Rebuffed in their attempts to get the New York and Virginia state legislatures to enact legislation making it illegal for physical therapists in those states to practice spinal manipulation, the chiropractic lobby thereafter turned its focus away from state legislatures and toward state attorney generals in an attempt to get those state officials to adopt the position that the practice of spinal manipulation by physical therapists was already illegal under existing state laws. This process typically involves a state chiropractic board petitioning a state attorney general to issue an official opinion (i.e., an AG opinion) regarding the legality of physical therapists in that state to perform spinal manipulation. If the resulting AG opinion is favorable to chiropractic interests and takes the position that physical therapists cannot legally perform spinal manipulation in that state, physical therapists that nevertheless continue to perform such might be subject to future professional discipline or even prosecution. AG opinions are limited in this respect, however, as a trial court hosting any such prosecutions is not bound by the AG opinion. That is, the trial court has the authority to decide for itself what the lawful practice of physical therapy in that state includes and it may summarily disregard the AG opinion if it reaches a contrary conclusion. Similarly, a state legislature owes an AG opinion no deference and can amend the law to override such an opinion at any time.
Nevertheless, trial courts traditionally show “great weight” and give serious consideration to the opinion of the state’s highest-ranking lawyer and, when the interpretation of a statute, rule or regulation (e.g., a state’s physical therapy practice act) is involved, courts generally are respectful of AG opinions. For this reason, an AG opinion favorable to chiropractic interests can have a chilling effect and serve to preventing discourage physical therapists from engaging in spinal manipulation due to the fear of lengthy and costly litigation proceedings that can result even if a trial court ultimately declines to adopt the rationale of the AG opinion. A state AG opinion adverse to physical therapists also raises questions not only for individual physical therapists, but also for the state-sanctioned board of physical therapy in that state. Like the state attorney general, state boards of physical therapy are typically part of a state’s executive branch and it is not clear to what extent a state board is required to treat an AG opinion as law. While, based on the litigious history of state chiropractic boards, the failure to do so would likely result in litigation, are other liabilities or penalties a possibility as well? The answer to these questions is dependent on individual state law. For this same reason—differences in state law—AG opinions typically have little weight outside the state in which they are issued.
The first AG opinion on the question of whether physical therapists can legally perform spinal manipulation appears to have been issued in California in 1976. When asked the question whether there are “any circumstances under which a physical therapist can manipulate or adjust the hard tissue (i.e., the spine),” the California attorney general distinguished between “massaging the muscles surrounding the spine and actually manipulating and adjusting the various bones that make up the spine” before stating that “the adjustment and manipulation of ‘hard tissues,’ that is bones and bone structures, is peculiarly a chiropractic technique beyond the scope of authorized activity for a physical therapist.”7 For that reason, the California attorney general concluded “a physical therapist may not directly manipulate or adjust the spine or any other bony structure.”7
After receiving this favorable AG opinion, the California Board of Chiropractic Examiners followed up by formally asking the California Department of Consumer Affairs (“DCA”), which is responsible for professional licensing in California, whether “physical therapists [can] engage in spinal manipulation which is the practice of chiropractic.” The DCA responded in 1980 by stating:
“Mobilization of the spine and other joints through the use of rotation and other physical pressure constitutes in our opinion the use of physical properties including passive exercise for the treatment of physical conditions and is specifically authorized in the physical therapist’s scope of practice. Therefore, we do not believe that a physical therapist is practicing beyond his or her legal scope of practice by utilizing such technique …. In our opinion the performance of joint mobilization by a physical therapist is not the adjustment and manipulation of hard tissues as a chiropractic technique. We primarily view this controversy not as a matter of legal interpretation, but an interprofessional squabble, often referred to as a ‘turf battle.'”8
This decision by the DCA effectively muted the impact of the 1976 AG opinion, as it specifically condoned physical therapists’ use of spinal manipulation techniques.
The next three AG opinions to be released employed a rationale similar to that of the California DCA –– that physical therapists are authorized to practice spinal manipulation by their own practice act regardless of whether chiropractors might have similar authority granted to them by their practice act. In 1991, the Maryland Attorney General issued a formal opinion stating that, “in the absence of legislative clarification, … 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”. The Maryland AG opinion further explicitly recognized that some procedures and techniques may be shared amongst the various practitioners of the healing arts, stating that “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.”9
In a 1996 Kansas AG opinion discussing physicians’ rights “to perform manual manipulation,” the Kansas Attorney General opined that “chiropractic manual manipulation as taught in accredited schools of chiropractic is not within the scope of practice of medicine and surgery as defined by K.S.A. 65-2869.” However, the Attorney General qualified this opinion by noting that, “in a medical context, the term manipulation is a general term often used to describe procedures performed by medical doctors, osteopaths, physical therapists and chiropractors.”10 Thus, the AG opinion continued, “in our judgment the term must be interpreted in context.”10 Effectively then, the Kansas AG opinion stands for the proposition that only chiropractors can perform chiropractic manual manipulation, but other branches of the healing arts may utilize any methods of practice –– including manual manipulation –– that are authorized for their profession. Notably, the Kansas Attorney General did not state that any particular manipulation techniques were uniquely reserved for chiropractors or any other profession.
The next state to confront this issue was Wisconsin in 2001, after the State Chiropractic Examining Board requested an AG opinion on the question of whether a physical therapist or massage therapist may perform “chiropractic adjustment,” “spinal manipulation,” “chiropractic manipulation” or “spinal adjustment.” After reviewing the applicable Wisconsin statutes governing chiropractic, physical therapy, and massage therapy, the Wisconsin Attorney General noted that it was clear that these disciplines “overlap under some circumstances.”11 He further specifically identified treatment of the spine as one of those shared areas, stating:
“Physical therapy and chiropractic also intersect in that both may address the alignment of the body. To the extent that a physical therapist teaches a therapeutic exercise by, e.g., aligning the patient’s pelvic girdle to change the patient’s balance point, or straightens the patient’s spine to demonstrate proper lifting technique, the physical therapist engages in an adjustment of the patient’s joints, within the common meaning of that term, and therefore performs an activity which may be within the definition of the practice of chiropractic.”11
However, while recognizing the overlap and similar procedures employed between physical therapists and chiropractors, the Wisconsin AG opinion also recognized a differentiating point; namely, that the physical therapist applies “physical therapy science” to underpin the use of any one procedure, whereas the chiropractor applies “chiropractic science” when using the same or a substantially similar procedure.11 Thus, the opinion reasons, “neither a physical therapist nor a massage therapist may lawfully perform a chiropractic adjustment unless licensed as a chiropractor, [but] not every form of therapeutic touch involving the neck, back, joints or connective tissues constitutes a chiropractic adjustment.”11 Accordingly, “physical therapists and massage therapists are not prohibited from performing the activities that are within their respective scopes of practice, even if those activities extend in some degree into the field of chiropractic practice.”11
Nevertheless, in spite of this general trend toward recognizing physical therapists’ rights to use spinal manipulation as part of their practices, in 2007, the Tennessee Attorney General issued an AG opinion that called into question their rights to do so in Tennessee. That limitation, however, is based on the unique language employed in the Tennessee statutes and the Tennessee AG opinion has accordingly had minimal impact outside that state. Section 63-4-101(c), Tenn. Code. Ann., defines “spinal manipulation” and “spinal adjustment” as interchangeable terms that identify a “method of skillful and beneficial treatment where a person uses direct thrust to move a joint of the patient’s spine beyond its normal range of motion, but without exceeding the limits of anatomical integrity.” Section 63-4-101(c) further provides that these procedures may be performed only by healthcare providers that have completed 400 hours of classroom instruction in spinal manipulation or spinal adjustment and 800 hours of “supervised clinical training at a facility where spinal manipulation or spinal adjustment is a primary method of treatment.” Tennessee administrative regulations further provide that such training “must be performed in chiropractic institutions or institutions that specialize in spinal manipulative therapy” and that “a chiropractic diagnosis is necessary to properly establish the indications and contraindications before the administration of the spinal manipulation procedure.” This language, by default, would seem to prevent not only physical therapists from using spinal manipulation, but also medical doctors and osteopaths as they too would be unable to provide a “chiropractic diagnosis,” not only because of their lack of chiropractic education, but because the term “chiropractic” is defined in § 63-4-101(a), Tenn. Code Ann., as “the science and art of locating and removing interference with nerve transmission and nerve function,” yet the process of locating and removing nerve interference has yet to be found valid or reliable in the existing literature.
In spite of the obvious problematic language used in these statutes and regulations, the Tennessee Attorney General responded to a question posed by a Tennessee legislator by concluding that, “while the physical therapy scope of practice might include performing manual therapy techniques on a patient’s spine, or using physical agents and modalities on a patient’s spine, nevertheless, a licensed physical therapist, may not perform or hold himself or herself out as performing spinal manipulation as that term is used in Tenn. Code Ann. § 63-4-101(c)(1), without first having fulfilled the requirements of that section.”12 Subsequently, the Physical Therapy Practice Act was also formally amended to explicitly provide that “[t]he scope of practice of physical therapy shall not include the performance of treatment where the physical therapist or physical therapist assistant uses direct thrust to move a joint of the patient’s spine beyond its normal range of motion without exceeding the limits of anatomical integrity.” Thus, while the Tennessee AG opinion does at least recognize that the practice of physical therapy might properly include the performance of manual therapy techniques on a patient’s spine, it and the subsequent revision to the Physical Therapy Practice Act appear to prohibit the use of high-velocity low-amplitude thrust manipulation techniques.
Following this setback in Tennessee, in 2009, three state attorney generals issued findings consistent with the majority of other state attorney generals considering the issue which generally affirmed physical therapists’ rights to perform spinal manipulation. The Nebraska Attorney General did not specifically address spinal manipulation in its opinion, but recognized generally that under the Nebraska Physical Therapy Practice Act, physical therapy was specifically defined to include “mobilization or manual therapy.” In New Hampshire, the New Hampshire Attorney General responded to the New Hampshire Board of Chiropractic Examiners’ question of “whether a licensed physical therapist, who performs spinal manipulation, is engaged in unlicensed chiropractic practice” by opining that “spinal manipulation performed by a New Hampshire licensed physical therapist does not constitute unlicensed chiropractic practice.” However, and of interest, the definition of physical therapy within section RSA 328-A:2.XI(b) of the New Hampshire Code, only mentions “manual therapy including soft tissue and joint mobilization,” that is, there is no explicit mention of the term “spinal manipulation.” Nevertheless, because the New Hampshire Physical Therapy Board held the position that spinal manipulation was encompassed within “manual therapy including soft tissue and joint mobilization,” the New Hampshire Attorney General concluded that “there is insufficient evidence for this office to second-guess the [Physical Therapy] Board’s assertion that joint mobilization encompasses spinal manipulation and is within the scope of practice under RSA 328-A.”17 And finally, in South Carolina, the attorney general declined to be drawn into a dispute regarding physical therapists’ use of spinal manipulation. When asked by a state legislator for an opinion as to “whether or not the practices of ‘adjustment’ and ‘manipulation’ as performed by a licensed physical therapist, is the practice of medicine,” the South Carolina Attorney General simply stated “this office is not in a position to provide a response to your inquiry inasmuch as any response would necessitate a review of facts” and would, therefore, be “beyond the scope of an opinion of this office.”
CONCLUSIONS: THE WAY FORWARD FOR PHYSICAL THERAPISTS
The Wisconsin Attorney General identified one area in which state physical therapy boards could help themselves when, in his January 2001 AG opinion, he encouraged both the Wisconsin Chiropractic and Physical Therapy Boards to “sharpen the definitions of their respective practice areas, in order to give both chiropractors and physical therapists adequate guidance about the permissible scope of their respective practices.”11 Like many other physical therapy practice acts, the Wisconsin statute at the time of this AG opinion defined physical therapy broadly as “that branch or system of treating the sick which is limited to therapeutic exercises with or without assistive devices, and physical measures including heat and cold, air, water, light, sound, electricity and massage; and physical testing and evaluation.”11 In the wake of the AG opinion that definition was modified; however, it still provides no mention of “spinal manipulation.” Accordingly, physical therapists are too often left to the mercy of attorney generals, courts, and administrative boards which are tasked with determining whether spinal manipulation is encompassed by more general terms such as “mobilization” or “manual therapy.” The danger in this approach is that, as demonstrated on multiple occasions, chiropractic interests will be involved and they will emphatically argue against such a finding and instead argue that spinal manipulation is a separate and distinct procedure outside the scope of physical therapy.
The Wisconsin statute is far from alone in this respect. Indeed, most state physical therapy practice acts do not include the term “spinal manipulation” and the term is often absent from state-board promulgated rules and regulations as well. For example, the Arizona act refers only to “manual therapy techniques,” the Kansas and Tennessee acts use the term “manual therapy,” the New Hampshire act authorizes “manual therapy including soft tissue and joint mobilization,” the Pennsylvania act uses the term “mobilization/manual therapy,” the New Jersey act “manual therapy techniques” and “joint mobilization,” the South Dakota act includes “manual therapy techniques including soft tissue and joint mobilization,” the North Dakota and Idaho acts authorize “mobilization or manipulation,” the Louisiana act uses the term “mobilization and passive manipulation,” and the Colorado, Delaware, Hawaii, Massachusetts, Michigan, Montana, Nebraska, New York and West Virginia acts just make general reference to “mobilization.” While physical therapists can and should argue that these various terms authorize them to practice spinal manipulation, the widespread failure of physical therapy practice acts to affirmatively claim spinal manipulation indicates that these acts are too vague and/or simply out of date.
Ideally, state physical therapy boards would work to amend their practice acts to use more precise language seeking to ground the use of high-velocity, low-amplitude thrust procedures in terms of “spinal manipulation” instead of broad “mobilization,” “manual therapy,” or even “massage” terms. Practically speaking, however, this will be difficult, as any attempt to do so will likely be met with resistance from chiropractic groups. However, while it can be a difficult process to make changes to state practice acts, it is generally easier for state physical therapy boards to promulgate their own rules and regulations. For example, in Alabama, the state legislature has granted the Alabama Board of Physical Therapy the statutory authority to “adopt rules and regulations not inconsistent with law as [the board] may deem necessary for the performance of its duties ….” Pursuant to that authority, the Alabama board has enacted certain rules and regulations that are formally part of the Alabama Administrative Code. The Alabama board and other state boards with similar authority should ensure that language is in place in their internal rules and regulations unambiguously claiming spinal manipulation as part of physical therapy. Of course, such rules and regulations cannot explicitly contradict state statutes, but they can explicitly articulate the position of the state board that physical therapists in that state are entitled to perform spinal manipulation under the existing practice act which authorizes “manual therapy,” “mobilization,” etc. This is important because attorney generals, courts, and legislative committees that are subsequently asked to consider the issue of physical-therapist performed spinal manipulation –– typically because chiropractic interests have placed the issue before them and framed the issue in the worst possible manner for physical therapists –– will then typically look at all relevant materials before coming to a conclusion. A strong statement by a state board clearly asserting a claim to spinal manipulation has been persuasive in the past and will no doubt continue to be persuasive in the future.17 While any such statement by a state board is always beneficial, a preexisting claim to spinal manipulation enshrined in the official state regulations will always carry more weight than an after the fact letter or statement put forth once physical therapists are already in a defensive position.
In conclusion, the vast majority of entities that have considered the legality of physical-therapist performed spinal manipulation have ultimately decided the issue in favor of physical therapists, and physical therapists’ rights to perform physical therapy are now recognized to some extent in the majority of states. However, while this sounds encouraging, the recent legislation in Washington and Indiana is nevertheless concerning and may signal a new trend in the chiropractic approach to the issue. It will be difficult for chiropractic groups to be taken seriously if they continue to argue that spinal manipulation is not part of the practice of physical therapy when it is recognized as such in the majority of states, and, in light of that fact, the best they may be able to do is to make the requirements for physical therapists to perform spinal manipulations so onerous that no physical therapists can realistically be expected to comply with them, as is currently the case in Washington and to a lesser extent Tennessee. The end result in such a regime is the same as if physical therapists are not allowed to perform spinal manipulation at all and any victory achieved in attaining the right to perform spinal manipulation under such circumstances is, upon examination, a hollow one. Additionally, while the “Indiana trade-off” will no doubt have a net benefit for most physical therapists in the state who now have direct access to patients, it nevertheless subjugates physical therapists that practice spinal manipulation to chiropractors to at least some extent and, if repeated in other states, will undermine the gains made in establishing that spinal manipulation is an integral part of the practice of physical therapy.
James Dunning, DPT, MSc (Manip Ther), MMACP (UK), FAAOMPT
Director, AAMT Fellowship in Orthopaedic Manual Physical Therapy
President, Alabama Physical Therapy & Acupuncture
Raymond Butts, PhD, DPT, MSc (NeuroSci), Cert. DN, Cert. SMT
Senior Instructor, Spinal Manipulation Institute & Dry Needling Institute
Senior Faculty, AAMT Fellowship in Orthopaedic Manual Physical Therapy
Lars Longnecker, JD
Attorney, Montgomery, AL
Acupuncture Soc. of Kansas v. Kansas State Bd. of Healing Arts, 226 Kan. 639, 646, 6002 P.2d 1311, 1316 (1979) (recognizing that health-care providers practicing outside the statutory scope of their practice as determined by an opinion of the Kansas attorney general are subject to criminal prosecution).
In re Initiative Petition No. 397, State Question No. 767, 326 P.3d 496, 503 (Okla. 2014) (“Generally, a published Attorney General Opinion may be persuasive authority for a court, but a court is not bound by the Opinion of the Attorney General.”).
It bears noting, however, that a state legislature’s failure to modify relevant statutes after the issuance of an AG opinion interpreting those statutes can be interpreted by a subsequent court to consider those statutes as the legislature’s tacit approval of the AG opinion. See, e.g., Stoecker v. Moeglein, 129 N.W.2d 793, 796 (Minn. 1964) (“[T]he fact that shortly after the attorney general rendered an opinion … the legislature dealt with that section and left it unchanged … strongly supports plaintiffs’ position that the legislature intended to adopt the attorney general’s interpretation of the statute.”).
U.S. Parole Com’n v. Noble, 693 A.2d 1084, 1114 n. 16 (D.C. 1997) (“In the absence of controlling judicial authority, courts accord great weight to the opinions of state attorneys general with respect to the construction of state statutes.”).
Op. Cal. Att’y Gen. No. 75-282 (January 21, 1976).
The Board of Chiropractic Examiners’ 1980 exchange with DCA was described in a report prepared by the California Senate Committee on Business, Professions, and Economic Development in response to the 2013 introduction of Senate Bill 381, which would have prohibited physical therapists from performing joint manipulation or adjustments. See California Senate Committee on Business, Professions, and Economic Development report on SB 381 (2013).
Op. Md. Att’y Gen. No. 91-003 (January 23, 1991).
Op. Kan. Att’y Gen. No. 96-12 (February 20, 1996).
Op. Wisc. Att’y Gen. No. 01-01 (January 30, 2001).
Op. Tenn. Att’y Gen. No. 07-55 (April 23, 2007).
Tenn. Comp. R. & Regs. 0260-2-.02(3).
Mirtz, T., Morgan, L., Wyatt, L., and Greene, L., An epidemiological examination of the subluxation construct using Hill’s criteria of causation, 17 Chiropractic & Osteopathy 13 (2009).
§ 63-13-109(b)(2), Tenn. Code. Ann., as amended in 2007 by SB1144.
Op. Neb. Att’y Gen. No. 09005 (Feb. 9, 2009), quoting Neb. Rev. Stat. § 38-2914(2) (Supp. 2007).
New Hampshire Attorney General Opinion (2009). State of New Hampshire: Inter-Department Communication (February 23, 2009). Letter from New Hampshire Office of Attorney General to New Hampshire Board of Chiropractic Examiners.
It should be noted that in South Carolina chiropractors are generally considered to be in “the practice of medicine.” See, e.g., State v. Barnes, 119 S.C. 213, 112 S.E. 62 (1992).
Op. S.C. Att’y Gen. No. 4106 (Apr. 30, 2009).
Section 448.50(4)(a) of the Wisconsin Code currently defines “physical therapy” as follows:
“‘Physical therapy’ means, except as provided in par. (b), any of the following:
“1. Examining, evaluating, or testing individuals with mechanical, physiological, or developmental impairments, functional limitations related to physical movement and mobility, disabilities, or other movement-related health conditions, in order to determine a diagnosis, prognosis, or plan of therapeutic intervention or to assess the ongoing effects of intervention. In this subdivision, ‘testing’ means using standardized methods or techniques for gathering data about a patient.
“2. Alleviating impairments or functional limitations by instructing patients or designing, implementing, or modifying therapeutic interventions.
“3. Reducing the risk of injury, impairment, functional limitation, or disability, including by promoting or maintaining fitness, health, or quality of life in all age populations.
“4. Engaging in administration, consultation, or research that is related to any activity specified in subds. 1. to 3.”
It bears noting, however, that some have suggested that physical therapists should “rebrand” spinal manipulation using a different term to clearly differentiate it from chiropractic spinal manipulation. See also Op. Kan. Att’y Gen. No. 96-12 (February 20, 1996) (raising the question of whether “chiropractic manual manipulation” should be considered synonymous procedurally with the term “spinal manipulation” as that term is used by physical therapists). The Alabama Board of Physical Therapy, after receiving an informal complaint from the Alabama State Board of Chiropractic Examiners, initially advised one practitioner that he should consider this route. See letter from Nettie K. Horner, Executive Director of the Alabama Board of Physical Therapy to James Dunning, DPT, concerning the use of the term “spinal manipulation” in advertisements (November 4, 2008) (stating that “[w]hile the PT Board realizes it is a matter of semantics, it would be better if ‘physical therapy manipulation’ were used, as opposed to ‘spinal manipulation,’ which is within the Chiropractor’s scope of practice.”
Section 34-24-193(a), Ala. Code 1975.
See Rule 700-X-1-.01 et seq., Ala. Admin. Code (Bd. of Physical Therapy).
After the passage of HB 2160 in Washington, Arkansas now remains the lone state to completely prohibit spinal manipulation and adjustment by physical therapists. However, North Carolina (N.C. Gen. Stat.§ 90-270.24(4)), Maine (32 Me. Rev. Stat. tit. 32, § 3113-A), and Indiana (Ind. Code § 25-27-1-2.5) permit physical therapists to perform spinal manipulation only after specific referral for such by a medical doctor, osteopath, or chiropractor.