ERISA

The FIVE State Board Violations

Every NJ PT Should be Aware of

and How to Prevent Them.

Vincent N. Buttaci, Esq.

The New Jersey State Board of

Physical Therapy Examiners

• The New Jersey State Board of Physical

Therapy Examiners (the “Board”) was created by

the Physical Therapist Licensing Act of 1983

(the “Practice Act”).

• The Board is responsible for both the licensing

of PTs/PTAs and the regulation of the practice of

physical therapy in all practice settings.

• The Board’s purpose is to protect the general

public.

Duties of the Board

 The specific duties of the Board are set forth in a

section of the Practice Act (N.J.S.A. 45:9-37.18).

 Specifically, with respect to disciplinary matters

the Board shall:

 Administer and enforce the provisions of the Practice

Act. (N.J.S.A. 45:9-37.18(a)(1)).

 Establish disciplinary measures, including but not

limited to, suspending, revoking, or refusing to renew

the license of a physical therapist or physical therapist

assistant pursuant to the provisions of the Uniform

Enforcement Act. (N.J.S.A. 45:9-37.18(a)(11)).

Duties of the Board

• Conduct hearings into allegations of misconduct by

licensees. (N.J.S.A. 45:9-37.18(a)(9)

• Conduct hearings pursuant to the “Administrative

Procedure Act” except that the Board shall have the

right to administer oaths to witnesses, and shall have

the power to issue subpoenas for the compulsory

attendance of witnesses and the production of

pertinent books, papers or records (N.J.S.A. 45:9-

37.18(a)(11)

• Conduct proceedings before any board, agency or

court of competent jurisdiction for the enforcement of

the provisions of the Practice Act. (N.J.S.A. 45:9-

37.18(a) 12);

Duties of the Board

• Conduct investigations as necessary and have the

enforcement powers provided pursuant to the Uniform

Enforcement Act. (N.J.S.A. 45:9-37.18(a)(13).

Basis for Disciplinary Action

 The Practice Act;

 The Regulations of the Board; and

 The Uniform Enforcement Act

 Statute that applies to all licensed health care

professionals.

 Sets forth the grounds upon which the Board may refuse to

issue a license or suspend or revoke a license that has

previously been issued.

 Also provides for additional or alternative penalties and

sanctions.

The Uniform Enforcement Act

 Pursuant to the Uniform Enforcement Act (N.J.S.A. 45:1-21) the

Board may refuse to admit a person to an examination or may

refuse to issue or may suspend or revoke any license issued by the

Board upon proof that the applicant or holder

 Has obtained a certificate, registration, license or authorization to sit for

an examination, as the case may be, through fraud, deception, or

misrepresentation;

 Has engaged in the use or employment of dishonesty, fraud, deception,

misrepresentation, false promise or false pretense;

 Has engaged in gross negligence, gross malpractice or gross

incompetence which damaged or endangered the life, health, welfare,

safety or property of any person

;

The Uniform Enforcement Act

 Has engaged in repeated acts of negligence, malpractice or

incompetence;

 Has engaged in professional or occupational misconduct as may be

determined by the Board;

 Has been convicted of, or engaged in acts constituting, any crime or

offense involving moral turpitude or relating adversely to the activity

regulated by the board. For the purpose of this subsection a judgment of

conviction or a plea of guilty, non vult, nolo contendere or any other such

disposition of alleged criminal activity shall be deemed a conviction;

 Has had his/her authority to engage in the activity regulated by the

Board revoked or suspended by any other state, agency or authority for

reasons consistent with this section;

 Has violated or failed to comply with the provisions of any act or

regulation administered by the Board;

The Uniform Enforcement Act

 Is incapable, for medical or any other good cause, of discharging the

functions of a licensee in a manner consistent with the public’s health,

safety and welfare;

 Has repeatedly failed to submit completed applications, or parts of, or

documentation submitted in conjunction with, such applications, required

to be filed with the Department of Environmental Protection;

 Has violated any provision of P.L. 1983, c. 320 (C. 17:33A-1 et seq.) or

any insurance fraud prevention law or act of another jurisdiction or has

been adjudicated, in civil or administrative proceedings, of a violation of

P.L. 1983, c. 320 (C. 17:33A-1 et seq.) or has been subject to a final

order, entered in civil or administrative proceedings, that imposed civil

penalties under that act against the applicant or holder;

The Uniform Enforcement Act

 Is presently engaged in drug or alcohol use that is likely to impair the

ability to practice the profession or occupation with reasonable skill and

safety. For purposes of this subsection, the term “presently” means at

this time or any time within the previous 365 days;

 Has prescribed or dispensed controlled dangerous substances

indiscriminately or without good cause, or where the applicant or holder

knew or should have known that the substances were to be used for

unauthorized consumption or distribution;

 Has permitted an unlicensed person or entity to perform an act for which

a license or certificate of registration or certification is required by the

board, or aided and abetted an unlicensed person or entity in performing

such an act; or

 Advertised fraudulently in any manner.

Range of Penalties and Sanctions for

Board Violations

 License revocation;

 License suspension (active or inactive);

 Injunction (through Superior Court action);

 Civil Penalty or fine of up to $10,000 for the first

violation and $20,000 for each additional violation;

 Restitution;

 Restrictions on practice or clinical monitoring;

 Cease and Desist Order; and/or

 Letter of reprimand, warning or censure.

Impact of Board Actions

 The entry of a final order by the Board is public.

 A copy of the order is posted on the Board’s website

and searchable by name of the PT or PTA.

 At present, there is no procedure available for

expungement or removal.

 Disclosure to the National Practitioner Data Bank.

 Required disclosure on malpractice insurance and

license renewal applications.

 Required disclosure on participating provider

applications.

1. Failure to Timely Renew a License

 Pursuant to N.J.A.C. 13:39A-5A.1, all licenses

issued by the Board are for a biennial (2 year)

period.

 Which means every 2 years you have to renew your

license.

 “A license that is not renewed within 30 days of its

expiration shall be automatically suspended. An

individual who continues to practice with a

suspended license shall be deemed to be engaged

in unlicensed practice.” (N.J.A.C. 13:39A-5A.1(e))

1. Failure to Timely Renew a License

 How to prevent this violation:

1. Calendar your expiration date.

2. Make sure that the Board always has your current

address.

3. If you do not receive your renewal notice 60 days prior to

the expiration date of your license, contact the Board.

2. Failure to Wear a Name Tag

 Pursuant to N.J.A.C. 13:39A-3.9, “All licensees shall

conspicuously wear a name tag using the term

"physical therapist" or "physical therapist assistant,"

as appropriate, whenever acting in that capacity.

The letters on the tag shall be at least one-quarter

inch in size.”

 The purpose of this regulation is to inform the

patient of both who you are and your licensure

status. It is critical when unlicensed aides are

present.

2. Failure to Wear a Name Tag

 How to prevent this violation:

1. Wear a name tag everyday!

2. If your employer has not given you a name tag, go make

one or have one made for you. Then wear the name tag

that you have created and perhaps you will start a fashion

trend.

3. Improper Delegation to Unlicensed

PT Aides

Pursuant to N.J.A.C. 13A: 39A-2.4(b) a PT shall not authorize or

permit an unlicensed person (i.e. PT aide) to engage in the

following activities:

1. Advise, teach, or instruct patients concerning their condition or

disability;

2. Carry out testing or evaluation procedures;

3. Make any notations in documents regarding patient care or clinical

treatment, which is not permitted by (a) above;

4. Place or remove electrodes of any kind on the skin;

5. Administer, apply, or remove any modalities;

6. Instruct, perform, oversee, or supervise therapeutic exercise(s) and/or

therapeutic activity(s); and

7. Provide therapeutic massage.

3. Improper Delegation to Unlicensed

PT Aides

 Most common violations are:

1. The application of hot packs and cold packs by PT aides;

2. The application of stim pads by PT aides;

3. A PT aide or personal trainer supervising or instructing the

patient on therapeutic exercises; and

4. A PT aide monitoring aquatic therapy.

 How to prevent this violation:

1. Do not hire PT aides.

2. Delegate only those tasks specifically set forth in N.J.A.C.

13:39A-2.4(a).

3. If your employer insists that you delegate tasks to PT aides in

violation of the regulation, find a new job.

4. Failure to Maintain Patient Records

 Pursuant to N.J.A.C. 13:39A-3.1(c) the patient record shall

include, in addition to personal identifying information,

consents, and disclosures, at least the following information:

1. The full name, as it appears on the license, of the licensee who

rendered care, identification of licensure designation (PT or PTA), and

license number. This information shall be legible and shall appear at

least once on each page of the patient record, except as set forth at

N.J.A.C. 13:39A-3.2(e);

2. Dates of all examinations, evaluations, physical therapy diagnoses,

prognoses including the established plans of care, and interventions;

3. The findings of the examination including test results;

4. The conclusion of the evaluation;

5. The determination of the physical therapy diagnosis and prognosis;

6. Documentation of health care practitioner referrals, if any;

4. Failure to Maintain Patient Records

7. A plan of care establishing measurable goals of the intervention with

stated time frames, the type of intervention, and the frequency and

expected duration of intervention;

8. A note contemporaneous with each session, with the license number

and signature or initials of the licensee who rendered care, that

accurately represents the services rendered during the treatment

sessions including, but not limited to, the components of intervention,

the patient's response to intervention, and current status. If the licensee

chooses to sign by means of initials, his or her complete signature and

license number shall appear at least once on every page;

9. Progress notes in accordance with stated goals at a frequency

consistent with physical therapy diagnosis, evaluative findings,

prognosis and changes in the patient's conditions;

4. Failure to Maintain Patient Records

10. Changes in the plan of care which shall be documented

contemporaneously;

11. Communication with other health professionals relative to the patient's

care;

12. A discharge summary which includes the reason for discharge from and

outcome of physical therapy intervention relative to established goals at

the time of discharge; and

13. Pertinent legal document(s).

 The patient record should tell the story of the course

of the patient’s care at the practice or facility.

Accordingly, it should document the who, what,

when, where, why and how of the patient’s care.

4. Failure to Maintain Patient Records

 How to prevent this violation:

1. Document in strict compliance with the regulation.

2. Make sure your EHR complies with the regulation.

3. Spend the time necessary to complete the entry in the

record.

4. Always have a discharge summary even if the patient just

stopped coming in for treatment.

5. Unprofessional/Inappropriate

Communication with a Patient

 This violation typically involves unprofessional or

inappropriate communication by a PT or PTA with a patient in

electronic form (i.e. text message, email, instant message,

etc.).

 Generally this type of violation falls into two categories:

1. Offensive communications (whether intentional or

otherwise) that are sent by a PT or PTA who has crossed

professional boundaries with a patient.

2. The overreaction of PT or PTA to a perceived

uncooperative or difficult patient.

 This type of communication can be insulting, demeaning and

pejorative to the patient.

5. Unprofessional/Inappropriate

Communication with a Patient

 How to prevent this violation:

1. Maintain professional boundaries.

2. Do not send an email or text message to a patient in

anger.

3. Always remember that you are a licensed professional.

4. Try to understand that most patients who appear difficult

are really just scared.

5. Document all patient communications in the patient

record.

6. When in doubt, think of what your mother would say

about the message you want to send before you send it.

Questions?

vnbuttaci@buttacilaw.com

609.799.5150