New York State
Occupational Therapy Association

Memorandum of Support
Occupational Therapy Practice Act Amendments
S.4538 by Senator Kenneth LaValle
A.7790 by Assembly member Ronald Canestrari

The New York State Occupational Therapy Association is seeking legislation that amends Article 156 of Title VIII of the education law, regarding occupational therapy. The licensing and regulation of occupational therapy practice was established in 1975. At that time occupational therapy was a profession based primarily in hospitals, nursing homes and psychiatric hospitals. Since that time the profession has grown dramatically, especially in early intervention, special education and school-based practice. Occupational therapy is now a large rehabilitation profession providing services to all ages and in a wide variety of settings, including private practice.

In the last legislative session the bill reached third reading in the Senate.

The proposed legislation makes the following updates to the practice act for occupational therapy:

The occupational therapy assistant, and the client related services that they provide, is added to the practice act. At the time of initial licensing of occupational therapy the licensing of practitioners with an associates degree was not well recognized. The current practice of occupational therapy assistants is provided for through an exemption to the act. This arrangement of practice through exemption does not provide adequate regulation of the occupational therapy assistant. The occupational therapy assistant amendment does not establish a new profession or add a new burden to the department of education. Occupational therapy assistants are currently registered through the department. Occupational therapy assistants practice currently in many rehabilitation settings and are reimbursed now by Medicare, Medicaid and many private insurers. A requirement that the occupational therapy assistant pass a licensing examination approved by the department of education is added in order to meet high standards for entry level credentials. This examination requirement is consistent with current national standards in the profession. 

The requirement of direct supervision of occupational therapy assistants is maintained. This legislation also provides for further clarification of supervision standards by commissioner's regulations. A limit of how many occupational therapy assistants may be supervised by one occupational therapist is set.

The definition of occupational therapy is amended to clarify that occupational therapy practitioners may provide consultation, wellness and prevention services. Occupational therapists currently provide consultation to clients, care-givers, family and organizations. Many occupational therapists have either pursued private practices in wellness and primary prevention services or integrated these interventions into their traditional rehabilitation practice. Occupational therapy is a natural source of wellness and prevention services since the profession encourages healthy engagement in activities that promote health and a fuller more productive life-style. 

The requirement for a referral from optometry is added. Many occupational therapists are providing rehabilitation services to people with visual impairments. Collaboration with optometry has become critical in providing these services. Medicare now provides coverage of occupational therapy services referred by an optometrist. However, at present the occupational therapy practice act in New York State does not allow for this referral.

Direct access to occupational therapy services in non-medical situations is added to the practice act. Occupational therapy provides services that are non-medical with students in school settings, with the elderly in community centers, or in the work place for ergonomics. Some of these services are prevention oriented, such as fall prevention in the elderly and injury prevention at the job. The requirement of a referral or prescription in these non-medical settings creates an undue cost and burden to the client, and an obstacle or delay in services.

The state board of occupational therapy is changed, removing the physician and hospital administrator from the board and adding an occupational therapy assistant and two public members. The requirement of a physician and hospital administrator on the state board was established when the profession was identified as a hospital-based profession. This is no longer accurate as the majority of the profession works in non-hospital settings. Currently, there is one public member on the state board. However, national opinion on oversight of professions recommends greater accountability to the public, including larger representation of the public on state boards. Since the state board provides oversight for practice of occupational therapy assistants, representation by at least one occupational therapy assistant with knowledge, experience, and the perspective of an occupational therapy assistant is appropriate.

The provision for a limited permit is amended. An individual with a limited permit will be allowed to practice for a full year, under direct supervision, while attempting to pass the exam required for licensure. At present a limited permit becomes null and void when a limited permitee fails the exam required for a license. The amendment also allows a limited permitee to practice in any setting as long as there is adequate supervision. At present, the settings that a limited permitee may practice in are limited to traditional health care and school based settings. It was assumed that these settings would naturally provide the appropriate amount of supervision. The new amendments authorize the commissioner to set forth specific direct supervision requirements of the limited permitee in order to assure public safety.

This legislation provides critical updates to our profession’s practice act. The New York State Occupational Therapy Association urges the legislature to pass this legislation into law.