New York: Addressing Issues in Practice Act’s Emergency Regulations
By Stephanie Yamkovenko
Update May 2: AOTA submitted comments to the New York State Board of Occupational Therapy about the proposed regulations. Read the comments here.
Update February 29: The Board of Regents posted the emergency rule that implements the recent changes to the state’s practice act to the New York State Register today. The publication of the rule opens a 45-day comment period. The Board of Regents will review the rule for permanent adoption at their May 2012 meeting. AOTA is seeking clarification for the submission of comments. Click here to see the rule.
Update February 15: As part of ongoing efforts, AOTA has learned that the New York Board of Regents passed the proposed regulations with the exception of the occupational therapy assistant (OTA) supervision requirements. Further information was obtained from the chairperson of the New York State Board of Occupational Therapy, Eva Rodriguez, PhD, OTR. The passed regulations will be enacted February 15, and include the requirement for new OTAs to pass the NBCOT exam as well as recognize OTAs as authorized health care providers in New York state. AOTA spoke with Rodriguez about the new regulations.
Click here for a copy of the emergency regulations as adopted by the New York Board of Regents.
According to Rodriguez, the Board of Regents’ decision to delay implementation of the OTA supervision requirements will give the Board of Occupational Therapy more time to revise the regulations. “We’re going to continue working on it because we are still listening to people’s comments,” says Rodriguez. “Our goal is to have this cleared up so that there can be public comments by the end of April. This way everyone can have an official document to work from and then provide public comment.”
Rodriguez believes that much of the negativity toward the proposed supervision requirements were due in large part to the dissemination by an outside party of an earlier working draft of the regulation that was drastically different from the final version. “We have been trying to clarify the position and clarify our stance and also still be open to feedback, as it is still a work in progress,” she says.
Rodriguez also mentioned that the board used emergency regulations because the legislature mandated it, possibly because the practice act had been 10 years in the making. “It’s not standard operating procedure,” she says. “My assumption is that it is a longstanding issue and the legislature wanted to just bring closure to it. The board had no say in it.”
Update February 21: The timetable accompanying the emergency rules provided that the measures will be posted in the register on March 14, which will begin a 45 day comment period. The emergency measures will be presented for adoption by the Board of Regents on a permanent basis at its May 2012 meeting, at which time the Board will consider comments.
AOTA will be providing more information as it becomes available.
In January, the New York State Occupational Therapy Association (NYSOTA) and AOTA heard from members about their concerns over proposed regulations from the New York State Board for Occupational Therapy to implement recent changes to the state’s occupational therapy practice act. For the past 10 years, occupational therapy practitioners in New York state had lobbied to revise their state’s practice act, and on August 17, 2011, their hard work and dedication paid off when Governor Andrew Cuomo signed the practice act into law. The act would take effect 180 days after it became law, which meant the state board had to develop rules to define the requirements of the new law.
NYSOTA and the American Occupational Therapy Association (AOTA) support the state board in adopting regulations to implement the changes in the revised practice act, and are pleased with the new law, which revises the definition of occupational therapy, amended referral requirements, and strengthened requirement provisions for occupational therapy assistants.
The associations learned that the state board planned to adopt the regulations through a notice of emergency adoption that would make the regulations effective immediately before the usual public notice and comment period.
“NYSOTA was aware that after the OT practice act was amended in 2011, there would be regulations promulgated,” says Jeff Tomlinson, OTR, MSW, FAOTA, and NYSOTA legislation and government relations coordinator. “In fact, NYSOTA contacted the state board suggesting issues that should be addressed by regulations. NYSOTA met frequently with the state board to discuss regulatory language.”
The board’s recently proposed draft regulations stated that occupational therapy assistant students had to be supervised by an occupational therapist, and they also included burdensome requirements for limited permits and occupational therapy assistant supervision. The most troubling aspect was the fact that it was an emergency regulation, which means that there was no time for public review and comment and would be implemented immediately after adoption.
“We support the board’s work in implementing the law, which was the result of 10 years of hard work for occupational therapy practitioners in New York,” says Christina Metzler, AOTA’s chief public affairs officer. “However, we are concerned about several of the draft provisions and believe that the state board should have taken the time to consider the comments of stakeholders, including members, employers, educators, payers, and others.”
NYSOTA held town hall meetings throughout New York state to meet with members and non-members to discuss the regulations and to gather occupational therapy practitioners’ feedback to provide to the state board.
“The town hall meetings were born out of NYSOTA ‘making lemonade’ out of a troubling and tense situation,” says Melissa Whelan, MS, OTR/L, NYSOTA president. “We decided to hold an open meeting to address both members’ and nonmembers’ concerns. We hoped to increase our visibility, hear our members, and connect the state board with practitioners.”
AOTA, NYSOTA, and the Accreditation Council for Occupational Therapy Education (ACOTE®) submitted comments to the state board urging them to reconsider the emergency regulation and amend some of the provisions.
Despite concerns, the state board is moving forward with the draft regulations, and the New York Board of Regents will consider the regulations during their meeting from February 13 to 14. If accepted, the regulations will be implemented immediately through adoption of an emergency rule. The regulations will be published in the state’s administrative register on March 14.
On February 6, representatives from NYSOTA attended a public meeting with the state board and were pleased with several of the board’s changes. They learned that alternative language regarding occupational therapy assistant students by occupational therapy assistant fieldwork educators will be in the regulation. They also learned that an amendment will clarify that the regulations only require documentation of each formal occupational therapy assistant supervision contact. The revised language of the regulation will not be available to the public until after it is published in the New York State Administrative Register.
The revised practice act also requires that occupational therapy assistants pass an examination approved by the board to practice in New York state. Occupational therapy assistants currently certified by the commissioner by the effective date of the law will be grandfathered into the law and will not be subject to the examination requirement. The proposed regulation includes language that requires OTAs to pass the examination administered by the National Board of Certification in Occupational Therapy. AOTA supports this new requirement from both a public protection and practitioner competency standpoint.
“The town halls have energized our membership and have galvanized a force of volunteers to actively promote membership and participation,” says Whelan. “The members were very impressed that the state board participated in these meetings, and gave NYSOTA credit for getting them there. Members were also grateful for AOTA’s attention. They feel supported and looked after.”
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Stephanie Yamkovenko is AOTA’s staff writer.
