Following is a description of a legal suit in the state of Pennsylvania. The information in this article is presented for your information, and does not represent the official statement of or from the PPTA. This case involves the right of Physical Therapists to reserve the term Physical Therapy for their patient care. It is my opinion that this case will ultimately be relevant to all PT’s in the US and beyond as legal appeals will likely continue to the US Supreme Court. The PTCentral.com web site will make updates available as they occur. I am sure that the PPTA would welcome your support in this issue.

On April 24, 1995, the Pennsylvania Physical Therapy Association ("PPTA"), together with the Pennsylvania State Board of Physical Therapy ("Board"), were sued by the Pennsylvania Chiropractic Society ("PCS") and Thomas A. Boch, D.C. ("Boch") in the United States District Court for the Middle District of Pennsylvania (the "District Court"). The basis of this lawsuit, first, was that chiropractors were being deprived of their First Amendment rights of free speech if they were prohibited from advertising that they provide "physical therapy" which they allege, is a "generic term." The PCS and Boch also alleged that there was a conspiracy between the PPTA and the Board to prevent chiropractors from using the term "physical therapy" in the advertisements, denying them their freedom of speech.

On February 19, 1997 a Hearing Examiner for the Bureau of Professional and Occupational Affairs, Chere-Winnek-Shawer, issued an Order in the case of Commonwealth of Pennsylvania V. Thomas A. Boch, D.C., et al. The Boch case involves several chiropractors advertising or holding out that they perform physical therapy. Pennsylvania’s licensure prosecutors had charged Dr. Boch and several other chiropractors with violating the Physical Therapy Practice Act because of the advertisements. The Hearing Examiner decided, among other things, that chiropractors are permitted to advertise that they perform physical therapy.

Although the case was originally scheduled to be heard by the State Board of Physical Therapy acting as judges, upon the advice of the State Board’s legal counsel, they changed their mind and delegated the matter to an Administrative Law Judge (Hearing Examiner) with the power to render a final Adjudication and Order. Shortly after the State Board’s decision to delegate the case, the PPTA Executive Committee directed Legal Counsel to intervene in the case on behalf of the Association to ensure that our interests were adequately protected. Although the chiropractors objected to this, the Administrative Law Judge eventually granted our request and the PPTA became a party in the action.

As a party, PPTA has the right to appeal this decision and will appeal the decision. The law provides that such an appeal must be filed within 30 days of the date of the original Order. On February 25, 1997 the Executive Committee conferred and directed Legal Counsel to initiate the appeal process. Although the effect of the decision, i.e. permitting chiropractors to advertise that they perform physical therapy is bad enough, the scope language and holdings within the 30 page decision of the Hearing Examiner itself are even worse. In essence the Hearing Officer held that chiropractors can practice physical therapy within the scope of their chiropractic license.

Although she did not specifically say so, the clear and inevitable import of her decision is to cause the practice of physical therapy to be subsumed within the practice of chiropractic. Consider this direct quote from the Hearing Examiner’s decision:

The decision of the Hearing Examiner contains many troubling conclusions. For example, the Hearing Examiner concludes that, while a chiropractor is prohibited from "...holding themselves out" as "licensed physical therapy", "(the law) does not prohibit a chiropractor from practicing physical therapy." This conclusion is derived, apparently, from her finding that a combination of the statutory definition of adjunctive procedure, a portion of the statutory definition of the practice of physical therapy and the Webster Third New International Dictionary’s definition of chiropractic leads to the conclusion that chiropractic and physical therapy are the sane thing.

The Hearing Examiner also embarks on a lengthy analysis of the legislative history of Pennsylvania’s chiropractic law, contrasting portions of it to the Pennsylvania Physical Therapy Act. Nowhere in that statutory construction analysis, however, does she address the plain language prohibition in Pennsylvania law that no person other than a licensed physical therapist may use the term physical therapist, physical therapy or their derivatives. In a separate section of the opinion, ten lines in length, she concludes that, since chiropractors may practice physical therapy because it is within the scope of the practice chiropractic, then, the General Assembly must not have meant what it appears to have plainly said.

This surprising and shocking decision must be strongly and swiftly challenged in the Commonwealth Court. Indeed, if this decision is allowed to stand the Physical Therapy Practice Act established by the Legislature will be a nullity. The decision will, in effect, grant chiropractors the right to practice physical therapy and advertise it without meeting the educational requirements of the Physical Therapy Act and then obtaining a license from the state. whatever else the Legislature intended in passing the Physical Therapy Practice Act, the PPTA firmly believes it did not intend to give the chiropractors a license to practice the scope of physical therapy practice.

Each and every member should understand what this means to your profession-PHYSICAL THERAPY. We need to ask for your financial support again to protect your profession. We also need you to contact all non-member peers and increase their awareness of this issue. We need their support as well.