This case, based on an investigation by the Texas State Board of Veterinary Medical Examiners (“TBVME”) into Dr. Hines’ digital provision of veterinary medicine, without the required initiation of a veterinarian-client-patient relationship (“VCPR”) established by an in person examination, dates back to 2012. The Board found that Dr. Hines had violated the Texas Veterinary Practice Act by providing “advice to dog, cat and exotic animal pet owners” for a fee, via Dr. Hines’ website or by email without establishing an in-person VCPR.
“In 2013, Hines filed suit against the Board members in the United States District Court for the Southern District of Texas.” Hines v. Quillivan, No. 19-40605 (Fifth Cir. Dec. 2. 2020). “He argued that Texas’s physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The defendants filed a Rule 12(b)(6) motion to dismiss, which the district court granted in part.” Id. (citing Hines v. Alldredge, No. 1:13-CV-56, 2014 WL 11320417, at *8 (S.D. Tex. Feb. 11, 2014)). “On appeal, though, this court held that all of Hines’s claims failed to state a claim.” Id.
Dr. Hines filed another suit in the Southern District of Texas on October 2, 2018 based on changes to Texas’s telemedicine law, and based on another Supreme Court case abrogating the professional-speech doctrine, which formed the basis in Dr. Hines first appeal (“Hines 1”). In the recent lawsuit which was also dismissed, Dr. Hines brought another equal protection claim and renewed this First Amendment claims. The complex legal argument will be discussed in a future blog, but upon further review of some of the facts, I wanted to share an interesting observation.
Many state boards of veterinary medicine have amended their requirements regarding telemedicine during the COVID pandemic, including the TBVME, which has issued the following guidance on its website:
The Board has jurisdiction over all veterinary medicine offered or provided to clients and patients located within the state of Texas.
. . .
The veterinarian must hold an active Texas license, even if they are licensed and located in another jurisdiction. Telemedicine Guidance (emphasis added).
Without discussing whether Dr. Hines has a valid First Amendment professional-speech which has been remanded to the district court for further proceedings, it is not included in the record whether Dr. Hines offered advice via website or email to clients in or outside of the State of Texas.
If outside the State, I would argue that the TBVME does not have jurisdiction (although those other states would). It is not clear whether jurisdiction was ever raised in these cases, and based on the Agreed Order 2012-98 Ronald S. Hines, D.V.M. appears to have consented to and waived his right to any jurisdictional challenged (which could potentially be challenged further).
It may be interesting to explore the disparate laws governing telemedicine in veterinary medicine and how that may impact the outcome of this and similar cases.