The Answer: Why PT Board CA Backs-Off

Based on this August 30, 2011 report from NBC LA, I think I understand why the PT Board of CA changed its tune so quickly.

The California Medical Association and its legislative allies in Sacramento have triggered a state audit of a regulatory agency that, they say, is too cozy with independent practitioners in the lucrative physical therapy trade.

On April 23, the Assembly's Joint Legislative Audit Committee voted 12-2 in favor of a five-month examination of the Physical Therapy Board of California, the watchdog agency responsible for overseeing "PT" clinics and practitioners across the state.

To see the entire article, click on link below.

http://www.nbclosangeles.com/news/politics/Physical-Therapy-Group-Audited-by-State-128717163.html

You can only guess if this audit had anything to do with slowing down the Board on enforcing action against POPTS clinics, but my guess is this is what put the brakes on things.  Of course, the whining about this matter couldn't be louder from the PT world as noted by most of the comments on this story.  For a detailed build up to this point, please read my previous blog dated 8/31/11 on this topic.

Insight on PT Board Backing-Off POPTS Enforcement with Commentary on the Private Practice Special Interest Group of CA

As of August 25, 2011 the Board has backed off enforcing their July 2011 interpretation of the Moscone-Knox Act.  As with most good stories, there is more than meets the eye with this one.  A timeline will help clarify the Board's recent position change.

Business arrangements between MD's and PT's that were deemed completely legal by the California Physical Therapy Association in 1990, magically became taboo in 2010 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.  AB 783 was subsequently hung up in a state senate subcommittee in June 2011, that effectively killed the bill through 2012.   A victory for the CAPTA.

May 2011, the following letter was sent to the Audit Committee at the California State Capital regarding the actions of the CA PT Board from Mary Hayashi, congresswoman and author of AB 783.  Apparently there might be a few problems with how the Board and the Private Practice Section have been interfacing, how the Board has been adjudicating this process, and if public funds have been used appropriately by the PT Board members.     

July 20, 2011 despite this letter, the Board pushed the button (by the urging of the Private Practice Section) and sent out 155 letters to therapists that had been reported to them by "the public", otherwise known as, competing out-patient therapists.  

August 3, 2011 at their quarterly board meeting, the Physical Therapy Licensing Board (PTBC) had a change of heart.  They heard testimony from the Department of Consumer Affairs, the California Orthopaedic Association, the California Physical Therapy Association, and the California Private Practice Group.  The two former groups pressed the Board to hold off on enforcement of Moscone-Knox Act.  Paul Gaspar and Jim Dagostino, both PT's speaking on behalf of the Private Practice section urged immediate action continue to proceed against POPTS clinics.

August 25, 2011 the Board sent out letters to those POPTS therapists who had submitted compliance plans informing them that they were suspending enforcement of all pending cases until additional legislative time passes to clarify the existing law.  A total reversal of their July position and a clear defeat for the private practice group.  

Why did the Board change course?  Take a look at this timeline and draw your own conclusions.  But I think their actions make it clear that the PT Board realizes there are more than a few holes in their case and want to hold off on getting hammered in court as things stand currently.  Especially if you consider that the Board's big push to enforce the Moscone Knox Act was based on two factors.  One, they had to change the PT practice act that had been in effect for over 20 years to accommodate enforcement procedures by the Board.  Second, the entire basis of their legal argument was based on one or two legal opinions, which don't necessarily have any jurisdiction on the Board or its members.  Specifically:

• Lawyers on the CMA (California Medical Association) have pointed out that this move was based on the opinion paper by Legislative Counsel which isn't binding to the board or its licensees.  
• Unenforceable underground regulation is the term that was used by CMA lawyers to define the CA Boards move to change the practice act in order to enforce their "new" interpretation of Moscone Knox.  This term does not seem to be one that would hold up in court if proved to be true.
• For the entire CMA argument, see my previous blog: CMA Responds to CPTA POPTS Mandates.  Although this letter was dated December 2010, it clearly was a shot across the Board's bow letting them know enforcement of Moscone-Knox, based on an opinion paper, was definitely going to be challenged in court.

• And to put a cherry on top of this story, an email was sent out to orthopedic section members on August 29, 2011 from the CA Private Practice Group Board of Directors stating that due to the actions of Mary Hayashi, the key proponent of AB 783, and her recent inquiry into the PT Boards actions, they want to try to organize a recall of the congresswoman!  Are you kidding me?  
• Shouldn't the private practice section be focusing on clearing themselves of the accusations made in the May 2011 inquiry and focus on the strength of their legal argument (as well as start raising funds for the impending legal battle) instead of going off on yet another emotional rant regarding this issue?   This type of back biting, reactionary politics is unsightly and ineffective at best.  It begs the question: Can the CAPTA afford to waste time, money, and effort on a cause like recalling a political opponent when its Board has misfired this badly over the span of one month?  
• One final point that I hope does not get lost in the minutia of this story.  For all those involved in the POPTS debate both in California and nationally, it should not be overlooked that AB 783 and the surrounding legal debate is serious legislation that has the potential to effect the lives of thousands of therapists not only in California, but the entire United States when you consider how it will be used for precedent in other states.  It should be treated as such by our elected PT representatives.  
• A question for my colleagues.  Why would the private practice section feel the need to go down the recall road (a day after they realized the Board was backing off enforcing their anti-POPTS position) when they successfully defeated this congresswoman and her bill just a few months ago?   Recall her!?  Going in this direction would appear to only muddy the water, making it more difficult to appreciate the good work they just recently accomplished.   
• The Private Practice Section of CA might need to be reminded that they are representing a group of educated professionals in this debate.  Their arguments and actions should be based on fact and merit, and regardless of what tactics are being used on the other side of the isle, conduct themselves with dignity at all times.  If they are deemed to be on the right side of this legal matter, their voice will eventually be heard.   With this in mind, my sincere hope is that they start conducting themselves accordingly.  

CA PT Board Backs Off POPTS Enforcement on California PT's

If you are one those people that thought September 1, 2011 was going to be the end of POPTS (Physician Owned Physical Therapy Service) clinics in California, you probably lost sleep on the eve of the Rapture too.  Allow me to be the one to break it to you, September 1 has as much to do with the end of POPTS as the Rapture did with the end of the world.  
For those of you that have been following this blog, you know that I direct a POPTS clinic and submitted my compliance plan to the board several weeks ago (see blog dated 7/27/11).   Today, I received their response letter and what did it say.....

On August 3, 2011 the Board adopted a motion to suspend enforcement of all pending cases relating to alleged violations of the Moscone Knox Professional Corporations Act.  The Board took this action in order to afford the Legislature time to clarify the existing law.  Accordingly, the Board will take no further action until the Legislature has had an opportunity to take appropriate legislative action to address the issue.

They go on to later state they will continue to monitor the issue, place it on future meeting agendas, but will not be seeking additional compliance plans at this time and no further action is required by individuals working in a POPTS structure.   In other words, it's business as usual..... indefinitely.  Imagine that!?  The home run that the CA Private Practice Section has been so busy patting themselves on the back for over the past 2 months, is really just a long fly ball to right field.