CAMLAW: Complementary and Alternative Medicine Law Blog

Scope of practice issues continue raise turf battles among health care professions

Turf battles are common in health care, as evidence by continuing legal battles over scope of practice.

The American Medical Association (AMA) has collected recent scope of practice challenges in the health professions on a webpage dedicated to case summaries.

These include:

California Society of Anesthesiologists and California Medical Association v. Brown (Cal. Ct.App.)

Issue

The issue in this case is whether certified registered nurse anesthetists (CRNAs) can administer anesthesia in California hospitals without physician supervision.

AMA interest

The AMA believes that CRNAs should only administer anesthesia under physician supervision, as they lack the education and training to act independently.

Case summary

The Governor of California, after consultation with both the Board of Medicine and the Board of Registered Nursing, notified the Centers for Medicare & Medicaid Services that California law permits CRNAs to administer anesthesia without physician supervision.  California thereby opted out of this requirement for Medicare reimbursement purposes. 

The California Society of Anesthesiologists (CSA) and the California Medical Association (CMA) sued the governor for a judicial determination that his interpretation of California law had been incorrect.  The California Association of Nurse Anesthetists intervened in the lawsuit as an additional defendant.  On cross-motions for summary judgment, the court ruled in favor of the defendants.  It found that California law does not contain an explicit supervision requirement, and the governor had acted within his discretion.

The plaintiffs have appealed to the California Court of Appeal

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates, 168 Wn.2d 421 (Wash. 2010)

Issue
The issue in this case was whether an orthopedic surgery practice could employ physical therapists under Washington State licensure laws.

AMA interest
The AMA believes that physicians should be allowed to provide any accepted form of health care to benefit their patients, within the scope of their clinical competence. This should include the employment of allied health care professionals to assist them.

Case summary
In Washington State, as elsewhere, orthopedic surgery practices often employ physical therapists.  In this "reverse scope of practice" lawsuit, a physical therapy practice sued an orthopedic surgery practice and related parties, contending that the orthopedic surgery practice's employment of physical therapists violated Washington State licensure laws. The suit asserted the following claims:

  1. Breach of the Washington anti-rebate statute;
  2. Breach of the Washington statutes prohibiting unprofessional conduct by physicians;
  3. Breach of the Washington consumer fraud and unfair business practices statute;
  4. Breach of the Washington statutes governing professional corporations and limited liability companies;
  5. Breach of the Washington common law prohibiting the corporate practice of medicine.

Both sides moved for summary judgment.  The trial court granted summary judgment to the defendants on the fourth cause of action (pertaining to professional corporations and limited liability companies), denied summary judgment to both parties on the first three causes of action, and refused to rule on the fifth cause of action (pertaining to the corporate practice of medicine).

The trial court certified its rulings for immediate, interlocutory review and stayed further proceedings before it, pending such review.  The Washington Supreme Court then granted discretionary review of the trial court's order.

The Washington Supreme Court decided most of the issues in favor of the orthopedic surgery practice.  It held that the orthopedic surgery practice could not have violated the corporate practice of medicine doctrine, because physicians are licensed to practice medicine in all its branches and physical therapy is simply a limited aspect of the general practice of medicine.  The Supreme Court remanded the case for further adjudication, consistent with its decision.

Kentucky Board of Physical Therapy v. Dubin Orthopedic Center, 294 S.W.3d 421 (2009)

Issue
The issue in this case is whether a physician can bill for physical therapy services under the Kentucky Physical Therapy Act.

AMA interest
The AMA supports the right of a physician to bill under Current Procedural Terminology (CPT) criteria.

Case summary
The Kentucky State Board of Physical Therapy sued to enjoin Dubin Orthopaedic Centre, Inc. (whose sole shareholder is Dr. Dubin) from billing using certain CPT codes for physical therapy services, because those services were not provided by a licensed physical therapist. The Board claimed it is illegal under the Kentucky Physical Therapy Act for a non-physical therapist—even a physician—to bill for these services. While the suit was pending, the Kentucky Board of Medical Licensure issued an advisory opinion finding that physicians do have the right to bill for physical therapy services. On cross-motions for summary judgment, the trial court found in favor of Dubin Orthopaedic. The Board of Physical Therapy appealed.

The Kentucky Court of Appeals reversed the trial court's order and directed the trial court to enjoin Dubin Orthopaedic from using CPT codes for physical therapists in his billing for physical therapy services. The appellate court noted that a licensed physician may utilize treatment modalities that are the same as, or similar to, those provided by a licensed physical therapist. Nevertheless, the appellate court found that the statute at issue mandated that no person other than a licensed physical therapist, even a licensed physician, can submit a bill that describes his services as physical therapy services.

Dubin Orthopaedic then appealed to the Kentucky Supreme Court, which reversed the Court of Appeals, holding for Dubin Orthopaedic.  It found that the Kentucky Physical Therapy Act was not intended to prevent physicians from using the proper CPT code to describe their services.

Texas Medical Association v. Texas Board of Chiropractic Examiners (Tex. Ct. App.)

Issue

The issue in this case is whether the Texas Board of Chiropractic Examiners can expand chiropractors’ scope of practice to include needle electromyography (EMG) tests, manipulation under anesthesia, and diagnosis.

 AMA interest

The AMA believes that non-physician health care practitioners should only provide patient care in accordance with their education and training and in accordance with applicable state laws.

Case summary

The Board of Chiropractic Examiners passed a “Scope of Practice Rule,” which defined chiropractic to include (i) needle EMG tests, (ii) manipulation under anesthesia, and (iii) diagnosis.  The Texas Medical Association (TMA) and the Texas Medical Board (TMB) sued the Chiropractic Board, alleging that each of these provisions of the Scope of Practice Rule exceeded the authority allowed the Chiropractic Board under Texas statutory and constitutional law.  The Texas Chiropractic Association then intervened in the lawsuit on the side of the Chiropractic Board.

The trial court entered summary judgment in favor of TMA/TMB on all counts.  The Chiropractic Board and the Texas Chiropractic Association are appealing.  The case has been briefed in the Court of Appeals.

Texas Medical Association v. Texas State Board of Examiners of Marriage and Family Therapists (Travis Co. Tex. District Ct.)

Issue
The issue in this case is whether regulations that expand the scope of practice of marriage and family therapists into psychiatry are valid.

AMA interest
The AMA believes that non-physician healthcare practitioners should provide only that health care that is appropriate to their education, training and experience.

Case summary
The Texas State Board of Examiners of Marriage and Family Therapists recently adopted regulations that would expand such therapists' scope of practice into psychiatry. In short, the rules governing the practice of marriage and family therapy were modified to include “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD)” as part of such therapists' professional role.

The Texas Medical Association sued the Texas State Board of Examiners and Family Therapists to challenge the new rules.  The Board answered the complaint and the case is in discovery.

Texas Orthopaedic Association v. Texas State Board of Podiatric Medicine (Tex. S.Ct.)

254 S.W.3d 714 (Tex.App. 2008)

Issue
The issue in this case wasis whether the Texas State Board of Podiatric Medicine (TSBPM) could define the "foot" as including the ankle and various soft tissue.

AMA interest
The AMA believes that non-physician health care practitioners should only provide health care that is appropriate to their education, training, and experience.

Case summary

This "scope of practice" suit challenged the validity of a regulation adopted by TSBPM. The Texas podiatric statute restricts podiatric care to medical conditions concerning the "foot." Under the TSBPM regulation, the "foot" is defined to include "the ankle and the tibia and fibula in their articulation with the talus...inclusive of all soft tissues...that insert into the tibia and fibula in their articulation with the talus."

The Texas Orthopaedic Association (TOA) and the Texas Medical Association (TMA) sued to declare the TSBPM regulation inconsistent with the Texas podiatric statute. Without stating reasons for the decision, the trial judge upheld the contested regulation. TOA and TMA appealed that ruling.  The appellate court reversed the ruling of the trial court, holding that TSBPM had exceeded its authority when issuing its definition of the "foot."  TSBPM petitioned the Texas Supreme Court to hear the case, but the Texas Supreme Court denied the TSBPM petition.

Scope of practice debates are endemic to the health care professions, going all the way back to the founding of the AMA and the split between 'orthodox' and 'non-orthodox' providers.

See Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives for a discussion of scope of practice issues involving the chiropractic profession.

 

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