Texas Board of Veterinary Medical Examiners Practice and Procedure 22 TAC §575.25

The Texas Board of Veterinary Medical Examiners (Board) proposes an amendment to §575.25, concerning the Recommended Schedule of Sanctions.

The proposed amendment to §575.25 is intended to make the schedule of disciplinary sanctions apply to all licensees, veterinarians and equine dental providers alike. The proposed amendment is necessitated by House Bill (HB) 414, 82nd Legislative Session, which gave the Board the authority to license and regulate equine dental providers.

Nicole Oria, Executive Director, Texas Board of Veterinary Medical Examiners, has determined that for each year of the first five years that the proposed rule is in effect, there will be increased cost to state government required to enforce the rule for licensed equine dental providers, but those costs will be offset by the reduction in cost of the amounts the Board previously spent on enforcing the unlicensed practice of veterinary medicine by unlicensed equine dentists. Ms. Oria does not anticipate any fiscal implications for local government as a result of the proposed rule. Moreover, Ms. Oria has determined that there will be no local employment impact as a result of adoption of the proposed rule.

Ms. Oria has determined that some equine dental providers, including micro-businesses operating as equine dental provider practices, who are disciplined by the Board will experience economic cost increases associated with complying with the proposed rule for each year of the first five years that the rule is in effect, due to the costs associated with the Board's disciplinary process and disciplinary fines, but the legal employment and advertising opportunities that come with licensure should outweigh these costs. The Board estimates that there are approximately 30 equine dental provider micro-businesses in Texas. The proposed rules regarding equine dental providers are necessary to implement HB 414, which required that equine dental providers be licensed and regulated by the Board. In HB 414, the Texas Legislature itself set many of the parameters that are creating costs for equine dental providers under the proposed rule revisions including, but not limited to, the requirement that equine dental providers uphold the same standard of care as licensed veterinarians. Thus, the Board determined that there are no legal and feasible alternatives or other less expensive methods of regulating and disciplining licensed equine dental providers than through the Board's established disciplinary methods. The proposed amendments will not cause any increased costs for licensed veterinarians.

Ms. Oria has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be that the public will be able to rely on the training and quality of service from the regulation of licensed equine dental providers, will have a venue and process through which to complain and seek discipline for a licensed equine dental provider who violates the Board's rules, and will be protected through the Board's disciplinary process from equine dental providers who violate the Board's rules.

The Texas Board of Veterinary Medical Examiners invites comments on the proposed amendment from any member of the public. 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) 305-7574, or by e-mail vet.board@tbvme.state.tx.us. Comments will be accepted for 30 days following publication in the Texas Register.

The amendment is proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter; §801.151(c)(1), which states that the Board shall adopt rules to protect the public; and §801.452(c), which states that the Board by rule shall develop a standardized penalty schedule.

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

§575.25.Recommended Schedule of Sanctions.

(a) Class A violations. Licensees considered as presenting imminent peril to the public will be considered Class A violators. In determining whether a violation is a Class A, consideration will be given to the disposition of any previously docketed cases, and to the combination of charges which might involve Class B and/or C violations.

(1) Class A violations may include, but are not limited to:

(A) conviction of a felony, including a felony conviction under the Health and Safety Code, §485.032 (formerly numbered; §485.033) relating to Delivery of an Abusable Volatile Chemical to a Minor, or Chapters 481 relating to Controlled Substances, or Chapter 483 relating to Dangerous Drugs;

(B) gross malpractice with a pattern of acts indicating consistent malpractice, negligence, or incompetence in the practice of veterinary medicine or equine dentistry ;

(C) revocation of a [ ~~veterinary~~ ] license to practice veterinary medicine or equine dentistry in another jurisdiction;

(D) mental incompetence found by a court of competent jurisdiction;

(E) chronic or habitual intoxication or chemical dependency, or addiction to drugs;

(F) issuance of a false certificate relating to the sale for human consumption of animal products;

(G) presentation of dishonest or fraudulent evidence of qualifications or a determination of fraud or deception in the process of examination, or for the purpose of securing a license;

(H) engaging in veterinary practices which are violative of the Rules of Professional Conduct; and/ or

(I) fraudulent issuance of health certificates, vaccination certificates, test charts, or other blank forms used in the practice of veterinary medicine that relate to the presence or absence of animal disease.

(2) In assessing sanctions and/or penalties, consideration shall be given to the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public; the economic harm to property or the environment caused by the violation; history of previous violations; what is necessary to deter future violations; and any other matters that justice may require.

(3) Maximum penalties:

(A) revocation of the license;

(B) a penalty not exceeding $5,000 for each violation per day;

(C) continuing education in a specified field related to the practice of veterinary medicine or equine dentistry that the Board [ ~~board~~ ] deems relevant to the violation(s). The total number of hours mandated are in addition to the number of hours required to renew the [ ~~veterinary~~ ] license;

(D) quarterly reporting certifying compliance with board orders; and/or

(E) Licensee sit for, and pass, the SBE or EDPE .

(b) Class B violations. Involves licensees who either have violated rules and/or statutes, and committed a prior Class C violation; or have violated rules and/or statutes and have not committed a prior violation, but the nature and severity of the violation(s) necessitates a greater penalty than that available for a Class C violation, but does not rise to the level of creating an imminent peril to the public. In determining whether a violation is a Class B, consideration will be given to the disposition of the previously docketed cases, and to the combination of charges which might invoke Class A and/or C violations.

(1) Class B violations may include, but are not limited to:

(A) engaging in dishonest or illegal practices in or connected with the practice of veterinary medicine or equine dentistry ;

(B) engaging in veterinary practices which are violative of the Rules of Professional Conduct;

(C) permitting or allowing another to use his/her license or certificate to practice veterinary medicine or equine dentistry ;

(D) committing fraud in application or reporting of any test of animal disease;

(E) paying or receiving any kickback, rebate, bonus, or other remuneration for treating an animal or for referring a client to another provider of veterinary services or goods;

(F) fraudulent issuance of health certificates, vaccination certificates, test charts, or other blank forms used in the practice of veterinary medicine that relate to the presence or absence of animal disease;

(G) performing or prescribing unnecessary or unauthorized treatment;

(H) ordering prescription drugs or controlled substances for the treatment of an animal without first establishing a valid veterinarian-patient-client relationship;

(I) failure to maintain equipment and business premises in a sanitary condition; and/ or

(J) refusal to admit a representative of the Board [ ~~board~~ ] to inspect the client and patient records and business premises of the licensee during regular business hours.

(2) In assessing sanctions and/or penalties, consideration shall be given to: the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts; the hazard or potential hazard created to the health, safety, or economic welfare of the public; the economic harm to property or the environment caused by the violation; the history of previous violations; what is necessary to deter future violations; and any other matters that justice may require.

(3) Maximum penalties:

(A) one to 10-year license suspension with none, all, or part probated;

(B) a penalty not exceeding $5,000 for each violation per day;

(D) quarterly reporting certifying compliance with board orders; and/or

(E) Licensee sit for, and pass, the SBE or EDPE .

(c) Class C violations. Involve licensees who have violated the rules and/or statutes, but do not have a history of previous violations. Consideration should be given to the nature and severity of the violation(s).

(1) Class C violations may include, but are not limited to, minor violations included in Class A and/or B in which there is no hazard or potential hazard created to the health, safety, or economic welfare of the public and no economic harm to property or to the environment.

(2) In assessing sanctions, consideration should be given to the good or bad faith exhibited by the cited person; evidence that the violation was willful; extent to which the cited individual has cooperated with the investigation; and the extent to which the cited person has mitigated or attempted to mitigate any damage or injury caused.

(3) Maximum penalties:

(A) six months to one-year suspension with the entire period probated;

(B) an administrative penalty not to exceed $500 for each violation per day; and/or

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 3, 2012.

TRD-201200572

Loris Jones

Executive Assistant

Texas Board of Veterinary Medical Examiners

Earliest possible date of adoption: March 18, 2012

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