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Committee Substitute House Bill 2309 History

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HB2309 SUB
COMMITTEE SUBSTITUTE


FOR

H. B. 2309


(By Delegates Morgan, Martin, Argento,
Beach, Eldridge, Andes and C. Miller)


[Originating in the Committee on Government Organization]

(February 18, 2009)



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 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.
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