CHAPTER 424
FORMERLY
HOUSE BILL NO. 462
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE BOARD OF OCCUPATIONAL THERAPY PRACTICE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 2001, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
Subchapter I. Board Of of Occupational Therapy Practice.
§ 2001. Objectives.
(a) The primary objective of the Board of Occupational Therapy Practice, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.
(b) The secondary objectives of the Board are to maintain minimum standards of practitioner licensee competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall do all of the following:
(1) develop Develop standards assuring professional competence; competence.
(2) shall monitor Monitor complaints brought against practitioners licensees regulated by the Board; Board.
(3) shall adjudicate Adjudicate at formal hearings; hearings.
(4) shall promulgate Promulgate rules and regulations; and regulations.
(5) shall impose Impose sanctions where necessary against practitioners licensees.
(c) Nothing in this chapter shall be deemed is a direct or indirect commitment by the General Assembly to a present or future requirement that insurers or other third parties must offer or provide coverage for the services of practitioners licensed under this chapter licensees.
Section 2. Amend § 2002, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
§ 2002. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning As used in this chapter:
(1) “Applicant” means an individual who applies to be licensed under this chapter.
(1) "Board" shall mean means the State Board of Occupational Therapy Practice established in this chapter.
(2) "Distant site" means a site at which a health-care provider legally allowed to practice in the this State is located while providing health-care services by means of telemedicine or telehealth.
(3) “Division” means the Division of Professional Regulation.
(3) "Excessive use or abuse of drugs or alcohol" or “excessively uses or abuses drugs or alcohol” shall mean means any use of narcotics, controlled substances substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs a person's ability to perform the work of an occupational therapist or occupational therapy assistant.
(4) “Licensee” means an individual licensed under this chapter to practice occupational therapy services.
(4) "Occupational therapist" shall mean means a person who is licensed to practice occupational therapy pursuant to under this chapter and who offers such services to the public under any title incorporating the words "occupational therapy," "occupational therapist" therapist,” or any similar title or description of occupational therapy services.
(5) "Occupational therapy assistant" shall mean means a person licensed to assist in the practice of occupational therapy, therapy under the supervision of an occupational therapist.
(6)a. "Occupational therapy services" shall mean, but are not limited to includes any of the following:
a. 1. The assessment, treatment treatment, and education of or consultation with the an individual, family family, or other persons; or persons.
b. 2. Interventions directed toward developing, improving improving, or restoring daily living skills, work readiness or work performance, play skills skills, or leisure capacities, capacities, or enhancing educational performance skills; or skills.
c. 3. Providing for the development, improvement improvement, or restoration of sensorimotor, oralmotor, perceptual or neuromuscular functioning, or emotional, motivational, cognitive cognitive, or psychosocial components of performance.
b. These services “Occupational therapy services” or “practice of occupational therapy” may require assessment of the need for use of interventions such as the design, development, adaptation, application application, or training in the use of assistive technology devices; the design, fabrication fabrication, or application of rehabilitative technology such as selected orthotic devices; training in the use of assistive technology, orthotic or prosthetic devices; the application of thermal agent modalities, including, but not limited to, including paraffin, hot and cold packs packs, and fluido therapy, as an adjunct to, or in preparation for, purposeful activity; the use of ergonomic principles; the adaptation of environments and processes to enhance functional performance; or the promotion of health and wellness.
c. “Occupational therapy services” or “practice of occupational therapy” Services may be provided through the use of telemedicine in a manner deemed appropriate by regulation. Services also regulation and may include participation in telehealth as further defined in regulation.
(7) "Originating site" means a site in Delaware at which a patient is located at the time health-care services are provided to him or her the patient by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties.
(8) "Person" shall mean means a corporation, company, association association, and or partnership, as well as or an individual.
(9) "Practice of occupational therapy" shall mean means the use of goal-directed activities with individuals who are limited by physical limitations due to injury or illness, psychiatric and emotional disorders, developmental or learning disabilities, poverty and cultural differences differences, or the aging process, in order to maximize independence, prevent disability disability, and maintain health.
(10) "Store and forward transfer" means the transmission of a patient's medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it or that the transmission be in real time.
(11) "Substantially related" means the nature of the criminal conduct, conduct for which the a person was convicted, convicted has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of occupational therapy.
(12) "Supervision" shall mean means the interactive process between the a licensed occupational therapist and the an occupational therapy assistant. It shall be assistant, and requires more than a paper review or cosignature. The “Supervision” means that the supervising occupational therapist is responsible for insuring the extent, kind kind, and quality of the services rendered by the occupational therapy assistant that the occupational therapy assistant renders.
(13) "Telehealth" means the use of information and communications technologies consisting of telephones, remote patient monitoring devices devices, or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.
(14) "Telemedicine" means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management management, and self-management of a patient's health care by a licensee practicing within his or her the licensee’s scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation.
Section 3. Amend § 2003, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
§ 2003. Board of Occupational Therapy Practice; appointments; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation.
(a) There is created a State The Board of Occupational Therapy Practice which shall administer administers and enforce enforces this chapter.
(b) The Board shall consist consists of 5 members appointed by the Governor, who are residents of this State and appointed by the Governor as follows:
(1) Three professional members, 2 of whom shall be occupational therapists licensed under this chapter, Two occupational therapists.
(2) 1 may be a licensed occupational therapy assistant, and One occupational therapy assistant.
(3) 2 public members. The public members shall Two public members, who must meet all of the following qualifications:
a. not Not be, nor ever have been, an occupational therapists therapist or occupational therapy assistants, assistant.
b. nor members Not be, nor ever have been, a member of the immediate family of an occupational therapist or occupational therapy assistant; assistant.
c. shall not have been Not be, nor ever have been employed by an occupational therapist or occupational therapy assistant; assistant.
d. shall not Not have a material interest in the providing of goods and services to an occupational therapists therapist or occupational therapy assistants; assistant.
e. nor Not have been engaged in an activity directly related to occupational therapy.
The public members shall be accessible to inquiries, comments and suggestions from the general public.
(c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years, and may succeed himself or herself for 1 additional term; provided however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor. Persons who are members of the Board on June 17, 1998, shall complete their terms. Each member is appointed for a term of 3 years. A member may succeed the member’s term for 1 additional term, and may not be appointed again until a period of 3 years has expired.
(d) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms; but no such person shall thereafter be eligible for 2 consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 year has expired since such person last served.
(e) Any act or vote by a person member appointed in violation of this section shall be is invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an the amendment or revision amends this section to permit such an the appointment.
(f)(1) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. The Governor may remove a member for gross inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office. If a member is absent from 3 consecutive meetings or attends less than 50% of meetings in a 12 month period, the member is in neglect of duty and may be assumed to have resigned, and the Governor may accept the member’s resignation.
(2) A member subject to disciplinary hearing shall be is disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.
(g) No A member of the Board, while serving on the Board, shall may not hold elective office in any professional association of occupational therapists or occupational therapy assistants; this includes a prohibition against assistants, including serving as head of the professional association's Political Action Committee (PAC).
(h) The law regulating the conduct of officers and employees of the State under Chapter 58 of Title 29 shall apply applies to all members of the Board.
(i) Any member who is absent without adequate reason for 3 consecutive meetings, or fails to attend at least 1/2 of all regular business meetings during any calendar year, shall be guilty of neglect of duty.
(j) Each member of the Board shall must be reimbursed for all expenses involved in each meeting, including travel, and in addition shall must receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9.
Section 4. Amend § 2004, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2004. Organization; meetings; officers; quorum.
(a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times as the chair deems necessary; or necessary and at the request of a majority of the Board members.
(b) The Board shall elect annually from its members a chair, vice-chair vice-chair, and secretary. Each officer shall serve for 1 year, and shall may not succeed himself or herself the officer’s term for more than 2 consecutive terms. In the event of a vacancy in 1 of the offices, the Board shall elect a replacement shall be elected at the next Board meeting.
(c) A majority of the members shall constitute constitutes a quorum for the purpose of transacting business. No The Board may not take disciplinary action shall be taken without the affirmative vote of at least 3 members of the Board.
(d) Minutes of all meetings shall must be recorded, and copies shall be maintained by the Division of Professional Regulation shall maintain copies of meeting minutes. At any hearing where evidence is presented, a record must be made from which a verbatim transcript can be prepared shall be made. The person requesting the transcript must pay for the expense of preparing any the transcript shall be incurred by the person requesting it.
Section 5. Amend § 2005, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2005. Records.
The Division of Professional Regulation shall keep a register of all approved applications for license as an occupational therapist and occupational therapy assistant, and complete records relating to meetings of the Board, examinations, rosters, changes changes, and additions to the Board's rules and regulations, complaints, hearings hearings, and such any other matters as that the Board shall determine determines. Such The records shall be are prima facie evidence of the Board’s proceedings of the Board.
Section 6. Amend § 2006, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline and by redesignating accordingly as follows:
§ 2006. Powers and duties.
(a) The Board of Occupational Therapy Practice shall have authority to may do all of the following:
(1) Formulate rules and regulations, with appropriate notice to those affected; all rules affected. Rules and regulations shall must be promulgated in accordance with the procedures specified in the Administrative Procedures Act [Chapter 101 of Title 29] of this State. Each rule or regulation shall must implement or clarify a specific section of this chapter; chapter.
(2) Designate the application form to be used by all applicants, applicants and to process all applications; applications.
(3) Designate the written, standardized examination as approved by the National Board for Certification in Occupational Therapy, Inc., or its successor, to be taken by all persons applying for licensure; applicants that an applicant must pass to qualify for licensure. An applicant who qualify qualifies for licensure by reciprocity shall must have achieved a passing score on the national examination; examination.
(4) The Board shall adopt the administration, grading procedures and passing score of the National Board for Certification in Occupational Therapy, Inc., or a comparable alternative national or regional examination, if a national examination is not available;
(5) Establish minimum education, training training, and experience requirements for licensure as occupational therapists and occupational therapy assistants; licensure.
(6) Evaluate the an applicant’s credentials of all persons applying for a license to practice occupational therapy and to practice as occupational therapy assistants in Delaware, in order to determine whether such persons meet the applicant meets the qualifications for licensing set forth in under this chapter.
(7) Grant licenses to, and renew licenses of, all persons who meet an applicant or licensee who meets the qualifications for licensure and/or or renewal of licenses; licenses.
(8) Establish by rule and regulation continuing education standards required for license renewal; renewal.
(9) Evaluate certified records to determine whether an applicant for licensure, who has been previously licensed, certified certified, or registered in another jurisdiction to practice occupational therapy or to act as an occupational therapy assistant, assistant has engaged in any act or offense that would be grounds for disciplinary action under this chapter chapter, and whether there are any disciplinary proceedings or unresolved complaints are pending against such applicants for such acts or offenses; the applicant for the act or offense.
(10) Refer all complaints from licensees and the public concerning licensed occupational therapists and occupational therapy assistants, or concerning practices of the Board or of the profession, licensees, the Board’s practices, or the profession to the Division of Professional Regulation for investigation pursuant to under § 8735 of Title 29; 29, and assign a member of the Board member to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint; complaint. A Board member who is assigned to assist the Division under this paragraph may not participate in deliberations on the complaint.
(11) Conduct hearings and issue orders in accordance with procedures established pursuant to under this chapter and chapter, Chapter 101 of Title 29, and § 8735 of Title 29. Where such provisions conflict with this chapter, this chapter shall govern. The Board shall determine whether or not an occupational therapist or occupational therapy assistant shall be a licensee is subject to a disciplinary hearing, hearing and, if so, shall conduct such the hearing in accordance with this chapter and the Administrative Procedures Act [Chapter 101 of Title 29]; 29].
(12) Where it has been determined after a disciplinary hearing, If the Board determines after a disciplinary hearing that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed.
(b) The Board of Occupational Therapy shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of occupational therapy.
(4) The Board shall adopt the administration, grading procedures, and passing score of the National Board for Certification in Occupational Therapy, Inc., or its successor, or a comparable alternative national or regional examination, if a national examination is not available.
Section 7. Amend § 2007, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
Subchapter II. License.
§ 2007. License required.
(a) No A person shall may not engage in the practice of occupational therapy or hold himself or herself the person out to the public in this State as being qualified to practice as an occupational therapist or occupational therapy assistant; assistant, or use in connection with the person's name, or otherwise assume or use, any title or description conveying or tending to convey the impression that such the person is qualified to practice occupational therapy, unless such the person has been duly licensed under this chapter.
(b) Whenever If a license to practice as an occupational therapist or occupational therapy assistant in this state State has expired or been suspended or revoked, it shall be is unlawful for the person holding the expired, suspended, or revoked license to practice occupational therapy in this State.
(c) It shall be is unlawful for any person, or for any a person or business entity, its or a person’s or business entity’s employees, agents agents, or representatives to use in connection with his, her or it’s the person’s or business entity’s name or business activity the words occupational therapist, occupational therapist registered, licensed occupational therapist, occupational therapy assistant, licensed occupational therapy assistant, assistant; the letters of OT, OT/L, OTR, OTR/L, OTA, COTA, COTA/L COTA/L; or any other words, letters, abbreviations abbreviations, or insignia indicating or implying directly or indirectly that occupational therapy services are rendered rendered, unless such the person or business entity is licensed under this chapter.
Section 8. Amend § 2008, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2008. Qualifications of applicant; report to Attorney General; judicial review.
(a) An applicant who is applying for licensure as an occupational therapist or occupational therapy assistant under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person the applicant meets all of the following qualifications:
(1) Has successfully completed the academic requirements of an educational program in occupational therapy recognized by the Board; and that the Board recognizes. The occupational therapy education program and occupational therapist assistant educational program must be accredited by the Accreditation Council for Occupational Therapy Education.
a. The occupational therapy educational program shall be accredited by the Accreditation Council for Occupational Therapy Education (ACOTE);
b. The occupational therapy assistant educational program shall be accredited by the Accreditation Council for Occupational Therapy Education (ACOTE);
(2) Has successfully completed a period of supervised field work experience arranged by the recognized educational institution where the person applicant has met the academic requirements, or by the nationally recognized professional association; association.
(3) Has achieved the passing score on the written standardized examination developed by the National Board for Certification in Occupational Therapy, Inc., or its successor; successor.
(4)a. Shall not have Has not been the recipient of any administrative penalties regarding that person's the applicant’s practice of occupational therapy, including but not limited to fines, fines; formal reprimands, reprimands; license suspensions or revocation (except revocation, except for license revocations for nonpayment of license renewal fees), fees; or probationary limitations and/or limitations.
b. has Has not entered into any "consent agreements" which contain conditions placed by a Board on that person's applicant’s professional conduct and practice, including any voluntary surrender of a license.
c. The Board may determine, after a hearing, whether such an administrative penalty included in paragraph (4)a. and (4)b. of this section is grounds to deny licensure; licensure.
(5) Shall not have any Has no impairment related to drugs, alcohol alcohol, or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake the practice of occupational therapy in a manner consistent with the safety of the public; public.
(6) Shall Does not have a criminal conviction record, nor record or pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of occupational therapy. Applicants who have criminal conviction records or pending criminal charges shall require request that the appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of occupational therapy. However, The Board may waive this paragraph (a)(6) of this section if, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(6),if quorum, it finds all of the following:
a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole parole, or serving any part of a suspended sentence sentence, and must be in substantial compliance with all court orders pertaining to fines, restitution restitution, and community service.
b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may must not be incarcerated, on work release, on probation, on parole parole, or serving any part of a suspended sentence sentence, and must be in substantial compliance with all court orders pertaining to fines, restitution restitution, and community service.
c. The applicant is capable of practicing occupational therapy in a competent and professional manner.
d. The granting of Granting the waiver will not endanger the public health, safety or welfare; safety, or welfare.
(7) Shall not have Has not been convicted of a felony sexual offense; offense.
(8)a. Has submitted, at the applicant's expense, fingerprints and other necessary information in order to obtain all of the following:
a. 1. A report of the applicant's entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information criminal history record relating to that person; applicant.
b. 2. A report of the applicant's entire federal criminal history record pursuant to under the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be is the intermediary for purposes of this section and the Board of Occupational Therapy Practice shall be is the screening point for the receipt of said the federal criminal history records; records.
c. b. An applicant may not be licensed to practice occupational therapy until the applicant's criminal history reports have been produced. An The Board may not license an applicant whose record shows a prior criminal conviction may not be licensed by the Board unless a waiver is granted pursuant to under paragraph (a)(6) of this section.
(b) Where If the Board has found finds to its satisfaction that an application applicant has been intentionally fraudulent, or that false information has been intentionally supplied, fraudulent or intentionally supplied false information, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such If the Board refuses or rejects an application and the applicant feels believes that the Board has acted without justification; justification, has imposed higher or different standards for that applicant than for other applicants or licensees; licensees, or has in some other manner contributed to or caused the failure of such the application, the applicant may appeal to the Superior Court.
(d) All individuals licensed to practice occupational therapy in this State shall be required to Licensees must be fingerprinted by the State Bureau of Identification, at the licensee's expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant's expense, fingerprints and other necessary information in order to obtain a criminal background check.
Section 9. Amend § 2009, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2009. Applicability of chapter.
Nothing in this chapter shall may be construed as preventing or restricting the practice, services services, or activities of any of the following:
(1) Any A person registered or licensed in this State by any other law from engaging in the profession or occupation for which that person is licensed; licensed.
(2) Any A person pursuing a course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program if such activities and services constitute a part of a supervised course of study and if such a the person is designated by a title which clearly indicates that person's status as a student or trainee; trainee.
(3) Any A person fulfilling the supervised field work experience requirements of this chapter, if such activities and services constitute the requirements for licensure; or licensure.
(4) Any A visiting occupational therapist who teaches temporarily at an accredited or approved educational program, or who lectures or instructs participants at seminars sanctioned by the Delaware Occupational Therapy Association.
Section 10. Amend § 2010, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2010. Foreign-trained Applicants.
In addition to the requirement requirements of § 2008 of this title, a foreign-trained applicant shall be is eligible for licensure as an occupational therapist or as an occupational therapy assistant after submitting to the Board satisfactory evidence of graduation from a school offering a program in occupational therapy or occupational therapy assistant which has been approved for the educational preparation of occupational therapists or occupational therapy assistants by the appropriate accrediting agency recognized by the National Board for Certification in Occupational Therapy, Inc., or its successor.
Section 11. Amend § 2011, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2011. Reciprocity.
Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present presents proof of current licensure in good standing in another state, the District of Columbia, or territory of the United States, whose standards for licensure are substantially similar to those of this State, States, and who meets all of the following criteria:
(1) The applicant's Has a license is in good standing as defined in § 2008(a)(4)-(6) of this title; and title.
(2) Has achieved the passing score on all parts of the written, standardized examination administered by the National Board for Certification in Occupational Therapy, Inc., or its successor.
Section 12. Amend § 2012, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2012. Temporary license. [Repealed.] Duty to report unprofessional conduct; inability to practice.
(a) A licensee has a duty to report to the Division information that the licensee reasonably believes indicates that the licensee or another licensee has engaged in or is engaging in conduct that constitute grounds for disciplinary action under this chapter. A licensee shall report to the Board within 30 days of the occurrence of any of the following:
(1) A partial or full removal of the licensee’s or another licensee’s hospital privileges based on adverse events, unprofessional conduct, or competency issues.
(2) A disciplinary action taken by any regulatory agency against against the licensee or another licensee.
(3) A reasonably-substantiated incident involving violence, threat of violence, abuse, or neglect by the licensee or another licensee toward another person.
(b)(1) A licensee is subject to temporary or permanent license restriction, suspension, or revocation if the licensee is unable to practice the occupation with reasonable skill or safety to patients due to any of the following circumstances:
a. Mental illness or mental incompetence.
b. Physical illness, including deterioration due to aging or loss of motor skills.
c. Excessive use or abuse of drugs or alcohol.
(2) A license may be permanently restricted, suspended, or revoked after a hearing under § 2006(a)(11) of this title.
(3) A license may be temporarily restricted, suspended, or revoked after a hearing under § 2006(a)(11) of this title or, if circumstances present an immediate danger to the public health, safety, or welfare, without a hearing and under the process established in § 2017(c) of this title.
Section 13. Amend § 2013, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2013. Fees.
(a) The amount to be charged for each fee imposed under this chapter shall must approximate and reasonably reflect all costs necessary to defray the Board’s expenses of the Board, as well as and the Division’s proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the Board.
(b) There shall be a A separate fee may be charged for each service or activity; activity, but no fee shall may be charged for a purpose not specified in this chapter.
(c) The application fee shall must not be combined with any other fee or charge.
(d) At the beginning of each licensure biennium, the Division of Professional Regulation, or any other state agency acting in its behalf, on the Division’s behalf shall compute, for each separate service or activity, the appropriate Board fees for the coming licensure biennium.
Section 14. Amend § 2014, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2014. Issuance and renewal of licenses.
(a) The Board shall issue a license to each applicant, applicant who meets the requirements of and pays the fee under this chapter for licensure as an occupational therapist or occupational therapy assistant and who pays the fee established under § 2013 of this title.
(b) Each license shall must be renewed biennially, in such a manner as is determined by the Division of Professional Regulation, and Division, upon payment of the appropriate fee and submission of a renewal form provided by the Division of Professional Regulation, Division, and proof that the licensee has met the continuing education requirements established by the Board.
(c) The Board, in its rules and regulations, shall determine the period of time within which a licensed occupational therapist or occupational therapy assistant licensee may still renew the occupational therapist's or occupational therapy assistant's license, notwithstanding the fact that such a license if the licensee has failed to renew on or before the renewal date.
(d) A licensee, upon written request, may be placed place the licensee’s license on inactive status. The renewal fee of the licensee shall to renew an inactive license must be prorated in accordance with the amount of time the licensee license was inactive. The licensee may reenter practice upon written notification to the Board of the intent to do so and completion of continuing education as required in by the Board's rules and regulations.
Section 15. Amend § 2015, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2015. Grounds for discipline.
(a) A practitioner licensed under this chapter shall be licensee is subject to disciplinary actions set forth in under § 2017 of this title, title if, after a hearing, the Board finds that the occupational therapist or occupational therapy assistant licensee has done any of the following:
(1) Has employed Employed or knowingly cooperated in fraud or material deception in order to acquire a license as an occupational therapist or occupational therapy assistant; has assistant, impersonated another person holding a license or registration, or allowed another person to use the practitioner's licensee’s license, or aided or abetted a person not licensed as an occupational therapist or occupational therapy assistant under this chapter to represent himself or herself the person as an occupational therapist or occupational therapy assistant; assistant.
(2) Has been Been convicted of a crime that is substantially related to the practice of occupational therapy; a therapy. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be is conclusive evidence therefor; of the conviction.
(3) Has excessively used or abused drugs either in the past 2 years or currently; excessive use or abuse of drugs shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs the practitioner's ability to perform the work of an occupational therapist or occupational therapy assistant; Excessively used or abused drugs or alcohol in the previous 2 years.
(4) Has engaged Engaged in an act of consumer fraud or deception; deception, engaged in the restraint of competition; competition, or participated in price-fixing activities; activities.
(5) Has violated Violated a lawful provision of this chapter, or any lawful chapter or a regulation established thereunder; under this chapter.
(6) Has had that practitioner's Had the licensee’s license, certification certification, or registration as an occupational therapist or occupational therapy assistant suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided however, that jurisdiction.
a. For paragraph (a)(6) of this section to apply, the underlying grounds for such the action in another jurisdiction have been must be presented to the Board by certified record, and the Board has determined must determine that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter.
b. Every person licensed as an occupational therapist or occupational therapy assistant in this State shall be A licensee is deemed to have given consent consented to the release of this the information under paragraph (a)(6)a. of this section by the Board of Occupational Therapy Practice or other comparable agencies agency in another jurisdiction and to waive waived all objections to the admissibility of previously adjudicated evidence of such the acts or offenses; on the record of the other jurisdiction.
(7) Has failed Failed to notify the Board that the practitioner's licensee’s license, certification certification, or registration as an occupational therapist or occupational therapy assistant in another state jurisdiction has been subject to discipline, or has been surrendered, suspended suspended, or revoked. A certified copy of the record of disciplinary action, surrender, suspension suspension, or revocation shall be is conclusive evidence thereof; thereof.
(8) While acting as a supervising occupational therapist, has failed to supervise and take reasonable steps to see that an occupational therapy assistants assistant and temporary licensees perform performs services responsibly, competently competently, and ethically, in accordance with rules and regulations established by that the Board established. Supervising A supervising occupational therapists shall be therapist is subject to disciplinary action for any acts or offenses which are an act or offense which is grounds for such disciplinary action when such acts or offenses are the act or offense is undertaken by the occupational therapy assistant or temporary licensee acting under the supervising occupational therapist's direction or control.
(b) Where a practitioner If a licensee fails to comply with the Board's request that the practitioner licensee attend a hearing, the Board may petition the Superior Court to order such the licensee’s attendance, and the said attendance. The Court or any judge assigned thereto shall have has the jurisdiction to issue such an order requiring the licensee to attend the hearing.
(c) Subject to this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice occupational therapy or to act as an occupational therapy assistant shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29].
Section 16. Amend § 2016, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2016. Complaints.
(a) All complaints shall be received and investigated by the Division of Professional Regulation The Division shall receive and investigate a complaint in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing issue a final written report at the conclusion of its investigation.
(b) When it is determined If the Board determines that an individual is engaging in the practice of occupational therapy or is using the title occupational therapist or occupational therapy assistant and is not licensed under the laws of this State this chapter, the Board shall issue a formal warning to the individual under this chapter. If the formal warning does not resolve the matter, the Board may apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with this chapter.
(c) Any complaints The Division shall investigate a complaint against a licensee involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation.
Section 17. Amend § 2017, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
§ 2017. Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 or more of the conditions or violations set forth in under § 2015 of this title applies to a practitioner regulated by this chapter licensee:
(1) Issue a letter of reprimand.
(2) Censure a practitioner.
(3) Place a practitioner the licensee on probationary status, status and require the practitioner licensee to do any of the following:
a. Report regularly to the Board upon the matters which are the basis of the probation; probation.
b. Limit all practice and professional activities to those areas prescribed by that the Board prescribes.
(4) Suspend any practitioner's the licensee’s license.
(5) Revoke any practitioner's the licensee’s license.
(6) Impose a monetary penalty not to exceed $500 for each violation.
(b) The Board may withdraw or reduce conditions of probation when if it finds that the deficiencies which required such action have been the probation are remedied.
(c) In the event of If a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety safety, or welfare, the Board may temporarily suspend the person's licensee’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee.
(1) An order temporarily suspending a license may must not be issued unless the person licensee or the person's licensee’s attorney received receives at least 24 hours' written or oral notice before the temporary suspension suspension, so that the person licensee or the person's licensee’s attorney may file a written response to the proposed suspension.
(2) The decision as to whether to issue the temporary order of suspension will must be decided on the written submissions.
(3) An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order order, unless the temporarily suspended person licensee requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, hearing, in which case the order of temporary suspension remains in effect until the hearing is convened and the Board renders a decision is rendered by the Board.
(4) A person licensee whose license has been temporarily suspended pursuant to under this section may request an expedited hearing. The Upon the licensee’s timely request, the Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license A request is timely if the licensee provides it to the Board within 5 calendar days from the date that the licensee received notice of the temporary suspension..
(d) As a condition to reinstatement of a suspended license, license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter.
(e) The Board shall permanently revoke the license to practice occupational therapy of a person licensee who is convicted of a felony sexual offense.
Section 18. Amend § 2018, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2018. Hearing procedures.
(a) If a complaint alleging violation of § 2015 of this title is filed with the Board pursuant to under § 8735 of Title 29, alleging violation of § 2015 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall must be given and the hearing must be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.
(b) All hearings shall be are informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board's decision shall must be in writing and shall include it’s the Board’s reasons for such the decision. The Board's decision shall must be mailed immediately to the practitioner licensee.
(c) Where the practitioner If the licensee is in disagreement with the Board’s action of the Board, the practitioner licensee may appeal the Board's decision to the Superior Court within 30 days of service, or of service of the Board’s decision or the postmarked date of the copy of the decision mailed to the practitioner licensee. Upon such appeal an appeal, the Court shall hear the evidence on the record. Stays shall be granted The Court may grant a stay in accordance with § 10144 of Title 29.
Section 19. Amend § 2019, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2019. Reinstatement of a suspended license; removal from probationary status; replacement of license.
(a) As a condition to reinstatement of a suspended license, license or removal from probationary status, the Board may reinstate such a license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the or probation.
(b) Applicants An applicant for reinstatement shall pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or or probation have been met. Proof The Board may also require that the applicant has met meet the continuing education requirements of this chapter may also be required, as appropriate.
(c) A new license to replace any a license lost, destroyed destroyed, or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance. Board, and upon payment of a fee to issue a replacement license.
Section 20. Amend § 2020, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2020. Penalty Penalties.
(a) A person not currently licensed under this chapter as an occupational therapist or occupational therapy assistant when guilty of engaging in the practice of occupational therapy, or using in connection with that person's name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the person is qualified to practice occupational therapy, such offender shall be guilty of a misdemeanor. It is unlawful for a person who is not licensed under this chapter to to any of the following:
(1) Engage in the practice of occupational therapy.
(2) Use in connection with that person’s name or otherwise assume or use any title or description that conveys or tends to convey the impression that the person is qualified to practice occupational therapy.
(b) Upon the first offense, that person shall be fined not less than $500 nor more than $1,000 for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense. A person who violates subsection (a) of this section is guilty of a misdemeanor and subject to the following penalties:
(1) For the first offense, a fine of not less than $500 nor more than $1,000 for each offense.
(2) For each subsequent offense, a fine of not less than $1,000 nor more than $2,000 for each offense.
(c) Superior Court shall have has jurisdiction over all violations of this chapter.
Section 21. Amend § 2021, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2021. Treatment or examination of minors.
(a) As used in this section:
(1) "Adult staff member" means an individual who is 18 years or older and is acting under the direction of the licensee, the licensee’s employer, or is otherwise licensed under this chapter.
(2) “Evaluation or treatment” includes dressing, bathing, or toileting that exposes a minor patient’s breast, genitalia, or rectum.
(3) "Minor" means an individual who is 15 years or younger.
(4) “Services” includes inpatient, outpatient, home, or school treatment.
(b) A minor patient’s parent, guardian guardian, or other caretaker, or an adult staff member, shall must be present when a person licensed to practice occupational therapy under this chapter licensee provides services, including inpatient, outpatient, home or school treatment, services to a minor patient who is disrobed or partially disrobed during evaluation or treatment involving, but not limited to, dressing, bathing, or toileting, that exposes the breasts, genitalia or rectum.
(c) When using If an adult staff member to observe observes the evaluation or treatment, the adult staff member shall must be of the same gender as the patient when practicable.
(d) The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the person licensed to practice occupational therapy without the presence of a third person individual providing consent to the minor patient’s treatment and only after the initial evaluation.
(b) When a minor patient's evaluation or treatment involves the female breasts, or female or male genitalia or rectum, a person licensed to practice occupational therapy under this chapter licensee shall provide notice to the person the individual providing consent to the minor patient’s treatment with notice of the rights under this section. The notice shall must be provided in written form or be conspicuously posted in a manner in which a minor patients and their patient and the parent, guardian or other caretaker individual providing consent to the minor patient’s treatment are made aware of the notice. In circumstances in which the posting or the provision of the written notice would may not convey the right to have a chaperone third person present, the person licensed to practice occupational therapy licensee shall use another means to ensure that the person understands the right minor patient and the individual providing consent to the minor patient’s treatment understand the rights under this section.
(c) For the purposes of this section, "minor" is defined as a person 15 years of age or younger, "adult staff member" is defined as a person 18 years of age or older who is acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter.
(d) The person licensed under this chapter A licensee that provides treatment to a minor patient pursuant to under this section shall, contemporaneously with such the treatment, note in the child's minor patient’s record the name of each person present when such the treatment is being provided.
Approved September 4, 2018