PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 76 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a), 7906(4) and (7); and L. 2011, ch. 460
Subject:
Occupational Therapy.
Purpose:
To implement chapter 460 of the Laws of 2011, relating to the profession of occupational therapy.
Text or summary was published
in the March 14, 2012 issue of the Register, I.D. No. EDU-11-12-00010-P.
Final rule as compared with last published rule:
No changes.
Revised rule making(s) were previously published in the State Register on
July 18, 2012.
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
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.
