Federal Statutes

Federal statutes address those areas the federal government is constitutionally permitted to regulate, such as federal civil rights, interstate commerce, and taxation. Federal statutes apply consistently to all citizens across state lines and, where they conflict with related state laws, generally supersede state law.

A number of federal statutes may affect the provision of physical therapy services, including the following:

The consequences for violating federal laws vary. Violations of the ADA may result in fines or injunctions (in this case, court orders requiring defendants to make their businesses more accessible to persons with disabilities). Fraudulent billing of federal benefit programs, such as Medicare, is vigorously prosecuted. One recent example involved a PT who defrauded the Medicare program of $2.9 million by filing false claims. The therapist was ultimately sentenced to 62 months in federal prison and ordered to pay restitution.⁹

State Statutes

State statutes are enacted by state legislatures in areas that states are constitutionally permitted to regulate, such as education, professional licensing, and insurance. When no superseding federal law exists, each state is entitled to tailor its laws to meet the needs of its citizens. Consequently, laws in these areas vary from state to state.

State statutes can affect the practice of physical therapy in a number of ways, such as through regulation of the insurance industry, availability of state health care funding for the poor, and state health department requirements. Regarding physical therapy practice, however, the single most important statute is the state physical therapy practice act. The practice act is the legal foundation for the scope and protection of physical therapy practice. Among the areas generally covered by practice acts are the state definition of physical therapy practice, identification of providers who may legally provide physical therapy services, identification of tasks that may be delegated (and to which persons they may be delegated), and supervisory requirements. Physical therapy providers are legally permitted to practice only when they comply with their state’s practice act, and it is assumed that they are knowledgeable about the provisions of the practice act in the state in which they are licensed. The practice act is the final word regarding what is legal physical therapy practice in a given state; it supersedes the provisions of other state practice acts and the guidelines of private organizations, such as the American Physical Therapy Association (APTA). The consequences of violating state practice acts are often stated in the act itself or accompanying regulations. In some states, such as New York, the unlawful practice of physical therapy is a criminal offense.¹⁰

A copy of a state practice act may be obtained in many ways. The state physical therapy licensing board may have copies available, and most state legislatures now have official websites with all state laws, including practice acts, available online. State practice acts may also be accessed in a variety of places on the World Wide Web.¹¹ (Note: Although much information on the APTA website is currently available to the public, some information is accessible only to APTA members. In addition, the reader should note that websites often change the links to content, so links current at the time of publication may be changed at a later date.)

Although a great deal of overlap is seen among state practice acts, they also have significant differences. Given that physical therapy providers are legally responsible for knowing their own practice acts, providers must educate themselves and cannot assume that what is legal therapy practice in another state is also legal in their own state. One example is direct access to physical therapy services, which permits a patient to receive services without first obtaining a referral from another provider, usually a physician. As of this writing, Alaska and Indiana do not permit any direct access to physical therapy services Michigan, and Oklahoma permit only evaluations without a referral. The remaining 46 states and the District of Columbia permit varying degrees of direct access.¹² State laws vary, for example, in terms of the amount of experience therapists must have before they can provide services without a referral, or the length of time during which service may be provided before a referral must be obtained. Therapists must, then, be clear on the rules and regulations of the state in which they practice.

The manner in which physical therapy providers are regulated also varies from state to state. All 50 states license PTs. A license, however, cannot automatically be transferred from one state to another. If a provider moves to another state, that person must apply for a new license according to that state’s requirements and procedures. Licensure creates a scope of practice, authorizes the individual to practice in a given state, and legally protects use of the professional title.¹³ All states require graduation from an accredited program and a passing score on the National Physical Therapy Examination in order to be licensed, but exact procedures, forms, costs, and other requirements vary from state to state. The reader should contact a specific state licensing board to find out what that particular state requires.¹¹

As of this writing, the PTA is also recognized under the practice acts of every state except Colorado and Hawaii and may be licensed, certified, or registered.¹⁴ Functionally, certification, like licensure, legally protects the title of the PTA. Unlike licensure, however, it does not create a separate scope of practice or a monopoly to provide a particular service.¹³ Requirements, such as passage of the National Physical Therapist Assistant Examination, also vary from state to state.¹¹ Registration is the least rigorous form of governmental regulation and requires only that registrants periodically provide the state with updated information on their names, addresses, and qualifications and pay a registration fee.¹³ Individuals who are licensed or certified are generally required to register periodically as well. As with PTs, then, the requirements for PTA practice vary from state to state, and PTAs must check with the licensing board of a particular state to determine eligibility requirements.

The reader should not confuse state certification with certification by private organizations. The APTA, for example, has a program to recognize PTAs who have achieved advanced proficiency in particular areas of their clinical work and another program to certify practitioners as specialists (see Chapters 3 and 4). The Neuro-Developmental Treatment Association, among other organizations, also has programs to certify practitioners. These private forms of certification establish that an individual has met the standards of these private organizations in terms of competency in a certain therapeutic approach or specialty area.¹³ Unlike state certification, they neither create a legally enforceable professional title nor modify the scope of practice.

With respect to efforts to obtain more consistent physical therapy regulation, there is the Model Practice Act for Physical Therapy (MPA). The MPA is not a statute and does not have the force of law, but it is intended to be “the preeminent standard and most effective tool available for revising and modernizing physical therapy practice acts”—a key resource to be consulted when PTs and PTAs seek to lobby for changes in the practice acts.¹⁵ The MPA was developed by the Federation of State Boards of Physical Therapy, a private organization consisting of members of physical therapy licensing boards from all 50 states and the federal territories. The Federation periodically revises the MPA, most recently in 2006.¹⁵ The Federation is also responsible for developing the national licensing examinations for the PT and PTA. More information about the Federation can be obtained from their website (www.fsbpt.org).

Federal Regulations

Federal agencies regulate a wide variety of industries and benefit programs. Examples of federal agencies with great impact on the provision of physical therapy services are the Centers for Medicare and Medicaid Services (CMS), part of the federal cabinet Department of Health and Human Services. CMS is responsible for regulation of the Medicare and Medicaid programs. Although a detailed discussion of these programs and the role of CMS is beyond the scope of this chapter, CMS regulations determine, for example, to what extent therapists may participate as providers within the Medicare program and how much and for what services they will be reimbursed.⁵

Radical changes have occurred regarding reimbursement within the various aspects of Medicare since the late 1990s, and reimbursement for physical therapy services in many areas has been dramatically reduced.¹⁶ Many of these changes have been driven by congressional amendments to the Medicare legislation; implementation and enforcement of these changes have generally been left up to CMS. One example has been repeated congressional efforts over the years to place an annual monetary “cap” on the amount of reimbursement available under the Part B section of Medicare (which generally covers outpatient services, including therapy) for physical therapy services provided in a private practice setting.¹⁷ Once a patient’s Medicare physical therapy expenses under Part B reached the cap, regardless of need, no further Part B Medicare reimbursement for physical therapy services would be available for the rest of that year. APTA has struggled on behalf of consumers and the profession to restore adequate levels of reimbursement. In the case of the Medicare cap, APTA successfully lobbied Congress in 2006 for a change in the law, allowing CMS to develop a process to provide for exceptions to the cap for patients who demonstrated a continued need for services.¹⁷ Since that time, ongoing budgetary battles in Congress have at times eliminated the cap exceptions process, only to have successful lobbying efforts result in a push for reinstatement. As of this writing, the Part B Medicare cap stands at $1860 per year (combined to cover both PT and Speech Pathology services), and the recent passage of the Patient Protection and Affordable Care Act and other amendments has reinstated the cap exceptions process, but only through 2011.¹⁷ Physical therapy advocates, therefore, need to be constantly vigilant regarding this and other efforts to limit physical therapy reimbursement under government programs.

Failure to abide by Medicare regulations may result in denial of reimbursement for services rendered. Federal statutes and regulations also prohibit fraudulent billing—that is, intentionally billing Medicare for services the provider knew, or should have known, could not be billed to Medicare. Consequently, when evidence of fraud is uncovered, fines and criminal prosecution may follow, as noted earlier in this chapter. In the absence of fraud, however, the denial of reimbursement does not mean that services were illegally provided, only that they are not covered by the Medicare program and providers must seek reimbursement elsewhere.

APTA updates members frequently regarding the activities of CMS and other government agencies through publications such as Reimbursement News, News Now, and PT in Motion (formerly PT—Magazine of Physical Therapy). All of the publications can be accessed online on the APTA website. The advocacy section of the APTA website also maintains current information and links to government websites. Information specific to CMS may be accessed on their website at www.cms.gov.

State Regulations

State agencies also regulate a variety of industries and programs. Among the most important for the practice of physical therapy is the state physical therapy board. The composition and functions of the physical therapy boards are set by each state’s legislature through statutes. Although they cannot change the practice acts adopted by the state legislatures, state boards serve many important functions.¹⁸ They may advise the legislature or other government bodies to clarify the scope of practice, as well as provide advice to state-licensed practitioners seeking guidance on practice issues in that state. They also assist in administering the state licensing procedures and are generally at least consulted by prosecutors in professional misconduct cases. More information on the role of a state board can be obtained directly from the licensing board of an individual state and the state practice acts.

Professional conduct is regulated by a state disciplinary agency and is a topic that deserves further discussion. Professional misconduct involves actions by licensed professionals that demonstrate an inability to meet professional standards and competently perform the duties of a licensed professional.¹⁹ Actions that constitute professional misconduct are defined in the practice act or accompanying regulations and may include physical or sexual abuse of a patient, patient abandonment (discharge of a patient while services are still needed), improper delegation or supervision of treatment activities, provision of unnecessary treatment, fraud, incompetence, and practicing while intoxicated, among other activities.²⁰ Complaints of unprofessional conduct are typically prosecuted by the state through administrative bodies set up for that purpose, rather than being prosecuted in courts of law.

A finding that the PT or PTA has committed professional misconduct may result, among other things, in a reprimand, fine, requirement to obtain remedial professional education, probation, suspension or revocation of license, or some combination of these penalties.²¹ Final disciplinary actions are often published on state agency websites.