should not be delegated to a CVT at all
— One also expressed opposition to delegation without the veterinarian on the premises generally
— Six also expressed support of language regarding veterinarians filling prescriptions for other veterinarians
— Fourteen expressed opposition to the VCPR definition
— One expressed opposition to the omission of ART in delegation changes
— Two did not express a position for/against the proposal
— One expressed concerns about existing rabies provisions
VCPR Definition
The hearing draft created a new section regarding telemedicine and stated that “In order to practice veterinary telemedicine in Wisconsin, a veterinarian must be licensed in Wisconsin and have an established VCPR with the client. A VCPR must be established via an in-person physical exam, or timely medically appropriate visits to the premises on which the patient is kept. The VCPR may not be established by telehealth technologies.”
Comments expressing opposition to the VCPR definition expressed that:
— There are cases where a veterinarian cannot do a physical exam because of the aggression displayed by the patient
— The VCPR definition is restrictive and will negatively impact pet owners, foster care providers, and animal shelters
— Telecommunicating might make veterinary services more affordable
— Access to veterinary care in northern Wisconsin is challenging and referral after hours is to a clinic over an hour away
— Being able to establish a VCPR via virtual tool would allow more pets to receive care at critical times
— Telemedicine can provide quality, and potentially lifesaving care, improve efficiency and flexibility in scheduling options, and provide benefits to pet owners without access to transportation or who are unable to easily leave their homes
— Dogs and cats needlessly suffer, experience premature death, or are relinquished to animal shelters due to gaps in veterinary access, and telemedicine is a critical tool for the veterinary community to bridge gaps in care
— While physical veterinary medical examinations are sometimes critical, responsible use of telemedicine can bring essential care to more animals
— The education and licensing requirements that veterinarians undertake prepare them to utilize professional judgement in determining whether telemedicine is appropriate in the care of a particular animal or condition
— The rule could require safeguards with criteria for establishing a VCPR through electronic means
— Telehealth technologies have been used to create a human physician-patient relationship, including infants and nonverbal children
— The American Association of Veterinary State Boards (AAVSB) practice act model language supports allowing a veterinarian to establish a VCPR through telemedicine
— Support options 2 and 3
— Support Michigan and Washington policies
Comments expressing support of the VCPR definition expressed that:
— The statutory definition of VCPR under Wis. Stat. s. 89.02 (8) requires that the veterinarian has recently examined the patient or has made medically appropriate and timely visits to the premises on which the patient is kept, the VEB is granted authority to promulgate rules within the limits established by the statutory authority granted to it by the legislature, and the VEB may not change the VCPR definition but may allow the use of telehealth technologies within the scope of the statutory definition — The telehealth changes are good and oppose moving them beyond what was proposed in the hearing draft
— In-person contact is critical for the long-term care of the patient
— While telehealth is an excellent tool for managing very specific cases, it does not provide enough background for a broad picture view of a farm in its entirety
— There is a critical difference between providing care to animals and humans because animal patients cannot directly communicate their pain or their symptoms to a veterinarian using language
— The owner can misinterpret an animal’s condition
— A physical exam or visit to the premises provides a more complete understanding of the animal, its medical history, the environment, and the client in order to provide the highest standard of care, and it is critical to the safe and effective provision of veterinary medicine using telehealth technologies
— An in-person visit by the veterinarian serves to protect patients and clients by assuring that animals have been appropriately evaluated
— Eliminating the requirement for an in-person evaluation can present substantial risks, including suboptimal diagnosis and treatment, misinterpretation of animals’ clinical signs by owners/caretakers, overprescribing, animal disease risks associated with transport of livestock for which an in-person evaluation was not conducted prior to issuing a Certificate of Veterinary Inspection, public health risks associated with delayed or missed diagnosis of zoonotic disease, and claims of malpractice
— Medical care delivered to patients must continue to be of high quality, and technological tools used to support electronic veterinary visits are still in their early stages of development and as of yet do not provide the same amount of information as an in-person encounter
— Addressing care disparities is not as straightforward as allowing the VCPR to be established electronically, and barriers to the receipt of veterinary care include socioeconomic, geographic, knowledge and demographic/culture based
— Through research the lack of physical proximity and the requirement for an in-person visit do not appear to be the primary barriers to accessing veterinary care
— Telemedicine itself is not free of access barriers, right now only 10% of veterinary clients are using it (8% telephone only), and surveys on the human health side revealed technological barriers, such as lack of access to technology, insufficiency of broadband internet, and digital literacy
— Telemedicine is not a clear solution to the problem of cost, results are mixed as to whether telehealth reduces downstream utilization of health care, and study on the human side resulted no reduction in overall spending for patients
— The VCPR language is consistent with federal law, the Food and Drug Administration (FDA) does not allow a VCPR to be established through electronic means and does allow it to be maintained through electronic means, and Wisconsin veterinarians are required under federal law to follow federal VCPR requirement in each applicable circumstance, such as any extralabel drug use or when authorizing a veterinary feed directive
— The proposal is consistent with American Veterinary Medical Association (AVMA) and FDA policies, and is supported by the Wisconsin Veterinary Medical Association (WVMA)
— The practice of veterinary medicine should be as broad and expansive as is allowed under Wisconsin law and as is protective of animal health, and the proposed rule meets both of those criteria
Based on public comments, the Board decided to maintain the same VCPR definition in this final draft as was in the preliminary hearing draft. However, the Board did make changes to make related provisions clearer. The Board moved provisions regarding emergency care, general advice, and consulting, and from the definitions into the body of the rule and added language to the telemedicine section of the rule to make it clearer that those specified items do not require the establishment of a VCPR.
ART Procedures
The hearing draft included creating a new category of delegation to allow a veterinarian to delegate specific acts to a CVT when the veterinarian is available via telehealth technologies within five minutes, rather than requiring that the veterinarian be personally present on the premises as current rule requires. This new category of delegation did not include ART procedures, which are performing amniocentesis, embryo collection and transfer, follicular aspiration, and transvaginal oocyte collection and recovery on livestock.
The comment expressing opposition to the omission of ART in delegation changes expressed that:
— CVTs safely and effectively perform ART under the direct supervision of a veterinarian hundreds of times each week
— The omission of ART will prevent the incorporation of technology into future operations, have a financial effect on farms, and cause delays to procedures due to the lack of large animal veterinarians
— Human medicine has broadly applied telehealth to existing procedures by modifying the definition of direct supervision generally and not based on individual services
Comments expressing support of the omission of ART in delegation changes expressed that:
— ART procedures are very tactile in nature, it is not uncommon to find reproductive abnormalities and pathology that require diagnosis by palpation, palpation is critical for the procedures, and specific tactile manipulations that cannot be visualized in their entirety from the exterior of the animal
— ART procedures pose a significant risk for complications that cannot be managed in a timely fashion unless the veterinarian is present on the premises
— Severe complications can have life-threatening and permanent consequences to a previously healthy animal, and the veterinarian needs to be present on the premises to mitigate the risk of permanent damage
— The required level of care cannot be accomplished via telehealth
— The risk of complications from ART procedures is significant, and the convenience of using telehealth does not outweigh the risk to the animal
— Relaxing these rules could hurt the perception of the Wisconsin dairy industry by giving the impression that Wisconsin quality is not up to standards, while delegating ART procedures could save some money up front, the long-term implications outweigh any potential short-term gain, and we need to continue to set the bar high when it comes to caring for animals and educating the public
— There may be business or financial reasons that could make the delegation of ART procedures using telehealth appealing to practitioners, clients, or businesses, but the argument is inappropriate in this context, the role of the VEB is to define the safe provision of veterinary care for animals and to protect animal health and not to make the practice of veterinary medicine fast or economical, and cited North Carolina State Board of Dental Examiners, Petitioner v. Federal Trade Commission, 574 U.S. 494 (2015)
