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NEW JERSEY REGISTER
VOLUME 36, NUMBER 19
MONDAY, OCTOBER 4, 2004
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OCCUPATIONAL THERAPY ADVISORY COUNCIL
SUPERVISION REQUIREMENT: TEMPORARY LICENSED OCCUPATIONAL THERAPIST AND
TEMPORARY LICENSED OCCUPATIONAL THERAPY ASSISTANT; RESPONSIBILITIES OF
DESIGNATED SUPERVISOR


Proposed Amendments: N.J.A.C. 13:44K-7.1 and 7.2

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

Authority: N.J.S.A. 45:9-37.51 et seq., specifically 45:9-37.57 and 45:9-37.75; and 45:1-15.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2004-369.

Submit comments by December 3, 2004 to:

Laura Anderson, Executive Director

Occupational Therapy Advisory Council

124 Halsey Street

PO Box 45037

Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the Occupational Therapy Licensing Act, P.L. 1993, c.85, N.J.S.A. 45:9-37.51 et seq., specifically N.J.S.A. 45:9-37.57 and 45:9-37.75, (the Act), the Director of the Division of Consumer Affairs (the Director), in consultation with the Occupational Therapy Advisory Council (the Council), proposes to amend N.J.A.C. 13:44K-7.1, which establishes supervision requirements for temporary licensed occupational therapists and temporary licensed occupational therapy assistants. N.J.A.C. 13:44K-7.1(a) currently provides that a temporary licensed occupational therapist or temporary licensed occupational therapy assistant may work only under the supervision of a licensed occupational therapist or licensed occupational therapy assistant. As currently written, N.J.A.C. 13:44K-7.1(a) would appear to authorize an occupational therapy assistant to supervise work performed by a temporary licensed occupational therapist. Such an arrangement, however, would violate existing Council rules which specifically limit the circumstances under which an occupational therapy assistant may supervise occupational therapy services.

Pursuant to N.J.A.C. 13:44K-6.2, a licensed occupational therapist must always serve as the designated supervisor for occupational therapy care provided to clients. In order to qualify as a designated supervisor, an occupational therapist must have at least 1,200 hours of work experience obtained over a two-year period. A qualified occupational therapist may supervise other licensed occupational therapists, occupational therapy assistants, temporary licensed occupational therapists, temporary licensed occupational therapy assistants, and occupational therapy students fulfilling the required fieldwork component of their training. The occupational therapist serving as the designated supervisor must determine what level of supervision is required of each person he or she supervises. The supervision can be close (requiring daily, face to face contact with and frequent observation of the person's work), routine (requiring face to face contact with and observation of the person's work at least once a week), or general (requiring face to face contact and observation of the person's work at least once every two weeks). N.J.A.C. 13:44K-6.4, however, authorizes an occupational therapist to delegate his or her responsibility for close supervision of occupational therapy assistants, temporary licensed occupational therapy assistants and occupational therapy students to an occupational therapy assistant who is qualified, through appropriate training and education, to serve as a supervisor. N.J.A.C. 13:44K- 6.4 does not authorize an occupational therapy assistant to supervise temporary licensed occupational therapists. Delegation of supervision responsibilities to occupational therapy assistants for the care provided by temporary licensed occupational therapists would be inappropriate, in light of the fact that a temporary licensed occupational therapist has already completed the education and fieldwork requirements necessary to obtain permanent licensure as an occupational therapist in this State.

In light of the foregoing, and in order to avoid any confusion that may result when N.J.A.C. 13:44K-6.4 is read in conjunction with N.J.A.C. 13:44K-7.1, the Director is proposing to amend N.J.A.C. 13:44K-7.1(a) to clarify that a temporary licensed occupational therapist may work only under the supervision of a licensed occupational therapist. The Director is proposing a new subsection (b) which clarifies that a temporary licensed occupational therapy assistant may work only under the supervision of a licensed occupational therapist, or a licensed occupational therapy assistant to whom supervision responsibilities have been delegated pursuant to N.J.A.C. 13:44K-6.4. Existing subsections (b) and (c) are proposed to be recodified as (c) and (d), without change.

The Director is also proposing an amendment to N.J.A.C. 13:44K-7.2, which delineates the responsibilities of the designated supervisor as they relate to the work performed by temporary licensed occupational therapists and temporary licensed occupational therapy assistants, in order to eliminate another apparent incongruity between two existing Council rules. As noted above, N.J.A.C. 13:44K-6.2 provides that an occupational therapist may only serve as a designated supervisor if he or she has obtained at least 1,200 hours of work experience over a two-year period. The rule clearly provides that an occupational therapist who lacks this experience may not supervise any person engaged in the practice of occupational therapy services. Despite this prohibition, N.J.A.C. 13:44K-7.2 is silent on the experience requirements that will be imposed upon occupational therapists who wish to act as designated supervisors of temporary licensed occupational therapists and occupational therapy assistants. In order to eliminate any confusion that may result when N.J.A.C. 13:44K-6.2 is read in conjunction with N.J.A.C. 13:44K-7.2, the Director is proposing a new subsection (d) in N.J.A.C. 13:44K-7.2, which provides that an occupational therapist who has less than 1,200 hours of work experience obtained over a two-year period shall not supervise any person engaged in the practice of occupational therapy services, including temporary licensed occupational therapists and temporary licensed occupational therapy assistants. Existing subsections (d) through (f) are proposed to be recodified as (e) through (g), without change, with the exception of a technical amendment to subsection (g).

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

Social Impact

The Director believes that the proposed amendments will have a positive impact upon members of the regulated community by clarifying existing requirements relating to the supervision of temporary licensed occupational therapists and temporary licensed occupational therapy assistants. The proposed amendments to N.J.A.C. 13:44K-7.1 clarify that temporary licensed occupational therapists may work only under the supervision of licensed occupational therapists, and that temporary licensed occupational therapy assistants may work only under the supervision of licensed occupational therapists or licensed occupational therapy assistants to whom supervisory responsibilities have been delegated. The proposed amendments to N.J.A.C. 13:44K-7.2 clarify the experience requirements currently imposed upon licensed occupational therapists who wish to serve as designated supervisors of temporary licensed persons providing occupational therapy care in the State.

Economic Impact

The Director does not believe that the proposed amendments to N.J.A.C. 13:44K- 7.1 will have an economic impact upon the regulated community because occupational therapy assistants are currently precluded from supervising the work of temporary licensed occupational therapists pursuant to the provisions of N.J.A.C. 13:44K-6.4. Moreover, the Director does not believe that the proposed amendments to N.J.A.C. 13:44K-7.2 will have an economic impact upon the regulated community because occupational therapists who lack sufficient experience are already precluded from serving as designated supervisors of temporarily licensed persons pursuant to the provisions of N.J.A.C. 13:44K-6.2.

Federal Standards Statement

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

Jobs Impact

The Director does not believe that the proposed amendments will result in an increase or decrease in the number of jobs in the State.

Agriculture Industry Impact

The Director does not believe that the proposed 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 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 proposed amendments, including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Director to estimate the initial and annual compliance costs of the proposed amendments, to outline the manner in which it has designed the proposed amendments to minimize any adverse economic impact upon small businesses, and to set forth whether the proposed amendments establish differing compliance requirements for small businesses.

The proposed amendments to N.J.A.C. 13:28-7.1 and 7.2 will not impose any reporting or recordkeeping requirements upon licensed occupational therapists, licensed occupational therapy assistants, temporary licensed occupational therapists, or temporary licensed occupational therapy assistants, but will impose compliance requirements upon such individuals. The proposed amendments to N.J.A.C. 13:44K-7.1(a) require temporary licensed occupational therapists to work only under the supervision of a licensed occupational therapist. The proposed amendments to N.J.A.C. 13:44K-7.1(b) require a temporary licensed occupational therapy assistant to work only under the supervision of a licensed occupational therapist, or under the supervision of an occupational therapy assistant to whom supervision responsibilities have been delegated. The proposed amendments to N.J.A.C. 13:44K-7.2(d) prohibit a licensed occupational therapist who has less than 1,200 hours of work experience obtained over a two- year period from supervising any persons engaged in the provision of occupational therapy services.

No additional professional services will be needed to comply with the proposed amendments. In addition, the Director does not believe that there will be any additional economic impact upon licensed occupational therapists, licensed occupational therapy assistants, temporary licensed occupational therapists or temporary licensed occupational therapy assistants as a result of the proposed amendments. The costs of compliance with the proposed amendments are discussed in the Economic Impact statement above. The Director believes that the proposed amendments should be uniformly applied to all occupational therapy 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 proposed 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 proposal follows :

<< NJ ADC 13:44K-7.1 >>

13:44K-7.1 Supervision requirement: temporary licensed occupational therapist and temporary licensed occupational therapy assistant

(a) A temporary licensed occupational therapist <<-or a temporary licensed occupational therapy assistant- >> shall work only under the supervision of a licensed occupational therapist <<-or licensed occupational therapy assistant- >> pursuant to the provisions of this subchapter.

<<+(b) A temporary licensed occupational therapy assistant shall work only under the supervision of a licensed occupational therapist, or a licensed occupational therapy assistant who has been delegated supervisory responsibilities pursuant to N.J.A.C. 13:44K-6.4, pursuant to the provisions of this subchapter.+ >>

Recodify existing (b)-(c) as <<+(c)-(d)+ >> (No change in text.)

<< NJ ADC 13:44K-7.2 >>

13:44K-7.2 Responsibilities of designated supervisor

(a)-(c) (No change.)

<<+(d) Notwithstanding the provisions of (a) through (c) above, an occupational therapist who has less than 1,200 hours of work experience obtained over a two-year period shall not supervise any persons engaged in the practice of occupational therapy services, including temporary licensed occupational therapists or temporary licensed occupational therapy assistants.+ >>

Recodify existing (d)-(e) as <<+(e)-(f)+ >> (No change in text.)

<<-(f)- >> <<+(g)+ >> A designated supervisor who is unavailable to provide licensees with supervision as required by (a) through <<- (c)- >> <<+(d)+ >> above, for more than one day, shall arrange for substitute supervision by a licensed occupational therapist, who shall follow the established plan of supervision.



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