Calif. plan puts veterinarians in strict control of animal rehab
James pup rehab
Karen James photo
After knee surgery known as tibial plate leveling osteotomy, this standard poodle's recovery included walking a water treadmill, guided by a rehabilitation veterinarian at the teaching hospital at University of California, Davis, School of Veterinary Medicine.
California regulators are inching, seemingly inexorably, toward establishing rules for animal physical rehabilitation that put the practice squarely under veterinary control.
Following a public hearing this month that was requested and heavily attended by opponents of the proposed rules, the California Veterinary Medical Board indicated it had no plans to shift course. The opposition, led by the Animal Physical Therapy Coalition, said it is not giving up the fight.
The conflict comes down to a matter of expertise: Veterinarians know animal anatomy, physiology and behavior, but not necessarily physical therapy tools and techniques. Physical therapists know the treatment approach but lack expertise in animal health and behavior. Meanwhile, the field of animal rehabilitation has been growing around the country for the past 20 years, and state licensing boards are playing catchup.
Animal physical rehabilitation is the practice of treating animals after injury, surgery or illness, or for chronic pain. Treatments are drawn from physical therapy principles used in human practice, and may include manual therapy, exercise, laser therapy, hydrotherapy and therapeutic ultrasound.
In California, neither the veterinary medicine nor physical therapy practice act addresses animal physical rehabilitation (APR) or animal physical therapy. Within that void, a number of animal physical therapy practices exist, run by physical therapists, veterinarians and in some cases physical therapists, veterinarians and veterinary technicians working together under one roof.
Rules proposed by the CVMB would effectively outlaw practices that do not involve a veterinarian on the premises by restricting the practice to "veterinarians with an established veterinarian-client-patient relationship; registered veterinary technicians working under the degree of supervision determined by the veterinarian; and veterinary assistants working under direct supervision of the veterinarian."
Physical therapists would be permitted to work with animals in the role of unlicensed veterinary assistants.
If adopted, these rules would make California the sixth state to prohibit physical therapists from providing APR without a veterinarian on the premises, according to CVMB meeting notes.
Opponents of these regulations contend they will put practices out of business and drive up costs for others, greatly reducing the number of animal physical therapists in California, shrinking consumer choice and harming practitioners' livelihoods.
Long road toward regulation
A conflict two decades in the making
California has been wrestling for at least nine years with how to handle APR. According to its timeline, the CVMB began discussing the issue in 2011. In 2015, it approved language, which it withdrew a month later, after policy and legal issues were raised. Among complaints were concerns that the board was "attempting to limit business competition and protect the profession's financial interests, not to further its consumer protection mandate," according to a summary prepared by the board.
The Legislature directed the board to create a task force comprised of veterinarians, registered veterinary technicians, animal rehabilitation and related animal industry professionals, consumers and legislative representatives to make recommendations to the board.
The Animal Rehabilitation Task Force, as it was called, ended up recommending that the state allow trained physical therapists to perform APR under the direct or indirect supervision of a veterinarian and that the CVMB and the Physical Therapy Board of California work collaboratively to establish minimum standards for physical therapists to practice on animals.
The board rejected the task force proposal, saying that the recommended actions exceeded the board's legal purview. It recently reiterated that it "does not have statutory authority to create a new license type or certificate for physical therapists that potentially would establish educational, experience, and safety standards …" In October 2017, the board approved alternative language that constitutes the current proposed rule.
Meanwhile, the Animal Physical Therapy Coalition, comprised of physical therapists, veterinarians, RVT's and consumers, tried to sidestep the board. It pushed for a legislative cure in the form of the Animal Rehabilitation Act of 2018 (AB 3013). The amended bill would have created an advanced certificate in animal physical rehabilitation in the state's veterinary medicine practice act and allowed qualified physical therapists to operate under indirect supervision, but on their own premises, after a referral from a veterinarian had been made. It would have provided a path for qualified physical therapists to register for an APR premise permit, to allow for board inspections, and allowed the two boards to work together to regulate the field.
The CVMB opposed the bill, and argued it would have significant fiscal impact because it mandated the board to provide accreditation services, inspections and license physical rehabilitation premises. Bill supporters have disputed this claim. The California Veterinary Medical Association and the California Registered Veterinary Technician Association also opposed the bill. It died in the Appropriations Committee.
In early 2019, the CVMB submitted the proposed language to the California Department of Consumer Affairs for initial review. That process took about one year. The rules were published in March, when a 45-day public comment period commenced.
A hearing on the proposal — delayed and then held virtually due to the COVID-19 pandemic — was convened on Aug. 13 in response to a written request by Karen Atlas, a licensed physical therapist who owns a canine rehabilitation practice in Santa Barbara. Atlas served on the task force and is president of the California Association of Animal Physical Therapists and the Animal Physical Therapy Coalition.
The veterinary board hearing attracted attention from both supporters and opponents of the proposed rule, with opponents in greater number: Twenty-one spoke and 146 submitted written comments against, compared with 13 who spoke and 38 who sent comments in favor. Opponents also submitted a petition with more than 4,000 signatures in support of the task-force approach already rejected by the board.
The majority of supporters were veterinarians and registered veterinary technicians, many specializing in animal rehabilitation. They argued that only veterinarians and registered veterinary technicians are adequately educated and trained to ensure the safety and health of animals receiving rehabilitation treatment. They also argued that the regulation is needed to provide recourse for consumers.
Dr. Erin Troy, who said she was one of the first veterinarians in California to practice APR, summarized the sentiments of many proponents who spoke during the hearing.
"APR is safest when practiced with a veterinarian on-site," she said. "This has never been disputed."
The opposition was comprised mostly of physical therapists, many of whom work with animals in California or other states. They argued that animal physical therapists have successfully collaborated with veterinarians under an indirect supervision model in states including California for more than a decade without harming animals.
Several veterinarians also spoke in opposition. They praised the skills of physical therapists and their contribution to veterinary medicine, and complained that the proposed rules would negatively affect how they practice medicine.
Dr. Marissa Greenberg, a veterinarian in Southern California, encouraged the board to give pet owners more choices and leave the decision about the level of supervision up to the veterinarians. She also stressed there aren't enough options in the state.
"I myself drove two hours each direction in order to have my own dog receive physical therapy because the choices are already so limited," she said.
Letters and comments from pet owners echoed calls for more choice to better serve rural areas and support competition.
There is no comprehensive count on the number of rehabilitation practices operating with and without veterinarians. A search for therapist on the website of the Canine Rehabilitation Institute, which offers certification in rehabilitation and acupuncture for dogs, yields 54 rehabilitation practices with veterinarians and 10 with physical therapists only.
The CVMB contends that its rules will finally give physical therapists a legal avenue to work with animals as veterinary assistants. Without this change, the board contends that animal physical therapists working on their own are practicing veterinary medicine without a license.
Atlas calls this provision unrealistic for physical therapists, whom she describes as the co-founders and creators of this specialty. "To suggest that these licensed and trained professionals be relegated to the level of an untrained person off the street is nonsensical," Atlas told the VIN News Service. "It does not make sense to subject them to only work in a hierarchal model when an interprofessional collaborative model has been proven safe, effective, and in the best interest of all involved."
After the hearing, the board approved a series of responses to public comments, effectively advancing the proposed rules with no changes. As part of the process, the board is required to respond to all substantive comments. It will continue to review responses at a meeting in October. Once the responses are completed, the board submits a "rulemaking file" to the state Department of Consumer Affairs and other agencies for final approval.
Not necessarily the final chapter
Atlas told the VIN News last week that the battle isn't over.
"Should the Board decide to continue with their inadequate regulatory efforts despite massive public opposition, we will have no choice but to continue to fight on behalf of the consumers, animals, and all the professionals involved who wish to inter-professionally collaborate in the specialty field of animal physical therapy/rehabilitation," she said in an email.
Atlas did not specify what her next steps would be. However, in written comments and testimony, opponents laid the groundwork for possible legal challenges.
In a letter to the board, Steven Simas of Simas and Associates, a Sacramento-based law firm representing CAAPT and APTC, outlined what he called "the legal defects and deficiencies in this regulation and process."
Simas maintains that because physical therapy and rehabilitation are not included in the practice act, the addition of animal physical rehabilitation language unlawfully enlarges the scope of veterinary practice. That change, he wrote, can be accomplished only through legislative action.
The board has argued that its proposed language falls under the following sections of the Business and Professions Code:
- Under current statute, the practice of veterinary medicine includes diagnosing, prescribing, or administering a drug, medicine, appliance, application, or treatment of whatever nature [the board's emphasis] for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals.
- Only licensed veterinarians can practice veterinary medicine.
- An individual can administer a drug, medicine, appliance, application, or treatment of whatever nature at the direction of and under the direct supervision of a licensed veterinarian.
"The Board's proposed APR regulation would authorize non-veterinarians to perform APR under the supervision of a veterinarian," CVMB wrote in a statement provided to the VIN News Service by a spokesperson from the Department of Consumer Affairs. "The Board's proposed regulation does not go beyond what is already prohibited by statute."
Opponents also described the proposed regulations as a restraint of trade. They said the new rules create a veterinary monopoly.
Atlas told the board it was in the "crosshairs" of antitrust laws, comparing the situation to N. Carolina Board of Dental Examiners vs. FTC 135.
In the case, the North Carolina Board of Dental Examiners ran afoul of the Federal Trade Commission in the early 2000s, when it tried to put non-dentists out of the teeth-whitening business by accusing them of practicing dentistry without a license.
Licensed dentists maintained that these procedures put patients at risk of injury to the mouth. Lay practitioners argued that requiring a professional license to perform less-invasive procedures restricts trade and drives up prices.
The dental board argued that as a state agency, it was immune from antitrust law. The U.S. Supreme Court rejected that argument in 2015, saying the examiners did not qualify for immunity since a controlling number were "active market participants" in the occupation they regulated.
The dental examiners had to discontinue the practice of sending cease-and-desist letters to teeth-whitening services.
CVMB member Dr. Christina Bradbury, speaking after the hearing, rejected the charge that the board is motivated by preserving business for veterinarians.
"There is this whole notion that we are here to protect the veterinarians and that this is all a conspiracy to maintain their ability to make more money, and that it's a monopoly," she said. "I'm stunned by it because the majority of the people that are talking are the ones that are actually concerned about losing their own money… We are not here to protect veterinarians. We are here to protect the public and the animals."