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1 Sloan v. South Carolina Board of Physical Therapy Sloan, 370 S.C. 452, 636 S.E.2d 598 (2006).

2 S.C. Code Ann. § 40-45-110(A)(1).

3 Sloan, 370 S.C. at 466, 636 S.E.2d at 605.

4 Id. at 465, 604.

5 Id.

6 The use of the term “Sloan” is a reference to the majority opinion only. References to the dissent will be noted.

7 S.C. Atty. Gen. Op. dated March 30, 2004, 2004 S.C. AG LEXIS 58.

8 See S.C. Code Ann. § 40-47-5 et. seq.

9 The dissent in Sloan states that the majority’s interpretation of the Act is “absurd when viewed in relation to other legislation related to this purpose” and that “it is illogical that the legislature would intend to prohibit” in-practice referrals “while placing no restrictions on employment relationships between physicians and other health care providers.” Sloan, 370 S.C. at 487, 636 S.E.2d at 617.

10 See supra note 9.

11 The American Physical Therapy Association is a 71,000 member national association of physical therapists according to their website http://www.apta.org/AM/Template.cfm?Section=About_APTA&Template=/TaggedPage/TaggedPageDisplay.cfm&TPLID=41&ContentID=23725 (visited October 31, 2007). According to an article on the APTA website, APTA believes that in-practice referrals are “just wrong.” The article explains the APTA position by stating:

Nothing good comes out of [in-practice referrals]…says Lisa Saladin, PT, PhD, president of the South Carolina Physical Therapy Association (SCAPTA). "It is dangerous to our profession and our consumers." Saladin explains, "There is financial incentive for physicians to refer individuals who might not otherwise be referred or to refer them for more sessions than are required. And we do not know to what extent that is happening." Michele Wojchiechowski, Physician Ownership of Physical Therapy Services, American Physical Therapy Association 2004), online at http://www.apta.org/AM/Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=1 8523 (visited October 31, 2007).

12 Michele Wojchiechowski, Physician Ownership of Physical Therapy Services, American Physical Therapy Association 2004), online at http://www.apta.org/AM/Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=18523 (visited October 31, 2007).

13 Strategic Plan to Address Physician Owned Physical Therapy Services (POPTS), BOD 11-03-06-15, (American Physical Therapy Association, 2003), Goal V, Objective 1, online at http://www.apta.org/AM/Template.cfm?Section=Home&CONTENTID=27025&TEMPLATE=/CM/ContentDisplay.cfm (visited October 31, 2007).

14 Opposition Strategy: Historical Overview of POPTS (Ethical Physical Therapy Association), online at www.ethicalpt.org/oppstrategy (visited on October 31, 2007). The Ethical Physical Therapy Association (EPTA) was founded by physical therapists in 2004 in order to preserve the right of physical therapists to practice in physician based settings. The EPTA promotes policies and takes actions to oppose APTA’s efforts to ban in-practice referrals according to their website. See Ethical Physical Therapy Association, online at http://www.ethicalpt.org/index (visited on October 31, 2007).

15 See S.C. Code Ann. §1-7-110 which states that “the Attorney General shall…give his opinion upon questions of law submitted to him by either branch thereof, or by the Governor.”

16 The AG issuing an opinion is usually much simpler than the process typically required for implementing a new administrative regulation. For example, in South Carolina there are multiple levels of review and opportunities for public comment before an administrative agency can implement a new or revised regulation. See S.C. Code Ann. §§ 1-23-110 to 1-23-160. In South Carolina, the administrative process is started by an administrative agency (such as the Board) preparing a detailed justification for the new regulation. The agency must then give notice, an opportunity for public comments, and a public hearing on the new regulations. After the agency considers all of the public input, its publishes a new report which is typically reviewed by the State Budget and Control Board, a legislative committee, and the General Assembly before finally being adopted or rejected.

17 Id. at 465, 605.

18 S.C. Atty. Gen. Op. dated March 30, 2004, 2004 S.C. AG LEXIS 58, 1

19 Sloan at 488, 617

20 Id. at 465, 605

21 S.C. Atty. Gen. Op. dated March 30, 2004, 2004 S.C. AG LEXIS 58, 1

22 S.C. Code Ann. §1-7-110

23 Id. at 469, 607.

24 Id. at 469, 607.

25 Id. at 472, 608.

26 See 5 U.S.C.S. § 553.

27 See 42 C.F.R. § 411.355(b)s

28 Sloan at 472, 608

29 S.C. Code Ann. § 40-47-5 et. seq.

30 S.C. Code Ann. § 40-47-200(A).

31 Conflicts of Interest, Council on Ethical and Judicial Affairs, The Journal of the American Medical Association, May 6, 1992, Vol. 267, No. 17, 2366-2369, at 2367-2368.

32 Id.

33 The page count is from Lexis, 2006 S.C. Lexis 302.

34 The page count is from Lexis, 2004 S.C. AG Lexis 58.

35 S.C. Atty. Gen. Op. dated March 30, 2004, 2004 S.C. AG LEXIS 58

36 The dissent differed with the majority over: 1. The proper use of federal law (Sloan at 490, 618); 2. Using the definition of referral from another South Carolina statute (Id. at 489, 618); 3. Applicability of the Administrative Procedures Act (Id. at 491, 618); 4. Equal protection (Id. at 492, 619); and 5. Substantive due process (Id. at 494, 620).

37 Office of the South Carolina Attorney General website, online at http://www.scattorneygeneral.com/opinion.php (visited October 31, 2007).

38 American Physical Therapy Association website, online at http://www.apta.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=34153 (visited on October 31, 2007).

39 Bruce Allain, JD, Susan Koshy, JD, Orthopaedists beware—You could lose control of your practice, American Academy of Orthopaedic Surgeons Bulletin, Vol. 54, No. 6 (December 2006).

40 Id.

41 Robert C. Fine, JD, CAE, Ancillary services under attack, American Academy of Orthopaedic Surgeons Bulletin, Vol. 54, No. 3 (June 2006).

42 There has not been a movement in the United States to ban physician’s from employing occupational therapists and these relationships are generally permissible.

43 Robert C. Fine, JD, CAE, Taking a closer look at office-based imaging, American Academy of Orthopaedic Surgeons Bulletin, Vol. 54, No. 3 (June 2006).

44 Maryland State Board of Physicians, Declaratory Ruling 2006-1, online at http://www.mbp.state.md.us/forms/2006-1.pdf (visited October 31, 2007).

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