MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Public Health and Welfare

By: Representative Fredericks

AN ACT TO AMEND SECTION 73-23-41, MISSISSIPPI CODE OF 1972, TO CREATE THE STATE BOARD OF PHYSICAL THERAPY AND PRESCRIBE ITS POWERS AND DUTIES; TO PROVIDE FOR THE APPOINTMENT OF THE BOARD; TO AMEND SECTION 73-23-45, MISSISSIPPI CODE OF 1972, TO CREATE A SPECIAL FUND IN THE STATE TREASURY TO BE KNOWN AS THE PHYSICAL THERAPY FUND, FOR THE DEPOSIT OF ALL FEES AND OTHER MONIES COLLECTED OR RECEIVED BY THE BOARD; TO AMEND SECTION 73-23-65, MISSISSIPPI CODE OF 1972, TO ABOLISH THE PHYSICAL THERAPY ADVISORY COUNCIL AND TO TRANSFER THE POWERS AND DUTIES OF THE STATE BOARD OF HEALTH AND THE STATE DEPARTMENT OF HEALTH REGARDING THE LICENSURE AND REGULATION OF THE PROFESSION OF PHYSICAL THERAPY TO THE STATE BOARD OF PHYSICAL THERAPY; TO AMEND SECTIONS 73-23-33, 73-23-35, 73-23-43, 73-23-47, 73-23-49, 73-23-51, 73-23-53, 73-23-57, 73-23-61, 73-23-63 AND 73-23-64, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO REPEAL SECTION 73-23-55, MISSISSIPPI CODE OF 1972, WHICH PROVIDED FOR THE LICENSING OF PHYSICAL THERAPISTS WHO WERE LICENSED UNDER PREVIOUSLY REPEALED STATUTES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 73-23-41, Mississippi Code of 1972, is amended as follows:

73-23-41. (1) There is established a State Board of Physica1 Therapy that shall consist of seven (7) members appointed by the Governor, with the advice and consent of the Senate. At least four (4) members shall be appointed from a list of five (5) persons submitted by the Mississippi Physical Therapy Association, all of whom must be residents of Mississippi and must have engaged in the practice of physical therapy within the state for at least four (4) years. Four (4) members shall be physica1 therapists, one (1) member shall be a physical therapist assistant, one (1) member shall be a physician, and one (1) member shall be a consumer at large who is not associated with or financially interested in the practice or business of physical therapy. The initial members of the board shall be appointed for staggered terms, as follows: Two (2) members shall be appointed for a term that ends on June 30, 2002; two (2) members shall be appointed for terms that end on June 30, 2003; one (1) member shall be appointed for a term that ends on June 30, 2004; and two (2) members shall be appointed for terms that end on June 30, 2005. All subsequent appointments to the board shall be for terms of four (4) years from the expiration date of the previous term. No person shall be appointed for more than two (2) consecutive terms. By approval of the majority of the board, the service of a member may be extended at the completion of a four-year term until a new member is appointed or the current member is reappointed.

(2) The board shall annually elect a chairman, secretary and treasurer. The board shall provide for the timely orientation and training of new professional and public appointees to the board regarding board licensing and disciplinary procedures, this chapter and board rules, regulations, policies and procedures. A member may be removed by the board only for due cause. Failure to attend at least half of the board meetings in a fiscal year shall constitute cause. The board shall meet at least once each quarter, and those meetings shall be held in compliance with the Open Meetings Law (Section 25-41-1 et seq.). A majority of board members shall constitute a quorum for the transaction of business. The board shall keep an official record of its meetings. Vacancies on the board shall be filled by board member vote from a list of nominees submitted by the Mississippi Physical Therapy Association. Members of the board shall receive the per diem authorized under Section 25-3-69 for each day spent actually discharging their official duties, and shall receive reimbursement for mileage and necessary travel expenses incurred as provided in Section 25-3-41. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the member's action is warranted by law is immune from civil liability.

SECTION 2. Section 73-23-33, Mississippi Code of 1972, is amended as follows:

73-23-33. As used in this chapter unless the context or subject matter otherwise requires:

(a) "Physical therapy" or "physiotherapy," which terms are deemed identical and interchangeable, means the art and science of a health specialty concerned with the prevention of disability, and the physical rehabilitation for congenital or acquired physical or mental disabilities, resulting from or secondary to injury or disease. The "practice of physical therapy" means the practice of the health specialty and encompasses physical therapy evaluation, treatment planning, treatment administration, instruction and consultative services, including:

(i) Performing and interpreting tests and measurements as an aid to physical therapy treatment, for the purpose of correcting or alleviating any physical condition and to prevent the development of any physical or mental disability within the scope of physical therapy; and the performance of neuromuscular-skeletal tests and measurements as an aid in diagnosis, evaluation or determination of the existence of and the extent of any body malfunction;

(ii) Planning initial and subsequent treatment programs, on the basis of test findings; and

(iii) Administering treatment by therapeutic exercise, neurodevelopmental procedures, therapeutic massage, mechanical devices and therapeutic agents which employ the physical, chemical and other properties of air, water, heat, cold, electricity, sound and radiant energy for the purpose of correcting or alleviating any physical condition or preventing the development of any physical or mental disability. The use of roentgen rays and radium for any purpose, and the use of electricity for surgical purposes including cauterization, are not part of physical therapy;

(b) "Physical therapist" means a person licensed in this state to practice physical therapy as defined in this chapter, and whose license is in good standing;

(c) "Physical therapist assistant" means a health care worker who assists a physical therapist in the provision of physical therapy under the direct, on-site supervision of the physical therapist. The physical therapist assistant may perform physical therapy procedures and related tasks that have been selected and delegated by the supervising physical therapist, but shall not perform the following physical therapy activities: interpretation of referrals; physical therapy initial evaluation and reevaluation; identification, determination or modification of plans of care (including goals and treatment programs); final discharge assessment/evaluation or establishment of the discharge plan; or therapeutic techniques beyond the skill and knowledge of the physical therapist assistant;

(d) "Referral" means the written or oral designation of physical therapy services by a doctor of medicine, dentistry, osteopathy, podiatry or chiropractic, or by a nurse practitioner, holding a license in good standing; and the instruction therefor may be as detailed or as general as the doctor or nurse practitioner in his or her sound discretion deems necessary in the particular case;

(e) "Board" means the State Board of Physical Therapy established in Section 73-23-41;

(f) "Direct, on-site supervision" means face-to-face oversight by a licensed physical therapist at regular intervals, as prescribed in regulations adopted by the board, of the services provided to a patient by a licensed physical therapist assistant.

(g) "Direct supervision" means face-to-face oversight at regular intervals of a physical therapist issued a temporary license under Section 73-23-53(1) by a licensed physical therapist. Such direct supervision shall be in accordance with the regulations adopted by the board.

SECTION 3. Section 73-23-35, Mississippi Code of 1972, is amended as follows:

73-23-35. It shall be unlawful for any person, corporation or association to, in any manner, represent himself or itself as a physical therapist, a physical therapist assistant or someone who provides physical therapy services, or use in connection with his or its name the words or letters physiotherapist, registered physical therapist, R.P.T., licensed physical therapist assistant, L.P.T.A., or any other letters, words, abbreviations or insignia, indicating or implying that he or it is a physical therapist, a physical therapist assistant or provides physical therapy services, without a valid existing license as a physical therapist or as a physical therapist assistant, as the case may be, issued to him or it pursuant to this chapter. It shall be unlawful to employ an unlicensed physical therapist or physical therapist assistant to provide physical therapy services.

The board shall aid the state's attorneys of the various counties in the enforcement of the provisions of this chapter and the prosecution of any violations thereof. In addition to the criminal penalties provided by this chapter, the civil remedy of injunction shall be available to restrain and enjoin violations of any provisions of this chapter without proof of actual damages sustained by any person.

SECTION 4. Section 73-23-43, Mississippi Code of 1972, is amended as follows:

73-23-43. (1) The board shall have the following general powers and duties:

(a) To examine and determine the qualifications and fitness of applicants for licenses to practice physical therapy and licenses to act as physical therapist assistants in this state and prepare or approve and conduct all examinations of applicants for licensure;

(b) To issue, renew, deny, suspend or revoke licenses to practice physical therapy and licenses to act as physical therapist assistants in this state or otherwise discipline licensed physical therapists and physical therapist assistants;

(c) To investigate alleged or suspected violations of the provisions of this chapter or other laws of this state pertaining to physical therapy and any rules and regulations adopted by the board; for this purpose, any authorized agents of the board shall have the power and right to enter and make reasonable inspections of any place where physical therapy is practiced, and may inspect and/or copy any records pertaining to clients or the practice of physical therapy under this chapter;

(d) To establish reasonable fees for application for examination, certificates of licensure and renewal, and other services provided by the board;

(e) To adopt, amend or repeal any rules or regulations necessary to carry out the purposes of this chapter and the duties and responsibilities of the * * * board, in accordance with Section 25-43-1 et seq.;

(f) To hire appropriate support personnel to carry out the provisions of this chapter.

The powers and duties enumerated above are granted for the purpose of enabling the board to safeguard the public health, safety and welfare against unqualified or incompetent practitioners of physical therapy and persons acting as physical therapist assistants, and are to be liberally construed to accomplish this objective;

(2) The board shall maintain a register listing the name of every physical therapist and physical therapist assistant licensed to practice in this state, his last known place of business and last known place of residence, and the date and number of his license. The board shall, at least once a year, compile a list of physical therapists and physical therapist assistants licensed to practice in this state and such a list shall be available to any person upon application to the board and the payment of such charges as may be fixed by it.

SECTION 5. Section 73-23-45, Mississippi Code of 1972, is amended as follows:

73-23-45. All fees and other monies collected or received by the board shall be paid into and credited to a special fund that is created in the State Treasury, which shall be known as the "Physical Therapy Fund." Any interest earned on the special fund shall be credited to the special fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund. Monies in the special fund shall be expended, upon appropriation by the Legislature, exclusively for the purposes of implementing the provisions of this chapter. Disbursement of monies in the special fund shall be made only upon warrants issued by the State Fiscal Officer upon requisitions signed by the treasurer of the board. The financial records of the board shall be audited annually by the State Auditor.

SECTION 6. Section 73-23-47, Mississippi Code of 1972, is amended as follows:

73-23-47. Any person who desires to be licensed under this chapter and who: (a) is of good moral character; (b) has been graduated from a physical therapy or physical therapist assistant program, as the case may be, accredited by an agency recognized by the United States Department of Education, Office on Postsecondary Education; and (c) has paid an application fee not to exceed double the price of the examination, no part of which shall be refunded, shall be examined for licensure by the board. The licensure examination for physical therapists and for physical therapist assistants shall be selected by the board and may also include an oral examination or practical examination or both at the discretion of the board.

Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.

SECTION 7. Section 73-23-49, Mississippi Code of 1972, is amended as follows:

73-23-49. Any person who desires to be licensed as a physical therapist or as a physical therapist assistant shall apply to the board in writing on a form furnished by the board. He shall provide such documents as required by the application forms provided by the board. He shall pay the board at the time of filing an application fee fixed annually by the board but not to exceed Two Hundred Dollars ($200.00), no part of which shall be refunded.

SECTION 8. Section 73-23-51, Mississippi Code of 1972, is amended as follows:

73-23-51. (1) The board may license as a physical therapist or as a physical therapist assistant, and furnish a certificate of licensure without examination to, any applicant who presents evidence, satisfactory to the board, of having passed an examination before a similar lawfully authorized examining agency or board in physical therapy of another state or the District of Columbia, if the standards for registration in physical therapy or for licensure as a physical therapist assistant in such other state or district are determined by the board to be as high as those of this state.

(2) Any person who has been trained as a physical therapist in a foreign country and desires to be licensed under this chapter and who: (a) is of good moral character; (b) holds a diploma from an educational program for physical therapists approved by the board; (c) submits documentary evidence to the board that he has completed a course of professional instruction substantially equivalent to that obtained by an applicant for licensure; and (d) demonstrates satisfactory proof of proficiency in the English language, may make application on a form furnished by the board for examination as a foreign-trained physical therapist. At the time of making such application, the applicant shall pay the fee prescribed by the board, no portion of which shall be returned.

Any person who desires to be licensed under this subsection shall take an examination approved by the board and shall obtain a permanent license. If this requirement is not met, the license of the foreign-trained therapist may be revoked.

SECTION 9. Section 73-23-53, Mississippi Code of 1972, is amended as follows:

73-23-53. (1) A temporary license to practice as a physical therapist or physical therapist assistant may be granted to those persons meeting the requirements stated in Section 73-23-47 and who (a) have not taken the approved examination, or (b) have taken the approved examination but have not received the results of the examination. The temporary license shall be granted for a period not to exceed ninety (90) days. Any physical therapist granted a temporary license under the provisions of this subsection shall restrict his practice to the State of Mississippi and shall be under the direct supervision of a physical therapist licensed in Mississippi (physical therapy assistants shall be under the direct on-site supervision of a Mississippi licensed physical therapist). Documentation verifying the supervision shall be on file with the board before a temporary license is granted.

(2) A temporary license to practice physical therapy or to act as a physical therapist assistant may be granted to a physical therapist or a physical therapist assistant licensed in another state who is moving into the state, provided the application for Mississippi licensure is pending and the current license is in good standing. This temporary license will be granted for a period not to exceed sixty (60) days.

(3) Any person granted a temporary license who is required to take the approved examination and fails to take the exam as required by the board or does not pass the required exam shall have the temporary license revoked and a license of any type shall not be issued until such person has passed an approved examination.

(4) Any person who has taken but not passed the required examination in this or another jurisdiction shall not be eligible for a license of any type until an approved examination is passed.

(5) Any person who has been trained as a physical therapist or physical therapist assistant in a foreign country and desires to be temporarily licensed under this subsection shall demonstrate proficiency in the English language and meet the other requirements of Section 73-23-51(2) before such temporary license shall be issued.

SECTION 10. Section 73-23-57, Mississippi Code of 1972, is amended as follows:

73-23-57. (1) Every licensed physical therapist and physical therapist assistant shall apply to the board for a renewal of licensure in a manner prescribed by the rules and regulations of the board, and pay the prescribed fee, not to exceed Seventy-five Dollars ($75.00) per year, or One Hundred Fifty Dollars ($150.00) every two (2) years. Licenses that are not so renewed shall automatically lapse.

(2) The manner in which lapsed licenses shall be revived or extended shall be established by the board.

SECTION 11. Section 73-23-61, Mississippi Code of 1972, is amended as follows:

73-23-61. (1) Each violation of Section 73-23-35 shall be punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not less than ten (10) days nor more than sixty (60) days, or both such fine and imprisonment.

(2) Any person who shall knowingly make a material, false statement in his application for license under this chapter or in response to any inquiry by * * * the board, shall be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) or imprisoned for not less than ten (10) days nor more than sixty (60) days, or both such fine and imprisonment.

SECTION 12. Section 73-23-63, Mississippi Code of 1972, is amended as follows:

73-23-63. (1) Any person whose application for a license is denied shall be entitled to a hearing before the board if he submits a written request to the board. Such hearing shall be conducted at the earliest possible date. * * * The board shall fix a time and place for the hearing and shall cause a written copy of the reason for denial of the license, together with a notice of the time and place fixed for the hearing to be served on the applicant requesting the hearing * * *. Service of and notice of the hearing may be given by certified mail to the last known address of the licensee or applicant. For purposes of the hearing, the board * * * shall have the power to subpoena persons and compel the production of records, papers and other documents.

(2) (a) All complaints concerning a licensee's business or professional practice shall be received by the board. Each complaint received shall be logged, recording at a minimum the following information: (i) licensee's name; (ii) name of the complaining party, if known; (iii) date of complaint; (iv) brief statement of complaint; and (v) disposition.

(b) Following the investigative process, the board may file formal charges against the licensee. Such formal complaint shall, at a minimum, inform the licensee of the facts which are the basis of the charge and which are specific enough to enable the licensee to defend against the charges.

(c) Each licensee whose conduct is the subject of a formal charge which seeks to impose disciplinary action against the licensee shall be served notice of the formal charge at least thirty (30) days before the date of the hearing, which hearing shall be presided over by the board or the board's designee. Service shall be considered to have been given if the notice was personally received by the licensee or if the notice was mailed certified, return receipt requested, to the licensee at the licensee's last known address as listed with the state agency.

(d) The notice of the formal charge shall consist at a minimum of the following information:

(i) The time, place and date of the hearing;

(ii) That the licensee shall appear personally at the hearing and may be represented by counsel;

(iii) That the licensee shall have the right to produce witnesses and evidence in the licensee's behalf and shall have the right to cross-examine adverse witnesses and evidence;

(iv) That the hearing could result in disciplinary action being taken against the licensee's license;

(v) That rules for the conduct of these hearings exist and it may be in the licensee's best interest to obtain a copy;

(vi) That the board or its designee shall preside at the hearing and following the conclusion of the hearing shall make findings of facts, conclusions of law and recommendations, separately stated, to the board as to what disciplinary action, if any, should be imposed on the licensee;

(vii) The board or its designee shall hear evidence produced in support of the formal charges and contrary evidence produced by the licensee. At the conclusion of the hearing, the board shall issue an order; and

(viii) All proceedings pursuant to this section are matters of public record and shall be preserved pursuant to state law.

(3) In addition to other remedies provided by law or in equity, any applicant or licensee aggrieved by any action of the board may appeal the action of the board to the chancery court of the county of his residence, if he be a resident of this state, or the Chancery Court of the First Judicial District of Hinds County, Mississippi, if he be a nonresident of this state, and the court after a hearing may modify, affirm or reverse the judgment of the board or may remand the case to the board for further proceedings. An appeal shall be filed within thirty (30) days immediately following the mailing or delivery to the applicant or licensee of a copy of the order of judgment of the board, unless the court, for good cause shown, extends the time. Appeals may be had to the Supreme Court of the State of Mississippi as provided by law from any final judgment of the chancery court. If the board appeals from any judgment of the chancery court, no bond shall be required of it in order to perfect its appeal. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.

SECTION 13. Section 73-23-64, Mississippi Code of 1972, is amended as follows:

73-23-64. (1) The board may impose any of the following sanctions, singly or in combination, when it finds that a licensee is guilty of any such offense:

(a) Revocation of the license;

(b) Suspension of the license, for any period of time;

(c) Censure the licensee;

(d) Impose a monetary penalty of not more than Two Hundred Dollars ($200.00);

(e) Place a licensee on probationary status and require the licensee to submit to any of the following: (i) report regularly to the board, or its designee, upon matters which are the basis of probation; (ii) continue to renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis of probation; or (iii) such other reasonable requirements or restrictions as are proper;

(f) Refuse to renew a license; or

(g) Revoke probation which has been granted and impose any other disciplinary action in this subsection when the requirements of probation have not been fulfilled or have been violated.

(2) The board may summarily suspend a license under this chapter without a hearing simultaneously with the filing of a formal complaint and notice for a hearing provided under this section if the board finds that the continued practice in the profession would constitute an immediate danger to the public. If the board suspends summarily a license under the provisions of this subsection, a hearing must begin within twenty (20) days after such suspension begins, unless continued at the request of the licensee.

(3) Disposition of any formal complaint may be made by consent order or stipulation between the board and the licensee.

(4) The board may reinstate any licensee to good standing under this chapter if, after hearing, the board is satisfied that the applicant's renewed practice is in the public interest. The procedure for the reimbursement of a license that is suspended for being out of compliance with an order for support, as defined in Section 93-11-153, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.

(5) The board shall seek to achieve consistency in the application of the foregoing sanctions, and significant departure from prior decisions involving similar conduct shall be explained by the board.

SECTION 14. Section 73-23-65, Mississippi Code of 1972, is amended as follows:

73-23-65. The * * * Physical Therapy Advisory Council is abolished. All of the powers and duties of the State Board of Health and the State Department of Health regarding the licensure and regulation of the profession of physical therapy in the State of Mississippi are transferred to the State Board of Physical Therapy. Any property, contractual rights and obligations and unexpended funds of the State Board of Health and the State Department of Health relating to the licensure and regulation of the profession of physical therapy in the State of Mississippi are transferred to * * * the State Board of Physical Therapy.

SECTION 15. Section 73-23-55, Mississippi Code of 1972, which provided for the licensing of physical therapists who were licensed under previously repealed statutes, is repealed.

SECTION 16. This act shall take effect and be in force from and after July 1, 2001.