Scope-of-practice tiff tries to limit physical therapy (the words, not the deed)

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Nov. 13, 2006.

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When Kentucky orthopedic surgeon Ronald Dubin, MD, received an administrative subpoena from the Kentucky Board of Physical Therapy seeking billing records to determine the number of times he had used the two CPT codes associated with physical therapy, he eventually and reluctantly complied.

When the board went a step further, subpoenaing specific patient records, he refused. That's how he wound up in court, fighting over whether he could use the codes when billing for services that a licensed physical therapist did not provide.

In May, a judge in the Commonwealth of Kentucky Franklin Circuit Court, Division 1, ruled in Dr. Dubin's favor, refusing to grant a permanent injunction which the Kentucky Board of Physical Therapy sought to forbid Dr. Dubin from using the codes. The board has appealed the decision.

At issue is how the Kentucky law that defines and regulates the practice of medicine interacts with the law that defines and regulates the practice of physical therapy.

The statutes define the practice of allopathic or osteopathic medicine as "the diagnosis, treatment or correction of any and all human conditions, ailments, diseases, injuries or infirmities by any and all means, methods, devices or instrumentalities."

According to court documents, the Kentucky Board of Physical Therapy argued that the law that defines and regulates physical therapy limits who can use the term physical therapy and prevents Dr. Dubin from using CPT codes that use that language.

The court disagreed with the physical therapists' interpretation, finding that the law is not intended to "impede a physician's ability to freely treat patients." Franklin Circuit Judge Roger L. Crittenden also ruled that the purpose of the Kentucky Board of Physical Therapy's law is to "prevent a person from holding themselves out to the public as a licensed physical therapist, which Dr. Dubin's use of the CPT codes poses no threat of doing."

The Kentucky Board of Medical Licensure also weighed in at the Kentucky Medical Assn.'s request.

The medical association asked the medical licensure board to step in because it believed the physical therapy board was overreaching the law's intent, taking a statute that narrowly applied to physical therapists and broadening it to include physicians, said Louisville, Ky., attorney Mike Cronan, of Stites and Harbison, who was outside counsel for the KMA on this issue. The medical association, he said, did not believe the state Legislature intended to exclude physicians from using the term physical therapy.

In its opinion, the Kentucky Board of Medical Licensure agreed.

The board said that when a physician determines that physical therapy is medically appropriate, it is a "means, method or instrumentality" as defined in the Kentucky law that regulates the practice of medicine. The board opinion went on to say that when laws governing the practice of medicine are read in conjunction with laws governing physical therapy, it is "clear that the General Assembly has authorized both licensed physicians and licensed physical therapists to provide the treatment commonly known as physical therapy to their patients as part of their professional acts. By their respective licenses, both groups are equally entitled to provide such treatments."

The Kentucky Board of Physical Therapy, which did not comment beyond court documents, does not contest Dr. Dubin's right to perform physical therapy, just his right to call it that.

In its appeal, the board argues that the law applying to physical therapy allows other licensed health care practitioners to practice physical therapy but not to use that term when describing it. It also says physicians should not use physical therapy codes in billing. In an affidavit filed along with its appellate brief, the board lists several CPT codes that could be used for billing physical therapy but don't use the words physical therapy.

"Only those practice aspects of those health care professions are exempt," the brief says. "This does not govern the title protections, but governs the substantive practice of other, related health professions."

The appeal also argues that the circuit court judge erred in saying that the only purpose of its statutory title protection in the term physical therapy is to prevent a person from holding themselves out to the public as a licensed physical therapist.

"Title protection is not necessarily aimed at the protection of the individual practitioner, such as a physician," the brief argues. "Rather, title protection serves the broader public purpose of protection of the public."

But in its opinion, the medical licensure board addressed the name protection issue by rejecting the Kentucky Board of Physical Therapy's contention that only licensed physical therapists can use "physical therapy." The medical board said that physicians can use the term.

The medical licensure board also said that a licensed physician can bill for physical therapy as long as the treatment is authorized by a specific contract with a third-party payer.

A question of scope?

Dr. Dubin argues that the debate about billing camouflages the real goal of the board of physical therapists -- to protect its scope of practice. And he takes issue with the fact that a state regulatory agency with no authority to regulate him came after him to protect that scope. The Kentucky Board of Medical Licensure interviewed him early on in this three-year dispute and declined to pursue an investigation.

"This is a huge issue when it comes to the practice of medicine," Dr. Dubin said. "Our scope of practice is being eroded very carefully."

Dr. Dubin is considering filing a lawsuit against the Kentucky Board of Physical Therapy to recover nearly $60,000 in legal expenses. And he has not ruled out a class-action lawsuit against the board if he can find more physicians who have faced the same issue. He's using open records act laws to look for them.

In the meantime, it's up to the Kentucky Court of Appeals to sort through all of the opinions and arguments to try to figure out exactly who the state Legislature intended to be able to use the words physical therapy.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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