• Act 38 Does Not Affect a Chiropractor's Statutory Right to Delegate Certain Services
  • October 31, 2008 | Authors: Kristin M. McCormish; Beth Anne Jackson
  • Law Firm: Thorp Reed & Armstrong, LLP - Pittsburgh Office
  • Many commentators have offered opinions with respect to whether a recent amendment to Pennsylvania’s Physical Therapy Practice Act (the “PTPA”) impacts adversely the ability of a Doctor of Chiropractic (“DC”) to delegate massage or rehabilitative services to an unlicensed Chiropractic Assistant (“CA”). In a 2008 editorial entitled “New Challenges to Delegation/Objective Analysis to the Impact of Act 38 to Delegation of Massage and Rehab by DCs,” Michael D. Miscoe attempts to justify his opinion that the amendment to the PTPA may be construed as prohibiting a DC from delegating massage or rehabilitative services to an unlicensed CA. Mr. Miscoe’s opinion in this regard is contradicted by numerous authors and has served only to cause anxiety among the Commonwealth’s DCs. This Communiqué is intended to provide yet another contrary view to Mr. Miscoe’s opinion in an attempt to quell some of that anxiety.

    The amendment to the PTPA at issue states, “An individual may engage in the nontreatment-specific administration of baths, massage and exercise.” Mr. Miscoe suggests that this provision may be construed as prohibiting DCs from delegating massage or rehabilitative exercise to CAs. However, Section 601 of the Chiropractic Practice Act (the “CPA”), entitled “Supportive personnel,” expressly permits DCs to utilize the assistance of an unlicensed CA so long as the DC provides direct, on-premises supervision and so long as the DC does not delegate any activity that requires the knowledge of a licensed DC or that requires formal education or training in the practice of chiropractic.

    In support of his position, Mr. Miscoe first asserts that DCs can be regulated by the PTPA, relying on the Pennsylvania Supreme Court decision in Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs v. State Board of Physical Therapy, 728 A.2d 340 (Pa. 1999). In making this assertion, Mr. Miscoe fails to recognize that the doctors of chiropractic at issue in that decision were advertising that they performed physical therapy services. The PTPA would similarly apply to any person not licensed to perform physical therapy services because it is the PTPA that regulates the provision of physical therapy services. The fact that the medical care providers in the case cited by Mr. Miscoe happened to be doctors of chiropractic does not mean that the PTPA therefore applies to doctors of chiropractic. The PTPA would prohibit a car mechanic from advertising that he performs physical therapy services; this does not mean that car mechanics are regulated by the PTPA.

    As has been recognized by others discussing Act 38’s lack of effect on delegation by DCs (see, for example, memorandum from David R. Rice of the Pennsylvania House of Representatives Legal Staff, to State Representative, Honorable Merle H. Phillips, dated September 30, 2008), the provision at issue is not a new provision in the PTPA. To the contrary, before the passage of Act 38, the PTPA stated, at Section 4(b), “The provisions of this act are not intended to limit the activities of persons legitimately engaged in the nontherapeutic administration of baths, massage, and normal exercise.” Also significant, the PTPA expressly states that “nothing in this section shall ... limit a chiropractor’s authority to practice chiropractic or to bill for such practice.” 63 P.S. § 1304. This provision was recently cited by Thomas A. Blackburn, Assistant Counsel to the State Board of Chiropractic, in an October 7, 2008 letter to Gene G. Veno of the Pennsylvania Chiropractic Association, in support of his determination that Act 38 did not amend the CPA.

    Further, Act 38 neither expressly nor impliedly repealed section 601 of the CPA. There is no question that Act 38 does not contain language expressly repealing Section 601 of the CPA. Courts do not favor a finding of repeals by implication and such a repeal will not be found “unless there be an irreconcilable conflict between statutes embracing the same subject matter.” Kelly v. City of Philadelphia, 115 A.2d 238, 244 (Pa. 1955). Act 38 and Section 601 do not address the same subject matter, nor do they irreconcilably conflict. Therefore, no basis exists for a conclusion that Act 38 repeals Section 601.

    Notwithstanding any position that may be taken by Mr. Miscoe, insurers or others, Pennsylvania’s DCs should not be unduly concerned that Act 38, in any substantive or meaningful way, changes the right and ability of DCs to delegate to their CAs in the same lawful manner as prior to the effective date of Act 38.