Could Maryland's Physical Therapy Board decide by regulation that spinal manipulation was within the scope of physical therapy, not just chiropractic?

Plain-English summary

The President of Maryland's State Board of Chiropractic Examiners asked the Attorney General to resolve a turf dispute with the State Board of Physical Therapy Examiners: could physical therapists perform "manipulation" and "mobilization," techniques that move a joint beyond its normal range of motion, or were those techniques exclusively within the practice of chiropractic? The Physical Therapy Board had already issued an informal statement saying physical therapists could perform these techniques, mainly to get Blue Cross and Blue Shield of Maryland to reimburse for them, but it never went through formal rulemaking to adopt that position.

The Attorney General concluded that the Physical Therapy Board's earlier statement was legally worthless because it was adopted without the notice, hearing, and publication procedures the Administrative Procedure Act requires for a regulation. Looking at the actual statutory definition of "practice physical therapy" and its legislative history back to 1947, the opinion found nothing showing the General Assembly had specifically decided whether manipulation and mobilization counted as "therapeutic exercise" or "therapeutic massage." Because the legislature had not resolved the question, and because Maryland law allows two different licensed health occupations to share overlapping scopes of practice, the opinion concluded the Physical Therapy Board had the authority to decide the issue itself, but only through a proper rulemaking proceeding that seriously considered the evidence and views on both sides, including from chiropractors. The opinion recommended against using the APA's declaratory ruling process for this question, since a declaratory ruling would bind only the Board and the specific person who asked for it, not the entire profession, and the underlying dispute needed a general, across-the-board answer. The opinion also urged the General Assembly to resolve the overlap itself through legislation, since that would be a cleaner fix than leaving the line-drawing to competing licensing boards.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here, particularly the current text of the Physical Therapy Act and Chiropractic Act in the Health Occupations Article, and whether the General Assembly or the Physical Therapy Board has since adopted a regulation addressing manipulation and mobilization directly.

Common questions

Was Maryland's Physical Therapy Board allowed to decide on its own that spinal manipulation was part of physical therapy? According to this opinion, yes, but only through a proper rulemaking proceeding under the Administrative Procedure Act, since the General Assembly had not itself resolved whether manipulation and mobilization fell within the statutory definition of "practice physical therapy."

Why was the Physical Therapy Board's earlier statement on this issue invalid? The opinion concluded that statement was really a "regulation" under Maryland's Administrative Procedure Act because it had general application and was meant to have future effect, but the Board adopted it without following the required notice, hearing, and publication procedures, making it legally ineffective.

Could physical therapists and chiropractors both be authorized to perform the same technique? Yes, according to the opinion. Maryland's Health Occupations Article uses a "scope of title" provision in every licensing title, including chiropractic, that preserves a licensee's right to perform acts also authorized for another health occupation, so overlapping authority between physical therapists and chiropractors was not, by itself, a legal problem.

Why didn't the Attorney General recommend using a declaratory ruling instead of a full rulemaking? The opinion reasoned that a declaratory ruling binds only the Board and the specific petitioner, not the whole profession, so it was poorly suited to deciding an issue that would affect every physical therapist and chiropractor in the state. A full rulemaking, by contrast, could gather evidence and views from both professions and produce a generally applicable answer.

Background and statutory framework

Maryland's Health Occupations Article defines "practice physical therapy" to include administering treatment with "therapeutic exercise" and "therapeutic massage," terms that trace back through several rewrites of the Physical Therapy Act since 1947 without ever being specifically defined. The opinion found no legislative history showing the General Assembly meant those terms to include or exclude spinal manipulation and mobilization. Separately, the Chiropractic Act defines "practice chiropractic" to include "the manual manipulation and adjustment of the spine and other skeletal structures," but the opinion explained that a technique being part of chiropractic's scope did not automatically make it outside physical therapy's scope, because every title in the Health Occupations Article contains a "scope of title" clause preserving overlapping authority between health occupations.

Under the Administrative Procedure Act, the Physical Therapy Board's general rulemaking power, its authority to discipline a licensee who treats patients "by means other than physical therapy," and its power to issue binding declaratory rulings on petition, together gave it a route to resolve the scope-of-practice question on its own. But the opinion stressed that any such regulation would have to be "reasonable and consistent with the letter and policy of the statute," and would need to reflect a genuine, reasoned assessment of the record, since a court reviewing a challenge would first ask whether the legislature had already decided the issue (it had not, in the opinion's view) and would then ask whether the Board's own resolution was a reasonable reading of an ambiguous statutory term. The opinion recommended full notice-and-comment rulemaking rather than a declaratory ruling, because a declaratory ruling would bind only the Board and the individual petitioner and would not fairly account for the interests of chiropractors and other physical therapists who were not part of that specific petition.

Citations and references

Statutes:

• HO §13-101(i)(2)(iii), defining "practice physical therapy" to include therapeutic exercise and therapeutic massage
• HO §3-101(f)(2), defining "practice chiropractic" to include manual manipulation and adjustment of the spine and other skeletal structures
• HO §3-102, the Chiropractic Act's "scope of title" provision preserving other health occupations' overlapping authority
• HO §13-202(a), establishing the Physical Therapy Board's membership
• HO §§13-301(a), 13-306(b), 13-308, and 13-315, the Board's examination, licensing, and discipline authority
• HO §13-315(4), authorizing discipline of a licensee who treats a patient by means other than physical therapy
• HO §13-206(a)(1), the Board's general rulemaking authority
• HO §§3-301(a)(2) and (c), 3-302(e), and 3-304(e)(2), the special licensing route for a chiropractor seeking full physical therapy authority
• SG §10-101(e)(1), defining "regulation" under the Administrative Procedure Act
• SG §10-125, governing judicial review and invalidation of regulations for constitutional, statutory-authority, or procedural defects
• SG §§10-301, 10-304, and 10-305, governing the APA's declaratory ruling procedure
• COMAR 10.01.12, the Department of Health and Mental Hygiene's declaratory ruling procedural regulations
• 5 U.S.C. §554(e), the federal APA's analogous declaratory order provision

Cases:

• CBS, Inc. v. Comptroller, 319 Md. 687, 692, 575 A.2d 324 (1990), on the notice, hearing, and publication procedures required for valid rulemaking
• Comptroller v. M. E. Rockhill, Inc., 205 Md. 226, 233, 107 A.2d 43 (1954), the general standard that regulations must be reasonable and consistent with the statute's letter and policy
• Department of Transportation v. Armacost, 311 Md. 64, 74, 532 A.2d 1056 (1987), restating the same reasonableness standard for agency regulations
• Baltimore Gas & Electric Co. v. Public Service Comm'n, 305 Md. 145, 159, 162, 501 A.2d 1307 (1986), on the deference owed to an agency's interpretation of a vague statutory term reached through rulemaking
• D'Anna v. Secretary of Personnel, 47 Md. App. 180, 186, 422 A.2d 50 (1980), on the limited scope of judicial review of whether an agency acted within its legal boundaries
• Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990), on examining statutory language and legislative history to determine whether the legislature resolved an issue
• Richards Medical Co. v. United States, 720 F. Supp. 998, 1000 (Ct. Int'l Trade 1989), defining "therapeutic" and "therapeutics"
• Louisiana State Board of Medical Examiners v. Martindale, 83 So. 2d 544, 545 (La. App. 1955), defining "massage"
• Ohio Power Co. v. FERC, 880 F.2d 1400, 1405 (D.C. Cir. 1989), cited on one agency lacking authority to impose its regulatory views on a separate agency
• Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), cited for the general principle of deference to agency interpretations of ambiguous statutes
• Public Service Comm'n v. Maryland People's Counsel, 309 Md. 1, 12-13, 522 A.2d 369 (1987), cited on ripeness standards for pre-enforcement review of regulations
• Tennessee Gas Pipeline Co. v. Federal Power Commission, 606 F.2d 1373, 1383 (D.C. Cir. 1979), cited on the limits of declaratory rulings binding non-parties
• Office of Consumer Advocate v. Iowa State Commerce Commission, 395 N.W.2d 1, 6 (Iowa 1986), cited on the same declaratory-ruling limits
• Teleconnect Co. v. Iowa State Commerce Commission, 366 N.W.2d 515, 518 (Iowa 1985), cited on the same declaratory-ruling limits
• State Dep't of Health and Rehab. Services v. Barr, 359 So. 2d 503, 505 (Fla. App. 1978), cited for the rule that a declaratory ruling does not bind non-parties
• Fasi v. State Public Employment Relations Board, 591 P.2d 113, 118 (Haw. 1979), cited for the same rule
• New York State Comm'n on Cable Television v. FCC, 749 F.2d 804, 815 (D.C. Cir. 1984), cited on a declaratory ruling proceeding broadened to resemble rulemaking
• Environmental Defense Fund v. Colorado Dep't of Health, 731 P.2d 773, 777 (Colo. App. 1986), cited applying the Chevron deference standard to state regulatory review
• Department of Mental Health v. Texas State Employees Union, 708 S.W.2d 498, 511 (Tex. App. 1986), cited applying the Chevron deference standard to state regulatory review

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 3-17 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ADMINISTRATIVE LAW

Rulemaking - Health Occupations - Physical Therapists - Chiropractors - Physical Therapy Board Has Authority to Determine By Regulation Whether Certain Therapeutic Techniques Are Within Scope of Practice of Physical Therapy

January 23, 1991

Audie G. Klingler, D. C.
President, State Board of
Chiropractic Examiners

You have requested our opinion whether certain procedures, described as ''manipulation" and "mobilization," fall within the scope of practice of physical therapy. The Board of Physical Therapy Examiners ("Physical Therapy Board") has previously stated that they do. The Board of Chiropractic Examiners ("Chiropractic Board"), however, takes the view that these procedures are outside the scope of practice of physical therapy and, instead, are exclusively within the scope of practice of chiropractic.

As we explain below, the key issue is whether the General Assembly has itself decided the matter, one way or the other. Our examination of current law leads us to conclude that the General Assembly has not resolved the question. And, indeed, the best resolution of the dispute between the boards would be an enactment by the General Assembly to delineate more clearly the scope of practice of physical therapy.

In the absence of legislative clarification, however, we conclude that the Physical Therapy Board has the authority to determine by regulation whether or not manipulation and mobilization are within the scope of practice of that health occupation. More specifically, we conclude as follows:

1. The Physical Therapy Board's prior statement that the procedures in question are within the scope of practice of physical therapy, having been issued without compliance with the procedural requirements of the Administrative Procedure Act ("APA"), is legally ineffective.

2. If the Physical Therapy Board concluded, after a reasoned consideration of the submissions to it in a properly conducted rulemaking proceeding, that these therapeutic procedures are within the scope of practice of physical therapy as defined in current law, its conclusion would likely be upheld on judicial review.

3. Although the declaratory ruling procedures of the APA are generally available to resolve doubt about the applicability of a regulatory statute to members of a regulated occupation, we recommend that the Physical Therapy Board decline to rule on any petition seeking confirmation that physical therapists may perform these procedures and instead conduct a rulemaking.

I

Physical Therapy and Chiropractic

Physical therapists typically perform their therapy by moving a malfunctioning part of the body through its ordinary range of motion. To take a commonplace example, if an injury to a person's knee limits the person's ability to move that joint, a physical therapist might manually bend the knee through its ordinary, unimpaired range of motion to strengthen it.

The controversy between the Physical Therapy Board and the Chiropractic Board results from the use by some physical therapists of techniques - for example, "spinal manipulation'' and "mobilization" - that involve the movement of bone tissue beyond its normal range of motion. The issue is whether these techniques are a permissible aspect of the practice of physical therapy, defined in pertinent part to include "administering treatment with therapeutic exercise [or] therapeutic massage" §13-101(i)(2)(iii) of the Health Occupations Article ("HO" Article).1

1
The full definition is as follows:
(1) "Practice physical therapy" means the practice for compensation the health specialty concerned with:
(i) The prevention of disability in individuals; and (ii) The physical rehabilitation of individuals with a congenital or acquired disability.
(2) "Practice physical therapy" includes:
(i) Performing and interpreting tests and measurements of neuromuscular and musculoskeletal functions to aid treatment;
(ii) Planning treatment programs that are based on test findings; and
(iii) Except as provided in paragraph (3) of this subsection, administering treatment with therapeutic exercise, therapeutic massage, mechanical devices, or therapeutic agents that use the physical, chemical, or other properties of air, water, electricity, sound, or radiant energy.
(3) "Practice physical therapy" does not include:
(i) X-rays;
(ii) Radioactive substances; or
(iii) Electricity for cauterization or surgery.

In late 1988, the Physical Therapy Board issued a statement that these procedures are within the scope of practice of physical therapy. The Chiropractic Board, for its part, believes that physical therapists are not properly trained in these techniques and do not have available to them the diagnostic tools necessary to undertake that kind of manipulation of bone tissue.

Manipulation is unquestionably a part of the practice of chiropractic. The definition of "practice chiropractic" includes "the manual manipulation and adjustment of the spine and other skeletal structures ..." HO §3-101(f)(2).

This fact is merely the starting point of the analysis, however, because the same activity could well be within the scope of practice of two separate health occupations. For example, a podiatrist performs activities that are squarely within the scope of practice of medicine. Compare HO §15-101(f)(l) with HO §14-101(k).

Every title in the Health Occupations Article, including the Chiropractic Act, recognizes the potential for overlap by including a "scope of title" provision, the wording of which is the same in each title: "This title does not limit the right of an individual to practice a health occupation that the individual is authorized to practice under this article." See, e.g., HO §3-102. The General Revisor's Note to the Health Occupations Article, printed at page 557 of the now-superseded 1981 volume of that article, states as follows:

Some acts fall within the scope of practice of more than one health occupation .... The Commission [to Revise the Annotated Code of Maryland] has interpreted the legislative intent ... to be to grant each licensee the right to practice the health occupation for which the license is issued even though a person licensed to practice another health occupation may be authorized to perform some of the same acts.

The standard "scope of title" provision quoted above "recognize[s] this intent expressly ...." Id.

Thus, if manipulation and mobilization are within the scope of practice of physical therapy, a physical therapist may perform them, even though they are also within the scope of practice of chiropractic.

II

The Physical Therapy Board's Prior Determination

The Physical Therapy Board has previously concluded that the techniques in question are within the scope of practice of physical therapy. As far as we are aware, however, the Physical Therapy Board did so solely in a statement issued without adherence to the rulemaking or declaratory ruling procedures of the APA. It simply issued a position statement, primarily intended to prompt a third party payor, Blue Cross and Blue Shield of Maryland, to pay reimbursement requests for these treatments.

The Physical Therapy Board's position statement meets the definition of "regulation" in the APA because it is "a statement ... that ... has general application [and] future effect ... adopted by a unit to ... detail or carry out a law that the unit administers ...." §10-101(e)(l) of the State Government Article ("SG" Article). See generally 75 Opinions of the Attorney General 37, 45-46 (1990) (citing prior opinions). However, the Physical Therapy Board's statement, although it "detail[s] ...a law" and is intended to have "future effect," cannot be given any legal weight. "When an agency, or unit, undertakes to act by rulemaking, it ordinarily must follow specified procedures that include notice, hearing, and publication procedures." CBS, Inc. v. Comptroller, 319 Md. 687, 692, 575 A.2d 324 (1990). If it does not, its statement is invalid. SG §10-125(d)(3). See 75 Opinions of the Attorney General 37 at 44.

Hence, given that what the Physical Therapy Board has done in the past is of no legal effect, we turn to an analysis of what that board may do in the future (assuming no change in the Physical Therapy Act).

III

Regulation of Physical Therapists

The Physical Therapy Board consists of six members appointed by the Governor, five licensed physical therapists and one consumer member. HO §13-202(a). Like other occupational licensing boards, the Physical Therapy Board administers examinations to applicants, issues licenses, and imposes discipline on licensees who engage in specified forms of misconduct. HO §§13-301(a), 13-306(b), 13-308, and 13-315. Significantly, the Physical Therapy Board may discipline a licensee who "treats or attempts to treat a health condition of an individual by means other than physical therapy," HO §13-315(4), and thus is expected to ascertain the boundaries of accepted physical therapy means. The Physical Therapy Board also has the power to "adopt rules and regulations to carry out the provisions of [the Physical Therapy Act]." HO §13-206(a)(l).

Accordingly, the Physical Therapy Board generally has statutory authority to adopt legislative rules - that is, regulations intended to have binding effect - on scope of practice matters. See generally 75 Opinions of the Attorney General 37 at 40 n.5 and 47-49; 62 Opinions of the Attorney General 36, 37 (1977).2 Moreover, the Physical Therapy Board may issue binding declaratory rulings upon petition. SG §§10- 301 and 10-304; COMAR 10.01.12.

2
Our conclusion in this regard is not inconsistent with this office's longstanding position that "[a]n agency's general authority to regulate a particular industry or activity is not, of itself, sufficient for purposes of applying the state action doctrine," which provides immunity under the antitrust laws. 65 Opinions of the Attorney General 13, 17 (1980). We are not here discussing an anti- competitive regulation, "the grant of authority [for which] must be a clear and affirmative [legislative] directive ..." Id. See also 69 Opinions of the Attorney General 9, 16 (1984). Whatever else might be said of it, a regulation authorizing physical therapists to perform actions also performed by chiropractors would be pro-competitive.

Your question goes to the validity of a particular exercise of these general powers - whether the Physical Therapy Board would exceed its authority by adopting a regulation or declaratory ruling stating that manipulation and mobilization are within the scope of practice of physical therapy. But the Attorney General's Office is in no position to make technical judgments or substitute its policy views for those of the regulatory agency. This opinion must be limited to a consideration of the legal constraints on the exercise of the Physical Therapy Board's discretion.3 In Parts IV and V below, we discuss the considerations that would govern the Physical Therapy Board's exercise of its rulemaking authority. In Part VI below, we explain why this issue is more amenable to resolution by rulemaking than by declaratory ruling.

3
This is not a situation in which one agency's regulatory authority is circumscribed by a statutory grant of authority to a second agency. The Chiropractic Board understandably has strong views that manipulation is exclusively the province of chiropractors, but it does not have the statutory authority to impose that view on the Physical Therapy Board. Cf. Ohio Power Co. v. FERC, 880 F.2d 1400, 1405 (D.C. Cir. 1989), reversed on other grounds sub nom. Arcadia v. Ohio Power Co., 59 U.S.L.W. 4015 (November 27, 1990). Indeed, a concerted undertaking by the Chiropractic Board to prevent physical therapists from offering competing services might raise significant antitrust concerns.

IV

APA Standard For Judicial Review of Regulations

The Maryland APA contemplates review of a regulation through a specific form of declaratory judgment action. SG §10-125(a)(l). A petitioner has standing "if it appears to the court that the regulation or its threatened application interferes with or impairs or threatens to interfere with or impair a legal right or privilege of the petitioner." SG §10- 125(b).

Under SG §10-125(d), a provision of a regulation is to be declared invalid if:

(1) the provision violates any provision of the United States or Maryland Constitution;

(2) the provision exceeds the statutory authority of the unit; or

(3) the unit failed to comply with statutory requirements for adoption of the provision.

A regulation of the Physical Therapy Board allowing physical therapists to perform manipulation would not violate any constitutional provision. Hence, the only substantive issue is whether such a regulation would "excee[d] the statutory authority" of the Physical Therapy Board by authorizing techniques that are beyond the statutory delineation of "[the] practice [of] physical therapy."4

4
As we explained in Part II above, the Physical Therapy Board's prior statement on this question "failed to comply with statutory requirements for adoption of the [statement]" and is thus invalid on procedural grounds under SG §10-125(d)(3).

Although the case did not involve the application of SG §10- 125(d)(2), the Court of Appeals has formulated an often-cited general standard for judicial review of regulations: "[R]ules and regulations adopted by an administrative agency, to be valid, must be reasonable and consistent with the letter and policy of the statute under which the agency acts." Comptroller v. M. E. Rockhill, Inc., 205 Md. 226, 233, 107 A.2d 43 (1954). The Court of Appeals recently repeated essentially the same standard: "Of course, agency rules and regulations must be reasonable and consistent with the letter and spirit of the law under which the agency works." Department of Transportation v. Armacost, 311 Md. 64, 74, 532 A.2d 1056 (1987).5

5
The Maryland APA consistently uses the term "regulation," so as to distinguish judicial "rules." See Revisor's Note to SG §10-101(e). However, the two terms are commonly used interchangeably in cases and will be so used in this opinion.

Moreover, the Court of Appeals has written, when a statutory term is "vague" and not "susceptible of only one interpretation ...," that term's "presence in an administrative statute ... suggests that the General Assembly intended to entrust the formulation of specific standards to the technical expertise of those charged with enforcing the statute." Baltimore Gas & Electric Co. v. Public Service Comm'n, 305 Md. 145, 159, 501 A.2d 1307 (1986). The Court also suggested that an agency's interpretation of the statute arrived at after a rulemaking proceeding is to be accorded special deference. 305 Md. at 162.6 In a case applying the predecessor of SG §10-125, the Court of Special Appeals put the point this way: "The Court's review of such action is limited to a determination of whether the agency was acting within its legal boundaries. The Court cannot substitute its judgment for that of the agency." D'Anna v. Secretary of Personnel, 47 Md. App. 180, 186, 422 A.2d 50 (1980).

6
The Court stated the proposition in the converse: "[T]he nature of the process through which the agency arrived at its interpretation is a relevant consideration in assessing the weight to be accorded the agency's interpretation. If the interpretation is the product of neither contested adversarial proceedings nor formal rule promulgation, it is entitled to little weight."

However, the Court of Appeals has pointed to the quality of the decisionmaking process as one "important consideration" in assigning weight to an agency's statutory construction:

Another important consideration is the extent to which the agency engaged in the process of reasoned elaboration in formulating its interpretation of the statute. When an agency clearly demonstrates that it has focused its attention on the statutory provisions in question, thoroughly addressed the relevant issues, and reached its interpretation through a sound reasoning process, the agency's interpretation will be accorded the persuasiveness due a well- considered opinion of an expert body.

Baltimore Gas & Elec. Co. v. Public Service Comm'n, 305 Md. at 162.7

7
A leading commentator on state administrative law has observed that, "[t]o a considerable extent ... the state courts share the attitude of the federal courts that great respect should be accorded administrative interpretations of ambiguous statutes. When such interpretations are incorporated in rules, they seemingly carry more weight than do interpretations arrived at in the course of the adjudication of a contested case." 2 F. Cooper, State Administrative Law 788 (1965). See generally Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). See also Environmental Defense Fund v. Colorado Dep't of Health, 731 P.2d 773, 777 (Colo. App. 1986) and Department of Mental Health v. Texas State Employees Union, 708 S.W.2d 498, 511 (Tex. App. 1986) (applying Chevron standard to review of regulations under state law). Cf. Public Service Comm'n v. Maryland People's Counsel, 309 Md. 1, 12-13, 522 A.2d 369 (1987) (applying Supreme Court cases in fashioning standards for ripeness in pre- enforcement review of administrative regulations).

V

Application of Review Standard to "Manipulation" Regulation

A. Assessment of Physical Therapy Act

If the Physical Therapy Board adopted a regulation stating that manipulation and similar techniques were within the scope of practice of physical therapy, a court reviewing the regulation would first consider whether the General Assembly had resolved this particular issue. Under the recent approach of the Court of Appeals, the reviewing court would examine both the statutory language and legislative history to determine whether the General Assembly had itself determined the permissibility of this form of practice by physical therapists. See generally Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990). If not, the court would consider whether the Physical Therapy Board's regulation was reasonable, in light of the record before the agency and the care of the agency's consideration. In this opinion, we can pursue the first of these two steps and suggest some factors to be considered in the second step.

1. Statutory language

The terms "therapeutic exercise" and "therapeutic massage" are not defined in the Physical Therapy Act. "The common meaning of the word 'therapeutics' is 'healing or curative medicine,' and the term 'therapeutic' is defined as '[h]aving healing or curative powers'." Richards Medical Co. v. United States, 720 F. Supp. 998, 1000 (Ct. Int'l Trade 1989) (citations omitted). "Massage" is a "'system of remedial treatment consisting of kneading or rubbing the body.'" Louisiana State Board of Medical Examiners v. Martindale, 83 So. 2d 544, 545 (La. App. 1955) (citation omitted).

We can find no judicial construction of the word "exercise," used in the pertinent sense. One dictionary definition is "bodily ... exertion, especially for the sake of training or improvement of health." Random House Dictionary of the English Language 677 (2d ed. 1987).

2. Legislative history

Maryland's first Physical Therapy Act contained the following definition of "physical therapy":

[T]he treatment of human injuries, diseases, or disabilities by means of the healing properties of exercise, massage, ultra-violet rays, mechanical devices, heat, cold, air, light, water, and electricity, but not by means of Roentgen rays, radium, surgery or drugs.

Chapter 906, Laws of Maryland 1947 (former Article 43, §531). In Chapter 892 of the Laws of Maryland 1961, the General Assembly reworded this definition but retained the unelaborated terms "exercise" and "massage."8

8
Former Article 43, §604 provided in part as follows:
As used in this subtitle, the term "Physical Therapy" means the treatment of any disability, injury, disease, or other condition of health of human beings; or the prevention of such disability, injury, disease, or other condition of health; and the rehabilitation as related thereto by use of the physical, chemical, and other properties of air, cold, heat, electricity, exercise, massage, radiant energy, including ultra-violet, visible, and infra-red rays, ultra-sound, water, and apparatus and equipment used in the application of the aforegoing, or related thereto; the performance of tests of neuromuscular function as an aid to such treatment.

The General Assembly introduced the term "therapeutic" when it once again rewrote the definition of "physical therapy," in Chapter 281 of the Laws of Maryland 1967. In pertinent part, the "practice of physical therapy" was defined as "[a]dministering treatment through the use of therapeutic exercise, massage, mechanical devices, and therapeutic agents ...." Former Article 43, §604. In Chapter 538 of the Laws of Maryland 1979, the General Assembly inserted the word "therapeutic" in front of "massage." The definition now in HO §13- 101(i)(2)(iii) is Code Revision's derivation, without substantive change, from former Article 43, §604.

3. Conclusion

Nothing in the language or legislative history suggests that the General Assembly was doing anything more than referring generally to the types of exercise and massage that physical therapists use to aid healing. The General Assembly did not address, and therefore did not clearly decide, whether some particular type of movement was or was not encompassed by those terms.

Nor can we say with assurance that the General Assembly meant to prohibit physical therapists from performing actions that are also integral to the practice of chiropractic. As we discuss in Part I above, there is nothing intrinsically amiss about legislative authorization for two separate health occupations to perform some of the same acts.

To be sure, it is highly unlikely that the General Assembly, in enacting the Physical Therapy Act, would have intended to make physical therapy and chiropractic coextensive. But it certainly has not done so; chiropractic encompasses more than the maneuvers in question here.9

9
"[F]or the last 30 years, chiropractic colleges have made a concerted effort to broaden student training to include several ... forms of therapeutic treatment [other than spinal manual therapy]. Consequently, an increasing number of doctors of chiropractic are prepared to treat patients with sophisticated diagnostic techniques [and] physiotherapeutics .... In short, fewer and fewer of the chiropractors now active rely solely on spinal manual therapy or practice ..." Department of Fiscal Services, Sunset Review Evaluation, State Board of Chiropractic Examiners at 1 (October 1990).

The relationship between chiropractic and physical therapy under current law thus can be likened to overlapping circles, and licensees of both professions may perform activities within the area of overlap.10 This situation, while arguably providing competition beneficial to consumers, engenders jurisdictional conflicts. We join the Department of Fiscal Services in recommending a legislative determination of where the public interest lies: "To avoid jurisdictional conflicts and preserve public credibility, the General Assembly should consider clarifying the board's scope of practice by providing precise definitions of physical therapy modalities and techniques." Sunset Review Evaluation, The Maryland State Board of Physical Therapy Examiners at 21-22 (October 1990).

10
A chiropractor desiring full authority to practice physical therapy as well must obtain a special form of license after meeting certain additional licensing requirements. See HO §§3-301(a)(2) and (c), 3-302(e), and 3-304(e)(2).

B. Reasonableness of Regulation Allowing Manipulation

If the General Assembly does not clarify the scope of practice of physical therapy, the Physical Therapy Board would have the power to do so by regulation. Resolving the particular issue, whether a given procedure involving movement of a body part beyond its normal range of motion is reasonably encompassed within the terms "therapeutic massage" or "therapeutic exercise," calls for technical expertise in assessing "legislative facts."11

11
"Legislative facts ... are the general facts which help the tribunal decide questions of law and policy and discretion." 2 K.C. Davis, Administrative Law Treatise §12:3, at 413 (1979). They are to be contrasted with adjudicative facts, which "usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case." Id. See also 1 Weinstein and Berger, Weinstein's Evidence ¶200[03], at 200-14 (1989).

We suppose that, for example, the Physical Therapy Board would need to consider whether the procedure is akin to those for which physical therapists are trained; whether the procedure, if misapplied, entails an unusual risk of injury; and whether special diagnostic safeguards beyond those used by physical therapists are needed. We do not pretend to know whether these are the only questions, or even exactly the right ones to ask. Our point is that experts in physical therapy, not lawyers, are the people to answer them, through a procedure that allows all pertinent material to be considered.12 The purpose of the rulemaking would be to enable the Physical Therapy Board to learn and evaluate the legislative facts necessary to a sound decision.

12
In most of this office's prior "scope of practice" opinions, the first step in the analysis - whether the General Assembly had itself decided the question - was determinative. See, e.g., 59 Opinions of the Attorney General 3 (1974) (acupuncture is practice of medicine); 48 Opinions of the Attorney General 273 (1963) (administration of anesthetic is practice of medicine); 48 Opinions of the Attorney General 283 (1963) (fitting of corrective shoes is not practice of medicine). This office's extensive 1986 opinion on whether blood and urine testing for diagnostic purposes is within the scope of practice of chiropractic contained some discussion of matters that we now believe should have been left to the expertise of the agency; however, applying the analytical framework that we now adopt, the result would be the same. See 71 Opinions of the Attorney General 149 (1986).

Most likely the General Assembly's underlying objective when it framed the definition of "practice physical therapy" was to incorporate into the scope of practice of physical therapy those concepts and techniques that are generally recognized as suitable for these practitioners. The Physical Therapy Board has presumed expertise and the responsibility to make this determination, in accordance with the APA. Should it adopt a regulation reflecting a careful and thorough assessment of pertinent evidence, courts would likely defer to its expertise.

VI

Declaratory Ruling

Under SG §10-304(a), "an interested person may submit to a unit a petition for a declaratory ruling with respect to the manner in which the unit would apply ... a statute that the unit enforces to a person ... on the facts set forth in the petition." A unit is authorized, but not required, to issue a declaratory ruling in response to a petition. SG §10- 305(a). If the unit does so, the ruling "binds the unit and the petitioner on the facts set forth in the petition." SG §10-305(b). A declaratory ruling is subject to the judicial review provisions of the contested case subtitle of the APA. SG §10-305(c). See SG §10-215.

The history of this provision suggests that it was not intended as an alternative to rulemaking when the issue before an agency applies generally to all those subject to its regulatory jurisdiction. Rather, the declaratory ruling procedure was meant to enable persons concerned with a more narrowly focused issue to obtain binding advice about their particular situation.

The declaratory ruling provision was part of Maryland's first APA, enacted in 1957. See Chapter 94, Laws of Maryland 1957. Codified at former Article 41, §250, the provision read as follows:

On petition of any interested person or corporation, any agency may issue a declaratory ruling with respect to the applicability to any person, corporation, property or state of facts of any rule or statute enforceable by it. A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petition on the state of facts alleged, unless it is altered or set aside by a court. Such a ruling is subject to review in the circuit court ... in the manner hereinafter provided for the review of decisions of contested cases. Each agency shall prescribe by rule the form for such petitions and the procedure for their submission, and consideration, and disposition.13

13
This provision was modeled after §7 of the original Model State APA, adopted in 1946. The Model Act's provision was as follows:
On petition of any interested person, any agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court.
The provision in the Model State APA, in turn, was derived from a Wisconsin statute, the first of its kind in the country. The Wisconsin provision, Chapter 375 of the Acts of 1943, provided as follows:
Any agency may, on petition by any interested person, ... issue a declaratory ruling with respect to the applicability to any persons, property, or state of facts of any rule or statute enforceable by it. ... A declaratory ruling shall bind the agency and all parties to the proceedings on the state of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions in contested cases.
14
Section 5(e) of the federal APA, 5 U.S.C. §554(e), provides that an administrative agency, "in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty."

The purpose of the provision is to provide an efficient, low-cost procedure for individuals to resolve uncertainty about "whether a particular plan of action does or does not come within the purview of a regulatory statute ..." R. Hoyt, Wisconsin Administrative Procedure Act, 1944 Wis. L. Rev. 214, 219. Like its federal counterpart, the declaratory ruling provision "was intended to allow an agency to assess the impact of its statutes and regulations in light of the particularized circumstances of an affected citizen." B. Powell, Sinners, Supplicants, and Samaritans: Agency Advice Giving in Relation to Section 554(e) of the Administrative Procedure Act, 63 N.C. L. Rev. 339, 347 (1985).14

Ordinarily, a declaratory ruling is premised upon the petitioner's assertion of the adjudicative facts underlying the petition. SG §10- 305(b) states that "a declaratory ruling binds the unit and the petitioner on the facts set forth in the petition." As one commentator observed, "ordinarily declaratory orders should be issued only where critical facts are clear and cannot be altered by subsequent events." 1 C. Koch, Administrative Law and Practice §2.40, at 106 (1985).

To be sure, an agency entertaining a petition for declaratory ruling may explore factual matters beyond the recitation in the petition. The declaratory ruling procedural regulations of the Department of Health and Mental Hygiene provide, for example, that an agency "[m]ay, in its discretion, consult individuals or materials outside the corners of the petition" or "[m]ay, in its discretion, ... permit the introduction of evidence." COMAR 10.01.12.03A(2)(b) and (c). As a practical matter, however, "declaratory ruling provisions are ... of little help in those many situations where the actual facts involved are too uncertain or unclear to provide the agency with an adequate basis upon which to give effective advice, or are too complicated to handle outside of an actual adjudication." A. Bonfield, The Iowa Administrative Procedure Act, 60 Iowa L. Rev. 731, 807 (1975).

The declaratory ruling procedure of the APA is not likely to be a satisfactory alternative to rulemaking if the issue before the agency affects all persons subject to the agency's jurisdiction equally; if the issue affects persons not directly subject to the agency's jurisdiction; if the adjudicative facts presented by the petitioner are probably insufficient to allow informed resolution of the issue; and if the legislative facts that are essential to resolving the issue are disputed. Professor Bonfield, a leading scholar of state administrative law, suggests that an agency should decline to issue a declaratory ruling "where the ruling, though technically binding only on the agency and petitioner, would necessarily determine the legal rights of other parties who have not filed such a petition, and who are opposed to the resolution of the issue by declaratory ruling procedures ... or who are unrepresented in that declaratory ruling procedure." A. Bonfield, The Iowa Administrative Procedure Act, 60 Iowa L. Rev. at 819 (emphasis in original). See Tennessee Gas Pipeline Co. v. Federal Power Commission, 606 F.2d 1373, 1383 (D.C. Cir. 1979); Office of Consumer Advocate v. Iowa State Commerce Commission, 395 N.W.2d 1, 6 (Iowa 1986); Teleconnect Co. v. Iowa State Commerce Commission, 366 N.W.2d 515, 518 (Iowa 1985).

These considerations lead us to recommend that the Physical Therapy Board not seek to use the declaratory ruling procedure as a way of determining whether manipulation is within the scope of practice of physical therapy. The declaratory ruling procedure is too narrowly focused for an across-the-board resolution of the issue. Indeed, the procedural crux of this matter is that the Physical Therapy Board cannot decide that manipulation is within the scope of practice of physical therapy unless it fairly engages the evidence and views of chiropractors. The declaratory ruling process is ill-suited to that end.15

15
Under the pertinent regulations, the Physical Therapy Board would have the discretion to broaden a declaratory ruling proceeding so as to make it resemble a rulemaking. COMAR 10.01.12.03A(2)(b). See New York State Comm'n on Cable Television v. FCC, 749 F.2d 804, 815 (D.C. Cir. 1984) (declaratory ruling proceeding involved notice and comment "from over 25 interested parties," giving the FCC "both sufficient quantity and diversity of information upon which to decide the question presented"). But we doubt that the General Assembly intended the declaratory ruling provision of the APA as a device by which agencies might conduct the equivalent of a rulemaking proceeding without compliance with all of the rulemaking requirements.

Moreover, a ruling issued in response to a petition for declaratory ruling would be binding only upon the Physical Therapy Board and the petitioner. SG §10-305(b). Such a ruling would be agency precedent, but it would not bind anyone who was not before the agency in the proceeding upon the petition. See State Dep't of Health and Rehab. Services v. Barr, 359 So. 2d 503, 505 (Fla. App. 1978); Fasi v. State Public Employment Relations Board, 591 P.2d 113, 118 (Haw. 1979).

VII

Conclusion

In summary, it is our opinion that, under current law, the Board of Physical Therapy Examiners has the authority to determine whether spinal manipulation, mobilization, and similar techniques are within the scope of practice of physical therapy. If a regulation concluding that they are is adopted after adherence to proper procedures, reflects a considered evaluation of the pertinent evidence, and is reasonable, it should be sustained if challenged in court. However, it would be far preferable if the General Assembly would itself make the policy decision whether the public health and welfare are best served by allowing physical therapists to perform these techniques.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice