What gives veterinary boards the right?

Getty ImagesOne of the nifty benefits of attending law school is that the experience helps fill the gaps left by the average high school and college curriculum in the area of civics. Our form of democracy is complicated! The way laws are created, enforced and interpreted in the real world is a heck of a lot different from what we all heard about in grade school. And who heard anything about state veterinary boards or licensing authorities in grade school?

I'm reminded of how little we're taught about practical civics whenever a veterinarian contacts my office with a problem relating to a state veterinary board or licensing authority. In these instances I find myself explaining a number of very important though subtle details about how the professional regulatory and oversight system works. Many doctors are surprised to learn how differently this arm of government operates from how we generally think about our constitutional legal system.

Therefore, I decided I would offer something of a primer on administrative law generally, and veterinary licensing and disciplinary regulation specifically.

Delegated powers and enabling legislation (or, “What gives veterinary boards the right?”)

“Delegated powers” means that all the power to govern the people resides with the states unless it is granted under constitutional authority to the United States. One of the powers that is not delegated to the United States is regulation of the so-called “learned professions,“ like engineering, pharmacy and veterinary medicine. Professions need to be regulated to protect the public from posers and sloppy practitioners, and responsibility for that is a state function-it is not the duty of the federal government.

In our democracy, at both the federal and state levels, governments turn over an enormous quantity of their day-to-day duties and responsibilities to other agencies, boards and sub-bureaucracies using special laws known as “enabling statutes.” These are laws that empower other groups of people (theoretically people more familiar with the intricacies of specific areas and possessing more training in those areas) to handle the nitty-gritty of a specific legally regulated realm. It is a result of enabling statutes that medical boards, dental boards, architecture boards and veterinary boards exist, are funded and possess their authority.

So why is this important?

Enabling legislation, while indispensable and an integral part of American jurisprudence, effectively collapses the walls between the three branches of government. Here's an example: If the education department in your state decides that veterinarians must take 20 hours of continuing education per year in order to maintain their licenses, then that is the law. It has been legislated. If that same department establishes a veterinary disciplinary board to monitor, among other things, the adequacy of each practitioner's CE compliance, that board is a quasi-judicial authority. It can and will judge veterinarians. And if the decision of that board is that a veterinarian's CE is not sufficient in quantity or quality, it can fine or impose penalties against that veterinarian's right to practice. And the sentence shall be thusly carried out.

The realities of administrative agency culture (yes, they have an agenda)

Administrative agencies, with all their regulation-writing, evidence-weighing and penalty-issuing authority in tow, are composed of people and a chain of command. As such, boards and departments each have their own culture and set their own priorities; the culture in these agencies morphs over time. For example, in the mid-1990s, New York state eliminated the two-day practical licensing examination for veterinarians that had existed seemingly forever. It was expensive. Some felt it was overly subjective. Whatever the reasons, this particular bureaucracy imposed its will.  With the stroke of a pen, the test was gone.

In other states, one veterinary board may focus on enforcing a high standard of care among practitioners while later in a decade the quality and cleanliness of veterinary facilities are a predominant concern. Administrative agencies, boards and departments possess enormous latitude in carrying out their mandate. Generally, they make a concerted effort to try to use that latitude fairly and with restraint in order to further the public good.

Practical impact for veterinarians (understand the game)

Most important is to remember an important reality: Administrative agencies are not legislatures and they are not courts. They often are legally permitted to exercise their authority under a much different set of guidelines than police departments, courts and legislatures. Evidence rules are usually substantially different in administrative or board hearings than in civil or criminal courts. Appeals based on many technicalities are doomed to fail, and objections made on technical grounds may result more in annoying a board's fact finders or judge than in strengthening a party's case.

Furthermore, appealing the decisions of an administrative board decision can be difficult. Often the legal standard that must be met in order to overturn a board ruling on appeal can be tough to satisfy. Therefore, here are three pieces of advice:

1. Think twice about answering a veterinary board complaint or summons without consulting a qualified and experienced attorney who is conversant in professional disciplinary matters.

2. Even if your employer or partners won't pay for it, obtain veterinary license defense coverage in addition to your general malpractice insurance.

3. When speaking to anyone even remotely associated with an administrative agency, remain calm, deferential and respectful. Behaving in a disagreeable manner is virtually always counterproductive. 

Dr. Christopher Allen is president of Associates in Veterinary Law PC, which provides legal and consulting services to veterinarians. Call (607) 754-1510 or e-mail info@veterinarylaw.com.