BILL ANALYSIS �
AB 1000
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Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Richard S. Gordon, Chair
AB 1000 (Wieckowski and Maienschein) - As Amended: April 25,
2013
SUBJECT : Physical therapists: direct access to services:
professional corporations.
SUMMARY : This bill allows patients to directly access physical
therapy services for 45 calendar days or 12 visits, whichever
comes first, after which the patient must get approval through
the physical therapist's plan of care and an in-person
examination by a physician and surgeon or podiatrist, and
expands the types of licensed professionals permitted to work
for a professional corporation, as specified. Specifically,
this bill :
1)Requires a physician and surgeon, podiatrist, or other
referring practitioner who refers a patient to receive
services by a physical therapist (PT) employed by a
professional corporation to comply with existing law regarding
financial arrangements for referrals, and requires the
referring practitioner to provide notice of the following to
the patient, orally and in writing, in a least 14-point type
and signed by the patient:
a) That the patient may seek physical therapy treatment
services from a physical therapy provider of his or her
choice who may not necessarily be employed by the medical
or podiatry corporation; and,
b) If the patient chooses to be treated by an employed PT,
any financial interest the referring practitioner has in
the corporation.
2)Permits a person to initiate physical therapy treatment
directly from a licensed PT if the treatment is within the
scope of practice of PTs and all of the following conditions
are met:
a) If, at any time, the PT has reason to believe that the
patient has signs or symptoms of a condition that requires
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treatment beyond the scope of practice of a PT, or the
patient is not progressing toward documented treatment
goals as demonstrated by objective, measurable or
functional improvement, the PT shall refer the patient to a
physician and surgeon, dentist, podiatrist, or
chiropractor, as appropriate;
b) The PT shall comply with laws relating to his or her
title, as specified, and shall disclose to the patient any
financial interest he or she has in treating the patient
and, if working in a physical therapy corporation, shall
comply with existing law regarding financial arrangements
for referrals, as specified;
c) With the patient's written authorization, the PT shall
notify the patient's physician and surgeon, if any, that
the PT is treating the patient; and,
d) The PT shall not continue treating the patient beyond 45
calendar days or 12 visits, whichever occurs first, without
receiving, from a physician and surgeon or a podiatrist,
and acting within his or her scope of practice, a dated
signature on the PT's plan of care indicating approval.
Approval of the PT's plan of care shall include an
in-person patient examination and evaluation of the
patient's condition and, if indicated, testing by the
physician and surgeon or podiatrist.
3)States that the 45 calendar day or 12 visit conditions do not
apply to a PT when he or she is only providing wellness
physical therapy services to a patient, as specified.
4)Clarifies that this bill does not expand or modify the scope
of practice for PTs, including the prohibition on a physical
therapist diagnosing a disease.
5)States that this bill does not require a health care service
plan or insurer to provide coverage for services rendered to a
patient who directly accessed the services of a PT.
6)Requires a PT to provide the following notice to a person
initiating physical therapy treatment services directly but
before providing those services, orally and in writing, in at
least 14-point type and signed by the patient:
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"Direct Physical Therapy Treatment Services
"You are receiving direct physical therapy treatment services
from an individual who is a physical therapist licensed by the
Physical Therapy Board of California.
"Under California law, you may continue to receive direct
physical therapy treatment services for a period of up to 45
calendar days or 12 visits, whichever occurs first, after
which time a physical therapist may continue providing you
with physical therapy treatment only after receiving, from a
person holding a physician and surgeon's certificate issued by
the Medical Board of California or by the Osteopathic Medical
Board of California, or from a person holding a certificate to
practice podiatric medicine from the California Board of
Podiatric Medicine and acting within his or her scope of
practice, a dated signature on the physical therapist's plan
of care indicating approval of the physical therapist's plan
of care and that an in-person patient examination and
evaluation was conducted by the physician and surgeon or
podiatrist.
"____________________________
Patient's Signature/Date"
7)States that violation of these provisions constitutes
unprofessional conduct.
8)States that existing law which provides for the types of
licensees a professional corporation may employ as
shareholders, officers, directors, or a professional employee,
as specified, does not limit employment by a professional
corporation to only those professions specifically designated.
9)Permits any person licensed under the Business and Professions
Code (BPC), the Chiropractic Act, or the Osteopathic Act to be
employed to render professional services by a professional
corporation, as specified.
10)Makes technical and conforming changes.
11)Makes Legislative findings and declarations.
EXISTING LAW :
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1)Establishes the Physical Therapy Act (Act), which is enforced
by the Physical Therapy Board of California (PTB), to license
and regulate the practice of PTs. (BPC Section 2600 et seq.)
2)Defines physical therapy as the art and science of physical or
corrective rehabilitation or of physical or corrective
treatment of any bodily or mental condition of any person by
the use of the physical, chemical, and other properties of
heat, light, water, electricity, sound, massage, and active,
passive, and resistive exercise, and shall include physical
therapy evaluation, treatment planning, instruction and
consultative services. (BPC 2620)
3)Provides that the practice of physical therapy includes the
promotion and maintenance of physical fitness to enhance the
bodily movement related health and wellness of individuals
through the use of physical therapy interventions. (BPC 2620)
4)Specifies that the use of roentgen rays and radioactive
materials, for diagnostic and therapeutic purposes, and the
use of electricity for surgical purposes, including
cauterization, are not authorized under the term "physical
therapy." (BPC 2620)
5)Indicates that a physical therapy license does not authorize
the diagnosis of disease. (BPC 2620)
6)Provides that an applicant for a physical therapy license must
be a graduate of a professional degree program of an
accredited postsecondary institution/s approved by the PTB,
and must complete academic coursework and clinical internship
in physical therapy. (BPC 2650)
7)Permits a PT to perform tissue penetration for the purpose of
evaluating neuromuscular performance upon specified
authorization of a physician and surgeon, but prohibits the PT
from developing or making diagnostic or prognostic
interpretations from the data obtained. (BPC 2620.5)
8)Establishes the Moscone-Knox Professional Corporation Act
(Moscone-Knox Act) which regulates the formation and operation
of professional corporations, and defines a professional
corporation as a corporation organized under the general
corporation law, as specified, or a corporation that is
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engaged in rendering professional services in a single
profession. (Corporations Code (CORP) Section 13400 et seq.)
9)Specifies in the Moscone-Knox Act that certain licensed
persons may be shareholders, officers, directors or
professional employees of professional corporations controlled
by licensed persons of a different profession so long as the
sum of all shares owned by those certain licensed persons does
not exceed 49% of the total number of shares of the
professional corporation, and so long as the number of those
certain licensed persons owning shares in the professional
corporation does not exceed the number of persons licensed by
the governmental agency regulating the designated professional
corporation. (CORP 13401.5)
10)Permits the payment or receipt of consideration for services
other than the referral of patients which is based on a
percentage of gross revenue or similar type of contractual
arrangement as long as the consideration is commensurate with
the value of the services rendered or with the fair rental
value of any premises or equipment leased or provided by the
recipient to the payer. (BPC 650 (b))
11)Prohibits a professional corporation from forming that may
violate any law or any applicable rules and regulations
relating to fee splitting, kickbacks, or other similar
practices by physicians and surgeons or psychologists,
including, but not limited to BPC 650; and provides that a
violation of any such provision is grounds for the suspension
or revocation of the certificate of registration of the
professional corporation. (CORP 13408.5)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill will allow consumers to have
direct access without physician referral to a PT for treatment
for up to 45 calendar days or 12 visits, whichever comes
first. It also authorizes the creation of a professional
physical therapy corporation, and generally permits any
healing arts licensee to be a shareholder, officer, director,
or professional employee of an authorized professional
corporation. AB 1000 aims to represent the reconciled
interests of certain physician, orthopedic physician, and
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physical therapist groups as they relate to direct access to
physical therapy and employment in professional corporations.
This bill is sponsored by the California Physical Therapy
Association.
2)Author's statement . According to the author, "This bill is
about patient choice, access and affordability. Direct Access
to physical therapists would help streamline and reduce costs
for health care delivery in California. Seniors, low income
individuals and patients with chronic conditions, will be
guaranteed the choice for immediate and cost affective care
under this proposal. In a time of severe physician shortage,
patients with chronic conditions will not be taking up
valuable time of, or incurring the cost of seeing an
additional healthcare provider before beginning treatment.
Additionally, some provisions of this bill are needed to
clarify that licensed allied health professionals may be
employed by a professional corporation."
3)The practice of physical therapy . The Act defines the
practice of physical therapy as "the art and science of
physical or corrective rehabilitation or of physical or
corrective treatment of any bodily or mental condition of any
person by the use of the physical, chemical, and other
properties of heat, light, water, electricity, sound, massage,
and active, passive, and resistive exercise, and shall include
physical therapy evaluation, treatment planning, instruction
and consultative services." Physical therapy also includes
the promotion and maintenance of physical fitness to enhance
the bodily movement related health and wellness. A PT may
evaluate, plan treatment, instruct and consult, but may not
diagnose.
To obtain a California license, a PT applicant must complete
an accredited four-to-six-year college program which includes
studies in basic medical sciences and biology, as well as
clinical experience. The curriculum focuses on the evaluation
and treatment of the heart, lungs, muscles, bones, and the
nervous system. A PT applicant must pass both a national
physical therapy examination and a California examination on
physical therapy laws and regulations to be eligible for
licensure.
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There are currently 26,000 licensed PTs in California.
a) Access to physical therapy in California . A PT may work
with a patient directly to "promote and maintain physical
fitness," but a PT must have a doctor's diagnosis and
referral to "perform tissue penetration for the purpose of
evaluating neuromuscular performance," on a patient, which
is essentially the heart of physical therapy practice.
This interpretation of law is based on a 1965 Attorney
General Opinion.
Medicare covers physical therapy services and requires that
a patient be under the care of a physician. Medicare also
requires that the services be furnished pursuant to a plan
of care, and that the plan be certified and recertified
periodically by a physician (usually every 30 days).
b) Direct access to physical therapy in other states.
According to the Federation of State Physical Therapy
Boards (FSPTB), there are 17 jurisdictions that have
unlimited direct access to physical therapy, 30
jurisdictions with limited direct access and 6
jurisdictions that have no direct access. Kansas is an
example of limited direct access, permitting PTs to
evaluate and treat patients for no more than 30 consecutive
calendar days without a referral to a physician or other
specified health care provider. This bill would make
California a limited direct access state, allowing patients
to visit a PT for 45 days or 12 visits, whichever comes
first, before requiring an in-person examination by a
physician. The rationale for limited direct access is that
any condition serious enough that it cannot be resolved
within 45 days or 12 visits warrants examination and
possible diagnosis by a physician to rule out more serious
problems.
4)Professional corporations . A professional corporation is an
organization made up of individuals of the same trade or
profession. The Moscone-Knox Professional Corporations Act of
1968 authorized the formation of professional corporations to
obtain certain benefits of the corporate form of doing
business, such as limited legal liability. At that time, only
medical, law and dental professional corporations were
envisioned. There are now 15 authorized healing arts
professional corporations. Current law specifies which
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healing arts licensees may be shareholders, officers,
directors or professional employees of professional
corporations controlled by a differing profession so long as
the sum of all shares owned by those licensed persons does not
exceed 49% of the total number of shares of the professional
corporation. For example, a professional medical corporation
may have up to 49% of its shares owned by any of 11 different
healing arts professions (such as registered nurses or
acupuncturists) as long as at least 51% of shares are owned by
licensed physicians.
This bill would authorize the creation of a physical therapist
corporation and allow any person licensed under BPC, the
Chiropractic Act, or the Osteopathic Act to be employed to
render professional services under the 16 authorized types of
professional corporation.
a) Medical corporations' employment of PTs . PTs are not
currently included in the list of healing arts
professionals authorized to be shareholders, officers,
directors or professional employees of medical
corporations. Prior to 2010, PTs worked in medical
corporations under guidance from the Physical Therapy Board
that the designated professions in statute were not
exhaustive, and that therefore PTs could practice within a
professional medical corporation.
However, on September 29, 2010, Legislative Counsel issued
a written opinion that PTs could not work in a medical
corporation because they were not specifically included
among the permissible healing arts licensees under the
Moscone-Knox Act. Legislative Counsel viewed medical
corporations' employment of PTs as related to the ban on
the corporate practice of medicine, which was intended to
protect the public from inappropriate corporate influence
over professional health care decision-making.
The opinion further indicated that since the Act provides
that it is unprofessional conduct to violate, attempt to
violate, aid, abet, or conspire to violate any provisions
of the Act itself, the Moscone-Knox Act, or any related
regulations, physical therapists employed by medical
corporations could be subject to discipline by PTB. In the
same manner, since a medical corporation is not authorized
to employ PTs to provide physical therapy services, a
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medical corporation doing so would be unlawfully engaging
in the practice of physical therapy.
On February 28, 2011, the Department of Consumer Affairs
(DCA) issued an opinion on the same issue and reached the
same conclusion as Legislative Counsel.
SB 543 (Steinberg and Price) of 2012 enacted a stopgap
measure to temporarily allow continued employment of PTs by
medical corporations until a legislative fix could be
attained. SB 543 prohibited PTB, until January 1, 2013,
from disciplining any PT for providing physical therapy
services as a professional employee of a medical
corporation, podiatric medical corporation or chiropractic
corporation. However, no PTs have been disciplined since
January 1, 2013 for such a violation due to lack of PTB
resources.
b) Prohibitions on self-referral . California has banned
healing arts professionals from receiving compensation for
referring patients for health care services since the early
1990s. These provisions were enacted to ensure medical
professionals make judgments about rendering services
uninfluenced by their own financial interests, as well as
to protect consumers from fraud or unnecessary and
excessive health care expenses.
Current law permits the payment or receipt of consideration
for services other than the referral of patients as long as
the consideration is based on a percentage of gross revenue
or similar type of contractual arrangement and is
commensurate with the value of the services rendered. For
example, a physician may own a medical corporation and
employ a PT. The physician may refer patients to that PT
and receive payment for the PT's services as an owner of a
corporation, but the payment must be based on the value of
the PT's care, not for the referral of the patient to the
PT.
This bill reaffirms that all healthcare providers must
adhere to existing law barring compensation for referral,
and requires a referring provider to disclose any financial
relationship he or she may have in making a referral to a
particular PT.
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5)Arguments in support . The California Physical Therapy
Association writes, "Patients with chronic conditions, such as
neck or back pain, or those with recurring injuries, such as
athletes, will benefit from [AB 1000]. Moreover, seniors and
low income individuals will not have to incur extra wait time
and costly co-pays in order to see a physical therapist that
can immediately start a treatment plan and alleviate pain for
the patient."
6)Arguments in opposition . The California Association of
Physician Groups states, "[AB 1000] suggests the support of
fragmented, self-directed care, something that is known to be
expensive and potentially dangerous. The underlying theme of
the Affordable Care Act is to promote coordinated patient care
in order to increase the quality of care."
7)Committee amendments . A technical amendment will be needed to
rectify a drafting error in the most recent round of
amendments:
Amend Section 2620.1 to read: "(b) The conditions in
paragraph (4) of subdivision (a) do not apply to a physical
therapist when he or she is only providing wellness
physical therapy services to a patient as described in
subdivision (a) of Section 2620."
8)Related legislation . AB 1003 (Maienschein) would permit the
creation of a professional physical therapy corporation, and
would permit any person licensed under BPC, the Chiropractic
Act, or the Osteopathic Act to be employed to render
professional services by professional corporations authorized
in the BPC. AB 1003 is currently in the Assembly Business,
Professions and Consumer Protection Committee.
SB 306 (Price) extends until January 1, 2018, the provisions
establishing the State Board of Chiropractic Examiners,
Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board, the Physical Therapy Board of California and
the California Board of Occupational Therapy and extends the
terms of the executive officers of the Physical Therapy Board
of California and the Speech-Language Pathology and Audiology
and Hearing Aid Dispensers Board. SB 306 also subjects the
boards to be reviewed by the appropriate policy committees of
the Legislature. SB 306 is currently in the Senate Business,
Professions, and Economic Development Committee.
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9)Previous legislation . SB 924 (Price, Steinberg, and Walters)
of 2012, would have allowed PTs to treat patients without a
diagnosis from a physician for 30 business days, and
thereafter under specified conditions, and specified who may
be shareholders, officers, directors, or professional
employees of medical corporations, podiatry corporations,
chiropractic corporations, and physical therapy corporations.
SB 924 was held in the Assembly Rules Committee.
AB 783 (Hayashi) of 2011, would have added licensed PTs and
occupational therapists to the list of healing arts
practitioners who may be shareholders, officers, directors or
professional employees of a medical corporation, podiatric
medical corporation, or chiropractic corporation, as
specified. AB 783 was held in Senate Business, Professions
and Economic Development Committee.
AB 721 (Nava) of 2009 would have provided direct access to
services by PTs. AB 721 was held in the Assembly Business and
Professions Committee.
AB 1444 (Emmerson) of 2008 would have revised the definition
of physical therapy and authorized a physical therapist to
initiate treatment of conditions within the scope of practice
of a physical therapist, as specified. AB 1444 was held in
the Assembly Business and Professions Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
The California Physical Therapy Association (sponsor)
671 private individuals
Opposition
California Association of Physician Groups
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301
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