THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, BROWNE, FERLO AND WAUGH, MAY 23, 2012

REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, MAY 23, 2012  

AN ACT

Amending the act of June 15, 1982 (P.L.502, No.140), entitled

"An act regulating the practice and licensure of occupational

therapy, creating the State Board of Occupational Therapy

Education and Licensure with certain powers and duties and

prescribing penalties," further providing for definitions, 

for creation of board, for requirements for licensure, for

practice and referral, for renewal of license and for

refusal, suspension or revocation of license; and providing

for impaired professionals program.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The definition of "occupational therapy" in

section 3 of the act of June 15, 1982 (P.L.502, No.140), known

as the Occupational Therapy Practice Act, is amended to read:

Section 3.  Definitions.

The following words and phrases when used in this act shall

have, unless the context clearly indicates otherwise, the

meanings given to them in this section:

* * *

"Occupational therapy."  The evaluation of learning and

performance skills and the analysis, selection and adaptation of

activities for an individual whose abilities to cope with the

activities of daily living, to perform tasks normally performed

at a given stage of development and to perform essential

vocational tasks which are threatened or impaired by that

person's developmental deficiencies, aging process,

environmental deprivation or physical, psychological, injury or

illness, through specific techniques which include:

(1)  Planning and implementing activity programs to

improve sensory and motor functioning at the level of

performance normal for the individual's stage of development.

(2)  Teaching skills, behaviors and attitudes crucial to

the individual's independent, productive and satisfying

social functioning.

(3)  The design, fabrication and application of [splints] 

orthotics to enhance performance in occupations, not to

include prosthetic [or orthotic] devices, and the adaptation

of equipment necessary to assist patients in adjusting to a

potential or actual impairment and instructing in the use of

such devices and equipment.

(4)  Analyzing, selecting and adapting activities to

maintain the individual's optimal performance of tasks to

prevent disability.

* * *

Section 2.  Section 4 of the act is amended by adding a

subsection to read:

Section 4.  Creation of board, appointment and term of members,

officers.

* * *

(f)  A member who fails to attend three meetings in 18 months

shall forfeit the member's seat unless the commissioner, upon

written request from the member, finds that the member should be

excused from a meeting because of illness or death of a family

member.

Section 3.  Section 8 of the act is amended to read:

Section 8.  Requirements for licensure.

An applicant applying for a license as an occupational

therapist or as an occupational therapy assistant shall submit a

written application on forms provided by the board evidencing

and showing to the satisfaction of the board that he or she:

(1)  Is of good moral character.

(2)  Has completed the academic requirements of an

approved educational program in occupational therapy

recognized by the board with the advice and consultation of

recognized national accrediting agencies and professional

organizations including the American Occupational Therapy

Association as follows:

(i)  For an occupational therapist, a four-year

program, or its equivalent as established by the board.

(ii)  For an occupational therapy assistant, a two-

year program, or its equivalent as established by the

board.

(3)  Has successfully completed a period of supervised

fieldwork experience at a recognized educational institute or

a training program approved by the educational institution

where the academic requirements met were as follows:

(i)  For an occupational therapist a minimum of six

months of supervised fieldwork experience.

(ii)  For an occupational therapy assistant, a

minimum of two months of supervised fieldwork.

(4)  Has passed an examination approved by the board.

(5)  Has professional liability insurance in accordance

with the following provisions:

(i)  Effective by the next biennial period for

license renewal following the effective date of this

paragraph, an occupational therapist shall obtain and

maintain professional liability insurance as specified in

subparagraphs (ii) and (iii). The occupational therapist

shall notify the board within 30 days of the occupational

therapist's failure to be covered by the required

insurance. Failure to notify the board shall be

actionable under section 16. Further, the license of the

occupational therapist shall automatically be suspended

upon failure to be covered by the required insurance and

shall not be restored until submission to the board of

satisfactory evidence that the occupational therapist has

the required professional liability insurance coverage.

(ii)  The board shall accept from an occupational

therapist as satisfactory evidence of insurance coverage

under this paragraph any or all of the following: self-

insurance, personally purchased professional liability

insurance, professional liability insurance coverage

provided by the occupational therapist's employer or any

similar type of coverage acceptable to the board.

(iii)  The level of professional liability insurance

coverage shall be in the minimum amount of $1,000,000 per

occurrence or claims made. Failure to maintain the

required insurance coverage shall subject the

occupational therapist to disciplinary proceedings.

(iv)  The applicant for an occupational therapist's

license shall provide proof that the applicant has

obtained professional liability insurance in accordance

with subparagraph (iii). It is sufficient if:

(A)  the applicant files with the application a

copy of a letter from the applicant's professional

liability insurance carrier indicating that the

applicant will be covered against professional

liability in the required amounts effective upon the

issuance of the applicant's license to practice

occupational therapy in this Commonwealth; or

(B)  the applicant certifies that the applicant

will be covered by an employer against professional

liability in required amounts upon the commencement

of employment as an occupational therapist, provided

that the applicant does not practice occupational

therapy prior to the commencement of such employment.

(v)  Within 30 days after the issuance of a license

or within 30 days after the commencement of employment as

described in subparagraph (iv), the occupational

therapist shall submit to the board the certificate of

insurance or a copy of the policy declaration page.

(vi)  The board shall adopt, by regulation, standards

and procedures established by the Insurance Commissioner

for self-insurance. In the absence of these standards and

procedures, the board, after consultation with the

Insurance Commissioner, shall establish standards and

procedures by regulation for self-insurance under this

paragraph.

Section 4.  Section 14 of the act, amended May 18, 2004

(P.L.220, No.30), is amended to read:

Section 14.  Practice and referral.

(a)  An occupational therapist may enter a case for the

purposes of providing indirect services, consultation,

evaluating an individual as to the need for services and other

occupational therapy services for conditions such as perceptual,

cognitive, sensory integration and similar conditions.

Implementation of direct occupational therapy to an individual

for a specific medical condition shall be based on a referral

from a licensed physician, licensed optometrist [or a], licensed

podiatrist[.], licensed certified registered nurse practitioner

or licensed physician assistant.

(b)  This act shall not be construed as authorization for an

occupational therapist or occupational therapy assistant to

practice a branch of the healing arts except as described in

this act.

Section 5.  Sections 15(a) and 16(c) of the act are amended

to read:

Section 15.  Renewal of license; effect of license suspension or

revocation.

(a)  A license issued under this act shall be renewed

biennially upon payment of the renewal fee prescribed in section

17. It shall expire unless renewed in the manner prescribed by

the regulations of the board. The board may provide for the late

renewal of a license upon the payment of a late fee. A late

renewal of a license shall not be granted more than four years

after its expiration. A license shall be renewed after the four-

year period only by complying with section 11. The board may

establish additional requirements for license renewal designed

to assure continued competency of the applying occupational

therapist or occupational therapy assistant.

* * *

Section 16.  Refusal, suspension or revocation of license;

refusal to renew; penalties; injunctive relief.

* * *

(c)  (1)  A person who violates a provision of this act is

guilty of a misdemeanor and, upon conviction thereof, shall

be punished by a fine of not less than $100 nor more than

$500 or by imprisonment for not less than 30 days nor more

than 90 days, or by both such fine and imprisonment and for

each additional offense that person shall be subject to

either a fine of not less than $500 or imprisonment of not

less than six months, at the discretion of the court.

(2)  In addition to any other civil remedy or criminal

penalty provided for in this act, the board may levy a civil

penalty on a person who violates a provision of this act in

accordance with the act of July 2, 1993 (P.L.345, No.48),

entitled "An act empowering the General Counsel or his

designee to issue subpoenas for certain licensing board

activities; providing for hearing examiners in the Bureau of

Professional and Occupational Affairs; providing additional

powers to the Commissioner of Professional and Occupational

Affairs; and further providing for civil penalties and

license suspension."

(3)  Fines and civil penalties collected under the

provisions of this act shall be paid into the State Treasury

for the use of the Commonwealth.

* * *

Section 6.  The act is amended by adding a section to read:

Section 16.1.  Impaired professionals program.

(a)  The board, with the approval of the Commissioner of

Professional and Occupational Affairs, shall appoint and fix the

compensation of a professional consultant with education and

experience in the identification, treatment and rehabilitation

of persons with physical or mental impairments. Such consultant

shall be accountable to the board and shall act as a liaison

between the board and treatment programs, such as alcohol and

drug treatment programs licensed by the Department of Health,

psychological counseling and impaired professionals support

groups approved by the board and which provide services to

licensees under this act.

(b)  (1)  The board may defer and ultimately dismiss any of

the types of corrective action set forth in this act for an

impaired professional so long as the licensee is progressing

satisfactorily in an approved treatment program, provided

that the provisions of this subsection shall not apply to a

licensee who has been convicted of, pleaded guilty to or

entered a plea of nolo contendere to a felonious act

prohibited by the act of April 14, 1972 (P.L.233, No.64),

known as "The Controlled Substance, Drug, Device and Cosmetic

Act," or the conviction of a felony relating to a controlled

substance in a court of law of the United States or any other

state, territory or country.

(2)  (i)  An approved program provider shall, upon

request, disclose to the consultant such information in

its possession regarding an impaired professional in

treatment which the program provider is not prohibited

from disclosing by an act of this Commonwealth, another

state or the United States.

(ii)  The requirement of disclosure by an approved

program provider under subparagraph (i) shall apply in

the case of an impaired professional who enters an

agreement in accordance with this section, an impaired

professional who is the subject of a board investigation

or disciplinary proceeding and an impaired professional

who voluntarily enters a treatment program other than

under the provisions of this section but who fails to

complete the program successfully or to adhere to an

after-care plan developed by the program provider.

(c)  (1)  An impaired professional who enrolls in an approved

treatment program shall enter into an agreement with the

board under which the professional's license shall be

suspended or revoked but enforcement of that suspension or

revocation may be stayed for the length of time the

professional remains in the program and makes satisfactory

progress, complies with the terms of the agreement and

adheres to any limitations on his practice imposed by the

board to protect the public.

(2)  Failure to enter into such an agreement shall

disqualify the professional from the impaired professional

program and shall activate an immediate investigation and

disciplinary proceeding by the board.

(d)  If, in the opinion of such consultant after consultation

with the provider, an impaired professional who is enrolled in

an approved treatment program has not progressed satisfactorily,

the consultant shall disclose to the board all information in

his or her possession regarding such professional, and the board

shall institute proceedings to determine if the stay of the

enforcement of the suspension or revocation of the impaired

professional's license shall be vacated.

(e)  An approved program provider who makes a disclosure

pursuant to this section shall not be subject to civil liability

for such disclosure or its consequences.

(f)  (1)  Any hospital or health care facility, peer or

colleague who has substantial evidence that a professional

has an active addictive disease for which the professional is

not receiving treatment, is diverting a controlled substance

or is mentally or physically incompetent to carry out the

duties of his license shall make or cause to be made a report

to the board: Provided, That any person or facility who acts

in a treatment capacity to impaired professionals in an

approved treatment program is exempt from the mandatory

reporting requirement of this subsection.

(2)  Any person or facility who reports pursuant to this

section in good faith and without malice shall be immune from

any civil or criminal liability arising from such report.

Failure to provide such report within a reasonable time from

receipt of knowledge of impairment shall subject the person

or facility to a fine not to exceed $1,000.

(3)  The board shall levy this penalty only after

affording the accused party the opportunity for a hearing, as

provided in 2 Pa.C.S. (relating to administrative law and

procedure).

Section 7.  This act shall take effect in 60 days.