TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 372. PROVISION OF SERVICES

40 TAC §372.1

The Texas Board of Occupational Therapy Examiners proposes an amendment to §372.1, concerning provision of services. The amendment would clarify provisions regarding the receipt of verbal and written referrals for occupational therapy services and clarify that with regard to medical conditions, a referral must be requested at any time during the evaluation process when necessary to ensure the safety and welfare of the client.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Mr. Maline has also determined that for each of the first five years the amended rule is in effect, the public benefit anticipated as a result of enforcing the rule will be the expansion of occupational therapy services for consumers. There will be no effect on small businesses and no anticipated economic cost to persons having to comply.

Comments on the proposed amendment may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701-3942 or to lea@ptot.texas.gov no later than 30 days from the date that this proposed amendment is published in the Texas Register.

The amendment is proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§372.1.Provision of Services.

(a) The occupational therapist is responsible for determining whether any aspect of the provision of services may be conducted via telehealth or must be conducted in person.

(b) Medical Conditions.

(1) Occupational therapists may provide consultation or monitored services, or screen or evaluate the client to determine the need for occupational therapy services without a referral. However, a referral must be requested at any time during the evaluation process when necessary to ensure the safety and welfare of the client.

(2) The initial evaluation for a medical condition must be conducted in person and may not be conducted via telehealth.

(3) Intervention for a medical condition by an occupational therapy practitioner requires a referral from a licensed referral source.

[(4) The referral may be an oral or signed written order. The occupational therapy practitioner must ensure that all oral orders are followed with a signed written order.

(5) If a written referral signed by the referral source is not received by the third intervention or within two weeks from the receipt of the oral referral, whichever is later, the occupational therapist must have documented evidence of attempt(s) to contact the referral source for the written referral (e.g., registered letter, fax, certified letter, email, etc.). The occupational therapist must exercise professional judgment to determine cessation or continuation of intervention without a receipt of the written referral.]

(c) Non-Medical Conditions.

(1) Consultation, monitored services, screening, and evaluation for need of services may be provided without a referral.

(2) Non-medical conditions do not require a referral. However, a referral must be requested at any time during the evaluation or intervention process when necessary to ensure the safety and welfare of the client.

(d) Methods of Referral. The referral must be from a licensed referral source in accordance with the Practice Act, §454.213 (relating to Accepted Practice; Practitioner’s Referral), and may be transmitted in the following ways:

(1) in a written document, including faxed and emailed documents; or

(2) verbally, either in person or by electronic information/communications technologies. If a referral is transmitted verbally, it must be documented by the authorized personnel who receives the referral.

(e) [(d)] Screening, Consultation, and Monitored Services. A screening, consultation, or monitored services may be performed by an occupational therapy practitioner.

(f) [(e)] Evaluation.

(1) Only an occupational therapist may perform an initial evaluation or any re-evaluations.

(2) An occupational therapy plan of care must be based on an occupational therapy evaluation.

(3) The occupational therapist must have real time interaction with the client during the evaluation process either in person or via telehealth.

(4) The occupational therapist may delegate to an occupational therapy assistant or temporary licensee the collection of data for the assessment. The occupational therapist is responsible for the accuracy of the data collected by the assistant.

(g) [(f)] Plan of Care.

(1) Only an occupational therapist may initiate, develop, modify or complete an occupational therapy plan of care. It is a violation of the OT Practice Act for anyone other than the evaluating or treating occupational therapist to dictate, or attempt to dictate, when occupational therapy services should or should not be provided, the nature and frequency of services that are provided, when the client should be discharged, or any other aspect of the provision of occupational therapy as set out in the OT Act and Rules.

(2) The occupational therapist and an occupational therapy assistant may work jointly to revise the short-term goals, but the final determination resides with the occupational therapist. Revisions to the plan of care and goals must be documented by the occupational therapist and/or occupational therapy assistant to reflect revisions at the time of the change.

(3) An occupational therapy plan of care may be integrated into an interdisciplinary plan of care, but the occupational therapy goals or objectives must be easily identifiable in the plan of care.

(4) Only occupational therapy practitioners may implement the written plan of care once it is completed by the occupational therapist.

(5) Only the occupational therapy practitioner may train non-licensed personnel or family members to carry out specific tasks that support the occupational therapy plan of care.

(6) The occupational therapist is responsible for determining whether intervention is needed and if a referral is required for occupational therapy intervention.

(7) The occupational therapy practitioners must have real time interaction with the client during the intervention process either in person or via telehealth.

(8) Devices that are in sustained skin contact with the client (including but not limited to wheelchair positioning devices, splints, hot/cold packs, and therapeutic tape) require the on-site and attending presence of the occupational therapy practitioner for any initial applications. The occupational therapy practitioner is responsible for determining the need to be on-site and attending for subsequent applications or modifications.

(9) Except where otherwise restricted by rule, the supervising occupational therapist may only delegate to an occupational therapy assistant or temporary licensee tasks that they both agree are within the competency level of that occupational therapy assistant or temporary licensee.

(h) [(g)] Documentation.

(1) The client's records include the medical referral, if required, and the plan of care. The plan of care includes the initial examination and evaluation; the goals and any updates or change of the goals; the documentation of each intervention session by the OT or OTA providing the service; progress notes and any re-evaluations, if required; any written communication; and the discharge documentation.

(2) The licensee providing occupational therapy services must document for each intervention session. The documentation must accurately reflect the intervention, decline of intervention, and/or modalities provided.

(3) The occupational therapy assistant must include the name of a supervising OT in each intervention note. This may not necessarily be the occupational therapist who wrote the plan of care, but an occupational therapist who is readily available to answer questions about the client's intervention at the time of the provision of services. If this requirement is not met, the occupational therapy assistant may not provide services.

(i) [(h)] Discharge.

(1) Only an occupational therapist has the authority to discharge clients from occupational therapy services. The discharge is based on whether the client has achieved predetermined goals, has achieved maximum benefit from occupational therapy services, or when other circumstances warrant discontinuation of occupational therapy services.

(2) The occupational therapist must review any information from the occupational therapy assistant(s), determine if goals were met or not, complete and sign the discharge documentation, and/or make recommendations for any further needs of the client in another continuum of care.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201606017

John P. Maline

Executive Director

Texas State Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 305-6900


CHAPTER 374. DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS

40 TAC §374.5

The Texas Board of Occupational Therapy Examiners proposes a new rule, §374.5, concerning licensure of persons with criminal convictions. The new section would specify the types of criminal activities that may result in denial, suspension, or revocation of a license in accordance with the Sunset Commission’s adopted recommendation that the Texas Board of Occupational Therapy Examiners adopt rules regarding such.

John P. Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Mr. Maline has also determined that for each of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be the expansion of occupational therapy services for consumers. There will be no effect on small businesses and no anticipated economic cost to persons having to comply.

Comments on the proposed rule may be submitted to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe Street, Suite 2-510, Austin, Texas 78701 or to lea@ptot.texas.gov no later than 30 days from the date that this proposed rule is published in the Texas Register.

The new rule is proposed under the Occupational Therapy Practice Act, Title 3, Subtitle H, Chapter 454, Occupations Code, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act.

Title 3, Subtitle H, Chapter 454 of the Occupations Code is affected by this proposal.

§374.5.Licensure of Persons with Criminal Convictions.

(a) The Board may revoke or suspend an existing valid license or disqualify a person from receiving or renewing a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the practice of occupational therapy. Those crimes that the Board considers to be directly related to the duties and responsibilities of an occupational therapist or an occupational therapy assistant shall include, but are not limited to:

(1) any felony that involves an act of fraud, dishonesty, or deceit;

(2) any criminal violation of the Occupational Therapy Practice Act or other statutes regulating or pertaining to occupational therapy or the medical profession;

(3) any crime involving moral turpitude ("moral turpitude" in this section refers to baseness, vileness, or dishonesty of a high degree);

(4) murder;

(5) assault;

(6) burglary;

(7) robbery;

(8) theft;

(9) rape or sexual abuse;

(10) patient/client abuse;

(11) injury to a child, elderly individual, or an individual with a disability;

(12) child molestation, abuse, endangerment, or neglect;

(13) felony conviction for driving while intoxicated, driving under the influence of alcohol or drugs, or driving while ability is impaired;

(14) sale, distribution, or illegal possession of narcotics, controlled substances, or dangerous drugs;

(15) tampering with a governmental record;

(16) offenses that include attempting or conspiring to commit any of the offenses in this subsection.

(b) In determining whether a crime not listed previously relates to occupational therapy, the Board will consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to practice occupational therapy;

(3) the extent to which a license might offer opportunities to engage in further criminal activity of the same type as that in which the person was previously engaged; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and to discharge the responsibilities of an occupational therapist or occupational therapy assistant.

(c) In review of a complaint alleging that the respondent/applicant has been convicted of a crime that directly relates to the duties and responsibilities of an occupational therapist or occupational therapy assistant, the Board shall consider the following evidence in determining the respondent's/applicant's present fitness to practice occupational therapy:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person at the time of commission of the crime;

(3) conduct and work activity of the person prior to and after criminal activity;

(4) evidence of rehabilitation while incarcerated or following release;

(5) notarized letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; letters from the sheriff or chief of police where the person resides; and other persons having contact with the convicted person; and

(6) records of steady employment, provision for dependents, payment of all court costs, supervision fees, fines, and restitution if ordered as a result of the person's conviction.

(d) The burden and expense of providing and presenting the foregoing documentation to the Board shall be solely that of the respondent/applicant.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201606018

John P. Maline

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 305-6900