Orthopedic surgeons should take a judicial view of their scope of practice

A controversial case that spanned years of litigation underscores the need to define what services surgeons can offer and how they can bill for them.

Co-Editors’ Note: Ronald Dubin, MD, sent us details of a decision by the Supreme Court of Kentucky that addresses the scope of practice by orthopedic surgeons. The facts and analysis of the law related to this matter are presented below. As always, we welcome the perspectives of readers who want to share their opinions and experiences related to medicolegal issues.

Lawrence H. Brenner

B. Sonny Bal

In April, the Supreme Court of Kentucky rendered a decision in a case captioned Dubin Orthopedic Center, P.S.C v. Commonwealth of Kentucky, State Board of Physical Therapy — a case showing that turf battles that can sometimes arise between various health care providers, and can lead to litigation.

In the Dubin case, the court held that nothing in the relevant state statutes prohibits an orthopedic surgeon from providing physical therapy (PT) services, and to bill for such, using the appropriate CPT codes. This apparent victory for the orthopedic surgeon litigant took a rather convoluted pathway through the court system, as described below.

At issue was the interpretation of state statutory law that prohibits medical professionals from offering and advertising PT services, unless such professionals were first licensed by the Kentucky Board of Physical Therapy (the board).

The underlying dispute leading to this case arose when a local physical therapist introduced himself to a new orthopedic office and noticed a sign with the words “Physical Therapy” underneath the arrow pointing to one side of the office. Upon further inquiry, the therapist found out that the “physical therapy” in the doctor’s office referred to the services of an athletic trainer hired by the orthopedic surgeon. No physical therapist was employed by the physician, nor did the services offered involve any such therapist.

Chagrined, the physical therapist promptly complained to the Kentucky Board of Physical Therapy, the agency authorized to license physical therapists and oversee the practice of physical therapy in the state, pursuant to that state’s laws. The complaint alleged that PT services were being provided by an unlicensed athletic trainer employed by an orthopedic office. Furthermore, the complaint alleged that the offending orthopedic surgeon was billing for PT services by using CPT codes 97001 and 97002.

Consistent with its authority, the board subpoenaed certain patient treatment and billing records from the office as part of an investigation. When Dubin refused to surrender the records, the board petitioned the state trial court for an order enforcing the subpoena. That court issued a cease-and-desist order, mandating that Dubin no longer advertise, offer or bill for PT services.

A long history

While the disputed matter was presented before the state trial court, attorneys for Dubin stipulated that his orthopedic office had used, and intended to continue using, the CPT codes 97001 and 97002. In response, the board relinquished its subpoena and moved instead to enjoin Dubin’s use of the two codes. A petition to enjoin reflects a plea for equitable relief, whereby the moving party asks the court to compel the defendant to do something, or refrain from certain actions, in the interests of equity and justice.

The state trial court ruled in favor of Dubin noting that the use of particular CPT codes for billing purposes was best left to the practitioner and third-party payers. Furthermore, the court held that the use of CPT billing codes did not violate the relevant state statutes, which were designed to prevent unlicensed individuals from holding themselves out to the public as licensed physical therapists. This concern, the court said, was simply not implicated by the facts presented by the plaintiff. Accordingly, the trial court denied the board’s request for injunctive relief.

Upon appeal of the above decision, the Court of Appeals reversed, noting that although Dubin’s medical license authorized him to provide services that are the same or similar to the services provided by a licensed physical therapist, the statutory restriction on the phrase “physical therapy” applied to orthopedic surgeons no more and no less than anyone else. Furthermore, this restriction precluded the use of the two CPT descriptions employing that phrase, as well as their numerical codes.

In other words, according to the Court of Appeals, state law required Dubin to use a code other than 97001 or 97002 when describing and claiming payment for PT services.

State Supreme Court review

The overturning of the favorable trial court decision by the Court of Appeals was reviewed by the state Supreme Court. In his petition for review, Dubin argued that the Court of Appeals had misconstrued the relevant state statute, which did not proscribe the type of conduct that he had engaged in; namely, the provision of physical therapy services, and billing for such, using specific CPT codes.

The Supreme Court of Kentucky agreed with Dubin. It reversed the decision of the Court of Appeals and reinstated the earlier holding of the trial court in favor of Dubin.

In its analysis, the Supreme Court acknowledged that according to the relevant state law, Dubin could not hold himself out as a licensed physical therapist, nor provide such services through unlicensed intermediaries. However, the plain language of the statute that most likely reflected the viewpoint of the Kentucky legislature when the statute was written made it clear that nothing precluded Dubin from providing PT services, or referring to them as such.

Instead, the purpose of the statutory restriction on PT practiced by licensed professionals was to protect the public against unqualified providers of PT services, not to protect physical therapists against competition from other qualified health care providers. Therefore, the Supreme Court held that Dubin was not precluded by state law from: providing physical therapy services; referring to those services as such; and billing for them with the appropriate CPT codes.

A contentious case

This case generated considerable attention during the years it was litigated. Amicus briefs were filed on behalf of Dubin by the Kentucky Medical Association (KMA) and the American Medical Association. Likewise, the American Physical Therapy Association filed a similar brief for the physical therapy board.

The Kentucky Medical Licensing Board also issued an eight-page opinion letter supporting the right of physicians to provide PT in their practice and bill for it using any code that properly describes the service, including CPT codes 97001 and 97002. The KMA even helped defray Dubin’s considerable legal expenses through its legal defense fund.

Although one might argue that the holding in Dubin is limited to the court’s interpretation of a specific state statute, the decision is important since it addresses the difficult issue of scope of practice at the highest judicial level in a state. As such, the Dubin case has precedential value and may support related litigation in other states, such as that challenging restriction of trade by professional associations that are empowered by state legislatures to regulate professionals within clearly identified specialties.

A double-edged sword

Arguments about the scope of practice can cut both ways, however. Consider this: Did the Supreme Court of Kentucky arrive at a fair and equitable result from the standpoint of physical therapists in that state? How about from the viewpoint of orthopedic surgeons? Could orthopedic surgeons in other states argue that under the Dubin ruling, they, too, should be able to offer PT services by athletic trainers, as well as advertise and bill for such services?

Let us expand the Dubin ruling and consider a different scenario: Do you think a board of podiatric surgeons in some state could argue that Dubin permits podiatry practices to advertise and perform knee arthroscopic surgery, and bill for such? If not, does the ruling at least empower podiatrists to buy a MRI scanner, perform knee MRI scans and bill for the MRI scans, assuming the scans are read by a qualified radiologist?

Where should a court draw the line in such scope-of-practice arguments among medical professionals?

For more information:

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.