STATE OF WISCONSIN
OCCUPATIONAL THERAPISTS
AFFILIATED CRENDENTIALING BOARD
IN THE MATTER OF RULE-MAKING
PROCEEDINGS BEFORE THE
OCCUPATIONAL THERAPISTS
AFFILIATED CREDENTIALING
BOARD
PROPOSED ORDER OF THE
OCCUPATIONAL THERAPISTS
A
FFILIATED CREDENTIALING AFFILIATED CREDENTIALING BOARD ADOPTING RULES
(CLEARINGHOUSE RULE )
PROPOSED ORDER
An or
der of the Occupational Therapists Affiliated Credentialing Board
to repeal OT 1.02 (17)
, 4.03 (2) (a), and 4.03 (2)
(c) and
(d);
to amend OT 3.05 (title) and (intro.), 3.05 (2), 4.02 (2) (f)
, 4.03 (2) (title),
4.03 (2) (b)
, 4.03 (2)
(e)
, 4.03 (3) (a), and 4.03 (3) (f);
to create OT 3.05 (1) (title)
and 3.05 (3) relating to self-referral of occupational therapy services.
Analysis prepared by the Department of
Safety and Professional Services
.
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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section
15.085 (5) (b)
,
Stats.,
provides that affiliated credentialing boards such as the Occupational Therapists Affiliated Credentialing Board, “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . .” The
proposed rule will provide guidance to occupational therapists regarding the topic of who may refer occupational therapy services.
Section
227.11 (2) (a)
,
Stats., provides that, “[e]ach agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.”
Section
440.08 (3) (b)
, Stats., provides that affiliated credentialing boards such as the Occupational Therapists Affiliated Credentialing Board, “[…] may promulgate rules requiring the holder of a credential who fails to renew the credential within 5 years after its renewal date to complete requirements in order to restore the credential, in addition to the applicable requirements for renewal established under
chs
.
440
to
480
, that the […] affiliated credentialing board determines are necessary to protect the public health, safety, or welfare.”
Section
448.965 (1) (c)
,
Stats.,
provides that the affiliated credentialing board shall promulgate rules that establish, “[s]
tandards
of practice for occupational therapy, including a code of ethics and criteria for referral.”
Related statute or rule:
None.
Plain language analysis:
Under the current administrative rules, an occupational therapist may receive an order or a referral to perform occupational therapy services for a patient. Orders identify the need for occupational therapy evaluation and intervention while a referral is the act of requesting occupational therapy services. Currently, physicians, dentists, or podiatrists may order occupational therapy evaluation. However, occupational therapists may accept referrals from a variety of health care professionals including advance
d
practice nurses, chiropractors, optometrists, physical therapists
,
and physician assistants (Wisconsin Administrative Code OT 4.03 (2) (b)). Furthermore
,
there are some services
that
occupational therapist
s
can perform without the need of a referral such as consultation, habilitation, screening, client education, wellness, prevention, environmental assessments, and w
ork-related ergonomic services.
According to Wisconsin Administrative Code OT 4.03 (2) (e)
,
neither an order
n
or a referral from a physician is required for evaluation or intervention if
the occupational therapy
services are provided in an educational environment, including in a child’s home if the child has disabilities.
The proposed rule seeks to clarify that occupational therapists are able to self-refer occupational therapy services along with the host of other health care profe
ssionals that are listed above.
Currently, the rule allows other health care professionals to refer occupational therapy services. However, the
current
rule does not specifically state that
occupational therapists are allowed to self-refer.
The self-referral of occupational therapy services
would allow patients greater access to health care and would alleviate
the burden on
occupational therapists
of
relying on receiving orders and referrals from other health care professionals in order t
o provide health care services.
The proposed rule will also remove all references to orders received by health care professionals as this is outdated terminology that no longer reflects current practices.
The proposed rule will also provide clarity to the process of renewing a license after 5 years by updating provisions regarding late renewal and reinstatement. The term re
instatement will be defined as the
process by which a licensee whose license has been
surrendered or revoked or who holds a
license with unmet
disciplinary requirements that has not been renewed within
five years of the rene
wal date may apply to have that
license reinstated with or without conditions.
Summary of, and comparison with, existing or proposed federal regulation:
None
.
Comparison with rules in adjacent states:
Illinois
:
Illinois state statute provides that the implementation of direct occupational therapy treatment shall be based upon a referral from a licensed physician,
dentist, podiatric physician,
advanced practice nurse
(
who has a written collaborative agreement with a collaborating physician to provide or accept referrals from licensed occupational therapists
)
, physician assistant
(
who has been delegated authority to provide or accept referrals from or to licensed occupati
onal therapists
)
, or optometrist (225 ILCS 75/3.1). An occupational therapist may consult with, educate, evaluate, and
monitor
services for individuals groups, and
populations
concerning occupational therapy needs without referral. A referral is not required for
providing consultation
, habilitation, screening, education, wellness, prevention, environmental assessments, and work-related ergonomic services to individuals, groups, or populations. Referral from a physician or other health care provider is not required for evaluation or intervention for children and youths if an occupational therapist or occupational therapy assistant provides services in a school-based or educational environment, including the child's hom
e
(225 ILCS 75/3.1).
Illinois administrative code provides that a
n occupational therapist seeking to restore a license that has expired or been placed on inactive status for 5 years must
demonstrate completion of
24 hours of continuing education within 24 months prior to the restoration and one of the following: (1) Sworn evidence of active practice in another jurisdiction; (2) An affidavit attesting to military service; (3) Verification of successful completion of the Certification Examination of the NBCOT for licensure as a registered occupational therapist or certified occupational therapy assistant within the last 5 years prior to applying for restoration; or
(4)
Evidence of successful completion of 48
hours of continuing education
in occupational therapy, including attendance at college level courses, professionally oriented continuing education classes, special seminars, or any
other similar program completed within 2 years prior to application for restoration
(68 Ill. Admin
.
Code pt. 1315.160).
Iowa
:
Iowa statutes provide that o
ccupational therapy may be provided by an occupational therapist without referral from
a physician, podiatric physician, dentist, or chiropractor, except that a hospital may require that occupational therapy
services
provided in the hospital be performed only following prior review by and authorization of the performance of the occupational therapy
services
by a member of the hospital medical staff (Iowa Code s.
148B.3A)
.
Iowa administrative code provides that an occupational therapist seeking to reactivate a license that has been inactive for 5 years or less must provide verification of the license(s) from every jurisdiction in which the applicant is or has been practicing during the time period the Iowa license was inactive and verification of 15 hours of continuing education for an occupational therapy assistant and 30 hours of continuing education for an occupational therapist within two years of application for reactivation. If the license has been on inactive status for more than five years, an applicant must provide verification of the license(s) from every jurisdiction in which the applicant is or has been practicing during the time period the Iowa license was inactive and verification of completion of 30 hours of continuing education for an occupational therapy assistant and 60 hours of continuing education for an occupational therapist within two years of application for reactivation; or evidence of successful completion of the professional examination required for initial licensure completed within one year prior to the submission of an application for reactivation
(Iowa Admin. Code r. 645 – 206.11)
.
A licensee whose license has been revoked, suspended, or voluntarily surrendered must reinstate their license in accordance with the terms and conditions of the order of revocation or suspension, unless the order of revocation provides that the license is permanently revoked. If the order of revocation or suspension did not establish terms and conditions upon which reinstatement might occur, or if the license was voluntarily surrendered, an initial application for reinstatement may not be made until one year has elapsed from the date of the order or the date of the voluntary surrender. An application for reinstatement shall allege facts which, if established, will be sufficient to enable the board to determine that the basis for the revocation or suspension of the respondent’s license no longer exists and that it will be in the public interest for the license to be reinstated. If the board determines that the license can be reinstated, then the license reactivation process is followed (Iowa Admin. Code r. 645 – 206.11 and Iowa Admin. Code r. 645 – 11.31).
Michigan
:
Michigan statutes and
administrative
code are silent with regards to
required orders or
referrals
from other healthcare providers. An applicant whose license has lapsed for 3 years or more may be relicensed
by
meeting the
following: (1) Pass
ing
the examination on state laws and rules related to the practice of occupational therapy
; (2) Completing
supervised practice experience requirements; (3)
Verifying any
license or registration
from another state that was
held while the license was lapsed; and (4
) Either completing
the NBCOT
’s certification examination for occupational therapists or
presenting evidence that he or she was registered
or licensed
as an occupational therapist
in another state during the 3-year period immediately preceding the application for
relicensure
(Mich. Admin. Code R. 338.1227).
Minnesota:
Minnesota statutes do not require referral from a healthcare provider, however, in the absence of a physician referral or prior authorization, an occupational therapist must provide the following written notification: "Your health care provider, insurer, or plan may require a physician referral or prior authorization and you may be obligated for partial or full payment for occupational therapy services rendered."
(Minn. Stat. s.
148.6438
).
Summary of factual data and analytical methodologies:
The Board received input from the W
isconsin Occup
ational Therapy Association.
A
djacent states’ administrative rules were reviewed.
No other factual data or analytical methodologies were used.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact
analysis
:
The rule
was
posted
for public comment on the economic impact of the proposed rule, including how this proposed rule may affect businesses, local government units, and individuals, for a period of 14 days.
No comments were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis
document is
attached.
Effect on small business
:
These proposed rules
do
not
have
a
negative
economic impact on small businesses, as defined in s.
227.114 (1)
, Stats. The Department’s Regulatory Review Coordinator may be contacted by email at
Eric.Esser
@wisconsin.gov
, or b
y calling (608) 267-2435
.
Agency contact person
:
Katie
Vieira (
Paff
)
, Administrative Rules Coordinator
, Department of
Safety and Professional Services
, Division of
Policy Development
, 1400 East Washington Avenue, Room 151, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-
261-4472
; email at
Kathleen.
Vieira
@wisconsin.gov
.
Place where comments are to be submitted and deadline for submission
:
Comments may be submitted to
Katie
Vieira
(
Paff
)
,
Administrative Rules Coordinator
, Department of
Safety and Professional Services
, Division of
Policy Development
, 1400 East Washington Avenue, Room 151, P.O. Box
8366
, Madison, WI 53708-8935, or by email to
Kathleen.Vieira
@wisco
ns
in.gov
.
Comment
s must be received on or before the
public hearing on September 15, 2015
to be included in the record of rule-making proceedings.
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TEXT OF RULE
Section
1
.
OT 1.02 (17)
is repealed.
Section
2
.
OT 3.05 (title)
and
(intro.) are amended to read:
OT
3.05
Failure
to be registered
Late renewal and reinstatement
.
Failure to be registered. Failure to renew a license by June 1 of an odd numbered year shall cause the license to
lapse
expire
. A licensee who allows the license to
lapse
expire
may apply to the board for
late renewal or
reinstatement of the license
as follows
by completing one of the following
:
Section
3
.
OT
3.05 (1) (title)
is
created to read:
OT 3.05 (1
)
Late
renewal before 5 years.
Section
4
.
OT 3.05 (2)
is amended to read:
OT 3.05
(
2
)
Late
renewal after 5 years
.
If the licensee applies for renewal of the license more than 5 years after its expiration, the board shall make such inquiry as it finds necessary to determine whether the applicant is competent to practice under the license in this state, and shall impose any reasonable conditions on
reinstatement
the renewal
of the license, including oral examination, as the board deems appropriate. All applicants under this section shall be required to pass the open book examination on statutes and rules, which is the same examination given to initial applicants.
This section does not apply to licensees who have unmet disciplinary requirements or whose licenses have been surrendered or revoked.
Section
5
.
OT 3.05 (3) is created to read:
OT 3.05 (3
)
Reinstatement
.
A licensee who has unmet disciplinary requirements and failed to renew within 5 years of the renewal date or whose license has been surrendered or revoked, may apply to have the license reinstated in accordance with
all of the following:
(a) Evidence of the completion of the requirements under
sub. (2)
.
(b) Evidence of completion of disciplinary requirements, if applicable.
(c) Evidence of rehabilitation or change in circumstances warranting reinstatement of the
license
.
Section
6
.
OT 4.02 (2)
(f) is amended to read:
OT 4.02 (2)
(f
)
Application
of physical agent modalities
based on a physician order as an adjunct to or in preparation for engagement in treatment
. Application is performed by an experienced therapist with demonstrated and documented evidence of theoretical background, technical skill and competence
Section
7
.
OT 4.03 (2) (title) is amended to read:
OT 4.03 (2
)
Referrals
and Orders
.
Section
8
.
OT 4.03 (2) (a) is repealed.
Section
9
.
OT 4.03 (2) (b) is
amended to read:
OT 4.03 (2)
(b)
Referrals may be accepted from advanced practice nurses, chiropractors,
dentist
s,
optometrists, physical therapists,
physicians,
physician assistants,
podiatrists,
psychologists, or other health care professionals.
Section
10
.
OT 4.03 (2)
(c) and (d) are
repealed.
Section
11
.
OT 4.03 (2) (e) is amended to read:
OT 4.03 (2)
(e)
Orders or referrals
Referrals
from another health care professional are not required for evaluation or intervention if an occupational therapist or occupational therapy assistant provides services in an educational environment, including the child's home, for children and youth with disabilities pursuant to rules promulgated by the federal individuals with disabilities education act, the department of public instruction and the department of health services, or provides services in an educational environment for children and youth with disabilities pursuant to the code of federal regulations.
Section
12
.
OT 4.03 (3) (a) is amended to read:
OT 4.03 (3)
(a
)
The
occupational therapist directs the evaluation process upon receiving
an order or
a
referral from another health care professional. An occupational therapist alone or in collaboration with the occupational therapy assistant shall prepare an occupational therapy evaluation for each individual ordered for occupational therapy services. The occupational therapist interprets the information gathered in the evaluation process.
Section
13
.
OT 4.03 (3) (f) is amended to read:
OT 4.03 (3)
(f
)
Evaluation
results shall be communicated to the
ordering
referring health care
professional and to the appropriate persons in the facility and community
Section
14
.
EFFECTIVE DATE.
The rules adopted in this order shall take effect on the first day of the month following publication in the
Wisconsin
administrative register, pursuant to s.
227.22 (2) (intro.)
, Stats.
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(END OF TEXT OF RULE)
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