THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	The Honorable the Members of the Board of Regents
FROM:	Johanna Duncan-Poitier
SUBJECT:	Proposed Amendment to the Rules of the Board of Regents and the Regulations of the Commissioner of Education Relating to the Practice of Physical Therapy Without a Referral
DATE:	October 11, 2006
STRATEGIC GOAL:	Goal 3
AUTHORIZATION(S):

 

SUMMARY

 

 

 

Issue for Decision

 

            Should the Board of Regents add a new section 29.17 to the Rules of the Board of Regents and add a new section 77.9 to the Regulations of the Commissioner of Education, relating to the practice of physical therapy without a referral?

 

Reason(s) for Consideration

 

             Required by State statute.

 

Proposed Handling

 

Chapter 298 of the Laws of 2006 was signed by the Governor on July 26, 2006, and becomes effective in 120 days or November 23, 2006.  Because of this timing, the proposed amendment is submitted for adoption as an emergency measure at the October 2006 Regents meeting.  Confirmation of the proposed amendment as a permanent rule is scheduled for the January 2007 Regents meeting.

Procedural History

           

 A Notice of Proposed Rule Making will be published in the State Register on October 25, 2006.  A Notice of Emergency Adoption will be published on November 22, 2006.  Supporting materials for the proposed amendment are available upon request from the Board of Regents.

           

Background Information

 

            Chapter 298 of the Laws of 2006 adds subdivision (d) to section 6731 of the Education Law to permit licensed physical therapists who have practiced physical therapy on a full-time basis equivalent to not less than three years to provide treatment without a referral from a physician, dentist, podiatrist, or nurse practitioner.  This statute directs the Commissioner to prescribe a form that physical therapists must distribute to a patient prior to treatment, advising the patient of the possibility that any treatment provided without a referral may not be an expense covered by the patient’s health care plan or insurer. 

 

The purpose of the proposed amendment is to implement the requirements of section 6731(d) of the Education Law by defining the experience requirement that a licensed physical therapist must meet to provide treatment without a referral, clarifying the content of the notice of advice provided to a patient prior to treatment by a physical therapist without a referral, and establishing a definition of unprofessional conduct relating to such practice.

 

The recommended action is proposed as an emergency measure because such action is necessary to preserve the public health and safety in order to establish necessary regulatory standards to implement on a timely basis the requirements of Chapter 298 of the Laws of 2006 concerning requirements that licensed physical therapists must meet to provide treatment without a referral from specified health care professionals, thereby helping to ensure that licensed physical therapists are qualified to provide such treatment and that patients receive adequate notice relating to such treatment.

 

Recommendation

 

            I recommend that the Board of Regents take the following action:

 

VOTED: That section 29.17 of the Rules of the Board of Regents and section 77.9 of the Regulations of the Commissioner of Education be added, as submitted, effective November 23, 2006, as an emergency action upon a finding by the Board of Regents that such action is necessary to preserve the public health and safety to establish necessary regulatory standards to implement on a timely basis the  requirements of Chapter 298 of the Laws of 2006 concerning requirements that licensed physical therapists must meet to provide treatment without a referral from specified health care professionals, thereby helping to ensure that licensed physical therapists are qualified to provide such treatment and that patients receive adequate notice relating to such treatment.

 

Timetable for Implementation

 

            The emergency adoption will take effect on November 23, 2006, which is the effective date of Chapter 298 of the Laws of 2006.

 

 

 

 

Attachments

PROPOSED ADDITION OF SECTION 29.17 TO THE RULES OF THE BOARD OF REGENTS AND SECTION 77.9 TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 6504, 6506, 6507, 6509, AND 6731 OF THE EDUCATION LAW RELATING TO THE PRACTICE OF PHYSICAL THERAPY WITHOUT A REFERRAL

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

            Chapter 298 of the Laws of 2006, which was signed by the Governor on July 26, 2006, adds a new section 6731(d) to the Education Law to permit licensed physical therapists who have practiced physical therapy on a full-time basis equivalent to not less than three years to provide treatment to patients without a referral from a physician, dentist, podiatrist or nurse practitioner.  This statute directs the Commissioner of Education to prescribe a form that physical therapists must distribute to a patient prior to treatment, advising the patient that any treatment provided without a referral may not be an expense covered by the patient’s health care plan or insurer. 

            The proposed amendment implements the requirements of Chapter 298 by defining the experience requirement that a licensed physical therapist must meet to provide treatment without a referral, clarifying the content of the notice of advice provided to a patient prior to treatment by a licensed physical therapist without a referral, and establishing a definition of unprofessional conduct relating to such practice.  The effective date of Chapter 298 of the Laws of 2006 is November 23, 2006.  These requirements must be in place by that date to advise licensed physical therapists of the requirements that they must meet to provide treatment without a referral and to provide uniformity and consistency in the information that must be contained in the written notice provided to a patient.  At the present time, about 17,500 physical therapists are licensed and registered to practice in New York State.   Consequently, a significant number of individuals will be affected by the proposed amendment.         

            The recommended action is proposed as an emergency measure because such action is necessary to preserve the public health and safety in order to establish necessary regulatory standards to implement on a timely basis the requirements of Chapter 298 of the Laws of 2006 concerning requirements that licensed physical therapists must meet to provide treatment without a referral from specified health care professionals, thereby helping to ensure that licensed physical therapists are qualified to provide such treatment and that patients receive adequate notice relating to such treatment.   An emergency action is necessary to ensure that the requirements are in place on November 23, 2006, when the law becomes effective.

            It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at its January 2007 meeting.

AMENDMENT TO THE RULES OF THE BOARD OF REGENTS AND THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

            Pursuant to sections 207, 6504, 6506, 6507, 6509, and 6731 of the Education Law.

            1. Section 29.17 of the Rules of the Board of Regents is added, effective November 23, 2006, as follows:

            29.17 Special provisions for the profession of physical therapy.

            Unprofessional conduct in the practice of physical therapy shall include conduct prohibited by sections 29.1 and 29.2 of this Part.  In addition, unprofessional conduct in the practice of physical therapy shall include failing to meet the requirements of subdivision (d) of section 6731 of the Education Law and/or section 77.9 of this Title,  when providing treatment in the practice of physical therapy without a referral from a physician, dentist, podiatrist, or nurse practitioner.

            2.  Section 77.9 of the Regulations of the Commissioner of Education is added, effective November 23, 2006, as follows:

            77.9 Providing treatment in the practice of physical therapy without referral.

            (a)  In accordance with Education Law section 6731(d), a licensed physical therapist may provide a patient with treatment in the practice of physical therapy without a referral from a physician, dentist, podiatrist, or nurse practitioner, for 10 visits or 30 days whichever occurs first,  provided the licensed physical therapist meets the following requirements:

            (1) the licensed physical therapist has practiced physical therapy on a full-time basis equivalent to not less than three years prior to beginning such treatment,  meaning the licensed physical therapist has completed at least 4,320 clock hours of physical therapy practice over a minimum of 36 months anytime prior to beginning such treatment; and

            (2) the licensed physical therapist meets all requirements of subdivision (b) of this section relating to the notice of advice. 

            (b)  Notice of advice.  A physical therapist providing treatment in the practice of physical therapy without a referral from a physician, dentist, podiatrist, or nurse practitioner, in accordance with Education Law section 6731(d) and the requirements of this section, shall advise the patient in writing prior to beginning treatment of the possibility that treatment may not be covered by the patient's health care plan or insurer without a referral from a physician, dentist, podiatrist, or nurse practitioner and that treatment may be a covered expense if rendered pursuant to such referral.   This notice of advice shall be provided on a form, a copy of which shall be kept on file by the licensed physical therapist as a patient record and a copy of which shall be given to the patient.  The notice of advice form shall include the following information:

            (1)  a statement of such advice and a statement attesting that the patient has read the notice of advice;

            (2)  the date treatment will begin;

            (3) the patient’s name and address;

            (4)  the patient’s signature and date the patient signed the form;

            (5) the treating physical therapist's name and address; and

            (6 ) the treating physical therapist’s signature and the date the physical therapist signed the form.