RULES AND REGULATIONS
STATE BOARD OF PHYSICAL THERAPY
[49 PA. CODE CH. 40]
Certificate of Authorization
[34 Pa.B. 3700] The State Board of Physical Therapy (Board) amends §§ 40.2 and 40.5 (relating to practice of medicine prohibited; and fees) and adds §§ 40.61--40.63 (relating to certificate of authorization to practice physical therapy without a referral; professional liability insurance; and continuing education) to read as set forth in Annex A.
A. Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Statutory Authority
The final-form rulemaking is adopted by the Board under section 3 of the Physical Therapy Practice Act (act) (63 P. S. § 1303) and section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a). The act of February 21, 2002 (P. L. 234, No. 6) (Act 6) (63 P. S. § 1309) amended the act to permit a physical therapist to practice physical therapy without obtaining a referral from a physician if the physical therapist qualifies for and obtains from the Board a certificate of authorization to practice physical therapy without a referral. The final-form rulemaking implements Act 6.
C. Background and Purpose
The final-form rulemaking provides for the issuance of a certificate of authorization by the Board under Act 6. The final-form rulemaking establishes a fee for the issuance of a certificate and otherwise establishes the requirements and conditions for obtaining and practicing under a certificate.
D. Summary of Comments and Responses on Proposed Rulemaking
Notice of the proposed rulemaking was published at 33 Pa.B. 5742 (November 22, 2003). The Board received comments from the Independent Regulatory Review Commission (IRRC), the House Professional Licensure Committee (HPLC), the Pennsylvania Medical Society (PMS), the Pennsylvania Physical Therapy Association (PPTA) and NovaCare Rehabilitation (NovaCare). The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not submit comments. Responses to these comments are organized by subject as follows.
§ 40.2. Practice of medicine prohibited.
IRRC pointed out that the existing § 40.2 states ''The license issued to those practicing physical therapy does not authorize . . . the right to apply any of these treatments except upon the referral of a physician . . . .'' Act 6 amended section 9(a) of the act (63 P. S. § 1309(a)) to state ''Except as provided in subsection (b), no person licensed under this act as a physical therapist shall treat human ailments by physical therapy or otherwise except by referral.'' Subsection (b) provides the conditions for practice without referral. IRRC suggested that § 40.2 be made consistent with section 9 of the act. The Board has agreed with this suggestion and has amended § 40.2 to be consistent with section 9 of the act.
§ 40.61. Certificate of authorization to practice physical therapy without a referral.
IRRC, the PMS and the HPLC commented that § 40.61 does not reflect the requirement of section 9(d)(3) of the act whereby a physical therapist must refer patients to a licensed physician or other appropriate health care practitioner in ''cases for which treatment is beyond the education, expertise or experience of the physical therapist.'' The Board has added these statutory limitations to § 40.61(d).
The HPLC and the PMS asked if the Board would consider including in these regulations the list of prohibited acts set forth in section 9(b) of the act. The Board has agreed to include the list under § 40.16(f).
IRRC asked the Board to explain its process in determining that ''continuous practice'' should consist of 200 hours each year of physical therapy in the delivery of patient care. The Board arrived at the 200 hours based upon the standard used by the American Board of Physical Therapist Specialists that requires 2,000 hours of practice over 10 years to maintain certification as a specialist. The Board averaged this out to total 200 hours per year.
IRRC also recommended that the definition of ''continuous practice'' in subsection (a) should be moved from paragraph (5) to paragraph (3) for clarity purposes. The Board agrees and has implemented this suggestion.
The PPTA, the HPLC and NovaCare asked the Board to consider types of settings other than the delivery of patient care as meeting the ''continuous practice'' requirement of 200 hours each year of the practice of physical therapy in the delivery of direct patient care. In particular, the PPTA commented that an individual in an academic setting that may qualify as a course sponsor/presenter might not meet this clinical requirement. Similarly, an individual who is involved in the management of a practice and is regularly determining appropriateness of care, adequacy of documentation and quality of care may not meet this requirement. The PPTA contends that these individuals would be in a position of decision making with regard to an applicant's ability to practice physical therapy without a referral but would not be able to do so themselves. The Board considered this comment but notes that to meet this requirement, academics would only need to practice 4 hours each week and that most institutions provide that clinical opportunity. In addition, the 200 hours per year is only required for initial certification, not for renewal of the certification. Accordingly, the Board does not believe that an amendment to this requirement is necessary.
The PPTA also asked how the 200 hours will be tracked and how the Board will verify the 200 hour requirement. The Board intends to require the applicant on the application for initial certification to attest that the applicant has completed at least 200 hours each year in the delivery of direct patient care for at least 2 years immediately preceding the filing of the application. If the Board has reason to suspect that the applicant's statement is incorrect, the applicant will be required to provide documentation or other evidence in support of the statement.
The PPTA and NovaCare also asked for clarification on whether the 200 hours of direct patient care would only be required for initial certification or if it would also be required for purposes of renewal of the certification. NovaCare asked if part of the 200 hours could be acquired through additional continuing education rather than through direct patient care. Under Act 6, the 200 hour ''continuous practice'' requirement relates only to initial certification, not to renewal of the certificate. The final-form rulemaking tracks the act and requires the 200 hours for purposes of initial certification only.
§ 40.63. Continuing education.
The PPTA asked for an explanation as to why continuing education is not required until after the first renewal of the certificate of authorization. The reason is that the licensee would not normally have had the entire renewal period to complete the required credit hours. For example, a licensee who receives the initial certificate midway through the renewal cycle would only have half the time to complete all the credits. This would be inherently unfair to the certificateholder.
E. Fiscal Impact and Paperwork Requirements
There should be no adverse fiscal impact or additional paperwork requirements incurred by the Board, political divisions or the private sector.
F. Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
G. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 22, 2003, the Board submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 5742, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 26, 2004, the final-form rulemaking was approved by the HPLC. The amendments were deemed approved by the SCP/PLC on June 9, 2004. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 10, 2004, and approved the final-form rulemaking.
H. Contact Person
Interested persons may obtain information regarding the final-form rulemaking by writing to Robert Kline, Board Administrator, State Board of Physical Therapy, P. O. Box 2649, 2601 North 3rd Street, Harrisburg, PA 17105-2649.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments to the final-form rulemaking do not enlarge the purpose of the proposed rulemaking published at 33 Pa.B. 5742.
(4) The final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing act identified in Part B of this preamble.
J. Order
The Board, acting under its authorizing statute, orders that:
(1) The regulations of the Board, 49 Pa. Code Chapter 40, are amended by amending §§ 40.2 and 40.5 and by adding §§ 40.61--40.63 to read as set forth in Annex A.
(2) The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(3) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(4) This order shall take effect upon publication in the Pennsylvania Bulletin.
JAMES J. IRRGANG,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 3336 (June 26, 2004).)
Fiscal Note: Fiscal Note 16A-6510 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 40. STATE BOARD OF PHYSICAL THERAPY
Subchapter A. PHYSICAL THERAPISTS
GENERAL PROVISIONS § 40.2. Practice of medicine prohibited.
The license issued to those practicing physical therapy does not authorize the right to use the title ''Doctor of Medicine'' or the right to use drugs administered internally. Except as authorized in section 9 of the act (63 P. S. § 1309), a person licensed under the act as a physical therapist may not treat human ailments by physical therapy or otherwise except upon the referral of a physician or other person authorized by law to order the same.
§ 40.5. Fees.
The following fees are charged by the Board:
Physical therapist:
Application for licensure by examination/
endorsement$30 Application for licensure through foreign
training$45 Verification of licensure or temporary permit $15 Certification of examination scores or licensure $25 Temporary license $15 Biennial renewal $37 Application for Certificate to Practice Physical Therapy without a referral $30 Biennial renewal of Certificate to Practice Physical Therapy without a referral $37 Application for approval of continuing education provider or program (per each course offered) $40 Athletic trainer: Application for certification $20 Biennial renewal $37 Certification of examination scores or
certification$25 Verification of certification $15 Physical therapist assistants: Initial application for registration by exam or endorsement $30 Certification of exam scores or registration $25 Biennial renewal of registration $20 Verification of registration $15
PRACTICE WITHOUT PHYSICIAN REFERRAL § 40.61. Certificate of authorization to practice physical therapy without a referral.
(a) An applicant for certification of authorization to practice physical therapy without the referral of a licensed physician shall submit evidence satisfactory to the Board, on forms supplied by the Board, that the applicant has met the following requirements:
(1) Holds a current license to practice physical therapy in this Commonwealth.
(2) Has done one of the following:
(i) Passed the National Physical Therapy Examination (NPTE) after January 1, 1990.
(ii) Passed the NPTE prior to January 1, 1990 and successfully completed, within 2 years prior to application, a Board approved course consisting of at least 10 hours on the appropriate evaluative and screening procedures to determine the need for further examination or consultation by a physician, dentist or podiatrist prior to initiating treatment without a referral. The Board will maintain a list of currently approved courses.
(3) Has done one of the following:
(i) Practiced physical therapy in the delivery of patient care on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.
(ii) Been licensed by endorsement and practiced physical therapy in the delivery of patient care as a licensed physical therapist in the other state on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.
(iii) Provided proof of meeting these practice requirements through any combination of subparagraphs (i) and (ii).
(iv) For purposes of this section, ''practice of physical therapy on a continuous basis'' is defined as a minimum of 200 hours each year in the delivery of direct patient care.
(4) Has obtained professional liability insurance under the requirements of § 40.62 (relating to liability insurance).
(b) A certificateholder shall display the certificate of authorization in a manner conspicuous to the public.
(c) A certificateholder may not delegate the care of a patient being treated without a referral to a physical therapist who is not a certificateholder.
(d) A certificateholder shall refer patients to a licensed physician or other appropriate health care practitioner in the following cases:
(1) Cases where symptoms are present for which physical therapy is a contraindication.
(2) Cases for which treatment is outside the scope of practice of physical therapy.
(3) Cases for which treatment is beyond the education, expertise or experience of the physical therapist.
(e) A certificateholder may treat a person without a referral as provided in this chapter for up to 30 calendar days from the date of the first treatment. A physical therapist may not treat a person beyond 30 days from the date of the first treatment unless the person has obtained a referral from a licensed physician, dentist or podiatrist. The date of the first treatment for purposes of this subsection is the date the person is treated by any physical therapist treating without a referral.
(f) A certificateholder may not treat a condition in any person which is a nonneurologic, nonmuscular or nonskeletal condition or treat a person who has an acute cardiac or acute pulmonary condition unless the certificateholder has consulted with the person's licensed physician, dentist or podiatrist regarding the person's condition and the physical therapy treatment plan or has referred the person to a licensed physician, dentist or podiatrist for diagnosis and referral.
§ 40.62. Professional liability insurance.
(a) Beginning January 1, 2005, or upon applying for a certificate of authorization, whichever occurs earlier, a licensee who applies for and obtains a certificate of authorization shall obtain and maintain professional liability insurance coverage in the minimum amount required to be maintained by physicians under section 711 of the Medical Care Availability and Reduction of Error (MCARE) Act (40 P. S. § 1303.711).
(b) A certificateholder shall notify the Board within 30 days of the holder's lapse in coverage of the required insurance.
(c) The certificate of authorization will automatically be suspended upon failure to be covered by the required insurance and will not be restored until submission to the Board of satisfactory evidence that the licensee has the required professional liability insurance.
(d) Satisfactory evidence of insurance coverage is any one of the following:
(1) A self-insurance plan that meets the standards and procedures established by the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans).
(2) Personally purchased professional liability insurance.
(3) Professional liability insurance, coverage provided by the licensee's employer.
(4) A similar type of coverage.
§ 40.63. Continuing education.
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Certificateholder--A licensed physical therapist who holds a certificate of authorization to practice physical therapy without a referral.
Contact hour--A unit of measure equaling 60 minutes of participation in an approved continuing education course or program.
(b) Continuing education requirement for renewal of certificate of authorization. Beginning after the first renewal of the certificate of authorization, as a condition of certificate renewal, a physical therapist shall have completed during the preceding biennium a minimum of 20 contact hours of physical therapy continuing education related to keeping the certificateholder apprised of advancements and new developments in the practice of the physical therapy profession. At least 10 of the 20 contact hours shall be in evaluative procedures to treat a person without a referral.
(c) Reports to the Board. A certificateholder shall certify compliance with the continuing education hours requirement at the time of biennial renewal of the certificate. A certificateholder shall retain for at least 4 years, certificates, transcripts or other documentation showing completion of the prescribed number of hours. These records are subject to audit by the Board.
(d) Approved sponsors; acceptable courses and programs.
(1) Courses and programs provided by Board-approved sponsors will be accepted as satisfying the continuing education requirement. It is the responsibility of the certificateholder to ascertain the approval status of the sponsor before undertaking a continuing education activity.
(2) Irrespective of the sponsor, the Board reserves the right to reject a continuing education course or program submitted by a certificateholder if it is outside the scope of practice of physical therapy. The Board will not accept courses or programs which are unrelated to the actual practice of physical therapy--for example, instruction in office management or practice building. A certificate holder will be notified of a rejected course or program in writing, along with the reason for the rejection.
(3) Sponsors of physical therapy continuing education seeking Board approval shall submit an application on forms provided by the Board and pay the required fee. The applicant will be notified of approval or disapproval in writing. Notifications of disapproval will set forth reasons. The Board will not approve a sponsor unless it:
(i) Offers courses or programs, or both, with specific learning objectives geared to improve the professional competence of the participant.
(ii) Verifies attendance of the course.
(iii) Provides each attendee with a certificate which includes participant's name, date, place, course title, presenter and number of contact hours.
(4) The Board may withdraw approval of a sponsor for cause. The sponsor will be notified in writing of the reasons for withdrawal of approval.
(e) Distance education. A certificateholder may accrue all required hours in distance education courses offered by approved sponsors of continuing education as long as the course sponsor evaluates and assesses the extent of learning that has taken place.
(f) Reinstatement of certificate. Reinstatement of certificate shall be subject to the following conditions:
(1) A person whose certificate has lapsed or been inactive shall show compliance with the continuing education requirement during the biennium immediately preceding the request for reinstatement.
(2) A person whose certificate has been suspended or restricted shall show compliance with the continuing education requirement during the entire period of suspension or restriction.
(g) Waivers; exemptions for continuing education. The Board may, in individual cases involving physical disability or illness, or undue hardship, grant a waiver of the continuing education requirements or grant an extension of time to complete the requirements. No waiver or extension of time will be granted unless a written request is submitted by the licensee; or in cases of physical disability or illness, by a physician licensed in this state or another state or territory of the United States or the District of Columbia and whose license is in good standing, or both. All necessary documentation must be received by the Board no later than 90 days preceding the biennial renewal. If the physical disability or illness or undue hardship for which the waiver has been granted continues beyond the period of the waiver, the licensee shall reapply for an extension of the waiver. The Board may, as a condition of any waiver granted, require the applicant to make up all or part of the continuing education waived.
[Pa.B. Doc. No. 04-1282. Filed for public inspection July 16, 2004, 9:00 a.m.]
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