Risk Management – Considerations for Physical Therapy Service Delegation

Physical therapy providers employ a variety of staff to assist in clinic operations and patient care. In addition to licensed physical therapists (PTs), such staff may include physical therapy aides (individuals trained under the direction of a physical therapist who perform designated and supervised routine tasks related to physical therapy services1), physical therapist assistants (PTAs; individuals who are certified/licensed pursuant to the practice act of a particular jurisdiction and who assist the PT in selected components of physical therapy treatment intervention1), and/or other personnel such as athletic trainers, exercise physiologists, kinesiologists, and massage therapists.

After performing the initial evaluation, the PT is responsible for deciding what, if any, physical therapy services appropriately may be delegated, and to whom such delegation is appropriate. The PT’s decision is based on a number of factors, including whether delegation is appropriate from a clinical perspective; the degree of delegation permitted by law, regulation, and reimbursement considerations; and the professional liability risks that may be associated with delegation decisions.

The Clinical Decision

The PT’s initial task is to determine whether any degree of delegation is clinically appropriate relative to a given physical therapy task. Although not legally binding on the PT in the way that a state practice act is, APTA policies offer useful guidance to consider, along with clinical findings, in determining appropriate delegation.

Under APTA policy, the PTA is the only individual permitted to assist a licensed PT in selected interventions under the PT’s direction and supervision.2 In terms of physical therapy delegation, APTA policy further stipulates that certain responsibilities are to be born solely by the PT and therefore are not clinically appropriate for delegation. These responsibilities include interpretation of referrals (if applicable); initial examination; evaluation, diagnosis, and prognosis; development of a plan of care; reexamination of the patient; establishment and documentation of the discharge plan; and oversight of all documentation.2

APTA policy further dictates that the licensed PT is solely responsible for determining when delegation to a PTA is appropriate. Assuming delegation is otherwise permitted, a PT’s decision to delegate services to a PTA should be based upon the PTA’s education, training, experience, and skill level, the setting in which the services are being delivered, and the acuity and complexity of the patient’s condition.2 APTA policy provides that “general supervision”-supervision in which the PT is not required to be onsite for direction and supervision but must be available at least by telecommunication-is appropriate when care is delivered by a PTA.2

APTA also provides useful guidance on the use of physical therapy aides and what may and may not appropriately be delegated to them. Physical therapy aides are support personnel who perform designated tasks related to the operation of the physical therapy services. Tasks are those activities that do not require the clinical decision making of the PT or the clinical problem solving of the PTA.3 Association policy further states that “direct personal supervision”-supervision in which the PT, or, where allowable by law, the PTA, is physically present and immediately available to continuously direct and supervise tasks that are related to patient management-is appropriate for supervision of the physical therapy aide.2 APTA’s guidance on the appropriateness of delegation to PTAs and physical therapy aides should be considered during initial patient evaluation, in anticipation of future decisions on delegation.

The risk. A clinically inappropriate decision to delegate physical therapy services increases the PT’s risk of a professional liability claim. It is important to realize that while APTA policies may in fact require more than the absolute legal requirements of state or federal law, a court still may look to APTA policy in a professional liability action to determine if a PT acted within an acceptable standard of care in delegating physical therapy services.

Risk prevention. APTA policies are good resources in determining whether delegation is clinically appropriate. It also is important to be familiar with any policies or procedures the physical therapy facility in question might have governing what constitutes appropriate delegation, and the level of training the facility’s support staff may have completed. When care is delegated, it is imperative that the PT discuss with the person to whom services are being delegated the initial evaluation’s findings and any precautions associated with a particular patient. Above all, the PT must use sound clinical judgment and not delegate physical therapy services that require the clinical decision making of a PT.

The Practice Act

Assuming the PT’s clinical evaluation determines that delegation is appropriate, the next consideration is determining what physical therapy services legally can be delegated under the state’s practice act and supporting regulations. Each state has different laws and regulations governing what specific physical therapy services can be performed by various clinic staff members, and the level of supervision required. A common statutory framework is for the state practice act to define the different categories of personnel, the activities that can and cannot be performed by such personnel, and the level of supervision required (be it onsite supervision, general supervision, direct supervision, or otherwise).

For example, some jurisdictions allow physical therapy aides to function only in clerical or non-patient care roles, while others allow aides to provide direct patient care so long as specific standards are maintained. In addition to governing these supervision and delegation issues, many state practice acts define the number of PTAs (and/or physical therapy aides) that can be supervised by a licensed PT.

It is essential that every licensed PT be aware of and comply with the requirements of his or her state practice act. Not only is this required by law, but APTA Standards of Practice for Physical Therapy dictate that PTs comply with all legal requirements of their jurisdiction regulating the practice of physical therapy.4 Copies of state practice acts and supporting regulations are available through the each state’s board of physical therapy. While it is beyond the scope of this column to address the supervision requirements of any particular state, APTA provides a thorough summary of such requirements on its Web site (www.apta.org).

The risk. A violation of the state practice act can result in adverse action being taken by the state’s board of physical therapy. Adverse action may include monetary fines or suspension or revocation of the PT’s license.

Risk prevention. It is essential that all PTs have a working knowledge of the state practice act and keep a copy in the clinic in the event that any questions arise. Additional guidance and answers to common questions also may be available on the state board’s Web site. Clinics also might consider holding an annual educational session during which the state’s supervision and delegation requirements are reviewed. It is important to remember that the state practice act sets the minimum of what is required of a licensed PT, and that, even if a delegation decision is permitted under the act, that fact alone does not make such a decision necessarily appropriate.

Regulatory and Reimbursement Matters

An additional consideration when determining what physical therapy services appropriately can be delegated is applicable regulatory and reimbursement requirements-in particular, supervisory requirements dictated by Medicare. Given the volume of physical therapy services paid for by Medicare, this is an area of particular importance. As an illustration of the significance of Medicare requirements to physical therapy practice, for calendar year 2005 Medicare’s expenditure data indicated that the payment amount for PTs in independent practice alone was $1,233,723,123.5

Similar to state practice acts, Medicare addresses both who can provide physical therapy services and the level of supervision required. Medicare supervision requirements for PTAs are dependent on the practice setting in which services are provided. For example, physical therapy services provided by a PTA working for a PT in private practice must be provided under the PT’s direct supervision. But in contrast to the strict direct supervision requirements under Medicare for PTs in private practice, in inpatient and outpatient hospital settings under Medicare, physical therapy services can be safely and effectively performed by PTAs under the supervision of a qualified PT, with the particular type of supervision required being set forth in the state practice act.

Medicare significantly limits the services that can be provided by a physical therapy aide. In order for services to be reimbursed under Medicare in a certified rehabilitation agency, comprehensive outpatient rehabilitation facility (CORF), or outpatient hospital setting; by a PT in private practice, or at a physician’s office billing “incident to” physical therapy services; services may not be provided by a physical therapy aide regardless of the level of supervision. For inpatient hospital services to be reimbursed under Medicare, the level of supervision and direction is dependent on the state practice act of the particular jurisdiction, while in a home health agency the services must be provided by a qualified PT or a PTA under the PT’s supervision.

Other third party payers may have additional supervision and delegation requirements that may or may not track the Medicare requirements; it is important that PTs be aware of and comply with such requirements.

The risk. The Medicare Recovery Audit Contractor Program, created to detect and correct improper payments under Medicare, has identified about $992.7 million in Medicare overpayments over the past 3 years.6 A PT who fails to comply with Medicare supervision and delegation requirements is at risk of being required to repay significant amounts of money to Medicare, as well as additional penalties up to exclusion from participation in Medicare.

Risk prevention. Medicare compliance training should be part of orientation for all new clinical and non-clinical employees at all facilities at which PTs are employed. Physical therapy practices also should consider whether development of a more formalized Medicare compliance plan is appropriate. Once initial employee training is complete, physical therapy practices should establish mechanism to determine if, in fact, compliance with Medicare policies is a reality. For other third party payers, physical therapy practices should be familiar with supervision and delegation requirements contained in those contracts.

Professional Liability

A PT’s inappropriate decision to delegate services subjects that individual to increased risk of a professional liability claim. Under APTA policy, the PT remains responsible for physical therapy services when his or her plan of care involves use of a PTA to assist with selected interventions.2 This concept is equally applicable to delegation to a physical therapy aide.

This concept of responsibility has been adopted by the courts, and for this reason it is very rare to have a claim filed against a PTA or other support personnel without the supervising PT being included as a defendant. When making a decision to delegate, therefore, it is important to consider the rationale behind the determination and to ask whether the service is being delegated to someone who is trained and competent to perform that service.

In the unfortunate event that a professional liability claim arises that includes issues of delegation, the supervising PT will be required to support the delegation decision. This can put the PT in a difficult if not impossible position if the delegation decision was not in compliance with the state practice act and/or APTA policies, or was inconsistent with what a reasonable PT would have done under similar circumstances.

The risk. A PT who makes a clinically inappropriate decision to delegate performance of certain services is at increased risk of a professional liability claim. In fact, a study performed by CNA found that the most frequent allegation in professional liability claims against PTs is failure to supervise the treatment or procedure.7

Risk prevention. PTs always must perform a complete physical therapy evaluation and determine whether delegation is clinically appropriate. If there is a decision to delegate, PTs must be certain that documentation supports it, and that delegation is consistent with the education and training of the individual to whom that service is delegated.

Taking Responsibility

PTAs and physical therapy aides play important roles in provision of physical therapy services. The PT is responsible for determining appropriate delegation of services based on a number of factors, including the clinical evaluation, the state practice act, regulatory and reimbursement requirements, and professional liability considerations.

Again, APTA provides a wealth of resources on its Web site to guide supervision and delegation. By thoroughly analyzing each delegation decision, PTs can greatly reduce the risk of an adverse action, be it in the form of a professional liability claim, state board action, reimbursement audit, or other undesired consequence.
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Paul Welk, PT, JD, a member of APTA’s Ethics and Judicial Committee, is an attorney at the firm of Tucker Arensberg PC in Pittsburgh, Pennsylvania. He focuses on health care, business, and corporate law.

References
1. Federation of State Boards of Physical Therapy. The Model Practice Act for Physical Therapy. 4th ed. Available atwww.fsbpt.org/RegulatoryTools/ModelPracticeAct/index.asp. Accessed August 20, 2008.
2. American Physical Therapy Association. Direction and supervision of the physical therapist assistant. (HOD P06-05-18-26). Available atwww.apta.org/AM/Template.cfm?Section=Policies_and_Bylaws&CONTENTID=25672&TEMPLATE=/CM/ContentDisplay.cfm. Accessed August 20, 2008.
3. American Physical Therapy Association. Provision of physical therapy interventions and related tasks. (HOD P06-00-17-28). Available atwww.apta.org/AM/Template.cfm?Section=Policies_and_Bylaws&CONTENTID=25472&TEMPLATE=/CM/ContentDisplay.cfm. Accessed August 20, 2008.
4. American Physical Therapy Association. Standards of practice for physical therapy. (HOD S06-03-09-10). Available at www.apta.org/AM/Template.cfm?Section=Policies_and_Bylaws2&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=25517. Accessed August 20, 2008.
5. Centers for Medicare and Medicaid Services. Medicare Part B physician/supplier national data calendar year 2005, expenditures and services by specialty. Available at www.cms.hhs.gov/MedicareFeeforSvcPartsAB/Downloads/Specialty05.pdf. Accessed August 20, 2008.
6. Wall Street Journal Online. Medicare auditors recover $700 million in overpayments. Available at http://online.wsj.com/article/SB121582020194547639.html?mod=2_1566_leftbox. Accessed August 20, 2008.
7. CNA. Physical Therapy Claims Study. Available atwww.cna.com/cnaeportal/vcm_content/CNA/internet/Static%20File%20for%20Download/Risk%20Control/Medical%20Services/Physical_Therapy_Claims_Study.pdf. Accessed August 20, 2008.