Attorney General: William M. Hardy, Connecticut State Board of-Examiners for Physical Therapists, 1992-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 26, 1992

William M. Hardy
Chairman
Connecticut State Board of-Examiners for Physical Therapists
1251 South Main Street Extension
Middletown, Connecticut 06457

Dear Chairman Hardy:

This is in response to your request for our opinion on whether it is a violation of Chapter 376 of the Connecticut General Statutes for a chiropractor to bill patients and/or seek insurance reimbursement for "physical therapy" services, as opposed to chiropractic services, provided to patients. For the reasons discussed below, by denominating services rendered as 'physical therapy" for billing purposes, rather than as "chiropractic' services, the chiropractor is 'holding himself out" as a licensed physical therapist in violation of Chapter 376.

Connecticut has defined 'physical therapy" as 'a separate and distinct paramedical field rather than a general term for the use of physical measures in the evaluation and treatment of human ailments.' 82 Conn. Op. Atty. Gen. (10-5-82).

Conn. Gen. Stat.. 20-66(2) provides:

"Physical therapy" means the evaluation and treatment of any person by the employment of the effective properties of physical measures, the performance of tests and measurements as an aid to evaluation of function and the use of therapeutic exercises and rehabilitative procedures, with or without assistive devices, for the purpose of preventing, correcting or alleviating a physical or mental disability. Physical therapy includes the establishment and modification of physical therapy programs, treatment planning, instruction and consultative , services. The term 'physical therapy' does not include the use of cauterization or the use of Roentgen rays or radium for diagnostic or therapeutic purposes;....

The "practice of chiropractic" as defined by Conn. Gen. Stat. 20-24(a) means:

The practice of that branch of the healing arts consisting of the science of adjustment, manipulation and treatment of the human body in which vertebral subluxations and other malpositioned articulations and structures that may interfere with the normal generation, transmission and expression of nerve impulse between the brain, organs, and tissue cells of the body, which may be a cause of disease, are adjusted, manipulated or treated.

It is evident from their statutory definitions that these two disciplines may render to patients procedures which may be very similar in appearance but involve the application of different and separate disciplines.

Chapter 376 provides two sections that delineate the extent to which other medical fields may perform treatments that fall within the definition of '"physical therapy". Conn. Gen. Stat.. 20-73 states that no one who is not licensed by the State as a physical therapist:

... shall practice or hold himself out as authorized to practice physical therapy, or represent himself as being so registered or licensed or use in connection with his name the term "Registered Physical Therapist", "Licensed Physical Therapist" or "Physical Therapist" or the letters "R.P.T.", "L.P.T." or any other letters, words or insignia indicating or implying that he is a licensed physical therapist in this state.

Recognizing the inevitable overlap between the treatments provided by various medical disciplines, Conn. Gen. Stat.. 20-74 provides that:

[No provision of this chapter] shall prohibit persons registered under the provisions of Chapter 371 (osteopathy), 372 (chiropractic), 373 (naturopathy), 375 (podiatry) or 378 (nursing) from administering care to patients ... provided such persons shall not otherwise engage in the practice of physical therapy within the meaning of this chapter.

In an earlier opinion to the Board regarding whether chiropractors, podiatrists, physicians or others who are not registered or licensed therapists might practice physical therapy, we said that Conn. Gen. Stat.. 20-74 does not accord to any person, other than a licensed physical therapist, the right to practice physical therapy. While this section recognizes the overlapping of modalities of treatment of these professions, -we said 'such procedures are included within the practice of those other professions and do not constitute the practice of physical therapy as it is defined in 20-66." 82 Conn. Op. Atty. Gen. (10-15-82).

Read together, these statutory sections authorize a chiropractor or any professional indicated in 20-74 to perform treatments which in their application appear to fall within the statutory definition of "physical therapy", but they may not hold themselves out in any way that would indicate or imply that they are authorized to practice physical therapy. See R.W. Beverungen, Jr. v. Briele, 25 Md. App.. 233, 242, 333 A.2d 664, 669 (1975) (chiropractor was holding himself out as a physician by use of "chiropractic physician" because such usage of "physician" implies to the public, that he is licensed to practice medicine). See also Ritt v. Ritt, 98 N.J. Super. 590, 592, 238 A.2d 196, 198 (1967), rev'd on other grounds, 244 A.2d 497 (1968) (members of other professional groups doing work of a psychological nature are not prevented from doing such work, but may not hold themselves out to the public by any title or description or implication that they are psychologists).

It is our opinion, that by denominating services as "physical therapy" rather than chiropractic services to third parties or to the patient, the chiropractor is holding him/herself out to the public as authorized to practice 'physical therapy' in violation of Conn. Gen. Stat.. 20-73. A patient or third party receiving a bill for 'physical therapy" from a chiropractor might reasonably conclude that the chiropractor is licensed as a physical therapist, which is not true. A chiropractor is not prevented from performing services that may overlap with those provided by physical therapists, but he or she must make clear chiropractic services are being rendered. There is nothing to prevent a chiropractor from becoming a licensed physical therapist if he or she meets the qualifications and requirements. Nevertheless, the person would have to bill under the license he was actually using at the time.

In reaching this result it is necessary to clarify an opinion issued to the Department of Consumer Protection, with regard to whether the use of 'physical therapy" or "physiotherapy" in chiropractic advertisements is commercial speech protected under the First Amendment of the United States Constitution. 86 Conn. Op. Atty. Gen. (07-15-86). This opinion indicates that in the use of such terms, a State may regulate commercial speech by prohibiting or restricting the speech if it is false, deceptive or misleading, or that, even when the speech is not misleading, the State nevertheless may regulate the speech if such regulation serves and directly advances a substantial governmental interest.

Commercial speech is protected by the First Amendment only if it concerns lawful activity and is not misleading. Virginia Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); see also, Burns v. Barrett, 212 Conn. 176, 182, 561 A.2d 1378, cert denied, _ U.S. _, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989); Caldor, Inc. v. Heslin, 577 A.2d 1009, 1015, 215 Conn. 590, 600 (1990). The Court in Virginia Pharmacy noted the enhanced possibility for confusion and deception of the public in advertising by doctors and lawyers because of the lack of standardization of professional services rendered by these professions, and that they could be subject to regulation not applicable to other professions. Id. 425 U.S. at 774, n.25, 96 S.Ct. at 1831, n.25.

The court has also stated repeatedly, that even when commercial speech is potentially misleading, the state may require "that the information be presented in a way that is not deceptive". In re: R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) (state may require a disclaimer to clarify the advertised material); Posadas de Puerto Rico Assocs.. v. Tourism Co., 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986); Peel v. Attorney Reg. & Disciplinary Comn., 496 U.S. _, 110 S.Ct. 2281, 2292-93, 110 L.Ed.2d 83 (1990). (If the state believes. that statements of private certification might be potentially misleading, the state could require a disclaimer about the certifying organization or the standards of a specialty without disclaimer.) The use of the words "physical therapy" without a disclaimer by a chiropractor could mislead a patient into thinking that the chiropractor was authorized to practice physical therapy.

Our opinion is that use of the term physical therapy in this fashion by a chiropractor may potentially mislead the public and constitutes the chiropractor holding her/himself out as a physical therapist. The State through the Board may at a minimum require that a chiropractor performing chiropractic services which include those aspects of physical' therapy that come within the definition of chiropractic services make clear that the services are not "physical therapy" services and are not rendered by a licensed physical therapist.1

In a related case, the Sixth Circuit found the use of the terms "orthodontics" and "brackets" by a dentist might be classified as potentially misleading. The Court advised the state that its concerns could be adequately addressed by requiring a disclaimer in the dentist's advertisements. Parker v. Com. of Kentucky, Board of Dentistry, 818 F.2d. 504, 511 (6th Cir. 1987). Cf. Accountant's Society of Virginia v. Bowman, 860 F.2d 602, 605 (4th Cir. 1988) (use of the title "public accountant" by a non-CPA in advertisement was misleading because it is possible that "some members of the public would believe the title has the state's imprimatur.")

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Richard J. Lynch
Assistant Attorney General

RB/RJL/mm

cc: Gloria Schaffer
Commissioner
Department of Consumer Protection

Marino R. Passero
Chairman
Connecticut State Board of Chiropractic Examiners
Department of Health Services


1 Under Conn. Gen. Stat. 19a-11 the Board has authority to issue an appropriate order to any person violating an applicable statute or regulation.


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