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Medical Group Practice Can Once Again Employ PTs and PTAs

In December 2016, the South Carolina Supreme Court denied a petition for re-hearing, resolving a long standing dispute and allowing medical practices to employ directly physical therapists (“PTs”) and physical therapist assistants (“PTAs”).

In Joseph v. S.C. Board of Physical Therapy Examiners, 417 S.C. 436, 790 S.E.2d 763 (2016), a physical therapist and two physicians filed suit seeking a judicial declaration overturning  a previous decision by the Supreme Court in Sloan v. S.C. Board of Physical Therapy Examiners, which prohibited employment of physical therapists by medical practices.  The plaintiffs also sought to overturn a 2011 position statement by the South Carolina Board of Physical Therapy Examiners (“PT Board”) regarding the referral of physical therapy patients within a physical therapy practice. 

In a split decision, the Supreme Court specifically overruled its decision in Sloan and declared unconstitutional the 2011 Position Statement from the PT Board.  The practical impact is that medical practices can now employ PTs and PTAs on the same terms as they employ occupational therapists, speech pathologists and nurse practitioners.  The Supreme Court found that the Sloan decision deprived physicians of the right to practice medicine in the best interests of their patients.

Far from unanimous, the decision of the court demonstrates a power play within the court and between the court and other branches of government.  Only two justices agreed that the 2011 Position Statement was unconstitutional, while a third agreed that the statement was improper, but not on constitutional grounds.  Two justices dissented on the grounds that the plaintiffs did not have proper standing to legally raise either issue.  The majority and concurring opinions found significant fault with the administrative agencies which were described as a fourth branch of government challenging the constitutional separation of powers.  The dissent expressed concern that the majority’s decision ignored the fact that the legislature’s intent that the Sloan decision remain in force, having twice had tried unsuccessfully to overturn through legislation the Sloan decision.

This is the latest decision in a twelve year dispute between legislative, executive and judicial authorities over the employment of PTs in South Carolina.  It may or may not be the last.  Depending on how motivated the PT Board is, it may attempt to renew its efforts to re-invigorate the Sloan decision by administrative action, but it would have to go through the formal rule-making procedure set out in the Administrative Procedures Act, rather than issuing an informal position statement.  If the legislature wants to step in, it will have to proceed through the normal legislative process to amend the controlling statute.  Either of these will take time and, presumably, will generate some publicity.  Interested parties should remain vigilant to observe what these government entities do in order to have an opportunity for input.

As of now, however, the Joseph decision is controlling law and physicians can employ PTs and PTAs.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VII, Number 12


About this Author

David Yandle litigator, Womble Carlyle Law Firm, Employment Business Litigation Attorney

David S. Yandle is a trial lawyer with twenty five years of experience who now concentrates his practice in the firm’s employment, insurance, and business litigation groups. Mr. Yandle represents employers in all facets of employment law, including Title VII, ADA, ADEA, FLSA and FMLA, as well as employment contracts, covenants not to compete, employee handbooks, wage and hour disputes. His employment practice ranges from advising clients on contractual matters to litigating disputes before federal and state courts and administrative agencies. Mr. Yandle works closely...

J. Marshall Allen, Womble Carlyle Law Firm, Healthcare Attorney

Marshall Allen has practiced in the area of health care and administrative law for more than twenty years. He has represented a wide variety of health care and other professional providers, including physicians, dentists, accountants, physical therapists, nurses and chiropractors, as well as the professional practices of these providers. In addition to representing individual providers and their practices, he also represents hospitals, outpatient centers, long term care centers and other health care institutions. Mr. Allen has extensive experience in organizing and structuring medical and other professional practices in conformity with federal and state compliance rules and standards. He represents health clients in administrative disputes, including medical staff disciplinary matters, actions before the state licensure boards and administrative litigation arising out of the grant or denial of certificates or approvals issued by the South Carolina Department of Health and Environmental Control for the operation of health care facilities and/or medical equipment.