New York licensed physical therapists (PTs) and therapist assistants (PTAs) provide the public with essential therapeutic and rehabilitative care. As important members of the state healthcare community, they are obligated to maintain a high degree of professionalism, ethical practice, and adherence to licensing guidelines. Yet, a rewarding occupation can turn into a career-ending situation with a single complaint filed by patients, patient family members, colleagues, supervisors, and facility staff.
For example, an experienced licensee working at a busy Brooklyn private PT practice one day forgets to record a patient's change in condition, which leads to new techniques being used. After remembering the omission weeks later, they may think they can retroactively add the changes to patient records. However, what had begun as a simple mistake can easily lead to misaligned insurance reimbursements and potential complaints from the patient or governing authorities.
Unfortunately, PTs and PTAs are often unaware of violations until they're being investigated, and face the following potential consequences for misconduct:
- Lost income streams and tens of thousands of dollars in fines
- Practice limitations that could spoil a PT's professional reputation
- Suspension of the authority to practice until meeting mandatory conditions
- License termination that limits future physical therapy opportunities
Whether PTs or PTAs are providing patient care in Albany or New York City hospitals, rehabilitative clinics in Utica or Buffalo, or private practices in Binghamton or Plattsburgh, they deserve the Lento Law Firm for their defense. When state agencies launch investigations, our Professional License Defense Team stands prepared to begin building a strategy for PTs and PTAs to keep their credentials intact. Call us at 888-535-3686 now or fill out our confidential consultation form, and we will contact you.
New York's Physical Therapy Governing Framework
In New York, two primary entities regulate the practice of physical therapy: the Office of Professions (OP) within the State Education Department (NYSED) and the New York Board of Physical Therapy (Board). Yet, the New York State Board of Regents (Regents) is the governing body of NYSED, which ultimately holds responsibility for all licensed professionals in the state.
The nine-member Board, along with advice from OP, sets standards related to the practice. The Regents establish and adopt rules for professional conduct and formally approve regulations recommended by the other state agencies regarding continuing education, required experience, and the scope of practice for PTs, PTAs, and unlicensed personnel.
Licensed PTs perform patient evaluations, interpret physician recommendations and referrals, and create patient care plans. PTAs work under supervising PTs and act in an assistive role. Unlicensed individuals, such as physical therapy aides and support staff, have fewer duties corresponding to their experience level.
Referrals for Physical Therapy Treatment
PTs normally treat patients and clients after receiving a referral from an authorized provider, such as a physician, nurse practitioner, podiatrist, etc.) who is licensed and currently registered to practice in New York. Yet, NYSED allows physicians licensed in bordering states residing within 25 miles of the New York state border to prescribe physical therapy treatment for a patient or client in New York.
Only PTs with the equivalent of three years of full-time experience practicing physical therapy may treat individuals without a referral for 10 visits or 30 days, whichever comes first. They must provide the patient with a written Notice of Advice during that timeframe. The notice indicates to the patient that their insurer may not cover treatment given by the PT but may cover it following a valid referral.
Board Delegation and Supervision Rules
One of the most significant parts of a licensee's duties in the practice is maintaining guidelines governing delegation and supervision. PTs may delegate to no more than four PTAs at a time. However, the limitation does not apply to hospitals as long as PTAs receive adequate supervision.
PTs must provide "continuous supervision," wherein they are not required to remain physically present on-site but must be continuously available when PTAs perform procedures, including availability over the phone or video conference. Yet, PTAs with less than two years of experience demand on-site presence. Supervising PTs must record the tasks of PTAs under delegation and must regularly meet with them in person.
PTs may also delegate to unlicensed support, such as aides, techs, and facility staff. Unlicensed individuals may perform tasks such as answering phones, preparing paperwork, and cleaning equipment but cannot perform any physical therapy services—even under the direct supervision of a PT. Those who do (except for family members or caregivers) are subject to a class E felony.
Unlicensed personnel may not:
- Interpret physician referrals
- Perform evaluations or discharges
- Assume any patient care responsibilities
- Initiate, adjust, or perform treatment programs
- Place electrodes or hot or cold packs on patients
A licensed PT must provide supervision of PT and PTA students and must be on-site, but not necessarily direct personal supervision. PTAs may act as clinical instructors for PTA students, but overall supervision responsibility lies with PTs. At no point does a physician's or other health care professional's supervision fulfill legal requirements.
Board of Regents Professional Practice Guidelines
Under the direction of the Regents, NYSED and the Board have created practice guidelines to provide PTs and PTAs guidance in promoting good practice and prevent instances of professional misconduct. The Regents assert that it is not a "substitute" for the rules and regulations governing the practice of physical therapy, only a "useful supplement" reflecting common practice issues and concerns.
Conduct rules for all professions under the Regents intended to mitigate the following:
- Exercising undue influence over a patient or client, such as promoting goods or services for sale or exploiting for financial gain
- Practice conduct that evidences moral unfitness for the profession
- Willfully making or filing a false report or failing to file a report with the NYSED
- Revealing personally identifiable information obtained in a professional capacity without the prior consent of the patient or client, except as authorized or required by law
- Practicing or offering to practice beyond the scope permitted by law (except in a life-threatening emergency situation)
- Delegating professional responsibilities to unqualified licensees or support personnel
The Regents also maintain a list specific to health professionals, including physical therapists. Although it's not an exhaustive list, additional grounds for unprofessional conduct include the following:
- Abandoning or neglecting a patient in need of immediate care without establishing continuity of care
- Willfully harassing, abusing, or intimidating a patient either physically or verbally
- Failing to maintain records (six years for patients, six years plus one after a minor patient reaches 21)
- Departure from appropriate supervision for PTAs and unlicensed individuals
- Guaranteeing satisfaction from professional services
- Ordering excessive tests or those not warranted by the patient's condition
- Issuing prescription drugs or devices without proper documentation
- Failing to use scientifically accepted infection prevention techniques
Practice guidelines provide licensees with general guidance to promote good practice and prevent instances of professional misconduct. However, the Board of Regents asserts they "do not have the force of law," only serving as a resource in understanding conduct in relation to the professional discipline process. Critically, they may not be used as the basis for a charge or a defense against a charge, wherein licensees may only be disciplined for violations of New York Education Law or the Regent's rules.
Office of Professional Discipline Investigation Process
The first step in the grievance process is when a patient, a patient's family member, colleague, assistant, or supervisor files a complaint through the Office of Professional Discipline (OPD). A regional Supervising Investigator will review the Professional Discipline Complaint Form for proper jurisdiction and then assign a Senior Investigator to the case.
The Senior Investigator begins gathering evidence and conducting interviews, including attempting to contact the accuser. After findings are established, there is a three-way screening process involving the Senior Investigator, a prosecutor from the Office of the Attorney General, and a Board member. The contingent will determine whether the case is one of the following:
- A non-chargeable offense: The case is assigned to the Director of Investigations for closure.
- A chargeable offense: The case is handed to OPD's Deputy Director, then the Director of Investigations, and then to OPD's Executive Director for a final decision.
If the Executive Director approves the case for moving forward, it's closed in the Investigations Division and transferred to OPD's Prosecutions Division for disciplinary action.
OPD's Formal Disciplinary Hearings
Licensees (respondents) are normally offered an informal means of handling violations before moving forward to a hearing. OPD will allow respondents to review a consent order, which includes the facts determined by investigators and sanctions imposed. If an agreement cannot be made and the respondent wishes to dispute the charges, OPD schedules a hearing.
Before a three-member hearing panel (two Regents and one Board public representative), the respondent, who may retain legal counsel, meets with an administrative officer designated by the NYSED. Disciplinary hearings are not as formal as a trial in court, but respondents have the right to testify and present evidence, call and question witnesses, and cross-examine the prosecutor's witnesses, among other due process provisions.
After the hearing ends, the panel issues a written report stating its findings, a determination on each charge, and a recommendation of penalties, if any. Since the Regents hold responsibility over all licensed professionals in New York, its Review Committee analyzes the report, which can then adopt, modify, or reject the panel's disciplinary recommendations, issuing a final decision.
Sanctions for New York Physical Therapists
Although licensees may appeal by petitioning the New York State Supreme Court within four months of the decision, judicial review only focuses on procedural irregularities and whether substantial evidence supports the Regents' decision. But even if licensees seek redress, they must still come to terms with the discipline imposed in the final order.
The Regents have the following punitive provisions at their disposal:
- A written reprimand, which acts as a public censure
- Fines not to exceed $10,000 per violation
- Probationary periods
- License suspension, with restatement subject to reinstatement requirements
- License revocation and permanent ban on practicing physical therapy in New York
When the Regents sign off on probation for a PT or PTA, it will limit or restrict their ability to practice. For instance, they may be forbidden from delegating tasks and supervising PTAs and support staff. They can even be subject to supervision themselves and monitoring from OPD. Moreover, probation often mandates licensees to complete various punitive or rehabilitative tasks, using it as counseling or mandatory continued education.
If misconduct was related to alcohol or substance abuse, OP's Professional Assistance Program allows PTs and PTAs to surrender their licenses voluntarily and confidentially while progressing through an acceptable course of treatment in the effort of potential reinstatement. Successful completion of the program may act as an alternative to disciplinary action, but failure to maintain program requirements is subject to additional sanctions.
Although New York has yet to join the multi-state PT Compact granting license reciprocity to over three dozen other states, PTs and PTAs will have trouble finding work as licensed professionals elsewhere. When seeking credentials in other states, governing boards are quick to check if individuals have endured previous disciplinary action. Unless the sanctioning period has ended—suspensions served and conditions met—PTs and PTAs won't be able to secure the authority to practice. In terms of revocation, it can spell the demise of a long, rewarding career.
Protect Your New York Physical Therapist License
The Lento Law Firm knows that any New York PT or PTA deserves the best counsel when state agencies seek sanctions for complaints or violations. Since any negative mark on a licensee's record can diminish their ability to practice in the future, they must mount a strong challenge to any and all allegations. Some may think retaining an attorney may be too aggressive for action against the Board, OPD, or the Regents, but our Professional License Defense Team is the resource needed to protect one's credentials.
A successful defense strategy begins with a comprehensive approach to official procedures, investigation protocols, and how the Regents ultimately levy discipline. For those who have given their lives to practicing physical therapy, the Lento Law Firm stands prepared to protect their investment. Our Professional License Defense Team will help licensees respond to allegations and pursue a dismissal of all charges while maintaining continuity of patient care. Call the Lento Law Firm Professional License Defense Team at 888-535-3686 today or fill out our confidential consultation form, and we will contact you.
