ORDERS:
PUBLIC HEARING REPORT OF THE ADMINISTRATIVE LAW JUDGE
Pursuant to S.C. Code Ann. §§ 1-23-110 and 1-23-111 (Supp. 1996), a public hearing was held on January 18, 1999 at the
Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina, to determine the "need and
reasonableness" of the proposed regulations. The purpose of the proposed regulations is to ensure that the provisions of the
Occupational Therapy Practice Act, enacted May 27, 1998 at S.C. Code Ann. §§ 40-36-10 et seq., (Supp. 1998), are carried
out by the promulgation of these proposed regulations.
The South Carolina Department of Labor, Licensing and Regulation (Department), the Board of Occupational Therapy
(Board) and interested persons presented testimony and written materials relating to the proposed regulations, all of which
were incorporated into the record of the hearing.
The following Proponents of the proposed regulations participated in the public hearing:
Janine P. Turner, Chairman of the S.C. Board of Occupational Therapy
Brenda M. Owens, Administrator, S.C. Department of Labor, Licensing and Regulation
Mario F. Canelon, S.C. Board of Occupation Therapy
Susan McFadden, Director of Regulatory Affairs, National Board for Certification of Occupational Therapy
M.A. Grow, National Board for Certification of Occupational Therapy
The following Opponents of the proposed regulations participated in the public hearing:
Lori Seaman, American Occupational Therapy Association and South Carolina Occupational Therapy Association
FINDINGS
Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:
General Findings
1. The Notice of Drafting of the proposed regulations was published in the State Register on October 23, 1998.
3. The Department filed an Agency Transmittal Form with the Administrative Law Judge Division on October 26, 1998.
4. The Notice of Proposed Regulation was published in the State Register on November 27, 1998, which included a "Section
by Section Discussion" of the proposed regulations and a "Notice of Public Hearing and Opportunity for Public Comment."
5. The Department complied with all notice and procedural requirements of the Administrative Procedures Act (APA) and
the Administrative Law Judge Division Rules of Procedure.
6. A public hearing to allow the Board's presentation and public comment was conducted on January 18, 1999, pursuant to
S.C. Code Ann. § 1-23-111, at which time this Court received oral testimony, exhibits, and written comments from the
Board and interested persons.
7. The Opponents to the proposed regulations are not opposed to the proposed regulations in their entirety. However, the
Opponents maintain that further clarification is needed of the National Board for Certification of Occupational Therapy
(NBCOT)(1) certification requirements addressed under Article 3 of the proposed regulations entitled "Licensing
Provisions."(2) More specifically, the Opponents' primary concern is that the term "in good standing" has not been clarified
by the NBCOT. Additionally, the Opponents question the alleged lack of agreement between student curriculum
requirements for occupational therapy assistants and the Accreditation Council for Occupational Therapy Educational
(ACOTE) guidelines.
Therefore, the following discussion shall be limited to only these issues.
Purpose of Proposed Regulations
8. S.C. Code Ann. §§ 40-36-10 et seq. (Supp. 1998), enacted May 27, 1998, is known as the Occupational Therapy Practice
Act. It was created to give the South Carolina Board of Occupational Therapy, under the Department of Labor, Licensing
and Regulation, the authority to propose, adopt and revise regulations necessary to carry out the provisions of Chapter 36 of
Title 40. The Board of Occupational Therapy must be able to monitor and direct those individuals subject to S.C. Code
Ann. §§ 40-36-10 et seq., including, but not limited to, occupational therapists and occupational therapy assistants.
As set forth in the "Preamble" to the "Section by Section Discussion" to the proposed regulations in the November 27, 1998
State Register, the purpose of the proposed regulations is to "...add [the] definitions of 'continuing education' and 'contact
hour' and addresses [sic] the election of officers of the Board and frequency of Board meetings. The proposed regulations
also establish requirements for licensure of occupational therapists and occupational therapy assistants, endorsement, and
reactivation of inactive or lapsed licenses. Further requirements include the addition of sixteen (16) contact hours of
continuing education for occupational therapists and occupational therapy assistants. Finally, the proposed regulations
establish fees and adopt a code of ethics."
Clarification of "In Good Standing" Under the NBCOT
9. Reg. 94-04(5) of the proposed regulations sets forth that "[a]n applicant for initial licensure as an occupational therapist
must: submit proof satisfactory to the Board that the applicant is in good standing with the National Board of Certification
in Occupational Therapy (NBCOT) or other Board-approved certification program." (Emphasis added). Both proposed
Reg. 94-05(5), entitled General Licensure for Occupational Therapy Assistants, and proposed Reg. 94-06(2), entitled
Licensure by Endorsement, have this same requirement that the applicant be "in good standing with the National Board of
Certification in Occupational Therapy (NBCOT) or other Board-approved certification program." (Emphasis added).
The Opponents to the proposed regulations contend that the regulations are unreasonable to the extent that the term "in
good standing with the NBCOT" has not yet been clarified. Ms. Seaman testified that the NBCOT is in the process of
implementing a new two-phase certification program whereas in the past, certification with the NBCOT was a one-time
certification with renewal every five years. The Opponents did not raise any concerns regarding Phase I of the new program
which entails filling out the certification forms and submitting a $75.00 processing fee. However, Phase II of this two-phase
program, which is to measure continued competencies of occupational therapists (OT) and occupational therapy assistants
(OTA), has not yet been established and has been the focus of considerable controversy and interprofessional debate. The
Opponents assert that if the two-phase NBCOT certification program is incorporated into the OT and OTA regulations,
then the state would be requiring practitioners to comply with a competency standard that is yet unknown.
The Proponents set forth that the Board's goal with these regulations is to protect the public by ensuring the continued
competency of practitioners in the field of occupational therapy. They also contend that the regulations are merely echoing
the need to be "in good standing with the NBCOT or other board-approved certification program" as already set forth in
S.C. Code Ann. §§ 40-36-230(A)(4) and 40-36-250(2) (Supp. 1998) of the Occupational Therapy Practice Act.
Furthermore, the Board is in support of Phase I of the NBCOT new certification program, the portion of the two-part
certification process that has been implemented. Phase I offers the state an additional checks and balances system against its
internal licensure renewal process and additional protection to the public from individuals who move into this state from
states that do not statutorily monitor the OT profession as closely as South Carolina. The NBCOT also provides an appeal
process for individuals who have been referred to the NBCOT Disciplinary Action Committee when warranted.
Disparity Between Student Curriculum Requirements and ACOTE Guidelines
10. The Opponents also expressed concern regarding the supervised field experience requirement for occupational therapy
assistants set out in Reg. 94-05(2) of the proposed regulations. Reg. 94-05(2) sets forth that an applicant for initial licensure
as an OTA must "submit proof satisfactory to the Board of successful completion of a minimum of two (2) months of
supervised field experience at a facility approved by the educational institution where the applicant met the academic
requirements." (Emphasis added). This requirement is set by the Accreditation Council for Occupational Therapy Education
(ACOTE) and has increased from two months to four months since the drafting of these regulations. Both this regulation
and the occupational therapist enabling statute have this "minimum of two months" language.(3) The Opponents brought up
the fact that this may be misleading to students who are pursuing an OTA license. However, the Opponents stated at the
hearing that this issue is no longer a concern to them.
In response to this concern, the Proponents set forth that the Board intends to draft proposed policies and procedures to
provide additional guidance regarding the supervisory requirements for students and occupational therapy assistants.
CONCLUSIONS
General Conclusions
1. The Board of Occupational Therapy, a component of the South Carolina Department of Labor, Licensing and Regulation,
is authorized to promulgate regulations pursuant to S.C. Code Ann. §§ 40-36-10 et seq. (Supp. 1998).
2. An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations to "fill in the details"
for the complete and consistent operation and enforcement of the law within its expressed general purpose. An
administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation. Young v. S.C.
Dep't of Highways and Public Transportation, 287 S.C. 108, 336 S.E. 2d 879 (Ct. App. 1985); Hunter & Walden Co. v.
S.C. State Licensing Bd. for Contractors, 272 S.C. 211, 251 S.E. 2d 186 (1978). A regulation which is beyond the
authorization of the agency's enabling legislation or which materially alters or adds to the law, however, is invalid. Society
of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E. 2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273,
24 S.E. 2d 496 (1943).
3. S.C. Code Ann. § 1-23-111(B) (Supp. 1996) calls for a written report by the presiding Administrative Law Judge that
includes "findings as to the need and reasonableness of the proposed regulation based on an analysis of the factors listed in
Section 1-23-115(C) . . . , and other factors as the presiding official identifies and may include suggested modifications to the
proposed regulation in the case of a finding of lack of need or reasonableness." In essence, the public hearing serves to edify
the agency as to potential problems with the regulation, in the hope that the agency will seek to modify the regulation
accordingly. To that end, S.C. Code Ann. § 1-23-111(C) (Supp. 1995) provides that if the presiding Administrative Law
Judge determines that the need for or reasonableness of the proposed regulation has not been established, the agency must
elect to:
(a) follow the suggestions of the Administrative Law Judge and submit the modified proposal for legislative approval;
(b) not modify the proposed regulation but submit the proposed regulation as originally drafted for legislative approval; or
(c) withdraw the proposed regulation.
Reasonableness
4. "Reasonable" is defined as "Fair, proper, just, moderate, suitable under the circumstances. . . . Not immoderate or
excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." Black's Law Dictionary,
1265 (6th ed. 1990). The word has been further defined to mean "agreeable to reason under the facts and circumstances of
the case before the Court." Ellis v. Taylor, 311 S.C. 66, 427 S.E. 2d 678 (Ct. App. 1992). The definitions are broad and
leave a wide discretion in interpreting the reasonableness of a proposed regulation.
5. I find that the NBCOT requirements of the proposed regulation are reasonable. I base that determination not necessarily
on the analysis of the Proponents but upon the fact that when the General Assembly passed the "Occupational Therapy
Practice Act," it did not limit the Board solely to NBCOT requirements. In other words, S.C. Code Ann. §§ 40-36-230(A)(4) and 40-36-250(2) (Supp. 1998) set forth that OTs and OTAs need to be "in good standing with NBCOT or other
board-approved certification program." (Emphasis added). The Board, when drafting the regulations at issue here, utilized
the same phrase "or other board-approved certification program." Therefore, because the door is left open in both the
statutes as well as these proposed regulations for the Board to approve of another certification program in the future other
than NBCOT, I do not find these portions of proposed Regs. 94-04(5), 94-05(5) and 94-06(2) to be unreasonable. Even
though the NBCOT has not clarified the meaning of "in good standing," the legislature has provided the Board with its own
checks and balances system against the NBCOT.
6. S.C. Code Ann. § 40-36-230(B)(2) and proposed Reg. 94-05(2) set forth that an applicant for initial licensure as an OTA
must "submit proof satisfactory to the Board of successful completion of a minimum of two (2) months of supervised field
experience at a facility approved by the educational institution where the applicant met the academic requirements."
(Emphasis Added). In using the language "a minimum of," the legislature did not place an absolute restraint on the amount
of supervised field experience required of OTAs. Rather, the General Assembly left room for the requirements of the
profession to be adjusted without the need for statutory amendments. The Board, in drafting these proposed regulations,
followed this example. (4) Therefore, I do not find this requirement unreasonable.
7. As stated earlier, Phase I of the new NBCOT certification program requires filling out the certification form and
submitting a processing fee of $75.00. Even though the Opponents did not express concerns regarding Phase I, I would like
to address a concern raised during the hearing of this case. The questions on the NBCOT form relate to felony convictions,
practice related issues and malpractice suit information. However, for efficiency purposes, the Department is developing a
generic questionnaire form for all Boards which will be used during the renewal process. All professions under the
Department, regardless of their practice areas, will be utilizing the same forms. This process is projected to be available with
all 2000 license renewals. Therefore, due to space constraints on their forms by the Department, the S.C. Board of
Occupational Therapy will not be able to ask three of the questions required by the NBCOT. The three additional questions
NBCOT asks, as explained by Susan McFadden of NBCOT, are:
1. In the past 5 years have you lost or voluntarily limited your privilege to practice as an OT or COTA due to alleged
incompetence, negligence or unethical or unprofessional conduct?
2. In the past 5 years have you been disciplined, terminated or allowed to resign in lieu of termination from an employment
setting due to alleged incompetence, negligence or unethical or unprofessional conduct?
3. In the past 5 years have you lost or settled a malpractice suit brought against you in any other capacity?
I find that the Department's disallowance of these questions is unreasonable. The Department should not expect every
occupation it regulates to conform to the same set of questions on its renewal forms. Although some of the questions may
be relevant to all the professions guided by the Department of Labor, Licensing and Regulation, some professions may need
more "profession-specific" questions in order for the Department to accurately regulate them. These three questions are
relevant to the field of occupational therapy. Moreover, I find it very persuasive that the NBCOT, the body that sets the
national standards for this field of practice, requires these three questions. See, S.C. Code Ann. § 40-1-40 (Supp. 1998).
The role of the Department is to protect the general public of this state. I find that this goal can be better achieved in this
matter by asking these three additional questions of those individuals seeking initial licensure or those renewing existing
licenses under the Occupational Therapy Practice Act in South Carolina.
8. Based upon the above Findings and Conclusions, I find that it is within the authority of the Board to promulgate these
proposed regulations and that the regulations are both reasonable and needed in order to support the newly enacted
Occupational Therapy Practice Act.
____________________________
Ralph King Anderson, III
Administrative Law Judge
August 16, 1999
Columbia, South Carolina
1. The NBCOT is a national independent credentialing agency that sets the national standards for occupational therapy practitioners and
occupational therapy assistants.
2. Article 3 of the proposed regulations, entitled "Licensing Provisions," contains Reg. 94-04 (which establishes the requirements that must be
met for initial licensure as an occupational therapist), Reg. 94-05 (which establishes the requirements that must be met for initial licensure as an
occupational therapy assistant), Reg. 94-06 (which establishes the requirements that must be met for licensure by endorsement as an occupational
therapist or occupational therapy assistant), and Reg. 94-07 (which establishes the requirements for reactivation of licensure that has been inactive
or lapsed).
3. S.C. Code Ann. § 40-36-230(B)(2) (Supp. 1998).
4. The regulations contain this language throughout when referencing any type of supervised experience occupational therapists and occupational
therapy assistants are required to have. |
