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NEW JERSEY REGISTER
VOLUME 35, NUMBER 9
MONDAY, MAY 5, 2003
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OCCUPATIONAL THERAPY ADVISORY COUNCIL


Proposed Readoption with Amendments: N.J.A.C. 13:44K

Proposed New Rule: N.J.A.C. 13:44K-8.5

Authorized By: Reni Erdos, Director, Division of Consumer Affairs.

Authority: N.J.S.A. 45:9-37.51 et seq. and 45:1-15.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2003-180.

Submit comments by July 4, 2003 to:

Laura Anderson, Executive Director

Occupational Therapy Advisory Council

124 Halsey Street

PO Box 45037

Newark, New Jersey 07101

The agency proposal follows:

Summary

The Director of the Division of Consumer Affairs (the Director), in consultation with the Occupational Therapy Advisory Council (the Council), is proposing to readopt N.J.A.C. 13:44K with amendments. These rules are scheduled to expire on April 20, 2003, pursuant to Executive Order No. 66(1978), N.J.S.A. 52:14B-5.1. Because this notice of readoption has been filed prior to April 20, 2003, the expiration date of the rules in Chapter 44K is extended by 180 days, pursuant to N.J.S.A. 52:14B-5.1c and will expire on October 17, 2003.

In compliance with the Executive Order, the Director, in consultation with the Council, undertook a thorough review of the existing provisions of N.J.A.C. 13:44K in order to delete unnecessary or unreasonable rules and to clarify existing provisions. The Director believes that the rules proposed for readoption, as amended, are necessary, reasonable, understandable and responsive to the purpose for which they were promulgated.

The following is a summary of the existing rules of Chapter 44K which the Director proposes to readopt, as well as a summary of the amendments to the rules which the Director is proposing as this time.

Subchapter 1 sets forth rules of general applicability. N.J.A.C. 13:44K- 1.1, which sets forth the purpose and scope of the rules contained in Chapter 44K, and N.J.A.C. 13:44K-1.2, which sets forth the definitions of various terms as they are used throughout Chapter 44K, are proposed to be readopted without change.

N.J.A.C. 13:44K-2.1, the only rule contained in Subchapter 2, which sets forth the licensure eligibility requirements for occupational therapists and occupational therapy assistants, is proposed to be readopted without change.

The rules in Subchapter 3 set forth the licensure procedure for occupational therapists and occupational therapy assistants. N.J.A.C. 13:44K-3.1, which sets forth the procedure applicable to occupational therapists, and N.J.A.C. 13:44K-3.2, which sets forth the procedure applicable to occupational therapy assistants, currently require applicants to submit as part of their applications, a "Verification of Certification" letter from the National Board for Certification in Occupational Therapy (NBCOT), indicating that the applicant has successfully completed the licensure examination required pursuant to N.J.A.C. 13:44K-2.1. Applicants requesting a "Verification of Certification" letter are required to pay a $30.00 fee, which is imposed and collected by NBCOT. The Director is proposing to amend N.J.A.C. 13:44K-3.1 and 3.2 to eliminate the "Verification of Certification" letter requirement for applicants who will be taking the licensure examination beginning in January 2003. The proposed amendments will require applicants taking the examination on or after January 1, 2003 to have their official examination scores sent by NBCOT to the Council. The fee charged and collected by NBCOT for an official score transfer request, which provides the Council with the same information as the "Verification of Certification" letter, is $20.00. Applicants for licensure, therefore, will receive the benefit of a $10.00 cost savings as a result of the proposed amendments. The Director notes that because the costs for the "Verification of Certification" letter and the score transfer request are imposed and collected by NBCOT, the proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2 will not have any impact upon the Council's operating revenues or expenses. In addition, the Director believes that the score transfer request will streamline the application process because NBCOT can send out the score transfer requests on a more expedited basis than the official "Verification of Certification" letter.

Based on the foregoing, the Director is proposing that N.J.A.C. 13:44K- 3.1(a)1iv and 3.2(a)1iv be amended to provide that applicants who have taken the licensure examination prior to January 1, 2003, must continue to remit a "Verification of Certification" letter as part of their completed licensure application. The Director is proposing new subparagraphs at N.J.A.C. 13:44K-3.1(a)1v and 3.2(a)1v which provide that applicants who have taken the certification examination on or after January 1, 2003 must submit a score transfer from NBCOT as part of their completed applications. Existing subparagraphs (a)1v through vii of N.J.A.C. 13:44K-3.1 will be recodified as subparagraphs a(1)vi through viii without change, and existing subparagraphs (a)1v through viii of N.J.A.C. 13:44K-3.2 will be recodified as subsections (a)1vi through ix without change.

The rules in Subchapter 4 establish requirements for applicants for, and holders of, temporary licenses. The Director is proposing that N.J.A.C. 13:44K-4.1, which sets forth what information and documentation an applicant for temporary licensure must submit, be readopted without change. The Director is proposing several amendments to N.J.A.C. 13:44K-4.2, which concerns the expiration of temporary licenses. N.J.A.C. 13:44K-4.2(a) currently provides that a temporary license shall expire if a candidate does not take the first examination available subsequent to the issuance of the license. The Director is proposing to amend subsection (a) to provide that the holder of a temporary license must take the licensure examination within 90 days of the date of issuance of the temporary license. Failure to take the examination within 90 days will constitute a failure of the examination. The Director is proposing this amendment because NBCOT, which administers the licensure examination that all candidates must take, will cease offering the examination on a quarterly basis and will now provide on-demand testing. Therefore, subsection (a), as currently written, could be interpreted to require an applicant to take the licensure examination immediately upon issuance of the temporary license. The proposed amendments also provide that after failing to take the licensure examination, the applicant may apply for renewal of the temporary license. The temporary license holder must then take the examination within 180 days of the issuance of the renewal. The temporary license holder is provided 180 days within which to retake the examination under the renewal because NBCOT requires a candidate to wait a minimum of 90 days prior to retaking the examination. The Director has determined that providing the temporary license holder with an extra 90 days to retake the examination once the renewal has been issued is necessary in order to ensure that the candidate has sufficient time to complete his or her preparation for the reexamination.

The Director is also proposing to amend subsection (b) of N.J.A.C. 13:44K- 4.2, which currently provides that a temporary license expires automatically upon the holder being notified of a failure of the examination, to clarify that such individuals may apply to the Council for renewal of the temporary license. Applicants for renewal must follow the procedures outlined in the proposed amendments to N.J.A.C. 13:44K-4.2(c). The proposed amendments to subsection (c) provide that a candidate seeking renewal of a temporary license must submit a written request for renewal to the Council certifying that the candidate has requested a "Confirmation of Examination Registration and Eligibility to Examine Notice" from NBCOT. This eligibility notice must be mailed to the Council directly from NBCOT. The candidate must also submit a renewal fee. The Director is proposing that the fee schedule set forth at N.J.A.C. 13:44K- 11.1 be amended at this time to include a specific fee for the renewal of temporary occupational therapist and occupational therapy assistant licenses. The fee for renewal of either license is $50.00.

The Director is proposing additional amendments to N.J.A.C. 13:44K-4.2 in order to clarify for licensees under what circumstances they must surrender their temporary licenses. Proposed new subsection (d) of N.J.A.C. 13:44K-4.2 provides that a temporary license that has been renewed pursuant to subsection (c) will automatically expire upon the holder receiving notification from NBCOT that he or she has failed the examination for the second time, consistent with the requirements of N.J.S.A. 45:9-37.67. The candidate must immediately cease and desist from engaging in the practice of occupational therapy and must surrender the temporary license to the Council upon such notification. In addition, proposed new subsection (e) provides that a temporary license shall expire within 180 days of a candidate's receipt of notification from NBCOT that he or she has passed the licensure examination. The temporary licensee is required to cease and desist practicing occupational therapy and must surrender the temporary license within 180 days of such notification. Within 180 days of receiving the NBCOT notification, the candidate must submit to the Council all documentation required for the completion of his or her permanent licensure application. Proposed new subsection (f) provides that a temporary license issued pursuant to N.J.A.C. 13:44K-4.1(b) to an applicant for a permanent license who has completed the academic and administrative requirements necessary for an occupational therapy degree or certificate, but who has not had the degree or certificate conferred, will be valid for 180 days from the date of issuance. The temporary licensee must cease practicing under the temporary license no later than 180 days after the license is issued, and must submit his or her official transcript to the Council in order to complete his or her permanent licensure application. The temporary license must be surrendered to the Council within 180 days of the date of issuance. The Director is proposing new subsections (e) and (f) in order to ensure that candidates do not practice indefinitely with a temporary license, thereby circumventing the permanent licensure requirements of the Act.

The Director is proposing that the following rules contained in Subchapter 5, which establish the scope of occupational therapy practice, be readopted without change: N.J.A.C. 13:44K-5.1, which defines the scope of practice for licensed occupational therapists; N.J.A.C. 13:44K-5.2, which defines the scope of practice for licensed occupational therapy assistants; and N.J.A.C. 13:44K-5.3, which establishes standards for delegation of occupational therapy services to occupational therapy assistants, temporary licensed occupational therapists, temporary licensed occupational therapy assistants, and occupational therapy students fulfilling the required fieldwork component of their educational training.

The Director is proposing that the rules contained in Subchapter 6, which establish requirements for the supervision of occupational therapy assistants, and the rules in Subchapter 7, which establish requirements for the supervision of temporary licensed occupational therapists, and temporary licensed occupational therapy assistants, be readopted without change, with the exception of a typographical correction in N.J.A.C. 13:44K-7.3(c). N.J.A.C. 13:44K-6.1 and 7.1 establish requirements for the supervision of licensed occupational therapy assistants, and temporary licensed occupational therapists and assistants, respectively. N.J.A.C. 13:44K-6.2 and 7.2 set forth the responsibilities of the designated supervisor concerning the supervision of occupational therapy assistants and temporary licensed personnel. N.J.A.C. 13:44K-6.3 and 7.3 delineate the professional responsibilities of occupational therapy assistants and temporary licensed personnel. N.J.A.C. 13:44K-6.4 sets forth the requirements that an occupational therapist must satisfy in order to properly delegate his or her supervisory responsibilities.

The rules in Subchapter 8 set forth the general obligations of all licensees. N.J.A.C. 13:44K-8.1(a) currently provides that a licensee must notify the Council, within 30 days, by certified mail, of any change in address which is on file with the Council. The Director is proposing that subsection (a) be amended to delete the requirement that the notification be made by certified mail, in order to allow licensees greater flexibility in satisfying this notification requirement. N.J.A.C. 13:44K-8.1(b), which concerns the service of administrative complaints, and N.J.A.C. 13:44K-8.1(c), which concerns reporting of disciplinary action in other jurisdictions, are proposed to be readopted without change.

N.J.A.C. 13:44K-8.2, which concerns notification to the Council of a licensee's name change or a professional practice name change, is proposed to be readopted with a technical change in subsection (b). N.J.A.C. 13:44K-8.3, which concerns the unlicensed practice of occupational therapy services, and N.J.A.C. 13:44K-8.4, which delineates conduct that will constitute the aiding or abetting of unlicensed practice, are proposed to be readopted without change.

The Director is also proposing a new rule at N.J.A.C. 13:44K-8.5 in order to codify established standards in the field of occupational therapy prohibiting sexual contact with clients. The Director intends to clarify conduct which shall be deemed professional misconduct pursuant to N.J.S.A. 45:1-21(e). This sexual misconduct rule is substantially similar to the sexual misconduct rules that have been already adopted by other health care professional boards in the State, such as medical examiners, physical therapists, chiropractors, and respiratory care professionals. This rule is in compliance with the Division of Consumer Affairs' initiative to ensure that Boards and Committees promulgate regulatory guidance to their licensees on this topic. Subsection (a) provides definitions for terms used in the new rule. Subsection (b) prohibits sexual contact between an occupational therapy licensee and a client with whom he or she has an ongoing client-therapist relationship. The relationship is considered ongoing unless actively terminated by a prior written notice to the client and documentation in the client record, or unless more than six months have elapsed since the last occupational therapy service was rendered. The Director believes that a formal termination of the occupational therapy relationship is the minimum acceptable action necessary prior to engaging in a personal intimate relationship.

The proposed new rule includes an exemption which allows a licensee to provide occupational therapy services to a spouse or to an individual with whom he or she has a long-term committed relationship. For the purposes of this rule, the Director has defined a "long-term committed relationship" as a relationship that continues for more than a six-month period. The proposed new rule prohibits licensees from soliciting sexual contact with a client and from engaging in sexual harassment of co-workers, employees, students and supervisees as well as clients, in any setting, whether professional or outside the professional setting. Additionally, licensees may not engage in discussion of intimate sexual matters with their clients unless those discussions are germane to the professional relationship. Activities such as voyeurism and exhibitionism which serve the licensee's or the client's prurient interests, or which are for the licensee's or the client's sexual arousal or gratification, or any actions which result in sexual abuse of either party, are prohibited. In addition, the proposed new rule provides that licensees are required to provide adequate privacy to clients while occupational therapy services are being provided.

The rules in Subchapter 9 establish business standards and professional conduct requirements for all licensees. N.J.A.C. 13:44K-9.1, which requires all licensed occupational therapists and occupational therapy assistants to make their licenses available to clients upon request, and to display certain notices in any office or facility where they provide services, is proposed to be readopted with a technical change at subsection (a). N.J.A.C. 13:44K-9.2, which sets forth the requirements for any financial arrangements to be entered into between licensees and clients and/or third party payors, is proposed to be readopted without change. N.J.A.C. 13:44K-9.3, which requires an occupational therapist or an occupational therapy assistant to advise a client of the nature and purpose of the occupational therapy services he or she will be providing, as well as the limits and obligations associated with such services, is proposed to be readopted without change. The Director is also proposing that N.J.A.C. 13:44K-9.4, which sets forth the factors that the Council may consider in determining whether a fee charged by a licensee for his or her services is excessive, and N.J.A.C. 13:44K-9.5, which sets forth requirements for the termination of occupational therapy services, be readopted without change.

The rules in Subchapter 10 concern the maintenance and release of client records. N.J.A.C. 13:44K-10.1, which sets forth the requirements for the preparation and maintenance of such records, N.J.A.C. 13:44K-10.2, which sets forth the requirements applicable to such records if they are maintained on a computer, and N.J.A.C. 13:44K-10.3, which sets forth requirements for the release of such records, are proposed to be readopted without change.

Subchapter 11 establishes the schedule of fees that will be charged by the Director. As noted above, in light of the proposed amendments to N.J.A.C. 13:44K-4.2, concerning the renewal of temporary licenses, N.J.A.C. 13:44K- 11.1 is proposed to be amended to include renewal fees for temporary licenses issued to occupational therapists and occupational therapy assistants. N.J.A.C. 13:44K-11.1(a)8 and 9 provide for a $50.00 fee to be charged for renewal of the temporary occupational therapist and occupational therapy assistant license. Existing paragraphs (a)8 through 11 are proposed to be recodified as (a)10 through 13, without change.

The Director has provided a 60-day comment period for this notice of proposal; therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Director believes that the existing rules, which have been promulgated over the past five years, have protected the health, safety and welfare of the citizens of New Jersey by identifying those individuals who are qualified and legally authorized to render occupational therapy services. These rules establish the requisite standards of licensure in the State and positively affect the regulated community by clarifying the varied aspects of occupational therapy practice for the benefit of all licensed occupational therapists, licensed occupational therapists, and temporarily licensed occupational therapists and occupational therapy assistants, and all applicants for licensure. The readoption of N.J.A.C. 13:44K is essential in order for the Director, in consultation with the Council, to continue to regulate the practice of occupational therapy in order to identify those individuals who are qualified to engage in the practice, and to ensure that every licensee is aware of the procedures involved in the issuance of a license.

The readoption of N.J.A.C. 13:44K continues the accepted practice standards for licensed occupational therapists and occupational therapy assistants, and temporarily licensed occupational therapists and occupational therapy assistants established by the Director, and by so doing, provides licensees and applicants for licensure with a clear and comprehensive set of rules to guide them in their professional work. Applicants for licensure will benefit by having a set of rules which govern the manner in which they may qualify for licensure. The Director also believes that licensees will benefit from the proposed readoption as a result of the uniform standards that will be applied throughout the field of occupational therapy.

The Director believes that the proposed readoption will have a positive impact upon the general public by continuing to safeguard the public health and safety by ensuring the maintenance of appropriate practice standards, which will enable licensed occupational therapists and occupational therapy assistants to provide the highest quality service. The Director also believes that the proposed amendments to Chapter 44K will positively impact the regulated community and consumers.

The proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2 may have a positive impact upon individuals applying for licensure as occupational therapists and occupational therapy assistants, to the extent that applicants who take the licensure examination beginning in January 2003 will no longer be required to submit a "Verification of Certification" letter from NBCOT in order to confirm that they have successfully passed the examination. Rather, such applicants will now be able to request a score transfer from NBCOT which is less expensive for the applicant and which may be processed on a more expedited basis by NBCOT. The proposed amendments may, therefore, result in the processing of licensure applications by the Council on a more expedited basis.

The proposed amendments to N.J.A.C. 13:44K-4.2 may have a positive impact upon temporary licensees and upon individuals applying for temporary licensure. The proposed amendments to N.J.A.C. 13:44K-4.2(a) and (b) clarify for such individuals that they may renew their temporary licenses if the temporary license has expired because they did not take the examination within 90 days of being issued a temporary license, or if they failed the examination. The proposed amendments to N.J.A.C. 13:44K-4.2(c) will also have a positive impact upon such individuals by clarifying what documentation must be submitted with the renewal application. In addition, the Director believes that the proposed amendments to N.J.A.C. 13:44K-4.2(d), (e) and (f) will clarify for licensees the circumstances under which they may no longer engage in the practice of occupational therapy and when the surrender of the temporary license is required.

The proposed amendment to N.J.A.C. 13:44K-8.1, which will no longer require licensees to utilize certified mail in order to notify the Council of a change of address, may positively impact licensees by lessening the administrative burden placed upon them under the existing rule. Licensees will now be able to utilize a variety of methods to notify the Council of an address change.

The Director believes that proposed new rule N.J.A.C. 13:44K-8.5, which requires licensed occupational therapists, licensed occupational therapy assistants, and temporary licensed personnel to comply with prohibitions concerning sexual contact, will have a positive impact upon the general public by increasing confidence in the occupational therapy profession and enhancing the quality of occupational therapy services by setting forth parameters of appropriate conduct. The Director believes that the proposed new rule will also provide needed protection to clients, employees and co-workers of licensed occupational therapists, occupational therapy assistants andtemporary licensed occupational therapists and occupational therapy assistants from sexual harassment and sexual contact. Clients will be able to receive occupational therapy services without fear of unwanted sexual contact or harassment. In addition, employees and co-workers will be granted workplace protection for unwanted advances and harassment, creating a safer and more productive workplace environment.

Economic Impact

The Director anticipates that the rules proposed for readoption with amendments will not impose any new or additional significant costs upon applicants for licensure, licensees or consumers. The proposed readoption of the existing rules will continue the economic impact that the rules have had on such persons for the past five years. Subchapter 2 will continue to have an economic impact upon applicants for licensure to the extent that the requirements of N.J.A.C. 13:44K-2.1 may cause such individuals to incur costs associated with obtaining the requisite education to qualify for licensure.

The readoption of the rules in Subchapter 3 may also have an economic impact upon applicants for licensure to the extent that the existing requirements of N.J.A.C. 13:44K-3.1 and 3.2 may cause such individuals to incur administrative costs associated with submitting the documentation required in the rules. The proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2, however, may have a positive economic impact upon applicants for licensure to the extent that applicants who take the licensure examination on or after January 1, 2003 will no longer be required to submit a "Verification of Certification" letter, for which NBCOT charges and collects $30.00, in order to confirm their examination results. Rather, applicants will now be allowed to confirm their examination results by requesting a score transfer from NBCOT to the Council, at the $20.00 cost imposed and collected by NBCOT, thereby saving each applicant $10.00. Because the costs for the "Verification of Certification" letter and the score transfer request are imposed and collected by NBCOT, the proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2 will not have any impact upon the Council's operating revenues or expenses.

In addition, the proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2 authorizing score transfers will allow the Council to receive examination results on a more expedited basis, which may result in the processing of applications and the issuance of licenses on a more expedited basis. Applicants, therefore, could be further impacted by the proposed amendments to the extent that they may become licensed and are able to obtain employment sooner than would previously have been the case. Those applicants who took the licensure examination before January 1, 2003 will continue to incur the current expense associated with the submission of the "Verification of Certification" letter.

The readoption of the rules in Subchapter 4 will continue to have an economic impact upon applicants for, and holders of, temporary licenses. N.J.A.C. 13:44K-4.1 may cause applicants for temporary licensure to incur costs associated with submitting the documentation required for licensure as set forth in the rule. In addition, the proposed amendments to N.J.A.C. 13:44K- 4.2 may have an economic impact upon temporary licensees who seek renewal of their licenses pursuant to N.J.A.C. 13:44K-4.2(c), to the extent that such individuals will incur administrative costs associated with submitting the written request for renewal to the Council, as well as the request to NBCOT to retake the licensure examination. In addition, such individuals must remit the renewal fee set forth at N.J.A.C. 13:44K-11.1 in order for their renewal applications to be processed. The proposed amendments to N.J.A.C. 13:44K- 4.2(d) and (e) may also have an economic impact upon temporary licensees to the extent that a licensee who fails the licensure examination for a second time, or a licensee who passes the examination, must cease and desist engaging in the practice of occupational therapy under his or her temporary license. Similarly, applicants granted a temporary license pursuant to N.J.A.C. 13:44K-4.1(b) may experience an economic impact as a result of proposed subsection (f), to the extent that such applicants must cease and desist practicing occupational therapy within 180 days of the issuance of the temporary license. Temporary licensees who pass the examination, or who have had their academic degree or certificate conferred by their educational institution, will also incur the added cost associated with submitting the documentation required to process their applications for permanent licensure.

The rules proposed for readoption in Subchapter 8 may also have an economic impact upon licensed occupational therapists and occupational therapy assistants. The proposed amendment to N.J.A.C. 13:44K-8.1, which will now provide that a licensee may notify the Council of a change of address by any method, may have an economic impact upon licensees to the extent that licensees will no longer be required to incur the costs associated with sending the address change by certified mail. The proposed readoption of N.J.A.C. 13:44K-8.2, which requires notification of a licensee's name change or professional practice name change, however, may continue to have an economic impact upon licensees to the extent that licensees must continue to forward to the Council, by certified mail, notifications of such changes. N.J.A.C. 13:44K-8.2(b) may also have an economic impact upon licensees because licensees must remit payment of the fees specified in N.J.A.C. 13:44K-11.1 before the Council may issue a new license to licensee who has changed his or her name.

The Director does not believe that proposed new rule N.J.A.C. 13:44K-8.5 will have any economic impact upon the regulated community or the public. The proposed new rule merely codifies a standard of behavior which prohibits a licensee from engaging in sexual conduct with a client. The proposed new rule may have an economic impact upon licensees who fail to abide by the proposed standards when subjected to disciplinary action by the Director, including the assessment of penalties.

The rules in Subchapters 9 and 10 will continue to have an economic impact upon licensees and the consumers they serve. N.J.A.C. 13:44K-9.1 may have an impact upon licensees who provide services in more than one practice location. If each facility in which the licensee practices requires the licensee to permanently post his or her license in that facility, the licensee will be obligated to obtain a duplicate license for each facility in which he or she practices. In order to obtain a duplicate license, a licensee must pay the fee set forth in N.J.A.C. 13:44K-11.1. Licensees may also incur administrative expenses as a result of the proposed readoption of subsection (b), which requires them to obtain and post notices regarding their services and fees.

In addition, the proposed readoption of N.J.A.C. 13:44K-9.2 may also have an economic impact upon licensees, to the extent that subsection (a) limits the amount that may be charged because the rule requires licensees to charge fees that are both reasonable and commensurate with the status and experience of an occupational therapist offering like services in the same geographic area. Moreover, N.J.A.C. 13:44K-9.2(c) may also have an economic impact upon licensees and consumers because the subsection prohibits a licensee from charging a client or the client's third party payor a fee for preparing insurance claim forms or for occupational therapy services not documented in the client record. Additionally, a licensee may not charge a fee for unkept appointments or collect interest on unpaid accounts, unless the client has been notified in writing of these policies prior to receiving occupational therapy treatment. Subsection (d) of N.J.A.C. 13:44K-9.2 may cause a licensee to incur the economic costs associated with having to produce and maintain a current list of fees for standard services he or she provides. In addition, the proposed readoption of N.J.A.C. 13:44K-9.5, regarding termination of services, may have an economic impact upon licensees, to the extent that licensees must assist clients in obtaining alternate services when the licensee is unable to provide continued professional services.

The proposed readoption of N.J.A.C. 13:44K-10.1, which requires a licensee to keep an accurate and contemporaneous record of services provided to clients, may cause licensees to incur administrative costs associated with creating and maintaining a client record system. Specifically, subsection (d), which requires a licensee to retain client records for at least seven years for adult clients, and until a client who is a minor at the last patient visit reaches the age of 25, may cause licensees to incur costs associated with the proper storage of such records for the required period of time. Moreover, the proposed readoption of N.J.A.C. 13:44K-10.2, which imposes various requirements upon licensees who maintain a client record solely on a computer, may impose additional costs upon licensees who maintain their records in this manner, such as the costs associated with upgrading existing computer programs, or purchasing new programs.

The proposed readoption of N.J.A.C. 13:44K-10.3, concerning release of client records, may also have an impact upon licensees and consumers, to the extent that licensees may charge a fee for the reproduction of a client record, for the compilation of a summary of the client record, or for the creation of a report regarding the client's treatment.

The Director believes that any economic impact that may be borne by licensees as a result of the proposed readoption with amendments is outweighed by the need to protect the health, safety and welfare of consumers seeking occupational therapy services in the State.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments are governed by N.J.S.A. 45:9-37.51 et seq., and are not subject to any Federal requirements or standards.

Jobs Impact

The rules proposed for readoption with amendments will enable the Director, in consultation with the Council, to continue to evaluate the qualifications of all applicants for licensure to ensure that only qualified persons are eligible to provide occupational therapy services in the State. In addition, the rules proposed for readoption with amendments will continue to provide the Director with a mechanism to limit licensure to those individuals that adhere to appropriate professional practice standards. The rules proposed for readoption with amendments may have an impact upon jobs in the State, to the extent that applicants for licensure, licensed occupational therapists and occupational therapy assistants, and temporary licensed occupational therapists and occupational therapy assistants fail to comply with the requirements established in N.J.A.C. 13:44K. The Director, however, believes that any impact upon the number of jobs in the State resulting from the rules proposed for readoption with amendments will be minimal, and that such impact is outweighed by the health and safety benefit to consumers associated with ensuring that only the most qualified individuals are permitted to render occupational therapy services.

Agriculture Industry Impact

The Director does not anticipate that the rules proposed for readoption with amendments will have any impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires the Director to provide a description of the types and an estimate of the number of small businesses to which the proposed readoption with amendments will apply. Currently, the Director licenses approximately 3,000 occupational therapists, 500 occupational therapy assistants and 100 temporary licensed occupational therapists and occupational therapy assistants. If such individuals are deemed "small businesses," within the meaning of the Act, then the following analysis applies.

The Act requires the Director to set forth the reporting, recordkeeping and other compliance requirements of the rules proposed for readoption with amendments, including the kinds of professional services likely to be needed to comply with these requirements. The Act further requires the Director to estimate the initial and annual compliance costs of the proposed readoption with amendments, to outline the manner in which it has designed the proposed readoption with amendments to minimize any adverse economic impact upon small businesses, and to set forth whether the proposed readoption with amendments establish differing compliance requirements for small businesses.

The rules proposed for readoption with amendments will continue to impose reporting, recordkeeping and compliance requirements upon applicants for licensure, licensed occupational therapists and occupational therapy assistants, and temporary licensed occupational therapists and occupational therapy assistants.

Subchapter 2 will continue to impose various compliance requirements upon applicants for licensure. Specifically, N.J.A.C. 13:44K-2.1(a) requires an applicant for licensure as an occupational therapist to be at least 18 years of age and to be of good moral character. An applicant must also have obtained a bachelor's degree or its equivalent in occupational therapy, or if the applicant has a bachelor's degree or its equivalent in any other field, he or she must also have completed the academic requirements of an educational program in occupational therapy. N.J.A.C. 13:44K-2.1(a) also requires an applicant for an occupational therapy license to have completed 24 weeks of supervised fieldwork experience and have successfully completed the certification examination administered by NBCOT. N.J.A.C. 13:44K-2.1(b) requires an applicant for licensure as an occupational therapy assistant to be at least 18 years of age and to be of good moral character. An applicant must also have successfully completed an associate's degree or its equivalent in occupational therapy, or if the applicant has completed an associate's degree or its equivalent in any other field, he or she must also have satisfied the academic requirements of an occupational therapy assistant program. Applicants for an occupational therapy assistant's license must also have completed at least 12 weeks of supervised fieldwork experience and must have successfully completed the certification examination administered by NBCOT.

The existing requirements outlined in Subchapter 3 will continue to impose compliance requirements upon applicants for licensure, as will the proposed amendments to N.J.A.C. 13:44K-3.1 and 3.2. The existing provisions of N.J.A.C. 13:44K-3.1(a) and 3.2(a) continue to require applicants for an occupational therapist license and an occupational therapist assistant license to submit to the Council documentation of the applicant's education, including official transcripts, and documentation indicating that the applicant has completed the required fieldwork experience. All applicants must also submit two certificates of good moral character and a verification from any state in which the applicant has ever been licensed to engage in the practice of occupational therapy. Applicants for licensure as an occupational therapy assistant must also submit verification of supervision from all their current employers. If the applicant is not currently employed, the supervision form must be submitted to the Council before employment commences. If any of the documentation submitted by an applicant refers to the applicant by a different name, the applicant must also submit a certified verification of name change. All applicants must also submit an application fee and a photo of the applicant, certified by a Notary Public and signed by the applicant.

The proposed amendments to N.J.A.C. 13:44K-3.1(a)1v and 3.2(a)1v will require an applicant for licensure taking the certification examination on or after January 1, 2003, to submit a score transfer from NBCOT, instead of a verification letter, indicating that the applicant has successfully completed the certification examination. Applicants taking the licensure examination prior to January 1, 2003, however, must continue to submit the verification letter as part of their application for licensure.

The existing rules in Subchapter 4 and the proposed amendments to those rules will impose compliance requirements upon applicants for, and holders of, temporary licenses. N.J.A.C. 13:44K-4.1 requires all applicants for a temporary license to submit to the Council documentation of the applicant's education, including official transcripts, and documentation indicating that the applicant has completed the required fieldwork experience. An applicant must also submit a letter from NBCOT, indicating that the applicant is eligible to take the licensure examination. All applicants must also submit the following: two certificates of good moral character; a verification from any state in which the applicant has ever been licensed to engage in the practice of occupational therapy; a verification of supervision from all current employers; an application fee; and a photo of the applicant, certified by a Notary Public and signed by the applicant. If any of the documentation submitted by the applicant refers to the applicant by a different name, the applicant must also submit a certified verification of name change.

The proposed amendments to N.J.A.C. 13:44K-4.2 also impose various compliance requirements upon applicants for temporary licensure. N.J.A.C. 13:44K-4.2(a) and (b) provide that the holder of a temporary license who does not take the examination within 90 days of the issuance of the temporary license, or who fails the licensure examination for the first time, may apply to the Council for renewal of the temporary license. N.J.A.C. 13:44K-4.2(c) requires an applicant seeking renewal of his or her temporary license to submit a written request to the Council certifying that he or she has requested registration for another examination from NBCOT. The notice must be sent to the Council directly from NBCOT. The candidate must also submit the renewal fee set forth in N.J.A.C. 13:44K-11.1, as part of his or her request for temporary license renewal. In addition, N.J.A.C. 13:44K-4.2(d) requires the holder of a temporary license, upon notification from NBCOT that the applicant has failed the licensure examination for the second time, to cease and desist from practicing occupational therapy and to surrender his or her temporary license to the Council. Subsection (e) of N.J.A.C. 13:44K-4.2 also requires a temporary license holder who has been notified by NBCOT of his or her passage of the licensure examination to cease practicing occupational therapy under the temporary license and to surrender the temporary license to the Council within 180 days of such notification. The candidate must submit all documentation required for completion of his or her permanent licensure application as provided in N.J.A.C. 13:44K-2.1. Proposed subsection (f) requires an applicant who has been granted a temporary license pursuant to N.J.A.C. 13:44K-4.1(b) to submit his or her official transcript and cease and desist from providing occupational therapy services within 180 days of the date of issuance of the temporary license.

The rules in Subchapter 5, which are proposed to be readopted without change, will continue to impose recordkeeping and compliance requirements upon licensed occupational therapists and licensed occupational therapy assistants. N.J.A.C. 13:44K-5.1 provides that the scope of practice for all licensed occupational therapists includes the provision of direct, indirect or consultative services to a client, the administration of standardized and non- standardized assessments, the interpretation of such assessment to determine the need for an appropriate intervention plan for the client, the development and utilization of activities for the client, the design and fabrication of adaptive equipment, prosthetics and/or orthotic devices, consultation concerning adaptation of physical environments, as well as the utilization of physical modalities. In addition, N.J.A.C. 13:44K-5.1(a)3 requires an occupational therapist to develop an intervention plan for all clients.

N.J.A.C. 13:44K-5.2 provides that the scope of practice for all licensed occupational therapy assistants, working under the supervision of a licensed occupational therapist, includes the provision of direct, indirect or consultative services to a client, the administration of standardized and non- standardized assessments, assisting in the development and implementation of an intervention plan, the development and utilization of activities for the client, the design and fabrication of adaptive equipment, consultation concerning adaptation of physical environments, and the utilization of physical modalities.

N.J.A.C. 13:44K-5.3 authorizes a licensed occupational therapist to delegate selected occupational therapy services to occupational therapy assistants, temporary licensed occupational therapists, temporary licensed occupational therapy assistants, and occupational therapy students fulfilling the required fieldwork component of their educational training. N.J.A.C. 13:44K-5.3(b) prohibits delegation of occupational therapy services to any person who has not been adequately prepared by verified training and education. Subsection (b) further prohibits the delegation of occupational therapy services if the task requires specialized skill and an understanding of occupational therapy principles that are required to recognize and manage any complications which may result in harm to the client. N.J.A.C. 13:44K-5.3(c) requires a licensed occupational therapist to be responsible for proper supervision of all persons to whom he or she has delegated occupational therapy services. N.J.A.C. 13:44K-5.3(c) requires an occupational therapist to determine the degree of supervision required, based on an evaluation of the condition of the client, the education, skill and training of the person to whom the delegation is made, and the nature of the task being delegated. N.J.A.C. 13:44K-5.3(d) requires the supervising occupational therapist to retain responsibility for all occupational therapy care of the client when a delegation of tasks has occurred.

The rules in Subchapter 6 and Subchapter 7, which are proposed to be readopted without change, with the exception of a typographical correction in N.J.A.C. 13:44K-7.3, will continue to impose the following recordkeeping requirements upon occupational therapists and the occupational therapy assistants and temporary licensees they supervise: N.J.A.C. 13:44K-6.2(h) and 7.2(e) require an occupational therapist to maintain a plan of supervision for each occupational therapy assistant and temporary licensed occupational therapist or assistant he or she supervises, which must include evidence of ongoing supervision of each licensee for whom the occupational therapist acts as supervisor; and N.J.A.C. 13:44K-6.3 and 7.3 require all occupational therapy assistants and temporary licensed occupational therapists and assistants to maintain a record of supervision which must include the name and license number of his or her supervisor, the date when the licensee received supervision and the type of supervision that was provided.

The rules in Subchapters 6 and 7 will also continue to impose various compliance requirements upon such licensees. N.J.A.C. 13:44K-6.1(a) and 7.1(a) require a licensed occupational therapy assistant and a temporary licensed occupational therapist or assistant, respectively, to work only under the supervision of a licensed occupational therapist. N.J.A.C. 13:44K-6.1(b) and 7.1(b) require the supervising occupational therapist to retain responsibility at all times for the occupational therapy care of the client being treated by the occupational therapy assistant or by the temporary licensed personnel. N.J.A.C. 13:44K-6.1(c) and 7.1(c) require that in the event of a change of the supervising occupational therapist, the subsequent supervisor will become the designated supervisor and must assume responsibility for the ongoing supervision of any occupational therapy assistants and the temporary licensed personnel.

N.J.A.C. 13:44K-6.2(a) and 7.2(a) prohibit an occupational therapist from supervising more than five licensees, including occupational therapy assistants, temporary licensed occupational therapists or temporary licensed occupational therapy assistants. N.J.A.C. 13:44K-6.2(b) and 7.2(b) prohibit an occupational therapist from supervising more than five occupational therapy students who are fulfilling the required fieldwork component of their educational training. N.J.A.C. 13:44K-6.2(c) and 7.2(c) provide, however, that under no circumstances may an occupational therapist supervise more than a total of seven individuals at any one time.

N.J.A.C. 13:44K-6.2(d) requires that a designated supervisor be responsible for the supervision of all occupational therapy assistants, and sets forth the type of supervision that is required. N.J.A.C. 13:44K-6.2(e), requires a designated supervisor to determine the level of supervision required for each occupational therapy assistant, consistent with the condition of the client, the education, skill and training of the assistant, and the nature of the tasks performed by the assistant. N.J.A.C. 13:44K-6.2(g) provides that a designated supervisor may, in certain circumstances, provide supervision of the occupational therapy assistant by telephone contact or written reports. N.J.A.C. 13:44K-7.2(d) provides that a designated supervisor shall be responsible for the close supervision of temporary licensed occupational therapists and assistants, which requires daily, face to face contact with and frequent observations of the performance of a temporary licensee at the location where the services are being provided. N.J.A.C. 13:44K-6.2(g) prohibits an occupational therapist who is engaged in the practice of occupational therapy for less than 1,200 hours over a two-year period from acting as a supervisor. N.J.A.C. 13:44K-6.2(i), (j) and 7.2(f) set forth the procedures that must be followed by a supervisor who is unable to provide the type of supervision required in the rules.

N.J.A.C. 13:44K-6.3(a) and 7.3(a) prohibit an occupational therapy assistant or a temporary licensed occupational therapist or assistant from rendering client care unless he or she has obtained ongoing direction from his or her supervisor. N.J.A.C. 13:44K-6.3(b) and 7.3(b) require an occupational therapy assistant and temporary licensed personnel to be responsible for client care within the limits of their scope of practice.

N.J.A.C. 13:44K-6.4(a) authorizes a supervisor who is responsible for providing close supervision of an occupational therapy assistant, temporary licensed occupational therapist, temporary licensed occupational therapy assistant, or occupational therapy student, to delegate his or her supervisory responsibility to an occupational therapy assistant who, in the professional judgment of the supervising occupational therapist, has been adequately educated and trained. N.J.A.C. 13:44K-6.4(b) prohibits a designated supervisor from delegating his or her responsibilities to an occupational therapy assistant who has less than 3,600 hours obtained over a five-year period in the particular practice area in which the services are being provided. N.J.A.C. 13:44K-6.4(c) prohibits an occupational therapy assistant from supervising more than three persons at one time. Pursuant to N.J.A.C. 13:44K-6.4(d), an occupational therapist may not supervise more than seven persons at one time. N.J.A.C. 13:44K-6.4(e) requires an occupational therapist, despite any delegation of his or her supervision responsibilities, to retain responsibility for all occupational therapy care of the client.

The rules in Subchapter 8 will continue to impose the following recordkeeping requirements upon occupational therapists, occupational therapy assistants and temporary licensed occupational therapists and assistants: N.J.A.C. 13:44K- 8.1(a) requires all licensees to notify the Council within 30 days of any change of address on file with the Council; N.J.A.C. 13:44K-8.1(c) requires a licensee to notify the Council within 30 days of receiving a notice of disciplinary action taken against the licensee in another jurisdiction; N.J.A.C. 13:44K-8.2(a) requires a licensee whose name has been legally changed to forward to the Council by certified mail, within 30 days of such change, legal evidence of the name change; and N.J.A.C. 13:44K-8.2(d) requires a licensee to notify the Council in writing, within 30 days, of any change in a professional practice name on file with the Council.

The existing rules in Subchapter 8 will also continue to impose various compliance requirements upon licensees. N.J.A.C. 13:44K-8.2(b) requires licensees to remit certain information and the fee specified in the rule in order to obtain a new license based on a name change. N.J.A.C. 13:44K-8.2(c) requires a licensee to immediately remit his or her original license to the Council. N.J.A.C. 13:44K-8.3(c) requires a licensee to use only the designation which corresponds to his or her license. N.J.A.C. 13:44K-8.4 provides that it will be deemed professional misconduct for a licensee to aid or assist any person in engaging in the unlicensed practice of occupational therapy.

Proposed new rule N.J.A.C. 13:44K-8.5 will also impose compliance requirements upon licensees. N.J.A.C. 13:44K-8.5(b) prohibits a licensee from engaging in sexual contact with a client with whom the licensee has a client-therapist relationship unless the occupational therapy is terminated by written notice to the client, which is documented in the client record, or the last occupational therapy was rendered more than six months ago. N.J.A.C. 13:44K-8.5(c) extends the prohibition outlined in subsection (b) indefinitely if the client is vulnerable to exploitive influences because of an emotional or cognitive disorder. N.J.A.C. 13:44K-8.5(d) prohibits a licensee from seeking or soliciting sexual contact with a client. N.J.A.C. 13:44K-8.5(e) prohibits a licensee from engaging in any discussion of an intimate nature with a client, unless that discussion is directly related to proper occupational therapy purposes. N.J.A.C. 13:44K-8.5(f) requires a licensee to provide privacy and examination conditions which prevent the exposure of a client's unclothed body. Subsection (g) prohibits a licensee from engaging in sexual harassment either within or outside the professional occupational therapy setting. N.J.A.C. 13:44K-8.5(h) prohibits a licensee from engaging in any activity which would lead a reasonable person to believe that the activity serves the licensee's prurient interests or which is for sexual arousal or sexual gratification. N.J.A.C. 13:44K-8.5(j) authorizes a licensee to provide occupational therapy services to his or her spouse, provided the rendering of such services is consistent with accepted standards of occupational therapy and that the services are not utilized to exploit the client spouse for the sexual arousal or sexual gratification of the licensee.

The rules in Subchapter 9 will continue to impose various recordkeeping and compliance requirements upon licensees. N.J.A.C. 13:44K-9.1(a) requires all occupational therapists and occupational therapy assistants to make their licenses available to clients upon request. N.J.A.C. 13:44K-9.1(b) requires all licensees to ensure that information regarding the Council, as well as the professional fees that may be charged for a licensee's services, are prominently displayed in the office or facility where the occupational therapy services are provided. In addition, N.J.A.C. 13:44K-9.1(c) prohibits a licensee from altering in any manner the information contained on his or her license.

N.J.A.C. 13:44K-9.2(a) and (b) require a licensee to establish reasonable fees for the services he or she provides and to explain to a client the financial arrangements surrounding the provision of such services. N.J.A.C. 13:44K-9.2(c) prohibits an occupational therapist from requiring a client or a third party payor to pay a fee for preparing an insurance claim form or for any service not documented in the client's record. Subsection (c) further prohibits a licensee from charging interest on an unpaid account or from collecting a fee for unkept appointments, unless the client was notified, in writing, of such policies before beginning occupational therapy treatment. N.J.A.C. 13:44K- 9.2(d) and (e) require an occupational therapist to maintain a written list of current fees for standard services, which must be provided to clients or other interested persons upon request. The list must include information regarding whether Medicare, Medicaid or other third party payor plans are accepted, and whether insurance payments are accepted as payment in full. The list must also specify whether any special fee categories are available. N.J.A.C. 13:44K- 9.2(f) requires an occupational therapist who is directly billing a client or third party payor for his or her services to include his or her license number on all bills submitted.

N.J.A.C. 13:44K-9.3(a) provides that an occupational therapist or occupational therapy assistant must advise a client, or the client's legal guardian, of the nature of the services to be provided, as well as the limits and obligations associated with such services. N.J.A.C. 13:44K-9.3(b) prohibits an occupational therapist or occupational therapy assistant from providing occupational therapy services while under the influence of alcohol or any mind altering drug that impairs the licensee's ability to provide services. N.J.A.C. 13:44K-9.4 prohibits an occupational therapist from charging excessive fees. N.J.A.C. 13:44K-9.5(a) requires an occupational therapist to terminate services to a client when the client has achieved the predetermined goals established in the client's plan of care, or when the occupational therapy services provided by the licensee no longer meet the client's needs. N.J.A.C. 13:44K-9.5(b) requires an occupational therapist who is unable to provide continued professional services to notify the client of the termination after making a reasonable effort to assist the client in obtaining services from another qualified licensee.

The rules in Subchapter 10 impose various recordkeeping and compliance requirements upon licensee. N.J.A.C. 13:44K-10.1 requires an occupational therapist to prepare and maintain a permanent, contemporaneous client record for each client to whom he or she provides services, regardless of the treatment setting. The client record must include: the name, license number and license status of the licensee providing service, and the name of the licensee's supervisor, if applicable; the client name, address and telephone number; the location and dates of all treatments; all findings upon initial evaluation; the plan of care created by the licensee; progress notes from each day of treatment; periodic reassessments of the client's status; information regarding referrals; a discharge summary; and fees charged to and paid by the client, unless a separate financial record is kept by the licensee. All progress notes created by an occupational therapy assistant, a temporary licensed occupational therapist or occupational therapy assistant, or an occupational therapy student fulfilling the required fieldwork component of his or her educational training, must be countersigned by the supervising occupational therapist.

N.J.A.C. 13:44K-10.1(c) requires the occupational therapist to periodically review and update the client's plan of care. N.J.A.C. 13:44K-10.1(d) requires the licensee to retain the client record for at least seven years from the date of last entry. If the client is a minor, the licensee must retain the record until the minor reaches the age of 25. In addition, N.J.A.C. 13:44K- 10.1(e) requires a licensee to comply with the recordkeeping rule notwithstanding his or her employer's individual recordkeeping requirements.

N.J.A.C. 13:44K-10.2(a) requires a licensee who prepares a client record which is maintained solely on a computer to use a write-protected program that contains a permanently activated date and time recording for all entries and that automatically prepares a back-up copy of the file. The program must also limit access to the system to those persons with confidential personal codes. Pursuant to N.J.A.C. 13:44K-10.2(b), the licensee must include in the client record at least two forms of identification and must finalize all entries through use of the confidential personal code. N.J.A.C. 13:44K-10.2(c) provides that all entries into the client record must be finalized by means of the confidential personal code of the person accessing the record. In addition, all notes made in the client record by a licensed occupational therapy assistant, a temporary licensed occupational therapist or occupational therapy assistant, or an occupational therapy student, must be countersigned by the supervising occupational therapist. N.J.A.C. 13:44K-10.2(d) requires an occupational therapist or occupational therapy assistant to document any addenda or corrections to a client's record in a separately dated, signed and timed note.

N.J.A.C. 13:44K-10.3(a) requires an occupational therapist to provide a client with a copy of his or her record of occupational therapy services provided by the licensee, within 30 days of a written request by the client, the client's guardian, or a person designated by the client or guardian. An occupational therapist may not charge a client more than $1.00 per page or $100.00 for the entire client record, whichever is less, pursuant to N.J.A.C. 13:44K-10.3(b). If the record is less than 10 pages, an occupational therapist may charge up to $10.00 to cover postage and miscellaneous costs. N.J.A.C. 13:44K-10.3(c) provides that an occupational therapist may charge a client for a summary of the record. The charge for the summary may, likewise, be no more than $1.00 per page or $100.00, for the entire client record, whichever is less, or may be up to $10.00, if the record is less than 10 pages.

Pursuant to N.J.A.C. 13:44K-10.3(d), an occupational therapist may charge a client a fee for the production of reports, other than a summary of the client record. N.J.A.C. 13:44K-10.3(e), however, prohibits a licensee from requiring advanced payment as a condition for releasing a report when the report is needed to enable the client to receive ongoing care by another practitioner or is needed for use in a judicial proceeding. N.J.A.C. 13:44K- 10.3(f) provides that an occupational therapist who performs occupational therapy services in connection with a medical, health, educational or social agency, does not have to comply with the provisions of N.J.A.C. 13:44K-10.3, if the occupational therapist does not have authority from the agency to release client records.

No additional professional services will be needed to comply with the rules proposed for readoption with amendments. In addition, the Director does not believe that there will be any significant, additional economic impact upon licensed occupational therapists, licensed occupational therapy assistants, and temporary licensed occupational therapists and assistants as a result of the proposed readoption with amendments. The costs of compliance with the proposed readoption with amendments are discussed in the Economic Impact statement above. The Director believes that the proposed readoption with amendments should be uniformly applied to all licensees in order to ensure the health, safety and welfare of the general public in the provision of occupational therapy services and, therefore, no differing compliance requirements for any licensees are provided based upon the size of the business.

Smart Growth Impact

The Director does not believe that the rules proposed for readoption with amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:44K.

Full text of the proposed amendments follows:

<< NJ ADC 13:44K-3.1 >>

13:44K-3.1 Licensing procedure: occupational therapist

(a) An applicant for licensure as an occupational therapist shall submit the following to the Council:

1. A completed application form which contains the following:

i.-iii. (No change.)

iv. <<-A->> <<+For applicants who have taken the certification examination prior to January 1, 2003, a+>> "Verification of Certification" letter from the National Board for Certification in Occupational Therapy (NBCOT) indicating that the candidate has successfully completed the certification examination for occupational therapists;

<<+v. For applicants who have taken the certification examination on or after January 1, 2003, a score transfer from NBCOT indicating that the candidate has successfully completed the certification examination for occupational therapists;+>>

Recodify existing v.-vii. as <<+vi.-viii.+>> (No change in text.)

2.-3. (No change.)

<< NJ ADC 13:44K-3.2 >>

13:44K-3.2 Licensing procedure: occupational therapy assistant

(a) An applicant for licensure as an occupational therapy assistant shall submit the following to the Council:

1. A completed application form which contains the following:

i.-iii. (No change.)

iv. <<-A->> <<+For applicants who have taken the certification examination prior to January 1, 2003, a+>> "Verification of Certification" letter from the National Board for Certification in Occupational Therapy (NBCOT) indicating that the applicant has successfully completed the certification examination for occupational therapy assistants;

<<+v. For applicants who have taken the certification examination on or after January 1, 2003, a score transfer from NBCOT indicating that the candidate has successfully completed the certification examination for occupational therapy assistants;+>>

Recodify existing v.-viii. as <<+vi.-ix.+>> (No change in text.)

2.-3. (No change.)

<< NJ ADC 13:44K-4.2 >>

13:44K-4.2 Expiration of temporary license<<+; renewal of temporary license+>>

(a) <<-A temporary license issued to a candidate who does not take the first examination subsequent to the issuance of the temporary license shall expire on that examination date.->> <<+A temporary license holder shall take the licensure examination within 90 days of the date of issuance of his or her temporary license. Failure to take the examination within 90 days shall constitute a failure of the examination and the temporary license shall automatically expire. A temporary license holder may, however, apply to the Council for renewal of the temporary license as provided in (c) below. A temporary license holder shall take the licensure examination within 180 days of the date of issuance of the renewal.+>>

(b) A temporary license shall expire automatically upon the <<+temporary license+>> holder being notified of failure of the licensure examination. <<+Upon notification of failure of the initial examination, a temporary license holder may apply to the Council for renewal of the temporary license as provided in (c) below.+>>

(c) <<-The temporary license may be renewed for an additional period to permit the candidate to take the next available examination.->> <<+A temporary license shall be renewable one time only. A temporary license holder seeking renewal of a temporary license shall submit a written request for renewal to the Council certifying that he or she has requested a "Confirmation of Examination Registration and Eligibility to Examine Notice" from the National Board for Certification in Occupational Therapy (NBCOT) which shall be sent directly to the Council from NBCOT. The temporary license holder shall also submit the renewal fee set forth in N.J.A.C. 13:44K-11.1.+>>

<<+(d) A temporary license which has been renewed pursuant to (c) above shall automatically expire upon notification to the temporary license holder from NBCOT that he or she has failed the licensure examination for the second time or upon the temporary license holder's failure to take the licensure examination for the second time within 180 days of the date of issuance of the renewal. The temporary license holder shall immediately cease practice and surrender the temporary license to the Council upon such notification or upon expiration of the 180 days.+>>

<<+(e) A temporary license shall expire within 180 days of the temporary license holder's receipt of notification from NBCOT that he or she has passed the licensure examination. The temporary license holder shall cease practicing under the temporary license no later than 180 days after receiving the NBCOT notification. The temporary license holder shall submit all documentation required for permanent licensure as provided in N.J.A.C. 13:44K-2.1, and shall surrender the temporary license to the Council within 180 days of NBCOT notification.+>>

<<+(f) A temporary license issued pursuant to N.J.A.C. 13:44K-4.1(b) to an applicant for a permanent license who has completed the academic and administrative requirements necessary for an occupational therapy degree or certificate, but who has not had the degree or certificate conferred, shall be valid for 180 days from the date of issuance. The temporary license holder shall cease practicing under the temporary license no later than 180 days after the date the license is issued. The temporary license holder shall submit an official transcript of his or her education to complete his or her permanent licensure application, as provided in N.J.A.C. 13:44K-2.1, and shall surrender the temporary license to the Council within 180 days of the date of issuance.+>>

<< NJ ADC 13:44K-7.3 >>

13:44K-7.3 Responsibilities of a temporary licensed occupational therapist or a temporary licensed occupational therapy assistant

(a)-(b) (No change.)

(c) A temporary licensed occupational <<-therapy assistant->> <<+ therapist+>> or a temporary licensed occupational therapy assistant shall maintain a record of supervision which shall include the name and license number of his or her designated supervisor, the date when the temporary licensee received supervision and the type of supervision that was provided.

<< NJ ADC 13:44K-8.1 >>

13:44K-8.1 Notification of change of address; service of process

(a) A licensee shall notify the Council, within 30 days, of any change in address on file with the Council <<-by certified mail, return receipt requested,->> and shall specify whether the address is a residence or employment address.

(b)-(c) (No change.)

<< NJ ADC 13:44K-8.2 >>

13:44K-8.2 Notification of change of name or practice name

(a) (No change.)

(b) Upon receipt of the items set forth in (a) above and upon payment of the fees specified in N.J.A.C. 13:44K-<<-11.1(a)10->><<+11.1(a)12+>> and <<-11->><<+13+>>, the Council shall issue to the individual a new license.

(c)-(d) (No change.)

<< NJ ADC 13:44K-8.5 >>

<<+13:44K-8.5 Sexual misconduct+>>

<<+(a) As used in this section, the following terms have the following meanings unless the context clearly indicates otherwise:+>>

<<+"Client" means any person who is the recipient of occupational therapy evaluation, instruction or treatment rendered by a licensee.+>>

<<+"Client-therapist relationship" means a relationship between an occupational therapist, occupational therapy assistant, or temporarily licensed occupational therapist or occupational therapy assistant, and the client wherein the licensee owes a continuing duty to the client to render occupational therapy services consistent with his or her training and experience.+>>

<<+"Licensee" means any person licensed to engage in practice as an occupational therapist, occupational therapy assistant or temporarily licensed occupational therapist or occupational therapy assistant by the Occupational Therapy Advisory Council.+>>

<<+"Sexual contact" means the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensee's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes, but is not limited to, the imposition of a part of the licensee's body upon a part of the client's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or client's body into or near the genital, anal or other opening of the other person's body. "Sexual contact" does not include the touching of a client's body which is necessary during the performance of a generally accepted and recognized occupational therapy procedure.+>>

<<+"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or non-verbal conduct that is sexual in nature, and which occurs in connection with a licensee's activities or role as a provider of occupational therapy services, and that either: is unwelcome, is offensive to a reasonable person, or creates a hostile workplace environment, and the licensee knows, should know, or is told this; or is sufficiently severe or intense to be abusive to a reasonable person in that context. "Sexual harassment" may consist of a single extreme or severe act or of multiple acts and may include, but is not limited to, conduct of a licensee with a client, co-worker, employee, student or supervisee whether or not such individual is in a subordinate position to the licensee. "Sexual harassment" may also include conduct of a nonsexual nature if it is based on the sex of an individual.+>>

<<+"Spouse" means the husband, wife or fiancee of the licensee or an individual involved in a long-term committed relationship with the licensee. For purposes of the definition of "spouse," a long-term committed relationship means a relationship which is at least six months in duration.+>>

<<+(b) A licensee shall not engage in sexual contact with a client with whom he or she has a client-therapist relationship. The client-therapist relationship is ongoing for purposes of this section, unless:+>>

<<+1. Occupational therapy is terminated by way of written notice to the client and is documented in the client record; or+>>

<<+2. The last occupational therapy was rendered more than six months ago.+>>

<<+(c) In circumstances where the client is, or should be recognized by the licensee as, clearly vulnerable by reason of emotional or cognitive disorder to exploitive influence by the licensee, the prohibition on sexual contact shall extend indefinitely.+>>

<<+(d) A licensee shall not seek or solicit sexual contact with a client with whom he or she has a client-therapist relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.+>>

<<+(e) A licensee shall not engage in any discussion of an intimate sexual nature with a client, unless that discussion is directly related to a proper occupational therapy purpose. Such discussion shall not include disclosure by the licensee of his or her own sexual relationships.+>>

<<+(f) A licensee shall provide privacy and examination conditions which prevent the exposure of the unclothed body of the client. Appropriate draping measures shall be employed to protect client privacy.+>>

<<+(g) A licensee shall not engage in sexual harassment either within or outside of the professional setting.+>>

<<+(h) A licensee shall not engage in any other activity which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or which is for the sexual arousal, or sexual gratification of the licensee or client or which constitutes an act of sexual abuse.+>>

<<+(i) Violation of any of the prohibitions or directives set forth in (c) through (h) above shall constitute professional misconduct pursuant to N.J.S.A. 45:1-21(e).+>>

<<+(j) Nothing in this section shall be construed to prevent a licensee from rendering occupational therapy to a spouse, providing that the rendering of such occupational therapy is consistent with accepted standards of occupational therapy and that the performance of occupational therapy is not utilized to exploit the client spouse for the sexual arousal or sexual gratification of the licensee.+>>

<<+(k) It shall not be a defense to any action under this section that:+>>

<<+1. The client solicited or consented to sexual contact with the licensee; or+>>

<<+2. The licensee is in love with or held affection for the client.+>>

<< NJ ADC 13:44K-9.1 >>

13:44K-9.1 Display of notice of licensure; duplicate license; notification of availability of fee information

(a) All licensed occupational therapists and occupational therapy assistants shall make their licenses available to clients upon request. Duplicate licenses may be obtained upon payment of the fees provided in N.J.A.C. 13:44K-<<- 11.1(a)10->><<+11.1(a)12+>> and <<-11->><<+13+>>.

(b)-(c) (No change.)

<< NJ ADC 13:44K-11.1 >>

13:44K-11.1 Fee schedule

(a) The following fees shall be charged by the Occupational Therapy Council:

1.-7. (No change.)

8. Temporary license renewal--occupational therapist ............ $50.00

9. Temporary license renewal--occupational therapy assistant .... $50.00

Recodify existing 8.-11. as <<+10.-13.+>> (No change in text.)


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Posted May 5, 2003