CHAPTER 172

FORMERLY

HOUSE BILL NO. 164

AS AMENDED BY HOUSE AMENDMENT NOS. 2, 4, 5, AND 6

AN ACT TO AMEND TITLES 24, 29 AND 30 OF THE DELAWARE CODE RELATING TO OCCUPATIONAL THERAPY: AND PROVIDING FOR A DELAWARE OCCUPATIONAL THERAPY ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three. fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Title 24 of the Delaware Code by adding thereto a new Chapter 20, which new chapter shall read as follows:

"CHAPTER 20. OCCUPATIONAL THERAPY

§2001. Objectives of Board

The primary objectives of the Board of Occupational Therapy Practice to which all other objectives and purposes arc secondary, is to protect the general public (specifically those persons who arc direct recipients of services regulated by this Chapter) from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board arc to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaint hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners. Nothing In this Chapter shall be deemed a direct or indirect commitment by the General Assembly to a present or future requirement that insurers or other third parties must offer or provide coverage for the services of practitioners licensed under this Chapter.

§2002. Definitions

The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

(a) 'Board' shall mean the Board of Occupational Therapy Practice which shall administer and enforce this Chapter.

(b) 'Occupational therapy' shall refer to the evaluation and adaptation of occupational performance, that is, the ability to perform occupations, or tasks. required In daily self care, work, and leisure routines. An occupational therapist shall assess. consult regarding, and treat as indicated, individuals whose occupational performances arc Impaired by congenital, developmental, or learning deficits; physical illness or injury; psychological dysfunction; cultural differences; economic or environmental deprivation; or the aging process. The cnd products of occupational therapy include optimal independent functioning, prevention of further disability and health maintenance.

(c) Occupational therapy services shall include, but arc not limited to the following: assessment of self care, work and leisure routines, administration and interpretation of standardized and non standardized evaluation tools (such as sensory, manual muscle. and range of motion tests): development of self care, prevocational, work, and leisure routines and habits; facilitation of developmental. sensory motor, sensory integrative, and perceptual function; use of specifically selected therapeutic, manual, and creative activities and exercises designed and adapted to enhance functional performance; the design, fabrication, and application or selected orthotic, prosthetic. and adaptive devices; consultation regarding the adaptation of environments for persons who arc handicapped. These services shall be provided to individuals, groups or organizations through medical, health, educational, and social systems.

Occupational therapy shall not include medical diagnosis of disease or injuries, the practice of medicine or surgery, or the prescription of drugs.

(c) 'Occupational therapist' shall mean a person licensed to practice occupational therapy under this Chapter,

(d) 'Occupational therapy assistant' shall mcan a person licensed to assist in the practice of occupational therapy under the supervision of or in consultation with a licensed occupational therapist. The manner of supervision shall be determined by regulations adopted by the Board.

(c) 'Occupational therapy aide' means a person who only performs support activities in the practice of occupational therapy under the supervision of a licensed occupational therapist and whose activities require an understanding of occupational therapy but do not require professional or advanced training in the basic anatomical, biological, psychological and social sciences involved in the practice of occupational therapy. The manner of supervision shall be determined by regulations adopted by the Board.

(f) 'Person' shall mean any individual, partnership, unincorporated organization, corporate body or any other entity, except that only an individual may be licensed under this Chapter.

(g) 'Association' shall mean Delaware Occupational Therapy Association.

(h) 'American Occupational Therapy Association' is the nationally recognized professional association for occupational therapists and occupational therapy assistants.

(I) 'Field Work' shall mean supervised experience which emphasizes the application of an academically acquired body of knowledge arranged by the accredited or approved educational institution attended by the applicant.

§2003. License to Practice

No person shall practice occupational therapy or hold himself or herself out as an occupational therapist or occupational therapy assistant, or to render occupational therapy services in this State unless he or she is licensed in accordance with the provisions of the Chapter. It shall be unlawful for any person, or for any business entity, its employees, agents or representatives to use in connection with his or its name or business activity the words 'Occupational Therapist', 'Occupational Therapist, Registered', 'Licensed Occupational Therapist', 'Occupational Therapist Assistant'. 'Licensed Occupational Therapist Assistant', the letters 'or, 'OTR', 'OTR/L', 'COTA', 'COTA/L', or any other words, letters abbreviations or insignia indicating or implying directly or indirectly that occupational therapy services are rendered unless such person is licensed under this Chapter.

§2004. Persons and Practices Not Affected

Nothing in this Chapter shall be construed as preventing or restricting the practice, services, or activities of:

(a) Any person registered or licensed In this State by any other law from engaging in the profession or occupation for which he or she is licensed; or

(b) Any person employed as an occupational therapist or occupational therapy assistant by the Government of the United States, if such person provided occupational therapy solely under the direction or control of the organization by which he or she is employed; or

(c) Any person pursuing a course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program if such activities and services constitute a part of a supervised course of study and if such a person is designated by a title which clearly indicates his or her status as a student or trainee; or

(d) Any person employed by an occupational therapist as an occupational therapy aide; or

(c) Any person fulfilling the supervised field work experience requirements of this Chapter, if such activities and services constitute the requirements for licensure.

(I) Any visiting occupational therapist who teaches temporarily at an accredited or approved educational program or who lectures or instructs participants at seminars sanctioned by the Delaware Occupational Therapy Association.

§2005. Board of Occupational Therapy; Appointment; Qualifications; Term of Office; Compensation

(a) The Board of Occupational Therapy shall consist of five members all of whom are residents of this State and shall be appointed by the Governor. The Board shall consist of three professional members at least two of whom shall be licensed occupational therapists, one may be a licensed occupational therapy assistance, and two public members. The public members shall not be nor ever have ecn occupational therapists nor members of the immediate family of an occupational therapist, employed by an occupational therapist, have a material financial interest in the providing of goods and services to occupational therapists. or engaged In an activity directly related to occupational therapy. Such public members shall have an interest in health cart and be accessible to Inquires, comments and suggestions from the general public.

(b) Each member shall serve for a term of three years. and may succeed himself for one additional term. provided however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified In the appointment, except that each member shall serve until his successor is duly appointed.

(c) A member of the Board shall be suspended or removed by the Governor for misfeasance. non• feasancc or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated, or the matter Is otherwise concluded.

(d) While serving on the Board, no member shall be a President, Chairman or other official of a professional association for occupational therapists.

(e) A member of the Board shall receive fifty dollars (550.00) for each meeting attended, but not more than five hundred dollars (5500.00) in any calendar year.

§2006. Officers; Conduct of Business

(a) The Board shall elect annually from its members, a Chairman, a Vice Chairman and a Secretary. Each officer shall serve for one year, and shall not succeed himself in the same office.

(b) The Board shall hold regularly scheduled business meetings at least twice a year, and at such other times as the Chairman deems necessary, or at the request of a majority of Board members.

(c) A majority of members shall constitute a quorum and no action shall be taken without the affirmative vote of at least three members. Any member who fails to attend three consecutive meetings, or who falls to attend at least half of all regular business meetings during any calendar year. shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.

§2007. Powers and Duties

(a) The Board of Occupational Therapy Practice shall have authority to:

(1) Formulate rules and regulations. Each rule and regulation shall implement or clarify a specific section of this Chapter;

(2) Designate a national examination approved by the American Occupational Therapy Association to be taken by persons applying for licensure, except applicants who qualify for licensure by reciprocity;

(3) Grant licenses to all persons who meet the qualifications for licensure;

(4) Receive complaints from practitioners and from the public concerning practitioners, or concerning practices of the profession; to evaluate such complaints; and to take such action within Its powers as the Board deems appropriate;

(5) Determine whether or not a practitioner shall be the subject of a disciplinary hearing, and If so, to conduct such hearing in accordance with this Chapter and the provisions of the Administrative Procedures Act in areas not covered by the Chapter;

(6) Where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate unction or penalty;

(7) Bring proceedings in court for the enforcement of this Chapter;

(8) Maintain complete records relating to meeting minutes. applications, examinations, rosters. changes and additions to the rules and regulations, complaints, hearings and such other matters as the Board shall determine.

(b) The Board may require by subpoena the attendance and testimony of witnesses and the production of papers, records or other documentary evidence.

§2008. Application Procedure

(a) An applicant who is applying for examination and licensure under this Chapter shall have the following qualifications:

(I) Applicant shall present evidence satisfactory to the Board of Occupational Therapy of having successfully completed the academic requirements of an educational program in occupational therapy recognized by the Board.

the American Occupational Therapy Association.

(1) The occupational therapy assistant educational program shall be approved by the American Occupational Therapy Association.

(2) Applicants shall submit to the Board evidence of having successfully completed a period of supervised field work experience arranged by the recognized educational institution where he or she met the academic requirements or by the nationally recognized professional association.

(3) the applicant shall not have bccn convicted of a felony, professionally penalized or convicted of drug addition, shall not havc bccn penalized or convicted for a willful violation of any confidential communication, nor have bccn professionally penalized or convicted for fraud.

(4) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board.

§2009. Examination of Applicants

(a) Applicants for liccnsurc shall be examined at a time and place and under such supervision as the Board may require. Examinations shall be given at least twice each year at such places as the Board may ctcrminc. the Board shall give reasonable public notice of these examinations in accordance with its rules and regulations. The examination shall be an examination approved by the American Occupational Therapy Association.

(b) In the event the applicant has already taken and passed a national examination approved by the American Occupational Therapy Association evidence acknowledging same shall be submitted. the Board shall accept such certificate and thereby waive a written examination.

(c) In addition to the requirement of §2008 (2) and §2009 (b), a foreign trained applicant shall be eligible for liccnsurc as an occupational therapist or as an occupational therapy assistant after submitting to the Board satisfactory evidence of:

(I) graduation from a school offcring a program in occupational therapy or occupational therapy assistant which has bccn approved for the educational preparation of occupational therapists or occupational therapist assistants by the appropriate accrediting agency recognized by the American Occupational Therapy Association.

§2010. Reciprocity

(a) Upon payment of the appropriate fee the Board shall waive the examination, education, or experience requirements and grant a license to any applicant who shall present proof of current liccnsure as an occupational therapist or occupational therapy assistant in another state, the District of Columbia, or territory of the United States which requires standards for liccnsurc considered by the Board to be equivalent to the requirements for liccnsurc of this Chapter.

(b) Upon receipt of an application for reciprocity, the Board shall contact each jurisdiction which has previously licensed the applicant, to determine whether or not there arc disciplinary proceedings or unresolved complaints pending against the applicant. In the event that a disciplinary proceeding or unresolved complaint is pending, the applicant shall not be licensed until the proceeding or the complaint has bccn resolved.

§2011Examination Fee

The amount to be charged for an examination fee shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board as well as the proportional expenses incurred by the Division of Business and Occupational Regulation in its services on behalf of the Board.

§2012 Application Fec• Renewal; Inactive Status; Misrepresentation

(a) Each application for license under this Chapter shall be accompanied by a fee set forth in rules and regulations Licenses shall expire biennially on December 31 and may be rcncwed upon submission of a rcncwal application provided by the Board an paymcnt of the rcncwal fee along with the cvidcncc of continuing education courses at may be required by the rules and regulations set forth by the Board. If the rcncwal fee is not paid by the expiration date, a license shall automatically expire. A license or rcgistration which has thus expired may within 5 years of its expiration date, be rcncwcd upon the payment to the Board of the sum of $100.00. Reactivation of an expired license more than 5 years after U expiration date may be renewed only by complying with the provisions herein relating to the issuance of an original license or registration.

(b) The Board shall also keep an inactive register. Any person who has been licensed in the State and it neither residing within the State nor actively engaged in the practice of occupational therapy in the State may upon request, be placed on the inactive register. Provisions for inactive status shall be established and set up by the Board.

(c) Any applicant who knowingly or wilfully makes a false statement of fact in making an application under this Chapter shall he subject to prosecution for perjury. The Board shall have full authority to investigate, in accordance with law, every applicant for a license or registration regarding that applicant's qualifications. Any prosecution under this subsection for perjury and its related offenses shall be within the exclusive jurisdiction of the Superior Court.

§2013. Violations; Grounds for Professional Discipline

(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth in §2014 if, after a hearing, the Board finds:

(1) That the practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice occupational therapy;

(2) Illegal, incompetent or negligent conduct in the practice of occupational therapy;

(3) The practitioner habitually indulges in the use of narcotics or other habit forming drugs, or is habitually intemperate;

(4) That the practitioner has been convicted of a felony;

(5) That the practitioner, as a therapist or otherwise in the practice of his profession, knowingly engaged in an act of consumer fraud or deception, engaged in restraint of the competition, or participated in price fixing activities;

(6) That the practitioner directly or indirectly has engaged in the division, transfer, assignment, rebate, or refunding of fees received for professional services, or to profit by means of a credit or other valuable consideration such as wages, an unearned commission, discount or gratuity with any person who referred a patient, or with any relative or business associate of the referring person. This does not preclude a practitioner from practicing or being employed by a licensed physician, hospital, health maintenance organization, nursing home, home health agency, rehabilitation agcncy or public or non public schools. Nothing in this section shall be construed as prohibiting the members of any regularly and properly organized business entity recognized by Delaware law, and composed of occupational therapists, from making any division of their total fees among themselves as they determine by contract necessary to defray their joint operating costs.

(7) That the practitioner has violated a lawful provision of this Chapter, or any lawful regulation established thereunder.

(b) A practitioner shall be subject to non disciplinary remedial action if, after a hearing, the Board finds that there is a danger to the health, safety and welfare of the public to:

(1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; or

(2) Temporary emotional disorder or mental illness;

(3) Permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity is at issue in a non disciplinary remedial proceeding, the Board may order the practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render a practitioner liable to temporary suspension or revocation of license in accordance with §2014.

(d) Where a practitioner fails to comply with the Board's request that he submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

§2014. Remedial Actions and Disciplinary Sanctions

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in §2013 applies to a practitioner regulated by this Chapter:

(1) Issue a letter of reprimand;

(2) Censure a practitioner;

(3) Place a practitioner on probationary status, and require the practitioner to:(I) Report regularly to the Board upon the matters which are the basis of the probation, (Ii) Limit all practice and professional activities to those areas prescribed by the Board, or

(Ili) Continue or renew his professional education until the required degree of skill, as evidenced by successful completion of a designated examination, has been attained in those areas which are the basis of the problem;

(4) Suspend any practitioner's license; or

(5) Revoke a practitioner's license.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.

(c) The board may temporarily suspend a practitioner's license In advance of a final adjudication, or during the appeals process; but only In cases where there is a clear and Immediate danger to the health, safety and/or welfare of the public if the licensee Is allowed to continue to practice with reasonable skill and safety.

(d) Where a license has been suspended due to a disability of the licensee. the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety.

e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§2015. Complaints; Board Hearings; Procedure

(a) Any member of the public or practitioner who has a question or complaint concerning any aspect of the practice of occupational therapy may, during the regular business hours of a business day, contact the Board or the Division of Business and Occupational Regulation; or voice such question or complaint at a business meeting of the Board.

(b) Upon the receipt of a complaint against a practitioner, the Board shall determine what action, if any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within 90 days of receiving the complaint unless circumstances surrounding the complaint warrant a lengthier Investigation. The Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least thirty days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service will be effected in the same manner u with civil litigation.

(c) All hearings shall be Informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such a decision. A copy of the decision shall be mailed Immediately to the complainant, and to the practitioner. The Board's decision shall become effective on the thirtieth day after the date It is mailed or served on the practitioner. unless there is an appeal to the Superior Court within that time.

(d) Where either the complainant or the practitioner is in disagreement with the action of the Board, either person may appeal the Board's decision to the Superior Court within thirty days of service, or of the postmarked date of the copy of the Board's decision. Upon such appeal, the Court shall hear the evidence de novo, and the filing of an appeal shall act as a stay of the Board's decision, pending final determination of the appeal.

§2016. Practicing Without a License

(a) Where the Board has determined that a person is practicing occupational therapy within this State without having lawfully obtained a license therefore, or that a person previously licensed is unlawfully practicing although his license has been suspended or revoked, the Board shall warn such persons. If the offense continues, the Board shall make complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.

(b) Where a person not currently licensed u an occupational therapist is tried and convicted of unlawfully practicing occupational therapy, the offender shall, upon the first offense be fined between ;100.00 and $500.00 and shall pay all costs.

(c) Where a person previously convicted of unlawfully practicing occupational therapy is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by $500.00 for each subsequent offense.

pm. Practice, Referral and Consultation

An occupational therapist may undertake consultation or evaluation of an individual as to the need for their services without the necessity of a referral by a licensed physician. However, an occupational therapist shall not provide occupational therapy treatment to an individual for a specific medical condition without a referral from a licensed physician unless the occupational therapy treatment is administrated by the public or private school or college systems of the State of Delaware."

Section 2. Amend 510161, Chapter 101. Title 29 of the Delaware Code by adding thereto a new subsection, designated as subsection (24), which new subsection shall read as follows:

"(24) Board of Occupational Therapy Practice."

Section 3. Amend S81310 (b), Chapter 88, Title 29 of the Delaware Code by adding thereto a new paragraph (18) which shall read as follows:

"(18) Board of Occupational Therapy Practice."

Section 4. Amend 52301 (a), Chapter 23, Title 30 of the Delaware Code by redesignating paragraphs (47) through (87) as paragraphs (48) through (88) and by adding a new paragraph (47) to read as follows:

"(47) Occupational therapist, $50.00. 'Occupational Therapist' includes every person engaged in the business of occupational therapy as defined in Chapter 20 of Title 24."

Section 5. Members of the initial Board shall be appointed in such a manner that the terms of 2 members expire on June 30, 1986, and that the terms of the remaining 3 members shall expire on Juno 30, 1987. Thereafter, appointments shall be made for terms of 3 years.

Section 6. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act arc declared to be severable.

Approved July 12, 1985.