The VCPR and Telemedicine

Introduction

Today’s consumers, especially those from—or younger than­—the Millennial generation, want the convenience of fast, easily accessible information and they have the same high expectations when it comes to the delivery of health care. Telemedicine is an innovation that has the potential to meet these needs in both human and animal health care, and COVID-19 has brought this medical delivery format to the forefront. Unfortunately, challenges still exist in the United States, both in telemedicine usage and acceptance, with laws not yet meshing with today’s reality.

The Human-Animal Bond

The human-animal bond can be a mutually beneficial relationship, influenced by several behaviors that are vital to the health and well-being of both the owner and pet. The role of veterinarians is to augment the potential of this connection between people and animals by supporting the health and well-being of the animal. Many pet owners want the best for their companions, with pets often considered to be members of the family. Because of that, there can be feelings of anxiety when it becomes challenging to provide fully for pets’ needs.

Technology Innovations

Fortunately, technological innovations have made caring for pets more convenient and accessible than ever in multiple ways. New trends and innovations that first gained a foothold in other sectors, especially those in human medicine, are continually being modified and updated to meet the wants and desires of the multi-billion-dollar global pet industry.

Recent innovations include the creation of a technological ecosystem in which owners have access to reliable pet services. Great examples include BabelBark, which helps connect owners to veterinarians and other services, and Rover, which helps match up dogs to local dog sitters. There are also litter box monitors that track usage, fitness trackers like PitPat and FitBark, which monitor activity levels, and smart food bowls like Obe ProBowl. Meanwhile, interactive technology like CleverPet’s hackerpet can keep pets engaged while owners are gone to help maintain or improve their cognitive health.

As increasing numbers of innovative smart solutions provide convenient and accessible pet care, it is likely that demand and usage of them will also continue to rise.

Disasters and Pandemics

How, though, will animal care be delivered when disaster strikes? Natural disasters and pandemics, such as the current COVID-19 outbreak, pose a huge hurdle as to how the veterinary profession will continue to practice the golden standard of medicine. Fortunately, all states have declared veterinary practice as an essential business that can remain open during the pandemic. But, like most other businesses, veterinary practices have had to adapt. The American Veterinary Medical Association (AVMA) suggests that practices temporarily defer all elective procedures, such as routine annual wellness visits, spays, and neuters, and to use personal protective equipment (PPE.)

Struggles faced by many veterinary practices during this pandemic include staffing issues, lack of PPE, cancellations of numerous appointments, dips in revenue, not being able to pay their bills and salaries, and more.

So, how can the veterinary industry continue serving their clients and patients with as little interruption as possible during current and future crises? Telemedicine.

What is telemedicine?

The Federation of State Medical Boards defines telemedicine as “the practice of medicine using electronic communications, information technology, or other means between a licensee in one location and a patient in another location, with or without an intervening health care provider.”

In veterinary medicine, a license may include primary care veterinarians, specialists, and subspecialists. The information may be used for diagnosis, therapy, follow-up, and/or education, and may include but is not limited to any of the following: patient medical records, medical images, real-time text communication, live two-way audio and video, output data from medical devices, and sound and video files.

Multiple platforms exist in veterinary medicine, which includes ones that can connect primary care veterinarians to clients and primary care veterinarians to specialists/consultants, and can focus on after-hours tele-triage. These may be enterprise solutions or they could be homegrown. Overall, these different platforms can provide improved care in multiple ways that otherwise may not have been available to the client, patient, and veterinarian.

Expected Benefits of Telemedicine

Veterinary telemedicine allows for improved access and convenience to medical care by enabling a client and patient to remain at a remote site. This is crucial in situations like the COVID-19 pandemic in which clients are not allowed to bring their pets in for routine care. It can also aid in breaching the barrier of access to veterinary care to clients who live in remote area, as well as possibly being a more affordable option for clients who otherwise would not seek veterinary care due to financial constrictions.

Telemedicine can also offer more efficient medical evaluation and management. Often times animals do not act the way they do at home when they are being seen by a doctor or technician. Unfortunately, many animals experience white coat syndrome and can be stressed due to the car ride, being in an unfamiliar place, being with strangers, or having had previous poor experiences at a practice.

There are plenty of instances, for example, where animals have been taken to see a veterinarian because of lameness and, by the time the doctor sees the animal, the limping has gone away. Lab results, as another example, can become skewed due to stress felt by the pet. So, why place a patient in situations that are scary or stressful to them when it can be avoided in certain cases?  Thanks to modern technology, there are better ways to manage and evaluate many patients.

In addition, obtaining the expertise of a distant specialist can now be possible with telemedicine, no matter where the client lives in the country. Specialists are not typically as readily accessible as general practitioners and now many clients can take advantage of their knowledge and skills in a patient’s care.

Potential Risks of Telemedicine

As with all innovations, there will undoubtedly be an increase in malpractice with the use of telemedicine. For example, before ultrasounds or radiographs, a doctor could have easily missed a specific diagnosis and that could have been considered an acceptable norm. However, as technology has improved and become more readily available, veterinarians are held to higher standards and thus the risk of malpractice is higher.

In telemedicine, such potential risks could include how the information being transmitted may not be sufficient (e.g., poor resolution of images) to allow for appropriate medical decision making by the veterinarian(s) and consultant(s). Failures of equipment could happen, which could potentially delay medical evaluation and treatment. A breach of privacy of personal medical information could occur if security protocols fail. Plus, a potential lack of access to complete medical records for whatever reason may result in adverse drug interactions or allergic reactions or other judgment errors.

However, the benefits of convenience, efficiency, and easy access for animal health care can far outweigh the potential risks when it comes to the use of telemedicine. When looking at human telemedical care for comparison purposes, a recent Vivify Health survey showed how 83% of consumers are interested in receiving virtual care. Plus, according to the American Hospital Association, 76% of hospitals connect with patients through telehealth and almost every state Medicaid program has some sort of coverage for telehealth services.

The VCPR

Question: What is holding back the veterinary field from jumping with both feet into telemedicine? Answer: the veterinary-client-patient relationship (VCPR) definition. The AVMA currently defines a valid VCPR as one where the following applies:

  • The licensed veterinarian has assumed the responsibility for making medical judgments regarding the health of the patient(s) and the need for medical therapy and has instructed the client on a course of therapy appropriate to the circumstance.
  • There is sufficient knowledge of the patient(s) by the veterinarian to initiate at least a general or preliminary diagnosis of the medical condition(s) of the patient(s).
  • The client has agreed to follow the licensed veterinarian’s recommendations.
  • The licensed veterinarian is readily available for follow up evaluation or has arranged for:
    • Emergency or urgent care coverage, or
    • Continuing care and treatment has been designated by the veterinarian with the prior relationship to a licensed veterinarian who has access to the patient’s medical records and/or who can provide reasonable and appropriate medical care.
  • The veterinarian provides oversight of treatment.
  • Such a relationship can exist only when the veterinarian has performed a timely physical examination of the patient(s) or is personally acquainted with the keeping and care of the patient(s) by virtue of medically appropriate and timely visits to the operation where the patient(s) is(are) kept, or both.
  • Patient records are maintained.

The AVMA also specifically states in Section 5 and commentary of the AVMA Model Veterinary Practice Act that “a veterinarian-client-patient relationship cannot be established solely by telephonic or other electronic means.” A physical exam is necessary in order to establish a VCPR. The U.S Food and Drug Administration (FDA) supports this definition.  Individual states do have the authority to define these specific terms more clearly within the definition of VCPR and, as of May 2020, every jurisdiction, except Alaska, Connecticut, Delaware, and the District of Columbia, has spelled out their requirements for a VCPR.

On the other hand, the American Association of Veterinary State Boards (AAVSR) does not believe a physical exam is necessary in order to determine VCPR. In their opinion a VCPR is established when “both the Veterinarian and Client agree for the Veterinarian to assume responsibility for making medical judgments regarding the health of the animal, the Veterinarian has sufficient knowledge of the animal(s) to initiate at least a general or preliminary diagnosis of the medical condition of the animal(s), and the Veterinarian has provided the client with information for obtaining timely follow up care.”

Challenges with the VCPR

The federal standards for a VCPR were put into place to define when and how a veterinarian “legally” becomes the veterinarian for a particular animal. However, laws often trail innovation, especially during disastrous events, and the VCPR challenges are an ideal illustration of how laws don’t always dovetail with current realities. A study in MDPI, for example, showed that over 90% of cat and dog owners had visited a veterinarian at some time, but that only about 40% of them visited a veterinarian annually. These pet owners, for whatever reason, choose to not go to the veterinarian, which means their pets’ health care can go unattended. COVID-19, meanwhile, adds to the challenge.

Here’s something else to consider. Because 81% of Americans that own cellphones have smartphones, they have access to internet-based information to learn about their pet’s health, and some people are likely use this information to self-diagnose their animal companions. The most accurate source of information and medical treatment is not available to them, though, since veterinarians cannot engage with treating a client’s pet via electronic tools without having done a physical exam according to the current VCPR definition.

So, even though telemedicine is readily available to use, the definition of the VCPR is acting as a barrier instead of a doorway to veterinary care for many pet owners.

The Doctor-Client Relationship in Human Medicine

As of October 2018, all 50 states allow for a physician to establish a relationship with a new patient via telemedicine, though state laws differ in their specifics. A few states, such as Alabama, include some caveats to that general rule, restricting the setting in which a patient must be located in order to establish the doctor-client relationship.

Prior to that, in 2014, physicians voted to approve the following definition of a doctor-client relationship in telemedicine. The relationship can be established in a number of ways, including:

1) A face-to-face examination—an exam using two-way, real-time audio and visual capabilities, like a videoconference—if a face-to-face encounter would be required for the same service in person

2) A consultation with another physician who has an ongoing relationship with the patient

3) Meeting evidence-based telemedicine practice guidelines developed by major medical specialty societies for establishing a patient-physician relationship

 Once the doctor-client relationship is established, physicians can use telemedicine technologies with their patients at their discretion within their licensed state(s).

Current State of the VCPR Amidst Coved-19

The global pandemic has increased the awareness of the use of telemedicine and its challenges. The FDA and state boards have responded by assessing the VCPR, with the FDR reiterating that the VCPR definition cannot solely be met through telemedicine while also loosening the regulations on extra label drug use in animals. Some state boards, such as in Pennsylvania, have softened their stance on the VCPR, with that state deciding that “during the COVID-19 pandemic, there may be instances when your best medical and professional judgment weighs in favor of establishing a VCPR without an in-person physical examination.”

 Other state boards, like in California, have emphasized the importance of the current law with its requirement of a physical exam to establish a VCPR.

Need for Guidance

As telemedicine becomes more customary in veterinary medicine, the need for revised standards and guidelines is evident. During this process, the veterinary field must work through many of the same types of questions and challenges that the human medicine field has needed to deal with. For the veterinary industry, these may include:

  • What is the definition of a VCPR in light of the use of telemedicine?
  • Will state boards still require a veterinarian to be licensed in the state where the patient resides?
  • Can a state board require informed consent forms before a veterinarian can practice telemedicine—and, if so, what should be in these forms?
  • What medical cases can and cannot be managed via telemedicine?
  • What fees and costs are associated with providing telemedicine services?
  • Who is allowed to provide telemedicine services? Is it just the veterinarians or can other qualified staff provide it?
  • How will the client’s privacy and security be maintained?
  • Will the standards of care for telemedicine be the same as those for in-person examinations and treatments? If not, what differences will exist?

The veterinary field can look towards the American Association of Telehealth (ATA) as well as veterinary groups such as the AAVSB, AVMA’s Telehealth Resource Center, the Veterinary Telemedicine Community Facebook Group, and the newly established Veterinary Virtual Care Association (VVCA) for guidance in helping to answer these questions and establishing standards when it comes to the delivery of veterinary telemedicine.

Telemedicine Becoming a Staple of Pet Health Care

For telemedicine to become a staple of pet health care, each state must hold an open and informed debate amongst the veterinarians that are licensed to practice in that state. The veterinarians need to come to a consensus on the issue of telemedicine and whether a physical exam to establish a VCPR should be mandated by law or left to the professional judgment of the attending veterinarian. Once a general agreement is made, the state associations can reach out to their designated state boards to “lobby the legislature to make the applicable changes. This could be as little as authorizing the use of telemedicine and establishing guidelines for providing telemedicine consultations.”

Tips for Veterinarians

Telemedicine will someday become standard in veterinary medicine. It is no long a question of if, but when. Telemedicine is in fact the hot topic in the industry and is frequently being brought up in forums, along with veterinary news and social media outlets, and is being discussed and debated at conferences. Texas A&M College of Veterinary Medicine has even begun a full-time telemedicine position at their teaching hospital and is pioneering the way of incorporating telemedicine into the veterinary students’ curriculums. Not only are future generations of veterinarians being prepped to make telemedicine a part of their daily practice, but so are pet owners.

As human health care technology advances, so will clients’ expectations when it comes to the care of their pets. There is a change in culture happening. As Millennials and Generation Z consumers have become adults, they have embraced the pet-owning and pet-loving lifestyles to a far greater extent than the previous generation. More and more young adults are putting off having children and are getting pets instead. In the American Pet Product Association National Pet Owners Survey of 2019-2020, Baby Boomers account for 32% of pets owned, while households headed by younger cohorts account for 62% of pet ownership.

Millennials are currently the largest consumer group in the world. One can expect this generation to want the convenience of pet care to be at the tip of their fingers, just as easily accessible as ordering food from Grub Hub, booking a ride with Uber, or buying things in One-Click from Amazon. Veterinary medicine therefore needs to be fast, easily accessible, and readily available.

Since this is the wave of the future, it is best that veterinarians prepare for the changes now. Look at it as practicing preventative medicine instead of reactive medicine. Simply put, adapt, or die.

To summarize the future of telemedicine, Joshua Newman, M.D., chief medical officer, Salesforce Healthcare and Life Sciences, said in a statement that “Patients today are choosing their providers, in part, based on how well they use technology to communicate with them and manage their health. Care providers who build deeper patient relationships through care-from-anywhere options, the use of wearables and better communications post-discharge, will be in a strong position to be successful today and into the future.”

 

Lawful Terminations: A How-to Guide

When deciding whether or not to terminate an employee, and weighing the pros and cons, you need to assess the costs and benefits of keeping this employee versus firing him or her. Consider the following:

  • the nature of the behavior or performance issues involved
  • the seriousness of these issues
  • how this employee is affecting other employees or clients
  • how easily you can replace this employee
  • the costs of recruiting, hiring, training and retaining a new employee

If this employee is exposing your practice to significant legal or business risks, then the decision to terminate the employee will be different from one where, perhaps with coaching, the employee could potentially contribute to the company.

If the issues are increasing the workload and responsibility of other employees, then it is important to also consider the ripple effects that the behavior of one employee is having on the entire practice.

This article will review the key considerations when beginning the process of a lawful termination. Start with the question of why you are considering terminating this employee. It is important that you can determine the reason before moving forward with the rest of the process.

It may be tempting to terminate someone’s employment because he or she doesn’t fit well into the company culture, or isn’t especially likeable.  It’s easy to revert to the notion of at-will employment when that’s the case. The principle of at-will employment means that an employee can be fired at any time, for any reason, as long as there is not an illegal reason involved. Some people may conclude that there shouldn’t be a problem with this termination.

An issue can develop if you terminate an employee at will, and then that employee states that an illegal reason was involved. In this case, the employer must prove that this was not the situation.  Unfortunately, wrongful termination claims are not always easy to disprove. They can also harm your practice’s reputation, breed mistrust among other employees, and lead to lawsuits.

Next, we will review the following:

  • reasons for wrongful termination claims
  • the actual conversation about termination
  • information about high-risk terminations

Throughout this article, we will also share strategies to protect your practice.

Reasons for Wrongful Termination Claims

One reason for wrongful termination is employment discrimination. It can include discrimination based on race, color, religion, sex or national origin. An employer also cannot discriminate against an employee because of their disability, age or pregnancy. These are all illegal reasons to fire someone. You also can’t terminate an employee as a form of retaliation. 

An employer has the legal obligation to honor employment contracts, union or non-union, including termination clauses. Not doing so is considered breach of contract. There can also be an implied breach of contract, when a company implies, either in writing or verbally, that employment is protected.

This is not intended to be a complete list of potential wrongful termination claims. Instead, it can be used to show the flaws in simply firing someone, at will. There is a more graceful way to go through the process, and  when followed, it should prevent the employee from being surprised that he or she is getting fired. Therefore, the employer is better protected against claims of wrongful termination.

Poor Performance/Behavior Over Time

It’s important to create and carefully follow a disciplinary policy for your practice. It may consist of rules such as providing an employee who has demonstrated a substandard performance with a verbal warning the first time, a written warning the second, and probation or termination on the third. In order to have an effective disciplinary policy, though, you’ll also need to have clear and consistent policies about employee behavior and performance so that your employees clearly know the practice’s expectations. The policies must be consistently enforced, as well.

When a policy is broken, you should follow your progressive disciplinary procedures in a timely way, and in a way in which the severity of consequences increases if an employee doesn’t correct the behavior. In your disciplinary meetings with that employee, you can then share what policies were broken, why this is problematic, and the consequences.

Document every time that you speak to a particular employee about the issue (such as lateness or gossiping), doing so directly after the meeting and listing the following:

  • date of the meeting
  • specific behaviors discussed
  • policy broken
  • consequence for this behavior
  • consequences if this happens again
  • employee’s responses
  • date of follow-up meeting with the employee

It is recommended that you have another manager at disciplinary meetings. This allows one person from the practice to conduct the conversation with the employee, and the other to take notes and serve as a witness. Be sure to have the employee sign relevant disciplinary documents. Following this procedure gives your employee a chance to improve, while also protecting you, as an employer, from wrongful termination claims or lawsuits.

Keep in mind that each time a disciplinary procedure occurs with an employee, the documents that you create may ultimately end up in court. Be sure to professionally list all pertinent details. Avoid judging or interpreting an employee’s behavior; for example, do not comment that while George says he’s late because of traffic, the real issue is that he’s lazy. Stick to the facts.

If your employee isn’t breaking policies, but also isn’t meeting expectations, you can create a performance improvement plan (PIP). This allows you to share goals and checkpoints, while also offering concrete next steps and support. Be sure to have the employee sign the PIP. Keep this documentation, whether disciplinary or PIP, confidential and safely stored.

One-Time Incident

Although documenting behavior or performance issues over time is best, sometimes it isn’t possible. For example, if an employee steals money, becomes violent at work, or brings illegal drugs to the workplace, then the rule that is broken is so severe that the employee needs to be fired immediately. In that case, what’s important is that you respond to any future situations of this severity at a comparable level of discipline.

Conversation about Termination

If the decision to fire a particular employee has been made, then the next issue to consider is how to have the conversation with him or her. If you’ve provided that employee with verbal and written warnings according to your company’s disciplinary policy, then you have increased your protection. Another option is to consult with your practice attorney to make sure that the termination is solid. This will prepare you in case the employee decides to pursue action against the practice.

Once you’re ready to hold the meeting, be timely about making it happen. However, take into account if that employee has something significant happening that day that could make your timing inappropriate.

It can help to have a termination agenda to keep the meeting on track and provide topics to be covered. The agenda should also include items to be returned to the employee and a reminder to get a confirmation of the person’s current address so a final paycheck can be mailed. Having an agenda can also help to guide all parties involved through what’s likely to be an emotionally-charged and stressful meeting, and help to ensure that you cover all necessary items.

Be sure that the location of the meeting is somewhere private. Then, be direct and clear without being harsh. Explain to the employee that after meeting with that employee to discuss behaviors, including the issuance of verbal and written warnings, the decision was made to separate employment that day. Be transparent and make sure you state that the decision is not negotiable. If the employee tries to debate the decision, don’t engage or try to justify yourself, and avoid saying anything that could be construed as a threat.

Keep the meeting short, lasting no longer than 10 to 15 minutes. The greater the length of the meeting, the more potential that something could be said that could expose the practice to a lawsuit. Close the meeting by thanking the employee for contributions made and extend to him or her your best wishes for the future.

An important topic to discuss is the specifics about the physical separation from the workplace. Should the employee, for example, take his or her belongings now? Or do you plan to meet him or her after hours to take out belongings when other employees aren’t at work? In some cases, the employee may have missed too much work, which led to the termination; in that case, you may want to focus on avoiding a humiliating situation for the person. If the reason for termination is something such as embezzlement, then your main focus would be to have the employee leave the workplace as soon as possible. If the ex-employee has property of someone else’s at work, or vice versa, arrangements must be made to transfer belongings.

Be prepared to answer questions that might arise. You can’t predict what they will be, but a common question is whether you will provide references for that person. Regardless of your response, make sure to protect your company while also treating the terminated employee with respect.

Prepare to provide any relevant information about the employee such as benefits, unused vacation time, or any severance agreement. Summarize all relevant information in a termination letter. This dated letter should state that the employee has been terminated, along with a brief description of why and any other pertinent details.

Afterwards, let other employees know about the termination without discussing any confidential information or making negative comments about the former employee. Be straightforward, sharing information the other employees need to know, reassuring them that the company isn’t eliminating roles. Acknowledge that, in the short term, other employees may need to help to manage that person’s workload.

High-Risk Terminations

These are terminations where employees are likely to sue the employer in connection with the termination. Some situations in which this is more likely to happen include the following:

  • employee is a member of a legally protected class
  • employee is a difficult one
  • employee has a relative who is an attorney
  • employee is surprised by the termination

As far as the first example, federal law prohibits discrimination on the basis of age (over 40), race, color, religion, sex, national origin or disability. In addition, individual states may have laws that are more stringent. When terminating the employment of someone in a protected class, the employer may be vulnerable to anti-discrimination claims for any statements made prior to, during or even after the employee’s tenure. Examples of these statements are as follows:

  • I know it must be hard to balance your job responsibilities with the new baby.
  • Most 50-year-olds would have trouble meeting the physical demands of this job.

Comments such as those are commonly part of a casual conversation with no discriminatory intent, but could add credence to a wrongful termination claim.

Other employees are difficult: argumentative and/or obstinate. They may refuse to take responsibility for their behavior or performance, becoming defensive and blaming others. Employers may be reluctant to fire this type of employee, fearing confrontation or retaliation. The practice can effectively be held hostage to this type of employee and, when fired, the employee may respond with a lawsuit.

When employees have relatives who are attorneys, it may make it easier for them to sue. The relative may even make the suggestion, and if legal services are offered to the disgruntled employee at a reduced fee, or even for free, there are fewer barriers to suing. Finally, surprised employees may be so devastated that they legally challenge the termination. These situations highlight the importance of carefully creating and following policies as described.

Conclusion

The termination process is almost always uncomfortable, carrying with it a varying degree of legal risk for your practice. Your goal is to make the process as amicable as possible while continuing to minimize risk along the way. The recommendations in this article won’t cover every situation but should provide broad guidelines that you can tailor to your unique circumstances. It is recommended to consult with an employment attorney experienced in the laws for your state.

Read more on the WMPB website here!