Sloan v. Sc Bd. of Physical Therapy ex'Mnrs, No. 26209.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBurnett
Docket NumberNo. 26209.
PartiesAllen SLOAN, M.D.; Doctor's Care, P.A.; Barry E. Fitch, P.T.; Jerry O'Reilly, P.T.A.; Oaktree Medical Centre, P.C.; FirstChoice Healthcare, P.C.; Southern Orthopaedic Sports Medicine, LLC; and South Carolina Medical Association, Plaintiffs, Of Whom Doctor's Care, P.A.; Barry E. Fitch, P.T.; Jerry O'Reilly, P.T.A.; Oaktree Medical Centre, P.C.; FirstChoice Healthcare, P.C.; and Southern Orthopaedic Sports Medicine, LLC, are, Appellants, v. SOUTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS; South Carolina Chapter, American Physical Therapy Association; and the Attorney General of the State of South Carolina, Respondents, and South Carolina Association of Medical Professionals and South Carolina Orthopaedic Association, Appellants, v. South Carolina Board of Physical Therapy Examiners, Respondent.
Decision Date25 September 2006

Page 598

636 S.E.2d 598
Allen SLOAN, M.D.; Doctor's Care, P.A.; Barry E. Fitch, P.T.; Jerry O'Reilly, P.T.A.; Oaktree Medical Centre, P.C.; FirstChoice Healthcare, P.C.; Southern Orthopaedic Sports Medicine, LLC; and South Carolina Medical Association, Plaintiffs,
Of Whom Doctor's Care, P.A.; Barry E. Fitch, P.T.; Jerry O'Reilly, P.T.A.; Oaktree Medical Centre, P.C.; FirstChoice Healthcare, P.C.; and Southern Orthopaedic Sports Medicine, LLC, are, Appellants,
v.
SOUTH CAROLINA BOARD OF PHYSICAL THERAPY EXAMINERS; South Carolina Chapter, American Physical Therapy Association; and the Attorney General of the State of South Carolina, Respondents, and
South Carolina Association of Medical Professionals and South Carolina Orthopaedic Association, Appellants,
v.
South Carolina Board of Physical Therapy Examiners, Respondent.
No. 26209.
Supreme Court of South Carolina.
Heard June 7, 2006.
Decided September 25, 2006.
Rehearing Denied November 13, 2006.

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James G. Long, III, and Manton M. Grier, Jr., both of Nexsen Pruet Adams Kleemeier, L.L.C., of Columbia, for Appellants Doctors Care, P.A.; Barry E. Fitch, P.T.; Jerry O'Reilly, P.T.A.; Oaktree Medical Centre, P.C.; FirstChoice Healthcare, P.C.; and Southern Orthopaedic Sports Medicine, LLC.

Stephen P. Bates and Mary Margaret Hyatt, both of McAngus, Goudelock & Courie, L.L.C., of Columbia, for Appellants South Carolina Association of Medical Professionals and South Carolina Orthopaedic Association.

Monteith P. Todd of Sowell Gray Stepp & Laffitte, L.L.P., of Columbia, for Respondent South Carolina Board of Physical Therapy Examiners.

R. Bruce Shaw and Alice V. Harris, both of Nelson Mullins Riley & Scarborough, L.L.P., of Columbia, for Respondent South Carolina Chapter, American Physical Therapy Association.

Henry D. McMaster, T. Stephen Lynch, Robert D. Cook, and C. Havird Jones, all of the South Carolina Office of Attorney General, of Columbia, for Respondent Attorney General of the State of South Carolina.

Charles E. Carpenter, Jr., and Carmen V. Ganjehsani, both of Richardson, Plowden, Carpenter & Robinson, P.A., of Columbia, for Amicus Curiae American Association of Orthopaedic Surgeons.

William J. Watkins, Jr., and Sandra L.W. Miller, both of Womble Carlyle Sandridge & Rice, L.L.C., of Greenville, for Amicus Curiae William Davis, Barry Cohen, Bruce Carlson, and George Todd.

Justice BURNETT:


In this appeal, we are asked to decide the novel issue of whether a physical therapist in South Carolina is statutorily prohibited from working as an employee of a physician who refers patients to the physical therapist for services.

FACTUAL AND PROCEDURAL BACKGROUND

The arrangement at issue, known within the medical profession as a physician-owned physical therapy service, or POPTS, has generated debate nationwide since the mid-1970s. The debate is driven in part by money, i.e., whether physicians or physical therapists will primarily benefit from fees paid by therapy patients, and in part by ethical concerns about actual and potential conflicts of interest. The debate also implicates issues of control and prestige among medical professionals. Two position statements from leading organizations on both sides of the issue offer a beneficial summary of the concerns.

The American Physical Therapy Association (APTA) opposes physician-owned physical therapy services.

Physical therapy referral for profit describes a financial relationship in which a physician, podiatrist, or dentist refers a patient for physical therapy treatment and gains financially from the referral. A physician can achieve financial gains from referral by (a) having total or partial ownership

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of a physical therapy practice, (b) directly employing physical therapists, or (c) contracting with physical therapists. The most common form of referral for profit relationship in physical therapy is the physician-owned physical therapy service, known by the acronym "POPTS." The problem of physician ownership of physical therapy services was first identified by the physical therapy profession in the journal Physical Therapy in 1976. While POPTS relationships were still limited in number in 1982, Charles Magistro, former APTA President, characterized POPTS as, "a cancer eating away at the ethical, moral and financial fiber of our profession."

For many years, the [APTA] has opposed referral for profit and physician ownership of physical therapy services, taking the position that such arrangements pose an inherent conflict of interest impeding both the autonomous practice of the physical therapist and the fiduciary relationship between the therapist and patient. . . . However, in recent years, facing pressures of decreasing revenues and increased costs of malpractice insurance premiums, and aided by weakening of federal antitrust legislation, physicians have accelerated the addition of POPTS to their practice. APTA's push to achieve autonomous practice and direct access are in conflict with the medical profession's renewed push to subsume physical therapy as an ancillary service for financial gain.

At the center of the clash between these two opposing forces are two questions: First, should one profession be able to claim financial control over another? Second, what are the real and potential consequences of referral-for-profit relationships and, more specifically, POPTS?

"Position on Physician-Owned Physical Therapy Services (POPTS)," An American Physical Therapy Association White Paper 1 (January 2005) (available at http://www.aptaco.org/POPTSWhitePaperfinal.pdf) (footnotes omitted).

In its position statement, the APTA asserts that a physical therapist employed by a physician creates an inevitable conflict of interest, results in a loss of consumer choice in selecting a therapist, and drives up health care costs because physicians in self-referral relationships prescribe or continue therapy based more on financial gain than patient needs. "Having a financial interest in other services to which a physician refers a client may cloud the physician's judgment as to the need for the referral, as well as the length of treatment required. Similarly, the physical therapist employed by a physician may face pressure to evaluate and treat all patients referred by the physician, without regard to the patient's needs." APTA White Paper, supra, at 3.

In contrast, the American Association of Orthopaedic Surgeons (AAOS) views physical therapy as an ancillary service offered by physicians and contends POPTS benefit patients, physicians, and therapists.

POPTS gives physicians a greater role in the physical therapy services provided to patients. In-office therapy allows therapists and physicians to work together as a team, exchanging information and sharing ideas. The frequency and immediacy of feedback allow for the fine-tuning of therapeutic protocols that serves to improve patient outcomes. A study comparing on-site physical therapy delivered in physician offices versus other sites concluded that patients who receive on-site physical therapy lose less time from work and resume normal duties more quickly.

Frequent and timely feedback between therapists and physicians also reduces over-utilization of services. . . . [T]he ability to exchange information on a patient in a frequent and timely fashion serves to reduce errors. . . .

POPTS offers patients direct and immediate access to Physical Therapists after the physician has seen them. Moreover, patients have the ability to schedule physician and physical therapy appointments at or near the same time and in the same office. . . .

Recently, there have been attempts by some groups to add language, as well as interpret existing statutory language, to state Physical Therapy Practice Acts that would prohibit Physical Therapists from

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working for physicians and physician group practices. These activities seem to be motivated more by the financial interests of those providing care than by what is in the best interests of patients. . . . The [AAOS] believes that patients should have access to quality, comprehensive and non-fragmented care. Doctors, nurses, physician's assistants, Physical Therapists and other health practitioners work together, often in the same office, to provide comprehensive care to patients. Separation of these services would only serve to disrupt a patient's treatment and further inconvenience them.

"Position Statement on Physician-Owned Physical Therapy Services," American Association of Orthopaedic Surgeons (December 2004) (available at http://www.aaos.org/ wordhtml/papers/position/1166.htm) (footnotes and bold/italic fonts omitted). An amicus brief filed by the AAOS in the present case echoes these same arguments and recites portions of the group's position statement.

Congress engaged in a similar debate in recent years, resulting in the enactment in 1989 and 1993 of the federal self-referral "Stark laws," named for their primary sponsor, Congressman Fortney "Pete" Stark. These provisions generally prohibit, with limited exceptions, physicians from referring patients to various types of facilities in which they are owners or investors, including clinical laboratories, centers with medical scanning equipment, and physical and radiation therapy facilities. The acts were "designed to address the strain placed on the Medicare Trust fund by the overutilization of certain medical services by physicians who, for their own financial gain rather than their patients' medical need, referred patients to entities in which the physicians held a financial interest." American Lithotripsy Soc. v. Thompson, 215 F.Supp.2d 23, 26-28 (D.D.C.2002) (discussing enactment and purposes of Stark laws, codified at 42 U.S.C. § 1395nn); Eighty-Four Min. Co. v. Three Rivers Rehabilitation, Inc., 554 Pa. 443, 721 A.2d 1061, 1063-67...

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  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...engaged in an arbitrary or wrongful act in enacting the [S]tatute[s]." Sloan v. S.C. Bd. of Physical Therapy Exam'rs , 370 S.C. 452, 484, 636 S.E.2d 598, 615 (2006), overruled on other grounds by Joseph v. S.C. Dep't of Labor, Licensing & Regulation , 417 S.C. 436, 790 S.E.2d 763 (2016). Th......
  • Joseph v. S.C. Dep't of Labor, Appellate Case No. 2014–001115
    • United States
    • United States State Supreme Court of South Carolina
    • September 14, 2016
    ...40–45–110(A)(1) of the South Carolina Code, as construed in Sloan v. South Carolina Board of Physical Therapy Examiners , 370 S.C. 452, 636 S.E.2d 598 (2006). 417 S.C. 443 We overrule our decision in Sloan, and reverse the circuit court's order in this case.Facts /Procedural HistoryThis cas......
  • Travelscape Llc v. South Carolina Dep't of Revenue, No. 26913.
    • United States
    • United States State Supreme Court of South Carolina
    • January 18, 2011
    ...consonant with the purpose, design, and policy of lawmakers.” Sloan v. S.C. Bd. of Physical Therapy Examiners, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006). When faced with an undefined statutory term, the Court must interpret the term in accordance with its usual and customary meaning. Br......
  • Gainey v. Gainey, No. 4515.
    • United States
    • Court of Appeals of South Carolina
    • March 4, 2009
    ...or forced construction to limit or expand the statute's operation. Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 469, 636 S.E.2d 598, 607 (2006). Here, clearly, the reconciliation requirement in S.C.Code Ann. § 20-3-90 (1976) is required only in divorce actions. No other mean......
  • Request a trial to view additional results
84 cases
  • Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728
    • United States
    • United States State Supreme Court of South Carolina
    • March 29, 2017
    ...engaged in an arbitrary or wrongful act in enacting the [S]tatute[s]." Sloan v. S.C. Bd. of Physical Therapy Exam'rs , 370 S.C. 452, 484, 636 S.E.2d 598, 615 (2006), overruled on other grounds by Joseph v. S.C. Dep't of Labor, Licensing & Regulation , 417 S.C. 436, 790 S.E.2d 763 (2016). Th......
  • Joseph v. S.C. Dep't of Labor, Appellate Case No. 2014–001115
    • United States
    • United States State Supreme Court of South Carolina
    • September 14, 2016
    ...40–45–110(A)(1) of the South Carolina Code, as construed in Sloan v. South Carolina Board of Physical Therapy Examiners , 370 S.C. 452, 636 S.E.2d 598 (2006). 417 S.C. 443 We overrule our decision in Sloan, and reverse the circuit court's order in this case.Facts /Procedural HistoryThis cas......
  • Travelscape Llc v. South Carolina Dep't of Revenue, No. 26913.
    • United States
    • United States State Supreme Court of South Carolina
    • January 18, 2011
    ...consonant with the purpose, design, and policy of lawmakers.” Sloan v. S.C. Bd. of Physical Therapy Examiners, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006). When faced with an undefined statutory term, the Court must interpret the term in accordance with its usual and customary meaning. Br......
  • Gainey v. Gainey, No. 4515.
    • United States
    • Court of Appeals of South Carolina
    • March 4, 2009
    ...or forced construction to limit or expand the statute's operation. Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 469, 636 S.E.2d 598, 607 (2006). Here, clearly, the reconciliation requirement in S.C.Code Ann. § 20-3-90 (1976) is required only in divorce actions. No other mean......
  • Request a trial to view additional results

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