AAOS Bulletin - December 2006

Orthopaedists beware—You could lose control of your practice

Nonphysicians are limiting health care choices in several states

By Bruce Allain, JD, and Susan Koshy, JD

Who should be responsible for decisions concerning a patient’s health care and treatment? You and your informed patient or an elected official, a non-physician professional, a state’s Attorney General, or some other governing body?

The AAOS promotes patient-centered care, where patient care decisions are made between the orthopaedic surgeon, an informed patient (and family) and a coordinated health care team. Increasingly, however, decisions regarding patient care are being legislated, regulated and determined by groups other than the physician and patient. That’s bad news for orthopaedic surgeons and their patients, particularly for patients who require physical therapy as part of their treatment.

No more POPTS?
Many orthopaedic surgeons believe that patient care is improved when they can employ physical therapists and provide physical therapy as part of their medical practices. Physician-owned physical therapy services (POPTS) allow for quicker patient evaluation, facilitate coordinated care and enable changes to therapy based on progress. The result can be improved patient outcomes, reduced medical errors and the timely identification and resolution of problems.

In a growing number of states, however, physicians are being denied the ability to provide in-office physical therapy services to patients. Delaware and South Carolina are two states in which physicians recently lost this privilege. In both cases, the state’s physical therapy practice act was used to prevent physicians from employing physical therapists.

“In 2004, the South Carolina Physical Therapy Association (SCPTA) had the state attorney general reinterpret the Physical Therapy Practice Act to prohibit physicians or their associates from hiring physical therapists,” explains David Mitchell, MD, of Spartanburg, S.C. “It gave the Physical Therapy Board the right to revoke the license of any physical therapist or physical therapist assistant who worked for a physician.

“I was president of the South Carolina Orthopaedic Association (SCOA) at the time, and my practice employed six very scared physical therapists.”

SCOA joined other physician groups in hiring a lobbyist and legal team to enact legislation to reverse the reinterpretation. The AAOS helped by filing a “friend of the court” brief. But the state physical therapy association had a head start, already employing the best legal firm and the most powerful lobbying firm. The physicians lost their lawsuit against the attorney’s general interpretation in 2005, and the state’s Supreme Court denied their appeal in September 2006.

“Our only hope now is to change the law during the next legislative session,” says Dr. Mitchell. “We came close the last time, so we are hopeful that we can succeed.”

A growing threat
While the number of states that prohibit POPTS is small, it is likely to expand in the near future. In a recently published article in the PT Bulletin Online, the American Physical Therapy Association (APTA) announced that it will increase its efforts to oppose physician employment of physical therapists. APTA plans to conduct surveys, create a grant program to fund state legislative strategies, and produce a DVD on the subject that can be used to “educate” others on the issue. This raises the possibility that physicians in all states could lose an important option in caring for their patients.

As part of its strategy, the APTA now refers to physician employment of therapists as “referral for profit.” This gives the impression that a physician who employs a physical therapist does so for personal financial reasons, rather than as part of a patient care partnership.

Launching a counterattack
The AAOS and state orthopaedic societies are working together to protect a patient’s ability to select the best practice setting for his or her treatment. A recent grant to the Tennessee Orthopaedic Society was used to help pass legislation that will safeguard physician employment of physical therapists.

In Alabama, a rule proposed by the Alabama Board of Physical Therapy that would prohibit POPTS was successfully defeated in a legislative committee. In New York, language was removed from legislation that would have ended physician employment of physical therapists.

Although state orthopaedic societies and the AAOS continue to work on this issue, individual physicians also have an important role to play. Orthopaedic surgeons need to assemble data and anecdotal evidence supporting POPTS as a convenient, cost-effective, beneficial option for patient care.

Physicians also need to educate lawmakers and the general public on the importance—and benefits—of allowing physicians to offer therapy services. “SCPTA did everything it could to persuade the courts and legislators of their concern for the public good,” says Dr. Mitchell. “We need to make arguments that are just as persuasive.”

Orthopaedic surgeons and physical therapists aren’t the only ones who need to become more aware about legislative threats to their autonomy. Physicians in other disciplines also need to realize that their right to manage their practices without undue regulatory limitations is continuing to erode.

“Physicians should have the right to operate their practices in a manner that best serves their patients’ needs,” points out Dr. Mitchell. “Physical therapists should be free to seek employment as they choose, and not have their career choices restrained by their professional association or unnecessary government intervention.”

Most importantly, the ability of patients to access the quality medical care of their choice must be protected.

Bruce Allain, JD, is a legislative analyst and Susan Koshy, JD, is the manager of state society and legislative affairs in the AAOS department of government affairs.

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