The state of the VCPR (veterinarian-client-patient relationship)

The advent of telemedicine has brought a new focus to the veterinarian-client-patient relationship and its diverse definitions and interpretations.

WRITTEN BY MARK CUSHING, JD AND CHARLOTTE LACROIX, DVM, JD IN AUGUST 2018

Two terms rarely, if ever, were mentioned together in veterinary meetings or publications prior to January 2016: telemedicine and the VCPR. What changed in 2016 was the North American Veterinary Community’s launch of the Veterinary Innovation Council and the American Veterinary Medical Association’s national working group on telemedicine.

Since then, the veterinarian-client-patient relationship (VCPR) has become a hot topic as veterinarians debate whether to follow the lead of 48 states on the human medicine side and allow for digital creation of a VCPR. This debate has provoked passion, heated arguments and a newfound interest in the legislative construct we call the VCPR.

Why do we use the phrase “legislative construct”? Because the term VCPR was created by state legislators as part of definitions included in state veterinary practice acts, or by state boards in a few instances, and it was adopted by Congress to establish Food and Drug Administration guidelines for feed directives and extralabel use of prescription drugs.

This article has one goal: to analyze and clarify the VCPR so that advocates on all sides of the telemedicine debate, as well as practitioners everywhere, know what we are talking about. If you have a question about the VCPR, then our hope is that this article answers it. If the article doesn’t succeed, please email us and we’ll keep trying.

A Little Background

Forty-six states provide a definition of the VCPR, and Michigan’s is under review. The District of Columbia and three states — Alaska, Connecticut and Delaware — do not refer to the VCPR in their veterinary practice acts or veterinary medical board rules. State legislatures adopted this language either at the request of state or national veterinary medical associations or by the observation of practice acts adopted in other states.

On the surface, the rationale for legislation establishing the VCPR was to:

• Clarify that a veterinary medical board could pursue discipline against a veterinarian regarding his or her handling of an animal only if the veterinarian had an established relationship with the animal.
• Instruct veterinarians as to the terms of engagement with a new client and animal.

Creation of the VCPR was not driven by legislators acting independently but rather at the behest of organized veterinary medicine. The precise conditions for creating a working relationship between pet owners or producers and veterinarians were not topics of keen interest, and ranchers, farmers and pet owners were not rubbing their hands anxiously trying to determine if they had a state-approved “official” relationship with their veterinarian. But when states considered veterinary practice acts, all but four jurisdictions decided to establish some framework or foundation for deciding what a licensed veterinarian can and cannot do. And this foundation included a definition of when and how a veterinarian “legally” becomes the veterinarian for a particular animal. Hence, the VCPR.

Veterinarians are not required to report to their state veterinary medical board when they’ve established a VCPR with a particular animal owner, and state veterinary medical boards do not have investigators whose job it is to monitor whether veterinarians properly initiate a VCPR.

For decades, the topic of a VCPR rarely was mentioned in state veterinary medical board or state and national VMA meetings. Frankly, the VCPR was something of an academic topic, although it was a baseline determination in state board actions against a veterinarian for negligence or some level of misconduct. There has been no evidence that Alaska, Connecticut, Delaware or the District of Columbia have lower standards of care or more disciplinary issues because they do not define the VCPR in laws or regulations.

What’s New

That all changed in 2016 with the debate about veterinary telemedicine. Why did telemedicine prompt these discussions? One reason: human medicine migrated from 50 states opposing the concept of a doctor-client relationship being established through digital (telemedicine) means to 48 states approving this development. Only Alabama and Arkansas still object.

Once veterinarians began looking at telemedicine, it was inevitable that conversations turned to lessons learned from human medicine. While human medicine continues to work through a host of issues related to the use of digital tools to deliver care, no telemedicine topic provoked more discussion among veterinarians than whether doctors may start a professional relationship with a client through digital communication without an in-person visit. Forty-eight states now permit it to happen in human medicine and 47 states forbid it for veterinarians, so veterinarians naturally are addressing the question.

How does the VCPR work in different states? We must start with the definitions used by state legislatures across the country, so bear with us as we lay out different versions in use. In the case of states grouped together, their language is nearly identical to what is summarized below.

Alabama

A relationship when the veterinarian has assumed responsibility for making medical judgments regarding the health of the animal or animals and the need for medical treatment and is created by actual examination by the veterinarian of the animal or a representative segment of a consignment or herd.

Arizona, Arkansas, California, Georgia, Idaho, Indiana, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin, Wyoming

The veterinarian has sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the medical condition of the animal. This means the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal by virtue of an examination of the animal or by medically appropriate and timely visits to the premises where the animal is kept.

Colorado

The veterinarian should have sufficient knowledge of the animal to understand its current health and render at least a preliminary diagnosis. This would require that the veterinarian is personally acquainted with the animal (herd, flock, litter or large group) either through office or home visits.

Florida

The documented veterinarian-client-patient relationship is defined as a veterinarian’s record of a client’s animal which documents that the veterinarian has seen the animal in a professional capacity within a period of 12 months or less.

Hawaii

The veterinarian has performed a face-to-face history and physical examination of the patient that is appropriate to the specialty training and experience of the physician or the designated member of the physician’s health care team, made a diagnosis and formulated a therapeutic plan, or personally treated a specific injury or condition.

Mississippi, Texas, Utah, Washington

The veterinarian has sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the medical condition. This means the veterinarian has recently seen and is personally acquainted with the keeping and care of the animal by virtue of an examination of the animal or by medically appropriate and timely visits to the premises where the animal is kept. A veterinarian-client-patient relationship cannot be established solely by telephonic or other electronic means.

Pennsylvania

Under the veterinarian’s care means the veterinarian or one of the veterinarian’s licensed associates has examined the animal or has made medically appropriate and timely visits to the premises where the animal is kept.

Virginia

A bona fide practitioner-patient relationship means that the practitioner shall (i) ensure that a medical or drug history is obtained; (ii) provide information to the patient about the benefits and risks of the drug being prescribed; (iii) perform or have performed an appropriate examination of the patient, either physically or by the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically; except for medical emergencies, the examination of the patient shall have been performed by the practitioner himself, within the group in which he practices, or by a consulting practitioner prior to issuing a prescription; and (iv) initiate additional interventions and follow-up care, if necessary, especially if a prescribed drug may have serious side effects.

Analyzing the Language

So, what does all this mean? Forty-seven states use some version of:

• “actual examination”
• “recently seen and is personally acquainted”
• “has seen … in a professional capacity … within 12 months”
• “face-to-face history and physical examination”
• “has examined the animal”

These all sound similar, give or take a word or phrase. While all but the “face-to-face” definition of Hawaii could be construed to permit a live, real-time video examination, none of these states would accept a purely digital encounter as sufficient. And four states — Missouri, Texas, Utah and Washington — expressly forbid creation of the VCPR through electronic or telephonic means. Only Virginia appears to allow for a digital VCPR but, to our knowledge, this definition has never been tested in a Virginia court or by the Virginia Board of Veterinary Medicine.

The open question in most states (and resolved definitively only in a few) is how “recently” the veterinarian must have examined the animal. For example, a California drug prescription may not last for more than one year, meaning a new examination is required before the animal continues usage beyond a year. Is there still a VCPR in any of these states, meaning can you treat or diagnose over the telephone or via texts if you haven’t seen the dog or cat in three, five or 10 years? This is a difficult question, and remember that it will not come up unless someone files a complaint with the veterinary medical board. The odds of this are slim at best, but do not assume that a court will agree that a VCPR exists for the life of the pet based upon a single examination.

A companion issue is whether an examination by one veterinarian in a practice transfers to another. Common practice says yes, and veterinary medical boards are not seeing complaints to the contrary. This means that Doctors 2 or 3 may work with the pet owner over the telephone regarding a treatment plan and compliance even though the VCPR technically resides only with Doctor 1.

Human medicine has allowed for digital creation of the doctor-client relationship through one of two paths:

• Relying on the judgment of the doctor as to whether he or she has acquired sufficient information to assume responsibility for a medical judgment, treatment or diagnosis.
• With requirements such as client appearance in a medical facility during a digital encounter, client execution of a written consent to a telemedicine encounter, or presence of a paraprofessional from the doctor’s practice with the patient during the telemedicine encounter.

The Federal Government’s Role

Practitioners must bear in mind that the FDA entered the VCPR discussion with a requirement related to feed directives and extralabel use of drugs. A VCPR must be in place in both of these circumstances, which requires a veterinarian to have recently seen and be personally acquainted with the animal via physical examination.

The argument could be made that states may modify “physical examination” to include real-time examinations through digital or electronic communications, but this surely would be challenged. However, once a majority of states adopts a version of a digital VCPR, then the odds increase substantially that Congress and the FDA would yield to the profession — as federal agencies and Congress have done in human health care — and conform the FDA requirements to current practice as it evolves.

Proposed Changes

What are the differences between a traditional VCPR and the position recommended by the Veterinary Innovation Council? The council board published “7 Guiding Principles for Telehealth.”These included a modification of the VCPR as follows: “The VCPR should be able to be established through: (1) physical examination or (2) visit to the patient’s premises or (3) electronic means based upon precedents established in human medicine.”

The board adopted this position to help veterinary practices by:

• Lowering the barriers of access to veterinary care.
• Driving more patients to veterinary practices.
• Providing care to underserved communities.
• Allowing veterinarians to compete with non-veterinarians.

What alternatives are available for consideration by the veterinary profession? Veterinarians, state legislatures and boards have many options to consider:

1. Maintain the status quo in all but four jurisdictions and insist on a physical, in-person examination in order for the doctor-client-patient relationship to commence.
2. Allow for a digital VCPR as a valid alternative to an in-person examination through some form of electronic means, which could include a live video examination of the animal.
3. Allow for a digital VCPR (video or not) but limit drug prescriptions to when the veterinarian has examined the animal in person. (Time frame to be determined.)
4. Allow for a digital VCPR (video or not) but require written consent from the animal owner.
5. Allow for a digital VCPR (video or not) but require a veterinary nurse to be present with the animal at the time of the digital encounter.

What steps could be taken to examine alternatives for a digital VCPR? State legislatures will not consider amendments to veterinary practice act definitions, such as the VCPR, unless task forces or working groups are formed and meet in their state to explore the alternatives.

The first step for any reform is to launch a task force or working group with key stakeholders and work with the American Association of Veterinary State Boards.