RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF OCCUPATIONAL THERAPY
EDUCATION AND LICENSURE
[49 PA. CODE CH. 42]
Licensure by Endorsement
[53 Pa.B. 5769]
[Saturday, September 16, 2023]The State Board of Occupational Therapy Education and Licensure (Board) hereby amends § 42.1 (relating to definitions) and adds §§ 42.9 and 42.10 (relating to licensure by endorsement; and provisional endorsement license) to read as set forth in Annex A.
Effective Date
The amendments will be effective upon publication of this final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
Section 3111 of 63 Pa.C.S. (relating to licensure by endorsement) requires licensing boards and commissions to ''issue a license, certificate, registration or permit to an applicant to allow practice in this Commonwealth'' provided the applicant meets the following criteria: ''[h]olds a current license, certificate, registration or permit from another state, territory or country'' whose licensing ''requirements are substantially equivalent to or exceed the requirements. . .in this Commonwealth;'' ''[d]emonstrates competency;'' ''[h]as not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice that profession or occupation in this Commonwealth, unless the board or commission determines'' this conduct is not an impediment to granting the ''license, certificate, registration or permit;'' ''[i]s in good standing and has not been disciplined by the jurisdiction that issued the license, certificate, registration or permit, unless the. . .board or. . .commission determines'' this conduct is not an impediment to granting the ''license, certificate, registration or permit;'' and the applicant ''pays any fees established by. . .regulation.'' Additionally, 63 Pa.C.S. § 3111 authorizes boards and commissions to ''issue a provisional license, certificate, registration or permit'' while an applicant is satisfying remaining requirements for licensure by endorsement, for which the Board must set by regulation the terms of expiration. Additionally, section 5(b) of the Occupational Therapy Practice Act (63 P.S. § 1505(b)) provides that the Board may adopt rules and regulations consistent with the law as necessary for the performance of its duties and the proper administration of the act.
The act of July 1, 2020 (P.L 575, No. 53) added 63 Pa.C.S. § 3111 as part of the consolidation of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) (repealed) into 63 Pa.C.S. Chapter 31 (relating to powers and duties). The text of 63 Pa.C.S. § 3111 was originally added to Act 48 by the act of July 1, 2019 (P.L. 292, No. 41).
Background and Need for the Amendments
This final-form rulemaking is needed to effectuate 63 Pa.C.S. § 3111, which requires the Board to issue a license to applicants who meet the requirements for licensure by endorsement, as set forth in 63 Pa.C.S. § 3111. Under 63 Pa.C.S. § 3111(a)(1), the Board must determine whether the other jurisdiction's standards for licensure are substantially equivalent to or exceed those established by the Board. Additionally, 63 Pa.C.S. § 3111(a)(2) requires the Board to determine the methods of measuring competency, including completion of continuing education or experience in the profession or occupation for at least 2 of the 5 years immediately preceding the filing of the application. Under 63 Pa.C.S. § 3111(b)(2), the Board must establish, by regulation, the duration of a provisional endorsement license. This final rulemaking sets forth the criteria for eligibility for licensure by endorsement, including the specific methods required for an applicant to demonstrate competency as well as requirements for granting a provisional endorsement license.
Summary of Comments to the Proposed Rulemaking and the Response of the Board
Notice of the proposed rulemaking was published at 52 Pa.B. 835 (February 5, 2022). The Board did not receive any comments from the public or the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). The Board received comments and recommendations from the House Professional Licensure Committee (HPLC). The Independent Regulatory Review Committee (IRRC) reviewed the proposed rulemaking and provided comments and recommendations.
Comments from the HPLC
The HPLC commented on § 42.9(a)(1)(i), regarding license by endorsement, which requires the applicant to provide a copy of the current law and regulations, including the scope of practice, in the jurisdiction where the applicant holds an active license. The HPLC expressed a concern that this is not a specific statutory requirement and suggested it should be Board counsel's responsibility to research the laws and regulations of the jurisdiction from which the applicant is applying. For the following reasons, the Board disagrees and is not amending § 49.9(a)(1)(i) in this final-form rulemaking: 1) to date the Board has received less than five applications annually; 2) applicants, as a practical matter, are in the best position to obtain the laws and rule and have been able to provide the Board with the necessary laws and regulations quickly and easily; 3) applicants have the burden to prove to the Board that qualifications for licensure are met; and 4) putting this burden on the Board and its legal counsel unnecessarily puts a financial burden on the Board and its licensees who finance the Board through biennial renewal fees, or if this cost is applied to application fees, the cost to apply for a license would have to be increased. Applicants generally have access to the laws and regulations of the jurisdiction where they are licensed. Accessibility is of particular concern when an applicant is licensed in another country; this type of research is overly burdensome and could be costly to the Board. While the Board will take steps to verify the laws and regulations of another jurisdiction, having the applicant provide that initial information is the most expedient and fiscally prudent approach. After considering all options, the Board believes requiring an applicant to obtain laws and rules from the applicable state, jurisdiction or country is the most appropriate, efficient and cost-effective manner to supply the Board with the information necessary for the Board to make a substantial equivalency determination.
Second, the HPLC recommends clarifying § 42.9(a)(4) to specify the type of discipline that may preclude licensure and the timeframe when the discipline occurred. The HPLC suggested that the Board clarify by specifying the type of discipline and providing a timeframe when the discipline occurred. The HPLC suggested that the Board distinguish between formal discipline and a complaint. The Board does not think it is necessary to amend the regulations to distinguish between formal discipline and a complaint; a complaint is neither formal nor informal discipline. Additionally, the Board does not wish to specify the timeframe when the discipline occurred. The Board, instead, believes it is appropriate to evaluate discipline on a case-by-case basis. As indicated in § 42.9(c), the Board is authorized to determine that a prohibited act or discipline is not an impediment to licensure under 63 Pa.C.S. § 3111. In determining whether the discipline is an impediment to licensure, it is dutybound to apply the caselaw and other applicable laws. See Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973); Bethea-Tumani v. Bureau of Professional and Occupational Affairs, State Board of Nursing, 993 A.2d 921 (Pa. Cmwlth. 2010). As part of that analysis, the Board may consider the facts and circumstances surrounding the prohibited act or disciplinary action, increase in age or maturity of the individual since the date of the prohibited act or disciplinary action, disciplinary history or lack of disciplinary history before and after the date of the prohibited act or disciplinary action, successful completion of education and training activities relating to the prohibited act or disciplinary action and any other information relating to the fitness of the individual for licensure. To be consistent with the language in § 42.9(a)(3) and (4), the Board adds the word ''discipline'' to the title of § 42.9(c).
The third comment by the HPLC relates to § 42.10(b)(1) which provides the Board with authority to issue a provisional license for less than 1 year. Section 3111(b)(2) of 63 Pa.C.S. requires the Board to establish an expiration date for provisional licenses in its regulations. The Board, along with most other boards and commissions under the Bureau of Professional and Occupational Affairs has determined that expiration of 1 year is generally an appropriate timeframe for most applicants. However, in the interest of public safety, the Board has determined that providing some discretion to the Board is necessary for instances where the remaining licensure requirements do not require a full year to complete the remaining licensure requirements. It is in the public interest to ensure that a licensee becomes qualified or competent as expeditiously as possible. While the Board certainly will provide a full year when the facts warrant it, it wants its licensees to be qualified and competent as soon as practicable. The Board anticipates this discretion would be utilized in a situation where an applicant's obligations to meet the licensure or competency requirements are minimal. For example, an applicant who must only complete 2 months of experience to meet the competency requirements may receive a provisional license valid for 4 months. To allow a longer duration, such as 12 months, in all situations opens the door for an individual who has not been deemed competent to practice for 10 months before they even attempt to meet the competency requirements. In the interest of public safety, the Board believes it is best for applicants to meet the competency requirements within a time period closely tied to the length of time necessary to meet the specific competency requirement.
The fourth and final comment by the HPLC suggests an amendment to § 42.10(d) to delete the language precluding the issuance of more than one provisional license. A provisional license is an unrestricted license that is issued to an applicant to provide a short period of time to an applicant to practice while simultaneously working to meet the Board's licensure by endorsement requirements. While the Board is reluctant to issue an unrestricted license to an applicant who has not met the licensure standards or who has not proven competency, the General Assembly gave boards the discretion to do so as long as there was an expiration to that provisional license. Thus, the provisional license is meant to be a temporary license, on a short-term basis, to allow an applicant to begin practicing while completing remaining licensing requirements. The Board's regulations allow for requests for an extension up to 1 additional year; the Board believes this timeframe is more than sufficient. The Board is concerned that allowing for multiple provisional licenses could be used as a mechanism to circumvent licensure standards. An applicant may certainly apply for an occupational therapy license through § 42.9 after a provisional license expires; however, if the applicant does not meet the licensure standards after having a provisional license and having the option to apply for an extension, the applicant would not be eligible to apply for or receive an additional provisional license. Ultimately, the Board determined that protection of the public warrants the limitation of one provisional license per applicant to ensure the citizens of this Commonwealth are receiving services from qualified and competent licensees.
Comments from IRRC
The first comment received from IRRC relates to clarity within § 42.9(a). Specifically, IRRC notes that § 42.9(a)(1) is inconsistent in its identification of types of authorizations to practice. This final-form rulemaking is amended to provide the consistency noted by IRRC. The Board also amends § 42.9(a)(i).
In its second comment, IRRC requested that the Regulatory Analysis Form (RAF) be updated to include the statutory citation to the authority of the Board to promulgate these regulations (63 P.S. § 1505(b)). This is completed as requested.
IRRC also asked the Board to address the cost of the Criminal History Record Check (CHRC) fee in the RAF. The Pennsylvania CHRC fee of $22 and Federal Bureau of Investigation Fee of $18 have been included in the RAF where requested. The Board is unable to determine with certainty the CHRC fees that would be assessed by other states, territories or countries.
The third item noted by IRRC references the comments submitted by the HPLC. The Board responded to the HPLC as set forth previously.
Miscellaneous Amendments for Clarity
The Board amends § 42.1. In the proposed rulemaking, the Board made a typographical error by indicating that ''the following words and terms, when used in this subchapter have the following meanings, unless the context clearly indicates otherwise:'' This paragraph should have referenced ''chapter'' instead of ''subchapter.'' Thus, the Board amends this paragraph to reflect ''chapter.''
The Board also made a stylistic amendment by changing the term ''must'' to ''shall'' in § 42.9(a) and (a)(1)(i). The Board amends § 42.9(a)(2) to clarify the requirement that the experience required for competency must have been obtained under a license, certificate, registration or permit in a substantially equivalent jurisdiction or jurisdictions. The amendment makes clear that the Board will consider experience accumulated in more than one jurisdiction when calculating the required experience. The Board also amends § 42.9(a)(3) because the Board erroneously cited to § 42.13 (relating to application for licensure). The appropriate correlating provisions are §§ 42.24 and 42.31 (relating to code of ethics; and unprofessional conduct); therefore, the Board replaced § 42.13 with §§ 42.24 and 42.31. In doing so, the Board amends the cross references in § 42.9(a)(3) to include the subject of those provisions in the parentheticals.
The Board makes minor nonsubstantive amendments for clarity by making grammatical amendments in §§ 42.9(a)(6) and (8) and 42.10(d), and by adding § 42.10(c)(3) to clarify that expiration of a provisional license is a terminating event.
Fiscal Impact and Paperwork Requirements
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The costs to the Board related to processing applications for licensure by endorsement will be recouped through fees paid by applicants. Applicants who apply for licensure by endorsement will be impacted by the $30 application for licensure fee in § 41.17 (relating to fees) as well as the CHRC fee. Applicants must complete child abuse recognition and reporting training, as required by section 6383(b)(3)(i) of 23 Pa.C.S. (relating to education and training) of the Child Protective Services Law. There are free in-person and online child abuse recognition and reporting training options available; therefore, the Board does not anticipate a negative fiscal impact for this statutorily mandated training.
Sunset Date
The Board continuously monitors the cost effectiveness of the Board's regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on February 5, 2022, the Board submitted a copy of the Regulatory proposed rulemaking, published at 52 Pa.B. 835 and a copy of a RAF to IRRC and to the Chairpersons of the SCP/PLC and the HPLC. A copy of this material is available to the public upon request.
Under section 5(c) of the Regulatory Review Act (71 P.S. § 745.5(c)), the Board provided IRRC, the SCP/PLC and the HPLC with copies of comments received as well as other documents when requested. In preparing the final-form regulation, the Board considered comments received from IRRC and HPLC. No public comments were received. The Board received no comments from the SCP/PLC.
Under section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)), on June 8, 2023, the Board delivered this final-form rulemaking to IRRC, the HPLC and the SCP/PLC. Under section 5.1(j.2) of the Regulatory Review Act, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC on July 12, 2023. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 13, 2023, and approved the final-form rulemaking.
Additional Information
Additional information may be obtained by writing to Paul Keller, Board Administrator, State Board of Occupational Therapy Education and Licensure, P.O. Box 2649, Harrisburg, PA 17105-2649, ST-OCCUPATIONAL@ PA.GOV.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law, and all comments received were considered in drafting this final-form rulemaking.
(3) The amendments to this final-form rulemaking do not enlarge the original purpose of the proposed rulemaking published at 52 Pa.B. 835.
(4) This final-form rulemaking is necessary and appropriate for the administration of 63 Pa.C.S. § 3111.
Order
The Board, therefore, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 42, are amended by amending § 42.1 and adding §§ 42.9 and 42.10, to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Board shall submit this final-form rulemaking to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall submit this final-form rulemaking to IRRC, the HPLC and the SCP/PLC as required by law.
(d) The Board shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.
(e) This final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
KERRI HAMPLE, OTD, OTR/L,
Chairperson(Editor's Note: See 53 Pa.B. 4068 (July 29, 2023) for IRRC's approval order.)
Fiscal Note: Fiscal Note 16A-6713 remains valid for the final adoption of the subject regulations.
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
GENERAL PROVISIONS § 42.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Commissioner—The Commissioner of Professional and Occupational Affairs.
Equivalent program—A masters or certificate program in occupational therapy approved by the Board.
Jurisdiction—A state, territory or country.
Licensee—An individual who has been licensed under the act as an occupational therapist or an occupational therapy assistant.
* * * * *
LICENSURE BY ENDORSEMENT § 42.9. Licensure by endorsement.
(a) Requirements for issuance. To be issued a license by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement), an applicant shall satisfy all of the following conditions:
(1) Have a current license, certificate, registration or permit in good standing to practice as an occupational therapist or an occupational therapy assistant in another jurisdiction whose standards are substantially equivalent to or exceed those established under section 8 of the act (63 P.S. § 1508) and §§ 42.11 and 42.13(a) (relating to licensure examination; and application for licensure). The following apply:
(i) An applicant shall submit a copy of the current applicable law, regulation or other rule governing licensure, certification, registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit.
(ii) If the applicable law, regulation or other rule is in a language other than English, at the applicant's expense, the applicable law, regulation or other rule shall be translated by a professional translation service and verified to be complete and accurate.
(iii) The copy of the applicable law, regulation or other rule must include the enactment date.
(2) Demonstrate competency by the following:
(i) Experience in the practice of occupational therapy by demonstrating, at a minimum, that the applicant has actively engaged in the licensed practice as an occupational therapist or occupational therapy assistant under a license, certificate, registration or permit in a substantially equivalent jurisdiction or jurisdictions, for at least 2 of the 5 years immediately preceding the filing of the application with the Board.
(3) Have not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certification, registration or permit to practice as an occupational therapist or occupational therapy assistant under section 16(a) of the act (63 P.S. § 1516(a)) and §§ 42.24 and 42.31 (relating to code of ethics; and unprofessional conduct).
(4) Have not been disciplined by the jurisdiction that issued the license, certificate, registration or permit.
(5) Have paid the application for licensure fee as required by § 41.17 (relating to fees).
(6) Have satisfied the professional liability requirements as required under section 8 of the act and § 42.13(b).
(7) Have applied for licensure in accordance with this chapter in the manner and format prescribed by the Board.
(8) Have completed 3 hours of training in child abuse recognition and reporting from a provider approved by the Department of Human Services as required under 23 Pa.C.S. § 6383(b)(3)(i) (relating to education and training).
(b) Interview and additional information. An applicant may be required to appear before the Board for a personal interview and may be required to submit additional information, including supporting documentation relating to competency and experience. The applicant may request an interview by video teleconference for good cause shown.
(c) Prohibited acts and discipline. Notwithstanding subsection (a)(3) and (4), the Board may, in its discretion, determine that an act prohibited under section 16(a) of the act or disciplinary action by a jurisdiction is not an impediment to licensure under 63 Pa.C.S. § 3111.
§ 42.10. Provisional endorsement license.
(a) Provisional endorsement license. The Board may, in its discretion, issue a provisional endorsement license to an applicant while the applicant is satisfying remaining requirements for licensure by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement) and § 42.9 (relating to licensure by endorsement).
(b) Expiration of a provisional endorsement license.
(1) An individual holding a provisional endorsement license may practice for up to 1 year after issuance of the provisional endorsement license. The Board, in its discretion, may determine that an expiration date of less than 1 year is appropriate.
(2) Upon a written request and a showing of good cause, the Board may grant an extension of no longer than 1 year from the expiration date of the provisional endorsement license.
(c) Termination of a provisional endorsement license. A provisional endorsement license terminates if any of the following occurs:
(1) When the Board completes its assessment of the applicant and either denies or grants the license.
(2) When the holder of the provisional license fails to comply with the terms of the provisional endorsement license.
(3) When the provisional endorsement license expires.
(d) Reapplication. An individual may reapply for licensure by endorsement under § 42.9 after expiration or termination of a provisional endorsement license; however, the individual may not be issued a subsequent provisional endorsement license.
[Pa.B. Doc. No. 23-1246. Filed for public inspection September 15, 2023, 9:00 a.m.]
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