Are POPTS really dead?

I am frequently reading the word fair in articles referring to the landscape of out patient physical therapy practice and the matter of POPTS; as in "It isn't fair that POPTS exist and monopolize patient referrals."  Since when has business ever been fair?  The defeat of AB 783 has been purported to be the great equalizer in California out patient physical therapy.  It is supposed to once and for all put a stop to physicians employing physical therapists and thereby, leveling the playing field by eliminating POPTS and referral for profit in the state of California.... hooray!  Well I have news for those of you that think this is the case.  As with most complicated issues, it just isn't that simple.

• First off, let's review the history of this matter.   Business arrangements between MD's and PT's that were deemed completely legal by the California Physical Therapy Association in 1990, magically became taboo two years ago when the California Private Practice Special Interest Group stumbled upon a piece of legislature from 1968 that provided a loop hole to move the anti-POPTS movement forward.  They quickly lobbied to change the code of the California Practice Act and made way for its recent interpretation of the Moscone-Knox Professional Corporation Act which is what AB 783 was intended to amend, making it legal for medical corporations to employ PT's.  For those readers that might not know, AB 783 was hung up in a state senate subcommittee in June that effectively killed the bill through 2012.   
• 2010 The PT Board voted unanimously that they can independently enforce this matter on its licensed members.
• Now that there is no impediment to their interpretation of The Moscone-Knox Act, and the Board can threaten the licenses of its members, POPTS should be finished due to the fact that medical corporations can't employ PT's and if they do their PT's loose their licenses, right?  Maybe.  At least that has been the backbone for the rhetoric published over the past month. 

First the PT Board of CA has to defend why this was deemed to NOT be a problem since 1968 until about two years ago.  If they can make that argument in court, there has been little mention about how they are going to address the fact that physician groups have taken out leases, purchased practices, and made significant capital investment on PT departments over the past 20 years based on the LEGAL interpretation that has been on the books since Stark II re-opened the door for this type of business practice in the early 90's.  If AB 783 is to be enforced via the California PT board, there surely will be law suits to follow that address the financial losses that will result from its enforcement.    These cases will not be heard overnight, and this litigation will surely slow the implementation of any such enforcement.  That could take many months to even years for its impact to be significantly felt in the PT community.   So let's slow down a little before we raise the victory flag and pat ourselves on the back.  The PT board to date (7/19/11) is still taking the matter under review, which means currently there is no official change in the business of out patient PT from a legal standpoint in California, regardless of what is being shouted from the bleachers of the private practice special interest group in California.
And if that isn't fair enough, let us not forget there is more than ample wiggle room in the laws of California business structure to create contract scenarios and even PT corporations that can provide services to medical groups.  These arrangements could effectively hold many referral patterns in place while the next shoe drops (see ACO in future blogs), all of which will be be completely legal. This fight is far from over my friends, and even if this battle is won, we are about to get an ACO wake up call in Southern California that will literally make all this minutia irrelevant in the very near future.