This week the New Jersey Supreme Court issued an opinion in a case of first impression in New Jersey regarding the scope of practice for physician assistants (PAs).  In this case, Selective Insurance Co. of America v. Rothman, M.D., the Court held that a PA cannot, under the scope of his/her license, perform electromyography (EMG) tests.  The Court held that only a physician licensed to practice medicine and surgery can administer an EMG in New Jersey.

This case is interesting because, like the Garcia case that eventually ended in legislation addressing physician ownership in freestanding ambulatory surgery centers, it arose out of a payment dispute.  Selective Insurance denied claims submitted by Dr. Rothman for EMGs provided by a PA in Dr. Rothman’s practice and Dr. Rothman appealed the decision through PIP arbitration.  The arbitration decision concluded that the PA was authorized to provide EMGs and the Law Division concurred.  Selective appealed to the Appellate Division, which reversed the decision below.  In the Supreme Court’s decision, the Court upheld the Appellate Division decision that the statute governing EMGs provides that only physicians may perform EMGs.

The second aspect of the case considered by the Supreme Court was whether its opinion should be applied prospectively or retrospectively.  This issue is important because any payor who previously paid for EMGs provided by a PA could seek to recover those payments if the opinion is applied retrospectively, and the Board of Medical Examiners could take disciplinary action for allowing the unauthorized practice of medicine by the PA.  The Appellate Division had refused to address the issue, and the Supreme Court declined as well because it did not have sufficient evidence before it to interfere with the Appellate Division’s refusal to consider it.  The doctor claimed that Selective had filed other actions against him seeking to recover other payments made for EMGs provided by the PA, and the Court concluded that those cases could provide the forum for deciding whether the decision should be applied retroactively or prospectively.