PROPOSED RULEMAKING
[ 49 PA. CODE CH. 42 ]
General Revisions
[46 Pa.B. 888]
[Saturday, February 20, 2016]The State Board of Occupational Therapy Education and Licensure (Board) proposes to amend §§ 42.13—42.16, 42.25 and 42.51—42.58 and add §§ 42.61—42.63 (relating to professional liability insurance requirement; notifications; and automatic suspension) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
Section 5(b) of the Occupational Therapy Practice Act (act) (63 P. S. § 1505(b)) authorizes the Board to promulgate and adopt rules and regulations not inconsistent with the act as it deems necessary for the performance of its duties and the proper administration of the act. Section 8(5)(vi) of the act (63 P. S. § 1508(5)(vi)) requires the Board to promulgate regulations governing self-insurance. Section 15(a) of the act (63 P. S. § 1515(a)) further provides that ''[t]he board may establish additional requirements for license renewal designed to assure continued competency of the applying occupational therapist or occupational therapy assistant.''
Background and Purpose
The act of July 5, 2012 (P. L. 1132, No. 138) (Act 138) amended the act to, among other things, require the maintenance of professional liability insurance by occupational therapists, provide for the imposition of civil penalties in accordance with the act of July 2, 1993 (P. L. 345, No. 48), permit the Board to participate in the Bureau of Professional and Occupational Affairs' impaired professionals program and authorize the Board to establish additional requirements for licensure renewal designed to ensure continued competency for occupational therapy assistants. The Board established continued competency regulations for occupational therapists at 43 Pa.B. 3350 (June 22, 2013). This proposed rulemaking implements the professional liability insurance and continued competency provisions of Act 138.
Description of Amendments
Professional liability insurance
Section 3 of Act 138 added a requirement that an occupational therapist obtain and maintain professional liability insurance as a condition of licensure effective with the next biennial period following the effective date of Act 138. Act 138 took effect on September 4, 2012. The next biennial period following that date began on July 1, 2013. Therefore, the Board proposes the following amendment to implement the new professional liability insurance requirement.
The Board proposes to amend §§ 42.13—42.15 (relating to application for licensure; foreign-educated applicants; and application for temporary license) to require applicants for licensure as an occupational therapist to submit proof that the applicant has professional liability insurance as required under the act. In addition, Act 138 provides that it is sufficient for an applicant to file a copy of a letter from the applicant's professional liability insurance carrier indicating that the applicant will be covered against professional liability upon issuance of the license, or a certification from the applicant that the applicant will be covered by an employer's professional liability insurance at the beginning of employment, so long as the applicant follows up with actual proof of insurance within 30 days after issuance of the license or beginning of employment. The proposed amendments to §§ 42.13—42.15 implement these provisions as part of the application process.
Because Act 138 requires an occupational therapist to maintain professional liability insurance, the Board also proposes to amend § 42.16 (relating to biennial renewal; inactive status; failure to renew) to include the requirement that upon renewal a licensed occupational therapist shall certify both completion of the continued competency requirements and maintenance of professional liability insurance. Section 42.16 would also be amended to provide that an occupational therapist applying to reactivate an inactive license would need to provide proof of liability insurance coverage. The Board is also proposing additional amendments to this section to improve clarity.
The Board proposes to add §§ 42.61—42.63 to implement the remaining provisions in Act 138 regarding professional liability insurance. Section 42.61 sets forth the general requirement that an occupational therapist is required to obtain and maintain professional liability insurance in the minimum amount of $1 million per occurrence or claims made. Subsection (b) would prescribe the type of proof required to demonstrate professional liability insurance coverage. Subsection (c) would provide that an occupational therapist who does not maintain professional liability insurance as required may not practice occupational therapy in this Commonwealth.
Section 42.62 would incorporate the provision in Act 138 that requires an occupational therapist to notify the Board within 30 days of a failure to maintain the required professional liability insurance, and the provision that requires an occupational therapist whose license was issued in reliance on a letter from the insurance carrier or an applicant's certification of coverage by an employer to provide proof on insurance within 30 days after the date of issuance of the license or beginning of employment. Section 42.63 incorporates the provisions of Act 138 that provide for the automatic suspension of an occupational therapist license during any period in which the occupational therapist fails to maintain professional liability insurance.
Continued competency
Act 138 also amended the act to provide the authority to the Board to establish continued competency requirements for occupational therapy assistants. The Board established continued competency regulations for occupational therapists at 43 Pa.B. 3350. At this time, the Board proposes to extend those requirements to occupational therapy assistants by replacing ''occupational therapist'' with the more general ''licensee'' throughout §§ 42.51—42.58 (relating to continuing competency). As the Board only licenses occupational therapists and occupational therapy assistants, the term is all-inclusive and the regulations would then apply the continued competency requirements to both classes of licensee.
The continued competency requirements for occupational therapists were effective beginning with the July 1, 2013, to June 30, 2015, biennium. Therefore, occupational therapists were required to complete 24 hours of approved continued competency activities by June 30, 2015, as a condition of biennial renewal. The Board is proposing that the continued competency requirements will begin for occupational therapy assistants in the 2015—2017 biennium. Therefore, § 42.53(a) (relating to continued competency requirements) would be amended to provide that ''[b]eginning with the July 1, 2015—June 30, 2017, biennium, an occupational therapy assistant shall complete a minimum of 24 contact hours in each biennial period in acceptable continued competency activities'' as a condition of licensure renewal.
Additionally, in considering the continued competency requirements for occupational therapists, the Independent Regulatory Review Commission (IRRC) suggested that, should an opportunity arise, § 42.56 (relating to waivers of continued competency requirements; extension of time to complete) should be clarified to explain the process for requesting an ''extension'' to complete the continued competency requirements, noting that the first and only time the concept of an extension appears is in § 42.57(b)(2) (relating to documentation and reporting of continued competency activities), which provides that a licensee ''who has not completed the required hours of continued competency activities will not be eligible for renewal until the hours are completed, unless a waiver or extension has been granted.'' (Emphasis added.) Therefore, the Board proposes to amend § 42.56 to include the process for a licensee to request, and the Board to grant, an extension of time to complete the continued competency activities.
Fiscal Impact and Paperwork Requirements
To implement the statutory requirements of Act 138 and this regulation, the Board must amend its applications for initial licensure, biennial renewal and reactivation. There may be other costs associated with increased prosecutions if occupational therapists fail to obtain and maintain professional liability or occupational therapy assistants fail to complete the continued competency requirements. The Board has determined that it has sufficient funds to absorb these costs without a fee increase at this time. Occupational therapists who wish to become licensed or maintain their licenses must either obtain professional liability insurance, self-insure or have their employers provide coverage. It is estimated that the annual premium for the required professional liability insurance ranges from $85 to $230 annually. They will also be subject to increased paperwork requirements because occupational therapists will be required to provide documentary proof that they have obtained the required insurance upon initial licensure and upon reactivation of an inactive license. Occupational therapy assistants will also be subject to additional paperwork requirements because they will be required to maintain a professional continued competence portfolio and make it available to the Board.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 5, 2016, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to IRRC and the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Regulatory Counsel, State Board of Occupational Therapy Education and Licensure, P. O. Box 69523, Harrisburg, PA 17106-5923 or RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-6711 (general revisions) when submitting comments.
KERRI L. HAMPLE, OTC, OTR/L,
ChairpersonFiscal Note: 16A-6711. Costs associated with the regulation are minimal; the Board has sufficient revenue in its augmentation account to absorb the costs without increasing fees; (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
LICENSURE § 42.13. Application for licensure.
(a) To apply for licensure, an applicant shall pay the required fee and submit evidence satisfactory to the Board on forms provided by the Board that the applicant meets the following criteria:
* * * * * (4) Has passed the licensure examination or has qualified for a waiver of the licensure examination under § 42.12 (relating to waiver of licensure examination).
(b) In addition to the requirements in subsection (a), an applicant for an occupational therapist license shall submit one of the following:
(1) Proof that the applicant has professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
(2) A letter from the applicant's insurance carrier indicating that the applicant will be covered against professional liability in the amount specified in § 42.61(a) upon the issuance of the applicant's license to practice occupational therapy in this Commonwealth.
(3) A certification from the applicant indicating that the applicant will be covered by an employer against professional liability in the amount specified in § 42.61(a) effective upon the beginning of employment as an occupational therapist.
§ 42.14. Foreign-educated applicants.
* * * * * (b) The foreign-educated applicant may be licensed by the Board, if he has complied with subsection (a) and has met one of the following criteria:
(1) Passed the licensure examination.
(2) Qualified for a waiver of the licensure examination under § 42.12 (relating to waiver of licensure examination).
(c) In addition to the requirements in subsections (a) and (b), a foreign-educated applicant for an occupational therapist license shall submit one of the following:
(1) Proof that the foreign-educated applicant has professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
(2) A letter from the foreign-educated applicant's insurance carrier indicating that the applicant will be covered against professional liability in the amount specified in § 42.61(a) upon the issuance of the applicant's license to practice occupational therapy in this Commonwealth.
(3) A certification from the foreign-educated applicant indicating that the applicant will be covered by an employer against professional liability in the amount specified in § 42.61(a) effective upon the beginning of employment as an occupational therapist.
§ 42.15. Application for temporary license.
* * * * * (c) The Board may also issue a temporary license to an applicant who:
* * * * * (4) Certifies that the applicant will perform services for not longer than a 6 consecutive month period in a calendar year, in association with an occupational therapist licensed under the act.
(d) In addition to the requirements in subsection (a) or (c), an applicant for a temporary license as an occupational therapist shall submit one of the following:
(1) Proof that the applicant has professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
(2) A letter from the applicant's insurance carrier indicating that the applicant will be covered against professional liability in the amount specified in § 42.61(a) upon the issuance of the applicant's temporary license.
(3) A certification from the applicant indicating that the applicant will be covered by an employer against professional liability in the amount specified in § 42.61(a) effective upon the beginning of employment.
§ 42.16. Biennial renewal; inactive status; failure to renew.
* * * * * (b) Biennial renewal forms and other forms and literature to be distributed by the Board will be forwarded to the last mailing address given to the Board by the licensee. [Whenever the licensee changes his mailing address of record, he shall notify the Board, in writing, within 10 days after making the address change.] The licensee has the responsibility to notify the Board of changes to the mailing address of record in writing within 10 days after making the address change.
(c) [To retain the right to engage in practice, the licensee shall renew his license in the manner prescribed by the Board and pay the required fee prior to the expiration of the next biennium.] To retain the right to engage in practice, the licensee shall renew the licensee's license biennially as follows:
(1) An occupational therapist shall complete the biennial renewal application, pay the required fee and certify completion of the continued competence requirement as specified in § 42.53 (relating to continued competency requirements) and maintenance of the required professional liability insurance coverage as specified in § 42.61 (relating to professional liability insurance requirement).
(2) An occupational therapy assistant shall complete the biennial renewal application, pay the required fee and certify completion of the continued competence requirement as specified in § 42.53.
(d) [When a license is renewed beyond June 30 of an odd numbered year, a penalty fee of $5 for each month or part of a month that the licensee has engaged in practice beyond the renewal date will be charged in addition to the renewal fee.] As set forth in section 225 of the Bureau of Professional and Occupational Affairs Fee Act (63 P. S. § 1401-225), a licensee who has engaged in practice beyond the renewal date without renewing the license will be charged a fee of $5 for each month or partial month of practice during which the license was not renewed, in addition to the biennial renewal fee.
* * * * * (g) A licensee who is applying to return to active status is required to pay fees which are due[, submit a] and submit:
(1) A sworn statement stating the period of time during which [he] the licensee was not engaged in practice in this Commonwealth[, submit a].
(2) A resume of professional activities since the most recent licensure[, and submit a].
(3) A letter of good standing from another state or territory where [he] the licensee is currently licensed or registered to practice, if applicable.
(4) Proof of professional liability insurance coverage as set forth in § 42.61 if applying to reactivate an occupational therapist license.
(h) The applicant for licensure renewal will not be assessed a fee or penalty for preceding biennial periods in which the applicant did not engage in practice in this Commonwealth.
(i) [If the applicant] An applicant who has failed to renew [his] a license and has not practiced for longer than 4 years[, the applicant] shall pass the licensure examination or qualify for a waiver of examination under § 42.12 (relating to waiver of licensure examination) before [his] the license is renewed. In addition, the Board may require the applicant to do one or more of the following:
* * * * * (k) A licensee who has engaged in practice during a period in which [he was not licensed] the licensee's license was not active may be subject to criminal prosecution under section 16(c) of the act (63 P. S. § 1516(c)).
CONTINUED COMPETENCY § 42.51. Purpose.
The purpose of §§ 42.52—42.58 is to implement section 15(a) of the act (63 P. S. § 1515(a)), which authorizes the Board to establish additional requirements for licensure renewal to ensure continued competency to achieve the legislative purpose in section 2 of the act (63 P. S. § 1502) to ensure the highest degree of professional care and conduct on the part of [occupational therapists] licensees.
§ 42.52. Definitions.
The following words and terms, when used in [§§ 42.51 and 42.53—42.58] in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Continued competency—The multidimensional process by which [an occupational therapist] a licensee demonstrates the development and maintenance of the knowledge, skills, attitudes, judgment, abilities and ethics necessary to practice occupational therapy in a variety of roles and settings.
* * * * * Mentor—A person who holds a current license, certificate or registration in a health-related or education field, or who is otherwise exempt by statute from the requirement to hold a license, certificate or registration, who is engaged in a one-on-one or group teaching/coaching relationship with [an occupational therapist] a licensee for the stated purpose of imparting specific knowledge and skills that will advance the [occupational therapist's] licensee's competency in occupational therapy.
Mentorship—Participation in a formalized, one-on-one or group teaching/learning relationship for the purposes of building [an occupational therapist's] a licensee's capacity to practice occupational therapy.
* * * * * Professional continued competence portfolio—A document that evidences the [occupational therapist's] licensee's completion of the continued competency requirement in § 42.53 (relating to continued competency requirements).
Protégé—[An occupational therapist] A licensee who is engaged in a one-on-one or group relationship with a mentor for the stated purpose of acquiring specific skills and knowledge related to the practice of occupational therapy.
* * * * * § 42.53. Continued competency requirements.
(a) Beginning with the July 1, 2013—June 30, 2015, biennium, an occupational therapist shall complete a minimum of 24 contact hours in each biennial period in acceptable continued competency activities listed in § 42.55 (relating to acceptable continued competency activities) as a condition of licensure renewal. Beginning with the July 1, 2015—June 30, 2017, biennium, an occupational therapy assistant shall complete a minimum of 24 contact hours in each biennial period in acceptable continued competency activities listed in § 42.55 as a condition of licensure renewal.
(b) [An occupational therapist] A licensee is exempt from complying with subsection (a) for the first biennial renewal period following initial licensure.
(c) [An occupational therapist] A licensee seeking to reactivate a lapsed or inactive license shall show compliance with the continued competency contact hour requirement during the 2-year period immediately preceding application for reactivation.
(d) As a condition of reinstatement, [an occupational therapist] a licensee hose license has been suspended or revoked shall complete the required continued competency contact hours for each licensure biennium in which the license was suspended or revoked.
§ 42.54. Education program providers.
(a) General. Educational courses offered by preapproved and Board-approved providers will be accepted as satisfying the continued competency requirement. It is the responsibility of the [occupational therapist] licensee to ascertain the approval status of the provider before undertaking a course.
* * * * * (e) Individual course approval.
(1) [An occupational therapist] A licensee may request approval of contact hours for educational courses not otherwise approved by submitting an application for approval to the Board no later than 90 days before the end of the biennial renewal period that includes the following:
* * * * * § 42.55. Acceptable continued competency activities.
* * * * * (b) The following activities are acceptable as long as the specific activity complies with subsection (a):
* * * * * (3) Fieldwork supervision.
(i) [An occupational therapist] A licensee may earn:
* * * * * (4) Professional writing.
(i) [An occupational therapist] A licensee ay earn the following contact hours, up to a maximum aggregate of 15 per biennium, for professional writing:
* * * * * (5) Editing.
(i) [An occupational therapist] A licensee may earn the following contact hours, up to a maximum aggregate of 15 per biennium, for editing:
* * * * * (6) Presentation and instruction.
(i) [An occupational therapist] A licensee may earn 2 contact hours, up to a maximum aggregate of 12 per biennium, for each 60-minute oral or poster presentation or instruction related to occupational therapy.
* * * * * (7) Unpaid service.
(i) [An occupational therapist] A licensee may earn:
* * * * * § 42.56. Waivers of continued competency requirements; extension of time to complete.
(a) The Board may waive all or part of the continued competency activity requirements, or grant an extension of time to complete the requirements, in the case of a serious illness, injury or emergency which prevents a licensee from completing the continued competency requirements.
(b) [An occupational therapist] A licensee seeking a waiver or extension of time shall submit a written request [for a waiver] and provide documentary evidence to the satisfaction of the Board of the serious illness, injury or emergency which would preclude the completion of the continued competency requirements.
(c) The request for a waiver or extension of time shall be filed with the Board 60 days before the end of the biennium in which the contact hours are being accrued unless the [occupational therapist] licensee proves to the satisfaction of the Board that it was impracticable to do so.
§ 42.57. Documentation and reporting of continued competency activities.
* * * * * (b) [An occupational therapist] A licensee shall:
* * * * * (2) Verify completion of the required contact hours of continued competency activities when the license is renewed. [An occupational therapist] A licensee who has not completed the required hours of continued competency activities will not be eligible for renewal until the hours are completed, unless a waiver or extension has been granted.
* * * * * § 42.58. Disciplinary action.
[An occupational therapist] A licensee who fails to comply with the continued competency activity requirements or the audit requirements or submits false documents in connection with the continued competency requirement will be subject to disciplinary action under section 16 of the act (63 P. S. § 1516).
PROFESSIONAL LIABILITY INSURANCE (Editor's Note: Sections 42.61—42.63 are new and printed in regular type to enhance readability.)
§ 42.61. Professional liability insurance requirement.
(a) Effective July 1, 2013, an occupational therapist shall obtain and maintain professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made.
(b) Proof of professional liability insurance coverage may include:
(1) A certificate of insurance or copy of the declaration page from the insurance policy setting forth the effective date, expiration date and dollar amounts of coverage.
(2) Evidence of a plan of self-insurance approved by the Insurance Commissioner of the Commonwealth under regulations of the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans).
(c) An occupational therapist who does not maintain the professional liability insurance required under subsection (a) may not practice occupational therapy in this Commonwealth.
§ 42.62. Notifications.
(a) An occupational therapist shall notify the Board within 30 days of a failure to maintain the required professional liability insurance.
(b) An occupational therapist whose license was issued in reliance on a letter or certificate as permitted under section 8(5)(iv)(A) and (B) of the act (63 P. S. § 1508(5)(iv)(A) and (B)) in accordance with §§ 42.13(b) (2) or (3), 42.14(c)(2) or (3) or 42.15(d)(2) or (3) (relating to application for licensure; foreign-educated applicants; and application for temporary license) shall provide the Board with proof of professional liability insurance coverage as set forth in § 42.61 (relating to professional liability insurance requirement) within 30 days after the date of issuance of the license or beginning of employment, as applicable.
(c) Failure to notify the Board within 30 days as required in subsection (a) or (b) constitutes unprofessional conduct and subjects the occupational therapist to disciplinary action under section 16(a)(2) of the act (63 P. S. § 1516(a)(2)).
§ 42.63. Automatic suspension.
(a) An occupational therapist's license shall be automatically suspended during any period in which the occupational therapist fails to maintain professional liability insurance.
(b) A license that has been automatically suspended under subsection (a) will be reinstated only upon receipt of a copy of documentation demonstrating that the occupational therapist has the required professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
[Pa.B. Doc. No. 16-280. Filed for public inspection February 19, 2016, 9:00 a.m.]
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