WSR 07-07-098

PROPOSED RULES

DEPARTMENT OF HEALTH


(Occupational Therapy Practice Board)

[ Filed March 19, 2007, 11:10 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-15-126.

Title of Rule and Other Identifying Information: WAC 246-847-010 Definitions, new section WAC 246-847-135 Standards of supervision, and WAC 246-847-130 Definition for "commonly accepted standards for the profession."

Hearing Location(s): Department of Health, Town Center 2, Room 158, 111 Israel Road S.E., Tumwater, WA 98501, on April 27, 2007, at 9:30 a.m.

Date of Intended Adoption: April 27, 2007.

Submit Written Comments to: Vicki Brown, Program Manager, Occupational Therapy Practice Board, P.O. Box 47867, Olympia, WA 98504-7867, e-mail vicki.brown@doh.wa.gov, web site http://www3.doh.wa.gov/policyreview/, fax (360) 664-9077, by April 20, 2007.

Assistance for Persons with Disabilities: Contact Vicki Brown, Program Manager, by April 20, 2007, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 246-847-010 Definitions, the proposed changes will eliminate unnecessary definitions and clarify existing definitions.

WAC 246-847-135 Standards of supervision, the proposed rule establishes standards for occupational therapy assistants and aides that are consistent with the American Occupational Therapy Association (AOTA) guidelines.

WAC 246-847-130 Definition for "commonly accepted standards for the profession," this rule is being repealed as it is being moved to the definitions section.

Reasons Supporting Proposal: The proposed changes will address concerns expressed by practitioners regarding unclear definitions and appropriate levels of supervision. The board is proposing eliminating unnecessary definitions, clarifying existing definitions and ensuring protection of the public by updating the supervision standards for occupational therapy assistants and aides to be consistent with the AOTA guidelines. The board initiated this process under an earlier CR-101 which was withdrawn because it did not clearly cover the desired scope of the rule change.

Statutory Authority for Adoption: RCW 18.59.130.

Statute Being Implemented: RCW 18.59.130.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of health, occupational therapy practice board, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Vicki Brown, Program Manager, 310 Israel Road S.E., Tumwater, WA 98501, (360) 236-4865.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Briefly Describe the Proposed Rule: The proposed rule seeks to increase the standards of occupational therapist (OT) supervision for occupational therapy assistants (OTA) and occupational therapy aides (aides) for the appropriateness of occupational therapy care in accordance with RCW 18.59.130(2) and 18.59.020.

The proposed rule amendments in WAC 246-847-010 seek to place all definitions in one location for ease in locating. These amendments consist of:

Condensed, clarified wording, grammar, structure, and formatting.
Modifying the definitions of:
o Occupations - means "activities having unique meaning and purpose in an individual's life."
o Direct supervision - means a person with a limited permit, "has daily, in person contact at the work site by an occupational therapist or occupational therapy assistant licensed in the state of Washington."
o Professional supervision is for an occupational therapy aide as described in RCW 18.59.020(5) means "in person contact at the work site at least weekly by an occupational therapist or occupational therapy assistant licensed in the state of Washington."
o Regular consultation is for an occupational therapy assistant and means "in person contact at least monthly by an occupational therapist licensed in the state of Washington with supervision available as needed by other methods."
o In association is for a person with a limited permit and means "practicing in a setting in which an occupational therapist licensed in the state of Washington is available on the premises for supervision, consultation, and assistance as needed to provide protection for the client's health, safely [safety] and welfare."
Add the definition of "consultation" which means "practitioners are expected to function as consultants within the scope of practice appropriate to their level of competence."
Delete the definition of the term, "contact hour."
Moved the definition of "working days" from WAC 246-847-110 to 246-847-010(10).
Moved the definition of "Commonly accepted standard for the profession" from WAC 246-847-130 to 246-847-010(11).
2. Is a Small Business Economic Impact Statement (SBEIS) Required for this Rule? Yes, portions of this rule require an SBEIS. Department of health (department) has reviewed this proposal and has determined that an SBEIS is required for the following portions of this rule:

o Direct supervision - means a person with a limited permit, "has daily, in person contact at the work site by an occupational therapist or occupational therapy assistant licensed in the state of Washington."
o Professional supervision is for an occupational therapy aide as described in RCW 18.59.020(5) means "in person contact at the work site at least weekly by an occupational therapist or occupational therapy assistant licensed in the state of Washington."
o Regular consultation is for an occupational therapy assistant and means "in person contact at least monthly by an occupational therapist licensed in the state of Washington with supervision available as needed by other methods."
3. Which Industries Are Affected by this Rule? In preparing this SBEIS, the department of health used the following SIC codes:

SIC Industry Code and Title # of Businesses # of Employees Average # of Employees for Smallest Businesses Average # of Employees for 10% of Largest Businesses
8049 Offices of health practitioners, nec 913 5,450 3 27
8051 Skilled nursing care facilities 281 26,407 15 144
8052 Intermediate care facilities 29 1,651 22 147
8059 Nursing and personal care, nec 110 4,081 35 160
8062 General medical & surgical hospital 146 78,593 11 2,028
8069 Specialty hospitals exc. Psychiatrist 23 4,106 15 168
8082 Home health care services 169 7,408 14 163
8093 Specialty outpatient clinics, nec 245 7,530 9 114
8099 Health and allied services, nec 93 1,484 143 64

4. What Are the Costs of Complying with this Rule for Businesses? The list below identifies the potential costs to small and large businesses as they apply to person involved.


Supervision or consultation Frequency Persons involved
Direct supervision Daily OT or OTA & Graduate with limited permit
Professional supervision Weekly OT or OTA & Aides
Regular consultation Monthly OT & OTA

The proposed rule does not define the meeting length. If the meeting is one hour, the cost to all persons involved is the time to meet. The Washington Occupational Therapy Association calculates the average hourly wage is $26.28 for an occupational therapist, $18.48 for an occupational therapy assistant, $11.13 for OT aides and $18.48 for a new graduate with a limited permit.


OT - 1 hour daily 52 X 5 = 260 X $26.28 = $6,382.80
OT Assistant - 1 hour daily 52 X 5 = 260 X $18.48 = $4,804.80
OT Aide - 1 hour daily 52 X 5 = 260 X $11.13 = $2,893.80
OT new grad - 1 hour daily 52 X 5 = 260 X $18.48 = $4,804.80

OT - 1 hour weekly

52 X $26.28 = $1,366.56
OT Assistant - 1 hour weekly 52 X $18.48 = $960.96
OT Aide - 1 hour weekly 52 X $11.13 = $578.76
OT new grad - 1 hour weekly 52 X $18.48 = $960.96

OT - monthly

12 X $26.28 = $315.36
OT Assistant - monthly 12 X $18.48 = $221.76
OT Aide - monthly 12 X $11.13 = $133.56
OT new grad - monthly 12 X $18.48 = $221.76

If these meetings are considered a part of the schedule, there would not be an added cost. If persons involved are busy all the time and can only meet away from their working hours, the total cost for the therapist and assistant would be the total costs to persons involved. For example, the annual costs of direct supervision requiring daily meeting between OT and a graduate with limited permit is $11,187.60, which is $6,382.80 plus $4,804.80, the total annual costs to OT and graduate with limited permit.

5. Does the Rule Impose a Disproportionate Impact on Small Businesses? If all involved parties (OT, OTA, Aide, new graduates) are hired by small and large business and the hiring businesses bear the costs of consultation or supervision, then there is a potential for a disproportionate impart [impact] on small businesses. As the employment table indicates, the average number of employees is much higher for large businesses compared to small ones. However, the existence of disproportionate impact also depends upon the number of involved parties (OT, OTA, Aide, new graduates) hired by small and large businesses.

6. How Are Small Businesses Involved in the Development of this Rule? The occupational therapy practice board held open public rules workshops in coordination with state associations. All active state licensees were invited by mail.

A copy of the statement may be obtained by contacting Vicki Brown, P.O. Box 47867, Olympia, WA 98504-7867, phone (360) 236-4865, fax (360) 664-9077, e-mail vicki.brown@doh.wa.gov.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Vicki Brown, P.O. Box 47867, Olympia, WA 98504-7867, phone (360) 236-4865, fax (360) 664-9077, e-mail vicki.brown@doh.wa.gov.

March 16, 2007

Vicki Brown

Program Manager

OTS-9047.6


AMENDATORY SECTION(Amending Order 300B, filed 8/24/92, effective 9/24/92)

WAC 246-847-010   Definitions.   (1) The following terms in ((RCW 18.59.020(2) shall mean)) this section apply throughout this chapter and have the following meanings:

(a) "Scientifically based use of purposeful activity" is the treatment of individuals using established methodology based upon the behavioral and biological sciences and includes the ((analysis, application and adaptation of activities for use with individuals having a variety of physical, emotional, cognitive and social disorders. Use of purposeful activity includes a process of continually modifying treatment to meet the changing needs of an individual. Purposeful activity is goal-oriented and cannot be routinely prescribed)) therapeutic use of everyday life activities (occupations) with individuals or groups for the purpose of participation in roles and situations in home, school, workplace, community, and other settings. "Occupations" are activities having unique meaning and purpose in an individual's life.

(b) "Teaching daily living skills" is the instruction in daily living skills based upon the evaluation of all the components of the individual's disability and the adaptation or treatment based on the evaluation. ((Components of a disability are physical, sensory, social, emotional and cognitive functions.))

(c) "Developing prevocational skills and play and avocational capabilities" ((is not only the development of prevocational skills and play and avocational capabilities but)) also involves the scientifically based use of purposeful activity.

(d) (("Designing, fabricating, or applying selected orthotic and prosthetic devices or selected adaptive equipment" is not specific occupational therapy services if a person designs, fabricates, or applies selected orthotic and prosthetic devices or selected adaptive equipment for an individual if the device or equipment is prescribed or ordered by a health care professional authorized by the laws of the state of Washington to prescribe the device or equipment or direct the design, fabrication, or application of the device or equipment.

(e))) "Adapting environments for ((the handicapped)) individuals with disabilities" ((is the evaluation of all the components of an individual's disability and the adaptation of the environment of the individual based on the evaluation. Components of a disability are physical, sensory, social, emotional and cognitive functions)) includes assessing needs, identifying strategies, implementing and training in the use of strategies, and evaluating outcomes. Occupational therapy focuses on the interaction of an individual's skills and abilities, the features of the environment, and the demands and purposes of activities.

(2) (("Supervision" and "regular consultation" of an occupational therapy assistant by an occupational therapist in RCW 18.59.020(4) and "direct supervision" of a person holding a limited permit by an occupational therapist in RCW 18.59.040(7) shall mean face to face meetings between the occupational therapist and occupational therapy assistant and between the occupational therapist and holder of a limited permit occurring at intervals as determined necessary by the occupational therapist to establish, review, or revise the client's treatment objectives. The meetings shall be documented and the documentation shall be maintained in each client's treatment record. The failure to meet to establish, review, or revise the client's treatment objectives at sufficient intervals to meet the client's needs shall be grounds for disciplinary action against the occupational therapist's license and/or the occupational therapy assistant's license to practice in the state of Washington and/or the limited permit pursuant to WAC 246-847-160 (4) and (14), 246-847-170 (2) and (3) and RCW 18.59.100 for conduct occurring prior to June 11, 1986 and pursuant to RCW 18.130.180 for conduct occurring on or after June 11, 1986.

(3) "Professional supervision" of an occupational therapy aide in RCW 18.59.020(5) shall mean:

(a) Documented training by the occupational therapist of the occupational therapy aide in each specific occupational therapy technique for each specific client and the training shall be performed on the client;

(b) Face to face meetings between the occupational therapy aide and the supervising occupational therapist or an occupational therapy assistant under the direction of the supervising occupational therapist occurring at intervals as determined by the occupational therapist to meet the client's needs, but shall occur at least once every two weeks; and

(c) The occupational therapist shall observe the occupational therapy aide perform on the client the specific occupational therapy techniques for which the occupational therapy aide was trained at intervals as determined by the occupational therapist to meet the client's needs, but shall occur at least once a month.

The meetings and client contacts shall be documented and the documentation shall be maintained in the client's treatment records. The failure to meet at sufficient intervals to meet the client's needs shall be grounds for disciplinary action against the occupational therapist's license to practice in the state of Washington pursuant to WAC 246-847-160 (4) and (14), 246-847-170 (2) and (3) and RCW 18.59.100 for conduct occurring prior to June 11, 1986 and pursuant to RCW 18.130.180 for conduct occurring on or after June 11, 1986.

(4) Sections (2) and (3) of this rule shall not be effective until July 1, 1985.

(5))) "Regular consultation" as described in RCW 18.59.020(4) means in-person contact at least monthly by an occupational therapist licensed in the state of Washington with supervision available as needed by other methods which include but are not limited to phone and e-mail.

(3) "In association" as described in RCW 18.59.040(7) means practicing in a setting in which an occupational therapist licensed in the state of Washington is available on the premises for supervision, consultation, and assistance as needed to provide protection for the client's health, safety and welfare.

(4) "Direct supervision" as described in RCW 18.59.040(7) means daily, in-person contact at the site where services are provided by an occupational therapist licensed in the state of Washington.

(5) "Professional supervision" of an occupational therapy aide as described in RCW 18.59.020(5) means in-person contact at the site where services are provided by an occupational therapist or occupational therapy assistant licensed in the state of Washington. If the client receives occupational services more than once a week, professional supervision must occur at least weekly. If the client receives occupational services once a week or less, professional supervision must occur at least once every two weeks.

(6) "Clients" include patients, students, and those to whom occupational therapy services are delivered.

(((6))) (7) "Evaluation" is the process of obtaining and interpreting data necessary for treatment, which includes, but is not limited to, planning for and documenting the evaluation process and results. The evaluation data may be gathered through record review, specific observation, interview, and the administration of data collection procedures, which include, but are not limited to, the use of standardized tests, performance checklists, and activities and tasks designed to evaluate specific performance abilities.

(((7))) (8) "Work site" in RCW 18.59.080 means the primary work location.

(((8) "In association" for RCW 18.59.040(7) shall mean practicing in a setting in which another occupational therapist licensed in the state of Washington is available for consultation and assistance as needed to provide protection for the clients' health, safety and welfare.

(9) One "contact hour" is considered to be fifty minutes.

(10) "Peer reviewer" shall mean a licensed occupational therapist chosen by the licensee to review the self study plan and verify that the self study activity meets the objectives for peer reviewed self study as defined in WAC 246-847-065.)) (9) "Consultation" means that practitioners are expected to function as consultants within the scope of practice appropriate to their level of competence.

(10) "Working days" in RCW 18.59.040(5) shall mean consecutive calendar days.

(11) "Commonly accepted standards for the profession" in RCW 18.59.040 (5)(b) and 18.59.070 shall mean having passed the National Board for Certification in Occupational Therapy or its successor/predecessor organization, not having engaged in unprofessional conduct or gross incompetency as established by the board in WAC 246-847-160 for conduct occurring prior to June 11, 1986, and as established in RCW 18.130.180 for conduct occurring on or after June 11, 1986.

(12) "Occupational therapy aide" means a person who is trained by an occupational therapist or occupational therapy assistant to perform client and nonclient related tasks. Occupational therapy aides are not primary service providers of occupational therapy in any practice setting. Occupational therapy aides do not provide skilled occupational therapy services.

(13) "Client-related tasks" are routine tasks during which the aide may interact with the client but does not act as a primary service provider of occupational therapy services. The following factors must be present when an occupational therapist or occupational therapy assistant delegates a selected client-related task to the aide:

(a) The outcome anticipated for the delegated task is predictable;

(b) The situation of the client and the environment is stable and will not require that judgment, interpretations, or adaptations be made by the aide;

(c) The client has demonstrated some previous performance ability in executing the task; and

(d) The task routine and process have been clearly established.

[Statutory Authority: RCW 18.59.130. 92-18-015 (Order 300B), 246-847-010, filed 8/24/92, effective 9/24/92; 91-11-064 (Order 171B), 246-847-010, filed 5/16/91, effective 6/16/91; 91-05-027 (Order 112B), recodified as 246-847-010, filed 2/12/91, effective 3/15/91. Statutory Authority: Chapter 18.59 RCW. 90-16-071 (Order 075), 308-171-001, filed 7/30/90, effective 8/30/90. Statutory Authority: RCW 18.59.130 and 18.130.050. 87-09-044 (Order PM 645), 308-171-001, filed 4/14/87. Statutory Authority: RCW 18.59.130(2) and 18.130.050(1). 86-17-064 (Order PM 610), 308-171-001, filed 8/19/86. Statutory Authority: RCW 18.59.130(2) and 18.59.020(5). 86-10-004 (Order PL 588), 308-171-001, filed 4/24/86. Statutory Authority: RCW 18.59.130(2). 85-12-010 (Order PL 529), 308-171-001, filed 5/23/85. Statutory Authority: RCW 18.59.130(2) and 18.59.020. 85-05-008 (Order PL 513), 308-171-001, filed 2/11/85.]


AMENDATORY SECTION(Amending Order 300B, filed 8/24/92, effective 9/24/92)

WAC 246-847-110   Persons exempt from licensure pursuant to RCW 18.59.040(5).   (1) To qualify for the exemption from licensure pursuant to RCW 18.59.040(5), the individual claiming the exemption shall have been actively engaged in the practice of occupational therapy within the preceding four-year period and shall in writing notify the department, at least thirty days before any occupational therapy services are performed in this state, of the following:

(a) In which state(s) the individual is licensed to perform occupational therapy services and the license number(s); and

(b) The name, address, and telephone number of at least one facility or employer where the individual has been engaged in the practice of occupational therapy within the preceding four years; or

(c) If the exemption is claimed ((pursuant to)) under RCW 18.59.040 (5)(b), the individual ((shall)) must submit a signed notarized statement attesting to:

(i) Having passed the ((American Occupational Therapy Certification Board)) National Board for Certification in Occupational Therapy examination or its successor/predecessor organization; and

(ii) Having engaged in occupational therapy practice within the preceding four years, including the name, address, and telephone number of at least one facility or employer during this period;

(iii) Not having engaged in unprofessional conduct ((or gross incompetency as established in WAC 246-847-160 for conduct occurring prior to June 11, 1986 and as established in)) under RCW 18.130.180 ((for conduct occurring on or after June 11, 1986; and not having been convicted of a crime involving moral turpitude or a felony relating to the profession of occupational therapy)); and

(d) A signed notarized statement describing when the occupational therapy services will be performed, where the occupational therapy services will be performed, and how long the individual will be performing occupational therapy services in this state.

(2) A ninety-day temporary permit must be received by the occupational therapist prior to rendering of occupational therapy services.

(((3) "Working days" in RCW 18.59.040(5) shall mean consecutive calendar days.))

[Statutory Authority: RCW 18.59.130. 92-18-015 (Order 300B), 246-847-110, filed 8/24/92, effective 9/24/92; 91-11-064 (Order 171B), 246-847-110, filed 5/16/91, effective 6/16/91; 91-05-027 (Order 112B), recodified as 246-847-110, filed 2/12/91, effective 3/15/91. Statutory Authority: RCW 18.59.130(2) and 18.59.050(1). 86-17-064 (Order PM 610), 308-171-103, filed 8/19/86. Statutory Authority: RCW 18.59.130(2) and 18.59.040 (5)(b). 86-10-004 (Order PL 588), 308-171-103, filed 4/24/86. Statutory Authority: RCW 18.59.130(2). 85-12-010 (Order PL 529), 308-171-103, filed 5/23/85.]


NEW SECTION
WAC 246-847-135   Standards of supervision.   The following are the standards for supervision of occupational therapy assistants, limited permit holders, and occupational therapy aides:

(1) Licensed occupational therapy assistants must be supervised through regular consultation by an occupational therapist licensed in the state of Washington. Regular consultation must be documented and the documentation must be kept in a location determined by the supervising occupational therapist or occupational therapy assistant.

(2)(a) A limited permit holder must work in association with an occupational therapist licensed in the state of Washington with a minimum of one year of experience. "In association with" shall include consultation regarding evaluation, intervention, progress, reevaluation and discharge planning of each assigned patient at appropriate intervals and documented by cosignature of notes by the supervising occupational therapist.

(b) Limited permit holders who have failed the examination must be directly supervised by an occupational therapist licensed in the state of Washington with a minimum of one year of experience. Direct supervision must include consultation regarding evaluation, intervention, progress, reevaluation and discharge planning of each assigned patient at appropriate intervals and documented by cosignature of notes by the supervising occupational therapist.

(3) Occupational therapy aides must be professionally supervised and trained by an occupational therapist or an occupational therapy assistant licensed in the state of Washington. Professional supervision must include documented supervision and training.

(a) The occupational therapist or occupational therapy assistant shall train the occupational therapy aide on client and nonclient related tasks at least once a month.

(b) When performing client related tasks, the occupational therapist or occupational therapy assistant must ensure the occupational therapy aide is trained and competent in performing the task on the specific client.

(c) The documentation must be maintained in a location determined by the supervising occupational therapist or occupational therapy assistant.

(4) Definitions can be found in WAC 246-847-010.

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REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 246-847-130 Definition of "commonly accepted standards for the profession."

Washington State Code Reviser's Office