A Case Study

The range of care PTs can provide at employer locations.

By Alpha Lillstrom Cheng, JD, MA, and Drew Bossen, PT, MBA

With this October Advocacy in Action, we are going to illustrate what can happen when a group of people join their efforts and expertise to engage with the Department of Labor’s Occupational Safety and Health Administration (OSHA) in order to advocate for the range of onsite care physical therapists may provide at employer locations.

Shared Frustrations

As Drew Bossen recalls, it was at the 2014 Private Practice Section (PPS) Annual Conference in Colorado Springs and “there were four of us sitting in a bar . . . seriously, we were sitting in a bar!” They were friends, colleagues, and on some occasions competitors on mutual projects despite being from different parts of the country. That said, their collective vision of what types of care physical therapists should be able to provide on site at places of business was unified, and they clearly shared a common goal. Their group included Curt DeWeese (upstate New York), Debbie Reed (southern Indiana), Scott Ege (northern Illinois), and Drew Bossen (eastern Iowa). All four were PPS members who provide onsite services to a multitude of companies across the country. They each also provide counsel to groups of physical therapists regarding onsite services—laying out what can and can’t be done. Additionally, they all struggled with the confusion that existed, among both physical therapists and safety professionals, regarding the existing OSHA language and the categorization of the services they as physical therapists provided on site.

That afternoon in Colorado, they discussed numerous topics and examples of where current OSHA language was confusing or contradictory. These discussions included the use of kinesio tape as an intervention with the employees of their clients, physical therapists deploying preventative exercises on site, and what constituted the ultimate triggering event for a Recordable Injury.

Throughout these robust debates, the singular most unifying discussion that afternoon surrounded the impact a chiropractic-initiated technique known as Active Release Technique, better known among employers as ART, was having on their businesses.

As background, ART was trademarked by Dr. Michael Leahy, DC. ART is a proprietary approach that includes a variety of soft tissue mobilization techniques utilized to manage musculoskeletal disorders (MSDs). In 2006 Dr. Leahy approached OSHA with a request for clarification of ART as it relates to OSHA’s provision 1904.7, OSHA General Recording Criteria. Contained within the 1904.7 provision are 14 items that OSHA deems as “First Aid Care,” which means that in the eyes of OSHA these items do not trigger a Recordable Injury.

One of those 14 items included under the umbrella of First Aid Care was massage. Dr. Leahy argued that ART was nothing more than an extension of massage. OSHA subsequently responded to Dr. Leahy in July of 2006 (OSHA Leahy Letter) and essentially agreed with Dr. Leahy’s assertion. In that letter, OSHA stated, “After completing an analysis of the information currently available, OSHA cannot determine that ART generally exceeds what is commonly recognized as massage practices. Based on this determination, OSHA finds that ART is considered first aid for injury and illness recordkeeping purposes.”

With that OSHA letter in hand, Dr. Leahy and his business associates began a comprehensive, well-thought-out marketing campaign to employers advocating ART as a means to avoid Recordable Injuries. Ultimately, they were very successful and garnered a large market share of onsite services.

Since OSHA’s June 24, 2006, letter of interpretation regarding soft tissue massage and ART, confusion has existed among health and safety professionals. Essentially, many have been led to believe that ART provides a unique nonrecordable method to address discomfort and avoid musculoskeletal disorder (MSD)—related recordable injury claims. Likewise, some have been convinced that if a physical therapist or certified athletic trainer provided massage, doing so was considered treatment and therefore would drive a recordable injury.

After much research and inquiry, Bossen, DeWeese, Reed, and Ege concluded that the 2006 Leahy Letter provided those with ART certification a competitive edge within the employer onsite marketplace. It was their belief that it would be inappropriate for OSHA, as a federal agency, to intentionally support or advocate for a singular proprietary treatment intervention to meet the require ments outlined in OSHA’s provision of First Aid 1904.7(b)(5)(ii)(M) regarding massage. The crux of the issue was that physical therapists are well trained and versed in providing similar soft tissue management techniques, akin to ART, but were being functionally excluded from providing those services. The group agreed that playing field should be leveled between the services ART-certified practitioners and physical therapists provide on site. To properly address the issue, it was necessary to receive clarity from OSHA that they did not intend to point to ART as the only massage-related soft tissue massage approach that constituted first aid for injury and illness recordkeeping purposes.

In pursuit of this clarity, these four PPS members continued to work behind the scenes. They met with OSHA staff on several occasions, both formally and informally, over the course of a few years. As a result, they moved the dialogue regarding Kinesio Tape and Preventative Exercise through to a positive outcome. OSHA rescinded its position on the use of Kinesio Tape as an intervention under the provision of First Aid 1904.7(b)(5)(ii)(F). Relative to Preventative Exercise, OSHA clarified the parameters on the use of exercises in the workplace—specifically, that a physical therapist could deploy Preventative Exercises within the workplace without triggering a Recordable Injury. However, when it came to the issue of ART and its stranglehold on the use of soft tissue massage, it was clear that while OSHA was open to a further discussion, it was not willing to navigate this topic with only the four individual clinicians.

The presidential election in 2016 ushered in a new administration resulting in a widespread pause on regulatory activity. As a result, virtually all discussions with OSHA were put on hold. For a year the practitioners periodically reached out to their contacts at OSHA attempting to keep the conversation alive, finally resurrecting the discussion during the Spring of 2018. At this point, the PPS members made the strategic decision to enlist the help of PPS, APTA, and the Occupational Health Special Interest Group (OHSIG) in the fight. Bossen is sure that, “In retrospect, their background and experience on ‘The Hill’ and working with the Executive Branch proved invaluable in our final outcome.” Over the next several months the PPS members worked closely with the government relations staff of PPS and APTA—sharing their experiences, documents, and providing feedback and edits on both a request for a formal meeting and the eventual “ask” of OSHA to issue a written clarification.

Regulatory Agencies and Their Process

Most readers are familiar with how a bill becomes a law, but it is less widely known what happens after that. When signed into law, legislative text is essentially an outline of principles and thresholds. While laws contain clear requirements of what is to be achieved, a lot of authority and leeway is afforded to the Executive Branch agency tasked with implementing the laws. The most widely known component of the implementation protocol is the rulemaking process. It is through the publication of proposed rules, then the acceptance and consideration of public comments before finalizing rules, that will determine the specific details of how a law will impact those it applies to.

Another responsibility of each agency within the Executive Branch is to monitor and act as the administrator to ensure that their agency’s regulations are being followed and that people act within the parameters that have been laid out. In this case we are focused on OSHA, which is one of the three Department of Labor (DOL) agencies responsible for the administration and enforcement of the laws enacted to protect the safety and health of workers in America. OSHA requirements are set by statute, standards, and regulations. When there is confusion or challenges to how regulations are being interpreted, the Department of Labor uses a tool known as a “Letter of Interpretation” to explain the requirements and how they apply to particular circumstances. This written guidance can only seek to illuminate existing requirements; it cannot be used to create additional employer obligations. An example of such a document is the 2006 Leahy Letter of Interpretation described earlier; however, instead of bringing clarity it had resulted in confusion.

Building on both the relationships the stakeholders had cultivated with the OSHA staff, PPS and APTA facilitated a meeting between OSHA and a select group of PPS members and practitioners whose practices focused on working with small businesses and manufacturing clients to address workplace first aid and injury. In February 2019 Drew Bossen, Curt DeWeese, Lorena Pettet Payne, PPS Lobbyist Alpha Lillstrom Cheng, and APTA staff Kara Gainer and Katy Neas, met with OSHA’s Technical Support and Emergency Management staff.

The ultimate goal of the meeting was to request and receive a clarifying letter of interpretation. The group argued that in order to better inform employers, providers, and the general public about the types of first aid interventions available to employees that are not recordable, that it was necessary for OSHA to issue a new letter of interpretation that would specify that soft tissue management (massage) is considered first aid for purposes of OSHA recordkeeping, regardless of whether or not it is performed by individuals with ART certification. In addition, they also pointed out that a clarifying letter regarding soft tissue massage would increase employee access to interventions in the work environment that are designed to improve the overall function and health of individuals.

As is standard operating procedure, that meeting was followed by an official letter requesting review of the policy. That correspondence specifically requested written guidance stating that there are a multitude of soft tissue massage techniques administered by health care professionals, including physical therapists, that are similar to ART which OSHA also considers first aid, as defined under 29 CFR §1904.7(b)(5)(ii). The group then waited for the OSHA staff and general counsel to consider the request and decide how they should proceed.

The Win

On May 23, 2019, the group was overjoyed to receive a letter of interpretation from OSHA which eliminated the confusion surrounding ART. It was clear that the OSHA staff understood the issue brought to them and were willing to provide unambiguous direction and guidelines to both providers and employers who refer to these letters of interpretation in order to make both treatment and business decisions.

The letter agreed wholly with the argument that was presented all along. OSHA definitively stated, “After conducting an analysis of available information, and based on the regulatory text in Part 1904, OSHA finds that soft tissue massage is first aid for recordkeeping purposes [italics added by authors]. We also note that OSHA’s recordkeeping regulation does not include special rules for recording soft tissue injuries and illnesses. The determination as to whether to record soft tissue cases is the same as any other type of injury or illness. This means that work-related injuries and illnesses involving muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs would meet the general recording criteria if they involve medical treatment beyond first aid, days away from work, job transfer or restricted work.”

OSHA went on to state that “section1904.7(b)(5)(iv) of OSHA’s recordkeeping regulation provides that the professional status of the person providing the treatment does not have any effect on what is considered first aid or medical treatment [italics added by authors]. That is, OSHA considers the treatments listed in section 1904.7(b)(5)(ii) of the regulation to be first aid regardless of the professional status of the person providing the treatment. Even when these treatments are provided by a physician or other licensed health care professional, they are still considered first aid for purposes of Part 1904.” To remove any room for alternative interpretation of its written guidance, OSHA reiterated that “soft tissue massage is first aid whether or not such treatment is performed by individuals with ART certification [italics added by authors].”

Conclusion

While it took almost five years, by working together, PPS members and their lobbyists were able to elicit clear, comprehensive guidance for physical therapists and others regarding soft tissue massage techniques. With its letter of interpretation, OSHA made its position very clear—a work-related soft tissue injury or illness would only be considered recordable if treatment involved medical treatment beyond first aid, days away from work, job transfer, or restricted work for the purposes of Part 1904 OSHA recordkeeping regulations. Furthermore, massage provided by a physical therapist or other health care provider is considered first aid care, not medical treatment.

If you have an issue that you have questions about or would like to know how to go about bringing it to the attention of policymakers, please reach out to your PPS lobbyist Alpha Lillstrom Cheng. The more you as providers communicate the pinch-points of your practice and business models, the better equipped your advocates can be to identify strategies to seek solutions and relief.

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