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Medical Society of New Jersey v. New Jersey Department of Law and Public Safety

Decided: June 27, 1990.

MEDICAL SOCIETY OF NEW JERSEY AND NEW JERSEY ASSOCIATION OF OSTEOPATHIC PHYSICIANS AND SURGEONS, RESPONDENTS,
v.
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CONSUMER AFFAIRS, STATE BOARD OF PHYSICAL THERAPY, APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 229 N.J. Super. 128 (1988).

For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

At issue in this case is whether the State Board of Physical Therapy (the Board) acted within its delegated authority when it promulgated N.J.A.C. 13:39A-2.2(b), which specifies activities that a physical therapist may perform without physician direction. The Appellate Division decided that the rule exceeded the authority delegated to the Board under N.J.S.A. 45:9-37.18. 229 N.J. Super. 128, 550 A.2d 1272 (1988). We granted the Board's petition for certification, 117 N.J. 46, 563 A.2d 815 (1989), and now reverse.

Few areas of governmental activity affect the public as much as the regulation of health care. Traditional regard for the quality of medical care is now tinged with concerns about its cost. People are no longer treated just in hospitals or at home, but in long-term care facilities, such as convalescent or nursing homes. Health care includes not only medical treatment by a physician or surgeon, but also services provided by others, such as physical therapists. In sum, the delivery of health care is increasingly diverse and costly. So complex and sensitive a system commends itself to legislative and regulatory, rather than judicial, supervision.

Physical therapy, one part of the health-care system, has been a topic of legislative interest since 1903. Currently in New Jersey, over 5,000 physical therapists practice their profession in private offices, institutions, and elsewhere. From the beginning, the Legislature has been concerned about the relationship between physicians and physical therapists.

In 1903, an amendment to the statutes prohibiting the unlicensed practice of medicine exempted a "masseur or electrician * * * operating in each particular case under the specific direction of a regularly licensed physician or surgeon." L. 1903, c. 228. Subsequent amendments over the next eighty years retained the requirement that physical therapists perform under the "specific direction" of a regularly-licensed physician. See L. 1915, c. 271, § 6; L. 1921, c. 221, § 3; L. 1935, c. 226, § 2; L. 1939, c. 115; L. 1943, c. 74; L. 1944, c. 167; L. 1953, c. 420. In 1963, the Legislature first approved a system of examination and registration of physical therapists. The system was administered by the Board of Medical Examiners with the assistance of a Physical Therapy Advisory Committee. That statute retained the restriction that limited physical therapists to providing care "under the specific direction of regularly licensed physicians," L. 1963, c. 169, § 1, a restriction that survived a 1975 change in the definition of "physical therapist," N.J.S.A. 45:9-37.1(d). Until 1983, moreover, the statutes consistently defined "physical therapy" in terms of "treatment" only.

In 1983, the Legislature reexamined the regulation of physical therapists and approved the Physical Therapist Licensing Act, N.J.S.A. 45:9-37.11 to -37.34 (the Act). The Act replaced long-standing statutes concerning physical therapist licensing and regulation, Statement of the Senate Labor Industry and Professions Committee, with a new system. Consistent with increasing independence of physical therapists, the Act created an eleven-member State Board of Physical Therapy, six members of which are to be licensed physical therapists. N.J.S.A. 45:9-37.15. Only one place on the Board was reserved for a licensed physician. Ibid.

The Act does more than simply create a new board. It recognizes the evolving role of physical therapy in the health-care system. "Physical therapy" is defined as "the health speciality concerned with the prevention of physical disability and the habilitation or rehabilitation of congenital or acquired physical disabilities resulting from, or secondary to, injury or disease." N.J.S.A. 45:9-37.13d. Departing from the prior statutory scheme, which spoke of physical therapy as involving only "treatment," the Act defines the practice of physical therapy as including "examination, treatment, or instruction." N.J.S.A. 45:9-37.14a. When defining "physical therapist," the Act states that "[a] physical therapist shall provide 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. In contrast, the Act does not expressly require physician direction for "examination" or "instruction," the other two activities included within the definition of "physical therapy."

As the legislative history reveals, the Act did not have a smooth ride to passage. Originally, Plaintiff Medical Society of New Jersey opposed the Act, but ultimately withdrew its opposition. Plaintiff New Jersey Association of Osteopathic Physicians and Surgeons and the New Jersey Chiropractic Society persisted in their opposition to both the Act and the rule challenged in this action.

Pursuant to statutory authorization, N.J.S.A. 45:9-37.18f, the Board promulgated rules defining "examination," "instruction," and "treatment." The rules also specified the conditions under which a physical therapist might render each service. Following the receipt of public comments, the Board published a revised version that included, among other changes, permission to modify a physician's directed physical-therapy treatment only where the modification was consistent with the physician's initial prescription. 18 N.J.R. 1177(b). Ultimately, the Board adopted N.J.A.C. 13:39A-2.2(b) in its present form:

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

1. Physical therapy examination, excluding ...


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