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RULES AND REGULATIONS

STATE BOARD OF OCCUPATIONAL THERAPY EDUCATION AND LICENSURE

[ 49 PA. CODE CH. 42 ]

Continued Competency

[43 Pa.B. 3350]
[Saturday, June 22, 2013]

 The State Board of Occupational Therapy Education and Licensure (Board) amends § 42.17 (relating to fees) and adds §§ 42.51—42.58 (relating to continued competency) to read as set forth in Annex A.

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 consistent with law as it deems necessary for the performance of its duties and the proper administration of the act. Section 15(a) of the act (63 P. S. § 1515(a)) further provides that the ''board may establish additional requirements for license renewal designed to assure continued competency of the applying occupational therapist. . . .''

Summary

 The final-form rulemaking enacts the requirement that occupational therapists maintain continued competency by requiring occupational therapists to complete 24 contact hours per biennium in acceptable continued competency activities. Acceptable continued competency activities include distance and in-person education programs, writing on occupational therapy topics in peer-reviewed journals and other non-peer-reviewed publications, volunteerism related to occupational therapy—characterized as unpaid service, fieldwork supervision, mentorships and professional study groups, and presentation and instruction.

Response to Comments

 Notice of proposed rulemaking was published at 41 Pa.B. 1909 (April 9, 2011). Publication was followed by a 30-day public comment period during which the Board received public comments from the following: licensed occupational therapists Patty Godfrey, Linda Miller, Ruth Crouthamel, Julie Kearney, Karen Smith, Jessica Collini, Ann Stuart, Beth Ann Duchess, Amy Dale, Lori Glass- brenner, Shirley Weaver, Deborah Ross, Cindy Kauffmann, Nancy Dubuar, Joyce Boivin, Sharon Glover and Kathleen LeGuern-Duckett; licensed occupational therapy assistants Stacy Stefanik and Donald Booker; occupational therapy student Laura Mariotti; LaVerne Russell, Director of Clinical Operations, Genesis Rehab Services; Cathy Dolhi, President, Pennsylvania Occupational Therapy Association, Inc. (POTA); Anne Henry, Chief Operating Officer, Pennsylvania Health Care Association/Center for Assisted Living Management (PHCA/CALM); and Marcy M. Buckner, State Policy Analyst, American Occupational Therapy Association, Inc. (AOTA). Following the close of the public comment period, the Board received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC). The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not comment.

General

 The POTA commented that it wholeheartedly supported the regulations.

 IRRC, PHCA/CALM and several individual commentators questioned whether the additional burdens of these regulations will have a negative effect on part-time practitioners potentially driving them from the profession. In this final-form rulemaking, the Board expanded the list of permissible activities in § 42.55(b) (relating to acceptable continued competency activities) to include the addition of unpaid service. This expansion increases the continued competency options for licensees and decreases concerns about cost and the ability to complete the required hours per biennium.

 PHCA/CALM commented that requiring occupational therapists to complete these requirements will be a burden to occupational therapy employers and Medical Assistance. Because the statutory requirement of competence rests on the license holder and not the employer, the Board does not believe that the continued competence requirement would burden employers and Medical Assistance. Nonetheless, in this final-form rulemaking, the Board expanded the list of acceptable activities so that occupational therapists can choose to complete free or inexpensive activities if desired, lowering costs. Further, under § 42.54(d) (relating to education program providers), employers can provide their own educational courses for their employees, effectively reducing costs and scheduling issues, by either becoming a preapproved provider or seeking Board approval. Since Board-approved providers are not charged for each course offered, but rather only a $40 initial provider approval fee, and if the provider desires to continue to be a provider a subsequent $40 for biennial approval, the cost to the employer of providing the education is nominal.

 AOTA encouraged the Board to require occupational therapy assistants to complete continued competence activities. The Board agrees that occupational therapy assistants would benefit from completing continued competence activities and notes that the act of July 5, 2012 (P. L. 1132, No. 138) (Act 138) amended the act to authorize continued competence for occupational therapy assistants as a condition of biennial renewal. The Board intends to promulgate a separate rulemaking to implement the amendments made to the act by Act 138, which will address continued competence for occupational therapy assistants.

§ 42.17. Fees

 A commentator stated that the $120 fee for new licensure is too high. The Board notes that the total of the three new fees in § 42.17 is $120; however, there is not a $120 fee. Section 42.17 contains three fees based upon actual Board expenses. There is an initial application fee of $40 for approval of a provider who is not already included in the lengthy list of preapproved providers in § 42.54(c) but seeks to offer educational courses under § 42.55(d). With this approval, the Board-approved provider can offer unlimited courses during the biennial period. In subsequent years, if the Board-approved provider wishes to continue offering courses, there is a $40 biennial renewal fee. There is an individual approval fee of $40 for licensees who seek to obtain credit for educational courses from a provider that is neither preapproved nor Board-approved under § 42.54(e). Rather than limiting occupational therapists to taking courses from preapproved providers only, the Board created a process whereby other providers can receive approval for their educational offerings and a process whereby occupational therapists can obtain credit for courses offered by providers that are not preapproved and have not applied for Board approval.

 IRRC asked the Board to provide a more detailed analysis of costs imposed on the regulated community and State government. Similar to licensees of other boards within the Bureau of Professional and Occupational Affairs (Bureau) that mandate continuing education, there are two groups within the occupational therapy regulated community that will incur costs in connection with these regulations: occupational therapists who incur costs associated with completing the continued competency activities in § 42.55(b); and providers who seek Board approval. In the former, the costs vary depending on the activities individual licensees select but, on average, the Board estimates the cost to be $300 for each occupational therapist per year. For example, occupational therapists who complete their 24 hours through a combination of fieldwork supervision, writings and presentations will not incur direct costs. Similarly, occupational therapists who complete their 24 hours through instruction, mentorship and unpaid service will not incur direct costs. Conversely, occupational therapists who choose to complete the 24 hours through education courses not provided by their employers or which charge a fee will incur costs, which can range from $10 to $50 per hour. The second regulated community to incur costs are providers related to the development and marketing of their continued competence programs. Those costs, however, may be recouped through the fees charged for programs. In addition to the costs to the regulated community, this final-form rulemaking imposes costs on State government associated with the costs of processing provider applications and monitoring compliance with the regulations through audit. These costs to State government are borne by the providers and the occupational therapist population.

 The HPLC questioned whether the fee report forms need to be updated. The Board has done so. The fees added to § 42.17 are based upon a projected number of providers based upon similar provider population for other boards within the Bureau. Actual information will only be available after the first renewal cycle.

§ 42.52. Definitions

 In this final-form rulemaking, the Board amended the definition of ''level II fieldwork'' to more closely capture the experience as defined by the Commission on Education's Guidelines for an Occupational Therapy Fieldwork Experience—Level II. The Board also amended the definitions of ''mentor,'' ''mentorship'' and ''protégé'' by adding group as well as one-on-one teaching/coaching experiences to include professional study groups, like those used by the American Society of Hand Therapists (ASHT), within § 42.55(b)(2). The Board believes that these study groups are equally as valuable as one-on-one experiences but are analogous to a mentor-protégé experience.

 IRRC questioned whether the reference to the Department of Education in the definition of ''mentor'' includes both the Federal Department of Education and the Pennsylvania Department of Education and what certified groups are included within the definition of ''mentor.'' The Board believes that individuals who work for or are certified by agencies in addition to Department of Education are competent to serve as mentors, as are those individuals licensed in other states, and many individuals exempt from State licensure requirements. Therefore, in this final-form rulemaking, the Board expanded the definition of ''mentor'' to include those in the education field as well as those exempt from licensure by statute. Examples of individuals exempt from licensure by statute might include those that fall within the exemptions in section 7(3) of the act (63 P. S. § 1507(3)), section 18 of the Medical Practice Act of 1985 (63 P. S. § 422.18) or section 3 of the Professional Psychologists Practice Act (63 P. S. § 1203). The important characteristic of a mentor is that the individual can provide specific knowledge and skills that will advance the occupational therapist's competency in the practice of occupational therapy.

 In connection with the definition of ''protégé,'' the HPLC and IRRC recommended that ''licensed'' should be added to ''other health care professional.'' Additionally, IRRC questioned who fits within the category of ''another health care professional.'' In this final-form rulemaking, the Board replaced ''other health care professional'' with ''a mentor'' since that definition is broader and encompasses the HPLC and IRRC recommendations.

 The Board amended the definition of ''professional continued competence portfolio'' to delete the requirement of a self-assessment. While the Board still believes that occupational therapists should conduct a self-assessment to determine which continued competency activities should be completed, upon further reflection, the Board decided that a self-assessment should not be documentation that shall be submitted to the Board upon audit.

 The Board also added a definition of ''unpaid service'' as used in § 42.55(b)(7). This term describes volunteerism in organizations when the unpaid service directly relates to occupational therapy. Volunteerism might include providing unpaid occupational therapy services such as assisting Habitat for Humanity in implementing living plans for persons who receive occupational therapy services, guiding a day care or township on occupational therapy issues in their design of a playground for disabled children, planning or working at community health fairs and serving in leadership or committee positions on professional associations.

§ 42.53. Continued competency requirements

 IRRC questioned why the Board chose to require 24 hours of continued competency activities. In formulating the required number of continued competency hours, the Board looked to the National Board for Certification in Occupational Therapy, Inc. (NBCOT) requirement for National certification as an occupational therapist. NBCOT requires its certificate holders to complete 36 professional development units (PDU) triennially. The Board's requirement of 24 hours per biennium is parallel.

 PHCA/CALM commented that 24 hours of continuing education is excessive, especially since physical therapists only have to complete 20 hours. In response, the Board notes that the act of July 4, 2008 (P. L. 293, No. 38) amended section 7.2 of the Physical Therapy Practice Act (63 P. S. § 1307.2) to require physical therapists and physical therapist assistants to attend and complete 30 contact hours of mandatory continuing education during each biennial renewal period. The State Board of Physical Therapy published a final-form rulemaking at 42 Pa.B. 7652 (December 22, 2012) implementing the increased continuing education requirement.

 IRRC also questioned whether continued competency hours completed during the exempt period may be carried over. The Board has not chosen to permit credit for carry over regardless of whether it was completed during the exempt period or in excess of the mandatory required. While the Board believes that activities completed during the exempt period and in excess of that required is personally beneficial for occupational therapists, the Board calls for licensees to complete at least 24 hours of continued competency activities during each period required. Anecdotally, the Board believes that carry over generally poses a paperwork burden for both licensees and boards within the Bureau.

 The HPLC asked the Board to clarify whether the continued competency requirement begins after the licen- see's initial renewal date or after the second renewal date. Additionally, a commentator questioned whether there are grace periods given for new graduates. The Board amended § 42.53(b) (relating to continued competency requirements) to clarify that an occupational therapist is exempt from completing the continued competency requirement only for the first biennial renewal following initial licensure.

 Section 42.53(c) and (d) addresses the number of contact hours an occupational therapist shall complete to reinstate a license. Applicants whose licenses have lapsed or been inactive for less than 4 years are required under § 42.53(c) to show compliance with the continued competency requirement during the biennium immediately preceding the request for reactivation. Conversely, applicants seeking to reinstate a revoked or suspended license shall complete the continued competency contact hour requirement for each biennium in which the license was suspended or revoked. AOTA recommended a structured completion requirement based on the number of years absent from practice. Similarly, IRRC questioned how health, safety and welfare is protected when occupational therapists only have to complete 24 hours regardless of the number of years inactive. In determining the amount of continued competency hours required, the Board was guided by the requirement in section 15(a) of the act that licensees whose license has lapsed for 4 years or more must be reexamined. Because a lapsed license is not caused by a disciplinary action, the Board believes that for the first biennial period only the current requirement is necessary. When the license remains inactive for another biennial period, the Board is satisfied that reexamination required under section 15(a) of the act will ensure continued competency without the need for the completion of additional continued competency hours. However, because suspension and revocation result from disciplinary action, the Board believes that additional continued competency hours are warranted regardless of the additional reexamination requirement when applicable.

 The HPLC recommended that the Board switch the order of § 42.53(d) so that the provision begins with ''as a condition of reinstatement.'' The Board finds this suggestion reasonable and made this amendment in this final-form rulemaking.

§ 42.54. Education program providers

 Proposed § 42.54(b) reserved within the Board the right to reject an activity if it is outside the scope described in § 42.55(a) or is ''otherwise unacceptable because of presentation or content.'' IRRC questioned what types of presentation or content would be ''otherwise unacceptable.'' Because a presentation or content would only be unacceptable if it did not comply with § 42.55(a), the Board deleted this text in this final-form rulemaking.

 Section 42.54(c) contains the list of preapproved providers. IRRC questioned whether the reference to ''State'' in § 42.54(c)(1) includes in-State and out-of-State providers. Because the Board intends this provision to include all National, international and state level professional organizations, such as the AOTA and the POTA, the Board replaced ''State'' with ''state-level.'' IRRC also recommended that a list of preapproved providers be available on the Board's web site. The Board intends to include this information, as well as a list of Board-approved providers, on its web site.

 Section 42.54(e) describes the individual activity approval process for education courses when the provider is neither preapproved nor Board-approved. A commentator questioned whether the approval process requires occupational therapists to complete the activity, pay $40 and then wait for a decision on approval. Section 42.54(d) allows occupational therapists to apply for individual activity approval at any time during the biennium. The only caveat is that an occupational therapist who applies for approval after completing the course risks the possibility that the course may not ultimately be approved. However, there may be course-specific instances when waiting until after completion may provide the licensee with more information about the relevance of the course to the practice of occupational therapy.

 The HPLC recommended that the Board amend § 42.54(e)(2) to make it consistent with § 42.54(d)(1) regarding notification of disapprovals. The Board agrees with this recommendation and amended § 42.54(e)(2) accordingly.

§ 42.55. Acceptable continued competency activities

 Section 42.55(b) clarifies that credit will only be awarded for activities that are relevant to occupational therapy practice. To provide occupational therapists with guidance regarding what is considered relevant to occupational therapy practice, § 42.55(a)(1) includes the common practice areas of direct care, management, education and research. The HPLC asked the Board to define ''management.'' Management is a term of art used in the occupational therapy profession to mean practice oversight regardless of the environment. The Board chose not to include this definition in § 42.52 (relating to definitions) because it is widely recognized in the profession.

 Section 42.55(b) contains the seven classes of activities that qualify for continued competency credit: attendance at educational courses; participation in mentorship as either a mentor or a protégé; supervision of level I and level II fieldwork students; engaging in professional writing and editing; preparing for and delivering presentations and instruction; and unpaid service. With several exceptions and breakdown differences, these seven classes of activities are similar to the NBCOT's 28 PDUs.

 IRRC asked the Board to explain the need for the varied activities. Unlike other licensing boards within the Bureau whose licensees are required to complete continuing education as a condition of biennial renewal, the Board is charged in section 15(a) of the act to ''assure continued competency'' of occupational therapists. The Board interpreted this statutory requirement as requiring varied experiences beyond merely the traditional continuing education courses. However, upon consideration of this comment and others that were expressed to the Board from public commentators and various other sources while formulating this final-form rulemaking, the Board deleted the cap on the number of contact hours that may be completed through traditional continuing education courses and deleted the requirement that an occupational therapist complete at least two of the acceptable continued competence activities. The Board believes that occupational therapists would benefit from each of the acceptable activities and that completing more than one activity each biennial cycle would result in well-rounded competent occupational therapists. Thus, while not mandated, the Board encourages licensed occupational therapists to assess their own continued competence needs and design a program of a variety of continued competence activities that would most benefit their individual practice of occupational therapy.

 IRRC also asked the Board to explain how part-time and full-time occupational therapists can complete the requirements. In the Board's view, there is not a difference between how part-time and full-time occupational therapists can complete the continued competency requirements as these requirements are not tied to employment. The only requirement is that the occupational therapist choose from the seven enumerated activities within the established caps to total 24 hours. The following examples illustrate how an occupational therapist may fulfill the continued competency requirement every 2 years:

 • Attending three 1-hour continuing education courses from pre-/Board-/individual-approved providers (which equates to 3 contact hours), completing one academic course from pre-/Board-/individual-approved providers (which equates to 15 contact hours) and serving on the ethics committee of AOTA for 30 hours (which equates to 6 contact hours).

 • Participating as a mentor or protégé (depending on the occupational therapist's competence level) with other hand therapists in a professional study group that entered into a mentorship agreement for 20 hours (which equates to 4 contact hours), attending four 3-hour continuing education courses from pre-/Board-/individual-approved providers (which equates to 12 contact hours), publishing an article for a workplace newsletter on a topic related to occupational therapy (which equates to 5 contact hours) and volunteering to work at an occupational therapy booth at a community health fair for 15 hours (which equates to 3 contact hours).

 • Supervising a level I fieldwork student (which equates to 1 contact hour), attending the ASHT conference and POTA District V meetings (which equates to 9 contact hours), publishing an article in Occupational Therapy in Health Care (which equates to 10 hours) and attending four 1-hour continuing education courses (equates to 4 contact hours).

 • Serving on POTA's Commission on Education (about 60 hours of service time) (equates to 12 contact hours), attending the POTA conference (equates to 8 contact hours) and presenting two poster presentations (equates to 4 contact hours) at the New Jersey Occupational Therapy Association's annual conference.

 IRRC asked the Board to identify whether costs will be greater for those in limited access areas. The Board believes that costs to complete continued competence contact hours should not be affected by geographic location. Although some areas may have more educational courses available, because activities like instruction, writing, mentorship and fieldwork can be obtained at no cost, a disparity in cost should not be an issue. For example, an occupational therapist can receive credit without spending money for writing an article in a non-peer-reviewed journal such as Penn Point, OT Practice or an employer-generated newsletter. Further, with the addition of unpaid service in this final-form rulemaking, occupational therapists can obtain credit by performing occupational therapy-related volunteering. For example, an occupational therapist who voluntarily offers assistance to a day care about increasing hand coordination can obtain credit for that service.

 IRRC and the HPLC questioned why the Board designed its own activities instead of adopting NBCOT's PDUs. AOTA, and several commentators stated that the Board should not exceed the NBCOT requirement and that it should consider the options in the AOTA Model OT Act. Like section 15(a) of the act, section 3.09(2) of the AOTA Model OT Act requires occupational therapists to maintain continued competency as a condition of biennial renewal. Implementation of this requirement is left to individual boards without recommendation about acceptable activities and required hours.

 Regarding NBCOT, as previously explained, with several exceptions and breakdown differences, the Board incorporated NBCOT PDUs into § 42.55(b). For example, the Board has one category for presentations and instruction in § 42.55(b)(6) while the NBCOT breaks this activity into five activities. Similarly, the Board has one category for writing in § 42.55(b)(4) while the NBCOT activities are broken into seven categories. There are only a few areas where the Board did not incorporate the PDUs: (1) activities wherein documentation supporting completion of the activity was not independently verifiable (NBCOT PDUs 9 and 12); (2) pre-preparation activities (NBCOT PDUs 1 and 2); (3) activities stemming from an employment role (NBCOT PDUs 17 and 28); and (4) collection of data credit (NBCOT PDU 27).

 NBCOT PDUs 1 and 2 award credit for performing a self-assessment and developing a professional development plan. Despite the recommendation by commentators, the Board chose not to incorporate these activities as it believes that while both are prerequisites to determining what activities an occupational therapist should complete, neither enhances competence.

 The Board also chose not to incorporate NBCOT PDUs 9 and 12 which award credit for independent readings, watching tapes/CDs and learning without assessment, as suggested by two commentators. Even though the Board finds these activities professionally valuable, as they are not capable of independent verification, the Board cannot award continued competency credit. Nonetheless, the information gleaned from these activities may be capable of being used to write an article in a non-peer-reviewed magazine, journal or newsletter, or to teach an employer-generated continuing education program qualifying the occupational therapist for publication or instruction credit under § 42.55(b)(4) and (6).

 The Board chose not to incorporate NBCOT PDU 17 as it believed that instructors, regardless of whether they are full-time faculty, adjuncts or trainers, should not receive credit when instruction is a component of their employment role. Under NBCOT guidelines, only full-time faculty and trainers are not awarded credit because teaching is their primary employment role, but adjunct faculty may receive credit for teaching the same course because serving as an adjunct faculty member is not a primary role. In the Board's view, the NBCOT distinction is solely based upon the number of courses taught and does not take into account the identical nature of the content of the courses or the fact that in all three cases the instructor is employed as an instructor. The Board applied this same standard of not awarding credit for developing instructional materials which are part of an employment role when it chose not to incorporate NBCOT PDU 28.

 Although the Board decided not to award credit generally when the presentations and the development of instructional materials are part of an employment role, if the instruction or materials are not related to the occupational therapists' employment role, credit may be earned under § 42.55(b)(6)(i). For example, when a faculty member or trainer makes a presentation about occupational therapy at a POTA or AOTA conference, credit may be obtained because the presentations are not part of the occupational therapists' employment role.

 The Board also chose not to incorporate NBCOT PDU 27, which awards credit for being a primary or coprimary investigator in extensive scholarly research as recommended by a commentator. While the Board does not award credit for the collection of data phase of research, the investigator can receive credit for oral/poster presentations or writing under § 42.55(b)(4) and (6) related to the research process.

 In this final-form rulemaking, the Board added unpaid service which it believes is akin to NBCOT PDU 3 involving volunteerism. The Board concurs with several commentators that occupational therapists expend professional time which enhances their competence in unpaid service of an occupational therapy nature. Examples of credited unpaid service were previously mentioned in the discussion concerning the definition of ''unpaid service'' in § 42.52.

 Several commentators stated that there is no evidence that additional activities beyond mere continuing education make better occupational therapists. As previously noted, the Board amended the final-form rulemaking to delete the 18-hour maximum on the number of contact hours that may be completed through traditional continuing education courses in a given biennial renewal period. However, the Board still believes that a combination of activities provides occupational therapists with an opportunity to obtain a more varied experience thereby achieving continued competence.

 Several commentators voiced their concern that the proposed activities other than education courses are academic-focused. Similarly, PHCA/CALM and a commentator noted that the other proposed activities other than education courses are not available to the ''average'' therapist. Conversely, a commentator stated that the various permitted activities provide licensees with a lot of opportunity to obtain continued competency credit. The Board believes that it has addressed these concerns by clarifying and expanding the list of activities in this final-form rulemaking. Occupational therapists will have a wide variety of options from unpaid services to mentorship, as either a mentor or protégé, and writing for non-peer-reviewed publications, which the Board understands readily accept articles for publication, to obtain the requisite continued competency hours.

 Two commentators stated that the Board should re-evaluate the limitations for each activity since each may contribute equally to occupational therapists' competence (that is, the fieldwork supervisor is equally competent as the writer/presenter). The Board compared the limitations on each activity between NBCOT and the proposed rulemaking and amended the final-form rulemaking accordingly. Thus, NBCOT's limitations and the Board's limitations in the final-form rulemaking are similar.

 Proposed § 42.55(b)(1)(i) limited the number of educational courses that may be credited per biennium to a maximum aggregate of 18. Two commentators stated that occupational therapists be permitted to complete all 24 hours in educational courses/seminars as NBCOT allows. Further, several commentators stated that having to complete 6 hours in areas other than educational courses will cause a hardship, especially to part-time practitioners, and will not increase practice capability. As previously noted, while the Board strongly believes that continued competence is enhanced by completing a variety of activities, the final-form rulemaking has been amended to remove the limitation on the number of contact hours that may be earned by traditional continuing education courses.

 A commentator questioned whether licensed occupational therapists who are obtaining additional education will be able to receive credit for this additional education. Occupational therapy doctorate courses would fall within educational courses. Under final-form § 42.55(b)(1)(ii), a one-credit course equals 15 contact hours. The commentator also asked whether specialized training when there is a test qualifies for continued competency credit. In the Board's view, when the occupational therapist is the learner, this activity falls within an educational course under § 42.55(b)(1). When the occupational therapist is the instructor, this training falls within presentations/instruction under § 42.55(b)(6).

 A commentator questioned whether credit may be obtained for an organization's discipline-specific quarterly professional update meetings. Provided that this meeting would fall within the requirements of an education course offered by an approved provider, credit may be obtained.

 IRRC recommended that ''directed'' be replaced with ''instructional'' in proposed § 42.55(b)(1)(ii). The Board agrees with IRRC and amended final-form § 42.55(b)(1)(i) accordingly.

 Section 42.55(b)(2) delineates the requirements for mentorship credit. In addition to the formalized one-on-one teaching/learning relationship specified in a mentorship agreement between a mentor and a protégé permitted in the proposed rulemaking, the Board added group mentorship to this definition in this final-form rulemaking because occupational therapists, for example, members of ASHT, routinely study together in a formalized relationship. Study, in the Board's opinion, is akin to mentorship and enhances an occupational therapist's continued competency regardless of whether the occupational therapist serves as a mentor or a protégé.

 A commentator questioned whether credit can be given for new graduates who are being mentored by a more established therapist. Under § 42.55(b)(2)(iii), both mentors and protégés may earn 1 contact hour for every 5 hours spent in mentorship activities up to a maximum aggregate of 12 hours per biennium. In this final-form rulemaking, the Board doubled the aggregate amount proposed to be permitted to parallel the NBCOT standard. For new graduates, this credit could be obtained in biennial periods following the first required renewal period because new occupational therapists are exempt from completing the continued competency requirement for the first biennial renewal following initial licensure under § 42.53(b)(2)(b). The mentor, however, could receive credit for the entire mentorship.

 The HPLC recommended that the post-mentorship summary required under § 42.55(b)(2)(iv) include the number of hours spent in the mentorship program. Because this information is already required under § 42.55(b)(2)(ii), the Board has not amended § 42.55(b)(2)(iv).

 Section 42.55(b)(3) delineates the requirements for fieldwork supervision credit. Proposed § 42.55(b)(3)(i) limited credit to 3 contact hours per biennium for supervising level I fieldwork students and 6 contact hours per biennium for supervising level II fieldwork students. A commentator stated that the time investment necessary to supervise a level I student is greater than 3 contact hours per student. The commentator also stated that the limitation of contact hours per student and per biennium will decrease the likelihood that other occupational therapists will supervise fieldwork students. IRRC questioned how the proposed credit cap was determined. Owing to the commentator's concern and in an effort to parallel the NBCOT cap for fieldwork supervision, the Board increased the amount of credit which can be obtained from fieldwork supervision to a maximum aggregate of 12 contact hours per biennium.

 Section 42.55(b)(4) delineates the requirements for professional writing credit. A commentator questioned whether there is a limitation on the number of contributors who may receive credit for the writing an article. The Board understands that at times multiple authors contribute to the writing of an article, chapter or textbook. As a result, in this final-form rulemaking, the Board has not added a cap on the number of authors who may receive credit for professional writing.

 IRRC and a commentator questioned what is a ''non-peer-reviewed journal'' as used in § 42.55(b)(4)(i)(D). The commentator questioned whether non-peer-reviewed articles can be published in PennPoint or within an organization's database. Unlike peer-reviewed journals which require a blind review under uniform criteria, non-peer-reviewed journals undergo editorial review by the journal publisher but do not require this same level of blind review. Example of non-peer-reviewed journals relating to occupational therapy include PennPoint, OT Practice and SIS Quarterly, as well as magazines, newspapers and online journals of general circulation and employer-generated newsletters where the writing specifically relates to occupational therapy, for example, an article which describes a case study about occupational therapy care.

 A commentator stated that because there is not a guarantee that the article will be published, an occupational therapist who submits an article to a publisher but does not have it published will be unable to obtain credit under § 42.55(b)(4)(ii). Because the Board was cognizant that many articles submitted to peer-reviewed journals are not published, the Board permits the publication of articles in non-peer-reviewed journals. Especially for employer-generated publications, the likelihood of publication is significantly higher.

 Section 42.55(b)(6) delineates the requirements for presentation and instruction credit. Proposed § 42.55(b)(6)(i) limited contact hour credit to peer-reviewed or invited presentations or workshops related to occupational therapy. IRRC asked the Board to define ''invited presentation.'' A commentator questioned whether poster sessions receive credit in addition to traditional presentations. The Board appreciates that poster presentations require the same degree of in-depth information as an oral presentations. Therefore, upon further consideration, the Board expanded final-form § 42.55(b)(6)(i) to include oral and poster presentations or instruction related to occupational therapy and deleted the reference to ''peer-reviewed and invited'' presentations.

 A commentator questioned whether instructors and college professors may receive credit for teaching the same course year after year as part of their employment. On that same topic, two commentators recommended that credit be awarded for on-the-job training and local in-services and the preparation time involved in those presentations. The Board previously explained its belief that instructors, regardless of whether they are full-time faculty, adjuncts or trainers, should not receive credit for instruction when that instruction is a component of their employment role. This belief has been incorporated in § 42.55(b)(6)(ii). In the Board's view, serving as a guest lecturer more than four times per biennium constitutes an employment role. When this instruction is not part of the employment role, credit, albeit only one time per content per biennium, may be awarded under § 42.55(b)(6)(iii).

 Three commentators further recommended that credit should also be awarded for preparation time. Consistent with NBCOT standards, § 42.55(b)(6)(i) grants occupational therapists 2 hours of credit for each 60-minute or poster presentation.

 Two commentators questioned whether a presenter can receive credit for the same presentation if it is presented to different groups under different providers. This is prohibited by § 42.55(b)(6)(iii). The Board does not believe that repeating a presentation adds to the presenter's continued competency.

 A commentator questioned whether there is a limit on the number of occupational therapists who may share in a presentation. Section 42.55(b)(6) does not limit the number of presenters who may contribute to a presentation.

 Section 42.55(b)(7) delineates the requirements for unpaid service credit. Under § 42.55(b)(7)(i), occupational therapists may obtain 1 contact hour up to a maximum aggregate of 12 contact hours per biennium for every 5 hours of unpaid service, defined in § 42.52, as directly relating to occupational therapy. Even if part of the unpaid service, credit may not be awarded under § 42.55(b)(7)(i)(B) for the performance of administrative services. In addition to the documentation required under § 42.57(a) (relating to documentation and reporting of continued competency activities), upon audit, occupational therapists shall produce a letter from the organization's president or executive director attesting to and outlining the unpaid service.

§ 42.56. Waivers of continued competency requirements

 Proposed § 42.56 (relating to waivers of continued competency requirements) was divided into two categories: waiver and cure. Final-form subsection (b) directs an occupational therapist seeking a waiver due to serious illness, injury or emergency to provide documentation evidencing the condition requiring a waiver. IRRC questioned the type of documentation necessary. As accepted by other licensing boards within the Bureau, a letter from a physician specifying the illness, injury or emergency is acceptable documentary evidence. IRRC also asked the Board to specify the timeline for filing a waiver request and receiving a response. Final-form subsection (c) requires occupational therapists to file a waiver request 60 days before the end of the biennium, unless it is impracticable, so that the Board will have the opportunity to review and rule on the waiver requests. In the event that the request is denied, the occupational therapist will have sufficient time to complete the deficient hours before the end of the biennium.

 IRRC questioned how the public would be protected under proposed § 42.56(b) if occupational therapists were able to avoid completing the activities by curing their deficiencies. It also asked whether any deficiency be cured and what kind of curing plan will be accepted. Upon further consideration, in this final-form rulemaking, the Board deleted proposed § 42.56(b).

§ 42.57. Documentation and reporting of continued competency activities

 The HPLC recommended that the Board amend its reference to § 42.56 in § 42.57(a). The Board agrees with this recommendation and replaced the reference with a reference to § 42.55(b)(1)(iii), (2)(iv), (3)(ii), (4)(iii), (5)(ii) and (6)(iv).

 IRRC recommended that the Board define professional continued competence portfolio as referenced in § 42.57(b)(1). As this term is defined in § 42.52, the Board added a cross-reference to the definition. IRRC questioned how completion of the hours will be verified. On the renewal form, occupational therapists will be required to verify compliance with the continued competency requirement. Upon audit, they will be required to submit copies of their professional continued competence portfolios.

Fiscal Impact and Paperwork Requirements

 The final-form rulemaking will have a fiscal impact on the regulated community in that each licensed occupational therapist will incur the costs associated with completion of 24 contact hours of continued competency activities as a condition of biennial renewal. Due to the variety of ways an occupational therapist may obtain contact hours for continued competency purposes, it is impossible to derive an appropriate estimate as to costs for the regulated community. For instance, an occupational therapist could obtain contact hours through a mentoring relationship, professional writing and editing, fieldwork supervision, journal review or presentation. These activities would not necessarily impose an additional cost on the licensee. While some educational courses can be expensive, many others are extremely inexpensive and in some cases free. Nonetheless, the Board estimates an average cost of compliance with the continued competency requirements to be $300 per licensee annually. In addition, the final-form rulemaking will create additional paperwork for the regulated community in that licensed occupational therapists would be required to retain documentation supporting the completion of the continued competency activities for 4 years and provide that documentation to the Board upon request.

 The final-form rulemaking will also have a fiscal impact on the Board in that the Board will be required to expend resources reviewing Board-approved provider and individual activity applications. However, the Board anticipates that there will not be more than 30 applications to review in each category and those costs will be borne by the applicants through the $40 application fee. In addition, the Board will incur costs and increased paperwork associated with audit and enforcement of the continued competency requirements.

Sunset Date

 The Board continually monitors the effectiveness of its regulations through communication with the regulated population. Accordingly, a sunset date has not been set.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 25, 2011, the Board submitted a copy of the notice of proposed rulemaking, published at 41 Pa.B. 1909, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on April 24, 2013, the final-form rulemaking was approved by the HPLC. On May 15, 2013, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 16, 2013, and approved the final-form rulemaking.

Contact Person

 Further information may be obtained by contacting Judy Harner, Administrator, State Board of Occupational Therapy Education and Licensure, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-1389.

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) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law and the comments were considered.

 (3) The amendments to the final-form rulemaking do not enlarge the purpose of proposed rulemaking published at 41 Pa.B. 1909.

 (4) These amendments are necessary and appropriate for administering and enforcing the authorizing Acts identified in Part B of this preamble.

Order

 The Board, acting under its authorizing statutes, orders that:

 (a) The regulations of the Board, 49 Pa. Code Chapter 42, are amended by adding §§ 42.51—42.58 and by amending § 42.17 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 as required by law.

 (c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect on publication in the Pennsylvania Bulletin.

KERRI HAMPLE, 
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: Fiscal Note 16A-677 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

LICENSURE

§ 42.17. Fees.

 (a) The fee schedule for licensure as an occupational therapist shall be as follows:

 Application for license
$30

 Biennial renewal of license
$55

 Temporary license
$20

 Verification of licensure
$15

 Certification of license, scores or hours
$25

 (b) The fee schedule for licensure as an occupational therapy assistant shall be as follows:

 Application for license
$30

 Biennial renewal of license
$45

 Temporary license
$20

 Verification of licensure
$15

 Certification of license, scores or hours
$25

 (c) The fee schedule for continued competency providers and courses shall be as follows:

 Initial provider approval
$40

 Biennial renewal of provider approval
$40

 Individual activity approval
$40

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.

§ 42.52. Definitions.

 The following words and terms, when used in §§ 42.51 and 42.53—42.58, have the following meanings, unless the context clearly indicates otherwise:

Contact hour—A unit of measure for a continued competency activity that equals 50-60 minutes of participation.

Continued competency—The multidimensional process by which an occupational therapist 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.

Educational courses—Academic and continuing education courses delivered onsite or by distance education.

Level I fieldwork—Introductory fieldwork experiences that are a component of an educational program in occupational therapy in which students develop a basic understanding of the needs of clients through directed observation and supervised participation in the occupational therapy process.

Level II fieldwork—In-depth fieldwork experiences that are a component of an educational program in occupational therapy that provide multiple occupational therapy services to a variety of clients in multiple 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 for the stated purpose of imparting specific knowledge and skills that will advance the occupational therapist'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 capacity to practice occupational therapy.

Mentorship agreement—A written agreement between the mentor and the protégé or protégés that outlines specific goals and objectives and designates a plan of activities.

Professional continued competence portfolio—A document that evidences the occupational therapist's completion of the continued competency requirement in § 42.53 (relating to continued competency requirements).

Protégé—An occupational therapist 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.

Unpaid service—Volunteering in an organization when the unpaid service directly relates to 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.

 (b) An occupational therapist is exempt from complying with subsection (a) for the first biennial renewal following initial licensure.

 (c) An occupational therapist 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 whose 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 to ascertain the approval status of the provider before undertaking a course.

 (b) Rights reserved. The Board reserves the right to reject a course if the content is outside of the scope described in § 42.55(a) (relating to acceptable continued competency activities).

 (c) Preapproved providers. The Board has preapproved educational courses provided, coprovided or approved by the following entities:

 (1) A National, international or state-level occupational therapy association.

 (2) The American Occupational Therapy Association's Approved Provider Program.

 (3) American Society of Hand Therapists.

 (4) Association for Driver Rehabilitation Specialists.

 (5) Department of Education.

 (6) An accredited college or university or post-secondary vocational technical school or institution.

 (7) Federal or State government programs related to health care.

 (8) A provider approved by another health licensing board within the Bureau of Professional and Occupational Affairs or another State licensure board.

 (9) National and State professional health care organizations.

 (10) National and State professional education organizations.

 (11) National Alliance for the Mentally Ill.

 (12) Case Management Society of America.

 (d) Board-approved providers. The Board will consider for approval, on a biennial basis, providers of educational courses that comply with § 42.55(a) as follows:

 (1) The provider seeking approval shall submit an application to the Board at least 60 days prior to the beginning of the course but no later than 90 days before the end of the biennial renewal period. The applicant will be notified of approval or disapproval in writing.

 (2) The Board will not approve a provider unless it:

 (i) Offers courses with specific learning objectives.

 (ii) Has criteria for selecting and evaluating faculty instructors, subject matter and instructional materials.

 (iii) Has a procedure for determining licensees' perceptions of the extent to which the objectives have been met.

 (e) Individual course approval.

 (1) An occupational therapist 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:

 (i) The title of the course and number of contact hours.

 (ii) The description of the course from the program catalog or brochure.

 (iii) The learning objectives.

 (iv) The name and qualifications of the presenter.

 (v) An assessment of the course.

 (2) Upon review of the completed application, the Board will notify the applicant whether the course has been approved or disapproved and, if approved, the number of contact hours that will be awarded.

 (f) Withdrawal of approval. The Board may withdraw approval of a provider for cause. The provider will be notified in writing of the reasons for withdrawal of approval.

§ 42.55. Acceptable continued competency activities.

 (a) Irrespective of the provider, contact hours will only be awarded for continued competency activities that are relevant to the practice of occupational therapy including direct care, management, education and research. Contact hours will not be awarded for activities related to marketing, office management, financial gain or self-promotion.

 (b) The following activities are acceptable as long as the specific activity complies with subsection (a):

 (1) Educational courses.

 (i) For continuing education courses, contact hours equal the number of instructional hours.

 (ii) For academic courses, one credit equals 15 contact hours.

 (iii) Instead of the documentation required under § 42.57(a) (relating to documentation and reporting of continued competency activities), acceptable documentation of educational courses consists of an official transcript or certificate of completion indicating the name and date of the course and a description of the course from the school catalog or brochure.

 (2) Mentorship.

 (i) Prior to beginning a mentorship, the mentor and the protégé shall enter into a mentorship agreement.

 (ii) At the conclusion of the mentorship, the mentor shall provide a postmentorship summary documenting the time spent in and outcomes of the mentoring program. A copy of the summary shall be provided to the protégé and maintained by the mentor and the protégé for 4 years.

 (iii) The mentor and the protégé may each earn 1 contact hour for every 5 hours spent in mentorship activities up to a maximum aggregate of 12 contact hours per biennium.

 (iv) Instead of the documentation required under § 42.57(a), acceptable documentation consists of a copy of the mentorship agreement and the postmentorship summary.

 (3) Fieldwork supervision.

 (i) An occupational therapist may earn:

 (A) One contact hour per student, up to a maximum aggregate of 12 contact hours per biennium, for serving as a supervisor for level I fieldwork.

 (B) Three contact hours per student, up to a maximum aggregate of 12 contact hours per biennium, for serving as a supervisor for level II fieldwork.

 (ii) In addition to the information required under § 42.57(a), the educational program shall verify the name of the supervisor, the names and number of students being supervised, the locations where the fieldwork is being performed and the dates and level of fieldwork.

 (4) Professional writing.

 (i) An occupational therapist may earn the following contact hours, up to a maximum aggregate of 15 per biennium, for professional writing:

 (A) Fifteen contact hours for writing a book.

 (B) Ten contact hours for writing a chapter in a book.

 (C) Ten contact hours for writing an article published in a peer-reviewed journal.

 (D) Five contact hours for writing an article published in a non-peer-reviewed journal, magazine, newsletter or other publication.

 (ii) Credit will be awarded for the biennium in which the book, chapter or article is published.

 (iii) Instead of the documentation required under § 42.57(a), acceptable documentation of professional writing consists of a copy of the editor's or publisher's acceptance letter and a copy of the article, chapter or the cover page of the book including the title, author, source and date of publication, and editor.

 (5) Editing.

 (i) An occupational therapist may earn the following contact hours, up to a maximum aggregate of 15 per biennium, for editing:

 (A) A maximum of 10 contact hours may be earned for editing a book relevant to occupational therapy.

 (B) A maximum of 6 contact hours per biennium may be earned for serving as a reviewer for a professional journal, provided that only 1 contact hour may be accrued for each article reviewed.

 (ii) Instead of the documentation required under § 42.57(a), acceptable documentation of editing activities consists of the following:

 (A) For editing a book, a copy of the editor's or publisher's acceptance letter and the cover page of the book including the title, author, source and date of publication, and editor.

 (B) For serving as a reviewer, a copy of a letter from the editor acknowledging the number of articles reviewed.

 (6) Presentation and instruction.

 (i) An occupational therapist 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.

 (ii) Credit will not be awarded for presentations or instruction when the activities are within the presenter's/instructor's employment role.

 (iii) Credit will only be awarded one time per biennium for each presentation/instruction regardless of the number of times the material is presented.

 (iv) In addition to the information required under § 42.57(a), the provider shall provide a copy of the official program, schedule or syllabus including presentation title, date, hours of presentation/instruction and attestation by the provider.

 (7) Unpaid service.

 (i) An occupational therapist may earn:

 (A) One contact hour, up to a maximum aggregate of 12 contact hours per biennium, for every 5 hours of unpaid service.

 (B) Credit will not be awarded for administrative services performed, even if part of the unpaid service.

 (ii) In addition to the documentation required under § 42.57(a), acceptable documentation of unpaid service consists of a letter on organization letterhead from the president or executive director attesting to and outlining the unpaid service completed.

§ 42.56. Waivers of continued competency requirements.

 (a) The Board may waive all or part of the continued competency activity 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 seeking a waiver 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 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 proves to the satisfaction of the Board that it was impracticable to do so.

§ 42.57. Documentation and reporting of continued competency activities.

 (a) A provider of a continued competency activity shall furnish to each participant documentation, signed by the provider, which includes the following, unless otherwise directed in § 42.55(b)(1)(iii), (2)(iv), (3)(ii), (4)(iii), (5)(ii) and (6)(iv) (relating to acceptable continued competency activities):

 (1) The name of the participant, provider and instructor.

 (2) The title, date and location of the activity.

 (3) The number of contact hours awarded.

 (b) An occupational therapist shall:

 (1) Prepare a professional continued competence portfolio as defined in § 42.52 (relating to definitions) for each biennial period and retain it for 4 years following the last day of the biennial period during which the continued competency activities were completed.

 (2) Verify completion of the required contact hours of continued competency activities when the license is renewed. An occupational therapist 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.

 (3) Provide a copy of the professional continued competence portfolio to the Board within 30 days of notification of an audit.

§ 42.58. Disciplinary action.

 An occupational therapist 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).

[Pa.B. Doc. No. 13-1117. Filed for public inspection June 21, 2013, 9:00 a.m.]



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