Can the Tennessee Physical Therapy Board stop a chiropractor from advertising that they offer 'physical therapy' if no licensed PT is involved?

Subject

Opinion No. 12-27, Authority of Physical Therapy Board, February 29, 2012

Plain-English summary

In February 2012, a Tennessee legislator asked the Attorney General whether the state Physical Therapy Board had any teeth when chiropractors used the words "physical therapy" in their advertisements. The concern was straightforward: under Tennessee law, only a licensed physical therapist (or someone working under one's direction) can claim to provide "physical therapy." Chiropractors are licensed under a separate scheme and have their own scope of practice. If a chiropractor advertised "physical therapy" services without involving a licensed PT, what could the state actually do about it?

The opinion gave the Board two tools. First, under Tenn. Code Ann. § 63-13-315(c), the Board could go to the Attorney General and ask any court of competent jurisdiction for injunctive relief to stop the offending ads. Second, under Tenn. Code Ann. § 63-13-313(8) and § 63-1-134, the Board could impose civil penalties of up to $1,000 per separate violation, with each day of continuing violation counting as a separate offense. The opinion added a third possibility on the side: the same conduct could trigger the Tennessee Consumer Protection Act, and the Chiropractic Examiners Board itself could discipline the chiropractor for misleading advertising under its own rules.

Currency note

This opinion was issued in 2012. 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, deadline, or remedy mentioned here.

Historical background and statutory framework

The "physical therapy" title restriction

The Occupational and Physical Therapy Practice Act, codified at Tenn. Code Ann. §§ 63-13-101 to -318, was the centerpiece of the AG's analysis. Section 63-13-301(b) said no person could practice or claim to practice physical therapy unless licensed. Section 63-13-310 went further and prohibited the use of terms like "physical therapy," "physical therapist," "physiotherapy," and abbreviations like "PT," "LPT," and "RPT" in business names, advertising, and billing, unless the services were "provided by or under the direction of a physical therapist licensed in accordance with this part."

A separate subsection, § 63-13-310(c), made clear that the chapter did not prevent other licensed practitioners (like chiropractors) from engaging in their own profession, "provided, that the person does not claim to be a physical therapist, a physical therapist assistant or a provider of physical therapy." So a chiropractor could practice chiropractic, but could not market chiropractic services using the protected term "physical therapy."

The Board's enforcement powers

Two enforcement avenues were available. The first was injunctive relief: § 63-13-315(c) let the Physical Therapy Board, acting through the Attorney General's office, apply for an injunction in any court of competent jurisdiction. The statute also expressly said that injunctive proceedings were "in addition to, and not in lieu of, all penalties and other remedies."

The second was civil penalties. Section 63-13-313(8) authorized the Board to "[i]mpose civil penalties for violation of this chapter pursuant to § 63-1-134." Section 63-1-134(a) gave health-related boards the power to assess civil penalties up to $1,000 for each separate violation, with each day of continued violation constituting a separate violation. The Physical Therapy Board's own rules, Tenn. Comp. R. & Regs. 1150-01-.15(5), set the schedule of penalties and the factors to consider.

There was also a criminal hook: § 63-13-315(a) made it a Class B misdemeanor to use restricted titles or to engage in unlicensed PT practice.

Consumer Protection Act overlap

The AG noted that the same advertising could violate the Tennessee Consumer Protection Act of 1977, Tenn. Code Ann. § 47-18-104(a) and (b)(27), which prohibits unfair or deceptive acts in trade or commerce. The opinion cited an earlier 1995 AG opinion (No. 95-033) involving massage therapists who advertised that they could "treat conditions" without proper licensure. That same logic, the opinion said, applied to a chiropractor advertising "physical therapy" services not performed by or under a licensed PT. The Tennessee Court of Appeals had confirmed in Proctor v. Chattanooga Orthopaedic Group, P.C., 270 S.W.3d 56, 61 (Tenn. Ct. App. 2008), that "learned professionals are not exempt" from consumer protection claims based on their business practices.

Discipline by the Chiropractic Examiners Board

A separate angle: the Chiropractic Examiners Board itself had promulgated advertising rules under Tenn. Code Ann. § 63-4-122, codified at Tenn. Comp. R. & Regs. 0260-02-.20. Those rules made it unethical conduct to promote services beyond a licensee's ability, to misrepresent material facts, or to misrepresent credentials and training. So a chiropractor who advertised "physical therapy" in violation of §§ 63-13-301(b) and 63-13-310 could also face discipline from their own licensing board under § 63-4-114.

Common questions

Was it actually illegal in Tennessee for a chiropractor to use the term "physical therapy" in ads?

According to the opinion, yes, if the chiropractor was holding out their own services as "physical therapy" without those services being performed by or supervised by a licensed physical therapist. The statutory prohibition in § 63-13-310 reached the use of the words in business names, signage, advertising, internet listings, and billing. A chiropractor could still describe what chiropractors actually do under their own scope of practice; the prohibition was on appropriating the protected term.

Could the Physical Therapy Board fine a chiropractor directly?

The opinion said the Board had the authority to assess civil penalties up to $1,000 per separate violation under Tenn. Code Ann. § 63-1-134, with each day of continued violation counting as a separate offense. Any enforcement action would have had to follow the Tennessee Uniform Administrative Procedures Act, Tenn. Code Ann. §§ 4-5-101 to -404.

Did the Board have to sue, or could it just send a cease-and-desist?

The opinion focused on the formal enforcement tools the Board had. The injunction route under § 63-13-315(c) ran through the Attorney General's office and a court. The civil penalty route ran through the Board's own administrative process. Boards in practice often issued informal warnings before formal action, but the opinion did not discuss informal letters or settlement.

What about chiropractors who did employ or contract with a licensed PT?

The opinion said the prohibition applied where services were "not performed by or under the direction of a licensed physical therapist." So a chiropractic practice that genuinely employed or supervised a licensed PT could, consistent with the Act's text, advertise that licensed PT's physical therapy services.

Could the Chiropractic Examiners Board itself act against one of its own?

Yes. Under Tenn. Code Ann. § 63-4-114 and the chiropractic advertising rules at Tenn. Comp. R. & Regs. 0260-02-.20, the Chiropractic Examiners Board could discipline a chiropractor for fraudulent or misleading advertising, which would include claiming services the chiropractor was not licensed to provide. That meant a chiropractor advertising "physical therapy" without proper PT involvement could face exposure on at least three fronts: the PT Board, the Chiropractic Board, and the Consumer Protection Act.

Citations

• Tenn. Code Ann. §§ 63-13-101 to -318 (Occupational and Physical Therapy Practice Act)
• Tenn. Code Ann. § 63-13-301(b) (no unlicensed practice or claim of practice)
• Tenn. Code Ann. § 63-13-310 (restricted titles and terms)
• Tenn. Code Ann. § 63-13-313(8) (civil penalty authority)
• Tenn. Code Ann. § 63-13-315(a) (Class B misdemeanor)
• Tenn. Code Ann. § 63-13-315(c) (injunctive relief)
• Tenn. Code Ann. § 63-1-134 (civil penalty schedule, up to $1,000 per violation)
• Tenn. Code Ann. § 47-18-104(a), (b)(27) (Consumer Protection Act)
• Tenn. Code Ann. § 47-18-108(b)(3) (CPA civil penalty)
• Tenn. Code Ann. § 63-4-114 (chiropractor discipline)
• Tenn. Code Ann. § 63-4-122 (chiropractic advertising rules)
• Tenn. Comp. R. & Regs. 1150-01-.15(5) (PT Board penalty schedule)
• Tenn. Comp. R. & Regs. 0260-02-.20 (chiropractic advertising standards)
• Proctor v. Chattanooga Orthopaedic Group, P.C., 270 S.W.3d 56 (Tenn. Ct. App. 2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-027.pdf

Original opinion text

Authority of Physical Therapy Board

QUESTIONS

1. Does the Physical Therapy Board have authority under Tenn. Code Ann. § 63-13-315(c) to apply for injunctive relief in any court of competent jurisdiction to enjoin a chiropractor from advertising that the chiropractor offers "physical therapy," in violation of Tenn. Code Ann. §§ 63-13-301(b) and 63-13-310, where the services offered by the chiropractor are not performed by or under the direction of a licensed physical therapist?

2. Does the Physical Therapy Board have authority under Tenn. Code Ann. § 63-13-313(8) to impose civil penalties against a chiropractor based on his or her use of the term "physical therapy" in the chiropractor's advertisements, in violation of Tenn. Code Ann. §§ 63-13-301(b) and 63-13-310?

OPINIONS

1. Tenn. Code Ann. § 63-13-315(c) provides that the Physical Therapy Board may, through the Office of the Attorney General and Reporter, apply for injunctive relief in any court of competent jurisdiction to enjoin any person from committing an act in violation of the "Occupational and Physical Therapy Practice Act," codified at Tenn. Code Ann. §§ 63-13-101 to -318. Tenn. Code Ann. § 63-13-301(b) provides that "[n]o person shall practice or in any manner claim to be engaging in the practice of physical therapy or designate as being a physical therapist unless duly licensed as a physical therapist" in accordance with the Act, while § 63-13-310 prohibits the use of the term "physical therapy," "physical therapist" and related terms unless such services are provided by or under the direction of a physical therapist licensed in accordance with the Act.

2. Upon proof of violation of any provision of the Act, the Physical Therapy Board has authority under Tenn. Code Ann. § 63-13-313(8) to impose civil penalties pursuant to Tenn. Code Ann. § 63-1-134. Tenn. Code Ann. § 63-1-134 permits the Board to impose civil penalties against any person required to be licensed, permitted or authorized by the Board in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to the Board.

ANALYSIS

1. Tenn. Code Ann. § 63-13-301(b) provides that "[n]o person shall practice or in any manner claim to be engaging in the practice of physical therapy or designate as being a physical therapist unless duly licensed as a physical therapist" in accordance with the Occupational and Physical Therapy Practice Act, codified at Tenn. Code Ann. §§ 63-13-101 to -318. Further, Tenn. Code Ann. § 63-13-310, which concerns unlawful use of titles or designations indicating licensure, provides in pertinent part as follows:

(b) It is unlawful for any person or for any business entity, its employees, agents or representatives to use in connection with such person's name or the name or activity of the business the words "physical therapy," "physical therapist," "physiotherapy," "physiotherapist," "registered physical therapist," "licensed physical therapist," or the letters "PT," "LPT," or "RPT" or any other words, abbreviations or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied, including the billing of services labeled as physical therapy, unless such services are provided by or under the direction of a physical therapist licensed in accordance with this part.

(c) Nothing in this chapter shall be construed as restricting a person licensed or certified under any other law of this state from engaging in the profession or practice for which the person is licensed or certified; provided, that the person does not claim to be a physical therapist, a physical therapist assistant or a provider of physical therapy.

Tenn. Code Ann. § 63-13-310(b) & (c) (emphasis added).

Tenn. Code Ann. § 63-13-315(c) provides that the Physical Therapy Board may, through the Office of the Attorney General and Reporter, apply for injunctive relief in any court of competent jurisdiction to enjoin any person from committing an act in violation of the Act. That subsection further states "injunctive proceedings are in addition to, and not in lieu of, all penalties and other remedies prescribed in this chapter."

2. Tenn. Code Ann. § 63-13-313(8) provides in pertinent part that the Board may, upon proof of violation of any provision of the Act, "[i]mpose civil penalties for violation of this chapter pursuant to § 63-1-134." Specifically, the Physical Therapy Board has authority under Tenn. Code Ann. § 63-1-134 to impose civil penalties against any person required to be licensed, permitted or authorized by the Board in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to the Board. This statute provides:

With respect to any person required to be licensed, permitted or authorized by any board, commission or agency attached to the division of health related boards, each respective board, commission or agency attached to the division of health related boards, each respective board, commission or agency may assess a civil penalty against such person in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to such board, commission or agency. Each day of continued violation constitutes a separate violation.

Tenn. Code Ann. § 63-1-134(a). Tenn. Code Ann. § 63-1-134(b) allows each board, commission or agency to establish by rule a schedule designating the minimum and maximum civil penalties that may be assessed under that section, and also includes several statutory factors that may be considered in establishing civil penalties. These factors, along with a schedule of civil penalties, are set forth in the Rules Governing the Practice of Physical Therapy. Tenn. Comp. R. & Regs. 1150-01-.15(5). Under this authority, the Physical Therapy Board possesses the requisite authority to assess a civil penalty against a chiropractor who inappropriately uses the term "physical therapy" in the chiropractor's advertisements. Any action by the Board to impose such a penalty must be taken in conformity with the Tennessee Uniform Administrative Procedures Act, codified at Tenn. Code Ann. §§ 4-5-101 to -404.

A chiropractor's inappropriate use of the term "physical therapy" in advertisements may also violate certain other Tennessee laws. Specifically, Tenn. Code Ann. § 63-13-315(a) states that any person who engages in an activity requiring a license issued under the Act, and who fails to obtain the required license, who violates any other provision of the Act, or who uses any word, title or representation implying that the person is licensed to engage in the practice of physical therapy, commits a Class B misdemeanor. That subsection clarifies that "[a] person claims to be a physical therapist when using a title, letters or any description of services that incorporates one (1) or more of the terms, designations or abbreviations specifically restricted under §§ 63-13-103 and 63-13-310." Tenn. Code Ann. § 63-13-315(a).

In this respect, as we discussed in a prior opinion of this Office concerning advertising and treatment by massage therapists using therapeutic massage, Op. Tenn. Att'y. Gen. No. 95-033 (April 6, 1995), the Consumer Protection Act of 1977 makes it unlawful for a person to engage in unfair or deceptive acts or practices affecting the conduct of any trade or commerce. Tenn. Code Ann. § 47-18-104(a) and (b)(27). (Similar to the penalty for violation of Tenn. Code Ann. § 63-13-315(a), such unfair or deceptive acts or practices also are Class B misdemeanors and can be subject to a $1,000.00 civil penalty for each violation of the Tennessee Consumer Protection Act pursuant to Tenn. Code Ann. §§ 47-18-104(a) and 47-18-108(b)(3)). In our earlier opinion, we wrote that advertisement by a massage therapist that he or she can "treat conditions" is deceptive because a massage therapist is not statutorily qualified to do so, and further that it was unlawful for a massage therapist to advertise the "treating" of a "condition" if that individual had not met the licensure requirements for physical therapy, or was not otherwise appropriately licensed or exempted under the law that then was in effect. Likewise, if a chiropractor were to advertise that he or she offers "physical therapy" where such services are not performed by or under the direction of a licensed physical therapist, then in our opinion such chiropractor would violate both Tenn. Code Ann. §§ 63-13-301(b) and 63-13-310 and would likely also violate the Consumer Protection Act of 1977. Learned professionals are not exempt from claims related to their business practices brought under the Tennessee Consumer Protection Act of 1977. Proctor v. Chattanooga Orthopaedic Group, P.C., 270 S.W.3d 56, 61 (Tenn. Ct. App. 2008).

Finally, the Chiropractic Examiners Board has promulgated rules pursuant to Tenn. Code Ann. § 63-4-122 to regulate the nature, manner, content and extent of advertising by practitioners who are under the jurisdiction of that Board. Tenn. Comp. R. & Regs. 0260-02-.20. Acts or omissions by a licensed chiropractor in the context of advertisements that violate this rule shall constitute unethical and unprofessional conduct and subject the licensee to disciplinary action by the Chiropractic Examiners Board under Tenn. Code Ann. § 63-4-114. The proscribed conduct includes "[p]romotion of a professional service which the licensee knows or should know is beyond the licensee's ability to perform," "[a]ny misrepresentation of a material fact," and "[m]isrepresentation of a licensee's credentials, training, experience or ability." Tenn. Comp. R. & Regs. 0260-02-.20(4)(c), (j) and (p). Therefore, if the Chiropractic Examiners Board, based on proof presented to that Board during a disciplinary contested case hearing, were to find that a chiropractor had advertised "physical therapy" services in violation of Tenn. Code Ann. §§ 63-13-301(b) and 63-13-310, the Board could reasonably conclude that such chiropractor had violated the above advertising rule and impose appropriate disciplinary action.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

SARA E. SEDGWICK
Senior Counsel

Requested by:
The Honorable Bo Watson
Speaker Pro Tempore
Senate District 11
13 Legislative Plaza
Nashville, Tennessee 37243-0211