Court dismisses challenge to Texas in-person veterinarian-client-patient relationship requirement

For a third time a federal district court has upheld provisions of the Texas veterinary practice act requiring in-person establishment of a veterinarian-client-patient relationship (VCPR). The most recent ruling has come after repeated challenges from a Texas veterinarian claiming the requirement violates his First Amendment right to free speech.

In his August 15 decision, U.S. District Court Judge Fernando Rodriguez, Jr. wrote that the statutory requirements at the heart of the suit "represent a content-neutral regulation" of speech, and that the Texas Board of Veterinary Medical Examiners could continue to enforce the law.

"We applaud the court's decision in this case to uphold the state's law requiring an in-person examination or medically appropriate and timely visits to the premises to establish a VCPR," AVMA President Dr. Rena Carlson said. "The court recognized Texas' substantial interest in protecting the public and preventing animal health and safety risks, as well preventing the spread of zoonotic diseases. Telemedicine is an important tool to assist veterinarians in delivering care, and the AVMA embraces and promotes its use, but it should only be used after a veterinarian has established a VCPR in person.

"A properly established and maintained VCPR is one of the greatest safeguards we have available to protect animal health, the safety of the food supply, and public health. The AVMA was pleased to work with the TVMA in filing an amicus brief in this case."

The judgement marks the latest development in a decade-long court battle between Dr. Roland S. Hines and the Texas veterinary board, which sanctioned Dr. Hines in 2013 for violating state law for practicing veterinary medicine without appropriately establishing a VCPR, which requires physically examining the animal patient or making timely and medically appropriate visits to the premises where the animal is kept.

After retiring, Dr. Hines operated a website where, in addition to posting articles on pets and pet care, he charged visitors for veterinary advice. Court records show that between 2000 and 2020, Dr. Hines received inquiries from hundreds, and potentially thousands, of people.

Under Texas law, a licensed veterinarian cannot practice veterinary medicine unless a VCPR exists. The establishment of a VCPR requires the veterinarian, among other things, to have "sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal's medical condition."

This element is critical to the case, according to Rodriguez.

"Under state law, a veterinarian can only possess ‘sufficient knowledge of the animal' by either ‘examining the animal; or making medically appropriate and timely visits to the premises on which the animal is kept.' Texas law expressly precludes a veterinarian from establishing the veterinarian-client-patient relationship ‘solely by telephone or electronic means,'" Rodriguez wrote.

The court reviewed several of Dr. Hines's interactions with pet owners, showing where the experts testified that he crossed the line into the practice of veterinary medicine. The court also contrasted those interactions with several emails where Dr. Hines did not practice veterinary medicine. Thus, he was engaged, at least with some owners, in the practice of veterinary medicine.

The Texas VMA and AVMA filed an amicus brief with the court supporting the Texas board's position. "An initial in-person assessment facilitates and informs the veterinarian's diagnosis of an animal patient in ways that cannot be replaced by asking questions of an owner by phone or email, or even examining a pet through photos or video conferencing," the brief states.

Dr. Hines filed his first lawsuit against the Texas Board of Veterinary Medical Examiners in 2013. He argued that by enforcing the VCPR statutes, the state board had violated his constitutional rights—specifically, his First Amendment right to free speech, as well as his Fourteenth Amendment rights to equal protection of the law and to engage in one's chosen occupation without arbitrary and irrational interference.

The court ultimately ruled against Dr. Hines, who appealed to the 5th Circuit Court of Appeals, which also denied his claim.

In 2018, the U.S. Supreme Court issued its decision in National Institute of Family & Life Advocates (NIFLA) v. Becerra, ruling that a state law requiring crisis pregnancy centers to inform women how to obtain an abortion was content-based state "compelled speech," violating the First Amendment. The ruling rejected the idea that "professional speech" is a special category of speech subject to different rules.

Motivated by the NIFLA decision, Dr. Hines filed the most recent lawsuit to re-urge his cause of action under the First Amendment. He argued that this new Supreme Court decision would alter the legal analysis of his claim and that he now presented a valid free speech claim under the First Amendment.

Additionally, Dr. Hines alleged the examination requirement violated his rights under the Equal Protection Clause, on the basis of changes to Texas law that allowed doctors to perform telemedicine without first physically examining human patients, arguing that this change to human telemedicine requirements impacted his case.

The lower court ruled against him at a preliminary stage and, once again, Dr. Hines appealed the decision. The 5th Circuit agreed that the lower court should re-examine the case with the NIFLA v. Becerra ruling in mind but upheld the dismissal of the equal protection claim. However, even when the First Amendment claim was reviewed with this additional lens, the trial court ultimately ruled against him, holding that the VCPR examination requirement is content-neutral and narrowly tailored to meet the significant government interest in public and animal health and safety, public confidence in licensure, maintaining minimum standards of care, and preventing the spread of zoonotic diseases.

Dr. Hines has already filed a notice of an appeal of the decision to the 5th U.S. Circuit Court of Appeals. This will be the third time the case is reviewed by the appellate court.