TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Fast-Track Regulation

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

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 21, 2025.

Effective Date: June 5, 2025.

Agency Contact: Erin Barrett, Director of Legislative and Regulatory Affairs, Department of Health Professions, Perimeter Center, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 750-3912, FAX (804) 915-0382, or email erin.barrett@dhp.virginia.gov.

Basis: Regulations of the Board of Medicine are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which authorizes the health regulatory boards to promulgate regulations that are reasonable and necessary to effectively administer the regulatory system.

Purpose: Reduction of requirements for renewal may encourage new occupational therapists (OTs) and occupational therapist assistants (OTAs) to obtain licensure in Virginia and may help existing occupational therapists and occupational therapist assistants in Virginia maintain licensure, thereby increasing the number of practicing occupational therapists and occupational therapist assistants in the Commonwealth. Ensuring an adequate number of occupational therapists and occupational therapist assistants available to treat patients in the Commonwealth is essential to protect the public health, safety, and welfare.

Rationale for Using Fast-Track Rulemaking Process: This change is considered noncontroversial and therefore appropriate for the fast-track rulemaking process because it reduces requirements on occupational therapists and occupational therapist assistants to maintain an active license to practice in the Commonwealth.

Substance: This action removes the active practice requirement in the section governing biennial renewal of licenses.

Issues: The primary advantages to the public are swift and appropriate renewal of OT and OTA licenses to allow those practitioners to provide health care services to the public. There are no disadvantages to the public. There are no primary advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Medicine (board) proposes to remove the requirement that occupational therapists (OTs) and occupational therapy assistants (OTAs) have engaged in the active practice of occupational therapy in order to renew their license.

Background. The current regulation requires the following for biennial license renewal for both OTs and OTAs: (i) fee payment ($135 for OTs; $70 for OTAs), (ii) a minimum of 160 hours of active professional practice as an OT or an OTA within the 24-month period immediately preceding renewal, and (iii) 20 contact hours of continuing learning activities. According to the Department of Health Professions (DHP), following time out of active practice, such as for parental leave or family leave, many OTs and OTAs have faced difficulty renewing their license due to the active practice requirement. All or most other professions licensed by the board or the agency do not have this requirement and the board does not believe it is necessary. Thus, the board proposes to eliminate the active practice requirement.

Estimated Benefits and Costs: Currently, OTs and OTAs who do not have the 160 hours of active practice required for license renewal would have to have their license reinstated.² The reinstatement fee for a lapsed license is $180 for an OT and $90 for an OTA. An OT or OTA who has allowed a license to lapse for fewer than six years, and who has not engaged in active practice, must serve a board-approved practice of 160 hours to be completed in two consecutive months under the supervision of a licensed OT. An OT or OTA who has allowed a license to lapse for six years or more, and who has not engaged in active practice, must serve a board-approved practice of 320 hours to be completed in four consecutive months under the supervision of a licensed OT. Additionally, the applicant for reinstatement must meet the continuing competency requirements for the number of years the license has been lapsed, not to exceed four years. The requirement to work under supervision may in particular discourage some competent OTs and OTAs from returning to active practice after time away for medical leave, caring for family, childbirth, or other circumstances. The Board of Medicine, like other DHP boards, has determined that active practice is not necessary to assure competency of the practitioners. (The practitioners would still need to complete the contact hours of continuing learning activities.) The OTs and OTAs returning to practice would benefit by not having to work under supervision and by paying the lower renewal fee ($135 for an OT and $70 for an OTA) versus the higher reinstatement fee ($180 for an OT and $90 for an OTA). To the extent that some competent OTs and OTAs do not return to practice due to the current active practice requirement, removing the requirement would be beneficial for the public by increasing the availability of competent health care professionals.

Businesses and Other Entities Affected. As of June 30, 2024, there were 5,349 OTs and 1,811 OTAs licensed in the Commonwealth. DHP does not possess a count of OTs and OTAs negatively impacted by the active practice renewal requirement. According to survey data from the most recently published profession relevant Virginia Healthcare Workforce Data Center reports, the primary type of employers of OTs and 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.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ The proposed amendment neither increases net costs nor reduces net benefit. No adverse impact is indicated.

Small Businesses⁷ Affected.⁸ The proposed amendment does not adversely affect small businesses.

Localities⁹ Affected.¹⁰ Localities that have a shortage of available OTs or OTAs may be particularly affected by the potential increase in available services. The proposed amendment does not increase costs for local governments.

Projected Impact on Employment. By removing a barrier from OTs and OTAs returning to active practice, the proposal may result in a small increase in employed OTs and OTAs.

Effects on the Use and Value of Private Property. As the proposed amendment may moderately increase the supply of licensed OTs and OTAs, the cost of hiring and employing OTs and OTAs may be moderately reduced. Consequently, the value of firms that employ and hire OTs or OTAs may moderately increase. The proposed amendment does not affect real estate development costs.

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¹ Section 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.

² The definition of active practice in the regulation states in part that the active practice of occupational therapy may include supervisory, administrative, educational, or consultative activities or responsibilities for the delivery of such services. If the OT or OTA was close to fulfilling the 160 hours. He or she could potentially get to the 160 hours through educational activities. Then he or she would just pay the late fee ($50 for an OT and $30 for an OTA) rather than reinstatement.

³ See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/medicine/0119OT2022.pdf.

⁴ See https://www.dhp.virginia.gov/media/dhpweb/docs/hwdc/medicine/0131OTA2022.pdf.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, 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."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments eliminate the requirement for active practice for renewal of a license as an occupational therapist or occupational therapist assistant.

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.

18VAC85-80-70. 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; and

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

3. 2. 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.