Huber v. South Carolina State Bd. of Physical Therapy Examiners, 24113

• Decision Date: 08 June 1994
• Docket Number: No. 24113,24113
• Parties: Randall M. HUBER, Jr., PT, Respondent, v. S.C. STATE BOARD OF PHYSICAL THERAPY EXAMINERS, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 433

446 S.E.2d 433

316 S.C. 24

Randall M. HUBER, Jr., PT, Respondent, v. S.C. STATE BOARD OF PHYSICAL THERAPY EXAMINERS, Appellant.

No. 24113.

Supreme Court of South Carolina.

Heard June 8, 1994.

Decided July 5, 1994.

Rehearing Denied July 28, 1994.

Ruby Brice McClain, of the Office of Atty. Gen., Columbia, for appellant.

John R. Ferguson, of Cox & Ferguson, Laurens, for respondent.

HARWELL, Chief Justice:

The S.C. Board of Physical Therapy Examiners (Board) appeals from the reversal of its finding that Randall M. Huber, Jr. (Huber) engaged in "unprofessional conduct" claiming that the trial judge erred in ruling that the standards Huber allegedly violated are unconstitutionally vague. We agree and reverse.

I. Facts

The Board filed a complaint alleging that Huber, a registered physical therapist, engaged in "unprofessional conduct" by allowing unregistered persons in his employ to administer physical therapy, by failing to conduct periodic reexaminations as required by law, and by allowing assistants to administer physical therapy treatment without a physical therapist's initial evaluation. The complaint also alleged that Huber "failed to make and/or keep proper entries in patients' records" and "either omitted or reflected incorrect or false information in patients' records." Huber moved to dismiss the complaint on the ground that it failed to give notice as to the charges against him. The Board, by letter, provided Huber with patient and employee names, locations, and in some instances, dates of the alleged violations. The letter also limited allegations of improper record keeping to a single patient.

At the hearing, Huber admitted training unregistered employees to perform physical therapy procedures, allowing them to give various treatments to patients, and recording treatment notes for the procedures these employees performed although he was not present for the treatment. Based on the evidence presented at the hearing, the Board ruled that Huber had intentionally and knowingly engaged in "unprofessional conduct" consisting of "facilitating, and condoning the practice of physical therapy [by persons] not duly registered" and preparing false treatment notes. ¹ Pursuant to its authority under S.C.Code Ann. § 40-45-200(3) (1986), the Board ordered Huber's registration suspended for six months followed by a three year probationary period. Imposition of these sanctions was stayed pending Huber's appeal.

On appeal, Huber alleged, among other things, that the Board violated due process by failing to give notice of definite standards of conduct prior to enforcing those standards and by failing to provide notice that the allegations would extend to improper record keeping of more than one patient. The trial judge reversed the Board's order finding that standards for the professional conduct of physical therapists were "non-existent" and that Huber was only given notice that he would have to defend claims of improper recordkeeping as to one patient. The Board appeals.

II. Discussion

The Board first contends that the trial judge erred in finding that the rules governing a physical therapist's conduct are so vague as to be constitutionally unenforceable. We agree.

The constitutional standard for vagueness is the practical criterion of fair notice to those to whom the law applies. Toussaint v. State Bd. of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991). When the persons affected by the law constitute a select group with a specialized understanding of the subject being regulated, the degree of definiteness required to satisfy due process is measured by the common understanding and knowledge of the group. Id. at 320, 400 S.E.2d at 491. With these principles in mind, we turn to whether Huber had fair notice that training unregistered persons to perform physical therapy and then allowing them to treat patients was prohibited.

S.C.Code Ann. § 40-45-100 (1986) provides that "[n]o person shall practice, nor hold himself out to be able to practice, physical therapy in this State unless he is registered in accordance with the provision of this chapter....." (emphasis added). "Physical therapy" is defined as "the evaluation and treatment of any bodily or mental condition of any person by the use of physical, chemical, or mechanical agents, the properties of heat, light, water, electricity, massage, sound, and therapeutic exercises, including rehabilitation procedures, all under the prescription of a licensed doctor of medicine or dentistry...." S.C.Code Ann. § 40-45-20 (1986) (emphasis added). We...