32-3401. Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of occupational therapy examiners.

2. "Consultation" means the act or procedure of exchanging ideas or information or providing professional advice to another professional or responsible party regarding the provision of occupational therapy services.

3. "Evaluation" means an occupational therapist's assessment of treatment needs within the scope of practice of occupational therapy. Evaluation does not include making a medical diagnosis.

4. "Letter of concern" means a nondisciplinary advisory letter to notify a licensee that, while there is insufficient evidence to support disciplinary action, the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in future action against the licensee's license.

5. "Occupational therapist" means a person who is licensed pursuant to this chapter to practice occupational therapy and who is a graduate of an accredited occupational therapy education program, completes the approved fieldwork and passes the examination as required by the board pursuant to section 32-3424.

6. "Occupational therapy" means the use of therapeutic activities or modalities to promote engagement in activities with individuals who are limited by physical or cognitive injury or illness, psychosocial dysfunction, developmental or learning disabilities, sensory processing or modulation deficits or the aging process in order to achieve optimum functional performance, maximize independence, prevent disability and maintain health. Occupational therapy includes evaluation, treatment and consultation based on the client's temporal, spiritual and cultural values and needs.

7. "Occupational therapy assistant" means a person who is licensed pursuant to this chapter, who is a graduate of an accredited occupational therapy assistant education program, who assists in the practice of occupational therapy and who performs delegated procedures commensurate with the person's education and training.

8. "Occupational therapy services" includes the following:

(a) Developing an intervention and training plan that is based on the occupational therapist's evaluation of the client's occupational history and experiences, including the client's daily living activities, development, activity demands, values and needs.

(b) Evaluating and facilitating developmental, perceptual-motor, communication, neuromuscular and sensory processing function, psychosocial skills and systemic functioning, including wound, lymphatic and cardiac functioning.

(c) Enhancing functional achievement, prevocational skills and work capabilities through the use of therapeutic activities and modalities that are based on anatomy, physiology and kinesiology, growth and development, disabilities, technology and analysis of human behavioral and occupational performance.

(d) Evaluating, designing, fabricating and training the individual in the use of selective orthotics, prosthetics, adaptive devices, assistive technology and durable medical equipment as appropriate.

(e) Administering and interpreting standardized and nonstandardized tests that are performed within the practice of occupational therapy, including manual muscle, sensory processing, range of motion, cognition, developmental and psychosocial tests.

(f) Assessing and adapting environments for individuals with disabilities or who are at risk for dysfunction.

9. "Supervision" means the giving of instructions by the supervising occupational therapist or the occupational therapy assistant that are adequate to ensure the safety of clients during the provision of occupational therapy services and that take into consideration at least the following factors:

(a) Skill level.

(b) Competency.

(c) Experience.

(d) Work setting demands.

(e) Client population.

10. "Unprofessional conduct" includes the following:

(a) Habitual intemperance in the use of alcohol.

(b) Habitual use of narcotic or hypnotic drugs.

(c) Gross incompetence, repeated incompetence or incompetence resulting in injury to a client.

(d) Having professional connection with or lending the name of the licensee to an unlicensed occupational therapist.

(e) Practicing or offering to practice occupational therapy beyond the scope of the practice of occupational therapy.

(f) Obtaining or attempting to obtain a license by fraud or misrepresentation or assisting a person to obtain or to attempt to obtain a license by fraud or misrepresentation.

(g) Failing to provide supervision according to this chapter and rules adopted pursuant to this chapter.

(h) Making misleading, deceptive, untrue or fraudulent representations in violation of this chapter.

(i) Having been adjudged mentally incompetent by a court of competent jurisdiction.

(j) Knowingly aiding a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

(k) Failing to report to the board any act or omission of a licensee or applicant or of any other person who violates this chapter.

(l) Engaging in the performance of substandard care by a licensee due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the person receiving occupational therapy services is established.

(m) Failing to refer a client whose condition is beyond the training or ability of the occupational therapist to another professional qualified to provide such service.

(n) Censure of a licensee or refusal, revocation, suspension or restriction of a license to practice occupational therapy by any other state, territory, district or country, unless the applicant or licensee can demonstrate that the disciplinary action is not related to the ability to safely and skillfully practice occupational therapy or to any act of unprofessional conduct prescribed in this paragraph.

(o) Any conduct or practice that violates recognized standards of ethics of the occupational therapy profession, any conduct or practice that does or might constitute a danger to the health, welfare or safety of the client or the public or any conduct, practice or condition that does or might impair the licensee's ability to safely and skillfully practice occupational therapy.

(p) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate this chapter.

(q) Falsely claiming to have performed a professional service, billing for a service not rendered or charging or collecting an excessive fee for services not performed.

(r) Sexually inappropriate conduct with a client. For the purposes of this subdivision, "sexually inappropriate conduct" includes:

(i) Engaging in or soliciting a sexual relationship, whether consensual or nonconsensual, with a current client or with a former client within three months after termination of occupational therapy services.

(ii) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or inappropriate physical contact of a sexual nature with a person treated by an occupational therapist or occupational therapy assistant.

(iii) Intentionally viewing a completely or partially disrobed client in the course of treatment if the viewing is not related to treatment under current practice standards.

(s) Knowingly making a false or misleading statement to the board on a license application or renewal form required by the board or any other verbal or written communications directed to the board or its staff.

(t) Conviction of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude.  In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission and the board may take disciplinary action after the time for appeal has lapsed, when judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order.  For the purposes of this subdivision, "conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

(u) Violating any federal law, state law, rule or regulation directly related to the practice of occupational therapy.

(v) Engaging in false advertising of occupational therapy services.

(w) Engaging in the assault or battery of a client.

(x) Falsifying client documents or reports.

(y) Failing to document or maintain client treatment records or failing to prepare client reports within thirty days of service or treatment.

(z) Failing to renew a license while continuing to practice occupational therapy.

(aa) Signing a blank, undated or unprepared prescription form.

(bb) Entering into a financial relationship other than a normal billing process that leads to embezzlement or violates recognized ethical standards.

(cc) Failing to maintain client confidentiality without written consent of the client or unless otherwise required by law.

(dd) Promoting or providing treatment, intervention or a device or service that is unwarranted for the condition of the client beyond the point of reasonable benefit.