PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
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 of proposed rule:
1. Clause (b) of subparagraph (iii) of paragraph (2) of subdivision (c) of section 76.10 of the Regulations of the Commissioner of Education is amended, effective November 6, 2013, as follows:
(b) Independent study. Acceptable learning activities may include independent study as defined in paragraph [(a)](2) of subdivision (a) of this section. A licensee who completes independent study to meet the mandatory continuing competency requirement shall prepare a narrative account of what was learned and an overall written evaluation of the learning activity. Such licensee shall maintain a copy of the narrative account and written evaluation for six years after completion of this learning activity. Study in conjunction with supervision of fieldwork education conducted as part of a program of study as set forth in section 76.1 or 76.7 (b) of this Part or in conjunction with supervised experience conducted pursuant to section 76.2 of this Part may be considered independent study. A licensee who completes study in conjunction with such fieldwork supervision or supervised experience shall prepare and retain a narrative account of the preparation associated with the supervision in addition to the other requirements of this clause, and shall retain a letter of verification or certificate from the program that includes the dates of fieldwork. Three clock hours of independent study shall equal one continuing competency hour. No more than [one-sixth] one-third of the mandatory continuing competency requirement may be completed through independent study.
2. Subclause (2) of clause (c) of subparagraph (iii) of paragraph (2) of subdivision (c) of section 76.10 of the Regulations of the Commissioner of Education is amended, effective November 6, 2013, as follows:
(2) The mentor shall be licensed as an occupational therapist or occupational therapy assistant[, as applicable], or in another profession licensed pursuant to Title VIII of the Education Law and have at least five years of post-licensure experience in the subject of the mentoring. The mentee shall be licensed as an occupational therapist or occupational therapy assistant.
3. Paragraph (2) of subdivision (g) of section 76.10 of the Regulations of the Commissioner of Education is amended, effective November 6, 2013, as follows:
(2) In addition to meeting the recordkeeping requirement prescribed in paragraph (1) of this subdivision, each licensee who meets a portion of his or her continuing competency requirement through independent study, participation in a mentorship either as a mentor or as a mentee, or participation in a professional study group[, fieldwork supervision or volunteer supervision] shall meet the recordkeeping requirements prescribed in subparagraph (c)(2)(iii) of this section, applicable to that learning activity.
4. Subparagraph (i) of paragraph (2) of subdivision (i) of section 76.10 of the Regulations of the Commissioner of Education is amended, effective November 6, 2013, as follows:
(i) A sponsor of coursework or training that is approved by the American Occupational Therapy Association, the National Board for Certification in Occupational Therapy, [or] the New York State Occupational Therapy Association, [or] the International Association for Continuing Education and Training, or an equivalent organization determined by the department to have adequate standards for approving sponsors of continuing education for professionals regulated by T[t]itle VIII of the Education Law that include but are not limited to standards that are equivalent to the standards prescribed in clauses (3)(ii)(a), (b), (c), (d), and (e) of this subdivision; or
5. Subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education is amended by adding a new paragraph (3) effective November 6, 2013, to read as follows:
(3) Organizations desiring to offer coursework or training based upon a department review, pursuant to paragraph (i) (3) of this section, shall submit an application fee of $900.00 with its application for approval to become a sponsor of coursework or training offered to occupational therapists and/or occupational therapy assistants to meet the continuing competency requirement. Application for a three-year renewal of the permit shall be accompanied by a fee of $900.00.
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) 486-1765, email: opdepcom@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
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.
Subdivision (3) of section 212 of the Education Law authorizes the State Education Department to determine and set fees for certifications and permits.
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.
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 establishes a $900 fee for sponsors of continuing competency activities.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment to clause (b) of subparagraph (iii) of paragraph (2) of subdivision (c) 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 rule would explicitly provide that an occupational therapist or occupational therapy assistant who engages in study in conjunction with the supervision of fieldwork education of students may receive credit under the category of independent study. In addition, licensees would be able to satisfy up to one-third of their continuing competency requirement through independent study; previously, the maximum had been one-sixth.
The proposed amendment to subclause (2) of clause (c) of subparagraph (iii) of paragraph (2) of subdivision (c) 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 rule would explicitly provide that an occupational therapist or occupational therapy assistant may receive mentoring from any professional licensed pursuant to Title VIII of the Education Law, rather than only from another occupational therapist or occupational therapy assistant.
The proposed amendment to paragraph (2) of subdivision (g) section 76.10 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes in that it will correct a technical error in the existing regulations that references activities not recognized as acceptable learning activities for continuing competency credit by deleting extraneous words.
The proposed amendment to subparagraph (i) of paragraph (2) of subdivision (i) of section 76.10 of the Regulations of the Commissioner of Education carries out the intent of the aforementioned statutes in adding the American Occupational Therapy Association (AOTA) to those organizations whose approval of sponsors of continuing competency is recognized by the New York State Education Department.
The proposed addition of a new paragraph 3 to subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education carries out the intent of the aforementioned statutes by establishing a fee for approval as a sponsor of continuing competency programs. The fee will provide the New York State Education Department with sufficient resources to review sponsors of coursework or training offered to occupational therapists and occupational therapist assistants who need to fulfill the continuing competency requirement.
3. NEEDS AND BENEFITS:
Section 7908 of the Education Law authorizes the Commissioner of Education to promulgate regulations governing various aspects of the continuing competency requirement for occupational therapists and occupational therapy assistants. A comprehensive regulation package was adopted by the Board of Regents at its January 2013 meeting, effective February 13, 2013 (State Register, January 30, 2013; EDU-46-12-00015-A). The current proposed rule makes adjustments to that regulation.
The proposed amendment to clause (b) of subparagraph (iii) of paragraph (2) of subdivision (c) of section 76.10 of the Regulations of the Commissioner of Education will permit an occupational therapist or occupational therapy assistant to receive continuing competency credit for study in conjunction with supervision of fieldwork education. Supervisors spend time and effort in preparation for the responsibility of training students who are engaged in clinical work as part of their education, and this amendment to the regulations will permit the New York State Education Department to recognize this effort as independent study. Proper documentation will be required, in the form of a narrative account of the preparation associated with the supervision, and a letter of verification or certification from the student’s school.
The proposed amendment to subclause (2) of clause (c) of subparagraph (iii) of paragraph (2) of subdivision (c) of section 76.10 of the Regulations of the Commissioner of Education will expand the mentors available to occupational therapists and occupational therapy assistants who seek continuing competency credit through mentorships to include any professional licensed pursuant to Title VIII of the Education Law. Currently, the regulations limit those mentors to other occupational therapists and occupational therapy assistants. This expansion will permit therapists to benefit from the expertise of medical professionals such as physicians and podiatrists in building their competency to practice occupational therapy.
The proposed amendment to paragraph (2) of subdivision (g) section 76.10 of the Regulations of the Commissioner will correct a technical error in the existing regulations that references activities not recognized as acceptable learning activities for continuing competency credit.
The proposed amendment to subparagraph (i) of paragraph (2) of subdivision (i) of section 76.10 of the Regulations of the Commissioner of Education will make it unnecessary for sponsors who are recognized by the American Occupational Therapy Association (AOTA) to seek separate approval from the Department to offer continuing competency courses. The AOTA is a recognized and respected organization, and requiring its approved sponsors to seek separate approval from the Department is an unnecessary burden to the Department and expense to the organizations seeking to become approved sponsors.
The proposed addition of a new paragraph 3 to subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education will provide the Department with sufficient resources to review sponsors of coursework or training offered to occupational therapists and occupational therapy assistants who need to fulfill the continuing competency requirement by establishing a fee of $900 to accompany an application for approval as a sponsor of continuing competency programs and for renewal of such approval.
4. COSTS:
(a) Costs to State government: None.
(b) Costs to local government: The proposed addition of a new paragraph 3 to subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education will impose a $900 triennial fee on local governments seeking approval from the Department to become sponsors of continuing competency courses.
(c) Cost to private regulated parties: The proposed addition of a new paragraph 3 to subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education will impose a $900 triennial fee on organizations seeking approval from the Department to become sponsors of continuing competency courses.
(d) Cost to the regulatory agency: None.
5. LOCAL GOVERNMENT MANDATES:
The proposed addition of a new paragraph 3 to subdivision (j) of section 76.10 of the Regulations of the Commissioner of Education would require a local government entity applying to the Department to become an approved sponsor of continuing education courses to pay a $900 fee.
6. PAPERWORK:
The proposed amendment to clause (b) of subparagraph (iii) of paragraph (2) of subdivision (c) of section 76.10 of the Regulations of the Commissioner of Education would require occupational therapists and occupational therapy assistants who seek continuing competency credit for fieldwork supervision to maintain a narrative account of the preparation associated with that supervision, and verification or certification of the fieldwork placement. These records are necessary to verify the value of the fieldwork supervision activity, upon audit by the Department.
7. DUPLICATION:
There are no other State or Federal requirements on the subject matter of the proposed rule. Therefore, the amendment does not duplicate other existing State or Federal requirements.
8. ALTERNATIVES:
The proposed rule implements statutory requirements. There are no significant 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 expands the options available to occupational therapists and occupational therapy assistants to complete continuing competency requirements. It is anticipated that occupational therapists, occupational therapist assistants, and sponsors of continuing competency programs will be able to comply with the continuing competency requirements on the effective date of the proposed rule.
Regulatory Flexibility Analysis
1. EFFECT OF RULE:
The proposed rule applies to all occupational therapists, occupational therapy assistants, and occupational therapy continuing competency sponsors in the State, some of whom operate small businesses. In addition, school districts and boards of cooperative educational services (BOCES) may employ occupational therapists and occupational therapy assistants and may be, or wish to apply to become, sponsors of continuing competency coursework.
As of January 2013, there were 11,365 occupational therapists licensed in New York State and 4,049 authorized 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 7245. The number is likely to be substantially smaller than this.
Continuing competency coursework and training is provided by sponsors approved by the State Education Department, some of which are small businesses, school districts and BOCES. Current regulations provide that sponsors approved by the National Board for Certification in Occupational Therapy (NBCOT), the New York State Occupational Therapy Association (NYSOTA), the International Association for Continuing Education and Training, or an equivalent organization are deemed approved. The proposed rule would add the American Occupational Therapy Association (AOTA) to this list. For sponsors approved by such organizations, there is no fee required to be a sponsor. For sponsors that are required to apply to the New York State Education Department for approval, the proposed rule provides for a $900 fee for a three year period of approval. Based upon the Department's experience in other licensed professions, which have similar sponsor approval procedures (e.g., podiatry, ophthalmic dispensing), only about 50 sponsors will seek approval through a Department review, an unknown number of which are small businesses.
2. COMPLIANCE REQUIREMENTS:
There are compliance requirements for sponsors seeking approval through a New York 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 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, school districts or BOCES to comply with the proposed rule. It is anticipated that affected parties will be able to complete the application needed for the review by the New York State Education Department, using existing staff and resources.
4. COMPLIANCE COSTS:
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. Such fee would be paid once every three years, upon submission of the organization’s application. Therefore, the annualized cost is $300.
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 rule.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule was drafted to respond to concerns raised by affected parties, some of whom are small businesses, school districts and BOCES. A provision permitting some credit for fieldwork supervision of students, through the independent study process, was included. The opportunity to receive mentoring from licensed professionals other than occupational therapists or occupational therapy assistants was recognized. Sponsors of coursework recognized by the American Occupational Therapy Association (AOTA) will be deemed approved, avoiding a separate application to the State Education Department.
7. SMALL BUSINESS AND LOCAL GOVERNMENT 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 New York 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 rule to these organizations and seeking their input. These organizations include members who own and operate small businesses.
In addition, copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment, and to the chief school officers of the Large City School Districts.
8. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements under Education Law section 7908 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all occupational therapists, occupational therapy assistants, and occupational therapy continuing competency sponsors in the State, including those who are located 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:
Continuing competency coursework and training is provided by sponsors approved by the State Education Department. Current regulations provide that sponsors approved by the National Board for Certification in Occupational Therapy (NBCOT), the New York State Occupational Therapy Association (NYSOTA), the International Association for Continuing Education and Training, or an equivalent organization are deemed approved. The proposed rule would add the American Occupational Therapy Association (AOTA) to this list. For sponsors approved by such organizations, there is no fee required to be a sponsor. For sponsors that are required to apply to the Department for approval, the proposed rule provides for a $900 fee for a three year period of approval. Based upon the Department's experience in other licensed professions, which have similar sponsor approval procedures (e.g., podiatry, ophthalmic dispensing), only about 50 sponsors will seek approval through a State Education Department review.
Professionals who perform independent study in preparation for supervising a student performing fieldwork will be required to maintain additional documentation consisting of a narrative account of the preparation associated with the supervision and a letter of verification or certificate from the program that includes the dates of fieldwork.
No professional services are expected to be required to comply with the proposed rule.
3. COSTS:
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. Such fee would be paid once every three years, upon submission of the organization’s application. Therefore, the annualized cost is $300.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule was drafted to respond to concerns raised by affected parties, some of whom reside in rural areas. A provision permitting some credit for study in preparation for the supervision of students participating in fieldwork education, through the independent study process, was included. The opportunity to receive mentoring from licensed professionals other than occupational therapists or occupational therapy assistants was recognized. Sponsors of coursework recognized by the American Occupational Therapy Association (AOTA) will be deemed approved. The proposed rule implements statutory requirements which are uniformly applicable to all occupational therapists, occupational therapy assistants, and occupational therapy continuing competency sponsors in the State, including those located in rural areas. Therefore, it was not possible to establish different requirements for individuals and entities in rural areas, or to exempt them from the rule's provisions.
5. RURAL AREAS 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.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements under Education Law section 7908 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
Section 7908 of the Education Law establishes mandatory continuing competency requirements for licensed occupational therapists and occupational therapy assistants authorized to practice in New York State. The proposed rule makes adjustments to existing regulations (8 NYCRR Part 76) which implemented that law. 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.
Because it is evident from the nature of the proposed rule, 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.
