Enrolled Committee Substitute
House Bill 2309 History
OTHER VERSIONS -
HB2309 ENR SUB
H. B. 2309
(By Delegates Morgan, Martin, Argento,
Beach, Eldridge, Andes and C. Miller)
[Passed April 11, 2009; in effect ninety days from passage.]
AN ACT 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; and to amend said article by
adding thereto three new sections, designated §30-28-19, §30-
28-20 and §30-28-21, 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; 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;
establishing that a single act may constitute evidence of
retired, volunteer and
; providing civil immunity for healthcare
professionals donating their expertise for the care and
treatment of indigent and needy patients in a clinic setting;
and providing effective dates for certain provisions.
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; and that said code be amended by adding
thereto three new sections, designated §30-28-19, §30-28-20 and
§30-28-21, all to read as follows:
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-1. Short title.
This article is known and may be cited as the "West Virginia
Occupational Therapy Practice Act."
§30-28-2. Applicable law.
The practices licensed under the provisions of this article
and the West Virginia Board of Occupational Therapy are subject to
the provisions of article one of this chapter, the provisions of
this article, and any rules promulgated hereunder.
As used in this article, the following words and terms have
the following meanings, unless the context clearly indicates
(a) "Association" means the West Virginia Occupational Therapy
(b) "Board" means the West Virginia Board of Occupational
(c) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity doing business in the State of
(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
(e) "Direct supervision" means the actual physical presence of a licensed supervising occupational therapist or licensed
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 licensed occupational therapy assistant
is in the building and has daily direct contact at the site of
(g) "Direct continuous supervision" means the licensed
supervising occupational therapist or licensed 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.
(i) "License" means a valid and current license issued by the
board under the provisions of this article.
(j) "Nonclient-related tasks" means tasks which are not
related to treatment and do not require independent clinical
reasoning, including clerical and maintenance activities,
housekeeping, preparation of the work area or equipment, transporting patients, and ordering supplies, and which, when
performed by an occupational therapy aide, must be performed under
(k) "Occupational Therapist" means a person licensed by the
board under the provisions of this article to engage in the
practice of occupational therapy.
(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
an Occupational Therapist.
(m) "Occupational Therapy Aide" means a person who 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 direct
supervision of an Occupational Therapist or an 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.
(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
(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 and body
(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
(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 and preparatory, adjunctive
and functional activities;
(B) Training in self-care, self-management home management and
(C) Development, remediation, or compensation of physical,
cognitive, neuromuscular, sensory functions, visual, vestibular and
(D) Therapeutic use of self, including one's personality,
insights, perceptions and judgments, as part of the therapeutic
(E) Education and training of individuals, including family
members, care givers and others;
(F) Care coordination, case management and transition
(G) Consultative services to groups, programs, organizations
(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 to enhance
(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 and techniques to enhance
occupational performance skills. Use of physical agent modalities
by occupational therapy assistants must be consistent with their
education (e.g. superficial thermal and mechanical modalities) and
used under the general supervision of an occupational therapist.
The use of deep thermal or electrical modalities may only be
performed by the occupational therapy assistant under the direct
supervision of an occupational therapist, until the board shall
promulgate rules as well as establish competency standards for the
use of the modalities.
(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 he or she holds a valid, current license issued in accordance with the provisions of this
article, which has not expired, been suspended or revoked.
(c) No 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 renders the occupational therapy services
to which reference is made.
(d) An occupational therapy assistant may assist in the
practice of occupational therapy under the general supervision of
an occupational therapist.
(e) An occupational 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
(1) The occupational therapy aide functions under the direct
continuous supervision of either the occupational therapist or the
occupational therapy assistant that 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
(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.
(a) The West Virginia Board of Occupational Therapy is
continued with the following five members appointed by the governor
by and with the advice and consent of the Senate:
(1) Three licensed occupational therapists;
(2) One licensed occupational therapy assistant; and
(3) One citizen member, who is not licensed under the
provisions of this article.
(b) 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.
(c) No board member may serve as an officer of the West
Virginia Occupational Therapy Association concurrently with his or
her service on the board.
(d) The members of the board in office on December 31, 2008,
shall, unless sooner removed, continue to serve until their
respective terms expire or their successors have been appointed and
(e) The term shall be for three years commencing on January 1.
A member may not serve more than two consecutive full terms. A
member having served two consecutive full terms may not be
appointed for one year after completion of his or her second full
term. A member may continue to serve until a successor has been
appointed and qualified.
(f) Each licensed member of the board, at the time of his or
her appointment, must have held a license in this state for a
period of not less than three years immediately preceding the
(g) Each member of the board must be a resident of this state
during the appointment term.
(h) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically
forfeits membership to the board if his or her license to practice
is suspended or revoked, is convicted of a felony under the laws of
any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
(m) A majority of the members of the board constitutes a
(n) The board shall hold at least two annual meetings. Other
meetings may be held at the call of the chairperson or upon the
written request of two members, at the time and place as designated
in the call or request.
(o) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-28-6. Powers and duties of the board.
(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
including, but not limited to, the executive secretary;
(8) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
(9) Conduct disciplinary hearings of persons regulated by the
(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;
(15) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses and permits;
(16) Establish a fee schedule;
(17) Take all other actions necessary and proper to effectuate
the purposes of this article; and
(18) 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 and contract with third parties to administer the
examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
(3) Confer with the Attorney General or his or her assistants
in connection with legal matters and questions.
(a) The board shall 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
(1) Standards and requirements for licenses and permits;
(2) Designate third parties to establish educational
requirements and to prepare and/or administer examinations and
(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) Establishment of competency standards;
(7) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee or permittee;
(8) Requirements for reinstatement of revoked licenses; and
(9) Any other rules necessary to effectuate the provisions of
(b) The board is authorized to promulgate emergency rules in
accordance with section fifteen, article three, chapter twenty-
nine-a of this code to establish competency standards for advance
treatment techniques as set forth in subdivision six, subsection
(a) of this section.
(c) 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.
§30-28-8. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "West Virginia
Board of Occupational Therapy", which is continued. The fund is
used by the board for the administration of this article. Except
as may be provided in article one of this chapter, the board
retains the amount 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.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
§30-28-9. Persons and practices not affected.
This article does not prevent or restrict the practice,
services or activities of:
(1) Any person licensed under any other law of this state
performing services within the authorized scope of practice for
which he or she is licensed;
(2) Any person pursuing a course of study leading to a degree
in Occupational Therapy from an accredited educational program if
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
(3) Any person fulfilling the supervised fieldwork experience
requirements of section ten of this article.§30-28-10.
Qualifications of applicants for license.
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 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
fieldwork experience required by the recognized educational
institution where he or she met the academic requirements;
(4) Have passed an examination approved by the board;
(5) Have filed an application on forms provided by the board;
(6) Have paid the applicable fee.
(a) A person who has met the requirements of subsections (1),
(2) and (3), section ten of this article, may make application for
(b) Each applicant for licensure shall be examined 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
other subjects the board may 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.
§30-28-12. Licensees from other jurisdictions; internationally
(a) The board may issue a license to practice to any applicant who presents proof of current licensure as an occupational
therapist or an occupational therapy assistant in another
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 state and who
meets the requirements of section ten 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 ten of this article.
(c) In its discretion, the board may examine a person by a
written, oral or skills test for licensing under this section, and
may enter into agreements for reciprocal licensing with other
jurisdictions having substantially similar requirements for
§30-28-13. Issuance of a license, limited permit and temporary
(a) The board shall issue a license to any person who meets
the requirements of this article upon payment of the license fee
(b) The board may issue a limited permit to persons who have
completed the education and fieldwork experience requirements of
this article. 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.
A limited permit is not renewable, and is valid 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 may issue a temporary license to an occupational
therapist or an occupational therapy assistant who 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. The
holder of a temporary license may practice occupational therapy
only in accordance with the provisions of this article. A
temporary license is nonrenewable and is valid for thirty days.
(d) The board shall prescribe the form of licenses. The
licensee shall conspicuously display the license or a copy of the
license at his or her principal place of employment. The licensee
shall produce the original license upon the request of the board.
(a) Licenses may be renewed biennially upon documentation of
required continuing education and payment of a renewal fee.
§30-28-14. Renewal of license; renewal of lapsed license;
suspension, revocation and refusal to renew;
reinstatement of revoked license.
(b) A license which has lapsed may be renewed within one year
of its expiration date in the manner set by the board. After the
expiration of one year, a license may be renewed only by complying with the requirements relating to the issuance of an original
(c) The board may suspend, revoke or refuse to renew a license
for any reason which would justify the denial of an original
application for 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.
§30-28-15. Special volunteer occupational therapist license; civil
immunity for voluntary services rendered to
(a) There is established a special volunteer occupational
therapist license for occupational therapists who are retired or
are retiring from the active practice of occupational therapy and
who wish to donate their expertise for the care and treatment of
indigent and needy patients in the clinical setting of clinics
organized, in whole or in part, for the delivery of health care
services without charge.
(b) The special volunteer occupational therapist license shall
be issued by the board to occupational therapists licensed or
otherwise eligible for licensure under this article without the
payment of an application fee, license fee or renewal fee, and the
initial license shall be issued for the remainder of the licensing
period, and renewed consistent with the boards other licensing
(c) The board shall develop application forms for the special
license provided in this section which shall contain the
occupational therapist's acknowledgment that:
(1) The occupational therapist's practice under the special
volunteer occupational therapist license will be exclusively
devoted to providing occupational therapy care to needy and
indigent persons in West Virginia;
(2) The occupational therapist will not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any occupational therapy services
rendered under the special volunteer occupational therapist
(3) The occupational therapist will supply any supporting
documentation that the board may reasonably require; and,
(4) The occupational therapist agrees to continue to
participate in continuing education as required by the board for a
special volunteer occupational therapists license.
(d) Any occupational therapist who renders any occupational
therapy service to indigent and needy patients of a clinic
organized, in whole or in part, for the delivery of health care
services without charge under a special volunteer occupational
therapist license authorized under this section without payment or
compensation or the expectation or promise of payment or
compensation is immune from liability for any civil action arising
out of any act or omission resulting from the rendering of the
occupational therapy service at the clinic unless the act or omission was the result of the occupational therapist's gross
negligence or willful misconduct. In order for the immunity under
this subsection to apply, before the rendering of any services by
the occupational therapist at the clinic, there must be a written
agreement between the occupational therapist and the clinic stating
that the occupational therapist will provide voluntary
uncompensated occupational therapy services under the control of
the clinic to patients of the clinic: Provided, That any clinic
entering into such written agreement is required to maintain
liability coverage of not less than one million dollars per
(e) Notwithstanding the provisions of subsection (d) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of an occupational therapist
rendering voluntary occupational therapy services at or for the
clinic under a special volunteer occupational therapist license
authorized under this section.
(f) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the
board to issue a special volunteer occupational therapist license
to any occupational therapist whose occupational therapist license
is or has been subject to any disciplinary action or to any
occupational therapist who has surrendered an occupational therapist license or caused such license to lapse, expire and
become invalid in lieu of having a complaint initiated or other
action taken against his or her occupational therapist license, or
who has elected to place an occupational therapist license in
inactive status in lieu of having a complaint initiated or other
action taken against his or her occupational therapist license, or
who has been denied an occupational therapist license.
(h) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any occupational therapist covered under the provisions of this
article shall be read so as to contain a provision or endorsement
whereby the company issuing such policy waives or agrees not to
assert as a defense on behalf of the policyholder or any
beneficiary thereof, to any claim covered by the terms of such
policy within the policy limits, the immunity from liability of the
insured by reason of the care and treatment of needy and indigent
patients by an occupational therapist who holds a special volunteer
occupational therapist license.
§30-28-16. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, 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) 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
subsection (g) of this section or rules promulgated pursuant to
(d) Upon a finding that probable cause exists that the
licensee or permittee has violated any provision of this subsection
(g) of this section 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. Any hearing shall
be held in accordance with the provisions of this article.
(e) 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.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license of, impose
probationary conditions upon or take disciplinary action against,
any licensee for any of the following reasons once a violation has
been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation
or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
(3) Being guilty of unprofessional conduct as defined by
legislative rule of the board;
(4) A violation of a lawful order or legislative rule of the
(5) Providing substandard care as an Occupation Therapist due
to a deliberate or negligent act or failure to act regardless of
whether actual injury to a 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 a
patient is established;
(7) Knowingly delegating responsibilities to an individual who
does not have the knowledge, skills or abilities to perform those
(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;
(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
(12) Aiding or abetting 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
(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.
(h) For the purposes of subsection (g) of this section,
effective July 15, 2009, disciplinary action may include:
(3) Administrative fine, not to exceed $1,000 per day per
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or permittee to report to the board
for periodic interviews for a specified period of time; or
(7) Other disciplinary action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-28-17. Procedures for hearing; right of appeal.
(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
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or
permittee 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.
§30-28-18. Judicial review.
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.
§30-28-19. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee or
permittee has committed a criminal offense under this article, the
board may bring the information to the attention of an appropriate
(b) Effective July 15, 2009, a person violating a provision of
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.
§30-28-20. Single act evidence of practice.
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.
§30-28-21. Effective dates of certain provisions.
The provisions of this article as amended and reenacted during the regular session of 2009, except for the provisions of sections
seven, sixteen and nineteen, are effective as of July 1, 2009.