Senate Bill No. 393

(By Senator Bowman)

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[Introduced February 4, 1998; referred to the Committee
on Government and Organization; and then to the Committee on Finance.]
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A BILL to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirty-eight, relating to establishing the West Virginia recreation therapy practice board; general provisions; definitions; providing for qualifications, appointment and terms of board members; powers and duties; eligibility for, issuance, denial and expiration of licenses and temporary permits; same, suspension and revocation; confidentiality of information; inapplicability of evidentiary privileges; violations; and penalties.

Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-eight, to read as follows:
ARTICLE 38. WEST VIRGINIA RECREATION THERAPY PRACTICE ACT.

§30-38-1. General provisions.

Unless otherwise specifically provided in this article, the provisions of article one of this chapter relating to all state boards of examination or registration apply to the West Virginia recreation therapy practice board created in this article.
§30-38-2. Definitions.
As used in this article:
(a) "Board" means the board of trustees of the West Virginia recreation therapy practice board.
(b) "License" means a license granted and issued by the board for the practice of recreation therapy.
(c) "Licensee" means any person holding a license issued under the provisions of this article.
(d) "Permittee" means any person holding a temporary permit issued under the provisions of this article.
(e) "Recreation therapy" includes the initiation, prescription, supervision, direction, evaluation, education, or performance of, or participation in, social, play, recreation, sports, game or avocational activity if the activity is represented to be a therapeutical treatment that is intended: (i) To compensate for a dysfunction or minimize a debilitation relating to an individual's independent avocational functioning; or (ii) to foster the development of emotional, social, communication, intellectual, physical, developmental or avocational skills. The activity may include any one or more of the following:
(1) Designing, planning, implementing and evaluating individualized recreation therapy programs to improve functional skills needed for independent avocational involvement;
(2) Analyzing, selecting and programming the use of community recreation resources to improve functional skills for integration back into the community;
(3) Teaching leisure skills, attitudes, values, knowledge and behaviors to develop independent leisure functioning; and
(4) Assessing individuals to determine their need for recreation therapy services.
(f) "Recreation therapy consultant" means a person who provides recreation therapy services independently and without supervision, and who may provide consulting services to others in regard to recreation therapy.
(g) "Recreation therapist" means a person who provides recreation therapy services independently and without supervision, but who may not provide consulting services to others in regard to recreation therapy.
(h) "Recreation therapy assistant" means a person who provides recreation therapy services under the direct supervision of a recreation therapist or a recreation therapy consultant licensed under this article.
(i) "Supervision" means direct responsibility for and control over the quality and technical aspects involved in the provision of recreation therapy services.
§30-38-3. License required; practice limited; display of license; exceptions.
(a) No person may engage in, offer to engage in, or hold himself or herself out to the public as being engaged in, the practice of recreation therapy in this state, nor may any person use in connection with any trade, business, profession or occupation, the words "recreation therapist," "recreation therapy consultant," "recreation therapy assistant" or words, letters or abbreviations of similar import which tend to induce a belief that the person is qualified to provide recreation therapy services unless he or she first obtains a license or temporary permit in accordance with the provisions of this article and that license or permit remains unexpired, unsuspended and unrevoked.
(b) No firm, association or corporation may, except through a licensee or licensees, render any service or engage in any activity which if rendered or engaged in by an individual would constitute the practice of recreation therapy.
(c) No person licensed only as a recreation therapist under this article may provide or offer to provide services as a recreation therapy consultant.
(d) No person licensed only as a recreation therapy assistant under this article may provide or offer to provide recreation therapy services except under the supervision of a recreation therapist or recreation therapy consultant licensed under this article.
(e) Every person licensed under the provisions of this article shall display his or her license in a conspicuous location at his or her principal place of business.
(f) Nothing in this article prevents:
(1) Any person licensed in this state from engaging in the profession or occupation for which he or she is licensed;
(2) Qualified members of other professions or occupations including, but not limited to, occupational therapists, special education teachers, independent living specialists, work adjustment trainers, caseworkers and persons pursuing courses of study leading to a degree or certification in such fields, from doing work similar to recreation therapy which is consistent with their training, if they do not represent themselves by any title or description to be recreation therapists or recreation therapy assistants; and
(3) The activities and services of any person employed as an activities director or activities director assistant in a licensed nursing home or a licensed personal care home facility.
§30-38-4. Recreation therapy practice board created; members; appointment; qualifications; terms; vacancies; officers; compensation.

(a) There is hereby created the West Virginia recreation therapy practice board, hereinafter called the board. The governor shall appoint the members of this board, who shall be residents of this state, by and with the advice and consent of the Senate. The board shall consist of seven members comprised as follows:
(1) Five professional members who are licensed under this article as recreation therapists, recreation therapy consultants or recreation therapy assistants, or who, in the case of the members first appointed, are eligible for a license under this article and have been actively engaged in the provision of recreation therapy services for at least five years immediately preceding their appointment. These members shall be selected by the governor from lists to be submitted by the West Virginia therapeutic recreation association and the West Virginia activity professionals association. For initial appointments made under this subdivision, these associations shall submit the names of seven persons who meet the requirements of this subdivision, but the governor may choose no more than three names from either list. For subsequent appointments or to fill vacancies that may occur, these associations shall submit the names of three persons who meet the requirements of this subdivision for each professional member's seat that is open. The initial and subsequent composition of members appointed under this subdivision shall include at least one person employed by each of the following types of facilities located in this state: One that provides primarily psychiatric services; one that provides primarily rehabilitation services; one that provides primarily long-term care services; and one that provides recreation therapy services in a facility that is owned by the state;
(2) One member licensed to practice medicine and surgery or podiatry under section ten, article three of this chapter, selected by the governor from a list of three names to be submitted by the West Virginia state medical association; and
(3) One lay member to represent the interests of the public.
(b) Of the members first appointed pursuant to subdivision (1), subsection (a) of this section, one shall be appointed for a term of one year, two shall be appointed for terms of two years and two shall be appointed for terms of three years. The member first appointed pursuant to subdivision (2), subsection (a) of this section shall be appointed for a term of two years and the member first appointed pursuant to subdivision (3) of the same subsection shall be appointed for a term of one year. Thereafter, all members shall be appointed for terms of three years. Any member whose term has expired shall serve until his or her successor has been appointed and has qualified. Vacancies shall be filled in the same manner as regular appointments are made but shall be for the unexpired term only. Members appointed to the board are eligible for reappointment, not to exceed two consecutive full terms.
(c) The board shall hold its first meeting within thirty days after the initial members are appointed and shall, at that meeting, organize itself and elect officers as provided in section three, article one of this chapter. The members of the board may not be compensated for their services as members, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties.
§30-38-5. Powers and duties of the board; funds of board.

(a) The board shall:
(1) Examine applicants and determine their eligibility for a license or temporary permit to provide recreation therapy services as provided in this article;
(2) At least once each year, prepare, conduct and grade examinations of applicants for each class of license and determine the satisfactory passing score thereon;
(3) Issue, renew, deny, suspend or revoke licenses and temporary permits in accordance with the provisions of this article and, in accordance with the provisions of article one of this chapter, review, affirm, reverse, vacate or modify its order with respect to any such denial, suspension or revocation;
(4) Investigate alleged violations of the provisions of this article, the rules promulgated hereunder and the administrative orders of the board; take appropriate disciplinary action against any licensee for the violation; or institute other appropriate legal action to enforce the provisions of this article, the rules promulgated hereunder and the administrative orders of the board. For these purposes, the board may employ investigators who are expressly authorized to conduct inquiries and inspections which, in the board's judgment, are necessary or appropriate to enforce this article, including reviewing and auditing pertinent records maintained at the place of business of any licensee or permittee hereunder or at any other place under the licensee's or permittee's dominion and control. Any information thus obtained by the board or its agents shall be maintained as confidential and may not be disclosed, except as provided in subsection (a), section ten of this article or pursuant to court order;
(5) Employ, direct, discharge and define the duties of full or part-time professional, clerical or other personnel necessary to effectuate the provisions of this article;
(6) Keep accurate and complete records of its proceedings; prepare and maintain a register of all persons holding a license or permit under this article, together with a unique serial number assigned by the board and the dates of issuance and expiration; and, after administering a licensure examination, prepare a list of persons achieving a passing score thereon, all of which shall be made available to the public upon request and at a fee not to exceed the actual cost of printing and postage;
(7) Maintain, publish and make available to the public, upon request and for a fee not to exceed the actual cost of printing and postage, the requirements for the issuance of each class of license or permit provided by this article;
(8) Whenever the board considers it appropriate, confer with the attorney general or his or her assistants in connection with all legal matters and questions; and
(9) Take other action that may be reasonably necessary or appropriate to effectuate the provisions of this article.
(b) The board shall, in accordance with article three, chapter twenty-nine-a of this code, propose legislative rules and promulgate interpretive and procedural rules to implement the provisions of this article and the powers and duties conferred upon it. Legislative rules proposed by the board shall include, but not be limited to, rules:
(1) Establishing minimum academic, experiential and examination standards, consistent with section six of this article, to be met by applicants for any class of license or permit provided by this article;
(2) Establishing application and examination procedures for initial and renewed licensure and for temporary permits;
(3) Setting reasonable application and examination fees for each class of license or permit provided by this article;
(4) Establishing reciprocity criteria for determining whether the licensure, registration or certification requirements of another jurisdiction are at least equal to those of this state and providing procedures whereby the board may waive certain licensure requirements, except fees, for persons who hold a valid license, registration or certification from the jurisdiction;
(5) Establishing the methods and criteria the board uses in developing examinations and establishing criteria by which it will determine whether to accept an examination prepared or conducted by a private organization as sufficient for testing knowledge of basic and clinical sciences and professional techniques relating to recreation therapy practice and theory; and providing procedures whereby the board may waive its examination requirement;
(6) Adopting a code of ethics or professional conduct appropriate to each class of license; and
(7) Establishing for each class of license continuing education requirements to be met as a condition of license renewal.
(c) In addition to other powers granted in this article or article one of this chapter, the board may reinstate the license of any person whose license has been suspended or revoked and may, in its discretion, impose conditions upon that licensee in his or her practice for a reasonable period after reinstatement if those conditions advance the purposes of this article.
(d) All moneys paid to the board shall be accepted by a person designated by the board, deposited with the treasurer of state and credited to an account hereby established and designated as the "recreation therapy practice board fund." The reimbursement of all reasonable and necessary expenses actually incurred by members of the board and all other costs and expenses incurred by the board in the administration of this article shall be paid from this fund, and no part of the state's general revenue fund may be expended for this purpose.
§30-38-6. Qualifications of applicants for licensure as recreation therapists, recreation therapy consultants and recreation therapy assistants; exceptions; applications; fees.
(a) To be eligible for any license issued under the provisions of this article, an applicant must:
(1) Be of good moral character;
(2) Reside in this state at the time of application or provide documentation satisfactorily evidencing his or her intention to practice in this state;
(3) Submit a completed application on a form prescribed by the board, together with academic transcripts or other proof as may be required by the board showing that the applicant meets the applicable academic licensure requirements;
(4) Pay to the board as it may establish by rule a nonrefundable initial application fee;
(5) Except as otherwise provided in this article or by legislative rule promulgated hereunder, successfully complete the appropriate examination for the class of license sought; and
(6) Not have been convicted of a felony or a crime involving moral turpitude in any court in this state or any court in any other state, which conviction remains unreversed.
(b) In addition to meeting the requirements of subsection (a) of this section, and except as otherwise specifically provided in this article or the legislative rules promulgated hereunder, a person seeking licensure as a recreation therapy assistant shall demonstrate to the board's satisfaction that he or she has earned one of the following in a course of study approved by the board:
(1) An associate degree from an institution of higher education; or
(2) A certificate granted from an institution of higher education upon successful completion of a sixty-semester-hour academic program.
(c) In addition to meeting the requirements of subsection (a) of this section, and except as otherwise specifically provided in this article or the legislative rules promulgated hereunder, a person seeking licensure as a recreation therapist shall demonstrate to the board's satisfaction that he or she has, at a minimum, earned a bachelor's degree from an institution of higher education in a course of study approved by the board and successfully completed at least four hundred hours of supervised clinical field experience and internships.
(d) In addition to meeting the requirements of subsection (a) of this section, and except as otherwise specifically provided in this article or the legislative rules promulgated hereunder, a person seeking licensure as a recreation therapy consultant shall also meet the licensure requirements for a recreation therapist contained in subsection (b) of this section, and demonstrate to the board's satisfaction that he or she has successfully completed at least four years of full-time paid professional experience, or its equivalent, in the practice of recreation therapy, all as approved by the board.
(e) The board may waive the examination requirement provided in subdivision (5), subsection (a) of this section for any applicant who successfully completes an examination conducted by another state or a private organization determined by the board to be sufficient.
(f) Notwithstanding any other provision of this code to the contrary, the board shall grant the appropriate license to any person who, upon proper application and submission of the appropriate fee, demonstrates to the board's satisfaction that he or she has actively engaged in the practice area for which a license is sought for at least three of the five years immediately preceding the effective date of this article and: (i) Has performed at least six thousand hours in paid professional experience and has satisfactorily passed the examination required for the license sought, both as approved by the board; or (ii) has performed at least four thousand hours in paid professional experience before the effective date of this article, and has completed, within one year after the effective date of this article, an additional two thousand hours of paid professional experience, all as approved by the board and has satisfactorily passed the examination required for the license sought.
§30-38-7. Issuance of license; expiration; renewal; renewal fee; reciprocity.

(a) Whenever the board finds that an applicant has met all of the applicable requirements for a license issued under this article, it shall issue a license of the appropriate class to that applicant; otherwise, the board shall deny the same. A license issued hereunder expires two years from the date issued but may be renewed without examination upon application for renewal on a form prescribed by the board, submission of evidence satisfactory to the board that he or she has successfully met the applicable continuing education requirements for the license sought to be renewed and payment of a license renewal fee, established by legislative rule by the board. Any application for renewal not submitted within thirty days of the license's expiration date shall include an additional late renewal fee in the amount of twenty-five dollars. The board may deny an application for license renewal for any reason which would justify the denial of an original application for licensure.
(b) The board may waive the academic, experiential and examination requirements for any class of license for any applicant who presents satisfactory proof of comparable licensure, certification or registration in another state which the board has approved for reciprocity.
§30-38-8. Temporary permits.

Upon proper application and payment of a fee established by legislative rule by the board, the board may issue a temporary permit to practice as a recreation therapist in this state: Provided, That the applicant demonstrates to the board's satisfaction that he or she meets the requirements of subsection (a), section six of this article, except for subdivisions (4) and (5), is awaiting notification of scores on a licensure examination administered by the board or another state or private organization approved by the board, and that he or she provides the name and address of the licensed recreation therapist or recreation therapy consultant under whose supervision the applicant will work while awaiting notification of examination scores. A temporary permit issued under this section expires six months after its issuance or thirty days after the board or another state or private organization mails notification of the permittee's examination score to him or her at his or her last known address, whichever first occurs. A temporary permit issued under this section may not be transferred or renewed. The board may not issue more than one temporary permit to any one person, nor may it issue a temporary permit to any person who has failed a recreation therapist examination.
§30-38-9. Suspension or revocation of license or temporary permit.

(a) The board may at any time upon its own motion and shall upon the verified written complaint of any person conduct an investigation to determine whether there are grounds for suspension or revocation of a license or a temporary permit issued under the provisions of this article.
(b) In addition to the grounds for denial, suspension or revocation of a license set forth in section eight, article one of this chapter, the board shall suspend or revoke a license or temporary permit when it finds that the holder thereof has:
(1) Been convicted of or pleaded no contest to any offense involving moral turpitude in any court in this state or any court in any other state, which conviction remains unreversed;
(2) Obtained a license or temporary permit pursuant to this article by means of fraud or deceit;
(3) Failed or refused to comply with the provisions of this article or any legislative rule promulgated hereunder or any order or final decision of the board;
(4) Used alcohol or a controlled substance to the extent that his or her ability to competently provide recreation therapy services was impaired;
(5) Performed acts or provided services outside the scope of the activities authorized by his or her license or permit, including engaging in practices for which he or she is untrained or incompetent, as determined by the board; or
(6) Employed, directed or supervised a person in the performance of recreation therapy services unless the person holds a license or a temporary permit pursuant to this article.
(c) The board shall also suspend or revoke a license or temporary permit if it finds the existence of any grounds which would justify the denial of an application for a license or temporary permit under this article.
§30-38-10. Orders of the board as public information; evidentiary privilege does not apply.
(a) Orders of the board relating to any disciplinary action against a recreation therapist, recreation therapy consultant or recreation therapy assistant are public information.
(b) No evidentiary privilege applies in any investigation or proceeding by the board with respect to relevant medical or other records or testimony: Provided, That the disclosure of any information pursuant to this subsection may not be considered a waiver of any privilege in any other proceeding.
§30-38-11. Violations; criminal penalties.
Any person who violates any provision of this article is guilty of a misdemeanor and, upon conviction therefor, shall for a first offense be fined not more than one hundred dollars, confined in a county or regional jail facility for not more than ninety days, or both fined and imprisoned. For a second or subsequent offense, he or she shall be fined not more than five hundred dollars, confined in the county or regional jail for not more than ninety days, or both fined and imprisoned.


NOTE: The purpose of this bill is to establish the West Virginia recreation therapy practice board to regulate the practice and protect the title of recreation therapy.

This article is new; therefore, strike-throughs and underscoring have been omitted.