As the ranking Republican member of the Assembly Health Committee, Assemblywoman Maureen O'Connell (17th A.D.) recently heard the testimony of local health care providers, particularly physical and occupational therapists, with regard to a piece of legislation currently pending that could greatly affect the delivery of care in New York State.

Last Friday's public meeting at Adelphi University's Alumni House was one in a series that O'Connell and her Assembly colleagues are hosting. A public meeting was held March 5 at the Capitol in Albany while another is scheduled for March 21 at Binghamton City Hall.

The bill, AO6664, is an act to amend the education law, in relation to the practices of occupational and physical therapy. Currently, New York is the only state that statutorily prohibits the corporate ownership of physical and occupational therapy services. If enacted, AO6664 would require registration with the education department of a person, firm or corporation seeking to provide occupational or physical therapy services when such a person is not a licensed therapist. Furthermore, it would require registration to state the name of the supervising licensed therapist.

According to O'Connell, a registered nurse, this topic is of particular interest to her and welcomed commentary on the proposed bill. "These public meetings are an excellent opportunity for us to garner the opinions of industry leaders to examine certain health care initiatives and consider their impact on the delivery of services," she said. "The testimony will be helpful while deliberating this legislation in the Assembly Health Committee."

John Kiernan, an attorney with Davidoff & Malito, a firm that has offices in Garden City, Albany, Washington and Manhattan and represents HealthSouth, a North American provider of outpatient surgery and rehabilitative health care services, said Assembly Bill AO6664 would allow and encourage competition. "If it works in all 49 states, it could work in New York. There's a projected need for physical and occupational therapists and I think this would fill that need," he said.

"This legislation would provide greater options to New York residents in need of physical therapy and/or occupational therapy services. It would allow more competition in the delivery of such services and it would support the fundamental doctrine of fair and open competition that is the basis of our economic system in the United States."

Kiernan added that AO6664 would allow a corporation like HealthSouth to own and operate a physical therapy facility in New York without lessening any standards applying to the actual therapist. Under current New York law, HealthSouth is barred from owning and operating a facility even though it operates such facilities nationwide in every other state.

Statute and court opinions created the corporate practice of medicine doctrine during the early part of the 20th century. Its primary purpose was to ensure that unqualified individuals or entities would not unduly influence the professional clinical judgment of physicians in medical practice.

Over the years, with the advent of mandated accreditation standards and strong licensing entities for individuals in the medical profession, the doctrine has been abolished or ignored by almost all the states. With the exception of New York, those few states that continue to adhere to the prohibition have limited its application to physicians in a medical practice.

Currently in New York, in order to provide physical or occupational therapy to a patient, a licensed therapist must be given a prescription by the patient's treating physician. The licensed therapist, following the prescription, institutes protocol for the patient. Similar to a pharmacist, the therapist is in effect filling the prescription as ordered by the treating physician.

Additionally, payers (health insurers, employers, governmental health plans, etc.) traditionally limit the scope and amount of services that may be provided by a physician or occupational therapist. More importantly, the licensed therapist is subject to the New York State Education Department, the American Physical Therapy Association, the Physical Therapy Association of New York State and other licensing authorities and, in some instances, federal agencies. These safeguards, in addition to the therapist's ethical duties in the treatment of patients, ensure the protection of the patient from inferior or inadequate health care and promote the highest quality care.

Physical and occupational therapists in attendance, most of whom own private practices, offered feedback regarding governance, ownership, management and registration and how this proposed bill, if enacted, could quite possibly push aside patients' needs.

Vicki Schuppe, a physical therapist and certified hand therapist working for STARS (Sports Therapy and Rehabilitation Services), a subsidiary of North Shore-Long Island Jewish Hospital, said introducing the corporate idea to health care is a formula for disaster.

"I do not work in private practice. I can't stand here and tell you everyone is ethical and that every physical therapy or occupational therapy practice is wonderful like some are, seeing two to three patients per hour with direct supervision of everybody. There are plenty of unethical bad apples in the professional tree, whether you're a physician, nurse or whatever," Schuppe said. "There have been times where I have changed jobs because I felt what was going on was unethical. What you're going to see is just more of those bad apples magnifying."

Schuppe also voiced concern about the influx of graduates who begin working in large, corporate settings. "The new graduates don't know any better and they begin working in a large setting and are expected to see six or eight patients an hour. Unfortunately, there's always going to be a large influx of new graduates in any profession and it just factors into that formula for disaster. Keeping the corporate system out of the health care arena here in New York has served to keep that whole balance in check. Bringing the corporate practice into play will really just magnify what's such a small percentage now and turn it into a larger problem," she said.

The bill's other safeguard involves a more specific restriction on the employer-employee relationship. The ability of corporations or other business entities to employ licensed physical or occupational therapists does not, by necessity, inhibit the ability of the therapist to control his or her professional judgment, according to the bill.

There is an absolute distinction between the professional aspects of a therapy practice and the business aspect of the practice. The main purpose of a corporate practice prohibition should involve only the protection of the therapist's autonomy over therapy decisions for patients. This purpose is accomplished by professional codes of conduct that are enforced by government and professional organizations. The employment relationship does not, in any manner, directly or indirectly supplant, diminish or circumvent the therapist's independent judgment concerning the practice of physical or occupational therapy or the treatment of patients, according to the proposed bill's summary.

Joe Sullivan, a physical therapist who's been in private practice for over 10 years, said the corporate mentality should not pervade. "My philosophy is simple. If I carry my service to the highest end, my practice will flourish and fortunately, this has been the case. The corporate influence could push patients' needs lower on the totem pole."

AO6664 is modeled closely upon an existing statute allowing for the corporate ownership of pharmacies. For example, in New York, corporations are permitted to employ licensed pharmacists. While these pharmacists may work for a corporation, they are still bound, as is the corporation, by the codes of conduct and professional responsibilities established by law.

Jeff Schwartz of PT Associates in Smithtown, said he thinks the law would essentially allow any corporation to provide physical therapy services in the United States.

"Physical and occupational therapists are responsible for the patient first. Sure we'd like to be in the black ink instead of the red at the end of the day, but nobody's looking for a killing ... We need to maintain a level of liability. With a business corporation, that necessarily doesn't follow through to the bottom line."

Ann Goldberg, an occupational therapist working at the OT North Shore Outpatient Therapy Association in Roslyn Heights, said she went into business decades ago when treatment, not profit, was the motive.

Beth Chiariella, legislative chairperson of the Long Island District of Occupational Therapy and a 13-year occupational therapist herself, attended the meeting to support the opposition. She said some models are obviously working, according to testimony Chiariella heard during last Friday's public meeting, and questioned whether creating another "model" so to speak was the avenue to take. "While the proposed legislation provides for the supervision of occupational therapy services by a licensed occupational therapist, it is our experience that this does not empower the supervising therapist to protect the patient's welfare."

She added that the New York State Occupational Therapy Association recommends the bill be defeated. "I think we can improve what's currently here to avoid future problems. We heard that some models seem to be working ... I seem to be asking myself why we should be adding another ingredient to the pot. Maybe what we can do is focus in on why some models are working and why some are not. Can legislation be passed to assist with helping these models to work better rather than creating another model?"

If enacted, the bill will become effective the first day of January next succeeding the date on which it became law.