In December 2016, the South Carolina Supreme Court denied a petition for re-hearing, resolving a long standing dispute and allowing medical practices to employ directly physical therapists (“PTs”) and physical therapist assistants (“PTAs”).

In Joseph v. S.C. Board of Physical Therapy Examiners, 417 S.C. 436, 790 S.E.2d 763 (2016), a physical therapist and two physicians filed suit seeking a judicial declaration overturning  a previous decision by the Supreme Court in Sloan v. S.C. Board of Physical Therapy Examiners, which prohibited employment of physical therapists by medical practices.  The plaintiffs also sought to overturn a 2011 position statement by the South Carolina Board of Physical Therapy Examiners (“PT Board”) regarding the referral of physical therapy patients within a physical therapy practice. 

In a split decision, the Supreme Court specifically overruled its decision in Sloan and declared unconstitutional the 2011 Position Statement from the PT Board.  The practical impact is that medical practices can now employ PTs and PTAs on the same terms as they employ occupational therapists, speech pathologists and nurse practitioners.  The Supreme Court found that the Sloan decision deprived physicians of the right to practice medicine in the best interests of their patients.

Far from unanimous, the decision of the court demonstrates a power play within the court and between the court and other branches of government.  Only two justices agreed that the 2011 Position Statement was unconstitutional, while a third agreed that the statement was improper, but not on constitutional grounds.  Two justices dissented on the grounds that the plaintiffs did not have proper standing to legally raise either issue.  The majority and concurring opinions found significant fault with the administrative agencies which were described as a fourth branch of government challenging the constitutional separation of powers.  The dissent expressed concern that the majority’s decision ignored the fact that the legislature’s intent that the Sloan decision remain in force, having twice had tried unsuccessfully to overturn through legislation the Sloan decision.

This is the latest decision in a twelve year dispute between legislative, executive and judicial authorities over the employment of PTs in South Carolina.  It may or may not be the last.  Depending on how motivated the PT Board is, it may attempt to renew its efforts to re-invigorate the Sloan decision by administrative action, but it would have to go through the formal rule-making procedure set out in the Administrative Procedures Act, rather than issuing an informal position statement.  If the legislature wants to step in, it will have to proceed through the normal legislative process to amend the controlling statute.  Either of these will take time and, presumably, will generate some publicity.  Interested parties should remain vigilant to observe what these government entities do in order to have an opportunity for input.

As of now, however, the Joseph decision is controlling law and physicians can employ PTs and PTAs.