• The Physical Therapy Profession is in Jeopardy of Disappearing
  • November 24, 2011
  • Law Firm: Law Offices Of David S. Barmak LLC - Princeton Office
  • Court Decisions Undermining the Profession of Physical Therapy

    In 2006, the Law Offices Of David S. Barmak, LLC represented a physical therapist. We brought suit against a business providing physical therapy and owned by a non-licensee. The suit alleged that the non-licensee owner decided to set our client's professional fees based upon making the numbers round out to an even number, not based upon the therapist's sense as to appropriateness for services rendered. There were additional complaints all of which stemmed from the business owner's agenda being in perceived conflict with licensee's professional perspective. Unfortunately the Court didn't address the underlying ownership issue and instead the lawsuit ended prematurely based upon a different issue.

    In 2007, the Kentucky Supreme Court held that an orthopedic surgeon as well as a licensed physical therapist, may provide physical therapy and that the surgeon may represent to others that he is providing physical therapy services. (Surgeon was permitted to use AMA billing codes for "physical therapy evaluation" and "physical therapy reevaluation")

    In 2010 a physical therapy practice sued an orthopedic practice over the employment of physical therapists. The Washington State Supreme Court held that orthopedic surgeons can employ physical therapists.

    In 2011,the New Jersey Society of Independent Physical Therapists sued a non-licensee owner of a business employing a physical therapist for improper corporate structure and fee splitting. Unfortunately these issues were never addressed because the court decided the matter on the limited issue of standing.

    Court Decisions Supporting the Profession of Physical Therapy

    In the early 1990's, a New Jersey Court held that "strengthening and stretching exercises" constitute physical therapy and therefore within the scope and practice of physical therapists, not chiropractors. Subsequent to this decision, the chiropractor practice act today permits chiropractors to provide "rehabilitative exercises among other things" but this is NOT the same as "strengthening and stretching exercises". The ultimate determiner of the meaning behind these words will need to be a court addressing the issues of what is the accurate legal definition of physical therapy and what constitutes physical therapy.

    In 1995 the Pennsylvania Supreme Court held that the term "physical therapy" is NOT a generic term and therefore chiropractors can not claim that they provide physical therapy.

    In 1999, the New York Supreme Court upheld a similar conclusion when it determined that Health South had violated the New York State prohibition against general business corporations practicing physical therapy.

    Prior to 2006, Judge Villanueva in Morris County, NJ held repeatedly that improper incorporation by a professional required a return to the insurance company of all moneys received by the professional; improper fee splitting with a non-licensee constituted fraud.  Judge Villanueva repeatedly upheld the Corporate Practice of Medicine prohibition that general business corporations cannot engage in the practice of medicine or chiropractic.

    Judge Villanueva also repeatedly upheld the requirement that professionals must be established in the corporate structure of a PC or PA under the New Jersey Professional Service Corporation Act.

    In 2006, the South Carolina Supreme Court prohibited a physical therapist from working as an employee of a physician when the physician refers patients to the physical therapist for services.

    In 2006, the Superior Court of New Jersey decided that a physical therapist can not split fees with a non-licensee and that a physical therapy practice if incorporated, must adhere to the Professional Services Corporation Act.

    Conclusion

    There are a handful of court decisions in various states, including New Jersey, that clearly indicate that physical therapy is a profession. There are a few court decisions that undermine this perspective by fraying the edges of the profession. It seems to me that now is the time to push the courts to review and determine clearly the issue of ownership and the definitions needed to define for everyone the exclusive realm of the profession of physical therapy.

    The physical therapy profession has not made much effort to engage in a relationship of mutuality with physicians, chiropractors, business people and even other physical therapy licensees from a position of strength with firm, well defined boundaries. Time does not appear to be on the licensee's side. Erosion is slow and subtle but over a long period of time erosion can have a devastating and irreversible impact.  The courts are the last venue in which to further define physical therapy services, who can provide physical therapy services and who can own a physical therapy practice which provides physical therapy services.   This perspective is supported by the successes, albeit limited, throughout the country, especially in New Jersey.

    So while time may be running short for physical therapists to finally claim full and proper possession of the professional services that they work so hard to provide, the clock has not yet run out. Will physical therapists fight to retain what is already theirs, despite the fact than many physical therapists fail to recognize the fact that they possess it?  Time will tell.