New Castle County/Civil Division
BY U.S. MAIL
State Examining Board of Physical Therapists
Division of Professional Regulation
861 Silver Lake Boulevard
Dover, Delaware 19904
RE: Education Requirements for Foreign-Educated Applicants
You have asked for an interpretation of Title 24 of the Delaware Code §§ 2606 (a) (1) and 2606 (b) which make special provisions for those applicants for licensure who have received a degree from a foreign physical therapy school. Specifically, you have asked:
We conclude that a foreign-educated applicant for licensure must now furnish evidence to the State Examining Board of Physical Therapy (Board) that he or she has graduated from a program that is equivalent to a postbaccalaureate degree earned from a CAPTE accredited institution. Foreign-educated applicants for licensure who have already received a degree from a non-CAPTE accredited institution are required to provide the Board with evidence of a "resident course of professional instruction" that would be equal to the new CAPTE standard. 24 Del. C. § 2606 (b). The requirement of a postbaccalaureate degree or its equivalent to all applicants does not on its face constitute unlawful discrimination against those applicants who have received foreign-education or training; however, this opinion is not offered in response to a specific fact scenario, and it is not possible to anticipate every factual determination that could be relevant to the application and enforcement of 24 Del. C. §§ 2606 (a) (1) and 2606 (b).
of completion of a CAPTE accredited program or its equivalent.
Chapter 26 of Title 24 of the Delaware Code is the physical therapy practice act. Section 2606 of Title 24 specifies the required qualifications for all applicants for licensure in the State of Delaware. 24 Del. C. § 2606 (b). Section 2606 (a) (1) states that all applicants for licensure shall submit evidence to the Board that the applicant:
(1) Has graduated from a school offering a program in physical therapy, physical therapy assistant or athletic training, which program as offered by such school has been approved for the educational preparation of physical therapists, physical therapist assistants or athletic trainers by the appropriate accrediting agency recognized by the Council on Post Secondary Accreditation or the United States Commission of Education, or any successor, at the time of graduation; provided however, that those applicants for licensure as athletic trainers who apply or who have applied for and been granted a license prior to July 1, 2004, may be licensed if they have been granted a degree from a college or university, successfully completed the internship process through the National Athletic Trainers Association Board of Certification (NATA BOC) and have been approved by NATA BOC to take the national examination;
24 Del. C. § 2606 (a) (1). In addition to specifying other qualifications for licensure, 24 Del. C. § 2606 (b) makes special provisions for those applicants who have received a diploma from a foreign physical therapy school. Section 2606 (b) of Title 24 of the Delaware Code states:
(b) A physical therapist applicant whose application is based on a diploma issued by a foreign physical therapy school shall furnish evidence satisfactory to the Board of the completion of a physical therapy school or schools "resident course of professional instruction equivalent to that required in subsection (a) of this section, in addition to meeting all other requirements of this section and § 2608 of this title. [Emphasis added]
24 Del. C. § 2606 (b).
The plain meaning of the words of a statute are controlling if the language of the statute is unambiguous. Ingram v. Thorpe, 747 A.2d 545, 547 (Del. Supr. 2000). Applying the plain meaning of the words of Section 2606, a foreign-educated student must furnish the board evidence of a "resident course of professional instruction equivalent" to that required in 24 Del. C. § 2606 (a). 24 Del. C. § 2606 (b). As a result, foreign-educated students must provide the Board with evidence of a program equal to that specified in 24 Del. C. § 2606 (a). Twenty-four Del. C. § 2606 (a) (1) specifies that applicants for licensure must graduate from an accredited program. 24 Del. C. § 2606 (a) (1). The Board is authorized by statute to license only those applicants who have graduated from a school offering a program in physical therapy which has been approved by the Council on Post Secondary Accreditation or the United States Commission of Education. 24 Del. C. § 2606 (a) (1). The accrediting agency for physical therapy education recognized by the Council on Post Secondary Accreditation or the United States Commission of Education is the CAPTE.
Effective January 1, 2002, CAPTE will no longer accredit physical therapy schools which offer baccalaureate degrees in physical therapy. Only those schools which have a post baccalaureate degree program (masters degree or higher) in physical therapy will receive accreditation from CAPTE. Prior to CAPTE's change in accreditation standards from a baccalaureate degree to a postbaccalaureate degree, the Board required applicants to demonstrate that they had "obtained the equivalent of a four-year Bachelor's degree from an accredited institution in the United States." Munir v. Delaware Examining Board of Physical Therapy, 1999 WL 517412 (Del. Super.). As a result of CAPTE's change in accreditation standards, the Board should require foreign-educated applicants to demonstrate that they have the equivalent of a postbaccalaureate degree from a CAPTE accredited institution. The burden of proof is on the applicant, rather than the Board, to prove the equivalency of their education to the required standard. Nardo v. Board of Plumbing Examiners, 2001 WL 845663 at 2 (Del. Super. 2001).
The new CAPTE accreditation standards should be applied to the degree or diploma the applicant received at the time of graduation. There is no indication in 24 Del. C. § 2606 that the CAPTE accreditation should apply retroactively to those applicants who had completed a CAPTE approved program. See, Fink v. Board of Examiners of Psychologists, 693 A.2d 321, 325 (Del. Super. 1996). If the school had been accredited by CAPTE at the time of the applicant's graduation, the applicant should not be required to supplement his or her education or training to conform to the new CAPTE standards.
Delaware has a "compelling interest" in the regulation of professionals who practice within its borders(1). Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). As a matter of substantive due process, regulations made pursuant to a compelling state interest will be upheld even if the regulations infringe on a fundamental liberty interest so long as the regulations are narrowly tailored. Reno v. Flores, 507 U.S. 292, 302 (1993). The regulation must not only be facially neutral, but fairly administered. Yick Woo v. Hopkins, 118 U.S. 356, 373-374 (1886).
Foreign-educated applicants would have to show that there is no rational basis for requiring applicants to provide educational credentials at least the equivalent of a master's degree to establish an equal protection violation. See United States v. Bertoli, 994 F.2d 1002 (3rd Cir. 1993). Although race and national origin are suspect classifications for purposes of equal protection analysis, foreign-educated persons have not been determined to be a suspect classification. See U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 174 (1980). In a social or economic policy matter, a classification that does not involve a suspect classification "must be upheld against any equal protection challenge if there is any reasonably conceivable state of facts that would provide a rational basis for the classification." Nardo v. Board of Plumbing Examiners, 2001 WL 845663 at 5 (Del. Super.).
Although there is no reported case in Delaware regarding the burden of proof placed on foreign-educated applicants for professional licenses, other courts have ruled that public entities may rely on a private organization, such as the American Bar Association, for the accreditation educational programs of applicants for professional licensure. Murphy v. State Board of Law Examiners for the Commonwealth of Pennsylvania, 429 F. Supp. 16 (1977); Tenn Op. Atty. Gen. NO 82-221 (holding that a foreign-educated applicant had to graduate from an institution that met the minimum standards of the American Council on Pharmaceutical Education list of accredited colleges). The Nebraska Supreme Court has ruled that a Canadian-born applicant for admission to the State bar had the burden of showing that the education she received in a Canadian law school, which was not accredited by the American Bar Association, was the equivalent of that received by a graduate of an ABA-accredited law school. In re Application of Collins-Bazant, 578 N.W.2d 38 (Neb. 1998).
In order to meet the statutory criteria for licensure as a physical therapist in the State of Delaware, foreign-educated applicants will have to supply evidence of completion of an equivalent program to a postbaccalaureate degree. Requiring additional educational requirements for all applicants for professional licensure in physical therapy and athletic training is an acceptable exercise of the police power of the state and is rationally related to a legitimate purpose. Therefore the imposition of the new CAPTE accreditation standards is constitutionally valid on its face; however, these standards may not be applied to discriminate against a constitutionally protected class of persons.
If you have any questions, please do not hesitate to contact our office.
Very truly yours,
Craig R. Fitzgerald
Deputy Attorney General
Deputy Attorney General
Keith R. Brady
Assistant State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Mr. Philip Johnson, Opinion Coordinator
1. It should be noted that the Third Circuit has ruled that Title VII of the Civil Rights Act of 1964 is inapplicable to the "licensing functions of a public agency under the police powers of a State." George v. New Jersey Board of Medical Examiners, 794 F.2d 113, 114 (3rd Cir. 1986).