BILL ANALYSIS �
SB 924
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 924 (Price, Steinberg and Walters) - As Amended: June 18,
2012
SENATE VOTE : 36-0
SUBJECT : Physical therapists: direct access to services:
professional corporations.
SUMMARY : Allows physical therapists (PTs) to treat patients
without a diagnosis from a physician for 30 business days, and
thereafter under specified conditions, and specifies who may be
shareholders, officers, directors, or professional employees of
medical corporations, podiatry corporations and physical therapy
corporations. Specifically, this bill :
1)Allows PTs to treat patients without a diagnosis from a
physician, provided the treatment is within the scope of
practice of PTs, as specified, 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
treatment beyond the scope of practice of a PT, the PT
shall refer the patient to a person holding a physician and
surgeon's certificate issued by the Medical Board of
California (MBC) or by the Osteopathic Medical Board of
California (OMBC) or to a person licensed to practice
dentistry, podiatric medicine, or chiropractic;
b) The PT complies with existing law relating to unearned
rebates, refunds and discounts;
c) With the patient's written authorization, the PT shall
notify the patient's primary physician and surgeon, if any,
that the PT is treating the patient;
d) The PT shall not continue treating that patient beyond
30 business days or 12 visits, whichever occurs first,
without receiving, from a person holding a physician and
surgeon's certificate from the MBC or the OMBC, or from a
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person holding a certificate to practice podiatric medicine
from the California Board of Podiatric Medicine (BPM) and
acting within his or her scope of practice, a dated
signature on the PT's plan of care indicating approval of
the PT's plan of care; and,
e) Approval of the PT's plan of care shall include an
appropriate patient examination by the person holding a
physician and surgeon's certificate from the MBC or the
OMBC or by the person holding a certificate to practice
podiatric medicine from the BPM and acting within his or
her scope of practice.
2)Provides that the above conditions do not apply to a PT when
providing evaluation or wellness physical therapy services to
a patient, as specified.
3)States that this bill shall be not construed to expand or
modify the scope of practice for PTs, as specified, including
the prohibition on a PT diagnosing a disease.
4)States that this bill shall not be construed to require a
health care service plan, insurer, workers compensation
insurance plan or any other person or entity, including, but
not limited to, a state program or state employer, to provide
coverage for direct access to treatment by a PT.
5)Prohibits, when a person initiates direct physical therapy
services, a PT from performing physical therapy treatment
services without first providing a specified written notice,
orally and in writing, on one page, in at least 14-point type,
and obtaining a patient signature on the notice.
6)Adds licensed PTs and licensed occupational therapists to the
list of healing arts practitioners who may be shareholders,
officers, directors, or professional employees of medical
corporations and podiatry corporations
7)Provides that the following healing arts licensees may be
shareholders, officers, directors, or professional employees
of a physical therapy corporation: licensed physicians and
surgeons, licensed doctors of podiatric medicine, licensed
acupuncturists, naturopathic doctors, licensed occupational
therapists, licensed speech-language pathologists, licensed
audiologists, registered nurses, licensed psychologists, and
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licensed physician assistants.
8)Requires a medical corporation, podiatry corporation or
physical therapy corporation to disclose to its patients,
orally and in writing, when initiating any physical therapy
treatment services, 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
corporation, podiatry corporation, or physical therapy
corporation.
9)Provides that the disclosure requirement described above does
not apply to any medical corporation that contracts with a
health care service plan with a license issued pursuant to the
Knox-Keene Health Care Service Plan Act of 1975 if the
licensed health care service plan is also exempt from federal
taxation pursuant to Section 501(c)(3) of the Internal Revenue
Code.
EXISTING LAW :
1)Establishes the Physical Therapy Act (PT Act), which is
enforced by the Physical Therapy Board of California (PT
Board), to license and regulate the practice of PTs.
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. 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. 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." Provides that a physical therapy license
does not authorize the diagnosis of disease.
3)Provides that an applicant for a physical therapy license must
be a graduate of a professional degree program of an
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accredited postsecondary institution/s approved by the PT
Board, and must complete academic coursework and clinical
internship in physical therapy.
4)Provides that the words "diagnose" or "diagnosis" include any
undertaking by any method, device, or procedure whatsoever,
and whether gratuitous or not, to ascertain or establish
whether a person is suffering from any physical or mental
disorder. Such terms shall also include the taking of a
person's blood pressure and the use of mechanical devices or
machines for the purpose of making a diagnosis and
representing to such person any conclusion regarding his/her
physical or mental condition. Machines or mechanical devices
for measuring or ascertaining height or weight are excluded
from this section.
5)Defines a "professional corporation" as one that renders
professional services in a single profession, except as
otherwise authorized.
6)Authorizes medical corporations to permit the following
licensees to be shareholders, officers, directors or
professional employees: licensed doctors of podiatric
medicine, licensed psychologists, registered nurses, licensed
optometrists, licensed marriage and family therapists,
licensed clinical social workers, licensed physician
assistants, licensed chiropractors, licensed acupuncturists,
naturopathic doctors, and licensed professional clinical
counselors
7)Authorizes podiatric medical corporations to permit the
following licensees to be shareholders, officers, directors or
professional employees, licensed physicians and surgeons,
licensed psychologists, registered nurses, licensed
optometrists, licensed chiropractors, licensed acupuncturists,
and naturopathic doctors.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author, "Since there is
currently no direct access to physical therapy services, many
patients must endure unnecessary delays and additional expense
in order to access physical therapy treatment. Delays in
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treatment can result in higher costs to consumers and insurance
companies, along with decreased functional outcomes. Family
members of patients are also inconvenienced by additional visits
to health care providers, which often require them to take time
from work. In short, this is inefficient, costly and
unnecessary. Patients with chronic conditions, such as neck or
back pain, or those with recurring injuries, will benefit from
this bill. Moreover, seniors and low income individuals will
not have to incur extra wait time and costly co-pays in order to
see a PT that can immediately start a treatment plan and
alleviate pain for the patient.
"Currently ALL of the states surrounding California - Arizona,
Nevada and Oregon - allow patients 'direct access' to PTs, as do
a clear majority of states. In all of the states that have
adopted 'direct access' measures, there have been no problems
regarding the patient's quality of care, medical malpractice
claims or lawsuits. Further, in the 36 states with 'direct
access,' Medicare pays for the direct treatment by PTs in states
that allow such practice. SB 924 would allow California to take
advantage of federal health care dollars and allow Medicare
recipients to begin physical therapy treatment immediately and
eliminate wait time and the added expense of an extra physician
visit.
"At least two legal opinions called into question the ability of
a medical or podiatric corporation to hire a PT since they are
not one of the listed health care practitioners who may be
employed by the professional corporation. For many years, these
professional corporations have employed PTs and believed that
they were not prohibited from doing so under current law. This
bill will clarify under the Corporations Code that medical
corporations and podiatric corporations may directly employ PTs
to work within their professional corporation."
Background . PTs treat individuals who have been diagnosed by a
physician to have medical problems or other health-related
conditions, illnesses, or injuries that limit their ability to
move and perform functional activities, often consulting and
practicing with a variety of other professionals, such as
physicians, dentists, nurses, educators, social workers,
occupational therapists, speech-language pathologists, and
audiologists. When creating treatment plans, PTs collaborate
with these other professionals and the patient and determine
goals and expected outcomes, predicted level of optimal
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improvement, specific interventions to be used, and proposed
duration and frequency of the interventions. Because of this
coordinated treatment, continuity of care, or a long-term
partnership between healthcare professions and the patient, are
essential. Disrupting the continuity of care can both prolong
treatment and prevent optimum results.
To access physical therapy treatment, an initial diagnosis for a
medical condition must be made by a physician and surgeon or
another practitioner who is authorized to diagnose. This
current state of the law was echoed by a 1965 Attorney General
(AG) Opinion, which reviewed the validity of a statute that
allowed a PT to conduct specified methods of treatment but
prohibits him/her from making a diagnosis. The issue was
whether this statute was invalid because it was indefinite and
uncertain. In upholding the statute, the AG Opinion indicated
that the practice of medicine consists of three parts:
diagnosis, prescription, and treatment. The AG opinion pointed
out that although it is impossible to treat a bodily or mental
condition without first ascertaining the condition, this does
not imply that the one rendering the treatment must also have
performed the diagnosis. However, the AG opinion was clear that
a licensed PT is not authorized to diagnose, and that the AG
perceived no conflicts, ambiguities, or uncertainties in
limiting the practice of licensed PTs to treating ailments
diagnosed by those found to be qualified and authorized by law
to diagnose. Therefore, a licensed PT may only treat an ailment
basing his treatment upon a physician's diagnosis.
The federal Medicare Program covers physical therapy services
but limits how much is covered for medically-necessary
outpatient physical therapy. There are certain exceptions to
these limits if the services are medically necessary. Medicare
coverage for physical therapy requires that a patient must be
under the care of a physician, the services must be furnished
under a plan of care, and the plan of care must be
certified/recertified periodically by a physician (usually every
30 days).
Since 1990, the PT Board has allowed PT's to be employed by both
medical and podiatric corporations and general corporations.
The PT Board's resolution titled "Physical Therapy Corporation
Ownership by a Layperson" determined that the Moscone-Knox
Professional Corporation Act was intended to cover medicine,
dentistry, and law, and not physical therapy. This resolution
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was rescinded on November 3, 2010. At the same time, the PT
Board reacted to a separate Legislative Counsel opinion, which
stated that, as the law currently stands, a PT may be subject to
discipline for providing physical therapy services as an
employee of a medical corporation, or any professional
corporation other than a naturopathic corporation. The PT Board
then drafted a letter, threatening those PTs employed by medical
and podiatric medical corporations with the choice of losing
their jobs or having the Board take action against their license
to practice physical therapy.
The PT Board was created in 1953 to protect the public from the
incompetent, unprofessional, and criminal practice of physical
therapy. There are over 15,000 PTs in California today, with an
average growth of 440 jobs each year, according to the
Employment Development Department. Approximately 80% work in
offices of physicians and other health practitioners, hospitals,
home health care services and nursing care facilities.
The Moscone-Knox Professional Corporation Act permits certain
individuals to be shareholders, officers, directors, or
professional employees of professional corporations, 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.
Federal self-referral restrictions, commonly referred to as the
"Stark Rules," generally prohibit a physician from making
referrals to an entity with which he or she has a financial
relationship. However, physician groups are allowed to provide
PT services under the In-Office Ancillary Services exception.
Likewise, the Business and Professions Code specifically allows
PT referrals within a medical group and indeed requires that
physicians with a financial interest in PT provide each referred
patient with a written disclosure of this interest and advise
the patient that he or she may obtain PT services elsewhere.
Support . The California Physical Therapy Association (CPTA)
writes, "Direct Access to PT services would help streamline
health care delivery in California. Patients with chronic
conditions, such as neck or back pain, or those with recurring
injuries, such as athletes, will benefit from the legislation.
Moreover, seniors and low income individuals will not have to
incur extra wait time and costly co-pays in order to see a PT
that can immediately start a treatment plan and alleviate pain
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for the patient.
"SB 924 would grant the same rights to California patients that
patients in other states already enjoy. Many states allow
patients to directly access the services of PTs including all
the states surrounding California. In addition, Medicare allows
for patients to go see a PT directly and the United States
Military also allows for direct access to PT services by
patients has been using this model successfully for decades.
"Further, CPTA supports SB 924 because it is an effort to level
the playing field in the California marketplace. Under SB 924,
PT businesses may establish themselves as corporations and may
serve as a health care access point for patients with movement
related conditions?"
Opposition . The California Medical Association (CMA) writes,
"?there are still several issues with the direct access
provisions that need to be rectified before CMA can remove its
opposition. First, the latest amendments removed the
requirement that a diagnosis be performed to allow direct access
to treatment to continue; and instead, only requires that a
physician perform a physical exam and approve the PT's treatment
plan. This provision is troubling because a physical exam does
not mean a diagnosis will be obtained. Without a diagnosis, a
patient could feasibly be treated for months without ever
knowing the actual root of their injury.
"Additionally, we must be cautious not to extend too long the
treatment without a diagnosis. If an injury is improperly
treated, recovery may not only be delayed but the injury could
become even worse. The differing symptoms in musculoskeletal
injuries can be very subtle and difficult to differentiate?Any
prolonging of these injuries could result in further damage and,
in some cases, be potentially life threatening. In order to
prevent undue delay and harm to patients, direct access
treatment without a diagnosis should be limited within a
reasonable timeframe."
Previous legislation . AB 783 (Hayashi) of 2011 adds 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.
This bill was held in Senate Business, Professions and Economic
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Development Committee.
AB 1152 (Anderson) of 2010 Adds PTs to the list of individuals
who may be shareholders, officers, directors, or professional
employees of a medical corporation or podiatric medical
corporation, as specified. This bill was substantially amended
to address an unrelated issue.
AB 721 (Nava) of 2009 allows an individual to initiate physical
therapy treatment directly from a licensed PT without a
referral, as specified. This bill was held in Assembly Business
and Professions Committee.
AB 1444 (Emmerson) of 2008 revises the definition of physical
therapy and authorizes a PT to initiate treatment of conditions
within the scope of PT, as specified. This bill was held in
Assembly Business and Professions Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Adient Health
Agile Physical Therapy
American Nurses Association/California
Baudendistel Physical Therapy
Berkeley Physical Therapy, Inc.
Brown Physical Therapy
California Advocates for Nursing Home Reform
California Physical Therapy Association
California Senior Legislature
Congress of California Seniors
Fullerton Physical Therapy
Gary M. Souza, PT and Associates
Gaspar Doctors of Physical Therapy
Lifestyle Physical Therapy
Lodi Physical Therapy
Olympic PT and Aquatics
Performance Physical Therapy
Personal Best Physical Therapy
Prevent the Pain Therapy
Rascal Creek Physical Therapy
Redwood Orthopaedic Physical Therapy
San Francisco Sport and Spine Physical Therapy
San Mateo Sport and Spine Physical Therapy
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Success Physical Therapy and Balance Center
Tahoe Forest Therapy Services
Taylor and Thornburg Physical Therapy, Inc.
Water and Sports Physical Therapy, Inc.
Numerous individuals
Opposition
ACIC Physical Therapy
California Board of Occupational Therapy
California Chiropractic Association
California Medical Association
California Orthopaedic Association
California Podiatric Medical Association
Medical Board of California
Southern California University of Health Sciences
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301