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California Quandary

A perspective on the POPTS legislative battle from one therapist in the thick of it

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Vol. 23 • Issue 22 • Page 10

Legislative Focus

The practice of physical therapy in California has been a hot topic across the nation during the past few years. Numerous media accounts have discussed a veritable physician monopoly over PT services, caused by the lack of direct access and insufficient enforcement against illegal physical therapy services.

In March 2011, California Senator Mimi Walters agreed to author SB 924. The bill was presented to widen the discussion regarding physician control over PT services and provide a deterrent against the passage of AB 783, a bill that would have legalized physician-owned physical therapy services (POPTS).

The California Physical Therapy Association (CPTA) and its Government Affairs Committee (GAC) intensified their legislative lobbying, time and efforts during 2011 to pass SB 924 and shoot down AB 783. Leaders such as Jim Dagostino, PT, DPT, CPTA chairperson to the GAC, James Syms, PT, DSc, ATC, SCS, CPTA president and board liaison to the GAC, and I flew to Sacramento more than 75 combined times to fight for our patients' rights during the legislative session.

The California Private Practice Group (CA PPG), a special interest group of CPTA, offered its own advocacy by starting an issues fund that collected well over $100,000 for the POPTS fight, delivering numerous press releases, swinging key votes in the Senate Committee on Business, Professions and Economic Development, hiring a public relations firm to help get our story into the media, and starting a petition to oppose and stop POPTS.

The CA PPG also educated members and non-members about the process of filing complaints with the Physical Therapy Board of California (PTBC) against physical therapists allegedly working for POPTS. These complaints set the stage for a 2011 showdown with Assembly Member Mary Hayashi. That, in the end, forced legislators to broker a legislative compromise, which SB 924 eventually became.

Early Developments

CPTA won both bills in 2011. SB 924 passed through the Senate Business and Professions Committee by a vote of 5-2 and was strategically held to gain further support before reaching the Senate floor. AB 783 was defeated twice by the committee in 2011, essentially killing the legislation.

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Shortly thereafter, Hayashi asked for an audit of the PTBC on the basis that she suspected an inappropriate relationship between CPTA and the PTBC. CPTA, meanwhile, believed Hayashi was trying to stall law enforcement against POPTS. The audit later showed no wrongdoing by the PTBC, but did cost its licensed physical therapists in California approximately $200,000. Despite the audit, the PTBC sent approximately 250 letters to PTs allegedly working for POPTS for information-gathering purposes.

Subsequently during the last week of the legislative session, Senate President pro Tempore Darrell Steinberg added a sentence into an omnibus bill, SB 543, which was previously unrelated to physical therapy. This amended bill effectively placed a moratorium on law enforcement until January 2013. In January 2012, with SB 924 still alive, Senator Steinberg called a high-level meeting in his office with CPTA and medical associations. He told me and the other CPTA leaders present that he wanted to broker a compromise on the physical therapy issues because the battle had gotten too bloody between the opposing groups.

Senator Curren Price, chair of the Business and Professions Committee, became the new chief author of SB 924 since it was determined the bill would have a better chance of passing with a Democratic chief author. At the meeting, Senator Steinberg told both parties that physicians would be allowed to employ physical therapists, while PTs would be allowed direct access in some form. Although there was significant opposition among California physical therapists to legalizing POPTS, SB 924 passed the Senate 36-0 in its compromised form, which included POPTS legalization and 30 business days of direct access.

Assembly Issues

SB 924 then crossed over to the Assembly side, where it would be reviewed by the Assembly Committee on Business, Professions and Consumer Protection. Assembly Member Hayashi was chair of this committee and CPTA knew that chairpersons often have great influence over the outcome of bills. The association also remembered that Hayashi had effectively killed a direct access bill, AB 721, in 2009 and failed to grant it reconsideration.

She continued to posture against PT direct access during committee hearings on AB 783 even though she had authored AB 374, which was eventually shot down but would have allowed unrestricted direct access to athletic trainers for evaluation and treatment.

In May 2012, Mary Hayashi requested a meeting with CPTA leaders to negotiate SB 924. I was opposed to any meeting with her, as was Dr. Dagostino. I believed that a meeting with Hayashi wouldn't benefit our cause and might convey a message to other legislators that CPTA was willing to compromise SB 924 further.

When CPTA agreed to enter negotiations with Hayashi, several CPTA committee members, including myself, resigned from their CPTA positions. We were still in favor of SB 924, as was CA PPG, but also very concerned that continuing to make concessions would result in worsening patients' access to quality PT services (instead of improving it).

During the meeting with CPTA, Hayashi offered to become the lead author of SB 924 as long as Senators Price and Walters, strong advocates for direct access, were removed from the bill. From my perspective, her offer to control our bill was an attempt to amend it beyond acceptability and foreshadowed the eventual demise of the SB 924 compromise. SB 924 did pass through Hayashi's committee 8-1, as Dr. Dagostino and I expected, but unforeseen troubles still lay ahead.

The last committee SB 924 had to pass before reaching the Assembly floor and then the Governor's desk was the Appropriations Committee. This group assesses whether there are costs to the state associated with legislation and if so, whether the legislation merits those costs. CPTA and CA PPG were blindsided in June when the committee tagged a greater than $150,000 price tag on the bill, stating it had concerns regarding workers' compensation costs. However, workers' comp regulations in California only allow access to healthcare through a physician gatekeeper and SB 924 was very specific about not changing that stipulation.

Suspense File

The bill was then sent to the Appropriations Committee "suspense file," where it would be debated behind closed doors and voted on the following week without any public testimony. The vote was to amend the bill with provisions written verbatim according to California Medical Association (CMA) recommendations. In addition, these amendments in no way addressed the fiscal concerns that sent SB 924 to the suspense file in the first place.

CA PPG and Dr. Dagostino felt SB 924 was doomed to fail at this point because there seemed to be a covert attempt to shoot it down without public testimony or considering the merits of the policy. In any case, SB 924 moved toward possible consideration on the Assembly floor. Assembly Speaker pro Tempore Fiona Ma, a proponent of direct access, agreed to be the "floor jockey" for SB 924. She, along with Senator Price and others, was able to remove most of the new amendments, but Senator Steinberg added legalizing chiropractic ownership of PT services, which CPTA had been adamantly opposed to and CA PPG would never support.

These late amendments didn't matter in the end, however. Before the bill could be introduced on the Assembly floor, Speaker John Perez referred it to the Rules Committee, which I believe had no plausible jurisdiction over the bill. On Aug. 31, the last day of the legislative session, I was the only California physical therapist present in the Assembly gallery from 10 a.m. to 1:30 a.m., where I witnessed as the bill was never brought to the Assembly floor due to being held in the Rules Committee.

I've learned many lessons from being involved in this legislative journey:

1. Money talks in lobbying and the CPTA faced an uphill fight, for example being outspent by a ratio of more than 30 to 1 in the battle on AB 783, according to www.maplight.org.

2. Don't be the first to "give way" in a negotiation. Those who use tougher negotiating tactics usually get things shifted more in their direction.

3. When patients have been done an injustice, always speak out vigorously to defend them. It's not only the ethical thing to do, but also builds respect for our profession among the legislature and citizenry, as well as within our own CPTA membership.

We did not lose. We fought to a draw. In my opinion, it's time to stop POPTS. 

Resources are available online at www.advanceweb.com/pt

Paul D. Gaspar has been practicing physical therapy for almost 20 years and is president of Doctors of Physical Therapy, with six locations in the San Diego area. He has served on many committees and boards at the state and national levels for APTA, CPTA and their private-practice components. Dr. Gaspar is currently a national PT-PAC trustee as well as government affairs director for the California Private Practice Group.


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