PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 76.10 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 212(3), 6504 (not subdivided), 6507(2)(a) and 7908(4), (5) and (6)
Subject:
Occupational therapy.
Purpose:
Permits continuing competency credits for independent study related to fieldwork education and mentoring from outside the field.
Text or summary was published
in the August 14, 2013 issue of the Register, I.D. No. EDU-33-13-00023-P.
Final rule as compared with last published rule:
No changes.
Text of 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
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:
An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the August 14, 2013 State Register, the State Education Department has not received any comments from the public. A copy of the proposed rule was provided to the New York State Occupational Therapy Association (NYSOTA) prior to publication. NYSOTA provided comments summarized as follows.
1. COMMENT:
Fieldwork supervision should be created as a separate category of acceptable learning activities, removed from the category “Independent study” [clause (b) of subparagraph (iii) of paragraph (2) of subdivision (c)]. Allowing only 12 learning hours over a 3 year period for fieldwork supervision and independent learning combined is too restrictive.
DEPARTMENT RESPONSE:
The Department understands the significance of fieldwork supervision to the profession and the need to encourage occupational therapy professionals to take on this responsibility. However, once continuing competency became a requirement for New York State licensees, the Department had an obligation to ensure that credit is granted for learning activities that enhance the competency of such licensees, and that such activities are appropriately documented. Consistent with these goals, we do not believe it is appropriate to grant continuing education credit for fieldwork supervision alone. We do, however, believe it is appropriate to grant up to 12 hours of continuing competency credit for study undertaken in conjunction with fieldwork supervision. Accordingly, we have proposed a regulation that explicitly provides that the learning associated with fieldwork supervision could be recognized as part of independent study, and have expanded the number of hours that can be earned through independent study from 6 to 12. We believe that the primary method of earning continuing competency hours is through formal study; therefore, the Department does not believe that expanding the upper limit of independent study hours beyond 12 is appropriate.
2. COMMENT:
Clarify the status of “in-service training” under the category “Coursework or training” [clause (a) of subparagraph (iii) of paragraph (2) of subdivision (c)]. In-service training that is offered by an employer that has been approved as a sponsor will be eligible for learning hours under this category. However, if the in-service training is not offered by an employer that has been approved, we understand that the OT or OTA may be able to apply that learning experience to the category of independent study, a category that is already very limited in the number of hours allowed. We would recommend that the regulation language regarding in-service training needs to be clearer.
DEPARTMENT RESPONSE:
The Department recognizes the value of in-service training provided by employers, and has worked with employers who are not already recognized as approved sponsors and who seek to apply to the Department for approval. The application for such approval is available on our website and the fee associated with this application, as proposed in this regulatory package, is a nominal $300 per year. We may recognize credit for independent study for a professional whose employer provides some training but is not an approved sponsor, but view this as an exception to the preferred method and not appropriate in regulation.
3. COMMENT:
Restricting mentoring to professions licensed under Title VIII of the Education Law may discourage valuable mentoring relationships in the field of education. This is true both for occupational therapists and assistants who work in primary and secondary education settings, as well as for therapists who are teaching at occupational therapy and assistant programs in colleges and universities. It is quite possible that an occupational therapist or occupational therapy assistant may find their most beneficial mentoring from a well-seasoned educator or school psychologist. For occupational therapy educators in post-secondary settings, further mentoring in pedagogical methods is critical to their development in their role as an educator.
DEPARTMENT RESPONSE:
The Department is willing to expand mentoring to include mentors who are licensed professionals under Title VIII of the Education Law, as set forth in the amendments to the regulation, but is not willing to expand the available mentors to individuals who are not so licensed. We believe that the regulations provide individuals other options to gain knowledge on the related subjects that non-licensed mentors may be able to provide. We are also concerned over our lack of disciplinary authority over mentors who are not licensed.
4. COMMENT:
Section 76.10(a)(3) of the Regulations of the Commissioner of Education currently defines “licensee” as including an occupational therapy assistant. This is inaccurate because occupational therapy assistants are not granted a license, but are exempted from the license by the statute. It is recommended that alternate language should be used in the definition section and throughout section 76.10.
DEPARTMENT RESPONSE:
The continuing competency regulations apply to both occupational therapists and occupational therapy assistants in almost every respect and, therefore, the use of a common term was the most expedient way to refer to both. The regulations in their current form are lengthy, and the Department does not wish to complicate them further through the use of two separate identifiers that would need to be repeated throughout the regulation. The proposed regulation clearly limits the definition of “licensee” by indicating that the definition applies only to the continuing education section of the regulations.
