                                          The Attorney        General of Texas

JIM MATTOX                                                January 15, 1986
Attorney General


Supreme      Court Building               Honorable James S. McGrath          Opinion No. JM-421
P. 0. BOX 12546                           Criminal District Attorney
Austin,    TX, 76711. 2546                P. 0. Box 2553                      Re: Whether a public agency may
512,4752501
                                          Beaumont, Texas   77704             offer physical therapy services
Telex    9101674-1367
Telecopier     512/475-0266
                                                                              without employing a licensed
                                                                              therapist if such services are
                                                                              offered by or under the super-
714 Jackson,    Suite 700                                                     vision of a licensed physician
Dallas,   TX. 75202.4506
2141742.6944
                                          Dear Mr. McGrath:

4624   Alberta      Ave.,   Suite   160       You have ask&l the following question:
El Paso, TX.        79905-2793
915/533-3464
                                                      To what extent can a public agency offer
                                                   physica:. therapy services without employing a
,M), Texas,    Suite 700                           licensed therapist, so long as such services are
Houston,    TX. 77002-3111                         offered through a licensed physician, through
7131223-5666                                       direct t'reatmentor by direction to his nursing
                                                   support staff to give such treatments?
606 Broadway,         Suite 312
Lubbock,     TX.     79401-3479                The physic&t therapy licensing    act   contains    the   following
606/747-5236                              definition of "phy~~icaltherapy":

                                                   'Physicitl.therapy' means the examination, treat-
4309 N. Tenth, Suite 6
McAllen,     TX. 76501-1665
                                                   ment , or instruction of human beings to detect,
512/662-4547                                       assess, prevent, correct, and alleviate physical
                                                   d1sabW.t.y and pain from injury, disease, dis-
                                                   orders, or physical deformities and includes the
200 Main Plaza. Suite 400
                                                   adminisi:ration and evaluation of tests and
San Antonio,  TX. 76205-2797
5121226-4191
                                                   measurements of bodily functions and structures in
                                                   aid of diagnosis or treatment; the planning,
                                                   adminislxation, evaluation, and modification of
 An Equal        OppOrtUnitYI                      treatment: and instruction, including the use of
 Affirmative       Action   Employer               physica:. measures, activities, and devices for
                                                   preventl.veand therapeutic purposes on the basis
                                                   of approved test findings and the provision of
                                                   consultirt:ive,educational, and advisory services
                                                   for the purpose of reducing the incidence and
                                                   severity of     physical disabilitv and      nain.
                                                   Physica! therap; shall
                                                                     -    also include the delegation
                                                   of selegtive forms of treatment to supportive
                                                   personnc?.with assumption of the responsibilities



                                                                   p. 1919
Honorable James S. McGrath --Page 2 W-421)




           for the care Of the patient and continuing
           direction and supervision of the supportive
           personnel. The ;lse of roentgen rays and radium
           for diagnostic z,nd therapeutic purposes, and the
           use of electrkity for surgical purposes, in-
           cludlng cauterization, are not authorized under
           the term 'physical therapy' as used herein, and a
           license issued Hereunder shall not authorize the
           diagnosis of dieeissesor the practice of medicine
           as defined by lnr.. (Emphasis added).

V.T.C.S. art. 4512e. 51(l) I

     The physical therapy 1Lcensing act sets out certain prohibitions
on the practice of physica:Ltherapy:

              (a) A persor. may not practice or represent
           himself as able to practice physical therapy, or
           act or represent himself as being a physical
           therapist unless he is licensed under this Act.

              (b) A person may not act or represent himself
           as being a physical therapist assistant unless he
           is licensed undr: this Act.

-Id. 97.   The act, and thoslaprohibitions, however, do not apply to

           a licensee of another state agency performing
           health-care serr!:ces within the scope of the
           applicable   licnlsing   act,   an   occupational
           therapist who confines his practice to occupa-
           tional therapy, a certified corrective therapist
           who confines hi:; practice to corrective therapy,
           and a speech pz.thologist or an audiologist who
           confines his prsctice to the treatment of com-
           munication disorders. . . .

Id. 56(l).
-
     The definition of "practicing medicine" in the Medical Practice
Act clearly subsumes the p'racticeof "physical therapy."

               (8)  'Practictng medicine.' A person shall be
            considered to be! practicing medicine within this
            Act:

               (A) who shall publicly profess to be a
            physician or sur::eonand shall diagnose, treat, or
            offer to treat any disease or disorder, mental or
            physical, or any physical deformity or injury by
Ronorable James S. McGrat,h,
                           - Page 3   (m-421)




          any system   or method or to effect cures thereof;
          or

             (B) who shz13.1diagnose, treat, or offer to
          treat any disease or disorder, mental or physical,
          or any physical deformity or injury by any system
          or method and l:c effect cures thereof and charge
          therefor, direct:Lyor indirectly, money or other
          compeasation.

V.T.C.S. art. 4495b, §1.3:3(8). Thus, a doctor who is licensed to
practice medicine in Texar;can perform all the functions of a physical
therapist within the scope:of his medical license.

     Also, a doctor can delegate certain medical acts to 3     qualified
person:

             (1) a pers~1 licensed to practice medicine
          shall have the authority to delegate to any
          qualified and p:roperly trained person or persons
          acting under the physiciaa's supervision any
          medical act which a reasonable and prudent
          physician would ftnd is within the scope of sound
          medical judgmeat to delegate if, in the opinion of
          the delegating physician, the act can be properly
          and safely performed by the person to whom the
          medical act is dKLegated and the act is performed
          in its customary manner, not in violation of any
          other statute, and the person does not hold
          himself out to the public as being authorized to
          practice mediciar:. The delegating physician shall
          remain responsible for the medical acts of the
          person performing the delegated medical acts. The
          board may determine whether or not an act con-
          stitutes the prxtice    of medicine, not incon-
          sistent with thi:;Act, aad may determine whether
          any medical act may or may not be properly or
          safely delegated by physicians. . . .

V.T.C.S. 4495b, 93.06(d)(l).

     The physical therapy licensing act is not applicable to "a
licensee of another state agency performing health-care services
within the scope of the z.pplicable licensing act." V.T.C.S. art.
4512e, 96(l). Although a person acting under the supervision of a
physician would probably not himself be a "licensee" under the Medical
Practice Act, we think acts delegated by a licensed physician come
within the scope of the exxption to the physical therapy licensing
act. Obviously, the purposl!of the exception for health care workers
licensed under other acts :.E!to make clear that health care workers




                                  p. 1921
Honorable James S. McGrath -.Page 4 (J'M-421)




who perform acts that come within the definition of "physical therapy"
are aot violating the law 8:~ long as their acts are authorized by the
licensing act applicable to them. As long as the requirements of
article 4495b, section 3.116(d)(l) are met, any person performing
medical acts under the supervision of a doctor is acting within the
scope of the Medical Practice Act. Therefore, a person performing
medical acts that happen to constitute "physical therapy" would not be
subject to the physical thln:apylicensing act as long as such acts are
authorized by the Medical I?racticeAct.

     Article 4495b, sectioi 3.06(d)(l), sets out a number of require-
ments that must be met in order for a doctor to delegate medical acts.
Consequently, the propriexy of any specific instance of delegation
would involve fact questions that we cannot answer.

                               SUMMARY

            A doctor may perform medical acts that come
         within the defia:Ltion of "physical therapy" in
         article 4512e. section L(1). If the requirements
         of article 4495(>'),section 3.06(d)(l) are met, a
         person who is abt a licensed physical therapist
         but who is acting under a doctor's supervision may
         perform medical wts  that come within the defini-
         tion of "physical therapy" in article 4512e,
         section l(L).




                                         J b
                                         Very truly your ,

                                              A
                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWBR
First Assistant Attorney Ga!neral

MARY KELLER
Executive Assistant Attornl!yGeneral

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committea!

Prepared by Sarah Woelk
Assistant Attorney General




                                  p. 1922
