Rule Proposal

Proposed Amendments: N.J.A.C. 13:39A-1.2, 2.3, 2.4, 3.1, 3.8, 3.10, 5.1, 5.2, 5.3, 5.5, 6.1, 8.7, 9.2, 9.3, and 9.4

Delegation of Authority to Act on Emergent Applications; Authorized Role of a Licensed Physical Therapist Assistant; Delegation by a Licensed Physical Therapist to Unlicensed Persons; Patient Records; Violative Acts; Professional Misconduct; Sexual Misconduct; Licensing Requirements for a Physical Therapist; Licensing Requirements for a Physical Therapist Assistant; Examination Standards for Applicants for Licensure as Physical Therapists and Physical Therapist Assistants; Endorsement; Temporary Visiting Licensed Physical Therapists and Temporary Visiting Licensed Physical Therapist Assistants; Advertising Record Retention; Credit Hour Requirements; Acceptable Course Offerings; Credit Hour Calculation; Documentation of Continuing Education Credit
 
Authorized By: State Board of Physical Therapy Examiners, Lisa Tadeo, Executive Director.
 
Authority: N.J.S.A. 45:9-37.18.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2015-042.
 
Submit comments by June 19, 2015, to:
 
   Lisa Tadeo, Executive Director
   State Board of Physical Therapy Examiners
   P.O. Box 45014
   Newark, NJ 07101
 
or electronically at: See Below.
 
The agency proposal follows:
 
Summary

The State Board of Physical Therapy Examiners (the Board) proposes to amend N.J.A.C. 13:39A to revise the scope of practice for physical therapist assistants, standards for delegation to unlicensed individuals, patient records requirements, endorsement procedures, requirements for retention of advertising records, and continuing education standards.

The Board proposes to amend N.J.A.C. 13:39A-1.2 to clarify that the Board must ratify actions that the chairperson has been delegated to perform, not just take action.

Proposed amendments to N.J.A.C. 13:39A-2.3 delete a list of examples of prohibited actions for licensed physical therapist assistants. The list is not necessary as it does not clarify the prohibitions in the rule and can be seen as limiting the prohibited acts to those listed in the rule.

Proposed amendments to N.J.A.C. 13:39A-2.4 restructure the list of tasks that a licensed physical therapist may delegate to unlicensed people and add for clarity that scheduling appointments and filling out insurance forms are business management practices. The proposed amendments to subsection (b) clarify that unlicensed people are not permitted to make notations in any documents of patient care and clarify prohibitions on unlicensed persons working with electrodes, modalities, or therapeutic exercises.

The Board proposes to amend N.J.A.C. 13:39A-3.1 to require that contemporaneous notes must be made for each session of physical therapy. The proposed amendments also recodify existing patient record requirements from paragraph (c)10 to paragraph (c)8. Proposed amendments to N.J.A.C. 13:39A-3.8 delete a reserved paragraph and a list of examples of acts that constitute misrepresentation of the therapeutic nature of services (at recodified paragraph (a)4). The list is not necessary as it does not provide any clarification and can be seen as limiting.

N.J.A.C. 13:39A-3.10 prohibits a licensee from engaging in sexual contact with a patient unless the professional relationship with the patient is terminated in writing and the last physical therapy service was provided more than three months ago. The Board proposes to amend this provision to clarify that this three-month timeframe applies to the last physical therapy services provided by the licensee seeking to engage in sexual contact with a patient.

The Board proposes to amend N.J.A.C. 13:39A-5.1 and 5.2 to use the correct name for the United States Department of Education, Office of Postsecondary Education. The Board proposes to amend N.J.A.C. 13:39A-5.3 to use the correct name for the National Physical Therapy Examination for Physical Therapists or for Physical Therapist Assistants.

Existing N.J.A.C. 13:39A-5.5 allows the Board to license an individual licensed in another state. This provision does not apply to an applicant who previously failed the examination administered by the Board. This provision was adopted at a time when the Board was administering its own licensing examination. It addressed individuals who would apply for a license through endorsement after they failed to obtain a license through examination. Now that the Board licensing examination is the national examination, this situation does not occur and the Board proposes to delete this provision as it is no longer applicable.

The Board proposes to amend N.J.A.C. 13:39A-6.1 to authorize the issuance of a temporary license to an individual participating in an American Physical Therapy Association approved residency or fellowship.

Proposed amendments to N.J.A.C. 13:39A-8.7 require licensees to maintain a computer record of any advertisement posted on the internet.

The Board proposes to amend N.J.A.C. 13:39A-9.2 to recognize that a pretest taken as part of a continuing education course should not count towards continuing education hours.

Proposed amendments to N.J.A.C. 13:39A-9.3 permit licensees to obtain continuing education credits by completing courses sponsored by specific national or New Jersey physical therapy associations, writing a chapter of a textbook, editing a textbook, or providing clinical instruction to students, in addition to the other methods of obtaining continuing education credits in the section. Paragraph (a)3 is proposed for amendment to use the correct name for the United States Department of Education, Office of Postsecondary Education.

Proposed amendments to N.J.A.C. 13:39A-9.4 set forth documentation requirements for licensees who complete continuing education credits by writing or editing a textbook or by providing clinical instruction.

The Board has determined that the comment period for this notice of proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
 
Social Impact

By clarifying the tasks that licensed physical therapists cannot authorize unlicensed individuals to perform, the proposed amendments to N.J.A.C. 13:39A-2.4 will help to ensure that the public is receiving physical therapy services from licensed individuals who have the education to provide these services. Licensees will benefit from proposed amendments to N.J.A.C. 13:39A-9.3 that recognize new methods for obtaining continuing education credits. This will provide more opportunities for licensees to obtain credits and encourage them to work on textbooks and to provide clinical instruction to students in physical therapy programs.
 
Economic Impact

Proposed amendments to N.J.A.C. 13:39A-9.3 will have a positive economic impact on licensees who write or edit textbooks or who provide clinical instruction to students in physical therapy programs. These licensees will be able to obtain continuing education credits for these endeavors, saving licensees the cost of completing these credits through other methods. The Board does not believe the remaining proposed amendments will have any other economic impact.
 
[page=769] Federal Standards Statement

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendments.
 
Jobs Impact

The Board does not believe that the proposed amendments will increase or decrease jobs in the State.
 
Agriculture Industry Impact

The Board does not believe that the proposed amendments will have any impact on the agriculture industry of this State.
 
Regulatory Flexibility Analysis

Since licensed physical therapists and physical therapist assistants are individually licensed by the Board, they may be considered "small businesses" under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq.

The economic impact on small businesses will be the same as on all businesses as detailed in the Economic Impact statement above. The Board does not believe that licensees will need to employ any professional services to comply with the requirements of the proposed amendments. The proposed amendments do not impose reporting requirements, but do impose compliance and recordkeeping requirements on licensees as outlined in the Summary above.

The Board believes that the proposed amendments further the welfare and safety of the public by protecting patients who receive physical therapy. As such, the provisions must be applied uniformly to all licensees regardless of the size of the business.
 
Housing Affordability Impact Analysis

The proposed amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed amendments concern the scope of practice, delegation, professional misconduct, licensure by endorsement, temporary licenses, advertising, and continuing education requirements for physical therapists and physical therapist assistants.
 
Smart Growth Development Impact Analysis

The proposed amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendments concern the scope of practice, delegation, professional misconduct, licensure by endorsement, temporary licenses, advertising, and continuing education requirements for physical therapists and physical therapist assistants.
 
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
 
SUBCHAPTER 1.    AGENCY ORGANIZATION AND ADMINISTRATION
 
13:39A-1.2   Delegation of authority to act on emergent applications
 
The chairperson shall be authorized to hear and decide emergent applications by the Attorney General made pursuant to N.J.S.A. 45:1-22 for the temporary suspension of any license. The chairperson may also undertake such other interim action as may be required by circumstances arising prior to the next meeting date of the Board, provided that said action is subsequently presented to the Board for its review and [action] ratification. Any decision made by the chairperson pursuant to this [rule] section shall be placed on the agenda of the Board at its next regularly scheduled meeting for the purpose of its review and ratification. Insofar as it is practicable, the Board shall be provided with a transcript of the record made before the chairperson and the parties will be permitted to supplement the record with written submissions.
 
13:39A-2.3   Authorized role of a licensed physical therapist assistant
 
(a)-(c) (No change.)
 
(d) A licensed physical therapist assistant shall not perform a physical therapy examination, evaluation, diagnosis or prognosis, develop a plan of care, modify a plan of care, or independently engage in physical therapy instruction[, including, but not limited to, the recommendation of assistive devices and modifications of the patient's physical environment].
 
13:39A-2.4   Delegation by a licensed physical therapist to unlicensed persons
 
(a) Licensed physical therapists may delegate the following to unlicensed persons [routine] :
 
1. Routine tasks relating to: [the]
 
i. The cleanliness and maintenance of equipment and the physical plant; and [the]
 
ii. The management of the business aspects of the practice, including scheduling appointments and filling out insurance forms; and [such]
 
2. Such other assignments with respect to patient care as may be specifically made by the licensed physical therapist, including [transporting] :
 
i.Transporting the patient[, positioning] ;
 
ii. Positioning of the patient; and [assisting]
 
iii. Assisting with the undressing and dressing of the patient.
 
(b) A licensed physical therapist shall not authorize or permit an unlicensed person to engage in the following activities:
 
1.-2. (No change.)
 
3. Make any notations in [the patient's record in relation to] documents regarding patient care or clinical treatment, which is not permitted by (a) above;
 
4. Place or remove electrodes of any kind on the skin;
 
5. Administer, apply, or remove any modalities[.] ;
 
6. Instruct, [and/or] perform, oversee, or supervise therapeutic exercise(s) and/or therapeutic activity(s); and
 
7. (No change.)
 
SUBCHAPTER 3.    BUSINESS PRACTICES; PROFESSIONAL CONDUCT
 
13:39A-3.1   Patient records
 
(a)-(b) (No change.)
 
(c) The patient record shall include, in addition to personal identifying information, consents, and disclosures, at least the following information:
 
1.-7. (No change.)
 
8. A note contemporaneous [note] with each session, with the license number and signature or initials of the licensee who rendered care, that accurately represents the services rendered during the treatment sessions including, but not limited to, the components of intervention, the patient's response to intervention, and current status. If the licensee chooses to sign by means of initials, his or her complete signature and license number shall appear at least once on every page;
 
9. (No change.)
 
[10. The signature or initials and license number of the licensee who rendered care. If the licensee chooses to sign by means of initials, his or her complete signature and license number shall appear at least once on every page;]
 
Recodify existing 11.-14. as 10.-13. (No change in text.)
 
(d)-(e) (No change.)
 
13:39A-3.8   Violative acts; professional misconduct
 
(a) The following acts or practices shall be among those deemed to be violative of N.J.S.A. 45:9-37.11 et seq., and to constitute professional misconduct pursuant to N.J.S.A. 45:1-[21(e)] 21.e:
 
1. (No change.)
 
[2. (Reserved)]
 
Recodify existing 3.-4. as 2.-3. (No change in text.)
 
[5.] 4. Representing services as therapeutic, or permitting the representation of services as therapeutic, when, although the services are within the licensee's scope of practice, no therapeutic outcome is expected; [for example, educational activities, preventative sports conditioning, fitness/wellness programs, etc. Nothing herein shall preclude a licensed physical therapist from using or permitting the use of his or her professional education degree, title or license in connection with educational, preventative or other appropriate activities or from accepting reasonable fees or payment for such activities, provided that no claim of therapeutic outcome is made or charged for;]
 
Recodify existing 6.-12. as 5.-11. (No change in text.)
 
[page=770] 13:39A-3.10 Sexual misconduct
 
(a)-(b) (No change.)
 
(c) A licensee shall not engage in sexual contact with a patient with whom he or she has a patient-therapist relationship. The patient-therapist relationship is ongoing for purposes of this section, unless:
 
1. (No change.)
 
2. The last physical therapy provided by that licensee was rendered more than three months ago.
 
(d)-(k) (No change.)
 
13:39A-5.1   Licensing requirements for a physical therapist
 
(a) To be eligible for licensure as a physical therapist in New Jersey, an applicant shall:
 
1.-2. (No change.)
 
3. Have completed a program in physical therapy from an accredited college or university physical therapy program approved for the education and training of physical therapists by an accrediting agency recognized by the [Council on Post Secondary Accreditation and the] United States Department of Education, Office of Postsecondary Education;
 
4. (No change.)
 
5. Have completed all clinical education requirements necessary for graduation from a physical therapy program approved for the education and training of physical therapists by an accrediting agency recognized by the [Council on Post Secondary Accreditation and the] United States Department of Education, Office of Postsecondary Education; and
 
6. (No change.)
 
(b) In addition to meeting the requirements of (a)1 and 2 above, an applicant for licensure who is a graduate of a foreign school of physical therapy shall:
 
1. Furnish evidence to the Board that the applicant has completed a course of study in physical therapy, which is substantially equivalent to that provided in a physical therapy program approved for the education and training of physical therapists by an accrediting agency recognized by the [Council on Post Secondary Accreditation and the] United States Department of Education, Office of Postsecondary Education;
 
2.-4. (No change.)
 
(c) (No change.)
 
13:39A-5.2   Licensing requirements for a physical therapist assistant
 
(a) To be eligible for licensure as a physical therapist assistant in New Jersey an applicant shall:
 
1.-3. (No change.)
 
4. Have completed a two-year physical therapist assistant program from an accredited college or university approved for the education and training of physical therapist assistants by an accrediting agency recognized by the [Council on Post Secondary Accreditation and the] United States Department of Education, Office of Postsecondary Education;
 
5. Have completed all clinical education requirements necessary for graduation from a physical therapist assistant program approved for the education and training of physical therapist assistants by an accrediting agency recognized by the [Council on Post Secondary Accreditation and the] United States Department of Education, Office of Postsecondary Education; and
 
6. (No change.)
 
13:39A-5.3   Examination standards for applicants for licensure as physical therapists and physical therapist assistants
 
(a) Applicants for licensure as physical therapists and physical therapist assistants submitting satisfactory proof of educational credentials as set forth in N.J.A.C. 13:39A-5.1 and 5.2, respectively, shall be approved to take the National Physical Therapy Examination for Physical Therapists or [the National Physical Therapy Examination] for Physical Therapist Assistants, [as applicable,] administered by the Federation of State Boards of Physical Therapy and the State jurisprudence examination.
 
(b) Upon satisfactory passage of the National Physical Therapy Examination for Physical Therapists or [the National Physical Therapy Examination] for Physical Therapist Assistants and the State jurisprudence examination, an applicant shall be deemed eligible for licensure provided the applicant meets all other requirements for licensure.
 
(c) Passing examination scores shall be as follows:
 
1. National Physical Therapy Examination for Physical Therapists [and National Physical Therapy Examination] or for Physical Therapist Assistants: 600 based on a scale of 200 to 800.
 
2. (No change.)
 
(d) An applicant who does not pass the National Physical Therapy Examination for Physical Therapists or [the National Physical Therapy Examination] for Physical Therapist Assistants within two years from the date of taking the initial examination shall update his or her application for licensure filed with the Board.
 
13:39A-5.5   Endorsement
 
Applicants possessing a valid license issued by another state may be deemed eligible for licensure in New Jersey without examination if the criteria for licensure in the other state are deemed by the Board to be substantially equivalent to those required in New Jersey. [and the applicant has not previously failed the examination administered by the Board. Nothing herein shall preclude the Board, in its discretion, from deeming an applicant, who possesses a license issued by another jurisdiction, who has failed the examination administered by the Board, to be eligible for licensure.]
 
SUBCHAPTER 6.    TEMPORARY LICENSES FOR VISITING PHYSICAL THERAPISTS AND PHYSICAL THERAPIST ASSISTANTS
 
13:39A-6.1   Temporary visiting licensed physical therapists and temporary visiting licensed physical therapist assistants
 
(a) Any person having made application to the Board pursuant to N.J.S.A. 45:9-[37.29(b)] 37.29.b for the issuance of a temporary license to practice as a physical therapist or physical therapist assistant in this State on a temporary basis to assist in a medical emergency, in an American Physical Therapy Association approved residency or fellowship, or to engage in a special project or teaching assignment relating to the practice of physical therapy, may be issued a temporary visiting license without examination, which shall remain valid for a period not to exceed one year, provided that said person can demonstrate to the Board that he or she is licensed, registered, or otherwise authorized to engage in the practice of physical therapy in another state or jurisdiction and that permitting his or her practice in this State would not be inconsistent with the public interest.
 
(b) (No change.)
 
SUBCHAPTER 8.    ADVERTISING
 
13:39A-8.7   Advertising record retention
 
(a) The licensee shall retain, for a period of three years from the date of initial publication or dissemination, a copy of every advertisement appearing in print media, [as well as] a video or audio tape of every advertisement communicated by electronic media, and a computer record of any advertisement posted on the internet. The licensee shall indicate on all advertisements in his or her possession the date and place of publication.
 
(b) (No change.)
 
SUBCHAPTER 9.    CONTINUING EDUCATION
 
13:39A-9.2   Credit hour requirements
 
(a)-(b) (No change.)
 
(c) For the purposes of this subchapter, an hour of continuing education means 60 minutes of instructional time spent in learning activities, exclusive of breaks, meals, pre-tests, or vendor exhibits.
 
(d) (No change.)
 
13:39A-9.3   Acceptable course offerings; credit hour calculation
 
(a) (No change.)
 
(b) All courses, programs, or seminars offered by the following sources and providers are pre-approved and a licensee shall be allowed the number of credits as follows:
 
[page=771] 1. Successful completion of a post-graduate course in a physical therapy program leading to a Doctor of Physical Therapy (DPT) degree for the licensed physical therapist or a three-credit course in an entry level physical therapy program for the licensed physical therapist assistant. Such programs must be in institutions of higher learning, which are accredited by the United States Department of Education [or the Council on Postsecondary Accreditation] , Office of Postsecondary Education or their approved agencies: 15 credits for each course credit awarded; [or]
 
2. Successful completion of a course in an academic program related to the practice of physical therapy provided that such course is not part of the physical therapy program completed by the licensee to meet the educational requirements for initial licensure under N.J.A.C. 13:39A-5.1 or 5.2: 15 credits for each course credit awarded[.] ; or
 
3. Successful completion of a continuing education course sponsored by the American Physical Therapy Association (APTA), or the American Physical Therapy Association of New Jersey (APTANJ): one credit for each hour of the course.
 
(c) The Board shall grant a maximum of 10 of the mandatory 30 continuing education credits required in a biennial renewal period of licensed physical therapists and licensed physical therapist assistants from any or all of the following:
 
1.-3. (No change.)
 
4. Preparation of an educational or scientific article authored and published in a professional refereed journal: three credits per article as approved by the Board; [or]
 
5. Courses, programs, or seminars in physical therapy practice management: one credit for each hour of attendance[.] ;
 
6. Writing a chapter of a published textbook related to physical therapy: three credits per chapter up to a maximum of 10 credits; or
 
7. Editing a published textbook related to physical therapy: five credits per book up to a maximum of 10 credits.
 
(d)-(f) (No change.)
 
(g) A licensed physical therapist who provides clinical instruction to a student in a clinical facility that is affiliated with a physical therapy program that is approved for the education and training of physical therapists by an accrediting agency recognized by the United States Department of Education, Office of Postsecondary Education shall receive one credit for each 40 hours of clinical instruction up to a maximum of four credits per biennial period.
 
Recodify existing (g)-(i) as (h)-(j) (No change in text.)
 
13:39A-9.4   Documentation of continuing education credit
 
(a)-(f) (No change.)
 
(g) A licensee who writes a chapter of, or edits, a textbook shall retain a copy of the published textbook.
 
(h) A licensee who provides clinical instruction to a student shall retain documentary proof from the student's school that indicates the period of time during which the licensee provided clinical instruction.
 
[(g)] (i) (No change in text.)