The Texas Board of Veterinary Medical Examiners proposes new §573.17, concerning Dentistry, which is regarding equine teeth floating. Section 801.002(7) of the Veterinary Licensing Act (Act) defines the practice of veterinary medicine to include dentistry, set out in Texas Occupations Code, Chapter 801. The proposed new rule sets forth a definition of dentistry that includes: preventive dental procedures, animal teeth floating and operative dentistry/oral surgery. The proposed new rule clarifies that the definition of dentistry includes the use of sedation or anesthesia to accomplish a dental procedure by a licensed veterinarian. The use of sedation or anesthesia on horses by unlicensed individuals is currently prohibited by §801.002(5) of the Act. No distinction is made in the definition of dentistry between the floating of teeth of animals with handheld, non-motorized, non-air-powered files or rasps and the use of a motorized or air-powered file. The proposed new rule states any non-licensee may perform animal teeth floating only if they are under the supervision of a licensed veterinarian. The level of supervision required is left up to the judgment of the supervising veterinarian. The proposed new rule also states the licensed veterinarian supervising the non-licensee will be held responsible for the non-licensee to provide the same standard of care to the public as the licensed veterinarian would be required to provide to the public.

The proposed new rule does not change that a non-licensee who is employed by a veterinarian may perform dentistry, with certain exceptions, under any level of supervision the licensed veterinarian approves, as set forth in 22 TAC §573.10. The proposed new rule states that a non-licensee who practices dental procedures on animals in a manner inconsistent with this rule is in violation of the rule and the Texas Veterinary Licensing Act.

Dewey E. Helmcamp III, Executive Director, has determined that for each year of the first five years that the rule is in effect there will be minimal fiscal implications for the state, specifically the Board, and no fiscal implication for local government as a result of enforcing or administering the rule as proposed. The Board would only use state resources in investigating the supervision of the licensed veterinarian over the non-licensee. Mr. Helmcamp has also determined that there would be a reduction in costs to the agency as a result of enforcing or administering this rule, as agency resources would no longer be required to seek and enforce cease and desist orders from non-licensed individuals practicing equine dentistry which is the practice of veterinary medicine, for those individuals that would be able to practice under the supervision of a licensed veterinarian. Mr. Helmcamp has also determined no estimated loss in revenue to the state or local governments as a result of enforcing or administering the proposed rule, and a potential minimal increase in revenue to the state, and no increase in revenue to local governments, as a result in enforcing or administering the proposed rule. Mr. Helmcamp has also determined that the rule will have a positive local employment impact.

Mr. Helmcamp has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be to create additional practitioners who may legally provide quality teeth floating services to the general public. Mr. Helmcamp has also determined that there will be a public benefit in further clarifying what constitutes dentistry under the Act. The public health benefit from the proposed rule is the reduction of the potential occurrences of complications or injury/harm to animals from non-licensed individuals practicing dentistry, including motorized or powered teeth floating.

Mr. Helmcamp has determined there will be a small direct adverse effect on a subset of small businesses or micro-businesses because there is a small cost associated with compliance of this rule.

Mr. Helmcamp has further determined that there are small economic costs to persons required to comply with the rule.

Economic Impact Statement and Regulatory Flexibility Analysis

The Board has approximately 6,556 active, non-delinquent doctor of veterinary medicine licensees, and via self-reporting has received information that 2% of these licensees are small businesses or micro-businesses (this data regarding small/micro-business percentages is voluntarily submitted by licensees to the Board). However, it is more accurate to assume that a large majority of licensees are in all probability small businesses or micro-businesses.

The rule applies to all licensees that anticipate supervising a non-licensee performing equine teeth floating. The Board is aware of approximately thirty non-licensed practitioners of equine dentistry in Texas. At a public hearing in the fall of 2010 regarding this issue, testimony was given by the president of the International Association of Equine Dentistry (IAED) that he believed there was between eighty-five to one hundred lay equine dental practitioners in Texas, however there was only approximately thirty that were members of IAED. However, as these equine teeth floaters are unlicensed it is difficult for the Board to approximate the number of practitioners in Texas. Also, there may be some unknown additional number of non-licensed individuals operating in Texas coming in from out of state. All or the large majority of the unlicensed practitioners are in all probability micro-businesses.

The proposed rule will require that licensees supervise non-licensed practitioners of animal teeth floating. The projected economic impact of this rule would be an increase in jobs created in Texas, by allowing non-licensed practitioners to perform teeth floating under the supervision of licensed veterinarians. There is a possibility of a charge by a licensed veterinarian for the supervision of a non-licensed teeth floater. The Board staff would estimate that a possible charge would be 15 - 20%, as other industries charge, such as general contractors and subcontractors, if one is charged at all. The Board has considered as an example model, the scenario of dental hygienists working under the supervision of a licensed dentist. Any cost increase associated with requiring supervision by a licensed veterinarian is offset by the economic benefit of the creation of jobs as well as the public health benefit that occurs by reducing the potential occurrences of complications or injury/harm to the horse from non-licensed individuals practicing teeth floating. The cost of the sedatives would be the same as the current practice, as non-licensed equine teeth floaters often charge for the sedatives used in the floating of the teeth, despite the fact that it is illegal for them to possess or administer the sedatives.

The Board considered taking no action at this time but concluded that the public welfare required some action be taken to clarify the situation and allow additional practitioners under supervision to provide this service to the general public, while simultaneously providing adequate veterinary supervision for the use of sedatives and any other complications resulting from the practice of teeth floating with power tools. Testimony was provided by licensed veterinarians, including photos, of damage done to horses' teeth, including invading the dental pulp and causing ulcers in the mouth, specifically from power tools used in teeth floating, at the public hearing on a version of this rule on August 20, 2010. Complaints have been filed with the Board that include injury to horses by lay equine teeth floaters.

The Board also considered immediate supervision and/or direct supervision, rather than allowing the supervising veterinarian to decide the appropriate level of supervision, but rejected immediate or direct supervision as excessively burdensome for the public and for licensees. The Board considered excluding all manners of teeth floating from the definition of dentistry, but the Board determined that the protection of public welfare requires the supervision by a licensed veterinarian. The state of the art procedure for teeth floating in Texas today is the use of power tools to accomplish teeth floating. For a great majority of horses, a practitioner could not use power tools in the mouth of an equine without a sedative, due to the flight nature of equines. Only a licensed veterinarian is legally authorized to possess, administer and/or dispense a legend drug, which includes sedatives. The Board heard testimony that a licensed veterinarian needs to be on the premises when motorized or powered teeth floating is performed due to the likelihood and in fact, the necessity of sedatives being used and the potential for complications implicit with the use of sedatives, or any other complications resulting from the practice of teeth floating. With the use of power tools the potential for complications is increased because it is more likely for injury to occur to the horses' teeth, including invading the pulp, which may cause permanent damage to the horses' teeth. However, the Board decided that the level of supervision should be decided by the supervising veterinarian, as it would be the supervising veterinarian that would be responsible to the Board for any violations of the standard of care as the lay equine dentists are not regulated by any licensing Board.

Under the Texas Veterinary Licensing Act, the treatment or care of an animal by the owner of the animal, an employee of the owner, or a designated caretaker of the animal is exempted from the requirements of the Act, unless the ownership, employment, or designation is established with the intent to violate the Act.

The Texas Board of Veterinary Medical Examiners invites comments on the proposed rule from any member of the public. The Board would also welcome any additional information regarding charges under this proposed rule, including any documentation of the cost for licensed veterinarians to perform teeth floating, the cost for non-licensed teeth floaters to perform teeth floating, and the potential charge, if any, for the supervision of non-licensed teeth floaters by licensed veterinarians.

A written statement should be mailed or delivered to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Ste. 3-810, Austin, Texas 78701-3942, by facsimile (FAX) to (512) 305-7556, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.

The new rule is proposed under the authority of the Veterinary Licensing Act, Texas Occupations Code, §801.002, defining the practice of veterinary medicine, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter as well as §801.151(b) of the Act which states that the Board may adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity, skills, and practice in the veterinary medicine profession.

Texas Occupations Code, Chapter 801, is affected by this proposal.

§573.17.Dentistry.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2011.

TRD-201100481

Loris Jones

Executive Assistant

Texas Board of Veterinary Medical Examiners

Earliest possible date of adoption: March 20, 2011

For further information, please call: (512) 305-7563