Updates on:
Non-competes
Xylazine
Prescribing via telehealth
Licensing regulations
There are a few things happening right now that we want to update you on.
FTC Announces Rule Banning Non-competes (but it isn’t final yet)
You might have seen this announcement in the news a few days ago. We asked our legal advisor what it meant for veterinarians.
The Federal Trade Commission (“FTC”) issued a new rule on April 23, 2024, generally banning non-compete agreements in all employment and independent contractor arrangements with for-profit employers. The rule will become effective 120 days after the FTC publishes it in the Federal Register, which could occur in the coming weeks absent court intervention. Business groups, however, have already challenged the FTC’s authority to issue the new rule in a recently filed lawsuit, making it unclear when, if ever, the rule will ultimately become effective.
The rule prohibits for-profit employers, such as animal hospitals, from entering into new non-competes with any employee (including senior executives and licensed professionals, such as veterinarians) or even an independent contractor. Under the rule, for-profit employers will be permitted to continue to enforce their existing non-competes with current and former senior executives, but will not be permitted to enforce their existing non-competes with any other current or former workers, including veterinarians. In addition, the rule, if adopted, will also require for-profit employers to notify their affected current and former workers in every instance where an existing non-compete is no longer enforceable as a result of the rule’s new ban.
Importantly, the new rule will not affect non-compete agreements between current and former workers and not-for-profit organizations, such as animal shelters. This means not-for-profit organizations will continue to be permitted to enter into and enforce non-competes with any current or former workers, including with veterinarians.
The rule includes several significant exceptions, such as by allowing continued use of non-compete agreements between franchisees and franchisors, and permitting non-competition agreements between individuals during the “bona fide sale of a business,” of the individual’s ownership interest in a business entity (with no limits) or of all or substantially all of a business’s operating assets.
There is a strong possibility that the legal challenges to the new rule will delay and even possibly permanently prevent its implementation. We will report on any future developments concerning the new rule and the legal challenges.
Xylazine – potential scheduling
The NY State budget originally included a section that would add Xylazine to the schedule III list. We were successful in getting a veterinary exemption added. But the final budget went through, including none of the proposals for controlled substances. Although there are a couple of bills active in this session, we are not sure that they will move.
Meanwhile, the DEA would like greater legal powers to respond to the humanitarian crisis that has resulted from its illicit use. But it is better if Congress takes action since they can include provisions for veterinary use.
NYSVMS has encouraged many industry groups to write to Senator Schumer to support his xylazine bill, which offers some critical protections for veterinary use. We also work with national groups like AVMA, AABP and AAEP.
Prescribing without an in-person examination
We have reported previously on discussions at the Board of Veterinary Medicine (BVM) about changing the Professional Guidelines to establish the circumstances in which veterinarians could prescribe without an in-person examination.
NYSVMS has set out our concerns about how Direct-to-consumer telehealth companies could lower the effectiveness of veterinary medicine through misdiagnosis and over-prescribing. BVM has invited us to get more involved in their discussions about how to move forward to protect the public from the misuse of telemedicine. It may take a long time before there are any changes to announce.
Removing unnecessary hurdles to licensing – now in effect
We would like to congratulate the Board of Veterinary Medicine for their work to reform a regulation that has created heartache for many graduates of AVMA accredited Colleges of Veterinary Medicine. The previous regulations were written around the standard US model for post-secondary education, and prevented or delayed licensing in NY State for some who had done some of their study overseas and attained the same veterinary education standards as their US educated counterparts.
Last month the new regulations appeared in the Commissioner’s regulations:
To meet the professional education requirement for licensure in this State, the applicant shall present evidence of either:
- a doctoral degree in veterinary medicine from a professional veterinary medical education program registered by the department or accredited by an acceptable accrediting organization; or
- a doctoral degree in veterinary medicine, or the equivalent as determined by the department, and completion of combined prerequisite and professional study that the department determines to be comparable to a registered or accredited program.
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