As with every new technology, there comes with it a legal minefield which must be understood to avoid offending the regulatory authorities. With the advent and adoption of telehealth and telemedicine, veterinarians from across the state may now see patients, with less overhead, saving the customer money. But is this legal in California and what are the limits and pitfalls?
Telehealth and Telemedicine in the Veterinary Field
There is no doubt that telehealth is expanding in veterinary medicine and veterinarians need to inform themselves about this new area. As the American Veterinary Medical Association (“AVMA”) defines it:
Telehealth is the overarching term that encompasses all uses of technology geared to remotely deliver health information or education. Telemedicine is the use of medical information exchanged from one site to another via electronic communications regarding a patient’s clinical health status.[1]
The practice is generally used to augment an existing veterinary practice and must be performed by licensed practitioners.
The AVMA defines telemedicine more specifically as a subset of telehealth:
Telemedicine is a subcategory of telehealth that involves use of a tool to exchange medical information electronically from one site to another to improve a patient’s clinical health status. Examples include using Skype or a mobile app to communicate with a client and visually observe the patient for a post-operative follow-up examination and discussion. Telemedicine is a tool of practice, not a separate discipline within the profession. The appropriate application of telemedicine can enhance animal care by facilitating communication, diagnostics, treatments, client education, scheduling, and other tasks. Practitioners must comply with laws and regulations in the state in which they are licensed to practice veterinary medicine. Telemedicine may only be conducted within an existing Veterinarian-Client-Patient Relationship, with the exception for advice given in an emergency care situation until a patient can be seen by or transported to a veterinarian.[2]
In addressing the legality of practicing telehealth, the AVMA properly instructs veterinarians to consult with their state licensing Boards and cautions practitioners:
…veterinary telemedicine should only be conducted within an existing Veterinarian-Client-Patient Relationship (VCPR), with the exception for advice given in an emergency until that patient can be seen by a veterinarian.[3]
At this point in time, California reflects the same recommendations on limitations.
Veterinary Telemedicine in California
The current California law addressing telehealth, including in the veterinary field, can be found in California Business and Professions Code Section 2290.5.[4] The pertinent subdivisions of this section provide:
* * *
(a)(6) “Telehealth” means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site. Telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers.
* * *
(b) Prior to the delivery of health care via telehealth, the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented.
* * *
(h)(3) For the purposes of this subdivision, “telehealth” shall include “telemedicine” as the term is referenced in Sections 482.12, 482.22, and 485.616 of Title 42 of the Code of Federal Regulations.
Section 2290.5 was born from The Telemedicine Development Act of 1996 (SB 1665)[5] and has continued to expand in both definition and in terms of who is being regulated. Initially the regulations were very narrow in who was regulated by Section 2290.5 (only certain licensed medical practitioners) and vague in what was being governed (only certain forms of communication). For example, telemedicine is currently a subsection of telehealth, but when the Act was first created it did not even recognize the term telehealth.
This section has undergone several amendments. In 2011, AB415[6] expanded Section 2290.5 to a broader range of telehealth services, applied specific definitions to a broader range of terms, and applied the regulations to all licensed healthcare professionals, namely those who were licensed under division 2 of the California Business and Professions Code, including veterinarians. Further, existing law before AB415 required a healthcare practitioner to obtain, “verbal and written informed consent from the patient or the patient’s legal representative before telemedicine is delivered.” This was changed to “verbally inform the patient that telehealth may be used and obtain verbal consent from the patient…” But the onsite medical practitioner had to obtain informed consent, meaning that the VCPR had to first be established, in-person, before any telehealth could be delivered.[7]
In 2015, AB 809[8] revised the informed consent requirements relating to the delivery of health care via telehealth by permitting consent to be made verbally or in writing, and by deleting the requirement that the health care provider who obtains the consent be present on site with the patient. As a result, the VCPR could seemingly be established through telehealth means.
In 2019, AB93[9] added some psychiatric paraprofessionals to whom section 2290.5 was applicable (effective Jan 1, 2019).
So in light of these amendments, can a veterinarian establish a VCPR via telemedicine currently?
California Veterinary Medical Board Regulation
Both the California Veterinary Medical Association (“CVMA”) and the California Veterinary Medical Board (“Board”) have pushed back on the notion that a veterinarian can establish a VCPR via telemedicine, instead favoring the in-person approach. The CVMA issued a policy in January 2014 on Veterinary Telehealth:
The CVMA supports Veterinary Telehealth* as a beneficial modality when used for the best interest of the patient and client. Veterinarians utilizing Veterinary Telehealth must maintain a veterinary-client-patient-relationship (VCPR). A VCPR cannot be established solely by telephonic or other electronic means.
* Veterinary Telehealth means the use of electronic communications and information technologies, including synchronous interactions and asynchronous storage and forward transfers, to facilitate veterinary healthcare at a distance.
(January 2014)[10]
The Board has generally believed that consultation and education are necessary for there to be a Veterinarian-Client-Patient Relationship and attempting to perform telehealth initially would essentially be the practice of telehealth without consent, verbal or otherwise. As a result, the Board has proposed amendments to its “Minimum Standards” regulations to further define the requirements to establish the VCPR.
The CVMB has proposed changes to Section 2032.1 of Article 4 of Division 20 of Title 16 of the California Code of Regulations. The current version of Section 2032.1 is silent about telemedicine. Rather it defines the VCPR at subdivision (b):
(b) A veterinarian-client-patient relationship shall be established by the following:
(1) The client has authorized the veterinarian to assume responsibility for making medical judgments regarding the health of the animal, including the need for medical treatment,
(2) The veterinarian has sufficient knowledge of the animal(s) to initiate at least a general or preliminary diagnosis of the medical condition of the animal(s). This means that the veterinarian is personally acquainted with the care of the animal(s) by virtue of an examination of the animal or by medically appropriate and timely visits to the premises where the animals are kept, and
(3) The veterinarian has assumed responsibility for making medical judgments regarding the health of the animal and has communicated with the client a course of treatment appropriate to the circumstance.
The Board has proposed the additional two sub-paragraphs to Paragraph 2 of Section 2032.1, adding subdivisions (e) and (f) in early 2019:
(e) No person may practice veterinary medicine in this state except within the context of a veterinarian-client-patient relationship. A veterinarian-client-patient relationship cannot be established solely by telephonic or electronic means.
(f) Telemedicine shall be conducted within an existing veterinarian-client-patient relationship, with the exception for advice given in an emergency care situation until that patient(s) can be seen by or transported to a veterinarian. For purposes of this section, “telemedicine” shall mean the mode of delivering animal care services via communication technologies to facilitate consultation, treatment, and care management of the patient.[11]
At its January 3, 2019 Board Meeting, the Board’s counsel confirmed in a staff report that these proposed additions to Section 2032.1 have been submitted to the Department of Consumer Affairs for review and approval.[12] This means that while it has not yet taken effect, the process is well underway.
What does this mean?
Despite the history of Business and Professions Code 2290.5 trying to make telemedicine more user friendly, the CVMA and Board do not agree, with the Board taking regulatory steps to require an in-person evaluation to establish a VCPR. Although the regulation is not yet in effect, the Board’s proclamation of its policy along with that of CVMA sets the standard by which they expect veterinarians to practice telemedicine in the meantime.
The consequence of not following a regulation is often disciplinary action for “unprofessional conduct.” But in the meantime, veterinarians are advised to avoid the risks of what is coming and carefully establish in-person VCPRs, with informed consent for any future telemedicine, and of course excellent recordkeeping.
Steven L. Simas is the founder and principal of Simas & Associates, Ltd. with offices throughout California. He specializes in defending veterinarians in all types of cases before the Veterinary Medical Board, and related veterinary practice litigation, employment, regulatory, and other matters. He has handled hundreds of veterinary licensing cases since the firm commenced in 2002.
Paul M. Beelke is an associate with Simas & Associates, Ltd. in its San Luis Obispo Office, having joined the firm in 2019. A former marine sergeant, Paul moved to the Central Coast to raise his six-year old son. He specializes in administrative law and regulatory matters, in addition to employment law.
They can be reached at 888.999.0008 or info@simasgovlaw.com .
[1] https://www.avma.org/KB/Policies/Pages/Telemedicine.aspx.
[2] https://www.avma.org/PracticeManagement/telehealth/Pages/telehealth-basics.aspx
[3] Ibid.
[4]https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=2290.5
[5] http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1651-1700/sb_1665_bill_960925_chaptered.pdf
[6] http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0401-0450/ab_415_bill_20111007_chaptered.html
[7] Outside emergency situations.
[8] http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB809
[9] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB93
[10] https://cvma.net/resources/cvma-policies/cvma-policy-on-veterinary-telehealth/
[11] https://vmb.ca.gov/meetings/materials/012019_full.pdf; Pg. 31, 56-60