RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF OCCUPATIONAL THERAPY EDUCATION AND LICENSURE
[ 49 PA. CODE CH. 42 ]
Referrals by Certified Registered Nurse Practi- tioners and Physician Assistants
[43 Pa.B. 2991]
[Saturday, June 1, 2013]The State Board of Occupational Therapy Education and Licensure (Board) amends § 42.25 (relating to orders) to read as set forth in Annex A.
Background and Purpose
Section 14 of the Occupational Therapy Practice Act (act) (63 P. S. § 1514) formerly provided that licensed occupational therapists were authorized to treat individual patients based on a referral from a licensed physician, licensed optometrist or a licensed podiatrist. The act of July 20, 2007 (P. L. 318, No. 48) (Act 48) amended section 8.2 of The Professional Nursing Law (63 P. S. § 218.2) to provide that certified registered nurse practitioners may ''make respiratory and occupational therapy referrals.'' Section 4 of Act 48 repealed section 14 of the act ''insofar as [it is] inconsistent with the amendment of section 8.2'' of The Professional Nursing Law. The Board interpreted this ''repealer'' language to mean that licensed occupational therapists could accept referrals from certified registered nurse practitioners, although section 14 of the act was not amended to expressly provide that authority.
Subsequently, the act of July 4, 2008 (P. L. 580, No. 45) (Act 45) amended section 13 of the Medical Practice Act of 1985 (63 P. S. § 422.13) and the act of July 4, 2008 (P. L. 589, No. 46) (Act 46) amended section 10 of the Osteopathic Medical Practice Act (63 P. S. § 271.10) to provide similar authority with regard to physician assistants. Act 45 and Act 46 contained the same ''repealer'' language, repealing section 14 of the act ''insofar as inconsistent'' with the amendments to the Medical Practice Act and the Osteopathic Medical Practice Act. Again, the Board construed this language to mean that licensed occupational therapists could accept referrals from physician assistants, in spite of the fact that the text of section 14 of the act remained unchanged. Many licensed occupational therapists were confused about the effect of this ''repealer'' language and were unsure whether they could accept referrals from certified registered nurse practitioners and physician assistants.
Finally, the act of July 5, 2012 (P. L. 1132, No. 138) (Act 138) amended section 14 of the act to expressly permit licensed occupational therapists to accept referrals from certified registered nurse practitioners and physician assistants. Although the Board is undertaking a comprehensive proposed rulemaking package to implement the remainder of Act 138, the Board determined that it can, and should, promulgate a final-omitted rulemaking to amend its regulations to expressly include the statutory authority to accept referrals from certified registered nurse practitioners and physician assistants to conform to the amendments to the act and to end any remaining confusion among licensees.
Omission of Proposed Rulemaking
Under section 204 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204), known as the Commonwealth Documents Law (CDL), the Board is authorized to omit the procedures for proposed rulemaking in sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) if the Board finds that the specified procedures are impracticable, unnecessary or contrary to the public interest. The Board determined that publication of proposed rulemaking is unnecessary under the circumstances because the Board is amending § 42.25 to conform to the amendments to The Professional Nursing Law, the Medical Practice Act of 1985, the Osteopathic Medical Practice Act and the act which permit licensed occupational therapists to accept referrals from certified registered nurse practitioners and physician assistants.
Description of the Amendment
Section 14 of the act originally provided that an occupational therapist could provide occupational therapy to an individual upon referral by a licensed physician, podiatrist or optometrist. Amendments to The Professional Nursing Law, the Medical Practice Act of 1985, the Osteopathic Medical Practice Act and the act allow a licensed occupational therapist to accept referrals from certified registered nurse practitioners and physician assistants. Therefore, the Board is amending § 42.25 to add certified registered nurse practitioners and licensed physician assistants to the list of authorized referring health care providers.
Statutory Authority
Section 5(b) of the act (63 P. S. § 1505(b)) authorizes the Board to promulgate and adopt rules and regulations not inconsistent with law as it deems necessary for the performance of its duties and the proper administration of the act.
Fiscal Impact and Paperwork Requirements
The amendments will not have a fiscal impact on, or create additional paperwork for, the regulated community, the Commonwealth or its political subdivisions. There may be savings to the general public because prior to these amendments when a certified registered nurse practitioner or physician assistant determined that a patient would benefit from occupational therapy, the certified registered nurse practitioner or physician assistant had to first obtain the referral from a physician or refer the patient back to the physician to obtain a referral. Savings may result from the direct referral. Commonwealth agencies whose regulations and policy statements limit implementation of direct occupational therapy to situations in which a physician has made a referral or order may want to consider revising their regulations.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on April 8, 2013, the Board submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee, and the House Professional Licensure Committee. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on April 24, 2013, the final-omitted rulemaking was approved by the House Committee. On May 15, 2013, the final-omitted rulemaking was deemed approved by the Senate Committee. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 16, 2013, and approved the final-omitted rulemaking.
Additional Information
For additional information about the final-omitted rulemaking, submit inquiries to Judy Harner, State Board of Occupational Therapy Education and Licensure, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-1389, ST-OCCUPATIONAL@state.pa.us.
Findings
The Board finds that:
(1) Public notice of the Board's intention to amend its regulations under the procedures in sections 201 and 202 of the CDL has been omitted under section 204 of the CDL because public comment is unnecessary in that the amendments merely implement amendments to the act.
(2) The amendment of the Board's regulations in the manner provided in this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 42, are amended by amending § 42.25 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) The Board shall certify this order and Annex and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
ELLEN L. KOLODNER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 43 Pa.B. 3067 (June 1, 2013).)
Fiscal Note: 16A-678. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 42. STATE BOARD OF OCCUPATIONAL THERAPY EDUCATION AND LICENSURE
MINIMUM STANDARDS OF PRACTICE § 42.25. Orders.
(a) Written orders. An occupational therapist shall accept a referral in the form of a written order from a licensed physician, licensed optometrist, licensed podiatrist, certified registered nurse practitioner or licensed physician assistant.
(b) Oral orders.
(1) An occupational therapist may accept a referral in the form of an oral order if it is impractical for the licensed physician, licensed optometrist, licensed podiatrist, certified registered nurse practitioner or licensed physician assistant to provide the order in writing.
(2) An occupational therapist receiving an oral order shall immediately transcribe the order in the patient's medical record, including the date and time the order was received, and sign the medical record.
(3) The occupational therapist in a private office setting who has received an oral order shall obtain the countersignature of the licensed physician, licensed optometrist, licensed podiatrist, certified registered nurse practitioner or physician assistant who issued the order within 5 days of receiving the order.
(4) If the occupational therapist who receives an oral order provides services in a setting that is independent of the prescriber's setting, the occupational therapist may accept the countersignature of the ordering licensed physician, licensed optometrist, licensed podiatrist, certified registered nurse practitioner or physician assistant on a written copy of the order that is mailed or faxed to the occupational therapist.
(5) If an occupational therapist provides services in a facility licensed by the Department of Health, the countersignature of the ordering licensed physician, licensed optometrist, licensed podiatrist, certified registered nurse practitioner or physician assistant shall be obtained in accordance with the applicable regulations of the Department of Health governing the facility, including 28 Pa. Code §§ 211.3 and 601.31 (relating to oral and telephone orders; and acceptance of patients, plan of treatment and medical supervision).
[Pa.B. Doc. No. 13-987. Filed for public inspection May 31, 2013, 9:00 a.m.]
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