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Published 12/1/2009
David Seligson, MD

Orthopaedic surgeon wins scope of practice lawsuit in Kentucky

Ruling supports provision, billing of physical therapy services

A recent Kentucky Supreme Court decision upheld the right of healthcare providers such as orthopaedic surgeons to provide and bill for in-office physical therapy services. Ronald S. Dubin, MD, who has been in private practice in Corbin, Ky., for more than 20 years, took the case to the state Supreme Court, which ruled in his favor.

According to Dr. Dubin, the lawsuit originated in a complaint from a local physical therapist who alleged that Dr. Dubin was offering “physical therapy” services, provided by an athletic trainer, and billing for these services using the Current Procedural Terminology (CPT®) codes 97001 and 97002.

Under Kentucky state law, it is illegal “for any person or for any business entity…to bill for physical therapy unless such therapy is provided by or under the supervision of” a licensed physical therapist. The Board of Physical Therapy sued, and Dr. Dubin filed a counterclaim. The ultimate legal issue was whether a physician licensed in Kentucky could use CPT codes 97001 and 97002 for services provided to a patient without a licensed physical therapist.

Although Dr. Dubin initially won the case, the ruling was subsequently reversed by the Court of Appeals in 2007.

Support from the AMA
Both the Kentucky Medical Association (KMA) and the American Medical Association (AMA) filed amicus briefs on behalf of Dr. Dubin. In addition, the KMA legal defense fund helped cover some of the more than $100,000 in legal fees resulting from the case.

The Kentucky Medical Licensing Board also issued an 8-page opinion letter supporting the right of physicians to offer physical therapy in their practices and bill for the services, using any code—including 97001 and 97002—that properly describes the services performed.

In its brief, the AMA and the KMA noted, “It is illogical to suggest that the General Assembly would pass a bill permitting a licensed physician to practice medicine (which includes the practice of physical therapy), but prohibiting him or her from billing for any physical therapy services actually performed.”

In April 2009, the state Supreme Court unanimously decided in Dr. Dubin’s favor, adding that the law in question (KRS 327.020) “is clearly intended to protect the public against unqualified providers of physical therapy services, not to protect physical therapists against competition from other qualified healthcare providers.”

Implications for the future
“As a regulatory agency, the Board of Physical Therapy is charged by the legislature to regulate physical therapists only, not physicians or any other healthcare providers,” points out Dr. Dubin. “They are a licensing board and not an association or organization paid to promote the special interests of its members.”

David Seligson, MD, is a member of the AAOS Medical Liability Committee. He can be reached at seligson@louisville.edu

Kentucky Supreme Court 2007-SC-000756-DG (pdf)

Dubin Orthopaedic Centre, P.S.C. v. Commonwealth of Kentucky, State Board of Physical Therapy (pdf)