TITLE 24

Professions and Occupations

CHAPTER 20. OCCUPATIONAL THERAPY

Subchapter II. License


(a) A person may not engage in the practice of occupational therapy or hold the person out to the public in this State as being qualified to practice as an occupational therapist or occupational therapy assistant, or use in connection with the person's name, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice occupational therapy, unless the person has been licensed under this chapter.

(b) If a license to practice as an occupational therapist or occupational therapy assistant in this State has expired or been suspended or revoked, it is unlawful for the person holding the expired, suspended, or revoked license to practice occupational therapy in this State.

(c) It is unlawful for a person or business entity, or a person's or business entity's employees, agents, or representatives to use in connection with the person's or business entity's name or business activity the words occupational therapist, occupational therapist registered, licensed occupational therapist, occupational therapy assistant, licensed occupational therapy assistant; the letters of OT, OT/L, OTR, OTR/L, OTA, COTA, COTA/L; or any other words, letters, abbreviations, or insignia indicating or implying directly or indirectly that occupational therapy services are rendered, unless the person or business entity is licensed under this chapter.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 7.;

(a) An applicant who is applying for licensure as an occupational therapist or occupational therapy assistant under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that the applicant meets all of the following qualifications:

(1) Has successfully completed the academic requirements of an educational program in occupational therapy that the Board recognizes. The occupational therapy education program and occupational therapist assistant educational program must be accredited by the Accreditation Council for Occupational Therapy Education.

a., b. [Repealed.]

(2) Has successfully completed a period of supervised field work experience arranged by the recognized educational institution where the applicant has met the academic requirements, or by the nationally recognized professional association.

(3) Has achieved the passing score on the written standardized examination developed by the National Board for Certification in Occupational Therapy, Inc., or its successor.

(4)a. Has not been the recipient of any administrative penalties regarding the applicant's practice of occupational therapy, including fines; formal reprimands; license suspensions or revocation, except for license revocations for nonpayment of license renewal fees; or probationary limitations.

b. Has not entered into any "consent agreements" which contain conditions placed by a Board on that applicant's professional conduct and practice, including any voluntary surrender of a license.

c. The Board may determine, after a hearing, whether an administrative penalty included in paragraphs (a)(4)a. and (a)(4)b. of this section is grounds to deny licensure.

(5) Has no impairment related to drugs, alcohol, or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake the practice of occupational therapy in a manner consistent with the safety of the public.

(6) Does not have a criminal conviction record or pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of occupational therapy. Applicants who have criminal conviction records or pending criminal charges shall request that the appropriate authorities provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of occupational therapy. The Board may waive this paragraph (a)(6) if, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a quorum, it finds all of the following:

a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence, and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service.

b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant must not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence, and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service.

c. The applicant is capable of practicing occupational therapy in a competent and professional manner.

d. Granting the waiver will not endanger the public health, safety, or welfare.

(7) Has not been convicted of a felony sexual offense.

(8)a. Has submitted, at the applicant's expense, fingerprints and other necessary information in order to obtain all of the following:

1. A report of the applicant's entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no criminal history record relating to that applicant.

2. A report of the applicant's entire federal criminal history record under the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification is the intermediary for purposes of this section and the Board is the screening point for the receipt of the federal criminal history records.

b. An applicant may not be licensed to practice occupational therapy until the applicant's criminal history reports have been produced. The Board may not license an applicant whose record shows a prior criminal conviction unless a waiver is granted under paragraph (a)(6) of this section.

(b) If the Board finds to its satisfaction that an applicant has been intentionally fraudulent or intentionally supplied false information, it shall report its findings to the Attorney General for further action.

(c) If the Board refuses or rejects an application and the applicant believes that the Board has acted without justification, imposed higher or different standards for that applicant than for other applicants or licensees, or in some other manner contributed to or caused the failure of the application, the applicant may appeal to the Superior Court.

(d) Licensees must be fingerprinted by the State Bureau of Identification, at the licensee's expense, for the purposes of performing subsequent criminal background checks.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 74 Del. Laws, c. 262, § 39; 75 Del. Laws, c. 210, § 1; 75 Del. Laws, c. 436, § 18; 77 Del. Laws, c. 199, § 16; 78 Del. Laws, c. 44, §§ 32, 33; 79 Del. Laws, c. 277, § 5; 81 Del. Laws, c. 424, § 8.;

Nothing in this chapter may be construed as preventing or restricting the practice, services, or activities of any of the following:

(1) A person registered or licensed in this State by any other law from engaging in the profession or occupation for which that person is licensed.

(2) A 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 the person is designated by a title which clearly indicates that person's status as a student or trainee.

(3) A person fulfilling the supervised field work experience requirements of this chapter, if such activities and services constitute the requirements for licensure.

(4) A 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.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 9.;

In addition to the requirements of § 2008 of this title, a foreign-trained applicant is eligible for licensure as an occupational therapist or as an occupational therapy assistant after submitting to the Board satisfactory evidence of graduation from a school offering a program in occupational therapy or occupational therapy assistant which has been approved for the educational preparation of occupational therapists or occupational therapy assistants by the appropriate accrediting agency recognized by the National Board for Certification in Occupational Therapy, Inc., or its successor.

71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 10.;

Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who presents proof of current licensure in good standing in another state, the District of Columbia, or territory of the United States, and who meets all of the following criteria:

(1) Has a license in good standing as defined in § 2008(a)(4)-(6) of this title.

(2) Has achieved the passing score on all parts of the written, standardized examination administered by the National Board for Certification in Occupational Therapy, Inc., or its successor.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 75 Del. Laws, c. 436, § 19; 81 Del. Laws, c. 424, § 11.;

(a) A licensee has a duty to report to the Division information that the licensee reasonably believes indicates that the licensee or another licensee has engaged in or is engaging in conduct that constitute grounds for disciplinary action under this chapter. A licensee shall report to the Board within 30 days of the occurrence of any of the following:

(1) A partial or full removal of the licensee's or another licensee's hospital privileges based on adverse events, unprofessional conduct, or competency issues.

(2) A disciplinary action taken by any regulatory agency against the licensee or another licensee.

(3) A reasonably-substantiated incident involving violence, threat of violence, abuse, or neglect by the licensee or another licensee toward another person.

(b)(1) A licensee is subject to temporary or permanent license restriction, suspension, or revocation if the licensee is unable to practice the occupation with reasonable skill or safety to patients due to any of the following circumstances:

a. Mental illness or mental incompetence.

b. Physical illness, including deterioration due to aging or loss of motor skills.

c. Excessive use or abuse of drugs or alcohol.

(2) A license may be permanently restricted, suspended, or revoked after a hearing under § 2006(a)(11) of this title.

(3) A license may be temporarily restricted, suspended, or revoked after a hearing under § 2006(a)(11) of this title or, if circumstances present an immediate danger to the public health, safety, or welfare, without a hearing and under the process established in § 2017(c) of this title.

81 Del. Laws, c. 424, § 12.;

(a) The amount to be charged for each fee imposed under this chapter must approximate and reasonably reflect all costs necessary to defray the Board's expenses and the Division's proportional expenses in its service on behalf of the Board.

(b) A separate fee may be charged for each service or activity, but no fee may be charged for a purpose not specified in this chapter.

(c) The application fee must not be combined with any other fee or charge.

(d) At the beginning of each licensure biennium, the Division or other state agency acting on the Division's behalf shall compute, for each separate service or activity, the appropriate Board fees for the coming licensure biennium.

65 Del. Laws, c. 172, § 1; 65 Del. Laws, c. 355, § 1; 71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 13.;

(a) The Board shall issue a license to each applicant who meets the requirements of and pays the fee under this chapter for licensure as an occupational therapist or occupational therapy assistant.

(b) Each license must be renewed biennially, in a manner determined by the Division, upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board.

(c) The Board, in its rules and regulations, shall determine the period of time within which a licensee may renew a license if the licensee has failed to renew on or before the renewal date.

(d) A licensee, upon written request, may place the licensee's license on inactive status. The fee to renew an inactive license must be prorated in accordance with the amount of time the license was inactive. The licensee may reenter practice upon written notification to the Board of the intent to do so and completion of continuing education as required by the Board's rules and regulations.

65 Del. Laws, c. 172, § 1; 66 Del. Laws, c. 400, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 75 Del. Laws, c. 210, § 3; 81 Del. Laws, c. 424, § 14.;

(a) A licensee is subject to disciplinary actions under § 2017 of this title if, after a hearing, the Board finds that the licensee has done any of the following:

(1) Employed or knowingly cooperated in fraud or material deception in order to acquire a license as an occupational therapist or occupational therapy assistant, impersonated another person holding a license or registration, allowed another person to use the licensee's license, or aided or abetted a person not licensed under this chapter to represent the person as an occupational therapist or occupational therapy assistant.

(2) Been convicted of a crime that is substantially related to the practice of occupational therapy. A copy of the record of conviction certified by the clerk of the court entering the conviction is conclusive evidence of the conviction.

(3) Excessively used or abused drugs or alcohol in the previous 2 years.

(4) Engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities.

(5) Violated a provision of this chapter or a regulation established under this chapter.

(6) Had the licensee's license, certification, or registration as an occupational therapist or occupational therapy assistant suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction.

a. For this paragraph (a)(6) to apply, the underlying grounds for the action in another jurisdiction must be presented to the Board by certified record, and the Board must determine that the facts found in the other jurisdiction constitute 1 or more of the acts defined in this chapter.

b. A licensee is deemed to have consented to the release of the information under paragraph (a)(6)a. of this section by the Board or comparable agency in another jurisdiction and waived all objections to the admissibility of previously adjudicated evidence on the record of the other jurisdiction.

(7) Failed to notify the Board that the licensee's license, certification, or registration as an occupational therapist or occupational therapy assistant in another jurisdiction has been subject to discipline, surrendered, suspended, or revoked. A certified copy of the record of disciplinary action, surrender, suspension, or revocation is conclusive evidence thereof.

(8) While acting as a supervising occupational therapist, has failed to supervise and take reasonable steps to see that an occupational therapy assistant performs services responsibly, competently, and ethically, in accordance with rules and regulations that the Board established. A supervising occupational therapist is subject to disciplinary action for an act or offense which is grounds for disciplinary action when the act or offense is undertaken by the occupational therapy assistant acting under the supervising occupational therapist's direction or control.

(b) If a licensee fails to comply with the Board's request that the licensee attend a hearing, the Board may petition the Superior Court to order the licensee's attendance. The Court has the jurisdiction to issue an order requiring the licensee to attend the hearing.

(c) [Repealed.]

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 74 Del. Laws, c. 262, § 40; 81 Del. Laws, c. 424, § 15.;

(a) The Division shall receive and investigate a complaint in accordance with § 8735 of Title 29, and the Division shall issue a final written report at the conclusion of its investigation.

(b) If the Board determines that an individual is engaging in the practice of occupational therapy or using the title occupational therapist or occupational therapy assistant and is not licensed under this chapter, the Board shall issue a formal warning to the individual under this chapter. If the formal warning does not resolve the matter, the Board may apply to the Office of the Attorney General to issue a cease and desist order.

(c) The Division shall investigate a complaint against a licensee involving allegations of unprofessional conduct or incompetence.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 16.;

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 or more of the conditions or violations under § 2015 of this title applies to a licensee:

(1) Issue a letter of reprimand.

(2) [Repealed.]

(3) Place the licensee on probationary status and require the licensee to do any of the following:

a. Report regularly to the Board upon the matters which are the basis of the probation.

b. Limit all practice and professional activities to those areas that the Board prescribes.

(4) Suspend the licensee's license.

(5) Revoke the licensee's license.

(6) Impose a monetary penalty not to exceed $500 for each violation.

(b) The Board may withdraw or reduce conditions of probation if it finds that the deficiencies which required the probation are remedied.

(c) If a formal or informal complaint concerning the activity of a licensee presents a clear and immediate danger to the public health, safety, or welfare, the Board may temporarily suspend the licensee's license, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee.

(1) An order temporarily suspending a license must not be issued unless the licensee or the licensee's attorney receives at least 24 hours' written or oral notice before the temporary suspension, so that the licensee or the licensee's attorney may file a written response to the proposed suspension.

(2) The decision as to whether to issue the temporary order of suspension must be decided on the written submissions.

(3) An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order, unless the licensee requests a continuance of the hearing, in which case the order of temporary suspension remains in effect until the hearing is convened and the Board renders a decision.

(4) A licensee whose license has been temporarily suspended under this section may request an expedited hearing. Upon the licensee's timely request, the Board shall schedule the hearing on an expedited basis. A request is timely if the licensee provides it to the Board within 5 calendar days from the date that the licensee received notice of the temporary suspension.

(d) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may impose disciplinary or corrective measures authorized under this chapter.

(e) The Board shall permanently revoke the license of a licensee who is convicted of a felony sexual offense.

65 Del. Laws, c. 172, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 79 Del. Laws, c. 213, § 2; 79 Del. Laws, c. 277, § 6; 81 Del. Laws, c. 424, § 17.;

(a) If a complaint alleging violation of § 2015 of this title is filed with the Board under § 8735 of Title 29, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing must be given and the hearing must be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.

(b) All hearings are informal without use of 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 must be in writing and include the Board's reasons for the decision. The Board's decision must be mailed immediately to the licensee.

(c) If the licensee is in disagreement with the Board's action, the licensee may appeal the Board's decision to the Superior Court within 30 days of service of the Board's decision or the postmarked date of the copy of the decision mailed to the licensee. Upon an appeal, the Court shall hear the evidence on the record. The Court may grant a stay in accordance with § 10144 of Title 29.

65 Del. Laws, c. 172, § 1; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 18.;

(a) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may reinstate a license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension or probation.

(b) An applicant for reinstatement shall pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension or probation have been met. The Board may also require that the applicant meet the continuing education requirements of this chapter.

(c) A new license to replace a license lost, destroyed, or mutilated may be issued subject to the rules of the Board, and upon payment of a fee to issue a replacement license.

71 Del. Laws, c. 293, § 1; 81 Del. Laws, c. 424, § 19.;

(a) It is unlawful for a person who is not licensed under this chapter to any of the following:

(1) Engage in the practice of occupational therapy.

(2) Use in connection with that person's name or otherwise assume or use any title or description that conveys or tends to convey the impression that the person is qualified to practice occupational therapy.

(b) A person who violates subsection (a) of this section is guilty of a misdemeanor and subject to the following penalties:

(1) For the first offense, a fine of not less than $500 nor more than $1,000 for each offense.

(2) For each subsequent offense, a fine of not less than $1,000 nor more than $2,000 for each offense.

(c) Superior Court has jurisdiction over all violations of this chapter.

71 Del. Laws, c. 293, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 424, § 20.;

(a) As used in this section:

(1) "Adult staff member" means an individual who is 18 years or older and is acting under the direction of the licensee, the licensee's employer, or is otherwise licensed under this chapter.

(2) "Evaluation or treatment" includes dressing, bathing, or toileting that exposes a minor patient's breast, genitalia, or rectum.

(3) "Minor" means an individual who is 15 years or younger.

(4) "Services" includes inpatient, outpatient, home, or school treatment.

(b) A minor patient's parent, guardian, or other caretaker, or an adult staff member, must be present when a licensee provides services to a minor patient who is disrobed or partially disrobed during evaluation or treatment.

(c) If an adult staff member observes the evaluation or treatment, the adult staff member must be of the same gender as the patient when practicable.

(d) The minor patient may decline the presence of a third person only with consent of individual providing consent to the minor patient's treatment and only after the initial evaluation.

(e) When a minor patient's evaluation or treatment involves the female breasts, or female or male genitalia or rectum, a licensee shall provide the individual providing consent to the minor patient's treatment with notice of the rights under this section. The notice must be provided in written form or conspicuously posted in a manner in which a minor patient and the individual providing consent to the minor patient's treatment are made aware of the notice. In circumstances in which the posting or the provision of the written notice may not convey the right to have a third person present, the licensee shall use another means to ensure that the minor patient and the individual providing consent to the minor patient's treatment understand the rights under this section.

(f) [Repealed.]

(g) A licensee that provides treatment to a minor patient under this section shall, contemporaneously with the treatment, note in the minor patient's record the name of each person present when the treatment is provided.

79 Del. Laws, c. 169, § 6; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 424, § 21.;