Health Care and the FLSA: Is a Physical Therapist FLSA Exempt under the Professional Exemption?
Health Care and the FLSA: Is a Physical Therapist FLSA Exempt under the Professional Exemption?
Through conversations and legal representation of health care clients, I have learned that state agencies in Oregon (Bureau of Labor and Industries) and Washington (Labor and Industries) have been aggressive in challenging the FLSA’s application to physical therapists. The determination of whether a Physical Therapist is FLSA exempt is a complicated question and the application of the FLSA to health care professions in general has been heavily litigated but clarity on these issues can be difficult to obtain.
The FLSA generally provides for the rule that employees need to be paid overtime for working over 40 hours in a week. However, employees can be exempt from the FLSA and therefore the employer would not have to pay them overtime. One of the exemptions is called the Professional Exemption and the requirements are as follows:
- The employee receives a salary or fee basis at a rate of at least $455 per week. For more information, see Salary Basis or Fee Basis Requirement, below.
- The employee’s primary duty consists of performing work that requires advanced knowledge.
- The advanced knowledge must be in a field of science or learning.
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
See 29 C.F.R. § 541.301.
Each of the above elements needs to be met in order for an employer to claim an employee as professionally exempt from the FLSA overtime payment rules. The first requirement, that the employee be paid salary, is usually straight forward and this article will focus on the other elements of the rule.
There are many factors to consider, and an evaluation of the physical therapist’s actual job functions, written employment policies, and communications will all be relevant to the determination. There are currently no direct holdings on the FLSA Professional exemption’s application to a Physical Therapist, however, many courts have interpreted health care jobs and their possible application to the FLSA.
In Levine v. Unity Health Sys., the United States District Court provided the following analysis in regards to primary therapists (not physical therapists),
“Here, plaintiffs’ duties as Primary Therapist (“PTs”) primarily consisted of making assessments of patients’ mental conditions, identifying specific clinical problems, devising plans of action specific to each patient based on those assessments, coordinating with therapists, specialists, and health care providers to identify and incorporate the resources required for the treatment plan, and individually leading group, individual, family, and/or crisis psychotherapy sessions. While the plaintiffs’ job duties also included administrative tasks, such as completing necessary paperwork, the primary duty and purpose of the PT position, as reflected by plaintiffs’ and Unity’s affidavits, and the plaintiffs’ written performance review forms, is to assess patients, help develop appropriate treatment plans, and administer therapy directly to patients. These tasks were performed with little oversight, and of necessity, required reliance on the PT’s own independent judgment.”
The court in Levine ultimately found that Primary Therapists fit the duties and academic prongs of the professional exemption. The analysis and ruling in Levine provide us with insight and a valuable comparable for analyzing how a court should consider physical therapists.
The following professions have been ruled to be exempt under the professional exemption to the FLSA and as discussed below, because physical therapists have more medical authority, decision making, and more intensive schooling.
Pharmacist. De Jesus-Rentas v. Baxter Pharm. Servs. Corp., (holding that pharmacists are exempt from the FLSA’s overtime requirements because their work requires knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized study and they consistently exercise discretion and judgment); Caperci v. Rite Aid Corp., (holding that salaried pharmacists are professionals exempt from the FLSA’s overtime requirements); Anunobi v. Eckert Corp., (holding that pharmacist was a professional employee because his duties required him to regularly exercise discretion and judgment).
Primary Therapist. Levine v. Unity Health Sys.
Physician Assistants. 29 C.F.R. § 541.301(e)(4); see also Opinion Letter, Wage and Hour Division, U.S. Dep’t Labor, 2006 DOLWH LEXIS 36, at *8 (noting that physicians assistants meet the duties requirement for the learned professional exemption because certification requires four years of specialized post-secondary school instruction).
Nurse Anesthetists. Opinion Letter, Wage and Hour Division, United States Dep’t of Labor, 1999 DLWH Lexis 127, at *4 (Dec. 29, 1999).
Moreover, Registered or Certified Medical Technologists, and Registered Nurses, have all been recognized as exempt from FLSA on the bona fides of their professional status. Health care industry professions that have been determined to be non-exempt include Certified Occupational Therapist Assistants, LPN’s, LVN’s, and Home Health Aides.
The second requirement that, “employee’s primary duty consists of performing work that requires advanced knowledge” can be proven, largely through reference to the RCW’s that govern the medical practice of physical therapy. Crucially, physical therapists are not under the supervision of another licensed medical practitioner. They are direct access providers. RCW 18.74.012. Physical therapists are direct service providers for Medicare, Medicaid and even Labor and Industries, and enter into direct payment contracts with private health insurers.
The Supreme Court of Washington has acknowledged the expansive role and duties of physical therapy, “Physical therapy is one aspect of the practice of medicine. The practice of medicine is defined by RCW 18.71.011(1) as “[o]ffer[ing] or undertak[ing] to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality.” This broad definition readily encompasses all the acts constituting the statutory definition of the practice of physical therapy. RCW 18.74.010(8).”
A licensed PT is solely responsible for evaluating and diagnosing a patient, preparing a treatment plan and therapeutic goals, including determining number and frequency of visits providing or supervising all care, and determining appropriate discharge of a patient. RCW 18.74.180.
Physical therapists have statutory liability and responsibilities assigned to them, “A physical therapist is professionally and legally responsible for patient care given by assistive personnel under his or her supervision. If a physical therapist fails to adequately supervise patient care given by assistive personnel, the board may take disciplinary action against the physical therapist.” RCW 18.74.180.
A licensed PT is authorized to purchase and administer medications such as hydrocortisone, fluocinonide, topical anesthetics, silver sulfadiazine lidocaine, magnesium sulfate, and may administer such other drugs or medication as prescribed by an authorized health care practitioner. RCW 18.74.160(5).
The third requirement, “The advanced knowledge must be in a field of science or learning” should be easy for a physical therapist to meet. As discussed by the RCW statutes and even the Washington Supreme Court, the practice of physical therapy is the practice of medicine. There is no question that the practice of medicine is a field of science or learning.
Finally, the fourth requirement, “The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction” should also be easy to prove for a practicing physical therapist.
General educational credentials are insufficient for licensure for the physical therapy practice of medicine. The Washington rules, (which are similar if not identical on a national scale) require an individual applying for a Physical Therapy license to have graduated from an institution of higher learning accredited by the commission on Accreditation in Physical Therapy Education under RCW 18.74.030. This is a specific, and narrowly tailored educational pre-requisite and satisfies the knowledge of an advanced type prong of the FLSA and RCW test. There is no other path to the practice of physical therapy without graduating from such a three year program.
Physical therapists must also pass a separate licensing examination that includes the following subjects:
“The applied sciences of anatomy, neuroanatomy, kinesiology, physiology, pathology, psychology, physics; physical therapy, as defined in this chapter, applied to medicine, neurology, orthopedics, pediatrics, psychiatry, surgery; medical ethics; technical procedures in the practice of physical therapy as defined in this chapter; and such other subjects as the board may deem useful to test the applicant’s fitness to practice physical therapy.” RCW 18.74.035
It is very important to note that despite all of the elements being capable of proving for a physical therapist, the courts will look at what the particular physical therapist was actually doing at his job For example, there are several cases that ruled that Nurses, despite usually being FLSA exempt, lost their exempt status because the employer wasn’t using the nurses for treatment, but was having them work administrative roles managing claims via computer. Therefore, it is important not to analyze a nurse in general but the particular employee and his usual work.
Documentation and particular employment practices and safeguards can go a long way towards reducing your liability under the FLSA. Moreover, FLSA audit’s can be performed to ensure compliance with the provisions of the law. This article should not be considered legal advice but the intention is to provide a general overview of the law and some of the trends our office has observed. To schedule a consultation with an attorney, please contact Engrav Law office by calling 971-339-2737 or emailing grant@engravlawoffice.com
Resources:
Department of Labor Overtime Laws
Oregon Board of Physical Therapy
Washington Board of Physical Therapy
