TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS
40 TAC §374.1, §374.2The Texas Board of Occupational Therapy Examiners proposes amendments to the Schedule of Sanctions figure in 40 Texas Administrative Code §374.1, Disciplinary Actions, and §374.2, Detrimental Practice.
The amendments to §374.2 will update the definition of "practiced occupational therapy in a manner detrimental to the public health and welfare" and clarify conduct that constitutes grounds to take disciplinary action against license holders.
Amendments to the Schedule of Sanctions in §374.1 will align the provisions therein with the proposed changes to §374.2; update the minimum, intermediate, and maximum discipline columns to reflect current trends in disciplinary action; and update administrative penalties for each day a violation continues or occurs. The amendments to the Schedule of Sanction also include the addition of a violation related to failure to inform the Board of information changes pursuant to §369.2, Changes of Name or Contact Information. The amendments also include general cleanups, including the removal of the current §374.2(12) and corresponding item in the Schedule of Sanctions, which concerned deceptive and fraudulent advertising, as a related item is already listed under Texas Occupations Code §454.301, Grounds for Denial of License or Discipline of License Holder; in tandem with the change, that related item from §454.301 has been added to the Schedule of Sanctions.
The amendments are proposed to ensure that the rules clearly identify the conduct that may be considered detrimental practice and the corresponding discipline. The changes will also facilitate the ability of individuals and the Board to identify violations and related discipline in order to ensure the health, safety, and welfare of the public.
FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS
Ralph A. Harper, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impact to state or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4) because the amendments do not impose a cost on state or local governments.
LOCAL EMPLOYMENT IMPACT
Mr. Harper has determined that the proposed amendments would not impact a local economy. Therefore, a local employment impact statement is not required under Texas Government Code §2001.022 and §2001.024(a)(6).
PUBLIC BENEFIT AND COST NOTE
Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the greater ability of the rules to address violations that may be considered detrimental practice in order to ensure the health, safety, and welfare of the public. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments because Texas Occupations Code Chapter 454, the Occupational Therapy Practice Act, already allows for the Board to impose an administrative penalty and proposed changes do not exceed that amount authorized by Texas Occupations Code §454.3521(b).
ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES
Mr. Harper has determined there would be no costs or adverse economic effects on small businesses, micro-businesses, or rural communities. Therefore, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002.
TAKINGS IMPACT ASSESSMENT
Mr. Harper has determined that no private real property interests are affected by these proposed amendments and that these amendments do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, these amendments do not constitute a taking under Texas Government Code §2007.043.
GOVERNMENT GROWTH IMPACT STATEMENT
Mr. Harper has determined under Texas Government Code §2001.0221 that during the first five years the rules would be in effect:
(1) the rules will not create or eliminate a government program;
(2) the rules will not require the creation of new employee positions or the elimination of existing employee positions;
(3) the rules will not require an increase or decrease in future legislative appropriations to the agency;
(4) the rules will not require an increase or decrease in fees paid to the agency;
(5) the rules will create new regulations and repeal existing regulations;
(6) the rules will expand certain existing regulations and limit certain existing regulations;
(7) the rules will not increase or decrease the number of individuals subject to the rules' applicability; and
(8) the rules will neither positively nor adversely affect this state's economy.
COSTS TO REGULATED PERSONS
These rules are not subject to Texas Government Code §2001.0045 because the rules are necessary to protect the health, safety, and welfare of the residents of this state and the Board is required to adopt a schedule of administrative penalties and other sanctions by rule pursuant to Texas Occupations Code §454.3025(a). The administrative penalties in the Schedule of Sanctions are necessary to deter the practice of occupational therapy in a manner detrimental to the public health and welfare.
ENVIRONMENTAL IMPACT STATEMENT
Mr. Harper has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.
PUBLIC COMMENT
Comments on the proposed amendments may be submitted in writing to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 1801 Congress Ave Ste 10.900, Austin, Texas 78701 or to lea@ptot.texas.gov within 30 days following the publication of this notice in the Texas Register . It is requested when sending a comment that individuals include the rule section to which the comment refers and that comments sent by email include "Public Comment" in the email's subject line.
STATUTORY AUTHORITY
The amendments are proposed under Texas Occupations Code §454.102, which authorizes the Board to adopt rules to carry out its duties under Chapter 454. The amendments are also proposed under §454.3025, which requires the Board by rule to adopt a schedule of administrative penalties and other sanctions that the Board may impose under this chapter, and under §454.3521, which authorizes the Board to impose an administrative penalty, not to exceed $200 for each day a violation continues or occurs, under this chapter for a violation of this chapter or a rule or order adopted under this chapter. The amendments, lastly, are proposed under Texas Occupations Code §454.301, which includes that the Board may deny, suspend, or revoke a license or take other disciplinary action against a license holder if the applicant or license holder has practiced occupational therapy in a manner detrimental to the public health and welfare.
CROSS REFERENCE TO STATUTE
No other statutes, articles, or codes are affected by these amendments.
§
374.1.
(a) The board, in accordance with the Administrative Procedure Act, may deny, revoke, suspend, or refuse to renew or issue a license, or may reprimand or impose probationary conditions, if the licensee or applicant for licensure has been found in violation of the rules or the Act. The board will adhere to procedures for such action as stated in the Act, §§454.301, 454.302, 454.303, and 454.304.
(b) The board recognizes four levels of disciplinary action for its licensees.
(1) Level I: Order and/or Letter of Reprimand or Other Appropriate Disciplinary Action (including but not limited to community service hours).
(2) Level II: Probation--The licensee may continue to practice while on probation. The board orders the probationary status which may include but is not limited to restrictions on practice and continued monitoring by the board during the specified time period.
(3) Level III: Suspension--A specified period of time that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon the successful completion of the suspension period, the license will be reinstated upon the licensee successfully meeting all requirements.
(4) Level IV: Revocation--A determination that the licensee may not practice as an occupational therapist or occupational therapy assistant. Upon passage of 180 days, from the date the revocation order becomes final, the former licensee may petition the board for re-issuance of a license. The former licensee may be required to re-take the Examination.
(c) The board shall utilize the following schedule of sanctions in all disciplinary matters.
Figure: 40 TAC §374.1(c) (.pdf)
[Figure: 40 TAC §374.1(c)]
(d) The board shall consider the following factors in conjunction with the schedule of sanctions when determining the appropriate penalty/sanction in disciplinary matters:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of the violation; and
(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) efforts to correct the violation;
(5) the economic harm to the public interest or public confidence caused by the violation;
(6) whether the violation was intentional; and
(7) any other matter that justice requires.
(e) Licensees who provide occupational therapy services are responsible for understanding and complying with Chapter 454 of the Occupations Code (the Occupational Therapy Practice Act), and the Texas Board of Occupational Therapy Examiners' rules.
(f) Final disciplinary actions taken by the board will be routinely published as to the names and offenses of the licensees.
(g) A licensee who is ordered by the board to perform certain act(s) will be monitored by the board to ensure that the required act(s) are completed per the order of the board.
(h) The board may expunge any record of disciplinary action taken against a license holder before September 1, 2019, for practicing in a facility that failed to meet the registration requirements of §454.215 of the Act (relating to Occupational Therapy Facility Registration), as that section existed on January 1, 2019. The board may not expunge a record under this subsection after September 1, 2021.
(i) A licensee or applicant is required to report to the board a felony of which he/she is convicted within 60 days after the conviction occurs.
§
374.2.
§454.301(a)(6) of the
[
The
] Act
(relating to Grounds for Denial of License or Discipline of License Holder)
[
, §454.301(a)(6)
] states
,
"practiced occupational therapy in a manner detrimental to the public health and welfare," which is defined
,
but not limited to
,
the following:
(1) failing to document occupational therapy services or inaccurately recording, falsifying, or altering client records;
[(1) impersonating another person holding an occupational therapy license or allowing another person to use his or her license;]
(2) making or filing a false or misleading report, or failing to file a report when it is required by law or third person or obstructing or attempting to obstruct another person from filing such a report;
[(2) using occupational therapy techniques or modalities for purposes not consistent with the development of occupational therapy as a profession, as a science, or as a means for promoting the public health and welfare;]
(3) failing to report or otherwise concealing any conduct by self or another licensee likely to be a violation of the Act or Rules;
[(3) failing to report or otherwise concealing information related to violations of the Act, or rules and regulations pursuant to the Act, which could therefore result in harm to the public health and welfare or damage the reputation of the profession;]
(4) drug diversion. In this paragraph, "drug diversion" refers to when a medication is diverted from the person to whom it was prescribed;
[(4) intentionally making or filing a false or misleading report, or failing to file a report when it is required by law or third person, or intentionally obstructing or attempting to obstruct another person from filing such a report;]
(5) not providing the supervision required by the Act and Rules for those individuals to whom occupational therapy services are delegated;
[(5) intentionally harassing, abusing, or intimidating a patient either physically or verbally;]
(6) practicing occupational therapy without receiving the supervision required by the Act and Rules;
[(6) intentionally or knowingly offering to pay or agreeing to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for receiving or soliciting patients or patronage, regardless of source of reimbursement, unless said business arrangement or payments practice is acceptable under the Texas Health and Safety Code, §§161.091 - 161.094, the Social Security Act, §1128B, 42 United States Code 1320a-7b, or the Social Security Act, §1877, 42 United States Code 1395nn or its regulations;]
(7) impersonating another person holding a license; aiding, abetting, authorizing, condoning, or allowing the practice of occupational therapy or the representation of oneself as an occupational therapy practitioner by a person without a license; or aiding, abetting, authorizing, condoning, or allowing the use of a license by a person other than the holder of the license;
[(7) recommending or prescribing therapeutic devices or modalities sold by a third person for the purpose or with the result of receiving a fee or other consideration from the third person;]
(8) practicing occupational therapy or representing oneself in a manner not authorized by the license;
[(8) breaching the confidentiality of the patient/therapist relationship;]
(9) failing to cooperate with the agency by not responding to agency correspondence addressed to the individual's designated address(es) or by not furnishing papers or documents requested or not responding to subpoenas issued by the agency within 90 days;
[(9) failing to obtain informed consent prior to engaging in scientific research involving patients, or otherwise violating ethical principles of research as defined by the TBOTE Code of Ethics, §374.4 of this title (relating to Code of Ethics), or other occupational therapy standards;]
(10) failing to complete the requirements of an agreed order;
[(10) practicing occupational therapy after the expiration of a temporary, provisional, or regular license;]
(11) interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts before the agency or Board or by the use of threats, intimidation, or harassment against any clients or witnesses with the potential of preventing them from providing evidence in a disciplinary proceeding or any other legal action;
[(11) violation of Chapter 373 of this title (relating to Supervision);]
(12) practicing occupational therapy without a valid license, including after the expiration, surrender, or revocation of the license, during the suspension of the license, or after the license is void;
[(12) advertising in a manner which is false, misleading, or deceptive;]
(13) failing to conform to the minimal standards of acceptable prevailing practice, including, but not limited to:
(A) using occupational therapy techniques or modalities for purposes not consistent with the development of occupational therapy as a profession or science or as a means of promoting the public health and welfare;
(B) delegating, performing, or attempting to perform techniques or procedures in which one is untrained by education or experience;
(C) delegating occupational therapy functions or responsibilities to an individual lacking the competency to perform such;
(D) harassing, abusing, or intimidating a client either physically or verbally;
(E) causing or enabling physical or emotional injury to or the impairment of the dignity or safety of the client; and
(F) violating the principles or related standards of conduct of §374.4 of this title (relating to Code of Ethics);
[(13) failing to give sufficient prior written notice of resignation of employment (or termination of contract) resulting in loss or delay of patient treatment for those patients/clients under the licensee's care; or]
(14) engaging in sexual contact or an inappropriate relationship with a client, including, but not limited to:
(A) engaging in inappropriate behavior with or comments directed toward a client; and
(B) becoming financially or personally involved in an inappropriate manner with a client;
[(14) failing to maintain the confidentiality of all verbal, written, electronic, augmentative, and nonverbal communication, including compliance with HIPAA regulations.]
(15) intentionally or knowingly offering to pay or agreeing to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for receiving or soliciting clients or patronage, regardless of source of reimbursement, unless said business arrangement or payments practice is acceptable under 42 United States Code §1320a-7b(b) or its regulations;
(16) recommending therapeutic devices or modalities sold by a third person for the purpose or with the result of receiving a fee or other consideration from a third person;
(17) failing to maintain the confidentiality of all verbal, written, electronic, augmentative, and nonverbal communication, including compliance with Health Insurance Portability and Accountability Act (HIPAA) regulations; and
(18) failing to provide sufficient prior written notice of resignation of employment or termination of contract, or if self-employed, sufficient prior written notice to existing clients or any licensees under the individual's supervision, resulting in the loss or delay of occupational therapy services. In this paragraph, "sufficient" means at least 14 days; however, should an employment contract, or if self-employed, a comparable written agreement with clients, specify a different period of time, "sufficient" means the term dictated by such, up to and including 30 days.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 28, 2025.
TRD-202500756
Ralph A. Harper
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: April 13, 2025
For further information, please call: (512) 305-6900