Callaway v. Delaware Examining Board of Physical Therapists and Athletic Trainers

IN THE SUPERIOR OF THE STATE OF DELAWARE

KATHY CALLAWAY, PT, CHT, and )
RANDEEP KAHLON, MD, )
)
Plaintiffs, ) C.A. No. N23C-05-196
) SKR CCLD
v. )
)
DELAWARE EXAMINING BOARD )
OF PHYSICAL THERAPISTS AND )
ATHLETIC TRAINERS, )
)
Defendant. )

Submitted: May 29, 2024
Decided: July 26, 2024

Upon Plaintiffs’ Motion for Summary Judgment,
GRANTED.
Upon Defendant’s Motion for Summary Judgment,
DENIED.

MEMORANDUM OPINION AND ORDER

Michael L. Vild, Esquire, Cross & Simon, LLC, Wilmington, Delaware, M.
Elizabeth Crum, Esquire, Burr & Forman LLP, Columbia, South Carolina, and James
A. Hoover, Esquire, Burr & Forman LLP, Birmingham, Alabama, Attorneys for
Plaintiffs.

Eileen Kelly, Esquire, Deputy Attorney General, State of Delaware Department of
Justice, Dover, Delaware, Attorney for Defendant.
Myron T. Steele, Esquire, Carla M. Jones, Esquire, Potter Anderson & Corroon LLP,
Wilmington, Delaware, Attorneys for Amicus Curiae The Delaware Physical
Therapy Association.

RENNIE, J.
I. INTRODUCTION

Plaintiffs Kathy Callaway, PT, CHT, and Randeep Kahlon, MD (together,

“Plaintiffs”) sued Defendant Delaware Examining Board of Physical Therapists and

Athletic Trainers (the “Board”) to challenge the constitutionality of 24 Del. C. §

2616(a)(8) (the “Statute”). In short, the Statute prohibits physical therapists and

athletic trainers (together, “PT/ATs”) from working with or for physicians who refer

patients to them. The Statute has been in effect for decades and recently withstood

a proposed amendment. Plaintiffs’ bear a heavy burden in challenging it.

It is not the judiciary’s role to second-guess the legislature’s policy choices.

It is, however, the judiciary’s role to ensure that the legislature applies its policy

choices equally without arbitrarily burdening some individuals but not others. If the

legislature arbitrarily discriminates against certain individuals, the Court has an

absolute constitutional obligation to strike down the offending law. Under our

foundational system of checks and balances, no amount of deference to the

legislature could displace the Court’s nondelegable role in that regard.

Here, there is no question that the Statute arbitrarily imposes burdens on

PT/ATs that are not imposed on similarly situated healthcare providers. The Statute’s

employment restriction is almost 1 unique among the various healthcare providers

1
As discussed more fully below, a similar employment restriction applies to massage therapists
and technicians. That provision of Title 24 is not presently before the Court.

1
regulated under Title 24. Thus, for the Statute to be constitutional, there must be a

rational basis to treat PT/ATs differently. There is not.

The Court wishes to be clear in this: The Court’s conclusion is not based on

an assessment of the merits of the legislature’s reason for treating PT/ATs differently;

instead, the Court’s conclusion is commanded by the fact that the Board could not

identify a single conceivable basis for the Court to even assess. The Board’s only

defense of the Statute with respect to Plaintiffs’ equal-protection argument is that the

Court should defer to the legislature’s policy choices. But in order for the Court to

defer to the legislature’s reasoning, there must first be reasoning to which the Court

can defer.

Because there is no rational basis to apply an employment restriction to

PT/ATs but not other similarly situated healthcare providers, the Court is constrained

to hold that 24 Del. C. § 2616(a)(8) violates the Fourteenth Amendment’s Equal

Protection Clause. Accordingly, the Court GRANTS Plaintiffs’ Motion for

Summary Judgment and DENIES the Board’s Motion for Summary Judgment.

2
II. FACTUAL BACKGROUND

A. The Parties

Plaintiff Kathy Callaway, PT, CHT, is a licensed physical therapist in

Delaware.2 She is a co-founder of Callaway Franceschini, LLC, d/b/a Rise PT,

which operates in four locations throughout Delaware.3

Plaintiff Randeep Kahlon, MD, is a certified orthopaedic surgeon in

Delaware.4 He is a principal at First State Orthopaedics.5 First State Orthopaedics

is one of Delaware’s two predominant providers of orthopaedic services. 6

The Board is a legislatively created body tasked with enforcing 24 Del. C. §§

2601–21 (the “PT/AT Act”) and regulating the practice of physical therapy and

athletic training in Delaware.7

Amicus curiae The Delaware Physical Therapy Association (the “DPTA”) is

a chapter of the American Physical Therapy Association.8 The DPTA “represents

2
Affidavit of Kathy Callaway, PT, CHT, in Support of Plaintiffs’ Motion for Summary Judgement
(hereinafter, “Callaway Aff.”) ¶ 4 (D.I. 38).
3
Id. ¶ 6.
4
Affidavit of Randeep Kahlon, MD, in Support of Plaintiffs’ Motion for Summary Judgment
(hereinafter, “Kahlon Aff.”) ¶ 4 (D.I. 38).
5
Id. ¶ 5.
6
Affidavit of Stephen V. Rapposelli, PT, OCS, in Support of Amicus Curiae The Delaware
Physical Therapy Association’s Brief in Support of the Board’s Motion for Summary Judgment
(hereinafter, “Rapposelli Aff.”) ¶ 11 (D.I. 28).
7
See 24 Del. C. §§ 2601, 2603(a), 2604.
8
Rapposelli Aff. ¶ 3.

3
approximately 500 physical therapists, physical therapist assistants, and students in

the Delaware area.”9

B. The Statutory Scheme

The PT/AT Act establishes various rules for the practice of physical therapy

and athletic training in Delaware. It directs that the Board’s “primary objective . . .

is to protect the general public (especially those persons who are direct recipients of

services regulated by [the PT/AT Act]) from unsafe practices and from occupational

practices which tend to reduce competition or to fix the price of services rendered.”10

The Board’s “secondary objectives . . . are to maintain minimum standards of

practitioner competency, and to maintain certain standards in the delivery of services

to the public.”11

Under the PT/AT Act, and subject to nuances that are immaterial here, PT/ATs

can only treat a patient for a maximum of thirty days without a referral from, or

consultation with, a licensed physician. 12 Hence, physicians control the demand for

long-term physical therapy services in Delaware.

9
Id. ¶ 6.
10
24 Del. C. § 2601.
11
Id.
12
24 Del. C. § 2612(a)-(b). The referral or consultation can come from “any licensed health
practitioner, who has been granted prescriptive authority for a condition within the scope of their
respective practices.” Id. In the interest of brevity, and in conformity with the briefing, this opinion
will refer only to “physicians.”

4
The Statute—24 Del. C. § 2616(a)(8)—is the focus of this litigation. The

Statute places limits on a PT/AT’s ability to share financial interests with physicians

who refer patients to the PT/AT. Specifically, the Statute permits the Board to

discipline PT/ATs who have:

Engaged directly or indirectly in the division, transferring, assigning,
rebating or refunding of fees received for professional services or who
profits by means of a credit or other valuable consideration such as
wages, an unearned commission, discount or gratuity with any person
who referred a patient, or with any relative or business associate of the
referring person. 13

The Statute continues:

Nothing in this paragraph shall be construed as prohibiting the members
of any regularly and properly organized business entity recognized by
Delaware law and comprised of physical therapists or athletic trainers
from making any division of their total fees among themselves as they
determine by contract necessary to defray their joint operating costs[.]14

Similar restrictions on healthcare providers’ abilities to share renumeration

with referring physicians apply to massage therapists and technicians 15 as well as

chiropractors.16 The provision that applies to massage therapists and technicians is

substantially identical to the Statute.17 The provision that applies to chiropractors,

in contrast, expressly excludes chiropractors “employed by or contracted with a

13
24 Del. C. § 2616(a)(8).
14
Id.
15
Id. § 5313(a)(7).
16
Id. § 711(b)(17).
17
Id. § 5313(a)(7).

5
Delaware licensed medical doctor or doctor of osteopathy that works in the State a

minimum of 10 hours per week.”18 Other healthcare providers regulated by Title 24,

including occupational therapists,19 are not subject to an employment restriction

similar to that contained in the Statute.20

The Statute has been interpreted once before. 21 Specifically, in 2002, the

then-Chairperson of the Board requested and received an interpretation of the Statute

from the Office of the Attorney General (the “AG Opinion”).22 Relevant here, the

AG Opinion explained that “[t]he main purpose of [the Statute] is the protection of

the public from unnecessary referrals to physical therapists which are based upon

financial gain.”23 The AG Opinion concluded that the Statute “bars a physician-

owned practice or group practice from referring their own patients to an in-house

physical therapist in their employ.”24

18
Id. § 711(b)(17).
19
See id. § 2015(a). The Court focuses on occupational therapists more so than other healthcare
providers because “there is substantial overlap in healthcare services that occupational therapists,
physical therapists and athletic trainers provide.” Kahlon Aff. ¶ 6; see also May 29, 2024 Oral
Argument Transcript (hereinafter “OA Tr.”) at 59:7–9 (The Board: “I can point to no meaningful
distinction between an occupational therapist and a physical therapist[.]”).
20
See Kahlon Aff. ¶ 19. The Court’s own review of Title 24 confirms this.
21
24 Del. C. § 2616 has been amended since the previous interpretation of the Statute, but the
substantive language for present purposes went unchanged. See 74 Del. Laws ch. 262, § 49 (2004);
79 Del. Laws ch. 213, § 2 (2014); 79 Del. Laws ch. 277, § 9 (2014); 79 Del. Laws ch. 406, § 17
(2014).
22
Del. Op. Att’y Gen. 02-IB25, 2002 WL 31867899 (Oct. 10, 2002) (hereinafter, “AG Op.”).
23
Id. at *1.
24
Id.

6
The AG Opinion also determined that “[a]lthough certain financial

relationships with referring persons (including physicians) are prohibited, physical

therapists and athletic trainers may utilize any legally recognized business entity in

the State of Delaware, as long as they do not violate the referral provisions of [the

Statute].” So, according to the AG Opinion, a physician and a PT/AT could own a

business entity together, but the physician could not refer patients to that PT/AT. 25

C. Procedural History

The present litigation comes after an unsuccessful effort in 2022 by Plaintiffs’

respective entities, Rise PT and First State Orthopaedics, to lobby the legislature to

amend the Statute through Senate Bill No. 245.26 That amendment would have,

among other things, expressly allowed physical therapists27 to work with and for

physicians.28

In February 2023, Plaintiffs changed course and sought relief in the Court of

Chancery. 29 In May 2023, Plaintiffs’ claims were transferred to this Court.30

25
Id. at *4.
26
See Callaway Aff., Ex. A; Rapposelli Aff. ¶ 9; Opening Brief in Support of the Board’s Motion
for Summary Judgment (hereinafter, “Board’s Mot.”), Ex. A (D.I. 32).
27
It appears that Senate Bill No. 245 would not have expressly provided similar protections for
athletic trainers. See Board’s Mot., Ex. A.
28
Id.
29
See Complaint (D.I. 1).
30
See id., Ex. 2.

7
Plaintiffs filed an Amended Complaint on June 2, 2023.31 The Amended Complaint

brings four counts, each seeking declaratory relief. 32 The Board answered the

Amended Complaint on June 29, 2023. 33

Following discovery, the Board moved for summary judgment on March 15,

2024. 34 Plaintiffs moved for summary judgment on April 3, 2024. 35 With the

Court’s leave, the DPTA filed an amicus curiae brief supporting the Board’s

Motion.36 The parties fully briefed the cross-motions in April and May 2024.37 On

May 29, 2024, the Court heard argument on the cross-motions.38

III. STANDARD OF REVIEW

Summary judgment is warranted “if the pleadings, depositions, answers to

interrogatories, and admission on file, together with the affidavits” show “there is no

31
See Amended Complaint (D.I. 2).
32
Id. ¶¶ 40–65.
33
See Board’s Answer to the Amended Complaint (D.I. 6).
34
See Board’s Mot.
35
See Opening Brief in Support of Plaintiffs’ Motion for Summary Judgment (hereinafter, “Pls.’
Mot.”) (D.I. 38).
36
See Amicus Curiae Brief of DPTA in Support of the Board’s Motion for Summary Judgment
(hereinafter, “DPTA Br.”) (D.I. 28).
37
See Plaintiffs’ Answering Brief in Opposition to the Board’s Motion for Summary Judgment
(hereinafter, “Pls.’ Opp’n”) (D.I. 41); The Board’s Answering Brief in Opposition to Plaintiffs’
Motion for Summary Judgment (hereinafter, “Board’s Opp’n”) (D.I. 42); The Board’s Reply Brief
in Support of the Board’s Motion for Summary Judgment (hereinafter, “Board’s Reply”) (D.I. 46);
Plaintiffs’ Reply Brief in Support of Plaintiffs’ Motion for Summary Judgment (hereinafter, “Pls.’
Reply”) (D.I. 47).
38
See Judicial Action Form (D.I. 50).

8
genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.”39 If the parties file cross-motions for summary judgment “and

neither party argues the existence of a genuine issue of material fact, ‘the Court shall

deem the motions to be the equivalent of a stipulation for decision on the merits

based on the record submitted with the motions’”40 Summary judgment is an

appropriate mechanism to answer discrete questions of statutory construction.41

IV. PARTIES’ CONTENTIONS

A. Plaintiffs’ Contentions

Plaintiffs raise four principal arguments. First, Plaintiffs disagree with the AG

Opinion and argue that the Statute’s second sentence, as written, allows intra-entity

referrals between physicians and PT/ATs who are members of a common business

entity—Plaintiffs call this the “Referral Exception.”42 Plaintiffs’ next three

arguments are in the alternative and challenge the Statute’s constitutionality. In that

regard, Plaintiffs suggest that the Statute is impermissibly vague. 43 Plaintiffs next

argue that the Statute violates principles of equal protection because applying the

39
Del. Super. Ct. Civ. R. 56(c).
40
Zenith Energy Terminals Joliet Hldgs. LLC v. CenterPoint Props. Tr., 2023 WL 615997, at *8
(Del. Super. Jan. 23, 2023) (quoting Del. Super. Ct. Civ. R. 56(h)).
41
See Pike Creek Recreational Servs., LLC v. New Castle Cnty., 238 A.3d 208, 213 (Del. Super.
Aug. 18, 2020).
42
Pls.’ Mot. at 13–17.
43
Id. at 18–21

9
Statute’s strictures to PT/ATs but not other similarly situated healthcare providers is

not rationally related to a legitimate governmental interest.44 Finally, Plaintiffs

contend that the Statute violates principles of substantive due process because the

Statute itself is not rationally related to a legitimate governmental interest.45

B. The Board’s Contentions

The Board rejects the suggestion that the second sentence of the Statute

creates a “Referral Exception” for intra-entity referrals.46 The Board supports the

AG Opinion’s interpretation that PT/ATs can be members of a business entity along

with physicians but the referral prohibition in the Statute’s first sentence still applies

within that entity.47

With respect to the constitutionality of the Statute, the Board details the “broad

judicial deference” and “presumption of validity” that legislative enactments are

entitled to under the rational-basis test. 48 The Board then references the AG Opinion

to argue that the risk of increased healthcare costs due to unnecessary, profit-

motivated referrals is a rational basis for the Statute’s profit-sharing prohibition.49

The Board also notes the similar employment restriction imposed on massage

44
Id. at 21–27
45
Id. at 27–33.
46
Board’s Mot. at 8–11.
47
OA Tr. at 53:2–18.
48
Board’s Mot.at 11–28.
49
Id. at 25.

10
therapists, as well as a much more limited anti-kickback provision applicable to

optometrists,50 to suggest PT/ATs are not subject to disparate treatment.51 The Board

adds that the Statute’s meaning is plain, precluding Plaintiff’s vagueness challenge.52

C. The DPTA’s Contentions

Like the Board, the DPTA emphasizes the deference this Court owes to the

legislature’s policy choices.53 The DPTA then explains the risks that are allayed by

the Statute’s employment restriction. 54 Specifically, the DPTA is concerned that

permitting in-house referrals would “create a closed loop system where [physicians

who employ or partner with PT/ATs] control both supply and demand for physical

therapy services.”55 That would lead to an uncompetitive consolidation of PT/AT

services and would incentivize unnecessary referrals, according to the DPTA.

V. DISCUSSION

The Court’s discussion proceeds in two steps. As a preliminary issue, the

Court must settle the narrow interpretive dispute regarding the Statute’s second

50
See 24 Del. C. § 2113(a)(4) (prohibiting optometrists from “[s]olicit[ing] in person or through
an agent or agents for the purpose of selling ophthalmic materials or optometric services which
involves any form of kickback arrangement or where financial renumeration or payment in kind is
made to a nonpractitioner to induce referral business from that nonpractitioner”).
51
Board’s Mot. at 28–29.
52
Board’s Opp’n at 8–9.
53
DPTA Br. at 5–6.
54
Id. at 6–9.
55
Id. at 8.

11
sentence—i.e., whether Plaintiffs’ so-called Referral Exception exists. The Court

must then assess the Statute’s constitutionality. Since the equal-protection analysis

is dispositive in that regard, the Court does not offer dicta with respect to the parties’

vagueness and substantive due process contentions. 56

A. The Statute Does Not Permit Intra-Entity Referrals.

“The goal of statutory construction is to determine and give effect to

legislative intent.” 57 “The starting point is the language of the statute.”58 “When the

unambiguous language of the statute clearly reflects the legislature’s intent, the plain

meaning of the statutory language controls.”59 “A statute is ambiguous ‘if it is

reasonably susceptible of different constructions or interpretations’ or ‘if a literal

reading of the statute would lead to an unreasonable or absurd result not

contemplated by the legislature.’”60 Ambiguous statutory language is “interpreted

‘in a way that will promote its apparent purpose and harmonize it’ with the statutory

scheme.”61

56
See State ex rel. Smith v. Carey, 112 A.2d 26, 28 (Del. 1955) (“[A] court should refrain from
dicta upon constitutional questions.”).
57
DeMatteis v. RiseDelaware, Inc., 315 A.3d 499, 508 (Del. 2024) (quoting Eliason v. Englehart,
733 A.2d 944, 946 (Del. 1999)).
58
Protech Mins., Inc. v. Dugout Team, LLC, 284 A.3d 369, 375 (Del. 2022) (quoting Jud. Watch,
Inc. v. Univ. of Del., 267 A.3d 996, 1003–04 (Del. 2021)).
59
DeMatteis, 315 A.3d at 508 (citing Spielberg v. State, 558 A.2d 291, 293 (Del. 1989)).
60
Id. (quoting LeVan v. Indep. Mall, Inc., 940 A.2d 929, 933 (Del. 2007)).
61
Protech Mins., 284 A.3d at 375 (quoting Jud. Watch, Inc., 267 A.3d at 1003–04).

12
The parties agree with the AG Opinion with respect to most of the Statute’s

meaning. Specifically, both Plaintiffs and the Board acknowledge that the Statute’s

first sentence broadly prohibits financial entanglement between PT/ATs and

referring physicians—Plaintiffs call this the “Referral Prohibition.”62 Likewise, the

parties agree with the AG Opinion that a “properly organized business entity

recognized by Delaware law and comprised of physical therapists or athletic

trainers” need not exclusively have PT/ATs as members.63 The parties’ disagreement

lies in what the Statute allows once physicians and PT/ATs join in a business entity.

The Statute’s second sentence—the so-called “Referral Exception”—reads:

Nothing in this paragraph shall be construed as prohibiting the members
of any regularly and properly organized business entity recognized by
Delaware law and comprised of physical therapists or athletic trainers
from making any division of their total fees among themselves as they
determine by contract necessary to defray their joint operating costs[.]64

According to Plaintiffs, “[i]n enacting the Referral Exception, the General Assembly

clearly intended to allow physical therapists to be members of Delaware business

entities and receive patient referrals as long as they did not participate in a referral

62
Pls.’ Mot. at 15.
63
See AG Op. at *4; Pls.’ Mot. at 16; OA Tr. 53:7–11.
64
24 Del. C. § 2616(a)(8).

13
for profit scheme[65] prohibited by the Referral Prohibition.”66 The Court, however,

finds that Plaintiffs’ insertion of the italicized text is an unreasonable departure from

the Statute’s plain language.

Plaintiffs fail to explain how the ability to jointly operate an entity and defray

the attendant costs equates to a right to refer patients within that entity, or why the

legislature would create a “Referral Exception” without using the word “referral.”

When pressed at oral argument, Plaintiffs said that, in their view, the phrase “division

of their total fees” necessarily means “division of fees as a result of . . . the referral

from the referring person to the receiving physical therapist.”67 In support of that

interpretation, Plaintiffs suggested that the Statute’s second sentence must operate

as an exception to the first sentence, lest it be meaningless.68

The Court declines to sway so far from the Statute’s text in an effort to

interpret the Statute. 69 Instead, the Court finds that the unambiguous meaning of the

Statute is the same as that described in the AG Opinion more than two decades ago:

65
This is a reference to the anti-kickback portion of the Statute—i.e. the first clause of the Statute’s
first sentence. Plaintiffs do not directly challenge that clause in this litigation. Pls.’ Mot. at 15.
Plaintiffs’ contest is specifically about the second clause of the Statute’s first sentence, which
proscribes “profit[ing] by means of . . . valuable consideration such as wages . . . with any person
who referred a patient or with any relative or business associate of the referring person.” Id.
(quoting 24 Del. C. § 2616(a)(8)).
66
Id. at 16 (emphasis added).
67
OA Tr. at 22:9–14.
68
Id. at 23:14–24:2.
69
See Protech Mins., 284 A.3d at 375.

14
The Statute “does not preclude physical therapists and athletic trainers from making

arrangements to be members of any properly organized business entities recognized

by Delaware law in order to defray their joint operating costs provided that the

referral prohibitions in the first sentence of [the Statute] are not violated.”70

Put differently, the Statute’s second sentence guards against overly broad

interpretations of the Statute that would restrict PT/ATs from “divi[ding] . . . fees

received for professional services” even as a means of simply sharing expenses. For

example, under the Statute, PT/ATs and physicians could form a business entity to

lease a building and then divide their total fees as necessary to fairly allocate the

costs of rent, maintenance, and other shared overhead. But, if the physician in that

scenario referred patients to his or her business partner, that would then

impermissibly violate the Statute’s first sentence. 71

The second sentence’s status as an interpretive guidepost, rather than

substantive alteration to the first sentence’s strictures, is indicated by the beginning

of the second sentence—i.e., “[n]othing in this paragraph shall be construed.”

70
AG Op. at *4 (emphasis added).
71
The Court notes that unless the referral prohibition applied in that circumstance, seemingly
benign cost-sharing arrangements could be susceptible to abuse. For example, if a PT/AT and a
physician divided their joint operating cost in proportion to their respective revenues, the physician
would be incentivized to increase the PT/AT’s revenue so that the PT/AT would pay a greater share
of the costs. That situation could yield the same sort of financially motivated referrals that the
legislature designed the Statute to prevent.

15
Plaintiffs belittle the difference between “an exception” and “a clarification,”72 but

the Court considers that difference to be important. The legislature’s decision to

phrase the Statute’s second sentence as a limitation on how the first sentence should

be construed indicates that the legislature did not intend to deviate from the express

language of the first sentence and, instead, only intended to deter misinterpretations.

Accordingly, the Court will not now use the Statute’s second sentence to create a

sweeping exception to the first sentence’s otherwise strict rule. For those reasons,

the Court adopts the interpretation of the Statute laid out in the AG Opinion.

B. The Statute’s Application to PT/ATs, but not Similarly Situated
Healthcare Providers, is Unconstitutionally Arbitrary.

The Equal Protection Clause of the Fourteenth Amendment provides: “No

State shall . . . deny to any person within its jurisdiction the equal protection of the

laws.”73 “In any equal protection case, the threshold inquiry is the standard of review

to be applied to the government action in question.” 74 That “often-dispositive”

inquiry turns on whether the burdened class is “suspect” or not.75 Here, the parties

72
Pls.’ Opp’n at 5.
73
U.S. CONST. amend. XIV, § 1.
74
State v. Topolski, 303 A.3d 338, 356 (Del. Super. 2023) (quoting Turnbull v. Fink, 668 A.2d
1370, 1379 (Del. 1995)).
75
Id. at 357 (citations omitted). Inherently suspect classifications include “race, color, religion,
and ancestry.” See Burroughs v. State, 304 A.3d 530, 543 (Del. 2023) (citing Turnbull, 668 A.2d
at 1379–80).

16
agree that PT/ATs are not members of a suspect class and, therefore, the rational-

basis standard applies. 76

“The rational-basis standard is highly deferential—it clothes a statute in a

‘strong presumption of validity,’ requiring plaintiffs to prove the absence of ‘a

rational relationship between the disparity of treatment and some legitimate

governmental purpose.’” 77 “[I]f there is any reasonably conceivable state of facts

that could provide a rational basis for the classification,” the equal-protection

challenge will fail.78 But while the rational-basis test’s teeth may be small, they are

still teeth. 79 In other words, “rational basis review, while highly deferential, is still

substantive review.”80

Here, Plaintiffs have carried their burden to show that PT/ATs are treated

differently than similarly situated individuals. The healthcare providers regulated

76
See Pls.’ Mot. at 21.
77
Burroughs, 304 A.3d at 544 (quoting Heller v. Doe, 509 U.S. 312, 319–20 (1993)).
78
Id. (quoting Heller, 509 U.S. at 320).
79
See Topolski, 303 A.3d at 365 (“The Third Circuit . . . has ‘repeatedly warned that rational basis
review is by no means toothless—a necessary corollary to and implication of rationality as a test
is that there will be situations where proffered reasons are not rational.’” (cleaned up) (quoting
Heffner v. Murphy, 745 F.3d 56, 79 (3d Cir. 2014))).
80
Id.

17
by Title 24 include: podiatrists, 81 chiropractors,82 dentists, 83 nurses, 84 occupational

therapists, 85 optometrists,86 pharmacists,87 PT/ATs, 88 mental health professionals,89

psychologists, 90 speech/language pathologists, 91 dieticians,92 and massage

therapists. 93 The Board did not suggest, and the Court has no reason to find, that

those groups are not similarly situated for purposes of restricting financially

motivated referrals.94 Yet, of those groups, only PT/ATs and massage therapists are

subject to an employment restriction like that found in the Statute.95 Accordingly,

81
24 Del. C. §§ 500–22.
82
Id. §§ 700–19.
83
Id. §§ 1100–95.
84
Id. §§ 1901–38.
85
Id. §§ 2001–21.
86
Id. §§ 2100–23.
87
Id. §§ 2501–51.
88
Id. §§ 2601–21.
89
Id. §§ 3001–64.
90
Id. §§ 3501–22.
91
Id. §§ 3701–20.
92
Id. §§ 3801–12.
93
Id. §§ 5301–21.
94
Stradford v. Sec’y Pa. Dep’t of Corr., 53 F.4th 67, 74 (3d Cir. 2023) (“Persons are similarly
situated under the Equal Protection Clause when they are alike ‘in all relevant aspects.’” (quoting
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992))); cf. OA Tr. 59:7–9 (The Board: “I can point to no
meaningful distinction between an occupational therapist and a physical therapist[.]”).
95
See id. §§ 2616(a)(8), 5313(a)(7).

18
the determinative question is whether the disparate treatment of PT/ATs 96 is

rationally related to a legitimate government interest. 97

The Court’s analysis of that question is necessarily limited in this instance.

That is because no conceivable basis for the disparate treatment has been offered for

the Court to analyze. Instead, the Board relied exclusively on the deference owed to

the legislature under a rational basis review. At oral argument, the Court explicitly

asked the Board what rational basis exists to apply an employment restriction to

PT/ATs but not occupational therapists.98 The Board responded: “Well, it’s an issue

of social policy and the general assembly made that determination[.] [I]n terms of

why you would treat an OT or occupational therapist [differently] than a PT under

the legislative scheme. I can’t answer that.” 99

The Court will not belabor the uncontroversial point that ipse dixit is not

enough to satisfy rational basis review. If it were, the rational-basis test would be

no test at all, and, in effect, the Equal Protection Clause would not apply to non-

suspect classes. In other words, if the legislature’s mere decision to enact a law

96
As noted, the Court is not called upon to assess the constitutionality of 24 Del. C. § 5313(a)(7)
in this litigation, so the Court offers no comment on whether there might be a rational basis for
that provision. See supra note 1. The Court also notes that the burdens imposed on massage
therapists do not mean PT/ATs are not subject to disparate treatment. See Parkell v. Senato, 2016
WL 4059640, at *8 (D. Del. July 26, 2016) (“The Equal Protection Clause of the Fourteenth
Amendment directs that all similarly situated individuals be treated alike.” (emphasis added)).
97
Burroughs, 304 A.3d at 544 (quoting Heller, 509 U.S. at 319–20).
98
OA Tr. at 60:11–15.
99
Id. at 60:16–20.

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constitutes evidence of a rational basis for that law, no enactment could ever fail the

rational-basis test. The law holds otherwise. 100

The Court stresses that it does not discredit the pro-competitive, anti-collusive

rationales underpinning the Statute generally. Whether and how to address those

concerns is a policy decision only the legislature can make. But whatever policy the

legislature adopts, it must apply that policy equally or not at all.

In this instance, the legislature applied one policy to PT/ATs and a different

policy to almost every other healthcare provider regulated under Title 24. Since

there is no rational basis for that distinction, the Court has a constitutional duty to

hold that 24 Del. C. § 2616(a)(8) runs afoul of the Fourteenth Amendment’s Equal

Protection Clause and is, therefore, invalid.

VI. CONCLUSION

24 Del. C. § 2616(a)(8) arbitrarily imposes restrictions on physical therapists

and athletic trainers that are not imposed on similarly situated healthcare providers.

Hence, 24 Del. C. § 2616(a)(8) violates the Fourteenth Amendment’s Equal

Protection Clause. The Court is therefore constrained to GRANT Plaintiffs’ Motion

for Summary Judgment and DENY the Board’s Motion for Summary Judgment.

IT IS SO ORDERED.

_____ _____ ____________
Sheldon K. Rennie, Judge
100
See, e.g., Topolski, 303 A.3d at 365.

20