TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 374. DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS/LICENSURE OF PERSONS WITH CRIMINAL CONVICTIONS

The Texas Board of Occupational Therapy Examiners adopts amendments to the Schedule of Sanctions figure in 40 Texas Administrative Code §374.1, Disciplinary Actions, and §374.2, Detrimental Practice. The amendments are adopted with changes to the proposed text as published in the March 14, 2025, issue of the Texas Register (50 TexReg 1896). The amendments will be republished. The changes at adoption are to correct a clerical error and replace the word "and" with "or" in §374.2(5) and (6) and in the corresponding items in the Schedule of Sanctions.

The amendments to §374.2 will update the definition of "practiced occupational therapy in a manner detrimental to the public health and welfare" and clarify conduct that constitutes grounds to take disciplinary action against license holders.

Amendments to the Schedule of Sanctions in §374.1 will align the provisions therein with the changes to §374.2; update the minimum, intermediate, and maximum discipline columns to reflect current trends in disciplinary action; and update administrative penalties for each day a violation continues or occurs. The amendments to the Schedule of Sanctions also include the addition of a violation related to failure to inform the Board of information changes pursuant to §369.2, Changes of Name or Contact Information. The amendments include general cleanups, as well, including the removal of the current §374.2(12) and corresponding item in the Schedule of Sanctions, which concerned deceptive and fraudulent advertising, as a related item is already listed under Texas Occupations Code §454.301, Grounds for Denial of License or Discipline of License Holder; in tandem with the change, that related item from §454.301 has been added to the Schedule of Sanctions.

The amendments are adopted to ensure that the rules clearly identify the conduct that may be considered detrimental practice and the corresponding discipline. The changes will also facilitate the ability of individuals and the Board to identify violations and related discipline in order to ensure the health, safety, and welfare of the public.

Public comment from the Texas Occupational Therapy Association (TOTA) was received regarding the proposed amendments to §374.2, Detrimental Practice. The comment noted that TOTA appreciates the Board's efforts in updating the definition of "practiced occupational therapy in a manner detrimental to the public health and welfare" and clarifying conduct for which the Board may take disciplinary action. The comment also noted that TOTA's Standards and Practice Committee members have concerns regarding Section 18, "failing to provide sufficient prior written notice of resignation from employment or termination of contract." TOTA asked if the Board could include that occupational therapy practitioners who are concerned regarding abandonment can contact the Board to prevent possible disciplinary action.

The Board disagrees with the comment. Firstly, the amendments would replace more general extant language with language that is more specific with regard to what abandonment entails, which will better facilitate a licensee's ability to identify what abandonment is and avoid it. Secondly, while a licensee can contact the Board regarding provisions in the OT Act and Rules, the ultimate responsibility for compliance with such is the licensee's and it is through the complaint process, addressed in Chapter 374 of the OT Rules, that it is determined if a violation has occurred. In addition, with regard to disciplinary action by the Board, as noted for each item in the Schedule of Sanctions, alternative disciplinary decisions or pursuing other courses of action may depend on the nature of the situation, repeat of violation, or development.

The amendments are adopted under Texas Occupations Code §454.102, which authorizes the Board to adopt rules to carry out its duties under Chapter 454. The amendments are also adopted under §454.3025, which requires the Board by rule to adopt a schedule of administrative penalties and other sanctions that the Board may impose under this chapter, and under §454.3521, which authorizes the Board to impose an administrative penalty, not to exceed $200 for each day a violation continues or occurs, under this chapter for a violation of this chapter or a rule or order adopted under this chapter. The amendments, lastly, are adopted under Texas Occupations Code §454.301, which includes that the Board may deny, suspend, or revoke a license or take other disciplinary action against a license holder if the applicant or license holder has practiced occupational therapy in a manner detrimental to the public health and welfare.

No other statutes, articles, or codes are affected by these amendments.

§ 374.1. Disciplinary Actions.

(a) The board, in accordance with the Administrative Procedure Act, may deny, revoke, suspend, or refuse to renew or issue a license, or may reprimand or impose probationary conditions, if the licensee or applicant for licensure has been found in violation of the rules or the Act. The board will adhere to procedures for such action as stated in the Act, §§454.301, 454.302, 454.303, and 454.304.

(b) The board recognizes four levels of disciplinary action for its licensees.

(1) Level I: Order and/or Letter of Reprimand or Other Appropriate Disciplinary Action (including but not limited to community service hours).

(2) Level II: Probation--The licensee may continue to practice while on probation. The board orders the probationary status which may include but is not limited to restrictions on practice and continued monitoring by the board during the specified time period.

(3) Level III: Suspension--A specified period of time that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon the successful completion of the suspension period, the license will be reinstated upon the licensee successfully meeting all requirements.

(4) Level IV: Revocation--A determination that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon passage of 180 days, from the date the revocation order becomes final, the former licensee may petition the board for re-issuance of a license. The former licensee may be required to re-take the Examination.

Figure: 40 TAC §374.1(c) (.pdf)

(d) The board shall consider the following factors in conjunction with the schedule of sanctions when determining the appropriate penalty/sanction in disciplinary matters:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of the violation; and

(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2) the history of previous violations;

(3) the amount necessary to deter future violations;

(4) efforts to correct the violation;

(5) the economic harm to the public interest or public confidence caused by the violation;

(6) whether the violation was intentional; and

(7) any other matter that justice requires.

(e) Licensees who provide occupational therapy services are responsible for understanding and complying with Chapter 454 of the Occupations Code (the Occupational Therapy Practice Act), and the Texas Board of Occupational Therapy Examiners' rules.

(f) Final disciplinary actions taken by the board will be routinely published as to the names and offenses of the licensees.

(g) A licensee who is ordered by the board to perform certain act(s) will be monitored by the board to ensure that the required act(s) are completed per the order of the board.

(h) The board may expunge any record of disciplinary action taken against a license holder before September 1, 2019, for practicing in a facility that failed to meet the registration requirements of §454.215 of the Act (relating to Occupational Therapy Facility Registration), as that section existed on January 1, 2019. The board may not expunge a record under this subsection after September 1, 2021.

(i) A licensee or applicant is required to report to the board a felony of which he/she is convicted within 60 days after the conviction occurs.

§ 374.2. Detrimental Practice.

§454.301(a)(6) of the Act (relating to Grounds for Denial of License or Discipline of License Holder) states, "practiced occupational therapy in a manner detrimental to the public health and welfare," which is defined, but not limited to, the following:

(1) failing to document occupational therapy services or inaccurately recording, falsifying, or altering client records;

(2) making or filing a false or misleading report, or failing to file a report when it is required by law or third person or obstructing or attempting to obstruct another person from filing such a report;

(3) failing to report or otherwise concealing any conduct by self or another licensee likely to be a violation of the Act or Rules;

(4) drug diversion. In this paragraph, "drug diversion" refers to when a medication is diverted from the person to whom it was prescribed;

(5) not providing the supervision required by the Act or Rules for those individuals to whom occupational therapy services are delegated;

(6) practicing occupational therapy without receiving the supervision required by the Act or Rules;

(7) impersonating another person holding a license; aiding, abetting, authorizing, condoning, or allowing the practice of occupational therapy or the representation of oneself as an occupational therapy practitioner by a person without a license; or aiding, abetting, authorizing, condoning, or allowing the use of a license by a person other than the holder of the license;

(8) practicing occupational therapy or representing oneself in a manner not authorized by the license;

(9) failing to cooperate with the agency by not responding to agency correspondence addressed to the individual's designated address(es) or by not furnishing papers or documents requested or not responding to subpoenas issued by the agency within 90 days;

(10) failing to complete the requirements of an agreed order;

(11) interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts before the agency or Board or by the use of threats, intimidation, or harassment against any clients or witnesses with the potential of preventing them from providing evidence in a disciplinary proceeding or any other legal action;

(12) practicing occupational therapy without a valid license, including after the expiration, surrender, or revocation of the license, during the suspension of the license, or after the license is void;

(13) failing to conform to the minimal standards of acceptable prevailing practice, including, but not limited to:

(A) using occupational therapy techniques or modalities for purposes not consistent with the development of occupational therapy as a profession or science or as a means of promoting the public health and welfare;

(B) delegating, performing, or attempting to perform techniques or procedures in which one is untrained by education or experience;

(C) delegating occupational therapy functions or responsibilities to an individual lacking the competency to perform such;

(D) harassing, abusing, or intimidating a client either physically or verbally;

(E) causing or enabling physical or emotional injury to or the impairment of the dignity or safety of the client; and

(F) violating the principles or related standards of conduct of §374.4 of this title (relating to Code of Ethics);

(14) engaging in sexual contact or an inappropriate relationship with a client, including, but not limited to:

(A) engaging in inappropriate behavior with or comments directed toward a client; and

(B) becoming financially or personally involved in an inappropriate manner with a client;

(15) intentionally or knowingly offering to pay or agreeing to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for receiving or soliciting clients or patronage, regardless of source of reimbursement, unless said business arrangement or payments practice is acceptable under 42 United States Code §1320a-7b(b) or its regulations;

(16) recommending therapeutic devices or modalities sold by a third person for the purpose or with the result of receiving a fee or other consideration from a third person;

(17) failing to maintain the confidentiality of all verbal, written, electronic, augmentative, and nonverbal communication, including compliance with Health Insurance Portability and Accountability Act (HIPAA) regulations; and

(18) failing to provide sufficient prior written notice of resignation of employment or termination of contract, or if self-employed, sufficient prior written notice to existing clients or any licensees under the individual's supervision, resulting in the loss or delay of occupational therapy services. In this paragraph, "sufficient" means at least 14 days; however, should an employment contract, or if self-employed, a comparable written agreement with clients, specify a different period of time, "sufficient" means the term dictated by such, up to and including 30 days.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 2, 2025.

TRD-202501517

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Effective date: June 1, 2025

Proposal publication date: March 14, 2025

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