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In re Promulgation of N.J.A.C. 13 35-6.14

Decided: October 17, 1985.

IN THE MATTER OF THE PROMULGATION OF N.J.A.C. 13:35-6.14


On appeal from Promulgation of a Regulation by New Jersey State Board of Medical Examiners.

Dreier, Bilder and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

[205 NJSuper Page 493] The American Physical Therapy Association, New Jersey Chapter, has appealed from the promulgation by the New Jersey State Board of Medical Examiners of a regulation entitled "Delegation of Physical Modalities to Unlicensed Physician Aides," N.J.A.C. 13:35-6.14,*fn1 contending that such regulation is

ultra vires since the authority to regulate such practices rests solely with the New Jersey Board of Physical Therapists. The regulation was published in the New Jersey Register, April 1, 1985.

The Physical Therapists Licensing Act of 1983, effective January 31, 1984, defined the practice of physical therapy as including:

the evaluation, administration and modification of treatment and instruction, including, but not limited to, the use of physical measures, activities, agents and devices for preventative and therapeutic purposes; neurodevelopmental procedures; the performance and evaluation of tests and measurements; and the provision of consultative, educational and other advisory services for the purpose of preventing or reducing the incidence and severity of physical disability, bodily malfunction and pain consistent with the practice of physical therapy. N.J.S.A. 45:9-37.14a.

Physical therapists licensed under the act provide "physical therapy treatment to an individual upon the direction of a licensed physician, dentist or other health care practitioner authorized to prescribe treatment." N.J.S.A. 45:9-37.13b. Physical therapists in turn are permitted to utilize the services of a physical therapist assistant, also licensed under the Act.

As can be seen from the definition of the practice of physical therapy it overlaps with some aspects of the practice of medicine. This problem was recognized in an earlier phase of this litigation concluded April 19, 1982 by the comprehensive opinion of Judge Cohen in Medical Society of N.J. v. N.J. State Board of Medical Examiners, Docket No. C-672-81 (Ch.Div.1982), in which Judge Cohen refused to enter a declaratory judgment against the State Board of Medical Examiners and Attorney General preventing the promulgation of regulations which the plaintiffs apprehended would restrict their practice of medicine. They feared a prohibition of the use of simple physical therapy modalities within their offices by unlicensed assistants, a procedure

that they claim had been used throughout the state. The action before Judge Cohen was

prompted by . . . informal indications by the [Medical Examiners] Board that it was prepared to interpret the Physical Therapy Act, N.J.S.A. 45:9-37.1 et seq., in a way the plaintiffs believed improper. The Board threatened the individual plaintiffs with disciplinary action, N.J.S.A. 45:9-16 because, the Board said, they were permitting unlicensed persons to practice physical therapy under their auspices.

Although the count for injunctive relief was dismissed, the case proceeded on plaintiff's claim for a declaration that physicians could lawfully "employ non-professional medical assistants to apply ice, soaks, hot packs, whirl-pool baths, ultra-sound, electrogalvanic stimulation, ultraviolet light and traction under the direction of a physician," and that "the Physical Therapy Act [was] unconstitutional if it is held to prohibit those activities." Judge Cohen determined that since no disciplinary actions or prosecutions had yet been initiated under the Act, nor had definitive regulations been established defining the interrelationships between the duties of a physical therapist and employees of other health care professionals, the case was not ripe for adjudication. He denied declaratory relief. Judge Cohen stated:

On the record before me, I can only say this: Much physical therapy ought to be administered only by physical therapists. Other things that may be within the statute, literally read, have been and may continue to be entrusted to non-professional office assistants. It is not only the nature of the modality that makes a difference, but also the condition of the patient, his injury, his general condition and the existence of other pathology. On the record here, I cannot say where the practice of physical therapy starts and the activity of non-professionals must stop. I cannot say that the Legislature intended that every modality mentioned by the statute is or is not reserved in every instance to physical therapists or if there was ...


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