PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 76.4; repeal of sections 76.5 and 76.6; renumbering of section 76.7 to section 76.5; and addition of new sections 76.6, 76.7, 76.8 and 76.9 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a) and 7906(4) and (7); and L. 2011, ch. 460
Finding of necessity for emergency rule:
Preservation of public health and general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment to the Regulations of the Commissioner of Education is necessary to conform the Commissioner's Regulations to the requirements of Chapter 460 of the Laws of 2011. Chapter 460 amended Article 156 of the Education Law to amend the scope of practice of occupational therapists, to provide for the supervision of limited permittees in occupational therapy, to provide for practice as exempt individuals by occupational therapy assistant students, to authorize and provide for the definition of practice of occupational therapy assistants, to provide that occupational therapist assistants shall be subject to the disciplinary and regulatory authority of the Board of Regents and the Department, and to make various technical changes to these sections of the Education Law.
The proposed amendment is necessary to implement the new law. The Board of Regents adopted the proposed amendment as an emergency rule at its February meeting, with an effective date of February 14, 2012, consistent with the effective date of the law, and readopted the emergency rule at the April Regents meeting to ensure the rule remains continuously in effect until it can be presented for adoption as a permanent rule.
A Notice of Proposed Rule Making was published in the State Register on March 14, 2012. The proposed rule includes provisions governing the topics of this emergency rule, as described above and, in addition, provisions governing the supervision of holders of limited permits in occupational therapy and supervision of occupational therapy assistants. The 45-day public comment period expired on April 30, 2012.
Further revisions to the proposed rule are anticipated in response to public comment. Pursuant to the State Administrative Procedure Act, the revised proposed rule cannot be adopted as a permanent rule until after its publication in the State Register and expiration of a 30-day public comment period. However, the April emergency rule will expire on July 14, 2012. A lapse in the rule could potentially disrupt the practice of occupational therapy pursuant to Chapter 460 of the Laws of 2011.
Emergency action at the June 18-19, 2012 Regents meeting is necessary for the preservation of the public health and general welfare in order to ensure that the emergency rule remains continuously in effect until the revised proposed rule can be adopted and made effective as a permanent rule.
It is anticipated that the revised proposed rule will be presented for adoption as a permanent rule at the September 10-11, 2012 Regents meeting, following its publication in the State Register and expiration of the 30-day public comment period for revised rule makings required under the State Administrative Procedure Act.
Subject:
Occupational Therapy.
Purpose:
To implement chapter 460 of the Laws of 2011, relating to the profession of occupational therapy.
Text of emergency rule:
1. Section 76.4 of the Regulations of the Commissioner of Education is amended, effective July 15, 2012, as follows:
(a) …
(b) Limited permits may be renewed once for a period not to exceed one year at the discretion of the department because of personal or family illness or other extenuating circumstances which prevented the permittee from becoming licensed[, provided that the permittee has not failed the licensing examination in occupational therapy].
2. Section 76.5 of the Regulations of the Commissioner of Education is repealed, and 76.7 of the Regulations of the Commissioner of Education is renumbered 76.5, effective July 15, 2012.
3. Section 76.6 of the Regulations of the Commissioner of Education is renumbered 76.8, and new sections 76.6, 76.7, and 76.9, are added, effective July 15, 2012, to read as follows:
76.6 Definition of occupational therapy assistant practice and the use of the title occupational therapy assistant.
(a) An "occupational therapy assistant" shall mean a person authorized in accordance with this Part who provides occupational therapy services under the direction and supervision of an occupational therapist or licensed physician and performs client related activities assigned by the supervising occupational therapist or licensed physician. Only a person authorized under this Part shall participate in the practice of occupational therapy as an occupational therapy assistant, and only a person authorized under this Part shall use the title "occupational therapy assistant."
(b) As used in this section, client related activities shall mean:
(1) contributing to the evaluation of a client by gathering data, reporting observations and implementing assessments delegated by the supervising occupational therapist or licensed physician;
(2) consulting with the supervising occupational therapist or licensed physician in order to assist him or her in making determinations related to the treatment plan, modification of client programs or termination of a client's treatment;
(3) the utilization of a program of purposeful activities, a treatment program, and/or consultation with the client, family, caregiver, or other health care or education providers, in keeping with the treatment plan and under the direction of the supervising occupational therapist or licensed physician;
(4) the use of treatment modalities and techniques that are based on approaches taught in an occupational therapy assistant educational program registered by the Department or accredited by a national accreditation agency which is satisfactory to the Department, and that the occupational therapy assistant has demonstrated to the occupational therapist or licensed physician that he or she is competent to use; or
(5) the immediate suspension of any treatment intervention that appears harmful to the client and immediate notification of the occupational therapist or licensed physician.
76.7 Requirements for authorization as an occupational therapy assistant.
To qualify for authorization as an occupational therapy assistant pursuant to section 7906(7) of the Education Law, an applicant shall fulfill the following requirements:
(a) file an application with the Department;
(b) have received an education as follows:
(1) completion of a two-year associate degree program for occupational therapy assistants registered by the Department or accredited by a national accreditation agency which is satisfactory to the Department; or
(2) completion of a postsecondary program in occupational therapy satisfactory to the Department and of at least two years duration;
(c) have a minimum of three months clinical experience satisfactory to the state board for occupational therapy and in accordance with standards established by a national accreditation agency which is satisfactory to the Department;
(d) be at least eighteen years of age;
(e) be of good moral character as determined by the Department;
(f) register triennially with the Department in accordance with the provisions of subdivision (h) of this section, sections 6502 and 7906(8) of the Education Law, and sections 59.7 and 59.8 of this Subchapter;
(g) pay a fee for an initial license and a fee for each triennial registration period that shall be one half of the fee for initial license and for each triennial registration period established in Education law for occupational therapists; and
(h) except as otherwise provided by Education Law section 7907(2), pass an examination acceptable to the Department.
76.9 Occupational therapy assistant student exemption. To be permitted to practice as an exempt person pursuant to section 7906(4) of the Education Law, an occupational therapy assistant student shall be enrolled in a program as set forth in section 76.7(b)(1) of this Part and may work with an occupational therapy assistant who is acting as a fieldwork educator. Such student shall be directly supervised by an occupational therapist in accordance with standards established by a national accreditation agency which is satisfactory to the Department. Any such work performed by an occupational therapy assistant as a fieldwork educator shall be subject to the supervision requirements of section 76.8 of this Part.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-11-12-00010-P, Issue of March 14, 2012. The emergency rule will expire September 10, 2012.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, Administrative Assistant, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY, (518) 474-6400, email: legal@mail.nysed.gov
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 provides that admission to the professions shall be supervised by the Board of Regents, and administered by the Education Department, assisted by a state board for each profession.
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 practice of the professions.
Subdivision (4) of section 7906 of the Education Law authorizes the Commissioner of Education to define in regulation the direct supervision of an occupational therapy assistant student engaged in occupational therapy as an exempt person.
Subdivision (7) of section 7906 of the Education Law authorizes the Commissioner of Education to define occupational therapy assistants and to promulgate regulations governing standards for authorization to practice as an occupational therapy assistant, including those relating to education, experience, examination and character, and authorizes the Board of Regents to establish an application fee for such authorization to practice.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment to section 76.4(b) of the Regulations of the Commissioner of Education carries out the intent of the aforementioned statutes by removing the provision that prohibits a holder of a limited permit in occupational therapy from receiving a renewal of the permit in the event the holder has failed the licensing examination.
The proposed adoption of a new section 76.6 of the Commissioner's regulations carries out the intent of the aforementioned statutes by defining occupational therapy practice and providing that only a person authorized by the Department shall participate in the practice of occupational therapy assistant and use the title occupational therapy assistant.
The proposed adoption of a new section 76.7 of the Commissioner's regulations carries out the intent of the aforementioned statutes by establishing standards for authorization to practice as an occupational therapy assistant, including those relating to education, experience, examination, and character, and by establishing fees for initial licensure and for triennial registration.
The proposed adoption of a new section 76.9 of the Commissioner's regulations carries out the intent of the aforementioned statutes by setting requirements for an occupational therapy student to qualify for the statutory exemption allowing him or her to practice under supervision.
3. NEEDS AND BENEFITS:
The changes to the existing law governing the practice of occupational therapy that were enacted by Chapter 460 of the Laws of 2011 authorized the Department to establish, in regulation, several significant components of the practice, including the requirements for eligibility and scope of practice for occupational therapy assistants, and requirements for supervision of occupational therapy assistant students. These regulations are necessary to implement the provisions of Chapter 460.
4. COSTS:
(a) Cost to State government: It is anticipated that the costs to the State Education Department in implementing the requirements of Chapter 460 of the Laws of 2011 will be offset by the licensure and registration fees authorized by the law.
(b) Cost to local government: None.
(c) Cost to private regulated parties: As authorized by Chapter 460 of the Laws of 2011, the proposed regulations also establish fees for licensure and triennial registration.
(d) Costs to the regulatory agency: As stated in "Costs to State Government," the proposed amendment does not impose costs on the State Education Department beyond those covered by the proposed licensure and registration fees for occupational therapy assistants.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any program, service, duty, or responsibility upon local governments.
6. PAPERWORK:
The proposed amendments do not require additional paperwork.
7. DUPLICATION:
The amendment does not duplicate other existing State or Federal requirements.
8. ALTERNATIVES:
Alternatives to the supervision requirements for occupational therapy assistant students were considered. Virtually all of such students in New York State attend programs accredited by the National Board for Certification in Occupational Therapy (NBCOT), and there is no other recognized national body for accreditation of such programs. NBCOT has established accreditation standards governing the fieldwork of occupational therapy assistant students, and it is believed that these are adequate to protect the public. The alternative would be to create new standards, but this may create a duplicative set of standards that may not be consistent with those used by a given educational program. It was also noted that the NBCOT accreditation standards permit supervision of students by either occupational therapists or occupational therapist assistants. The statute is clear, however, in requiring that students be directly supervised by an occupational therapist.
9. FEDERAL STANDARDS:
There are no Federal standards regarding the matters addressed by these regulations.
10. COMPLIANCE SCHEDULE:
The proposed amendment must be complied with on its stated effective date. No additional period of time is necessary to enable regulated parties to comply.
Regulatory Flexibility Analysis
The proposed amendments would implement various changes to existing law governing the practice of occupational therapy that were enacted by Chapter 460 of the Laws of 2011, including requirements for eligibility and scope of practice for occupational therapy assistants, and requirements for supervision of occupational therapy assistant students.
The amendments do not regulate small businesses or local governments. It does not impose any reporting, recordkeeping, or other compliance requirements on small business or local governments beyond those inherent in the statute, or have any adverse economic effect on them. Because it is evident from the nature of the proposed amendments that they do not affect small businesses or local governments, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and 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 amendments apply to all occupational therapy assistants and those occupational therapists and physicians who supervise these professionals 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:
The purpose of the proposed amendment is to implement chapter 460 of the Laws of 2011 which made a variety of changes to the law affecting the practice of occupational therapy and the authorization of occupational therapy assistants. As authorized by chapter 460, the proposed amendment will establish qualifications to be authorized to practice as an occupational therapy assistant, and will not require regulated parties, including those that are located in rural areas of the State, to hire professional services to comply.
3. COSTS:
The proposed section 76.7(g) of the Commissioner's regulations establishes a fee for an initial license and for each triennial registration for an occupational therapy assistant. The establishment of this fee is mandated by statute. The proposed regulation would set this fee at one half that amount imposed on occupational therapists, which would yield a fee of $147 for initial licensure and three year registration, and a fee of $90 for the subsequent three year re-registrations. Currently, these fees are set at $103 for initial licensure and three year registration, and at $54 for the subsequent three year registrations only. The increase is required because occupational therapists are now subject to discipline and moral character review by the Department, and the cost of these processes must be covered by fee revenue.
4. MINIMIZING ADVERSE IMPACT:
The proposed fee structure was determined to be the minimum needed to support additional costs. It is on a par with fee structures in other professions.
5. RURAL AREA PARTICIPATION:
The State Education Department solicited comments on the proposed amendments from the New York State Occupational Therapy Association (NYSOTA), and Department staff attended a meeting of the Capital District NYSOTA (which includes Schenectady, Rensselaer, Columbia and Greene counties) in Albany and the Hudson-Taconic NYSOTA (which includes Ulster, Sullivan, Dutchess and Delaware counties) in Middletown to discuss these proposed amendments.
Job Impact Statement
The proposed amendments would implement various changes to existing law governing the practice of occupational therapy that were enacted by chapter 460 of the Laws of 2011, including requirements for eligibility and scope of practice for occupational therapy assistants, and requirements for supervision of occupational therapy assistant students. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the March 14, 2012 State Register, the State Education Department received the following comments.
1. COMMENT:
Generally, the extent of the requirements contained in the regulations governing supervision of occupational therapy assistants will inhibit the hiring of individuals in these professions or cause lay-offs of these professionals. It was noted specifically that no other similarly educated professionals are required to have a written supervision plan, which is required by the proposed regulations.
DEPARTMENT RESPONSE:
The Department considers the supervision requirements in the proposed amendments appropriate to the circumstances of the profession of occupational therapy. The key element to the supervision of both holders of limited permits in occupational therapy and of occupational therapy assistants in the proposed regulations is the development of a supervision plan. The plan would be unique for each supervised professional and would be tailored to the ability and experience of that professional, to the setting where services are being provided, and to the complexity of the client needs. The Department believes that the supervision plan, if properly developed, will meet the supervision requirements for each individual, and will not be so burdensome as to cause a disruption in the workplace for these professionals.
The occupational therapy profession is unique in that once an evaluation of a client's needs is determined, and a treatment plan is developed, the therapeutic activities that ensue may be performed by an occupational therapist or an occupational therapy assistant under supervision. Unlike other professions, there is generally no restriction on the therapeutic activities which may be performed by an occupational therapy assistant as long as they are within the scope of practice. Nor is there a requirement that a supervisor be in physical proximity to the occupational therapy assistant. Under these circumstances, the Department perceives a need for supervision requirements which are sufficient to protect the public, but are flexible enough to meet the needs of the profession.
2. COMMENT:
The requirements contained in the regulations governing supervision of holders of limited permits in occupational therapy are too restrictive and unnecessary, given the fact that such individuals have completed their education requirements, including clinical fieldwork. Some comments characterized these supervision requirements as equating holders of limited permits to occupational therapy assistants.
DEPARTMENT RESPONSE:
The Department has considered the comment, and agrees that the supervisor of a holder of a limited permit need not, in all instances, initiate, direct and participate in the initial evaluation of the client, nor in all instances, participate on a regular basis in the delivery of occupational therapy services. The extent of the supervisor's involvement in these activities may vary depending on the client needs and the experience and training of the holder of the limited permit. Therefore, we have revised the proposed regulation to provide that the extent of the involvement of the supervisor in these activities is to be addressed in the supervision plan.
3. COMMENT:
The requirement that the ratio of supervised holders of limited permits in occupational therapy and occupational therapy assistants to supervisors be five to one is arbitrary, and should be left to the discretion of the supervisor of these professionals.
DEPARTMENT RESPONSE:
Some reasonable limitation on the number of professionals one individual occupational therapist or physician may supervise is necessary, and a five to one ratio is considered appropriate by the Department. In discussions with interested parties before the promulgation of this regulation, a provision was developed and included in the proposed regulation which would provide for the supervision of the full-time equivalent of five individuals, to recognize a setting where part-time individuals are being supervised.
4. COMMENT:
The requirement that the supervisor consider the input of the holder of a limited permit in occupational therapy or occupational therapy assistant in developing a supervision plan is inappropriate and not consistent with the level of expertise and training of the supervising professionals.
DEPARTMENT RESPONSE:
The proposed regulation at section 76.8(c) requires that the determination of the level and type of supervision be based upon consultation with the supervised occupational therapy assistant. No similar requirement is found with regard to supervision of holders of limited permits in section 76.4(c). The Department recognizes that in many instances, an experienced occupational therapy assistant has been working with a given client population for a long time with positive results. It is appropriate for input to be provided by the supervised occupational therapy assistant so that the level and type of supervision will not disrupt successful therapeutic relationships that are in place.
5. COMMENT:
The requirement that the supervision plan specify how professional development of a holder of a limited permit in occupational therapy or an occupational therapy assistant be fostered should not be included in regulation, as regulations should not force one professional to foster another.
DEPARTMENT RESPONSE:
The Department considers the professional development of licensed professionals to be a basic element of competent practice, and considers it appropriate, therefore, that the supervision plan address professional development.
6. COMMENT:
The provision in section 76.4(b) that would prohibit the renewal of a limited permit in occupational therapy for an individual who has failed the licensing examination should not be removed. This diminishes the public protection role of the State Board for Occupational Therapy.
DEPARTMENT RESPONSE:
This provision conforms the existing regulation to a change in statute.
7. COMMENT:
The proposed amendment to section 76.9 is appreciated, as it permits occupational therapy assistants to participate in the supervision of occupational therapy assistant students engaged in clinical practice, to the extent permitted by statute. Alternatively, one comment suggested that the amendment would prevent an occupational therapy assistant student from working with an occupational therapy assistant as a fieldwork educator.
DEPARTMENT RESPONSE:
Education Law section 7906(4) permits an occupational therapy student to engage in clinical practice, but only under the direct supervision of an occupational therapist. The Department is aware that accreditation standards applicable to this clinical practice authorize the use of occupational therapy assistants as fieldwork educators. The proposed regulation recognizes the role of such fieldwork educators to the extent permitted under existing law.
