PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 76.4 and 76.9; and addition of section 76.10 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a), 7905(1)(c), 7906(4), and 7908(1)(a), (b), and (c), (2), (3), (4), (5) and (6); and L. 2012, ch. 329, section 5 and ch. 444, section 2
Subject:
Occupational therapy.
Purpose:
Establish standards relating to continuing competency, limited permits and supervision of OT assistant students.
Substance of proposed rule (Full text is posted at the following State website: http://www.op.nysed.gov/):
The Commissioner of Education proposes to amend sections 79.4 and 79.9 and add a new section 79.10 of the Regulations of the Commissioner of Education, effective February 13, 2013, relating to continuing competency requirements in occupational therapy, limited permits for occupational therapy assistants, and supervision of students in occupational therapy assistant programs. The following is a summary of the substance of the proposed rule:
The proposed amendments to sections 76.4 and 76.9 of the Regulations of the Commissioner of Education implement the provisions of Chapter 329 of the Laws of 2012, which authorize a limited permit for occupational therapy assistants and provide that an occupational therapy assistant student engaged in clinical practice may be supervised by an occupational therapy assistant, as well as by an occupational therapist.
Subdivision (a) of section 76.4 of the Regulations of the Commissioner of Education is amended to add occupational therapy assistants to those professionals authorized to be granted a limited permit to practice.
Section 76.9 of the Regulations of the Commissioner of Education is amended to provide that occupational therapy assistants may supervise occupational therapy students who are engaged in clinical practice.
The proposed addition of section 76.10 to the Regulations of the Commissioner of Education implements the provisions of Chapter 444 of the Laws of 2012, which added a new section 7908 to the Education Law establishing a continuing competency requirement for occupational therapists and occupational therapy assistants.
The new paragraph 76.10(a) sets forth definitions required to implement the continued competency requirements, including definitions of professional subjects and related subjects.
The new paragraph 76.10(b) sets forth the applicability of the new requirement to all licensees, provides for exemptions for the first triennial registration period, and authorizes the Department to make an adjustment to the requirements for good cause which prevents compliance.
The new paragraph 76.10(c) sets forth the requirement that 36 continuing competency hours be completed in each triennial registration period, including at least 24 hours in professional subjects, and describes the acceptable learning activities that may be used to meet this requirement.
The new paragraph 76.10(d) provides that a licensee must certify to compliance with the requirement upon re-registration.
The new paragraph 76.10(e) sets forth rules for licensees returning after a lapse in practice.
The new paragraph 76.10(f) provides authorization for a conditional registration for those licensees who admit to non-compliance with the requirement, but who agree to remedy any deficiency in compliance.
The new paragraph 76.10(g) sets forth recordkeeping requirements for licensees.
The new paragraph 76.10(h) sets forth rules for measurement of an hour of credit for continuing competency courses and workshops.
The new paragraph 76.10(i) sets forth rules for approval of sponsors of continuing competency coursework or training.
The new paragraph 76.10(j) sets forth the fees for licensees as mandated by the statute.
Text of proposed rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Office of the Professions, Office of the Deputy Commissioner, State Education Department, 89 Washington Avenue, 2M, Albany, NY 12234, (518) 474-1941, email: opdepcom@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Section 6504 of the Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practice of the professions.
Paragraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations in administering the admission to and the practice of the professions.
Paragraph (c) of subdivision (1) of section 7905 of the Education Law, as added by section 1 of Chapter 329 of the Laws of 2012, authorizes the Commissioner of Education to promulgate regulations for the issuance of a limited permit to an occupational therapy assistant.
Subdivision 4 of section 7906 of the Education Law, as amended by Chapter 329 of the Laws of 2012 implements the provisions of the statute which provide that an occupational therapy assistant student engaged in clinical practice may be supervised by an occupational therapy assistant, as well as by an occupational therapist.
Paragraph (a) of subdivision (1) of section 7908 of the Education Law, as added by Chapter 444 of the Laws of 2012, requires a licensed occupational therapist and occupational therapist assistant to complete mandatory continuing competency requirements as a condition for registration to practice in New York State and provides an exception to licensees with a conditional registration certificate.
Paragraph (b) of subdivision (1) of section 7908 of the Education Law allows occupational therapists and occupational therapist assistants to be exempt from the mandatory continuing competency requirement for the triennial registration period during which they are first licensed. It also authorizes the State Education Department to adjust the requirement in certain cases.
Paragraph (c) of subdivision (1) of section 7908 of the Education Law provides an exemption from the continuing competency requirement for licensees not engaged in the practice of occupational therapy and occupational therapist assisting and directs the State Education Department to establish continuing competency requirements for licensees reentering the profession.
Subdivision (2) of section 7908 of the Education Law provides that an occupational therapist or occupational therapist assistant must complete the mandatory continuing learning activities requirements to be registered to practice in New York State, and establishes the continuing competency hour requirement and a proration formula for certain licensees.
Subdivision (3) of section 7908 of the Education Law authorizes the State Education Department to issue conditional registrations for occupational therapists or occupational therapist assistants who fail to meet the continuing competency requirements, to establish requirements for such licensees under conditional registration, and to charge a fee for such conditional registration.
Subdivision (4) of section 7908 of the Education Law defines acceptable learning activities as activities which contribute to professional practice in occupational therapy and which meet standards prescribed in the Regulations of the Commissioner of Education.
Subdivision (5) of section 7908 of the Education Law requires occupational therapists and occupational therapist assistants to maintain adequate documentation of compliance with the continuing education requirements and provide such documentation at the request of the State Education Department.
Subdivision (6) of section 7908 of the Education Law authorizes the State Education Department to charge occupational therapists and occupational therapist assistants a mandatory continuing education fee.
Section 5 of Chapter 329 of the Laws of 2012 authorizes the State Education Department to promulgate regulations regarding the issuance of limited permits to occupational therapy assistants and regarding the supervision of occupational therapy assistant students.
Subdivision (6) of section 7908 of the Education Law establishes a $900 fee for sponsors of continuing competency activities.
Section 2 of Chapter 444 of the Laws of 2012 authorizes the State Education Department to promulgate such rules or regulations as may be necessary to implement the new law requiring the completion of continuing competency by occupational therapists and occupational therapist assistants.
2. LEGISLATIVE OBJECTIVES:
The proposed addition of section 76.10 of the Regulations of the Commissioner of Education carries out the intent of the aforementioned statutes in that it will, as directed by statute, establish standards relating to mandatory continuing competency for occupational therapists and occupational therapist assistants. Specifically, the regulations would establish appropriate standards for what constitutes acceptable learning activities, continuing competency requirements when there is a lapse in practice, requirements for licensees under conditional registration, recordkeeping requirements applicable to licensees, and standards for the approval of sponsors of continuing learning activities to licensed occupational therapists and occupational therapist assistants.
The proposed amendment to section 76.4 of the Regulations of the Commissioner of Education implements the provisions of Chapter 329 of the Laws of 2012 which authorize a limited permit for occupational therapy assistants. This amendment will permit occupational therapy assistants who have completed their education requirements but have not passed the examination to practice under the supervision of a physician or occupational therapist for a maximum of two years.
The proposed amendment to section 76.9 of the Regulations of the Commissioner of Education implements the provisions of Chapter 329 of the Laws of 2012 which provide that an occupational therapy assistant student engaged in clinical practice may be supervised by an occupational therapy assistant, as well as by an occupational therapist.
3. NEEDS AND BENEFITS:
The proposed rule is needed to implement the requirements of section 7908 of the Education Law, as added by Chapter 444 of the Laws of 2012. The purpose of the proposed addition of section 76.10 of the Regulations of the Commissioner is to establish, consistent with the statute, continuing competency requirements that licensed occupational therapists and occupational therapist assistants must complete to be registered to practice these professions in New York State and requirements for the approval of sponsors of such continuing learning activities. As required by statute, the proposed rule is also needed to determine the appropriate continuing competency standards when a licensee has a lapse in practice, requirements for licensees under conditional registration, and standards for the approval of sponsors of continuing learning activities to licensed occupational therapists and occupational therapist assistants.
The needs and benefits of the proposed amendments of section 76.4 and 76.9 of the Regulations of the Commissioner are described in section 2 above.
4. COSTS:
(a) Costs to State government. The proposed rule is necessary to implement Chapters 444 and 329 of the Laws of 2012 by establishing standards as directed by statute. The proposed rule does not impose any additional costs on the State beyond those imposed by statute. It is anticipated that the costs to the State Education Department in implementing the requirements of Chapter 444 of the Laws of 2012 will be offset by the registration and sponsor approval fees authorized by the law.
(b) Costs to local government: None.
(c) Cost to private regulated parties. The proposed rule does not impose additional costs on licensed occupational therapists and occupational therapist assistants beyond those imposed by statute. Statutory provisions impose a mandatory continuing competency fee of $45 for occupational therapists and $25 for occupational therapist assistants at each triennial registration and require that occupational therapists and occupational therapist assistants complete a prescribed number of hours of acceptable continuing learning activities. Statutory provisions also impose a $900 fee for sponsors of continuing competency activities for a three-year term. Approval of sponsors is for a three-year period. The statutory fee for a three-year renewal is also $900.
(d) Cost to the regulatory agency: As stated above in Costs to State government, the proposed rule does not impose additional costs on the State Education Department beyond those imposed by statute.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to implement Chapters 444 and 329 of the Laws of 2012, relating to continuing competency requirements for occupational therapists and occupational therapist assistants, limited permits for occupational therapy assistants, and supervision of students in occupational therapy assistant programs. The proposed rule does not impose any program, service, duty, or responsibility upon local governments beyond those inherent in the statutes.
6. PAPERWORK:
The proposed rule implements a statutory requirement that occupational therapists and occupational therapy assistants maintain adequate documentation of completion of a learning plan and of acceptable learning activities. In addition, the rule requires sponsors of continuing competency to occupational therapists and occupational therapist assistants to maintain a record for at least six years which includes: the name and curriculum vitae of the faculty, a record of attendance of licensed occupational therapists or occupational therapist assistants in the course if a course, a record of participation of a licensed occupational therapist or occupational therapist assistant in a self-study program if a self-study program, an outline of the course or program, date and location of the course or program, and the number of hours for completion of the course or program.
7. DUPLICATION:
There are no Federal requirements applicable to the subject matter of the proposed rule, and the proposed rule is needed to implement the State law requirements set forth in Chapters 444 and 329 of the Laws of 2012. Therefore, the amendment does not duplicate existing State or Federal requirements.
8. ALTERNATIVES:
The proposed rule is necessary to implement Chapters 444 and 329 of the Laws of 2012, relating to continuing competency requirements for occupational therapists and occupational therapist assistants, limited permits for occupational therapy assistants, and supervision of students in occupational therapy assistant programs. There are no viable alternatives to the proposed rule, and none were considered.
9. FEDERAL STANDARDS:
There are no Federal standards for the continuing education of licensed occupational therapists or occupational therapist assistants.
10. COMPLIANCE SCHEDULE:
The proposed rule implements and clarifies statutory continuing competency requirements for occupational therapists and occupational therapist assistants. Occupational therapists and occupational therapist assistants must comply with the continuing competency requirements on the effective date of the authorizing statute, February 13, 2012. The statute and implementing regulation establish a phase-in period in which the licensee will be required to complete less than the full 36 hours of continuing competency based upon a proration formula. No additional period of time is necessary to enable regulated parties to comply. It is anticipated that regulated parties will be able to achieve compliance with the proposed rule by its effective date.
Regulatory Flexibility Analysis
(a) Small Businesses:
1. EFFECT OF RULE:
As required by Education Law section 7908, as added by Chapter 444 of the Laws of 2012, effective February 13, 2012, the proposed addition of a new section 76.10 to the Regulations of the Commissioner of Education relates to mandatory continuing competency for licensed occupational therapists and occupational therapy assistants, some of whom are organized as small businesses. This continuing education will be provided by sponsors approved by the State Education Department, some of which are small businesses.
As of July 2012, there were 11,159 occupational therapists licensed in New York State and 4,048 certified occupational therapy assistants. Reliable data on the number of these individuals employed by a small business is not available for New York State. However, a national workforce study conducted by the American Occupational Therapy Association in 2010 reflected that, nationally, 53% of these professionals work in either a hospital, a school setting or academia. If that pattern holds true for New York State, it follows that the potential maximum number of professionals employed by a small business would be the remaining 47%, or 7,147. The number is likely to be substantially smaller than this.
The proposed rule includes a provision that permits a sponsor to be deemed approved by the State Education Department, if it is approved by the National Board for Certification in Occupational Therapy (NBCOT) or the New York State Occupational Therapy Association (NYSOTA). For such sponsors there are no additional compliance requirements in the regulation. The Department expects that almost all 300 sponsor/small businesses will be deemed approved by virtue of their being approved by these organizations. Based upon the Department's experience in other licensed professions, which have similar sponsor approval procedures (podiatry, ophthalmic dispensing), only about 50 sponsors will seek approval through a State Education Department review, of which only about 38 will be small businesses (.75 x 50).
The proposed amendments to sections 76.4 and 76.9 of the regulations of the Commissioner of Education, required by Chapter 329 of the Laws of 2012, conform these sections to the statutory changes which create a limited permit for occupational therapy assistants and provided for the supervision of occupational therapy assistant students engaged in clinical fieldwork by occupational therapy assistants.
2. COMPLIANCE REQUIREMENTS:
The proposed rule contains no compliance requirements not mandated by statute on occupational therapist and occupational therapy assistants organized as small businesses.
The rule contains no compliance requirements for sponsors of continuing education that are deemed approved through the approval of the National Board for Certification in Occupational Therapy (NBCOT) or the New York State Association for Occupational Therapy (NYSOTA).
There are compliance requirements for sponsors seeking approval through a State Education Department review. Every three years, organizations desiring to offer continuing education to licensed occupational therapists and occupational therapist assistants based upon a review by the State Education Department must submit an application for advance approval as a sponsor at least 90 days prior to the date for the commencement of the continuing education. The applicant must document in the application: curricular areas of offerings, its organizational status as an educational entity or expertise in the professional area, the qualifications of course instructors, methods for assessing the learning of participants, and recordkeeping procedures. Applicants would be approved to offer continuing education to occupational therapists and occupational therapy assistants for a three-year term.
3. PROFESSIONAL SERVICES:
No professional services are expected to be required by small businesses to comply with the proposed rule. The regular staff of small businesses will be able to complete the application needed for the review by the State Education Department.
4. COMPLIANCE COSTS:
The rule contains no compliance costs not mandated by statute on occupational therapist and occupational therapy assistants organized as small businesses. The continuing competency fee is set forth in statute, as is the basic triennial continuing competency hour requirement.
An organization seeking approval as a sponsor providing continuing learning activities to occupational therapists and occupational therapy assistants would be required to pay the Department a fee of $900, a fee mandated by statute. Such fee would be paid once every three years, upon submission of the organization’s application. Therefore, the annualized cost is $300.
The Department estimates that it would require a staff member to spend about eight hours to complete the application. Based on an hourly rate of $37 per hour (including fringe benefits), we estimate that the cost of completing the application to be $296. An application would have to be completed once every three years. Therefore, the annualized cost of completing the application is estimated to be $98.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule will not impose any technological requirements on regulated parties. See above Compliance Costs for the economic impact of the regulation.
6. MINIMIZING ADVERSE IMPACT:
Many of the occupational therapists and occupational therapy assistants organized as small businesses currently comply with the continuing education requirements established for national certification by the National Board for Certification in Occupational Therapy (NBCOT). To the extent possible, the proposed rule was drafted so that a professional who complies with these national certification requirements would meet the state mandated continuing competency requirements.
The Department believes that the standards for sponsor review by the State Education Department are reasonable, and that uniform standards should apply, regardless of the size of the sponsoring organization, in order to ensure the quality of the continuing education.
7. SMALL BUSINESS PARTICIPATION:
Members of the State Board for Occupational Therapy, many of whom have experience in a small business environment, provided input in the development of the proposed rule. In addition, staff of the State Education Department have worked with the statewide and national professional associations and councils that represent occupational therapists and occupational therapy assistants by disseminating information concerning the proposed regulation to these organizations and seeking their input. These organizations include members who own and operate small businesses.
(b) Local Governments:
The proposed rule establishes continuing competency requirements for occupational therapists and occupational therapy assistants and standards for sponsors of such continuing competency. It also conforms the Commissioner’s regulations to statutory changes which created a limited permit for occupational therapy assistants and provided for the supervision of occupational therapy assistant students engaged in clinical fieldwork by occupational therapy assistants. The proposed rule will not impose any reporting, recordkeeping, or other compliance requirements, or have any adverse economic impact on local governments. Because it is evident from the nature of the proposed rule that it does not affect local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for local governments is not required and one has not been prepared.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule will apply to all of the occupational therapists and occupational therapy assistants who live in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
As required by Education Law section 7908, as added by Chapter 444 of the Laws of 2012, effective February 13, 2012, the proposed addition of a new section 76.10 to the Regulations of the Commissioner of Education will require occupational therapists and occupational therapy assistants, including those that reside or work in rural areas, to complete a prescribed number of hours of acceptable continuing learning activities to be registered to practice in New York State. The proposed rule prescribes the learning activities that may meet the continuing competency requirement and the subjects for those continuing learning activities. The rule requires licensees to certify that they have met the requirement upon applying for renewal of registration to practice in New York State. The proposed rule requires each licensee to maintain prescribed documentation concerning completed acceptable continuing learning activities.
The proposed addition of a new section 76.10 to the Regulations of the Commissioner of Education also establishes standards for the New York State Education Department's review of sponsors desiring to offer acceptable continuing learning activities in the form of courses of learning or self-study programs, including sponsors that may be located in rural areas. The rule requires such sponsors to maintain specified records related to the offering of the courses of learning and self-study programs for a six-year period from the date of completion of the coursework. The proposed rule does not impose a need for professional services other than educational services to meet the continuing competency requirements.
The proposed amendments to sections 76.4 and 76.9 of the Regulations of the Commissioner of Education are required by Chapter 329 of the Laws of 2012 and do not impose any reporting, recordkeeping, other compliance requirements or professional services not mandated by statute.
3. COSTS:
The proposed rule does not impose additional costs on occupational therapists, occupational therapy assistants or sponsors of approved continuing education activities beyond the costs imposed by statute.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule implements the continuing competency requirements for occupational therapists and occupational therapy assistants found in section 7908 of the Education Law. The statutory requirements do not make exceptions for individuals who live or work in rural areas. The Department has determined that the proposed rule's requirements should apply to all occupational therapists and occupational therapy assistants, regardless of their geographic location, to help ensure continuing competency across the State. The Department has also determined that uniform standards for the Department's review of sponsors are necessary to ensure quality offerings in all parts of the State. Because of the nature of the proposed regulation, alternative approaches for rural areas were not considered.
5. RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from statewide organizations representing all parties having an interest in the practice of occupational therapy and occupational therapy assisting. Included in this group were the State Board for Occupational Therapy, and professional associations representing the occupational therapy profession. These groups have members who live or work in rural areas. Also, the Department solicited comment from all colleges and universities in the State that offer occupational therapy and occupational therapy assistant programs, including those located in rural areas.
Job Impact Statement
Education Law section 7908, as added by Chapter 444 of the Laws of 2012, establishes mandatory continuing competency requirements for licensed occupational therapists and occupational therapy assistants authorized to practice in New York State. The proposed rule establishes standards for acceptable continuing competency to meet the statutory requirement.
The proposed rule implements specific statutory requirements and directives. Education Law section 7908 establishes the requirement that licensed occupational therapists and occupational therapy assistants must complete a prescribed number of hours of continuing learning activities in order to register to practice in New York State. Therefore, any impact on jobs and employment opportunities by establishing a continuing competency requirement for occupational therapists and occupational therapy assistants is attributable to the statutory requirement, not the proposed rule, which simply establishes consistent standards as directed by statute.
In any event, a similar statutory continuing competency requirement was established for individuals licensed as physical therapists and physical therapist assistants in 2008, and the Department is not aware that the requirement significantly affected jobs or employment opportunities in those professions. In addition, the statutory requirement should increase job and employment opportunities for instructors and administrators who will provide the continuing competency coursework to licensees.
Chapter 329 of the Laws of 2012 authorizes the issuance of a limited permit for occupational therapy assistants and provides for the supervision of occupational therapy assistant students engaged in clinical activities by an occupational therapy assistant. The proposed rule amends existing regulations to conform to these statutory changes.
Because it is evident from the nature of the proposed regulation, which implements specific statutory requirements and directives, that the proposed rule will have no impact on jobs or employment opportunities attributable to its adoption or only a positive impact, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one was not prepared.
