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Medical Society of New Jersey and New Jersey Association of Osteopathic Physicians and Surgeons v. New Jersey Department of Law and Public Safety

Decided: December 6, 1988.

MEDICAL SOCIETY OF NEW JERSEY AND NEW JERSEY ASSOCIATION OF OSTEOPATHIC PHYSICIANS AND SURGEONS, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CONSUMER AFFAIRS, STATE BOARD OF PHYSICAL THERAPY, DEFENDANT-RESPONDENT



On appeal from New Jersey State Board of Physical Therapy.

J. H. Coleman and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

The Medical Society of New Jersey and the New Jersey Association of Osteopathic Physicians and Surgeons appeal from the action of the State Board of Physical Therapy, promulgating N.J.A.C. 13:39A-2.2(b). The contested regulation permits physical therapists to engage in examination and instruction without physician direction and authorizes modification of treatment, previously prescribed by a physician, when such modification is consistent with the directed treatment. Appellants contend that the regulation exceeds the scope of the Board's delegated authority and is ultra vires. We agree and reverse.

A brief description of the applicable statutory and regulatory provisions is necessary for a full understanding of the issue presented. The State Board of Physical Therapy (Board) was created by the Physical Therapist Licensing Act of 1983 (N.J.S.A. 45:9-37.11 et seq.). The Board is under the Division of

Consumer Affairs in the Department of Law and Public Safety. N.J.S.A. 45:9-37.15. The articulated objective of the statutory scheme and the principal function of the Board is the "regulation of the practice of physical therapy and the establishment of clear licensure standards." N.J.S.A. 45:9-37.12. In its findings, the Legislature declared that the Act was designed to protect the health and welfare of our citizens by "identifying to the public those individuals who are qualified and legally authorized to practice physical therapy." Ibid. In order to effectuate this statutory policy, the Board was empowered to "[r]eview the qualifications of applicants for licensure, [i]nsure the proper conduct and standards of examinations, [i]ssue and renew, [s]uspend, revoke or [refuse] to renew [licenses], [m]aintain [appropriate] records, . . . and [p]romulgate rules and regulations necessary for the performance of its duties and the implementation of [the] [A]ct." N.J.S.A. 45:9-37.18.

Under the Act, a "physical therapist" is defined as "a person who is licensed to practice physical therapy . . . [and who] shall 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. 45:9-37.13(b). The term "physical therapy" is defined by N.J.S.A. 45:9-37.13(d) as the "health specialty concerned with the prevention of physical disability and the habilitation and rehabilitation of congenital or acquired physical disabilities resulting from, or secondary to, injury or disease." N.J.S.A. 45:9-37.14 defines the phrase "practice of physical therapy." That section provides as follows:

a. The practice of physical therapy shall include examination, treatment or instruction to detect, assess, prevent, correct, alleviate and limit physical disability, bodily malfunction and pain from injury, disease or other physical condition.

Physical therapy shall also include the evaluation, administration and modification of treatment and instruction, including, but not limited to, the use of physical measures, activities, agents and devices for preventive 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.

b. Nothing in this section shall authorize the diagnosis of disease or the practice of medicine and surgery or chiropractic by any person not licensed to do so pursuant to chapter 9 of Title 45 of the Revised Statutes.

c. Nothing in this section shall authorize the practice of dentistry by any person not licensed to do so pursuant to chapter 6 of Title 45 of the Revised Statutes. [ N.J.S.A. 45:9-37.14].

Pursuant to its rule-making authority, the Board proposed the promulgation of N.J.A.C. 13:39A-2.2 which, as originally drafted, read as follows:

(a) A licensed physical therapist may initiate physical therapy treatment, but only after having received physician direction.

(b) A licensed physical therapist may engage in the following activities and practices without physician direction.

1. Physical therapy examination;

2. Physical therapy ...


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