SB1105 - 511R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 32-3401, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3401. Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of occupational therapy examiners.

2. "Consultation" means the act or procedure of exchanging ideas or information or providing professional advice to another professional or responsible party regarding the provision of occupational therapy services.

3. "Evaluation" means an occupational therapist's assessment of treatment needs within the scope of practice of occupational therapy. Evaluation does not include making a medical diagnosis.

4. "Letter of concern" means a nondisciplinary advisory letter to notify a licensee that, while there is insufficient evidence to support disciplinary action, the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in future action against the licensee's license.

5. "Occupational therapist" means a person who is licensed pursuant to this chapter to practice occupational therapy and who is a graduate of an accredited occupational therapy education program, completes the approved fieldwork and passes the examination prescribed as required by the board pursuant to section 32‑3424.

6. "Occupational therapy" means the use of therapeutic activities or modalities to promote engagement in activities with individuals who are limited by physical or cognitive injury or illness, psychosocial dysfunction, developmental or learning disabilities, sensory processing or modulation deficits or the aging process in order to achieve optimum functional performance, maximize independence, prevent disability and maintain health. Occupational therapy includes evaluation, treatment and consultation based on the client's temporal, spiritual and cultural values and needs.

7. "Occupational therapy assistant" means a person who is licensed pursuant to this chapter, who is a graduate of an accredited occupational therapy assistant education program, who assists in the practice of occupational therapy and who performs delegated procedures commensurate with the person's education and training.

8. "Occupational therapy services" includes the following:

(a) Developing an intervention and training plan that is based on the occupational therapist's evaluation of the client's occupational history and experiences, including the client's daily living activities, development, activity demands, values and needs.

(b) Evaluating and facilitating developmental, perceptual‑motor, interaction, communication, neuromuscular and sensory processing function, psychosocial skills and systemic functioning, such as including wound, and lymphatic and cardiac functioning.

(c) Enhancing functional achievement, prevocational skills and work capabilities through the use of therapeutic activities and modalities that are based on anatomy, physiology and kinesiology, growth and development, disabilities, technology and analysis of human behavioral and occupational performance.

(d) Evaluating, designing, fabricating and training the individual in the use of selective orthotics, prosthetics, adaptive devices, assistive technology and durable medical equipment as appropriate.

(e) Administering and interpreting standardized and nonstandardized tests that are performed within the practice of occupational therapy, including manual muscle, sensory processing, range of motion, cognition, and developmental and psychosocial tests.

(f) Assessing and adapting environments for individuals with disabilities or who are at risk for dysfunction.

9. "Supervision" means that the supervising occupational therapist or occupational therapy assistant is present or available pursuant to rules adopted by the board for the licensee who is performing occupational therapy services or when an unlicensed person is performing tasks at the direction of a licensed occupational therapist or licensed occupational therapy assistant the giving of instructions by the supervising occupational therapist or the occupational therapy assistant that are adequate to ensure the safety of clients during the provision of occupational therapy services and that take into consideration at least the following factors:

(a) Skill level.

(b) Competency.

(d) Work setting demands.

(e) Client population.

1o. "Telerehabilitation" means providing occupational therapy services pursuant to this chapter through a telecommunications network.

10. 11. "Unprofessional conduct" includes the following:

(a) Habitual intemperance in the use of alcohol.

(b) Habitual use of narcotic or hypnotic drugs without a prescription issued by a physician who is licensed pursuant to chapter 13 or 17 of this title.

(d) Having professional connection with or lending the name of the licensee to an unlicensed occupational therapist.

(e) Practicing or offering to practice occupational therapy beyond the scope of the practice of occupational therapy.

(f) Obtaining or attempting to obtain a license by fraud or misrepresentation or assisting a person to obtain or to attempt to obtain a license by fraud or misrepresentation.

(g) Failing to provide supervision according to this chapter and rules adopted pursuant to this chapter.

(h) Making misleading, deceptive, untrue or fraudulent representations in violation of this chapter.

(i) Having been adjudged mentally incompetent by a court of competent jurisdiction.

(j) Knowingly aiding a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

(k) Failing to report to the board any act or omission of a licensee or applicant or of any other person who violates this chapter.

(l) Engaging in the performance of substandard care by a licensee due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the person receiving occupational therapy services is established.

(m) Failing to refer a client whose condition is beyond the training or ability of the occupational therapist to another professional qualified to provide such service.

(n) Censure of a licensee or refusal, revocation, suspension or restriction of a license to practice occupational therapy by any other state, territory, district or country, unless the applicant or licensee can demonstrate that the disciplinary action that is not related to the ability to safely and skillfully practice occupational therapy or to any act of unprofessional conduct prescribed in this subsection paragraph.

(o) Any conduct or practice that violates recognized standards of ethics of the occupational therapy profession, any conduct or practice that does or might constitute a danger to the health, welfare or safety of the client or the public or any conduct, practice or condition that does or might impair the licensee's ability to safely and skillfully practice occupational therapy.

(p) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter.

(q) Falsely claiming to have performed a professional service, billing for a service not rendered or charging or collecting an excessive fee for services not performed.

(r) Sexually inappropriate conduct with a client. For the purposes of this section subdivision, "sexually inappropriate conduct" includes:

(i) Engaging in or soliciting a sexual relationship, whether consensual or nonconsensual, while a provider relationship exists with a current client or with a former client within three months after termination of occupational therapy services.

(ii) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or inappropriate physical contact of a sexual nature with a person treated by an occupational therapist or occupational therapy assistant.

(iii) Intentionally viewing a completely or partially disrobed client in the course of treatment if the viewing is not related to treatment under current practice standards.

(s) Knowingly making a false or misleading statement to the board on a license application or renewal form required by the board or any other verbal or written communications directed to the board or its staff.

(t) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. Conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence that the felony or misdemeanor was committed.

(t) Conviction of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission and the board may take disciplinary action after the time for appeal has lapsed, when judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order. For the purposes of this subdivision, "conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

(u) Violating any federal law, state law, rule or regulation directly related to the practice of occupational therapy.

(v) Engaging in false advertising of occupational therapy services.

(w) Engaging in the assault or battery of a client.

(x) Falsifying client documents or reports.

(y) Failing to document or maintain client treatment records or failing to prepare client reports within thirty days of service or treatment.

(z) Failing to renew a license while continuing to practice occupational therapy.

(aa) Signing a blank, undated or unprepared prescription form.

(bb) Entering into a financial relationship other than a normal billing process that leads to embezzlement or violates recognized ethical standards.

(cc) Failing to maintain client confidentiality without written consent of the client or unless otherwise required by law.

(dd) Promoting or providing treatment, intervention or a device or service that is unwarranted for the condition of the client beyond the point of reasonable benefit.

(ee) Providing telerehabilitation services, including evaluation, treatment and consultation, without secure connections, active firewalls and encrypted confidential information to ensure client confidentiality. END_STATUTE

Sec. 2. Section 32-3402, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3402. Board of occupational therapy examiners; members; qualifications; terms; compensation; civil immunity

A. The board of occupational therapy examiners is established and consists of five members appointed by the governor. Each board member shall be a resident of the state at the time of appointment. The governor shall appoint two persons who are not engaged, directly or indirectly, in the provision of health care services to serve as public members. The other three members shall have at least three years of experience in occupational therapy or teaching in an accredited occupational therapy education program in this state immediately prior to before appointment and shall be licensed under this chapter. The governor may select board members from a list of licensees submitted by the Arizona occupational therapy association, inc. or any other appropriate organization.

B. The term of office of board members is three years to begin and end on the third Monday in January. A member shall not serve more than two consecutive terms.

C. The board, at its first regular meeting after the start of each calendar year and as necessary, shall meet in January of each year to elect a chairman and other officers elect a chairperson and other officers from among its members. At least one additional meeting shall be held before the end of each calendar year. The board shall meet at least once each quarter in compliance with the open meeting requirements of title 38, chapter 3, article 3.1 and shall keep an official record of these meetings. Other meetings may be convened at the call of the chairman chairperson or the written request of any two board members. A majority of the members of the board shall constitute a quorum. All meetings of the board are open to the public, except that the board may hold closed sessions to approve examinations or, at the request of an applicant who fails an examination, to prepare a response indicating any reason for the applicant's failure.

D. Each member of the board is eligible to receive compensation in the amount of one hundred dollars for each regular or special board meeting the member attends and is eligible for reimbursement for all expenses necessarily and properly incurred in attending board meetings.

E. A board member is immune from civil liability for any actions that are within the scope of the board member's duties if they are taken without malice and in the reasonable belief that they are warranted by law. END_STATUTE

Sec. 3. Section 32-3404, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3404. Powers and duties; commissioners; committees

A. The board shall:

1. Administer, coordinate and enforce this chapter.

2. Evaluate the qualifications of applicants.

3. Prescribe examination requirements for licensure.

4. Adopt rules necessary to carry out this chapter.

5. Conduct informal meetings, formal interviews and hearings and keep records and minutes necessary to carry out its functions.

6. Prescribe educational programs required for licensure pursuant to this chapter.

B. The board may:

1. Appoint commissioners to assist in the performance of its duties.

2. Report any violations of this chapter or rules adopted pursuant to this chapter to a county attorney, the attorney general, a federal agency or a state or national organization.

3. Establish committees to assist in carrying out its duties for a time prescribed by the board. The board may require a committee appointed pursuant to this paragraph to make regular reports to the board.

C. Commissioners appointed pursuant to subsection B, paragraph 1 of this section shall receive no compensation for their services but shall be reimbursed for actual and necessary expenses that they incur in the performance of their duties. END_STATUTE

Sec. 4. Section 32-3423, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3423. Application for licensure; qualifications

A. An applicant for licensure as an occupational therapist or as an occupational therapy assistant shall:

1. Be of good moral character. In determining whether a person is of good moral character, the board may consider whether the person has been convicted of a felony or misdemeanor involving moral turpitude.

2. Successfully complete the academic and fieldwork requirements of an educational program in occupational therapy approved by the board pursuant to section 32‑3404 subject to board review and standards prescribed by the board. The board shall require:

3. Successfully complete a period of supervised fieldwork experience acceptable to the board.

(a) For an occupational therapist, a minimum of nine hundred twenty‑eight hours of supervised fieldwork experience as determined by the supervising institution, organization or sponsor.

(b) For an occupational therapy assistant, a minimum of six hundred eight hours of supervised fieldwork experience as determined by the supervising institution, organization or sponsor.

4. Pass an examination administered pursuant to section 32‑3424.

5. Pay the application fee prescribed in section 32‑3427.

3. Complete the application process and pay all fees required pursuant to this chapter.

B. The board may deny a license to an applicant who:

1. Commits a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission.

2. Engages in any conduct that violates section 32-3401.

B. C. An applicant who is denied a license may request a hearing pursuant to title 41, chapter 6, article 10. END_STATUTE

Sec. 5. Section 32-3441, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3441. Proper use of title or designation of occupational therapists; license display; supervision; responsibilities

A. A person who is licensed pursuant to this chapter to practice as an occupational therapist and who is in good standing may use the title of licensed occupational therapist and the abbreviation "O.T.", "O.T./L.", "O.T.R." or "O.T.R./L.". A person who is licensed pursuant to this chapter to practice as a licensed occupational therapy assistant and who is in good standing may use the title of licensed occupational therapy assistant and the abbreviation "O.T.A.", "O.T.A./L.", "C.O.T.A." or "C.O.T.A./L.".

B. Each occupational therapist and occupational therapy assistant shall display the person's current license in each facility in which the person practices occupational therapy. If an occupational therapist or occupational therapy assistant fails to display the current license the board shall take disciplinary action against the licensee. Disciplinary action may include censure, a civil penalty, probation, suspension or any combination of these actions. If a facility is not available for the display of the license, the occupational therapist or the occupational therapy assistant must carry a board-issued wallet-sized license card during working hours.

C. The board may adopt rules reasonably related to sound client care governing an occupational therapist's supervision of licensed occupational therapy assistants or unlicensed employees personnel or volunteers students working with the occupational therapist.

D. An occupational therapist and an occupational therapy assistant are professionally and legally responsible for supervising client care given by nonlicensed employees or volunteers unlicensed personnel or students. If an occupational therapist or occupational therapy assistant fails to adequately supervise client care given by employees or volunteers unlicensed personnel or students, the board may take disciplinary action against the occupational therapist or occupational therapy assistant.

E. In all settings in which occupational therapy services are provided, an occupational therapist, during evaluation, intervention and outcome and discharge planning:

1. Must sign all clinical documentation performed by students.

2. Must be the primary clinical supervisor for level II occupational therapist and occupational therapy assistant students, including level II doctoral students. The occupational therapist's supervision of the student must initially be direct and subsequently may be decreased to less direct supervision as appropriate to the setting, the client's needs and the student's ability.

F. In all settings in which occupational therapy services are provided, an occupational therapy assistant, during evaluation, intervention and outcome and discharge planning:

1. Must sign all clinical documentation performed by students.

2. Must be under the direction of an occupational therapist.

3. May be the primary clinical educator for level I occupational therapist and occupational therapy assistant students and level II occupational therapy assistant students. the occupational therapy assistant's supervision of the student must initially be direct and subsequently may be decreased to less direct supervision as appropriate to the setting, the client's needs and the student's ability. END_STATUTE

Sec. 6. Section 32-3442, Arizona Revised Statutes, is amended to read:

START_STATUTE32-3442. Disciplinary action; informal meetings; formal interviews; hearings; penalties; reinstatement of license

A. The board may:

1. Receive written complaints filed against licensees and conduct investigations.

2. Conduct an investigation at any time on its own initiative without receipt of a written complaint if the board has reason to believe:

(a) That there may be a violation of this chapter, a rule adopted pursuant to this chapter or a written board order.

(b) That a licensee is or may be guilty of unprofessional conduct or is or may be acting outside the scope of practice. or

B. Any occupational therapist, occupational therapy assistant or health care institution as defined in section 36‑401 shall report to the board any information the occupational therapist, occupational therapy assistant, health care institution or individual may have that appears to show that an occupational therapist or an occupational therapy assistant is or may be guilty of unprofessional conduct or is or may be incompetent.

C. A person who provides information to the board in good faith pursuant to subsection A or B of this section is not subject to an action in civil damages as a result of providing the information.

D. Within sixty days of receipt of a written complaint pursuant to subsection A of this section or information pursuant to subsection B of this section, the board shall notify the licensee about whom information has been received as to the content of the complaint or information.

E. The board may request an informal meeting or a formal interview with the licensee or any other person to further its investigation or to resolve a complaint.

F. If a licensee refuses the board's request for an informal meeting or a formal interview, or in place of holding an informal meeting or a formal interview, the board shall hold a hearing pursuant to title 41, chapter 6, article 10.

G. If the results of an informal meeting or a formal interview indicate that suspension or revocation of the licensee's license or a civil penalty might be appropriate, the board shall notify the licensee of the time and place for a hearing pursuant to title 41, chapter 6, article 10.

H. If, at the informal meeting or formal interview, the board finds a violation of this chapter, but the violation is not of sufficient seriousness to merit a civil penalty or suspension or revocation of a license, it may take one or more of the following actions:

1. Issue a decree of censure.

2. Establish length and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee. Probation may include:

(a) Submission of the licensee to examinations to determine the mental or physical condition or professional competence of the licensee at the licensee's expense.

(b) Occupational therapy training or education that the board believes to be necessary to correct deficiencies.

(c) Review or supervision of the licensee's practice that the board finds necessary to identify and correct deficiencies in the practice, including a requirement that the licensee regularly report to the board on matters related to the licensee's probationary requirements.

(d) Restrictions on the nature and scope of practice to ensure that the licensee does not practice beyond the limits of the licensee's capabilities.

3. Issue a letter of concern.

4. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of practice standards for licensees including current developments, skills, procedures or treatment interventions.

5. Dismiss the complaint.

I. In addition to the terms of probation described in subsection H, paragraph 2 of this section, probation may also include temporary suspension or restriction of the licensee's license to practice. A licensee's failure to comply with probation or any other board order is cause for a hearing pursuant to title 41, chapter 6, article 10.

J. At the licensee's expense the board may require any combination of a physical, mental or occupational therapy competence examination as part of a board investigation, including, if necessary, the taking of depositions as may be required to fully inform itself with respect to the allegations presented by the complaint. These examinations may include biological fluid testing.

K. Any licensee who, after a hearing, is found guilty of unprofessional conduct or incompetence is subject to the following:

1. A decree of censure.

2. Probation as provided in this section.

3. Suspension or revocation of the license.

4. Imposition of a civil penalty of not less than two hundred fifty dollars nor more than ten thousand dollars for each violation of this chapter.

5. Any combination of these sanctions for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety.

L. A licensee shall return to the board a revoked or suspended license within fifteen days after it is revoked or suspended.

M. The board may reinstate a person's license that has been suspended for less than two years pursuant to this section if the person pays a renewal fee and a reinstatement fee as prescribed by the board by rule and completes the reapplication process as prescribed by the board.

N. The board may reinstate a person's license that has been suspended for more than two years pursuant to this section if the person does all of the following:

1. Reapplies for a license pursuant to section 32-3423.

2. To the board's satisfaction, demonstrates competency to practice.

3. Completes any other requirements prescribed by the board. END_STATUTE

Sec. 7. Title 32, chapter 34, article 3, Arizona Revised Statutes, is amended by adding section 32-3446, to read:

START_STATUTE32-3446. Substance abuse recovery program; consent agreement

In lieu of a disciplinary proceeding prescribed by this article, the board may permit a licensee to actively participate in a board-approved substance abuse recovery program if:

1. The board has evidence that the licensee is an impaired professional.

2. The licensee has not been convicted of a felony relating to a controlled substance in a court of competent jurisdiction.

3. The licensee enters into a consent agreement and complies with all of the terms of the agreement, including making satisfactory progress in the program and adhering to any limitations on the licensee's practice imposed by the board to protect the public. If a licensee does not enter into a consent agreement, the board may begin an investigation and disciplinary proceedings.

4. As part of the agreement between the licensee and the board, the licensee signs a waiver that allows the substance abuse recovery program to release information to the board if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety. END_STATUTE