Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MATTOX January 15, 1986
Attorney General
Supreme Court Building Honorable James S. McGrath Opinion No. JM-421
P. 0. BOX 12546 Criminal District Attorney
Austin, TX, 76711. 2546 P. 0. Box 2553 Re: Whether a public agency may
512,4752501
Beaumont, Texas 77704 offer physical therapy services
Telex 9101674-1367
Telecopier 512/475-0266
without employing a licensed
therapist if such services are
offered by or under the super-
714 Jackson, Suite 700 vision of a licensed physician
Dallas, TX. 75202.4506
2141742.6944
Dear Mr. McGrath:
4624 Alberta Ave., Suite 160 You have ask&l the following question:
El Paso, TX. 79905-2793
915/533-3464
To what extent can a public agency offer
physica:. therapy services without employing a
,M), Texas, Suite 700 licensed therapist, so long as such services are
Houston, TX. 77002-3111 offered through a licensed physician, through
7131223-5666 direct t'reatmentor by direction to his nursing
support staff to give such treatments?
606 Broadway, Suite 312
Lubbock, TX. 79401-3479 The physic&t therapy licensing act contains the following
606/747-5236 definition of "phy``icaltherapy":
'Physicitl.therapy' means the examination, treat-
4309 N. Tenth, Suite 6
McAllen, TX. 76501-1665
ment , or instruction of human beings to detect,
512/662-4547 assess, prevent, correct, and alleviate physical
d1sabW.t.y and pain from injury, disease, dis-
orders, or physical deformities and includes the
200 Main Plaza. Suite 400
adminisi:ration and evaluation of tests and
San Antonio, TX. 76205-2797
5121226-4191
measurements of bodily functions and structures in
aid of diagnosis or treatment; the planning,
adminislxation, evaluation, and modification of
An Equal OppOrtUnitYI treatment: and instruction, including the use of
Affirmative Action Employer physica:. measures, activities, and devices for
preventl.veand therapeutic purposes on the basis
of approved test findings and the provision of
consultirt:ive,educational, and advisory services
for the purpose of reducing the incidence and
severity of physical disabilitv and nain.
Physica! therap; shall
- also include the delegation
of selegtive forms of treatment to supportive
personnc?.with assumption of the responsibilities
p. 1919
Honorable James S. McGrath --Page 2 W-421)
for the care Of the patient and continuing
direction and supervision of the supportive
personnel. The ;lse of roentgen rays and radium
for diagnostic z,nd therapeutic purposes, and the
use of electrkity for surgical purposes, in-
cludlng cauterization, are not authorized under
the term 'physical therapy' as used herein, and a
license issued Hereunder shall not authorize the
diagnosis of dieeissesor the practice of medicine
as defined by lnr.. (Emphasis added).
V.T.C.S. art. 4512e. 51(l) I
The physical therapy 1Lcensing act sets out certain prohibitions
on the practice of physica:Ltherapy:
(a) A persor. may not practice or represent
himself as able to practice physical therapy, or
act or represent himself as being a physical
therapist unless he is licensed under this Act.
(b) A person may not act or represent himself
as being a physical therapist assistant unless he
is licensed undr: this Act.
-Id. 97. The act, and thoslaprohibitions, however, do not apply to
a licensee of another state agency performing
health-care serr!:ces within the scope of the
applicable licnlsing act, an occupational
therapist who confines his practice to occupa-
tional therapy, a certified corrective therapist
who confines hi:; practice to corrective therapy,
and a speech pz.thologist or an audiologist who
confines his prsctice to the treatment of com-
munication disorders. . . .
Id. 56(l).
-
The definition of "practicing medicine" in the Medical Practice
Act clearly subsumes the p'racticeof "physical therapy."
(8) 'Practictng medicine.' A person shall be
considered to be! practicing medicine within this
Act:
(A) who shall publicly profess to be a
physician or sur::eonand shall diagnose, treat, or
offer to treat any disease or disorder, mental or
physical, or any physical deformity or injury by
Ronorable James S. McGrat,h,
- Page 3 (m-421)
any system or method or to effect cures thereof;
or
(B) who shz13.1diagnose, treat, or offer to
treat any disease or disorder, mental or physical,
or any physical deformity or injury by any system
or method and l:c effect cures thereof and charge
therefor, direct:Lyor indirectly, money or other
compeasation.
V.T.C.S. art. 4495b, §1.3:3(8). Thus, a doctor who is licensed to
practice medicine in Texar;can perform all the functions of a physical
therapist within the scope:of his medical license.
Also, a doctor can delegate certain medical acts to 3 qualified
person:
(1) a pers~1 licensed to practice medicine
shall have the authority to delegate to any
qualified and p:roperly trained person or persons
acting under the physiciaa's supervision any
medical act which a reasonable and prudent
physician would ftnd is within the scope of sound
medical judgmeat to delegate if, in the opinion of
the delegating physician, the act can be properly
and safely performed by the person to whom the
medical act is dKLegated and the act is performed
in its customary manner, not in violation of any
other statute, and the person does not hold
himself out to the public as being authorized to
practice mediciar:. The delegating physician shall
remain responsible for the medical acts of the
person performing the delegated medical acts. The
board may determine whether or not an act con-
stitutes the prxtice of medicine, not incon-
sistent with thi:;Act, aad may determine whether
any medical act may or may not be properly or
safely delegated by physicians. . . .
V.T.C.S. 4495b, 93.06(d)(l).
The physical therapy licensing act is not applicable to "a
licensee of another state agency performing health-care services
within the scope of the z.pplicable licensing act." V.T.C.S. art.
4512e, 96(l). Although a person acting under the supervision of a
physician would probably not himself be a "licensee" under the Medical
Practice Act, we think acts delegated by a licensed physician come
within the scope of the exxption to the physical therapy licensing
act. Obviously, the purposl!of the exception for health care workers
licensed under other acts :.E!to make clear that health care workers
p. 1921
Honorable James S. McGrath -.Page 4 (J'M-421)
who perform acts that come within the definition of "physical therapy"
are aot violating the law 8:~ long as their acts are authorized by the
licensing act applicable to them. As long as the requirements of
article 4495b, section 3.116(d)(l) are met, any person performing
medical acts under the supervision of a doctor is acting within the
scope of the Medical Practice Act. Therefore, a person performing
medical acts that happen to constitute "physical therapy" would not be
subject to the physical thln:apylicensing act as long as such acts are
authorized by the Medical I?racticeAct.
Article 4495b, sectioi 3.06(d)(l), sets out a number of require-
ments that must be met in order for a doctor to delegate medical acts.
Consequently, the propriexy of any specific instance of delegation
would involve fact questions that we cannot answer.
SUMMARY
A doctor may perform medical acts that come
within the defia:Ltion of "physical therapy" in
article 4512e. section L(1). If the requirements
of article 4495(>'),section 3.06(d)(l) are met, a
person who is abt a licensed physical therapist
but who is acting under a doctor's supervision may
perform medical wts that come within the defini-
tion of "physical therapy" in article 4512e,
section l(L).
J b
Very truly your ,
A
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWBR
First Assistant Attorney Ga!neral
MARY KELLER
Executive Assistant Attornl!yGeneral
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committea!
Prepared by Sarah Woelk
Assistant Attorney General
p. 1922