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ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
occupational therapists; compact
Purpose
Adopts the Occupational Therapy Licensure Compact (Compact), permitting licensed occupational therapists and occupational therapy assistants to obtain licensure in other Compact states. Establishes the Occupational Therapy Compact Commission (Commission).
Background
An occupational therapist is a person who is licensed to practice occupational therapy, including the use of therapeutic activities or modalities to promote engagement activities in individuals who are limited by a physical or cognitive injury or illness, psychosocial dysfunction, developmental or learning disabilities, sensory processing, modulation deficits or the aging process in order to achieve optimum functional performance, maximize independence, prevent disability and maintain health. Occupational therapy includes the evaluation, treatment and consultation based on the client's temporal, spiritual and cultural values and needs. An occupational therapy assistant is a licensed graduate of an accredited educational program who assists in the practice of occupational therapy and who performs delegated procedures.
Occupational
therapy services includes: 1) developing an intervention and training plan
for patients; 2) evaluating and facilitating developmental, perceptual-motor,
communication, neuromuscular and sensory processing function, psychosocial
skills and systemic functioning;
3) enhancing functional achievement, prevocational skills and work capabilities
through the use of therapeutic activities and modalities; 4) evaluating,
designing, fabricating and training the individual in the use of selective
orthotics, prosthetics, adaptive devices, assistive technology and durable
medical equipment; 5) administering and interpreting standardized and
nonstandardized tests; and 6) assessing and adapting environments for
individuals with disabilities who are at risk of dysfunction (A.R.S.
§ 32-3401).
Occupational therapists and occupational therapy assistants are licensed by the Board of Occupational Therapy Examiners (Board). The Board must: 1) administer, coordinate and enforce laws governing occupational therapy; 2) evaluate applicant qualifications; 3) prescribe examination requirements for licensure; 4) adopt rules necessary to carry out occupational therapy statutes; 5) conduct informal meetings, formal interviews and hearings and keep necessary records and minutes; and 6) prescribe educational programs required for licensure (A.R.S. § 32-3404).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Purpose
1. States that the purpose of the Compact is to facilitate the interstate practice of occupational therapy with the goal of improving public access to occupational therapy services.
2. Specifies that the practice of occupational therapy occurs in the state where the patient or client is located at the time of the patient or client encounter.
3. States that the Compact preserves the regulatory authority of the states to protect public health and safety through the current system of state licensure.
4. Asserts that the Compact is designed to:
a) increase public access to occupational therapy services by providing for the mutual recognition of other member state licenses;
b) enhance the states' ability to protect the public's health and safety;
c) encourage the cooperation of member states in regulating multistate occupational therapy practice;
d) support spouses of relocating military members;
e) enhance the exchange of licensure, investigative and disciplinary information between member states;
f) allow a remote state to hold a provider of services with a Compact privilege in that state accountable to practice standards; and
g) facilitate the use of telehealth technology in order to increase access to occupational therapy services.
State Participation in the Compact
5. Requires a state, in order to participate in the Compact, to do each of the following:
a) license occupational therapists and occupational therapy assistants;
b) participate fully in the commission's data system, including using the Commission's unique identifier;
c) have a mechanism in place for receiving and investigating complaints about licensees;
d) notify the Commission of any adverse action or the availability of investigative information regarding a licensee;
e) implement or use procedures for considering the criminal history records of applicants, including the submission of fingerprints or other biometric-based information for the purpose of obtaining criminal history record information;
f) comply with Commission rules;
g) utilize only a recognized national examination as a licensure requirement; and
h) have continuing competence and education requirements as a condition for licensure renewal.
6. Requires member states to grant Compact privilege to a licensee with a valid unencumbered license in another member state.
7. Permits member states to charge a fee for granting Compact privilege.
8. Requires member states to provide for the state's delegate to attend all Commission meetings.
9. Specifies that individuals that do not reside in a member state must still be able to apply for a member state's single state license.
10. Specifies that individuals that do not reside in a member state that receive a member state's single state license are not recognized as licensed in other member states.
11. States that the Compact does not affect the requirements established by a member state for the issuance of a single-state license.
Compact Privilege
12. States that, in order to exercise Compact privilege, licensees must:
a) hold a license in the licensee's home state;
b) have a valid U.S. social security number or national practitioner identification number;
c) have no encumbrance on any state license;
d) be eligible for a compact privilege in any member state;
e) have paid all fines and completed all requirements resulting from any adverse action against any license or compact privilege, with two years elapsed from the date of completion;
f) notify the Commission that the licensee is seeking Compact privilege within a remote state or states;
g) pay any applicable fees, including any state fee, for compact privilege;
h) complete a criminal background check, with the licensee responsible for the payment of any associated fee;
i) meet any jurisprudence requirements established by the remote state or states in which the licensee is seeking compact privilege; and
j) report to the Commission any adverse action taken by a nonmember state within 30 days.
13. Specifies that compact privilege is valid until the expiration date of the home state license.
14. States that licensees must comply with the requirements of the Compact to maintain Compact privilege in the remote state.
15. Requires a licensee providing occupational therapy in a remote state under Compact privilege to function within the laws and regulations of the remote state.
16. Requires occupational therapy assistants practicing in a remote state to be supervised by an occupational therapist who is licensed or holding a Compact privilege in that state.
17. States that a licensee providing occupational therapy in a remote state is subject to that state's regulatory authority.
18. Permits a remote state to remove a licensee's Compact privilege in the state for a specified period of time, impose fines or take any other necessary actions to protect the health and safety of its citizens.
19. Specifies that licensees that have lost Compact privileges in a remote state are ineligible for Compact privilege in any other state until the specified time for removal has passed and all fines are paid.
20. Stipulates that, if a licensee's home state license is encumbered, the licensee loses Compact privileges in any remote state until the home state license has been unencumbered for a period of two years.
21. Specifies that, once an encumbered license in a licensee's home state is restored to good standing, the licensee must once again meet Compact licensure requirements in order to obtain a compact privilege in any remote state.
22. Stipulates that, if a licensee's Compact privilege in any remote state is removed, the licensee may lose Compact privilege in any other remote state until:
a) the specific period of time for which the Compact privilege was removed has ended;
b) all fines have been paid and all conditions have been met;
c) two years have elapsed from the date the Compact privilege was removed and all fines and conditions were paid; and
d) the Compact privileges are reinstated by the Commission and the compact data system is updated to reflect reinstatement.
23. Stipulates that, if a licensee's Compact privilege in a remote state is removed due to an erroneous charge, privileges must be restored through the compact data system.
24. Requires a licensee that lost Compact privileges to once again meet all Compact requirements to obtain a new compact privilege in a remote state.
Obtaining Licensure by Virtue of Compact Privilege
25. Limits occupational therapy or occupational therapy assistant home state licensure to only one member state at a time.
26. Stipulates that, if an occupational therapist or occupational therapy assistant changes primary state of residence by moving between two member states:
a) the occupational therapist or occupational therapy assistant must file an application for obtaining a new home state license by virtue of Compact privilege, pay all applicable fees and notify the current and new home state;
b) the new home must verify that the occupational therapist or occupational therapy assistant meets Compact-required criteria via the data system, without need for primary source verification, except for a criminal background check and submission of any requisite jurisprudence requirements of the new home state;
c) the former home state must convert the former home state license into a Compact privilege once the new home state has activated the new license;
d) the new home state must apply its single-state licensure requirements if the occupational therapist or occupational therapy assistant does not meet the required criteria of the Compact; and
e) the occupational therapist or the occupational therapy assistant must pay all applicable fees to the new home state in order to be licensed.
27. Stipulates that the state criteria for issuance of a single-state license applies if an occupational therapist or occupational therapy assistant changes primary state of residence by moving from a member state to a nonmember state or from a nonmember state to a member state.
28. States that this compact does not interfere with a licensee's ability to hold a single-state license in multiple states or affect the requirements established by a member state for the issuance of a single-state license.
Active-Duty Military Personnel and Spouses
29. Requires active-duty military personnel or military spouses to designate a home state where the individual has a current license in good standing.
30. Allows active-duty military personnel or military spouses that are licensed occupational therapists to retain the home state designation during the period the service member is on active duty.
31. Permits an active-duty service member or military spouse that is a licensed occupational therapist to change home state only through application for licensure in a new state or through the Compact processes.
Adverse Actions
32. Grants home states the exclusive power to impose adverse action against an occupational therapist's or occupational therapy assistant's license issued by the home state.
33. Grants remote states the authority, in accordance with existing state due process law, to:
a) take adverse action against an occupational therapist's or occupational therapy assistant's compact privilege within that member state; and
b) issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence.
34. Specifies that subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state must be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court.
35. Requires an authority that issues subpoena to pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state where the witnesses or evidence is located.
36. Stipulates that, for purposes of taking adverse action, a home state must give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state.
37. Requires a home state to complete any pending investigations of an occupational therapist or occupational therapy assistant who changes primary state of residence during the course of the investigations.
38. Grants a home state the authority to take any appropriate action and promptly report the conclusions of the investigations to the Commission data system.
39. Requires the Commission data system administrator to promptly notify the new home state of any adverse actions.
40. Allows a member state to recover the costs of investigations and disposition of cases from the affected occupational therapist or occupational therapy assistant.
41. Permits a member state to take adverse action based on the factual findings of the remote state, provided that the member state follows its own procedures for taking the adverse action.
42. Permits member states to conduct joint investigations of occupational therapists and occupational therapy assistants.
43. Requires member states to share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation.
44. Stipulates that an occupational therapist's or occupational therapy assistant's Compact privileges are deactivated if any adverse action is taken by the state.
45. Requires all home state disciplinary orders that impose adverse action against an occupational therapist's or occupational therapy assistant's license to include a statement that the individual's Compact privilege is deactivated in all member states during the pendency of the order.
46. Requires a member state that takes adverse action to promptly notify the data system administrator.
47. Requires the data system administrator to promptly notify the home state of any adverse actions by remote states.
48. States that the Compact does not override a member state's decision that participation in an alternative program may be used in lieu of adverse action.
Occupational Therapy Compact Commission
49. Establishes the Commission as an instrumentality of Compact states.
50. Requires judicial proceedings by or against the Commission to be brought solely in court of competent jurisdiction where the Commission's principal office is located.
51. Prohibits any provision of the Compact from being construed as a waiver of sovereign immunity.
52. Outlines membership, authorities and duties of the Commission.
53. Establishes an executive committee with the power to act on behalf of the Commission.
54. Outlines membership, authorities and duties of the executive committee.
55. Requires Commission meetings to be open to the public, with properly provided public notice.
56. Permits the Commission and the executive committee to convene for a closed, nonpublic meeting if outlined topics are discussed.
57. Requires the Commission's legal counsel or designee to certify that a meeting is closed and reference each relevant exempting provision.
58. Requires the Commission to keep minutes of meetings.
59. Prescribes financial requirements and authorities of the Commission.
60. Holds harmless from liability the members, officers, executive director, employees and representatives of the Commission for any claim for damage to or loss of property, personal injury or other civil liability caused by an act, error or omission that occurred, unless the damage, loss, injury or liability was caused by the intentional, willful or wanton misconduct of that person.
61. Requires the Commission to defend any member, officer, executive director, employee or representative of the Commission in any civil action seeking to impose liability for an act, error or omission that occurred within the scope of Commission employment, duties or responsibilities if the act was not a result of intentional, willful or wanton misconduct.
62. Allows a person to retain private counsel in any action against the person.
63. Requires the Commission to indemnify and hold harmless any member, officer, executive director, employee or Commission representative for the amount of any settlement or judgment obtained against that person arising out of an act, error or omission that occurred within the commission employment, duties or responsibilities.
Data System
64. Requires the Commission to develop, maintain and utilize a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.
65. Requires member states to submit uniform data sets to the data system on all Compact individuals using a unique identifier, including:
a) identifying information;
b) licensure data;
c) adverse actions against a license or Compact privilege;
d) nonconfidential information related to alternative program participation;
e) any denial of licensure and the reasons why;
f) other information that may facilitate Compact administration; and
g) current significant investigative information.
66. States that current significant investigative information and other investigative information pertaining to a licensee in any member state is to only be available to other member states.
67. Requires the Commission to notify all member states of any adverse action taken against a licensee or applicant.
68. Provides access, to any member state, to adverse action information pertaining to a licensee.
69. Permits member states that contribute information to the data system to designate confidential information that may not be shared without express permission.
70. Requires any data system information that must be expunged to be removed from the data system.
Rulemaking
71. Requires the Commission to exercise its rulemaking powers.
72. Specifies that rules and amendments become binding on date specified in each rule or amendment.
73. Requires the Commission to adopt reasonable rules in order to effectively and efficiently achieve the purposes of the Compact.
74. Stipulates that any rulemaking action of the Commission that is beyond the scope of the Compact is invalid and has no force or effect.
75. Stipulates that a rule has no further force or effect in any member state if a majority of the legislatures of the member states rejects a rule by enactment of a statute or resolution in the same manner used to adopt the compact, within four years of the adoption of the rule.
76. Requires rules or rules amendments to be adopted at a regular or special meeting.
77. Requires the Commission, at least 30 days before a meeting to consider and vote on rules, to file a notice of proposed rulemaking on the website of:
a) the commission or other publicly accessible platform; and
b) each member state's occupational therapy licensing board or other publicly accessible platform in which each state would otherwise publish proposed rules.
78. Prescribes requirements for notices of proposed rulemaking.
79. Requires the Commission, before the adoption of a proposed rule, to allow persons to submit written data, facts, opinions and arguments to be made available to the public.
80. Requires the Commission to grant an opportunity for a public hearing before it adopts a rule or amendment if requested by at least 25 people, a state or federal governmental subdivision or agency or an association or organization with at least 25 members.
81. Requires the Commission to:
a) publish notice of the place, time and date of a scheduled public hearing on a proposed rule or amendment and prescribes additional requirements;
b) consider all written and oral comments received on a proposed rule or amendment; and
c) take final action on a proposed rule by majority vote and determine the effective date of the rule, if any.
82. Permits the Commission to proceed with adopting a proposed rule without a public hearing if no written notice of intent to attend the public hearing by interested parties is received.
83. Permits the Commission to consider and adopt an emergency rule without prior notice, an opportunity for comment or a hearing if the Commission determines that there is an emergency and usual rulemaking procedures provided in the Compact are retroactively applied as soon as reasonably possible, within 90 days.
84. Specifies that an emergency rule is one that must be adopted immediately in order to:
a) meet an imminent threat to public health, safety or welfare;
b) prevent a loss of Commission or member state funds;
c) meet a deadline for the adoption of an administrative rule established by federal law; or
d) protect public health and safety.
85. Allows the Commission or an authorized committee to direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors.
86. Requires public notice of any revisions to be posted on the Commission website.
87. Specifies that revisions are subject to challenge by any person for 30 days on grounds that the revision results in a material change to a rule.
88. Requires any challenge to be made in writing and delivered to the Chairperson of the Commission before the end of the notice period.
89. Stipulates that the revision takes effect without further action if no challenge is made.
90. Stipulates that, if the revision is challenged, the revision may not take effect without the approval of the Commission.
Oversight, Dispute Resolution and Enforcement
91. Requires the executive, legislative and judicial branches of state government in each member state to enforce the Compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent.
92. States that the provisions of the Compact and the rules adopted under this Compact are statutory law.
93. Requires all courts to take judicial notice of the Compact and the rules in any judicial or administrative proceeding in a member state that pertain to the Compact that may affect the powers, responsibilities or actions of the Commission.
94. Entitles the Commission to receive service of process as well as standing to intervene in a proceeding for all purposes.
95. Specifies that failure to provide service of process to the Commission renders a judgment or order void.
96. Requires the Commission, if a member state has defaulted in the performance of its obligations or responsibilities under the Compact, to:
a) provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default or any other action to be taken by the Commission; and
b) provide remedial training and specific technical assistance regarding the default.
97. Allows a defaulting state that fails to cure a default to be terminated from the Compact, upon a majority vote of member states.
98. Specifies that curing a default does not relieve an offending state of obligations or liabilities incurred during the period of default.
99. Allows termination of Compact membership only after all other means of securing compliance have been exhausted.
100. Requires the Commission to provide notice of intent to suspend or terminate a state to the governor, the majority and minority leaders of the state's legislature and each of the member states.
101. Specifies that a terminated state is responsible for all assessments, obligations and liabilities incurred, including obligations that extend beyond the effective date of termination.
102. Restricts the Commission from bearing any costs related to a defaulting or terminated state, unless agreed to in writing between the Commission and the defaulting state.
103. Allows a defaulting state to appeal an action of the Commission by petitioning the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices.
104. Awards all costs of litigation, including reasonable attorney fees, to the prevailing party.
105. Requires the Commission to attempt to resolve Compact disputes between member states or member states and non-member states upon request by a member state.
106. Requires the Commission to adopt a rule providing for both mediation and binding dispute resolution.
107. Requires the Commission, in the reasonable exercise of its discretion, to enforce the provisions and rules of the Compact.
108. Permits the Commission, by majority vote, to initiate legal action in the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices against a defaulting member state to enforce Compact compliance, including seeking both injunctive relief and damages.
109. Specifies that, if judicial enforcement is necessary, the prevailing member is awarded all costs of litigation, including reasonable attorney fees.
110. Asserts that Compact remedies are not the exclusive remedies of the Commission and that the Commission may pursue any other remedies available under federal or state law.
Date of Implementation, Withdrawals and Amendments
111. Enacts the Compact on the date that the Compact is adopted by a 10th member state.
112. Limits the powers granted to the commission relating to assembly and the adoption of rules to only the provisions of the Compact.
113. Requires the Commission to meet and exercise rulemaking powers necessary to implement and administer the Compact upon the effective date.
114. Specifies that any state that joins the Compact subsequent to the Commission's initial adoption of rules is subject to the rules in place on the effective date of the Compact.
115. States that any rule previously adopted by the Commission has the full force and effect of law on the effective date of the Compact.
116. Permits any member state to withdraw from the Compact by enacting a statute repealing the Compact.
117. Specifies that a member state's withdrawal does not:
a) take effect until six months after repealing the enacting statute; or
b) affect the continuing requirement of the withdrawing state's occupational therapy licensing board to comply with the investigative and adverse action reporting requirements of the Compact before the date of withdrawal.
118. States that the Compact does not invalidate or prevent any occupational therapy licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with Compact provisions.
119. Permits the Compact to be amended by the member states.
120. Specifies that a Compact amendment does not become effective until it is enacted by all member states.
Construction and Severability
121. Requires the Compact to be liberally construed so as to effectuate its purposes.
122. Requires the provisions of the Compact to be severable.
123. Stipulates that, if any phrase, clause, sentence or provision of the Compact is declared to be contrary to the constitution of a member state or of the United States, the validity of the remainder of the Compact and the applicability to any government, agency, person or circumstance is not affected.
124. Stipulates that, if the Compact violates the constitution of a member state, the Compact remains in full force and effect for:
a) the remaining member states; and
b) all severable matters of the affected member state.
Binding Effect of Compact and Other Laws
125. Requires occupational therapy licensees in a remote state with Compact privileges to function within the laws and regulations of the remote state.
126. Specifies that the Compact does not prevent the enforcement of any other law of a member state that is not inconsistent with the Compact.
127. States that any laws of a member state that are in conflict with the Compact are superseded to the extent of the conflict.
128. Specifies that any lawful actions of the Commission, including all adopted rules and bylaws, are binding on the member states.
129. Specifies that all agreements between the Commission and member states are binding in accordance with their terms.
130. Stipulates that, if any provision of the Compact exceeds the legislative constitutional limits of a member state, the provision is ineffective to the extent of the conflict.
Miscellaneous
131. Defines terms.
132. Becomes effective on the general effective date.
Prepared by Senate Research
February 14, 2022
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