Title of Regulation: 18VAC85-80. Regulations Governing the Licensure of Occupational Therapists (amending 18VAC85-80-71).

Statutory Authority: §§ 54.1-2400 and 54.1-2912.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 29, 2017.

Effective Date: December 14, 2017.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4558, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia provides the Board of Medicine the authority to promulgate regulations that are reasonable and necessary to administer effectively the regulatory system. The specific mandate for the Board of Medicine to promulgate regulations requiring continuing education is found in § 54.1-2912.1 of the Code of Virginia.

Purpose: The purpose of the amendments is to (i) eliminate the requirement that the continued competency activity and assessment form be completed and retained with supporting documentation of continuing education courses or activities for renewal of an active license and (ii) change the title of the chapter for consistency with licensure and regulation of both occupational therapists and occupational therapy assistants. Since the content of the requirement for continuing education is not being amended, there is assurance that occupational therapists will continue to be minimally competent to practice with skill and competency and therefore to protect public health and safety.

Rationale for Using Fast-Track Rulemaking Process: The changes are unanimously approved by the Advisory Board on Occupational Therapy. These changes were included in an action that was previously adopted, which included an amendment for recognition of National Board for Certification in Occupational Therapy as evidence of completion of continuing education. That proposed action has been withdrawn because there was opposition to that amendment, and there was legislation passed in the 2017 Session of the General Assembly to prohibit that amendment. The remaining amendments in the previous action, included in this fast-track rulemaking action, had no opposition.

Substance: The board is amending 18VAC85-80-71 on continued competency requirements to eliminate the requirement for completion of the Continued Competency Activity and Assessment Form and the requirement that the board audit two percent of licensees. An amendment will also change the title of the chapter from Regulations Governing the Licensure of Occupational Therapists to Regulations Governing the Practice of Occupational Therapy.

Issues: There are no primary advantages or disadvantages to the public. There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Medicine (Board) proposes to 1) eliminate the requirement for completion of the Continued Competency Activity and Assessment Form, 2) no longer specify the frequency of random audits, and 3) change the title of the chapter from Regulations Governing the Licensure of Occupational Therapists to Regulations Governing the Practice of Occupational Therapy.

Result of Analysis. The benefits likely exceed the costs for the proposed changes.

Estimated Economic Impact. Currently license renewal is completed electronically with an attestation that the licensee has met the continued competency requirements. The proposal to clarify that it is not required for a licensee to complete the Continued Competency Activity and Assessment Form in order to renew biennially will have no impact on requirements. Nonetheless it would be beneficial in that it may reduce potential confusion and associated time wasted in determining administrative requirements.

The current regulation specifies that the Board shall "periodically conduct a random audit of at least one to two percent of its active licensees to determine compliance." The Board proposes to amend the language to "periodically conduct a random audit of its active licensees to determine compliance." The amended language would allow the number of audits to be consistent with staffing levels and other factors as they arise.

Amending the title of the regulation will not have a large impact. The chapter includes regulations for licensure of occupational therapy assistants as well as for occupational therapists. It also regulates the individual and supervisory responsibilities of practitioners and includes the standards of practice for the profession. Thus the proposed title is a better indicator of the regulation's contents.

Businesses and Entities Affected. The proposed amendments potentially affect the 3,803 persons with a current license as an occupational therapist and 1,384 with a current license as an occupational therapy assistant. Only 2% work in private practices, either in a group or solo practice.¹ All such private practices would likely be small businesses.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹ Data source: Department of Health Professions

Agency Response to Economic Impact Analysis: The Board of Medicine concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments eliminate the requirement for completion of the Continued Competency Activity and Assessment Form by practitioners, remove the requirement that the board audit at least one to two percent of its licensees for compliance with continued competency requirements, and modify the name of the chapter.

CHAPTER 80
REGULATIONS GOVERNING THE LICENSURE PRACTICE OF OCCUPATIONAL THERAPISTS THERAPY

18VAC85-80-71. Continued competency requirements for renewal of an active license.

A. In order to renew an active license biennially, a practitioner shall complete the Continued Competency Activity and Assessment Form that is provided by the board and that shall indicate completion of at least 20 contact hours of continuing learning activities as follows:

1. A minimum of 10 of the 20 hours shall be in Type 1 activities, which shall consist of an organized program of study, classroom experience, or similar educational experience that is related to a licensee's current or anticipated roles and responsibilities in occupational therapy and approved or provided by one of the following organizations or any of its components:

a. Virginia Occupational Therapy Association;

b. American Occupational Therapy Association;

c. National Board for Certification in Occupational Therapy;

d. Local, state, or federal government agency;

e. Regionally accredited college or university;

f. Health care organization accredited by a national accrediting organization granted authority by the Centers for Medicare and Medicaid Services to assure compliance with Medicare conditions of participation; or

g. An American Medical Association Category 1 Continuing Medical Education program.

2. No more than 10 of the 20 hours may be Type 2 activities, which may include consultation with another therapist, independent reading or research, preparation for a presentation, or other such experiences that promote continued learning. Up to two of the Type 2 continuing education hours may be satisfied through delivery of occupational therapy services, without compensation, to low-income individuals receiving services through a local health department or a free clinic organized in whole or primarily for the delivery of health services. One hour of continuing education may be credited for three hours of providing such volunteer services as documented by the health department or free clinic.

B. A practitioner shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner shall retain in his records the completed form with all supporting documentation for a period of six years following the renewal of an active license.

D. The board shall periodically conduct a representative random audit of at least one to two percent of its active licensees to determine compliance. The practitioners selected for the audit shall provide the completed Continued Competency Activity and Assessment Form and all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the licensee to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing competency requirements for up to one year for good cause shown upon a written request from the licensee prior to the renewal date.

G. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.