Physician Provided Physical Therapy Banned in South Carolina

The South Carolina Supreme Court has ruled in Sloan v. South Carolina Board of Physical Therapy Sloan1 (“Sloan”) that the state’s Physical Therapy Practice Act2 (“Act”) prohibits physical therapists from working in a physician’s office and providing physical therapy to the physician’s patients through what are known as “in-practice referrals.” The decision has tremendous ramifications in that it changes how patients get physical therapy (i.e. not in the physician’s office), forces many physical therapists out of their current jobs,3 reverses the longstanding public policy decision of a state agency,4 and changes how medicine/physical therapy has been practiced in South Carolina for decades.5 While the impact of Sloan6 is dramatic, what is remarkable is that the decision interprets the Act contrary to the overwhelming support for in-practice referrals by relying on a dubious opinion7 (“Opinion”) of the South Carolina Attorney General (“AG”). As a result, Sloan interprets the Act to be a blanket ban on in-practice referrals despite there being no evidence of a problem and it being unnecessary, as in-practice referral abuse is already prohibited in South Carolina.8 Consequently, Sloan is, according to the dissent, an “absurd”9 and “illogical”10 interpretation of the Act.

1. Act modified in 1998
The origins of Sloan date back to 1998 when the Act was modified and the South Carolina Board of Physical Therapy Examiners (“Board”) interpreted the revised Act as allowing the continuation of in-practice referrals in South Carolina. The Board’s interpretation was (and is) consistent with the determinations made by the federal government, the overwhelming majority of laws of other states, and the view of the medical community as expressed by the American Medical Association (“AMA”).

2. APTA involvement
Despite the vast support for the Board’s interpretation of the Act, however, the American Physical Therapy Association11 (“APTA”) was able to utilize the AG to successfully overturn the Board. Sloan is the culmination of a national campaign started over a quarter century ago12 by the APTA to eliminate in-practice referrals. As a part of this campaign, APTA developed a strategic plan which focuses, in part, on reviewing state physical therapy statutes for opportunities to prohibit in-practice referrals.13 In implementing this plan, the APTA identifies states with ambiguous physical therapy statutes (such as South Carolina) which could be interpreted by the state attorney general to overturn an undesirable decision of a state agency which regulates physical therapy.14 The advantage of this strategy is that it requires convincing only one person (the state attorney general), who does not necessarily have any expertise on the topic, 15 to issue an edict without the messiness of a public debate required through a legislative or administrative change.16 Since the sources and quality of the opinion are solely within the discretion of the state attorney general, it is possible for a state attorney general to prohibit in-practice referrals without a thorough understanding of the issue.

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