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Free speech case could shake up veterinary telemedicine

Revived lawsuit calls restrictions on remote care unconstitutional

December 30, 2020 (published) | December 30, 2020 (revised)
By Jennifer Fiala

Hines
Photo courtesy of Dr. Ronald Hines
Dr. Ronald Hines, 77, provided consultations to pet owners through his website 2ndchance.info for 10 years before regulators shut down the online practice.

Dr. Ronald Hines says he never envisioned being a part of any lawsuit, let alone an eight-year free speech saga that could influence how veterinary telemedicine is regulated in the United States.

But today, Hines' experience is the subject of a court case with the potential to significantly alter veterinary practice. In coming weeks, lawyers will gather to schedule proceedings in round two of Hines' case against members of the Texas Board of Veterinary Medical Examiners. The basis for his lawsuit, green-lighted this month by the Fifth Circuit U.S. Court of Appeals, dates to 2012, when Hines alleged that regulators infringed upon his First Amendment rights by ordering him to stop giving medical advice online. The state veterinary board suspended his license for one year and assessed a $500 fine.

Hines had been consulting with pet owners via phone and his website, often free of charge or for a $58 fee, for more than a decade when regulators shuttered his online practice because he flouted state rules requiring that he first physically examine the patients in person. Hines counters that the restriction stifles his right to speak freely as a professional.

Should Hines' claim hold up in court, the outcome could have broad implications for the country's disparate laws concerning veterinary telemedicine, and alter the balance between the First Amendment and government regulations. Like Texas, many states require veterinarians to examine patients in person before treating them remotely, finding that a veterinary-client-patient-relationship (VCPR) — the foundation for all care — cannot be established electronically. Violations are criminal offenses.

Judge Hilda G. Tagle in U.S. District Court for the Southern District of Texas, Brownsville Division, likely won't consider the merits of Hines' suit until fall, according to attorneys close to the case.

Hines, who now cares for injured wildlife, waits in eager anticipation.

"I don't like a lot of bureaucracy between me and what I like to do," the 77-year-old veterinarian recently told the VIN News Service. "Knowing there's another chance to change the law … well, that's exciting. I've been very surprised by all of this."

Taking on Texas 

Hines' lawsuit against Texas regulators is the second First Amendment challenge by the veterinarian, who is represented by the Institute for Justice, a libertarian public interest law firm.

His first case, filed in 2013, was rejected by the U.S. Court of Appeals for the Fifth Circuit, which ruled that Hines' professional veterinary advice was not a form of protected speech but instead akin to occupational conduct, much like surgery. The U.S. Supreme Court declined to hear an appeal in 2015

But elements of Hines' free speech argument were revived in June 2018, when the U.S. Supreme Court ruled in National Institute of Family & Life Advocates v. Becerra that First Amendment protections do apply to professional speech. The case, commonly referred to as NIFLA, challenged a California law that forces pro-life centers to notify women about low-cost abortion services.

In its 5-4 majority opinion, the high court determined that the First Amendment protects the speech of professionals, including those who must obtain a license to practice.

With that, the Institute for Justice refiled Hines' case. "Based on the outcome-determinative change in free-speech law established by NIFLA, Dr. Hines now brings this second free-speech lawsuit challenging the state board's continuing suppression of his individualized veterinary advice — a fully protected form of speech," the new lawsuit states. 

Earlier this month, the Fifth Circuit agreed, reversing a lower court ruling that occupational speech is not protected by the First Amendment and sending the case back to the trial court where it originated in 2013.

"Our next step is to go back to the trial court and have the evidence evaluated under the First Amendment," said Jeff Rowes, senior attorney with the Institute for Justice. "Now the burden is on Texas to prove why, if they're going to restrict a veterinarian's speech under prescribed rules for telemedicine, that its blanket prohibition isn't in violation of the First Amendment."

The Texas Attorney General's Office has yet to file a response. Brittany Sharkey, general counsel for the Texas veterinary board, declined to comment, owing to the litigation's ongoing status.

Raphael Moore, general counsel of the Veterinary Information Network, an online community for the profession and parent of the VIN News Service, points out that constitutional rights are not unfettered; a court may find the government has correctly balanced the interest in freedom of speech against the interest in protecting animal welfare, for instance.

"The government regulates free speech all the time," he said. "They tell veterinarians what to say when they write prescriptions, what literature to provide. The regulation of free speech — that's completely defensible."

Rowes anticipates a battle from the state.

"Texas isn't spending all of this money to keep Ron Hines from talking," he said. "They're concerned that this is an attack on their ability to regulate veterinarians and all other occupations."

Deregulation a double standard?

Texas, like other states, permits physicians to consult with patients without first examining them in person. A key argument that veterinary medicine should be handled differently is that animal patients can't tell their doctors how they feel. The same could be said in pediatric medicine but even in pediatrics, regulators have found that a parent's description of symptoms, combined with a visual examination, can be enough to establish a doctor-patient relationship remotely.

So the notion that remote care is riskier for animals has drawn criticism.

Advocates for relaxing rules governing veterinary telemedicine contend that the profession is evolving beyond brick-and-mortar practices, and regulations should change to foster advancements in remote care. The American Association of Veterinary State Boards, a national organization for state regulators, has publicly shared that perspective since 2018, when the group revised its model practice act with telehealth guidance that allows for VCPRs to be established remotely.

That guidance is being tested as jurisdictions around the world temporarily relax rules to allow remote prescribing and care during the COVID-19 pandemic, without a physical examination. Oregon, a state that before the pandemic had considered relaxing VCPR rules regarding telemedicine but ultimately decided against it, is among them. 

"[Regulators] have indicated that once we get through the pandemic, they will revert back to the telemedicine rule that was adopted," said Glenn Kolb, executive director of the Oregon Veterinary Medical Association. 

The mandate for an in-person exam to establish a VCPR has the unwavering support of one of the most influential organizations in the profession, the American Veterinary Medical Association.

"We believe that 'traditional standards of care' require a physical examination of a companion animal patient, or familiarity with the animals and site in case of herd health situations, in order to establish the VCPR," AVMA opined in a 2018 letter to the AAVSB. The AVMA's model practice act specifies that establishing a VCPR requires a face-to-face visit.

Asked by VIN News to comment on the Hines case, AVMA officials said they're closely following all legal developments and conveyed continued support for regulations that make a hands-on physical exam or, in cases involving herd health, timely visits to where animals are kept, the foundation for establishing a VCPR.

"We believe these provisions are in the best interest of the public, our patients and the profession, and that they support the use of telemedicine in a way that has the most potential to advance access to care and simultaneously maintain the quality of that care," reads an AVMA statement to VIN News.

Such restrictions are shortsighted, Hines asserts, considering that in other countries, including the Canadian province of Ontario, veterinarians are free to engage in telemedicine, no in-person exam required. 

"There's always going to be a lot of things that are not suitable for internet consult — a lot of things," he said. "But veterinarians are smart, and this is common sense. Yes, there are limitations to telemedicine. But if we don't change our laws, what's going to happen is that veterinarians from outside our country will start counseling patients here.

"And at that point," he continued, "I'm not sure our regulators will be able to do much to stop it." 


VIN News Service commentaries are opinion pieces presenting insights, personal experiences and/or perspectives on topical issues by members of the veterinary community. To submit a commentary for consideration, email news@vin.com.



Information and opinions expressed in letters to the editor are those of the author and are independent of the VIN News Service. Letters may be edited for style. We do not verify their content for accuracy.



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