Supreme Court curtails Ohio licensing board

COLUMBUS, OHIO — He spent his children's college fund on legal fees to ensure Ohio veterinarians are aware of medical licensing board inspections. His $100,000 victory came when the Ohio Supreme Court found that all inspections require a five-day written notice, even those related to investigations.

The court battle for Scott D. Shell, DVM, and Douglas Paroff, DVM — then his associate — raged since 1999, when purchasing records prompted an unannounced licensing board investigation into the use and record keeping of commonly used steroids. Shell welcomed the inspector into the practice because he says he had nothing to hide.

"I was fully cooperative; I felt like I was innocent," Shell says. "I invited him in, and he sat down and had coffee."

Ohio's practice act requires a five-day written notice for inspections and audits, but the licensing board argued that because they were conducting an investigation, it was permitted to inspect aspects of the practice surrounding the investigation without notice.

But the Ohio Supreme Court disagreed, asserting "The five-day-written-notice requirement ... applies to all veterinary medical licensing board inspections of business connected with the practice of veterinary medicine, even inspections related to investigations."

"It's had a huge impact on us already," says Heather Hissom, executive secretary of the Ohio Veterinary Medical Licensing Board. "The Supreme Court says we cannot look around at the same time we're there for an investigation. We can only investigate the actual matters at issue in the complaint."

In 1999, an Ohio investigator requested purchasing records of anabolic steroids from then manufacturer Upjohn Pharmaceuticals. The manufacturer was having a buy-one, get-one-free sale, so Shell, an equine practitioner with a batch of racetrack clients, purchased large quantities of the steroids to capitalize on a special price. The quantity triggered a red flag for regulators, and an investigation ensued. Regulators accused Shell of administering anabolic steroids for nontherapeutic purposes and failing to maintain appropriate medical records for the treated horses.

Subsequent hearings dismissed charges regarding the inappropriate administration of anabolic steroids, but the hearing examiner found that the veterinarians violated the record-keeping requirement in the Ohio Revised Code. The requirement had been changed since Shell acquired his license in Ohio. He was supposed to make a new record for each patient each time he administered a controlled substance, just as small animal practitioners must do.

"The records they would force me to keep would have been impossible, especially on the road or in an emergency setting, unless I wanted to stay up all night," Shell says.

By the time the Ohio high court heard the case, the record-keeping protocols had been reversed.

"My records that weren't any good then are probably just fine now," he says.

"They put me on probation for a year, which meant I would have to turn in 10 or 15 records per month to the board so they could examine them," Shell says.

The punishment would have been part of his permanent record, so he, with his wife's encouragement, decided to fight it.

The Ohio Supreme Court eventually found that the legislature knew what it was doing when it made the distinction between investigations and inspections.

At presstime, the high-court ruling was sent back to the court of origin for review and reversal. A decision was expected in mid September, but if the county court refuses to reverse its decision that found in favor of the licensing board, then the process could start all over again.

Dr. Tom Allison, Shell's attorney until the Supreme Court leg of the case, recommends that all veterinarians should be intimate with the rights and regulations laid out in each state. In Ohio, language is include to make an inspection as convenient as possible.

"Veterinarians have the right to reschedule if they think the inspection will interfere with their business, and of course, they have a right to counsel at any time," Allison says.

Shell says he likely won't offer subsequent inspectors a hot cup of joe when they surprise him next time around. The ordeal has helped him understand his rights defined in the Ohio Revised Code, including the right to counsel.

"I'll be a little more protective next time and just call my attorney," he says.