H. B. 2309
(By Delegates Morgan, Martin, Argento,
Beach, Eldridge, Andes and C. Miller)
[Introduced February 12, 2009; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §30-28-1, §30-28-2, §30-28-3, §30-28-4,
§30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10,
§30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15,
§30-28-16, §30-28-17 and §30-28-18 of the Code of West
Virginia, 1931, as amended, all relating to the practice of
occupational therapy; providing definitions; setting forth the
scope of practice of occupational therapy; prohibiting
practice or use of titles unless licensed; removing the
requirement for referral by a physician or other health care
practitioner; setting forth supervision requirements for
assistants and aides; clarifying qualifications to serve as a
board member; providing that board members are not civilly
liable for acts or omissions in performance of duties in good
faith; setting forth powers and duties of the board; providing
exemptions from licensure; clarifying qualifications for
licensure; setting forth examination requirements; providing for licensure for applicants from other jurisdictions;
clarifying conditions of limited permits and temporary
licenses; providing for renewal, suspension and revocation of
licenses; providing for refusal to renew licenses; providing
for reinstatement of lapsed licenses; setting forth complaint
procedures; establishing grounds for disciplinary actions;
providing for hearing procedures and rights of appeal;
providing rulemaking authority; providing for criminal
investigations, proceedings and penalties; and establishing
that a single act may constitute evidence of practice.
Be it enacted by the Legislature of West Virginia:
That §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5,
§30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11,
§30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17
and §30-28-18 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-1. Short title.
This article
shall be is known and may be cited as the "West
Virginia Occupational Therapy Practice Act."
§30-28-2. Declaration of purpose.
The West Virginia Occupational Therapy Practice Act is enacted
to safeguard the public health, safety and welfare, and to assure
the availability of high quality occupational therapy services to persons in need of
such services. It is the purpose of this
article to provide for the regulation of
persons presenting
themselves as an occupational therapist or as an occupational
therapy assistant the practice of Occupational Therapy.
§30-28-3. Definitions.
In this article, the following terms
shall have the
respective
meanings provided in this section:
unless the context clearly
requires a different meaning
(a) "Association" means the West Virginia Occupational Therapy
Association.
(b) "Board" means the West Virginia Board of Occupational
Therapy.
(c) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity doing business in the State of
West Virginia.
(d) "Client-related tasks" means tasks which are related to
treatment and which, when performed by an occupational therapy
aide, must be performed under direct supervision, including routine
transfers, routine care of a patient's personal needs during the
course of treatment, execution of an established routine activity
or exercise, and assisting the supervising occupational therapist
or occupational therapy assistant as directed during the course of
treatment.
(e) "Direct supervision" means the actual physical presence of
a licensed supervising occupational therapist or occupational
therapy assistant, and the specific delineation of tasks and
responsibilities for personally reviewing and interpreting the
results of any habilitative or rehabilitative procedures conducted
by the limited permit holder, occupational therapy student, or
aide. Direct supervision includes direct close supervision and
direct continuous supervision.
(f) "Direct close supervision" means the licensed supervising
occupational therapist or occupational therapy assistant is in the
building and has daily direct contact at the site of work.
(g) "Direct continuous supervision" means the licensed
supervising occupational therapist or occupational therapy
assistant is physically present and in direct line of sight of the
occupational therapy student or aide.
(h) "General supervision" means initial direction and periodic
inspection of the activities of a licensed occupational therapist
assistant by the supervising licensed occupational therapist, but
does not necessarily require constant physical presence on the
premises while the activities are performed.
(c) (i) "License" means a valid and current
certificate of
registration license issued by the
West Virginia Board of
Occupational Therapy board under the provisions of this article.
(d) "Occupational therapy" means the evaluation, treatment and aid in diagnosis of problems interfering with functional
performance in persons impaired by physical illness or injury,
emotional disorder, congenital or developmental disability, or the
aging process in order to achieve optimum functioning and for
prevention and health maintenance. Specific occupational therapy
services include, but are not limited to, activities of daily
living (ADL); the design, fabrication and application of splints;
sensorimotor activities; the use of specifically designed crafts;
guidance in the selection and use of adaptive equipment;
therapeutic activities to enhance functional performance;
prevocational evaluation and training; and consultation concerning
the adaption of physical environments for the handicapped. These
services are provided to individuals or groups through medical,
health, educational and social systems and for the maintenance of
health through these systems.
(j) "Nonclient-related tasks" means tasks which are not
related to treatment, including clerical and maintenance
activities, housekeeping, preparation of the work area or
equipment, transporting patients, ordering supplies and assisting
in the construction of splints and adaptive equipment, and which,
when performed by an occupational therapy aide, must be performed
under general supervision.
(e) (k) "Occupational Therapist" means a person licensed
by
the board under the provisions of this article to
engage in the practice
of occupational therapy.
as defined in this article, and
whose license is in good standing
(f) (l) "Occupational Therapy Assistant" means a person
licensed
by the board under the provisions of this article to
assist in the practice of occupational therapy under the general
supervision of
the an licensed Occupational Therapist.
and whose
license is in good standing. As contained in this section, the
term "general supervision" means initial direction and periodic
inspection of the actual activities; however, the supervising
licensed occupational therapist need not always be physically
present or on the premises when the licensed assistant is
performing services
(g) (m) "Occupational Therapy Aide" means a person who
assists
in the practice of occupational therapy, who works may provide
nonclient-related tasks under general supervision, or specifically
delegated client-related tasks, subject to the conditions set forth
in subsection (f), section four of this article, under
the direct
supervision of an Occupational Therapist
and the or an Occupational
Therapy Assistant,
and whose activities require an understanding of
occupational therapy but do not require professional or advanced
training in the basic anatomical, biological, psychological and
social sciences involved in the practice of occupational therapy.
As contained in this section, the term "direct supervision" shall
mean the actual physical presence of a licensed occupational therapist or licensed occupational therapy assistant in accordance
with the provisions of this article.
(n) "The practice of occupational therapy" means the
therapeutic use of everyday life activities or occupations to
address the physical, cognitive, psychosocial, sensory, and other
aspects of performance of individuals or groups of individuals,
including those who have or are at risk for developing an illness,
injury, disease, disorder, condition, impairment, disability,
activity limitation or participation restriction, to promote
health, wellness and participation in roles and situations in home,
school, workplace, community and other settings.
§30-28-4. Scope of practice; license and supervision requirements.
required; treatment by referral only; limitation on
practice by assistant
(a) The scope of practice of occupational therapy includes,
but is not limited to:
(1) Methods or strategies selected to direct the process of
interventions such as:
(A) Establishment, remediation, or restoration of a skill or
ability that has not yet developed or is impaired;
(B) Compensation, modification, or adaptation of activity or
environment to enhance performance;
(C) Maintenance and enhancement of capabilities without which
performance in everyday life activities would decline;
(D) Health promotion and wellness to enable or enhance
performance in everyday life activities; and
(E) Prevention of barriers to performance, including
disability prevention;
(2) Evaluation of factors affecting activities of daily living
(ADL), instrumental activities of daily living (IADL), education,
work, play, leisure and social participation, including:
(A) Client factors, including body functions (such as
neuromuscular, sensory, visual, vestibular, perceptual and
cognitive) and body structures (such as cardiovascular, digestive,
integumentary and genitourinary systems);
(B) Habits, routines, roles and behavior patterns;
(C) Cultural, physical, environmental, social and spiritual
contexts and activity that affect performance; and
(D) Performance skills, including motor, process and
communication/interaction skills;
(3) Interventions and procedures to promote or enhance safety
and performance in activities of daily living (ADL), instrumental
activities of daily living (IADL), education, work, play, leisure
and social participation, including:
(A) Therapeutic use of occupations, exercises, and activities;
(B) Training in self-care, self-management home management and
community/work reintegration;
(C) Development, remediation, or compensation of physical, cognitive, neuromuscular, sensory functions, visual, vestibular and
behavioral skills;
(D) Therapeutic use of self, including one's personality,
insights, perceptions and judgments, as part of the therapeutic
process;
(E) Education and training of individuals, including family
members, care givers and others;
(F) Care coordination, case management and transition
services;
(G) Consultative services to groups, programs, organizations
or communities;
(H) Modification of environments (home, work, school or
community) and adaptation of processes, including the application
of ergonomic principles;
(I) Assessment, design, fabrication, application, fitting and
training in assistive technology, adaptive devices, orthotic
devices and training in the use of prosthetic devices;
(J) Assessment, recommendation and training in techniques to
enhance functional mobility, including wheelchair management;
(K) Community mobility and re-entry;
(L) Management of feeding, eating and swallowing to enable
eating and feeding performance; and
(M) Application of physical agent modalities, and use of a
range of specific therapeutic procedures (such as wound care management and techniques to enhance sensory, perceptual and
cognitive processing) to enhance performance skills.
(a) (b) No person may
engage in the practice of occupational
therapy or present
herself or himself as an occupational therapist
or occupational therapy assistant in this state,
or use the words
"occupational therapist," "licensed occupational therapist,"
"occupational therapist registered," "occupational therapy
assistant," "licensed occupational therapy assistant," "certified
occupational therapy assistant," or "occupational therapy aide," or
the letters "O.T.," "L.O.T.," "O.T.R.," "O.T.A.," "L.O.T.A.,"
"C.O.T.A.," or any other words, letters, abbreviations or insignia
indicating or implying that he or she is an occupational therapist
or occupational therapy assistant, unless she or he
is licensed
holds a valid, current license issued in accordance with the
provisions of this article,
which has not expired nor been
suspended or revoked.
(c) No
firm, partnership, association or corporation business
entity may advertise or otherwise offer to provide or convey the
impression that it is providing occupational therapy unless an
individual holding a current valid license or permit under this
article
is or will at the appropriate time be rendering renders the
occupational therapy services to which reference is made.
(b) A licensed occupational therapist shall not treat persons
by occupational therapy or otherwise other than referral by a licensed physician or surgeon, psychologist or psychiatrist,
dentist, osteopathic physician or surgeon, or chiropodist or
podiatrist. A Licensed Occupational Therapy Assistant shall not
practice occupational therapy other than in accordance with the
definitional requirements of an occupational therapy assistant as
specified in subdivision (f), section three of this article.
(d) An occupational therapy assistant may assist in the
practice of occupational therapy under the general supervision of
an occupational therapist.
(e) An occupation therapist or an occupational therapy
assistant may delegate nonclient-related tasks to an occupational
therapy aide only under the following conditions:
(1) The occupational therapy aide functions under the general
supervision of either the occupational therapist or the
occupational therapy assistant who is under the general supervision
of the occupational therapist; and
(2) The occupational therapy aide provides only tasks for
which he or she has been trained and has demonstrated competence.
(f) An occupation therapist or an occupational therapy
assistant may delegate specifically selected client-related tasks
to an occupational therapy aide only under the following
conditions:
(1) The occupational therapy aide functions under the direct
continuous supervision of either the occupational therapist or the occupational therapy assistant who is under the general supervision
of the occupational therapist;
(2) The occupational therapy aide provides only tasks for
which he or she has been trained and has demonstrated competence;
(3) The outcome anticipated for the delegated task is
predictable;
(4) The client and the environment are stable and will not
require judgment, interpretation or adaptation by the occupational
therapy aide; and
(5) The supervising occupational therapist is responsible for
the tasks delegated to the occupational therapy aide.
§30-28-5. West Virginia Board of Occupational Therapy;
establishment; terms of office; vacancies; removal of
members; meetings; expense reimbursement and
compensation; civil liability; special revenue
account; fines deposited in general revenue.
(a)
There is hereby established The West Virginia Board of
Occupational Therapy
is continued, and which shall consist consists
of five members appointed by the Governor
by and with the advice
and consent of the Senate,
who meet the following qualifications:
(1) The members
of the board shall be citizens of the United
States and residents of this state for at least one year prior to
their
appointment appointments.
(2) Three members shall
have been engaged in rendering occupational therapy services to the public by teaching or
performing research in occupational therapy for at least three
years immediately preceding their appointment or shall have been a
registered occupational therapist for at least three years
immediately preceding their appointment be licensed Occupational
Therapists.
(3) One
such member
so appointed shall
have been engaged in
rendering occupational therapy services as a registered
occupational therapy assistant for at least three years immediately
preceding his appointment. Such appointees shall at all times be
holders of valid licenses for the practice of occupational therapy
in the state. Except for the members of the first board appointed
from the list submitted by the association, all of such members
shall fulfill the requirements for licensure under this article be
a licensed Occupational Therapy Assistant.
(4) One member shall be
appointed by the Governor to represent
the public a citizen with an interest in the rights of consumers of
health care services.
(5) The Occupational Therapist and Occupational Therapy
Assistant members shall have been engaged in rendering occupational
therapy services to the public, teaching, consulting or conducting
research in occupational therapy for at least three years
immediately preceding their appointments.
(6) No board member may serve as an officer of the West Virginia Occupational Therapy Association concurrently with his or
her service on the board.
(b)
The board shall, within ninety days after the effective
date of this article, be selected as provided in subsection (a).
The members of the first board shall serve the following terms:
Two members for a term of one year, two members for a term of two
years, and one member for a term of three years. At the expiration
of the above terms, board members shall be appointed in the same
manner as the initial appointment for a period of three years, but
no person shall be appointed to serve more than two consecutive
terms. Members will be appointed for three-year terms, which are
staggered in accordance with the initial appointments under prior
enactment of this article. No member may serve more than two
consecutive three-year terms. Members may serve until their
successors are appointed and qualified.
(c) Terms shall begin on the first day of the calendar year
and end on the last day of the calendar year or until successors
are appointed.
except for the first members who shall serve
through the last calendar day of the year in which they are
appointed before commencing the terms prescribed by this section
(d) When a vacancy occurs
on the board other than by the
expiration of a term, the
board Governor shall appoint a
member a
qualified person to fill
the vacancy for the unexpired term,
which
does not count toward the two-term limit provided in subsection (b) of this section.
(e) The Governor, after notice and opportunity for hearing by
the board, may remove any member of the board for neglect of duty,
incompetence, revocation or suspension of the member's license, or
other dishonorable conduct.
After such removal, or vacancy due to
other reasons, the board shall appoint a successor to the unexpired
term. The successor shall meet the qualifications of board members
as established in subsection (a) of this section.
(f) The board shall
meet during the first month of the
calendar year to elect from its membership a
chairman chairperson
and
a secretary-treasurer. A majority of the members
of serving on
the board
shall constitute constitutes a quorum
and shall meet
during the first month of the calendar year to select a chairman.
At least one additional meeting shall be held before the end of the
calendar year. Further meetings may be convened at the call of the
chairman chairperson or on the request of any three board members.
(g) Members
may be reimbursed for all reasonable and necessary
expenses actually incurred in the performance of their duties.
Such members may be paid reasonable compensation not to exceed
fifty dollars per day for days spent in performance of their duties
are entitled to compensation and expense reimbursement in
accordance with article one of this chapter.
(h)
Members are not civilly liable for acts or omissions in
the performance in good faith of his or her duties as prescribed by law.
(i) The board shall deposit all moneys,
except fines, paid to
the board shall be accepted by a person designated by the board and
deposited
by her/him with the treasurer of the state and credited
to an account to be known as in a separate special revenue fund in
the State Treasury designated the "West Virginia Board of
Occupational Therapy",
which fund is continued. The compensation
of and the reimbursement of all reasonable and necessary expenses
actually incurred by the members of the board and all other costs
and expenses incurred by the board in the administration of this
article shall be paid from such fund, and no part of the state's
General Revenue Fund shall be expended for such purpose.
The board
shall use this fund for the administration of this article. Except
as may be provided in article one of this chapter, the board shall
retain the amounts in the special revenue account from year to
year. No compensation or expense incurred under this article is a
charge against the General Revenue Fund.
(j) The board shall deposit any administrative fine imposed
pursuant to this article into the General Revenue Fund of the State
Treasury.
§30-28-6. Powers and duties of board.
(a) The board shall administer, coordinate and enforce the
provisions of this article.
(b) The board shall have the responsibility of evaluating the qualifications of applicants for licensure under this article.
(c) The board shall determine that the applicant successfully
completed the academic requirements of an educational program in
occupational therapy. For an occupational therapist, such a
program shall be accredited by the American medical association in
collaboration with the American occupational therapy association.
For an occupational therapy assistant, such program shall be
approved by the American occupational therapy association.
(d) The board shall prepare or approve all examinations of
applicants for license at least twice a year, determine the
qualifications and authorize the issuance of licenses to qualified
occupational therapists and occupational therapy assistants; renew,
suspend or revoke licenses in the manner provided.
(e) The board shall appoint representatives or contract with
qualified testing services to conduct or supervise examinations and
designate time and place for examining applicants.
(f) The board shall establish standards for the continuing
professional competence of persons subject to this article.
(g) The board shall establish fees and maintain a register of
all persons holding a license and a record of all inspections made.
(h) The board shall conduct such hearings and keep such
records and minutes as are necessary to carry out its functions.
It shall provide reasonable public notice to the appropriate
persons of the time and place of all hearings authorized under this article in such a manner and at such times as it may determine by
its rules and regulations.
(i) The board shall adopt rules and regulations relating to
professional conduct to carry out the policy of this article
including, but not limited to, regulations relating to professional
licensure and the establishment of ethical standards of practice.
Any such rules and regulations so adopted shall be subject to the
provisions of chapter twenty-nine-a of this code.
(j) The board may investigate complaints and allegations
concerning the violation of provisions of this article and may
examine witnesses in connection with these investigations.
(k) The board shall make an annual report to the Governor,
which report shall contain an account of duties performed, actions
taken and appropriate recommendations.
(l) The board is empowered to prescribe and publish reasonable
application fees. Such fees shall be commensurate with the cost of
fulfilling the duties of the board as defined by this article.
(a) The board has all the powers and duties set forth in this
article, by legislative rule, in article one of this chapter and
elsewhere in law.
(b) The board shall:
(1) Hold meetings and conduct hearings;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for a
license or permit;
(5) Propose rules for legislative approval relating to
professional conduct and ethical standards of practice;
(6) Communicate disciplinary actions to relevant state and
federal authorities, the National Board for Certification in
Occupational Therapy (NBCOT), the American Occupational Therapy
Association (AOTA) and other applicable authorities when public
safety is at risk;
(7) Maintain an office and hire, discharge, establish the job
requirements and fix the compensation of employees and contracted
employees necessary to enforce the provisions of this article;
(8) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(9) Conduct disciplinary hearings of persons regulated by the
board;
(10) Determine disciplinary action and issue orders;
(11) Institute appropriate legal action for the enforcement of
the provisions of this article;
(12) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(13) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(14) Establish by legislative rule the continuing education
and competency requirements for licensees; and
(15) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article.
(c) The board may:
(1) Approve third parties to administer the examinations
required under the provisions of this article;
(2) Establish by legislative rule the fees charged under the
provisions of this article;
(3) Issue, renew, deny, suspend, revoke or reinstate licenses
and permits;
(4) Sue and be sued in its official name as an agency of this
state;
(5) Confer with the Attorney General or his or her assistants
in connection with legal matters and questions; and
(6) Taking all other actions necessary and proper to
effectuate the purposes of this article.
§30-28-7.
License required; Persons and practices not affected.
(a) No person may hold himself out as an occupational
therapist or an occupational therapy assistant in this state unless
he is licensed in accordance with the provisions of this article.
(b) Nothing in this article shall be construed as preventing or restricting This article does not prevent or restrict the
practice, services or activities of:
(1) Any person licensed under any other law of this state,
including physicians, nurses, clinical psychologists, speech
pathologists and audiologists, dentists and physical therapists,
from engaging in the profession or occupation performing services
within the authorized scope of practice for which he or she is
licensed;
(2) Any person employed as an occupational therapist or an
occupational therapy assistant by the government of the United
States, if such a person provides occupational therapy solely under
the direction or control of the organization by which he is
employed;
(3) (2) Any person pursuing a course of study leading to a
degree or certificate in Occupational Therapy in from an accredited
educational program which is accredited by the American
Occupational Therapy Association in collaboration with the American
Medical Association, or in an educational program approved by the
American Occupational Therapy Association, and if such the person
acts under the supervision of a clinical supervisor or instructor
of the accredited education program and is designated by a title
which clearly indicates his or her status as a student; or trainee
or
(4) (3) Any person fulfilling the supervised field work fieldwork experience requirements of section eight of this article.
, if such activities and services constitute a part of the
experience necessary to meet the requirements of section eight of
this article.
(5) Any person performing occupational therapy services in
this state not licensed under this article, if such services are
performed for no more than ninety consecutive days a calendar year
in association with an occupational therapist licensed under this
article, if such person meets the qualification for license under
this article, except for the qualifying examination; or
(6) Any person performing occupational therapy services in
this state not licensed under this article, if such services are
performed for no more than ninety consecutive calendar days in a
calendar year and if:
(A) Such a person is licensed under the law of another state
which has licensure requirements equivalent to the requirements of
this article; or
(B) Such a person meets the requirements for certification as
an occupational therapist registered (OTR) or a certified
occupational therapy assistant (COTA) established by the American
occupational therapy association.
§30-28-8. Qualifications of applicants for license.
(a) To be eligible for a license to engage in the practice of
occupational therapy, the applicant must:
(1) Be of good moral character;
(2) Have successfully completed the academic requirements of
an educational program in occupational therapy recognized by the
board, with concentration in biologic or physical science,
psychology and sociology, and with education in selected manual
skills. For an occupational therapist, such a program shall be
accredited by the American medical association in collaboration
with the American occupational therapy association. For an
occupational therapy assistant, such program shall be approved by
the American occupational therapy association for Occupational
Therapists or Occupational Therapy Assistants that is accredited by
the American Occupational Therapy Association's Accreditation
Council for Occupational Therapy Education (ACOTE) or its
predecessor organizations;
(3) Have successfully completed a period of supervised field
work fieldwork experience at a required by the recognized
educational institution or a training program approved by the
educational institution where she or he met the academic
requirements; For an occupational therapist, a minimum of six
months of supervised field work experience is required. For an
occupational therapy assistant, a minimum of two months of
supervised field work experience is required; and
(4) Have passed an examination conducted approved by the
board; as provided in section six of this article. and
(5) Have filed an application on forms provided by the board.
(b) An applicant who has practiced as an occupational therapy
assistant for four years and has successfully completed the
supervised field work experience required in subdivision (3) of
subsection (a) may take the examination to be licensed as an
occupational therapist without meeting the educational requirements
for occupational therapists made otherwise applicable under
subdivision (2) of subsection (a).
§30-28-9. Examination.
(a) A person applying for licensure shall demonstrate her or
his eligibility in accordance with who has met the requirements of
subsections (1), (2) and (3), section eight of this article, and
shall may make application for examination. to the board at least
thirty days prior to the date of examination upon a form and in
such a manner as the board shall prescribe. Such application shall
be accompanied by the fee prescribed by section fifteen of this
article, which fee shall not be refunded. A person who fails an
examination may make reapplication three times for reexamination
accompanied by the prescribed fee
(b) Each applicant for licensure under this article shall be
examined by the board in by written or computerized examination to
test his or her knowledge of the basic and clinical sciences
relating to occupational therapy, and occupational therapy theory
and practice, including the professional skills and judgment of the applicant in the utilization of occupational therapy techniques and
methods, and such other subjects as the board may deem useful
require to determine the fitness for practice of the applicant.
The examination may be administered by the National Board for
Certification in Occupational Therapy, Inc. (NBCOT) or another
nationally recognized credentialing body as approved by the board.
(c) Applicants for licensure shall be examined at a time and
place and under such supervision as the board may determine.
Examinations shall be given at least twice each year at such places
as designated by the board, and the board shall give reasonable
statewide public notice of such examinations in accordance with its
rules at least sixty days prior to their administration, and shall
notify by mail all applicants for examination of the time and place
of their administration.
(d) Applicants may obtain their examination scores and may
review their papers in accordance with such rules as the board may
establish.
§30-28-10.
Waiver of requirements for licensure Licensees from
other jurisdictions; internationally educated
applicants.
(a) The board shall waive the examination and grant a license
to any person certified prior to the effective date of this article
as an occupational therapist registered (OTR) or as a certified
occupational therapy assistant (COTA) by the American occupational therapy association. The board shall waive the examination and
grant a license to any person so certified after the effective date
of this article, if the board considers the requirements for such
certification to be equivalent to the requirements for licensure in
this article.
(b) (a) The board may waive the examination and grant a
license to any applicant who shall present presents proof of
current licensure as an occupational therapist or an occupational
therapy assistant in another state, the District of Columbia or
territory of the United States, jurisdiction which requires
standards for licensure considered by the board or by a board
approved credentialing agency to be equivalent to the requirements
for licensure in this article state and who meets the requirements
of section eight of this article.
(b) The board may grant a license to an applicant who was
educated outside of the United States or its territories in an
educational program whose standards are determined by the board or
by a board approved credentialing agency to be equivalent to the
standards required for licensure in this state and who meets the
requirements of section eight this article.
§30-28-11. Issuance of a license
, limited permit and temporary
license.
(a) The board shall issue a license to any person who meets
the requirements of this article upon payment of the license fee prescribed.
(b) The board shall may issue a limited permit to persons who
have completed the education and fieldwork experience requirements
of this article. This permit shall allow the person to The holder
of a limited permit may practice occupational therapy only under
the direct close supervision of an occupational therapist who holds
a current license in this state. and shall be A limited permit is
not renewable, and is valid until the date on which the results of
the next qualifying examination have been made public. This
limited permit shall not be renewed if the applicant has failed the
examination
for ninety days: Provided, That the limited permit
expires immediately if the holder receives notification of a
failing score on the examination
.
(c) The board shall may issue a limited permit temporary
license to an occupational therapist or an occupational therapy
assistant who has graduated from an occupational therapy curriculum
of a foreign country or of a territory or possession of the United
States. Such program shall be equivalent to academic requirements
for graduates of occupational therapy programs in the United States
and shall be satisfactory to the board is licensed and in good
standing in a jurisdiction whose standards are determined by the
board or by a board approved credentialing agency to be equivalent
to the standards required for licensure in this state and who has
submitted an application and the required fee. This permit shall allow the person to The holder of a temporary license may practice
occupational therapy only under the supervision of a licensed
occupational therapist in accordance with the provisions of this
article. A limited permit shall be temporary license is
nonrenewable, and is valid for one year at which time the holder
shall apply to the board for licensure. A limited permit shall
become null and void if the holder fails to pass a licensing
examination thirty days.
(d) Any person who is issued a license as an occupational
therapist under the terms of this article may use the words
"occupational therapist registered," "licensed occupational
therapist," or "occupational therapist," or he may use the letters
"O.T.R.," "L.O.T.," or "O.T.," in connection with his name or place
of business to denote registration hereunder.
(e) Any person who is issued a license as an occupational
therapy assistant under the terms of this article may use the words
"occupational therapy assistant," "licensed occupational therapy
assistant," or "certified occupational therapy assistant" or may
use the letters "O.T.A.," "L.O.T.A.," or "C.O.T.A.," in connection
with his name or place of business to denote his registration
hereunder.
(f) (d) The board shall prescribe the form of licenses. and
each license shall be conspicuously displayed by The licensee shall
conspicuously display the license or a copy of the license at his or her principal place of practice, or, in the case of a license to
act as an occupational therapy assistant, at his place of
employment. The licensee shall produce the original license upon
the request of the board.
§30-28-12. Renewal of license;
renewal of lapsed license;
suspension, revocation and refusal to renew;
reinstatement of revoked license.
(a) All licenses under this article shall be subject to
renewal and shall expire unless renewed in the manner prescribed by
the rules and regulations of the board upon the payment of a
renewal fee. The board may establish additional requirements for
license renewal which provide evidence of continued competency.
The board may provide for late renewal of a license upon payment of
a late renewal fee. Any license which has not been restored within
five years following its expiration may not be renewed, restored or
reissued thereafter. The holder of such a canceled license may
apply for and obtain a valid license only upon compliance with all
relevant requirements for issuance of a new license Licenses may
be renewed biennially upon documentation of required continuing
education and payment of a renewal fee as set forth in legislative
rule.
(b) A suspended license is subject to expiration and may be
renewed as provided in this section, but such renewal shall not
entitle the licensee, while the license remains suspended and until it is reinstated, to engage in the licensed activity or in other
conduct or activity in violation of the order or judgment by which
the license was suspended. If a license revoked on disciplinary
grounds is reinstated, the licensee, as a condition of
reinstatement, shall pay the renewal fee and any late fee that may
be applicable A license which has lapsed may be renewed within one
year of its expiration date in the manner set forth in this section
and in legislative rule. After the expiration of one year, a
license may be renewed only by complying with the requirements
relating to the issuance of an original license.
(c) The board may suspend, revoke or refuse to renew a license
for any reason which would justify the denial of an application for
initial licensure.
(d) The board may consider the reinstatement of a license
which has been revoked upon a showing that the applicant can resume
practicing with reasonable skill and safety.
§30-28-13.
Suspension and revocation of license; refusal to renew
Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion and shall, upon the
written complaint of any person, cause an investigation to be made
to determine whether grounds exist for disciplinary action under
this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.
(c) The board may cause an investigation to be made into the
facts and circumstances giving rise to the complaint and any person
regulated by this article has an affirmative duty to assist the
board, or its authorized representative, in the conduct of its
investigation.
(d) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated any provision of this
article or rules promulgated pursuant to this article.
(e) Upon a finding that probable cause exists that the
licensee or permittee has violated any provision of this article or
rules promulgated pursuant to this article, the board may enter
into a consent decree or hold a hearing for the suspension or
revocation of the license or permit or the imposition of sanctions
against the licensee or permittee. The hearing shall be held in
accordance with the provisions of section fourteen of this article.
(f) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(g) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(a) (h) The board shall may, after notice and opportunity for hearing, have the power to deny or refuse to renew, suspend or
revoke the license of, or impose probationary conditions upon or
take disciplinary action against, any licensee who has been guilty
of unprofessional conduct which has endangered or is likely to
endanger the health, welfare or safety of the public. Such
unprofessional conduct includes for any of the following reasons:
(1) Obtaining a license by fraud, misrepresentation or
concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct as defined by the
rules established by the board legislative rule of the board;
(4) Violating any provision of this article or lawful order,
or rule or regulation rendered or adopted by of the board; or
(5) Violating any provision of this article Providing
substandard care as an Occupation Therapist due to a deliberate or
negligent act or failure to act regardless of whether actual injury
to the patient is established;
(6) Providing substandard care as an Occupational Therapy
Assistant, including exceeding the authority to perform components
of intervention selected and delegated by the supervising
Occupational Therapist regardless of whether actual injury to the
patient is established;
(7) Knowingly delegating responsibilities to an individual who does not have the knowledge, skills or abilities to perform those
responsibilities;
(8) Failing to provide appropriate supervision to an
Occupational Therapy Assistant or Aide in accordance with this
article and legislative rules of the board;
(9) Practicing as an Occupational Therapist or Occupational
Therapy Assistant when competent services to recipients may not be
provided due to the therapist's own physical or mental impairment;
(10) Having had an Occupational Therapist or Occupational
Therapy Assistant license revoked or suspended, other disciplinary
action taken, or an application for licensure refused, revoked or
suspended by the proper authorities of another jurisdiction,
irrespective of intervening appeals and stays;
(11) Engaging in sexual misconduct. For the purposes of this
subdivision, sexual misconduct includes:
(A) Engaging in or soliciting sexual relationships, whether
consensual or nonconsensual, while an Occupational Therapist or
Occupational Therapy Assistant/patient relationship exists with
that person; or
(B) Making sexual advances, requesting sexual favors or
engaging in physical contact of a sexual nature with patients or
clients;
(12) Aiding a person who is not licensed as an Occupational
Therapist or Occupational Therapy Assistant in this state and who directly or indirectly performs activities requiring a license;
(13) Abandoning or neglecting a patient or client under and in
need of immediate professional care without making reasonable
arrangements for the continuation of care; or
(14) Engaging in any act which has endangered or is likely to
endanger the health, welfare or safety of the public.
(b) Such denial, refusal to renew, suspension, revocation or
imposition of probationary condition upon a license may be ordered
by the board in a decision made after a hearing in the manner
provided by the rules adopted by the board. One year from the date
of the revocation of a license, application may be made to the
board for reinstatement. The board shall have discretion to accept
or reject an application for reinstatement and shall be required to
hold a hearing to consider such reinstatement.
(i) For the purposes of subsection (h) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 a day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee to report to the board for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-28-14. Procedures for hearing;
right of appeal.
(a) Whenever the board shall deny an application for any
original or renewal license or any application for a temporary
permit or shall suspend or revoke any license or temporary permit
it shall make and enter an order to that effect and serve a copy
thereof on the applicant or licensee, as the case may be, by
certified mail, return receipt requested. Such order shall state
the grounds for the action taken and shall require that any license
or temporary permit suspended or revoked thereby shall be returned
to the board by the holder within twenty days after receipt of said
copy of said order.
(b) Any person adversely affected by any such order shall be
entitled to a hearing thereon as to all issues not excluded from
the definition of a "contested case" as set forth in article one,
chapter twenty-nine-a of this code if, within twenty days after
receipt of a copy thereof, he files with the board a written demand
for such hearing. A demand for hearing shall operate automatically
to stay or suspend the execution of any order suspending or
revoking a license or temporary permit or denying an application
for a renewal of license. The board may require the person demanding such hearing to give reasonable security for the costs
thereof, and, if such person does not substantially prevail at such
hearing, such costs shall be assessed against him and may be
collected by a civil action or other proper remedy.
(c) Upon receipt of a written demand for such hearing, the
board shall set time and place thereof not less than ten nor more
than thirty days thereafter. The person demanding the hearing may
be granted one continuance as a matter of right and further
continuances for good cause shown.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and following
such hearing, with like effect as if the provisions of said article
five were set forth in this subsection.
(e) Any such hearing shall be conducted by a quorum of the
board. For the purpose of conducting any such hearing any member
of the board may issue subpoenas and subpoenas duces tecum which
shall be issued and served within the time and for the fees and
shall be enforced, as specified in section one, article five of
chapter twenty-nine-a of this code and all of the said section one
provisions dealing with subpoenas and subpoenas duces tecum shall
apply to subpoenas and subpoenas duces tecum issued for the purpose
of a hearing hereunder.
(f) At any such hearing the person who demanded the same may represent himself or be represented by an attorney admitted to
practice law in this state. Upon request by the board, it shall be
represented at any such hearing by the Attorney General or his
assistants without additional compensation.
(g) After any such hearing and consideration of all of the
testimony, evidence and record in the case, the board shall render
its decision in writing. The written decision of the board shall
be accompanied by findings of fact and conclusions of law as
specified in section three, article five, chapter twenty-nine-a of
this code, and a copy of such decision and accompanying findings
and conclusions shall be served by certified mail, return receipt
requested, upon the person demanding such hearing, and his attorney
of record, if any.
(h) The decision of the board shall be final unless reversed,
vacated or modified upon judicial review thereof in accordance with
the provisions of section sixteen of this article.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, the administrative law judge shall prepare a proposed
written order at the conclusion of a hearing containing findings of
fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law
judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas.
(e) If, after a hearing, the board determines the licensee has
violated any provision of this article or the board's rules, a
formal written decision shall be prepared which contains findings
of fact, conclusions of law and a specific description of the
disciplinary actions imposed.
§30-28-15. Judicial review; appeal to Supreme Court of Appeals.
legal representation for board
Any person adversely affected by a decision of the board
rendered after a hearing held in accordance with the provisions of
section fourteen of this article shall be entitled to judicial
review thereof. All of the pertinent provisions of section four,
article five, chapter twenty-nine-a of this code shall apply to and
govern such judicial review with like effect as if the provisions
of said section four were set forth in this section.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the Supreme Court of
Appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
Legal counsel and services for the board in all appeal
proceedings in any circuit court and the Supreme Court of Appeals
shall be provided by the Attorney General or his assistants and in
any circuit court by the prosecuting attorney of the county as
well, all without additional compensation.
Any licensee or permittee adversely affected by a decision of
the board entered after a hearing may obtain judicial review of the
decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting
from judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§30-28-16. Fees Rulemaking.
(a) The board shall prescribe and publish, in the manner
established by its rules, fees in amounts determined by the board
for the following purposes:
(a) Application for examination;
(b) Initial license fee;
(c) Renewal of license fee; and
(d) Late renewal fee.
Such fees shall be commensurate with the cost of fulfilling
the duties of the board as defined by this article. propose rules
for legislative approval, in accordance with the provisions of
article three, chapter twenty-nine-a of this code, to implement the
provisions of this article, including:
(1) Standards and requirements for licensure;
(2) Designate third parties to establish educational
requirements and to prepare and/or administer examinations and
reexaminations;
(3) Procedures for the issuance and renewal of a license,
temporary license and limited permit;
(4) A fee schedule;
(5) Continuing education and competency requirements for
licensees;
(6) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee or permittee;
(7) Requirements for reinstatement of revoked licenses; and
(8) Any other rules necessary to effectuate the provisions of
this article.
(b) All rules in effect on the effective date of this article
shall remain in effect until they are amended or repealed, and
references to provisions of former enactments of this article are
interpreted to mean provisions of this article.
§30-28-17. Criminal proceedings; penalties.
(a) Any person who violates any provisions of this article
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than fifty dollars and not more than five
hundred dollars. A license held by any person convicted under this
section shall be forfeited and revoked forthwith for one year from the date of such conviction.
(b) It is unlawful for any person who is not registered under
this article as an occupational therapist or as an occupational
therapy assistant whose registration has been suspended or revoked
to use, in connection with his name or place of business, the words
"occupational therapist," "licensed occupational therapist,"
"occupational therapist registered," "occupational therapy
assistant," "licensed occupational therapy assistant," "certified
occupational therapy assistant," or "occupational therapy aide," or
the letters "O.T.," "L.O.T.," "O.T.R.," "O.T.A.," "L.O.T.A.,"
"C.O.T.A.," or any other words, letters, abbreviations or insignia
indicating or implying that he is an occupational therapist or an
occupational therapy assistant, or to show in any way, orally, in
writing, in print, or by sign, directly or by implication, or to
represent himself as an occupational therapist, occupational
therapy assistant or occupational therapy aide.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a person has
knowingly violated the provisions of this article or rules
promulgated pursuant to this article, the board may bring its
information to the attention of an appropriate law-enforcement
official who may cause criminal proceedings to be brought.
(b) Any person violating a provision of this article or rule
promulgated pursuant to this article, is guilty of a misdemeanor and, upon conviction, shall be fined not less than $500 nor more
than $1,000 or confined in jail not more than six months, or both
fined and confined.
§30-28-18. Actions to enjoin violations Single act evidence of
practice.
Whenever it appears to the board that any person has been or
is violating or is about to violate any provision of this article,
any reasonable rule and regulation promulgated hereunder or any
order or final decision of the board, the board may apply in the
name of the state to the circuit court of the county in which the
violation or violations of any part thereof has occurred, is
occurring, or is about to occur, or to the judge thereof in
vacation, for an injunction against such person and any other
persons who have been, are or are about to be, involved in any
practices, acts or omissions, so in violation, enjoining such
person or persons from any such violation or violations. Such
application may be made and prosecuted to conclusion whether or not
any such violation or violations have resulted or shall result in
prosecution or conviction under the provisions of section seventeen
of this article.
Upon application by the board, the circuit courts of this
state may by mandatory or prohibitory injunction compel compliance
with the provisions of this article, the reasonable rules and
regulations promulgated hereunder and all orders and final decisions of the board. The court may issue a temporary injunction
in any case pending a decision on the merits of any application
filed.
The judgment of the circuit court upon any application
permitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the Supreme Court of
Appeals. Any such appeal shall be sought in the manner and within
the time provided by law for appeals from circuit courts in other
civil actions.
The board shall be represented in all such proceedings by the
Attorney General or his assistants and in such proceedings in the
circuit court by the prosecuting attorneys of the several counties
as well, all without additional compensation.
In any action brought or in any proceeding initiated under
this article, evidence of the commission of a single act prohibited
by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general
course of conduct.
NOTE: The purpose of this bill is to update the law governing
practice of occupational therapy.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. The order of sections 15 and 16 have been reversed.
THIS BILL IS AN INTERIM BILL RECOMMENDED FOR PASSAGE BY THE
JOINT STANDING COMMITTEE ON GOVERNMENT ORGANIZATION.