TITLE 24

Professions and Occupations

CHAPTER 20. OCCUPATIONAL THERAPY

Subchapter II. License


(a) No person shall engage in the practice of occupational therapy or hold himself or herself 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 such person is qualified to practice occupational therapy, unless such person has been duly licensed under this chapter.

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

(c) It shall be unlawful for any person, or for any business entity, its employees, agents or representatives to use in connection with his, her or its 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 such person is licensed under this chapter.

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

(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 such person:

(1) Has successfully completed the academic requirements of an educational program in occupational therapy recognized by the Board; and

a. The occupational therapy educational program shall be accredited by the Accreditation Council for Occupational Therapy Education (ACOTE);

b. The occupational therapy assistant educational program shall be accredited by the Accreditation Council for Occupational Therapy Education (ACOTE);

(2) Has successfully completed a period of supervised field work experience arranged by the recognized educational institution where the person 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) Shall not have been the recipient of any administrative penalties regarding that person's practice of occupational therapy, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any "consent agreements" which contain conditions placed by a Board on that person's professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure;

(5) Shall not have any 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) Shall not have a criminal conviction record, nor 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 require appropriate authorities to 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. However, 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 majority of the quorum, may waive this paragraph (a)(6), if 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 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.

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

d. The granting of the waiver will not endanger the public health, safety or welfare;

(7) Shall not have been convicted of a felony sexual offense;

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

a. 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 such information relating to that person;

b. A report of the applicant's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Occupational Therapy Practice shall be the screening point for the receipt of said federal criminal history records;

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

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

(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for that applicant than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

(d) All individuals licensed to practice occupational therapy in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee's expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant's expense, fingerprints and other necessary information in order to obtain a criminal background check.

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.;

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

(1) Any 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) 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 that person's status as a student or trainee;

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

(4) 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.

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

In addition to the requirement of § 2008 of this title, a foreign-trained applicant shall be 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.

71 Del. Laws, c. 293, § 1.;

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 shall present proof of current licensure in good standing in another state, the District of Columbia, or territory of the United States, whose standards for licensure are substantially similar to those of this State, and who meets the following criteria:

(1) The applicant's license is in good standing as defined in § 2008(a)(4)-(6) of this title; and

(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.;

Repealed by 75 Del. Laws, c. 210, § 2, effective July 21, 2005.;

The amount to be charged for each fee imposed under this chapter 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 Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity; but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division of Professional Regulation, or any other state agency acting in its 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.;

(a) The Board shall issue a license to each applicant, who meets the requirements of this chapter for licensure as an occupational therapist or occupational therapy assistant and who pays the fee established under § 2013 of this title.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, and upon payment of the appropriate fee and submission of a renewal form provided by the Division of Professional Regulation, 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 licensed occupational therapist or occupational therapy assistant may still renew the occupational therapist's or occupational therapy assistant's license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date.

(d) A licensee, upon written request, may be placed on inactive status. The renewal fee of the licensee shall be prorated in accordance with the amount of time the licensee 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 in 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.;

(a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 2017 of this title, if, after a hearing, the Board finds that the occupational therapist or occupational therapy assistant:

(1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as an occupational therapist or occupational therapy assistant; has impersonated another person holding a license or registration, or allowed another person to use the practitioner's license, or aided or abetted a person not licensed as an occupational therapist or occupational therapy assistant to represent himself or herself as an occupational therapist or occupational therapy assistant;

(2) Has 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 shall be conclusive evidence therefor;

(3) Has excessively used or abused drugs either in the past 2 years or currently; excessive use or abuse of drugs shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs the practitioner's ability to perform the work of an occupational therapist or occupational therapy assistant;

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

(5) Has violated a lawful provision of this chapter, or any lawful regulation established thereunder;

(6) Has had that practitioner'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; provided however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record, and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter. Every person licensed as an occupational therapist or occupational therapy assistant in this State shall be deemed to have given consent to the release of this information by the Board of Occupational Therapy Practice or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;

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

(8) While acting as a supervising occupational therapist, has failed to supervise and take reasonable steps to see that occupational therapy assistants and temporary licensees perform services responsibly, competently and ethically, in accordance with rules and regulations established by the Board. Supervising occupational therapists shall be subject to disciplinary action for any acts or offenses which are grounds for such action when such acts or offenses are undertaken by the occupational therapy assistant or temporary licensee acting under the supervising occupational therapist's direction or control.

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

(c) Subject to this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice occupational therapy or to act as an occupational therapy assistant shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29].

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

All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.

When it is determined that an individual is engaging in the practice of occupational therapy or is using the title occupational therapist or occupational therapy assistant and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with this chapter.

Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation.

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

(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 set forth in § 2015 of this title 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:

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 prescribed by the Board.

(4) Suspend any practitioner's license.

(5) Revoke any practitioner's license.

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

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

(c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person'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. An order temporarily suspending a license may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license.

(d) 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.

(e) The Board shall permanently revoke the license to practice occupational therapy of a person 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.;

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

(b) All hearings shall be 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 shall be in writing and shall include its reasons for such decision. The Board's decision shall be mailed immediately to the practitioner.

(c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted 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.;

(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such 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 and/or the probation.

(b) Applicants for reinstatement shall pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate.

(c) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance.

71 Del. Laws, c. 293, § 1.;

A person not currently licensed under this chapter as an occupational therapist or occupational therapy assistant when guilty of engaging in the practice of occupational therapy, or using in connection with that person's name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the person is qualified to practice occupational therapy, such offender shall be guilty of a misdemeanor. Upon the first offense, that person shall be fined not less than $500 nor more than $1,000 for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense. Superior Court shall have jurisdiction over all violations of this chapter.

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

(a) A parent, guardian or other caretaker, or an adult staff member, shall be present when a person licensed to practice occupational therapy under this chapter provides services, including inpatient, outpatient, home or school treatment, to a minor patient who is disrobed or partially disrobed during evaluation or treatment involving, but not limited to, dressing, bathing, or toileting, that exposes the breasts, genitalia or rectum. When using an adult staff member to observe the evaluation or treatment, the adult staff member shall be of the same gender as the patient when practicable. The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the person licensed to practice occupational therapy without the presence of a third person after the initial evaluation.

(b) When a minor patient's evaluation or treatment involves the female breasts, or female or male genitalia or rectum, a person licensed to practice occupational therapy under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which minor patients and their parent, guardian or other caretaker are made aware of the notice. In circumstances in which the posting or the provision of the written notice would not convey the right to have a chaperone present, the person licensed to practice occupational therapy shall use another means to ensure that the person understands the right under this section.

(c) For the purposes of this section, "minor" is defined as a person 15 years of age or younger, "adult staff member" is defined as a person 18 years of age or older who is acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter.

(d) The person licensed under this chapter that provides treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child's record the name of each person present when such treatment is being provided.

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