Civil rights suit target authority of veterinary board

MINNEAPOLIS — The business of veterinary medicine operates like a cartel, misusing its regulatory power to strangle competition.

That's how attorneys challenging Minnesota's veterinary practice act characterize the state regulatory board's ban on lay dentists floating equine teeth.

At presstime, a public interest litigations firm filed a civil rights complaint against the Minnesota Board of Veterinary Medicine (MBVM). It alleges the livelihood of plaintiff and lay dentist Christopher Johnson has been violated by unlawful regulations that bar him from earning a living. While specific restitution was not requested, the lawsuit seeks declaratory and injunctive relief against the defendants, namely the state attorney general and individual MBVM board members.

A ruling in the plaintiff's favor could invite scrutiny of DVM regulations for other modalities such as veterinary physical therapy and chiropractic medicine, experts say.

MBVM Executive Director Dr. John King is quick to refute all claims, noting: "Communicable diseases to be spread via floats, and there have been horses injured by non-veterinarians."

Yet the lawsuit signifies more than one man's quest to float teeth. At its core it raises the question: Is MBVM's charge to protect public health and safety being realized by largely limiting equine dentistry to DVMs? Veterinary students rarely learn teeth-floating techniques in school and such dentistry questions seldom appear on the National American Veterinary Licensing Examination (NAVLE). Considering the lack of required education on the topic, what makes an on-the-job trained lay dentist less qualified than most veterinarians? asks Lee McGrath, Johnson's attorney and executive director of the Institute of Justice, Minnesota Chapter.

"What we're going to argue is that this law doesn't protect public health, which is the essence of what regulatory laws must do," he says. "There must be that connection, and right now, there's no relationship between being a veterinary student, being tested and going out and floating teeth."

Without a link between education and public protection, professional authorities are merely using regulations to choke competition from other sectors, McGrath says, adding, "Every board, whether it's cosmetologists, doctors or transportation authorities, always uses the guise and the pre-tense that this is for consumer protection, but it's clear that this is for the protection of the profits of veterinarians."

Nothing new

While King contends such a lawsuit is "very unusual," attorney Greg Dennis, a legal watchdog in veterinary medicine, is less surprised, citing parallel cases dating back to World War I. "What they've done this time is they've thrown the kitchen sink in with the hope that something might hit," he says.

It's not often such lawsuits are so expansive, Dennis adds, but a Nebraska case offers veterinary medicine's closest example of such a constitutionality challenge. In 1995, the state won an injunction against a lay equine dentist, who appealed, calling the licensing statutes unconstitutional. The case went to the Nebraska Supreme Court, and justices found in favor of the state. With regard to the constitutionality argument, justices noted licensing statutes failed to infringe on the lay dentist's rights to practice his business. They also tied state licensing requirements to legitimate state interests: "Licensing a person to ensure quality and complete proficient dental care of animals was a rational means to legitimate state purpose of protecting animal owners in the state, as well as animals themselves," the ruling states.

Bolstering the case

Yet allowances for lay dentists occur in a handful of states. Litigator McGrath points to the recent passage of a Florida law exempting teeth floaters from the veterinary practice act, signed by the governor in June, as well as a grassroots campaign that derailed efforts in Virginia to classify the occupation as veterinary medicine. Texas, Connecticut, Illinois, Maryland and Vermont also excuse floaters from regulation, Institute of Justice documents state.

Minnesota law provides a loophole for teeth floaters as well, although Johnson and his attorney call it "absurd." Based on a 2005 legislative compromise between the veterinary medical board and a state senator backing Johnson's father, a longtime teeth floater, Minnesota now restricts entry into the occupation to licensed veterinarians, lay practitioners grandfathered into the business and those with a certificate for passing a horse teeth-floating examination from the International Association of Equine Dentistry (IAED).

Headquartered in Dallas, IAED holds no classes or examinations in Minnesota. After completing coursework, certification requires candidates to work with an IAED member for nine months and float the teeth of 250 horses under supervision — a practice that's illegal in the state.

"It's a catch 22; I must break the law to get licensed," Johnson says. "It's an unrealistic restriction. Veterinarians specializing in birds can legally go float a horse's teeth, but they don't have any experience. I come from three generations of teeth floaters, yet I'd face jail and fines. That makes no sense to me."

Holding steadfast

That means little to King, who maintains that the definition of teeth floating "falls clearly within the scope and practice of veterinary medicine." With roughly 155,000 horses, Minnesota ranks ninth in the nation for equine numbers. That translates to a lot of consumers and animals to protect.

"In most state's practice acts, you can't float teeth unless you're a veterinarian. Some states enforce it more than others," he says. "Here in Minnesota, our restrictions offer the public accountability — and not from unlicensed dentists trying to practice veterinary medicine."