Title of Regulation: 18VAC85-80. Regulations Governing the Practice of Occupational Therapy (amending 18VAC85-80-10, 18VAC85-80-26, 18VAC85-80-70, 18VAC85-80-71).

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

Public Hearing Information:

June 22, 2023 - 8:35 a.m. - Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, Virginia 23233-1463

Public Comment Deadline: August 4, 2023.

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

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Medicine the authority to promulgate regulations to administer the regulatory system. Section 54.1-2956.7:1 of the Code of Virginia creates the Occupational Therapy Interjurisdictional Compact.

Purpose: The proposed regulation, which is almost identical to the emergency regulation, is necessary to comply with Chapter 242 of the 2021 Acts of Assembly, Special Session I, that requires Virginia to participate in the Occupational Therapy Interjurisdictional Compact. Additionally, the amendment to define "practitioner" to include occupational therapists and occupational therapy assistants practicing in Virginia pursuant to a compact privilege is essential to ensure that those who are clinically practicing on patients or clients in Virginia are accountable to the same standards of care as any occupational therapist or occupational therapy assistant holding a Virginia license. Otherwise, occupational therapy services for Virginia citizens provided by persons practicing through the Occupational Therapy Interjurisdictional Compact would potentially be harmful to public health, safety, or welfare.

Substance: Amendments to the regulation include (i) adding definitions consistent with the Occupational Therapy Interjurisdictional Compact; (ii) setting the fee for a compact privilege to practice in Virginia; and (iii) specifying that renewal of the compact privilege is based on adherence to the compact rules for continued competency.

Issues: The advantage to the public is guarantee that occupational therapists and occupational therapy assistants practicing Virginia through the Occupational Therapy Interjurisdictional Compact will be held to the same standards of conduct as Virginia licensees. There are no disadvantages to the public. There are no specific advantages or disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. As the result of a 2021 legislative mandate, the Board of Medicine (Board) proposes to make permanent an emergency regulation that facilitates the state's membership in the Occupational Therapy Interjurisdictional Licensure Compact (Compact). The emergency regulation is scheduled to expire on June 30, 2023.²

Background. Chapter 242 of the 2021 Acts of Assembly, Special Session I,³ entered the Commonwealth into the Compact. Under the Compact, Occupational Therapists (OTs) and Occupational Therapy Assistants (OTAs) who are licensed in good standing in a Compact member state may practice in other Compact member states via a "compact privilege." The Occupational Therapy Compact Commission (Commission), which is comprised of representatives from the member states, creates rules concerning the Compact that affect member states. Chapter 242 defines "rule" as a regulation promulgated by the Commission that has the force of law.

The Commission held their inaugural meeting on August 3 and 4 and has yet to create any rules. The Department of Health Professions (DHP) states that the Compact does not anticipate that member states will be able to issue compact privileges until late 2023 at the earliest.

The Board's proposed amendments to the regulation are as follows: (i) Adding definitions for compact,⁴ compact privilege⁵, and practitioner; (ii) Specifying that "The fee for issuance of a compact privilege or the biennial renewal of such privilege shall be $75 for an occupational therapist and $40 for an occupational therapy assistant"; (iii) Stating that: "In order to renew a compact privilege to practice in Virginia, the holder shall comply with the rules adopted by the Occupational Therapy Compact Commission in effect at the time of the renewal"; and (iv) Changing "practitioner" to "licensee" in the section on continued competency requirements.

"Practitioner" is defined as "an occupational therapist or occupational therapy assistant licensed in Virginia or an occupational therapist or occupational therapy assistant practicing in Virginia with a compact privilege." The Board is proposing to change "practitioner" to "licensee" in the continued competency requirements section since Virginia's continued competency requirements would not apply to OTs and OTAs practicing in Virginia with a compact privilege. Those individuals would need to follow the continued competency requirements in the state where they are licensed.

The following states are current participants in the Compact: Alabama, Arizona, Colorado, Delaware, Georgia, Iowa, Kentucky, Maine, Maryland, Missouri, Nebraska, New Hampshire, North Carolina, Ohio, South Carolina, Utah, Tennessee, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

Estimated Benefits and Costs. Currently, OTs and OTAs must be licensed in each state in which they practice. As stated above, the Compact rules have yet to be issued. Chapter 242 does state the following: "The purpose of this Compact is to facilitate interstate practice of occupational therapy with the goal of improving public access to occupational therapy services." So presumably the rules will make it easier or less expensive to gain compact privilege in a non-home state than to gain or renew licensure in that non-home state. The Board's proposed fees for compact privileges are lower than the fees charged by the Board for initial licensure and license renewal (see table).

To the extent that the rules and fees are set so that it is substantially easier or less expensive to gain compact privilege in Virginia than licensure, more OTs and OTAs who are licensed in other states may begin to offer their services in the Commonwealth. This would be beneficial for Virginia consumers of occupational therapy services and employers looking to hire OTs or OTAs. Some Virginia-based OTs and OTAs and their employers may also benefit if it is easier or less expensive to gain compact privilege than licensure in other Compact states, so that clients can be served in those other states. This would be particularly true for those that are near the border with one of the Commonwealth's neighboring states, all of which are Compact states.⁶

More OTs and OTAs offering their services in Virginia would create greater competition for jobs. According to survey data from two Virginia Healthcare Workforce Data Center reports (workforce reports) published in March 2021, 9.0% of OTs and 12% of OTAs in the Commonwealth experienced involuntary unemployment in the previous year.⁷ Thus, some OTs and OTAs may be worse off if membership in the Compact increases the supply of occupational therapy services in Virginia without a commensurate increase in demand.

According to DHP, there are 1,050 OTs and 221 OTAs who are licensed in Virginia but who have out-of-state addresses. The agency does not have data on how many of these individuals are licensed in other states. For those that are licensed in other Compact states, obtaining the compact privilege in the Commonwealth rather than renewing their Virginia license would save the OTs $60 and the OTAs $30. If all 1,050 OTs and 221 OTAs were licensed in other Compact states, and chose to obtain the compact privilege rather than renew their Virginia license, revenue for the Board would decrease by $69,630. The Board's expenses may decrease as well though, since continued competency requirements would no longer need to be checked for these individuals. Additionally, as of July 31 the Board had a cash balance of over $10 million; consequently, this potential loss of revenue could be absorbed in the current budget for the foreseeable future.

Businesses and Other Entities Affected. There are a total of 4,919 OTs and 1,797 OTAs licensed in Virginia.⁷ According to survey data from the workforce report on OTs, the primary type of employers of OTs in the Commonwealth are distributed as follows:

According to survey data from the workforce report on OTAs, the primary type of employers of OTAs in the Commonwealth are distributed as follows:

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁹ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Participation in the Compact enables OTs and OTAs licensed in Virginia to practice in other states. It also may increase the supply of OTs and OTAs who can practice in the Commonwealth, which brings more competition for jobs within Virginia. The increased competition resulting from the Compact may make it more difficult for some OTs and OTAs to find employment or preferred employment within the state. As stated, the workforce surveys found that 9.0% of OTs and 12% of OTAs experienced involuntary unemployment in the previous year. So some OTs and OTAs may be worse off. Participation in the Compact results from the legislation, and not the proposed amendments to the regulation. Thus, no adverse impact is indicated for the proposed amendments to the regulation.

Small Businesses¹⁰ Affected.¹¹ Types and Estimated Number of Small Businesses Affected. The Board regulates individual practitioners, but not their employers. Thus, data on the number of small businesses affected is not available. The types of businesses that are potentially affected and may qualify as small are described in the tables.

Costs and Other Effects. Some small providers of occupational therapy services may be worse off through increased competition from firms based out of state. Others may be better off through increased access to out-of-state clients.

Alternative Method that Minimizes Adverse Impact. As the Compact is required by statute, there is no alternative method that reduces adverse impact.

Localities¹² Affected.¹³ Virginia's decision to join the Compact may particularly affect localities bordering or otherwise near neighboring states, all of which are Compact members. Costs are not introduced for local governments.

Projected Impact on Employment. Joining the Compact may increase the supply of OTs and OTAs that could practice in the Commonwealth. This may lead to more OTs and OTAs working in Virginia.

Effects on the Use and Value of Private Property. To the extent that the supply of OTs and OTAs increases in the Commonwealth, hiring costs for employers may decrease. This would commensurately increase the value of the employing firms. The proposed amendments do not affect real estate development costs.

¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9367

³See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0242

⁴"Compact" is defined as "the Occupational Therapy Interjurisdictional Licensure Compact."

⁵"Compact privilege" is defined as "the definition of the term in § 54.1-2956.7:1 of the Code of Virginia." There it is defined as "the authorization, which is equivalent to a license, granted by a remote state to allow a licensee from another member state to practice as an occupational therapist or practice as an occupational therapy assistant in the remote state under its laws and rules. The practice of occupational therapy occurs in the member state where the patient/client is located at the time of the patient/client encounter."

Agency's Response to the Economic Impact Analysis: The Board of Medicine concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 242 of the 2021 Acts of the Assembly, Special Session I, which mandates membership of the Commonwealth of Virginia in the Occupational Therapy Interjurisdictional Compact, the proposed amendments (i) add definitions consistent with the compact; (ii) set the fee for a compact privilege to practice in Virginia; and (iii) specify that renewal of the privilege is based on adherence to compact rules for continued competency.

18VAC85-80-10. Definitions.

A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2900 of the Code of Virginia:

"Board"

"Occupational therapy assistant"

"Practice of occupational therapy"

B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"ACOTE" means the Accreditation Council for Occupational Therapy Education.

"Active practice" means a minimum of 160 hours of professional practice as an occupational therapist or an occupational therapy assistant within the 24-month period immediately preceding renewal or application for licensure, if previously licensed or certified in another jurisdiction. The active practice of occupational therapy may include supervisory, administrative, educational, or consultative activities or responsibilities for the delivery of such services.

"Advisory board" means the Advisory Board of Occupational Therapy.

"Compact" means the Occupational Therapy Interjurisdictional Licensure Compact.

"Compact privilege" means the same as the definition of the term in § 54.1-2956.7:1 of the Code of Virginia.

"Contact hour" means 60 minutes of time spent in continued learning activity.

"NBCOT" means the National Board for Certification in Occupational Therapy, under which the national examination for certification is developed and implemented.

"National examination" means the examination prescribed by NBCOT for certification as an occupational therapist or an occupational therapy assistant and approved for licensure in Virginia.

"Occupational therapy personnel" means appropriately trained individuals who provide occupational therapy services under the supervision of a licensed occupational therapist.

"Practitioner" means an occupational therapist or occupational therapy assistant licensed in Virginia or an occupational therapist or occupational therapy assistant practicing in Virginia with a compact privilege.

18VAC85-80-26. Fees.

A. The following fees have been established by the board:

1. The initial fee for the occupational therapist license shall be $130; for the occupational therapy assistant, it shall be $70.

2. The fee for reinstatement of the occupational therapist license that has been lapsed for two years or more shall be $180; for the occupational therapy assistant, it shall be $90.

3. The fee for active license renewal for an occupational therapist shall be $135; for an occupational therapy assistant, it shall be $70. The fees for inactive license renewal shall be $70 for an occupational therapist and $35 for an occupational therapy assistant. Renewals shall be due in the birth month of the licensee in each even-numbered year. For 2020, the fee for renewal of an active license as an occupational therapist shall be $108; for an occupational therapy assistant, it shall be $54. For renewal of an inactive license in 2020, the fees shall be $54 for an occupational therapist and $28 for an occupational therapy assistant.

4. The additional fee for processing a late renewal application within one renewal cycle shall be $50 for an occupational therapist and $30 for an occupational therapy assistant.

5. The fee for a letter of good standing or verification to another jurisdiction for a license shall be $10.

6. The fee for reinstatement of licensure pursuant to § 54.1-2408.2 of the Code of Virginia shall be $2,000.

7. The handling fee for a returned check or a dishonored credit card or debit card shall be $50.

8. The fee for a duplicate license shall be $5.00, and the fee for a duplicate wall certificate shall be $15.

9. The fee for an application or for the biennial renewal of a restricted volunteer license shall be $35, due in the licensee's birth month. An additional fee for late renewal of licensure shall be $15 for each renewal cycle.

10. The fee for issuance of a compact privilege or the biennial renewal of such privilege shall be $75 for an occupational therapist and $40 for an occupational therapy assistant.

B. Unless otherwise provided, fees established by the board shall not be refundable.

18VAC85-80-70. Biennial renewal of licensure.

A. An occupational therapist or an occupational therapy assistant shall renew his license biennially during his birth month in each even-numbered year by:

1. Paying to the board the renewal fee prescribed in 18VAC85-80-26;

2. Indicating that he has been engaged in the active practice of occupational therapy as defined in 18VAC85-80-10; and

3. Attesting to completion of continued competency requirements as prescribed in 18VAC85-80-71.

B. An occupational therapist or an occupational therapy assistant whose license has not been renewed by the first day of the month following the month in which renewal is required shall pay an additional fee as prescribed in 18VAC85-80-26.

C. In order to renew a compact privilege to practice in Virginia, the holder shall comply with the rules adopted by the Occupational Therapy Compact Commission in effect at the time of the renewal.

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

A. In order to renew an active license biennially, a practitioner licensee shall complete 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 licensee shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The practitioner licensee shall retain in his the licensee's records 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 its active licensees to determine compliance. The practitioners licensees selected for the audit shall provide 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.