Florida Occupational Therapy Laws and Rules
Online Continuing Education Course
MANDATORY FOR FLORIDA OT/OTA. Fulfills the requirement for 2 hours of continuing education on Florida laws and rules for OT practice. Includes licensing requirements, discipline, penalties, ethical and legal issues, use of prescription devices. 24-hour CE Broker reporting.
Course Price: $20.00
Contact Hours: 2
"The course made me reflect on the many principles and aspects of governance overseeing OT practice within Florida. " - Jose, OT in Florida
"I appreciate being able to print a copy of the reading and then review the content while taking the exam. " - Krista - OTA in Florida
"The case studies are good additions to this course; they further clarify OT rules/regulations with "real world" examples. Excellent synopsis of what can be a laborious read. " - Janice, OT in Florida
"Enjoyed this refresher! Thank you." - Lisa, OTA in Florida
Accreditation / Approval Information
This course fulfills the requirement for 2 hours of continuing education on the laws and rules that govern the practice of occupational therapy in Florida and is approved by the Florida Board of Occupational Therapy. We electronically report to CE Broker.
Florida Occupational Therapy Laws and Rules
Copyright © 2018 Wild Iris Medical Education, Inc. All Rights Reserved.
LEARNING OUTCOME AND OBJECTIVES: Upon completion of this course, you will be better prepared to comply with the laws and rules that govern occupational therapy practice in the state of Florida, including those from the Florida Statutes and Florida Administrative Code. Specific learning objectives include:
- Describe the Florida Board of Occupational Therapy.
- Contrast the Florida Board of Occupational Therapy with occupational therapy professional organizations.
- Define the factors for safe delegation to unlicensed assistive personnel.
- Demonstrate knowledge of the requirements for use of prescription devices.
- Explain the requirements for renewing an occupational therapy license in Florida.
- Discuss Florida occupational therapy law grounds for discipline and penalties.
- Differentiate between the types of criminal and civil legal issues related to occupational therapy practice.
- Summarize the elements of the AOTA Occupational Therapy Code of Ethics.
TABLE OF CONTENTS
FLORIDA OT LAWS AND RULES
As licensed professionals in the state of Florida, occupational therapists (OTs) and occupational therapy assistants (OTAs) must understand and practice according to Florida’s laws and rules for occupational therapy.
In Florida, occupational therapy and general standards are codified in the Florida Statutes (F.S.) and Florida Administrative Code (F.A.C.). All the specific laws and rules that Florida OTs and OTAs should be familiar with are found in detail in these documents:
- Chapter 456 of the Florida Statutes contains laws that govern healthcare practitioners in general.
- Chapter 468, Part III, of the Florida Statutes and Chapter 64B11 of the Florida Administrative Code describe specific regulations—including definitions of practice, continuing education, and renewal requirements—for the occupational therapy profession.
(See “Resources” at the end of this course for links to these documents.)
Practitioners who work in settings regulated by the Agency for Health Care Administration (AHCA)—such as health clinics, hospitals, home health, assisted living, and long-term care facilities—should also be aware of any regulations that may affect practice in those facilities. Of particular interest to those working in AHCA facilities are that agency’s background screening requirements so that one may begin or continue working in such settings (FL BOT, 2014).
Florida Occupational Therapy Practice Act
The Florida Statues are a permanent collection of state laws organized by subject area into a code made up of titles, chapters, parts, and sections. The Florida Statutes are updated annually by laws that create, amend, transfer, or repeal statutory material (Florida Legislature, 2018).
The Florida Occupational Therapy Practice Act is outlined in the Florida Statutes, Title XXXII, Chapter 468, Part III, Regulation of Professions and Occupations, Occupational Therapy. The purpose of the act is to provide for the regulation of persons offering occupational therapy services to the public in order to:
- Safeguard the public health, safety, and welfare
- Protect the public from being misled by incompetent, unscrupulous, and unauthorized persons
- Assure the highest degree of professional conduct on the part of occupational therapists and occupational therapy assistants
- Assure the availability of occupational therapy services of high quality to persons in need of such services
(F.S., Title XXXII, Ch. 468.201)
The provisions of the act aim to ensure that every occupational therapist or occupational therapy assistant practicing in Florida meets minimum requirements for safe practice. It is the legislative intent that occupational therapists or occupational therapy assistants who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in the state.
CONTENTS OF THE FLORIDA OT PRACTICE ACT
468.201 Short title; purpose
468.204 Authority to adopt rules
468.205 Board of Occupational Therapy Practice
468.207 License required
468.209 Requirements for licensure
468.211 Examination for licensure
468.213 Licensure by endorsement
468.215 Issuance of license
468.217 Denial of or refusal to renew license; suspension and revocation of license and other disciplinary measures
468.219 Renewal of license; continuing education
468.223 Prohibitions; penalties
(See “Resources” at the end of this course for a link to the full act.)
Florida Board of Occupational Therapy
The Florida Board of Occupational Therapy was established to assure the highest degree of professional conduct on the part of occupational therapists and occupational therapy assistants. The Board is responsible for the licensure and regulation of the profession, as described in the Practice Act, to ensure the availability of occupational therapy services of high quality to the people of Florida (FL BOT, 2018).
The Board is under the jurisdiction of the Florida Department of Health and subject to the general provisions regulating health professions and occupations as outlined in F.S., Title XXXII, Chapter 456. The Department of Health’s Division of Medical Quality Assurance serves as the principle administrative support unit for the Board. The Board’s regulatory functions are funded in full by fees paid by its licensees.
The Florida Board of Occupational Therapy consists of seven members appointed by the governor and confirmed by the senate. All members must be residents of the state of Florida. The Board must consist of:
- Four licensed occupational therapists in good standing in Florida who have been engaged in the practice of the profession for at least four years immediately prior to appointment
- One licensed occupational therapy assistant in good standing in Florida who has been engaged in the practice of the profession for at least four years immediately prior to appointment
- Two consumer members not connected with the practice of occupational therapy
(F.S., Title XXXII, Ch. 468.205)
Florida Occupational Therapy Rules
The Florida Administrative Code is the official compilation of administrative rules for the state of Florida. The Department of State oversees the publishing of the F.A.C. and updates it weekly. Chapter 64B11 of the F.A.C. outlines rules related to occupational therapy.
FLORIDA ADMINISTRATIVE CODE, DIVISION 64B11
Board of Occupational Therapy
64B11–1 Organization and general procedures
64B11–2 Admission of occupational therapists
64B11–3 Admission of occupational therapy assistants
64B11–4 Occupational therapy board—standards of practice
64B11–5 Licensure status and fees
64B11–6 Continuing education
(See “Resources” at the end of this course for a link to the full chapter.)
One of the hallmarks of a profession is that its members band together in collegial association to provide a variety of services for its members. These services include such things as continuing education, collective bargaining, legislative advocacy, and information about the profession. These organizations are not set up by state laws or through the government.
The Florida Occupational Therapy Association (FOTA) is a professional association that serves as a collective body to support, develop, and represent the occupational therapy profession for the advancement of the practice and to better serve the consumer. It is distinct from the Florida Board of Occupational Therapy.
In addition to the Florida Occupational Therapy Association, there are also the American Occupational Therapy Association (AOTA), the National Board for Certification in Occupational Therapy (NBCOT), and the Professional Resource Network for Florida. Typically, associations are run by boards of trustees elected by members who pay voluntary membership dues.
Professional organizations have no legal authority, whereas the Florida Board has authority because it was established by the Occupational Therapy Practice Act with the unambiguous function of promoting and protecting the health of citizens through safe occupational therapy practice.
OCCUPATIONAL THERAPY PRACTICE IN FLORIDA
[Material in this section is taken from F.S., Title XXXII, Chapter 468, and F.A.C., Chapter 64B11.]
The practice of occupational therapy in Florida is regulated by the state in order to protect members of the public who need occupational therapy care. Safe, competent occupational therapy practice is grounded in the law as written in the state’s Occupational Therapy Practice Act and its rules. The practice is dynamic and evolving and is responsive to consumer and societal needs, to system changes, and to emerging knowledge and research.
Because occupational therapy is a dynamic practice, questions may arise about whether certain tasks are within the occupational therapist’s or occupational therapy assistant’s scope of practice. All occupational therapy care should be consistent with the practitioner’s preparation, education, experience, knowledge, demonstrated competency, and the laws and rules governing occupational therapy.
Types of Occupational Therapy Practitioners
Florida’s OT Practice Act recognizes three types of individuals who are engaged in the practice of occupational therapy. These include:
- Occupational therapist: A person licensed to practice occupational therapy as defined in the Act and whose license is in good standing; licensure for entry-level practice requires a master’s degree and a minimum of six months of supervised fieldwork.
- Occupational therapy assistant: A person licensed to assist in the practice of occupational therapy, who works under the supervision of an occupational therapist, and whose license is in good standing; licensure for entry-level practice requires an associate’s degree and a minimum of two months of supervised fieldwork.
- Occupational therapy aide: An unlicensed person who assists in the practice of occupational therapy, who works under the direct supervision of a licensed occupational therapist or occupational therapy assistant, and whose activities require a general understanding of occupational therapy pursuant to Board rules; nonprofessional training is provided on the job.
(F.S. 468.203 and 468.209)
Occupational Therapy Standards of Practice
Occupational therapy means the use of purposeful activity or interventions to achieve functional outcomes. Occupational therapy services include, but are not limited to:
- The assessment, treatment, and education of or consultation with the individual, family, or other persons
- Interventions directed toward developing daily living skills, work readiness or work performance, play skills or leisure capacities, or enhancing educational performance skills
- Providing for the development of sensory-motor, perceptual, or neuromuscular functioning; range of motion; or emotional, motivational, cognitive, or psychosocial components of performance
These services may require assessment of the need for use of interventions such as:
- The design, development, adaptation, application, or training in the use of assistive technology devices
- The design, fabrication, or application of rehabilitative technology such as selected orthotic or prosthetic devices
- The application of physical agent modalities as an adjunct to or in preparation for purposeful activity
- The use of ergonomic principles
- The adaptation of environments and processes to enhance functional performance
- The promotion of health and wellness
The use of certain devices identified by the Board is expressly prohibited except by an occupational therapist or occupational therapy assistant who has received training as specified by the Board (see also below under “Use of Prescription Devices”).
“UNDER SUPERVISION” VERSUS “DIRECT SUPERVISION”
An OT assistant (OTA) working “under supervision of an occupational therapist” means that the supervising occupational therapist:
- Has delegated tasks to a qualified occupational therapy assistant
- Does not in all instances have to be on the premises in order for the OTA to perform the delegated functions
- Must provide initial direction in developing the plan of treatment and periodically inspect the actual implementation of the plan
An OT aide working “under direct supervision of an occupational therapist or an occupational therapy assistant” means that that the aide must be within the line of vision of the supervising OT or OTA (F.A.C. 64B11-4.002).
DELEGATION TO UNLICENSED ASSISTIVE PERSONNEL
A licensed occupational therapist or occupational therapy assistant may delegate to occupational therapy aides only specific tasks that are neither evaluative, assessive, task selective, nor recommending in nature, and only after insuring that the aide has been appropriately trained for the performance of the task. All delegated patient-related tasks must be carried out under direct supervision, which means that the aide must be within the line of vision of the supervising practitioner.
Any duties assigned to an occupational therapy aide must be determined and appropriately supervised by a licensed OT or OTA and must not exceed the level of training, knowledge, skill, and competence of the individual being supervised. The licensed occupational therapist or occupational therapy assistant is totally and wholly responsible for the acts or actions performed by any occupational therapy aide functioning in the occupational therapy setting.
Occupational therapy aides may perform ministerial duties, tasks, and functions without direct supervision, which shall include, but not be limited to:
- Clerical or secretarial activities
- Transportation of patients/clients
- Preparing, maintaining, or setting up of treatment equipment and work area
- Taking care of patients’ personal needs during treatment
Occupational therapy aides shall not perform tasks that are either evaluative, assessive, task selective, or recommending in nature, which shall include, but not be limited to:
- Interpret referrals or prescriptions for occupational therapy services
- Perform evaluative procedures
- Develop, plan, adjust, or modify treatment procedures
- Act on behalf of the occupational therapist in any matter related to direct patient care which requires judgment or decision-making except when an emergency condition exists
- Act independently or without direct supervision of an occupational therapist
- Patient treatment
- Any activities which an occupational therapy aide has not demonstrated competence in performing
USE OF PRESCRIPTION DEVICES
Use of both an electrical stimulation device and an ultrasound device for which a prescription is required is expressly prohibited except by an OT or OTA who has received training.
An electrical stimulation device is any device that employs transcutaneous electric current (direct, alternating, or pulsatile) for therapeutic purposes. An ultrasound device is any device intended to generate and emit ultrasonic radiation for therapeutic purposes at ultrasonic frequencies above 100 kilohertz (kHz).
Training required to qualify for use of these devices includes:
- Didactic training of at least four hours
- Performance of at least five treatments under supervision
The required training may be obtained through approved educational programs, workshops, or seminars offered at a college or university or affiliated clinical facilities; online courses are not approved. The training must provide for the minimum competency level detailed in F.A.C. 64B11-4.001. Any OT or OTA who uses such electrical stimulation device shall be able to present proof that he or she has obtained the training required by this rule.
In Florida, OT/OTA training is required for use of electrical stimulation devices, such as the one shown here.
Dwayne, an occupational therapist at an inpatient burn center, recently evaluated Mr. Hughes, a patient with significant scarring and decreased range of motion in both arms due to chemical burns he received on the job. Based on his initial assessment, Dwayne developed a plan of care specifically outlining which modalities and interventions to implement with the patient.
Dwayne then delegated treatment to Sheila, a new OTA who had joined the burn center staff two weeks earlier after a recent move to Florida from Georgia. After three treatment sessions, Sheila altered the treatment plan and began using ultrasound on the patient’s scars. She’d seen the OT use ultrasound in cases of scarring at her previous position, and she had just begun training in its use. She continued this treatment approach for two more sessions.
In his role as supervising therapist, Dwayne attended the next treatment session, at which Mr. Hughes complained to him of pain and increased irritation and burning sensations to all the areas the OTA had previously treated using ultrasound. Dwayne reviewed the patient’s chart and realized there were several problems pertaining to this patient’s standard of care.
First, the OTA had improperly altered the original treatment plan to include ultrasound, which was not part of the plan of care established by Dwayne as the supervising OT. Secondly, ultrasound is a modality requiring a prescription, which had not been ordered by Mr. Hughes’ primary care provider, as well as training, which Sheila had not yet completed. Finally, ultrasound is contraindicated in this situation.
Following the patient’s session, Dwayne immediately followed the burn center’s protocol for reporting these problems so that corrective action could be taken with Sheila and the patient.
Jennifer is an OTA with four years’ experience who has recently moved from California to Florida. This is her first shift at her new workplace. The patient, Ms. Baker, has been previously diagnosed with muscular dystrophy and arrives early for her third muscle stimulation appointment. Ms. Baker is a demanding patient, does not like to wait, and asks Jennifer to start the treatment right away.
Jennifer is uncertain whether she is allowed to begin the muscle stimulation procedure, and so she asks Ms. Baker to wait for a moment. She steps out of the room to consult a copy of the Florida Administrative Code that she received during the orientation to her new job. There she finds that occupational therapists and occupational therapy assistants qualify for the use of an electrical stimulation device only after didactic training of at least four hours and performance of at least five treatments under supervision.
Since Jennifer has not had any training yet, this task is not within her legal scope of practice in Florida. Jennifer speaks immediately to her supervising OT, Amanda, who has had the proper training for use of prescription devices to perform the procedure. Jennifer and Amanda return to Ms. Baker and explain the legal limits of Jennifer’s scope of practice. The patient is understanding and thanks Jennifer for her diligence.
LICENSURE RENEWAL REQUIREMENTS
[Material in this section is taken from F.S., Title XXXII, Chapter 468, and F.A.C., Chapter 64B11.]
An occupational therapist or an occupational therapy assistant may not practice occupational therapy or render occupational therapy services in Florida unless he or she is properly licensed. Florida OT and OTA licenses are monitored by the Florida Board of Occupational Therapy and must be renewed every two years. All licenses expire on February 28 of every odd-numbered year. It is unlawful to practice with a delinquent license.
A licensure biennium is the 24-month period between expiration dates. It is during this time period that continuing education requirements must be met for each renewal cycle. Those persons licensed by examination within a biennium are exempt from the continuing education requirement for that biennium.
During each biennium, 26 hours of continuing education are required, with 22 of those being general hours. All courses must be given by a Board-approved provider. All licensees must complete the following Florida state-mandated courses:
- A two-hour course on prevention of medical errors
- A two-hour course on the laws and rules that govern the practice of occupational therapy in Florida (such as this course from Wild Iris Medical Education)
- A one-hour course on HIV/AIDS (required only for the first license renewal)
The licensee shall retain for four years certificates of attendance and other records to document the completion of the continuing education requirement.
The Florida Department of Health, Division of Medical Quality Assurance, verifies continuing education records in the CE Broker electronic tracking system for license renewals. The Department encourages Florida licensees to log in to the tracking system before applying for renewal to ensure information is complete and accurate. Although most CE providers report courses to CE Broker immediately, they legally have 90 days to report successful completion. (Wild Iris Medical Education reports course completions for existing Florida licensees within 24 hours.)
Fees are due to the Florida Board of Occupational Therapy at the time of license renewal. Fee amounts vary depending on renewal and are listed on the Board’s website.
MILITARY LICENSE RENEWAL
The Florida Department of Health is committed to honoring veterans, members of the military, and their families by offering the VALOR System (Veterans Application for Licensure Online Response System). This system provides an expedited licensing avenue for honorably discharged veterans with an active license in another state, with most licensing fees waived within 60 months of being discharged. It also provides an expedited temporary certificate to practice in an area of critical need (FL DOH, 2018).
The Florida VALOR System is offered in addition to two existing licensing options to assist active-duty members and veterans of the Armed Forces and their spouses. The first option provides exemptions from license renewal requirements while serving on active duty; the second provides temporary license privileges for spouses of active-duty members of the Armed Forces. Additionally, a waiver of licensing fees is available for honorably discharged military veterans and their spouses.
A licensee may apply to the Florida Department of Health to place a license on inactive status. The application shall be made on forms provided by the Board and shall be accompanied by an application fee for inactive status. Applications for inactive status will be considered by the Department only during the biennium license renewal period. It is unlawful to practice occupational therapy with an inactive license.
DISCIPLINARY ACTION AND PENALTIES
The legislature created the Florida Board of Occupational Therapy to assure protection of the public from persons who do not meet minimum requirements for safe practice or who pose a danger to the public.
Grounds for Discipline
Following are some of the acts that constitute grounds for denial of a license or disciplinary action:
- Attempting to obtain, obtaining, or renewing a license to practice occupational therapy by bribery, by fraudulent misrepresentation, or through an error of the Department or the Board
- Having a license to practice occupational therapy revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country
- Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of occupational therapy or to the ability to practice occupational therapy
- Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to do so
- Paying or receiving any commission, bonus, kickback, or rebate to or from, or engaging in any split-fee arrangement in any form whatsoever with, a physician, organization, agency, or persons
- Exercising influence within a patient-therapist relationship for purposes of engaging a patient in sexual activity
- Failing to keep written records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results
- Gross or repeated malpractice or the failure to practice occupational therapy with that level of care, skill, and treatment which is recognized by a reasonably prudent similar occupational therapist or occupational therapy assistant as being acceptable under similar conditions and circumstances
- Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform
- Delegating professional responsibilities to a person when the licensee who is delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them
(This is not a complete list. See also F.S., Title XXXII, Ch. 456.072, Grounds for discipline, penalties, enforcement.)
When the Board or the Department finds any person guilty of the grounds set forth in F.S., Title XXXII, Ch. 456.072, subsection (1), or of any grounds set forth in the Practice Act, it may impose one or more penalties. The purposes of disciplinary action are to punish the violators and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.
Among the range of punishments, in increasing severity, are:
- Letter of concern and a minimum administrative fine of $100, remedial education, and/or refund of fees billed
- Probation with conditions to include limitations on the type of practice or practice setting, requirements of supervision, employer and self reports, periodic appearances before the Board, counseling or participation in the Professionals Resource Network (PRN), payment of administrative fines, and such conditions to assure protection of the public
- Suspension until the licensee appears before the Board to demonstrate current competency and ability to practice safely and in compliance with any previous Board orders
- Licensure with conditions
- Denial of licensure
- Permanent revocation
Aggravating and Mitigating Circumstances
Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties. The Board shall consider as aggravating or mitigating factors the following:
- Exposure of patients or public to injury or potential injury, physical or otherwise; none, slight, severe, or death
- Legal status at the time of the offense; no restraints, or legal constraints
- The number of counts or separate offenses established
- The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice
- Pecuniary benefit or self-gain inuring to the applicant or licensee
- Any efforts at rehabilitation, attempts by the licensee to correct or to stop violations, or refusal by the licensee to correct or to stop violations
- Any other relevant mitigating factors
Penalties, including fines, are imposed within a range corresponding to the possible violations, as described in F.A.C. 64B11-4.003. In addition to the penalty imposed, the Board shall recover the costs of investigation and prosecution of the case. Additionally, if the Board makes a finding of pecuniary benefit or self-gain related to the violation, then the Board shall require refund of fees billed and collected from the patient or a third party on behalf of the patient.
Alexa is an occupational therapist who works in an outpatient pediatric clinic. Though she excels in her professional and clinical responsibilities, she has lately been struggling with some personal issues, including a health crisis with her elderly father and a recent acrimonious divorce. She also just found out that her teenaged son dropped out of high school.
With all the recent upheaval in her personal life, Alexa accidentally misplaced the letter from the Florida Board of Occupational Therapy regarding her upcoming licensure renewal deadline. Three weeks after the February renewal deadline had passed, the director of the pediatric practice where Alexa works requested updated copies of state licenses for all therapist employees. Alexa realized that she had forgotten to renew her license, which was now expired. To make matters worse, Alexa also realized she had not completed the required 26 hours of continuing education to be eligible for license renewal. Alexa was extremely upset and embarrassed and became tearful in her manager’s office as she described the recent stressors in her life that had contributed to her forgetting to complete her license renewal requirements.
Alexa’s manager, Jade, was a very supportive employer and knew Alexa to be a conscientious employee and highly competent therapist who had simply made a mistake. Jade gently explained to Alexa that she would have to cease practicing immediately and begin the process of reinstating her lapsed license in accordance with the Florida Occupational Therapy Practice Act. They would need to contact the Board in order to explain the situation and to determine if Alexa would be liable for any disciplinary action due to having inadvertently practiced with a lapsed license for three weeks.
They discussed Alexa’s other recent personal stressors, and Jade suggested that Alexa use some of her accrued paid time off to take an approved continuing education course that was being offered a few hours away. Jade assisted Alexa in finding some respite care for her elderly father and arranged for Alexa’s son to stay with relatives temporarily, allowing Alexa to enjoy some much-needed down time while simultaneously completing the continuing education that she needed to reinstate her license.
LEGAL ISSUES AND OCCUPATIONAL THERAPY PRACTICE
Occupational therapists and occupational therapy assistants practice within a society governed by laws. Laws flow from ethical principles (see also “Ethics and Occupational Therapy Practice” later in this course) and are limited to specific situations and codified by detailed language. These rules of conduct are formulated by an authority with power to enforce them. Florida’s legislature has the power to create and enforce laws governing the profession of occupational therapy, including licensure.
|Source||Laws passed by legislative bodies of federal, state, and local governments||Executive powers, delegated by the legislative branch|
|Functions||Protects and provides for the general welfare of society||Carries out special duties of various agencies|
|Example||The Florida legislature passed the Occupational Therapy Practice Act, which is outlined in the Florida Statutes, Title XXXII, Chapter 456, Regulation of Professions and Occupations||The Florida Department of State maintains statewide rules for occupational therapy, which are outlined in the Florida Administrative Code, Division 64B11, Board of Occupational Therapy|
Civil Versus Criminal Law
There are two major divisions of law: civil and criminal.
Civil law pertains to the private rights of one or more individuals and provides a means by which individuals may seek to enforce their rights against other individuals. Some types of civil law include contract law, wills, family law, and trusts. Civil litigation that involves injury (due to assault, battery, negligence, professional negligence, etc.) is called a tort.
Criminal law regulates the conduct of the individual in order to protect the public and society as a whole. Criminal prosecution is initiated by the government as opposed to an individual. The main types of criminal offenses are felonies, misdemeanors, and infractions. The primary goal of criminal litigation is to punish the defendant (University of Minnesota, 2018a).
It is a criminal offense to violate provisions of Florida’s Occupational Therapy Practice Act. When individuals or agencies believe an occupational therapist or occupational therapy assistant has violated a provision of the Practice Act, they may complain to the Board of Occupational Therapy. The Board will investigate the allegations, and if sufficient evidence is found to support the complaint, state attorneys may file a complaint against the licensee.
It is important to be aware that an action can potentially be both criminal and civil in nature (Stanford & Connor, 2012).
|Sources: University of Minnesota Open Library, 2018a; PTBC, 2017.|
|Function/Goal||To redress wrongs and injuries suffered by individuals|
|Proof||By preponderance of evidence; adjudicated by a judge or jury; a jury decision need not be unanimous|
|Function/Goal||To regulate individual conduct for the good of society as a whole; to punish defendant (if found guilty)|
|Proof||Beyond a reasonable doubt; decision must be unanimous|
Civil Law and Occupational Therapy Practice
(The information in this section is in no way intended to be a substitute for professional legal advice.)
Civil law is concerned with harm against individuals, including breaches of contracts and torts. A civil action is considered a wrong between individuals. Its purpose is to make right the wrongs and injuries suffered by individuals, usually by assigning monetary compensation.
A contract is a legally binding agreement between two or more parties. Breaking such an agreement—such as a written employment agreement between a healthcare agency and an occupational therapist—is called a breach of contract. Both parties to a contract must do exactly what they agreed to do or they risk legal action being taken against them. For that reason, it is vital that each party clearly understands all the terms of a contractual agreement before signing it (Hamilton, 1996).
A tort is a wrong against an individual. Torts may be classified as either intentional or unintentional.
- Intentional torts include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement.
- Unintentional torts are commonly referred to as negligence. In order to be successfully claimed, negligence must consist of four elements: duty, breach of duty, causation, and damages.
(Stanford & Connor, 2012)
Assault is doing or saying anything that makes people fear they will be touched without their consent. The key element of assault is fear of being touched, for example, threatening to force a resistant patient to get out of bed against his or her will.
Battery is touching a person without consent, whether or not the person is harmed. For battery to occur, unapproved touching must take place. The key element of battery is lack of consent. Therefore, if a man bares his arm for an injection, he cannot later charge battery, saying he did not give consent. If, however, he agreed to the injection because of a threat, the touching would be deemed battery, even if he benefited from the injection and it was properly prescribed (University of Minnesota Open Library, 2018b).
Except in rare circumstances, clients have the right to refuse treatment. Other examples of assault and/or battery might include:
- Forcing a client to submit to treatments for which he or she has not consented orally, in writing, or by implication
- Moving a protesting client from one place to another
- Forcing a client to get out of bed to walk
- In some states, performing blood alcohol tests or other tests without consent
False imprisonment is a tort offense that involves restraining or confining a competent person against their will. Some examples of false imprisonment are:
- Restraining (physically, pharmacologically, etc.) a client for nonmedically approved reasons
- Detaining an unwilling client in the hospital, even after the client insists on leaving
- Detaining a person who is medically ready for discharge for an unreasonable period of time
(Louisiana State University Law Center, 2018)
Defamation of character is communication that is untrue and injures the good name or reputation of another or in any way brings that person into disrepute. This includes clients as well as other healthcare professionals. When the communication is oral, it is called slander; when it is written, it is called libel. Prudent healthcare professionals: 1) record only objective data about clients, such as data related to treatment plans and 2) follow agency policies and approved channels when the conduct of a colleague endangers client safety (Hamilton, 1996; Stanford & Connor, 2012).
Invasion of privacy includes intruding into aspects of a patient’s life without medical cause. Invasion of privacy is a legal issue separate from violations of HIPAA’s privacy rule due to the fact that invasion of privacy goes beyond protected health information.
Fraud includes deceitful practices in healthcare and can include the following:
- False promises
- Upcoding (such as billing group treatment sessions as individual therapy)
- Insurance fraud
Embezzlement is the conversion of property that one does not own for his or her own use, such as when an employee appropriates funds from a company bank account (Stanford & Connor, 2012).
UNINTENTIONAL TORTS (NEGLIGENCE)
It is the legal responsibility of all occupational therapy practitioners to uphold a certain standard of care. This standard is generally measured against an established norm of what other similarly trained professionals would do if presented with a comparable situation.
In the case of negligent care, four components must be present in order to establish a successful unintentional tort claim.
- Duty is established when a healthcare professional agrees to treat a patient.
- Breach of duty occurs when a healthcare professional fails to act in a manner consistent with what another member of that health profession would prudently do in a similar situation.
- Misfeasance occurs when a mistake is made (such as administering a treatment to the wrong patient).
- Nonfeasance occurs when a healthcare professional fails to act (such as not checking a patient’s oxygen saturation level when they can observe the patient is short of breath and demonstrates other signs and symptoms of overexertion during treatment).
- Malfeasance occurs when the negligent action involves questionable intent (such as leaving a patient with non-weight-bearing precautions on the commode without a method to call for assistance because the patient had been verbally belligerent during a prior treatment session).
- Causation requires that an injury of ill-effect to the patient must be proven to have been a direct result of the action (or lack of action) taken by the healthcare professional.
- Damages refers to the actual injuries inflicted by the accused for which compensation is owed.
(Stanford & Connor, 2012)
ETHICS AND OCCUPATIONAL THERAPY PRACTICE
Ethics is a branch of philosophy concerned with the nature of values in regard to matters of human conduct. Ethical theory guides a practitioner in determining right and wrong action in a situation and provides a moral compass.
While the terms ethics and values are often used interchangeably, they are actually quite different in meaning. Ethics constitutes a broadly accepted collection of moral principles; values are much more individualized and relate to an individual’s personal set of standards regarding what is right, important, and valuable (Townsville Community Legal Services, 2018).
Ethics also differ from laws. Ethical principles serve as general guides for behavior. In contrast, laws flow from ethical principles and consist of rules about specific situations.
Occupational Therapy Code of Ethics and Ethical Standards
Codes of ethics are formal statements that set forth standards of ethical behavior for members of a group. In fact, one of the hallmarks of a profession is that its members subscribe to a code of ethics. Every member of a profession is expected to read, understand, and abide by the ethical standards of its occupation.
In order to assert the values and standards expected of members of the profession of occupational therapy, the American Occupational Therapy Association (AOTA) developed the Occupational Therapy Code of Ethics. (Portions of this document are provided here; see “Resources” at the end of this course for a link to the complete version.)
The Code describes seven long-standing Core Values that guide the ethical conduct of occupational therapy practitioners and provide a foundation to guide their interactions with others. These values should form the basis of determining the most ethical course of action. They include:
- Altruism: Demonstrating concern for the welfare of others
- Equality: Treating all people impartially and free of bias
- Freedom: Allowing the personal choice, values, and desires of the client guide interventions
- Justice: Recognizing and supporting diverse communities such that all members can function, flourish, and live a satisfactory life, and addressing unjust inequities that limit opportunities for participation in society
- Dignity: Promoting and preserving the individuality and dignity of the client by treating him or her with respect in all interactions
- Truth: Providing accurate information in oral, written, and electronic forms
- Prudence: Using clinical and ethical reasoning skills, sound judgment, and reflection to make decisions in professional and volunteer roles
The Occupational Therapy Code of Ethics defines the set of six principles that apply to occupational therapy personnel at all levels. Specific Standards of Conduct pertaining to each principle further detail ethical actions to be taken by occupational therapy practitioners.
- Beneficence: Occupational therapy personnel shall demonstrate a concern for the well-being and safety of the recipients of their services. (This means working actively for the best interests of the patient and highlights the general concept of doing good for others.)
- Nonmaleficence: Occupational therapy personnel shall refrain from actions that cause harm. (This may mean carefully weighing potential benefits against potential negative results and/or side effects that may potentially result from providing healthcare interventions.)
- Autonomy and Confidentiality: Occupational therapy personnel shall respect the right of the individual to self-determination, privacy, confidentiality, and consent. (Autonomy refers to the ability of an individual to make informed decisions based on sufficient and accurate information from the therapist even when those decisions may diverge from what the therapist might advise.)
- Justice: Occupational therapy personnel shall promote fairness and objectivity in the provision of occupational therapy services. (This implies equal and impartial treatment to all patients regardless of patient characteristics such as age, disability status, socioeconomic status, race, religion, gender identification, sexual orientation, or other background factors.)
- Veracity: Occupational therapy personnel shall provide comprehensive, accurate, and objective information when representing the profession.
- Fidelity: Occupational therapy personnel shall treat clients, colleagues, and other professionals with respect, fairness, discretion, and integrity.
(AOTA, 2015; University of Ottawa, 2017)
Vinh is an occupational therapist who has just started a new job in a rehab facility. On Vinh’s fourth day at work, a client phones in to cancel her mid-morning appointment. The rehab supervisor overhears the receptionist telling Vinh that her client won’t be coming in and tells Vinh to be sure to document the treatment as if it had taken place. When Vinh questions the ethics of doing so, her supervisor states, “We reserved the time, so it counts as an appointment.”
Later, the rehab supervisor pulls Vinh aside and says, “Look, I know you’re new here, so you probably aren’t aware that we’re struggling financially. None of us want to lose our jobs, so we usually just pad the minutes a little bit. Besides, it’s just the government and big insurers who are paying for the services, and they’ll be none the wiser. We can count on you to be a team player, can’t we?”
Should Vinh do as the rehab supervisor asks?
No. Falsifying records clearly violates the Principle of veracity, Standard of Conduct C, of the Occupational Therapy Code of Ethics, which states that “occupational therapy personnel shall record and report in an accurate and timely manner and in accordance with applicable regulations all information related to professional or academic documentation and activities.”
As a new employee, Vinh may feel especially uneasy about questioning her supervisor’s instructions. Nevertheless, it is very important that she speak again with the rehab supervisor—and perhaps the facility’s director—to explain her unwillingness to record false information in violation of professional ethical standards and, quite likely, legal requirements. Furthermore, according to the Principle of justice, Standard of Conduct L, it is Vinh’s ethical duty to “collaborate with employers to formulate policies and procedures in compliance with legal, regulatory, and ethical standards and work to resolve any conflicts or inconsistencies.”
If her supervisor insists upon continuing with false documentation, Vinh should take action “to report to appropriate authorities any acts in practice, education, and research that are unethical or illegal,” as described under the Principle of justice, Standard of Conduct K. She may also wish to consider seeking other employment if necessary.
The Ethics Commission (EC) of the AOTA has developed the Enforcement Procedures for the Occupational Therapy Code of Ethics (AOTA, 2015b) to address alleged violations of the Code. The EC receives, deliberates, and acts upon such complaints when they are filed against AOTA members or individuals who were AOTA members at the time of the alleged incident. Whenever feasible and appropriate, members should first pursue other corrective steps within the relevant institution or setting and discuss ethical concerns directly with the potential respondent before resorting to the ethics complaint process.
An ethical dilemma arises when a professional becomes caught between two conflicting duties that mutually exclude one another but that would each be ethically viable if considered separately. In order to protect the best interests of the patient and to minimize the risk of ethical and/or legal complaints, it is of utmost importance that professionals develop the skills and are aware of the resources available for the successful resolution of ethical dilemmas.
Resolution of ethical dilemmas in the clinical setting requires a thoughtful and careful decision-making process and may include any or all of the following steps:
- Identifying ethical issues, including any conflicting values and duties. Relevant codes of ethics, standards, legal principles, agency policies, and one’s personal values must be considered.
- Identifying which individuals, groups, and/or organizations are likely to be affected by the ultimate decision. Who is involved and who has the right and/or the responsibility to make the decisions?
- Identifying possible courses of action, the participation involved in each, and possible benefits and risks of each option. Whom would each choice affect and how? What are the risks and potential benefits of each option?
- Consulting with colleagues and appropriate experts. Many healthcare institutions have formal ethics committees to assist in the resolution of ethical dilemmas, particularly in more complex cases such as those that involve delicate end-of-life issues. Ethics committees generally consist of members from a variety of clinical and nonclinical backgrounds, such as healthcare professionals, bioethicists, clergy, lawyers, and lay persons.
- Making and documenting the decision. A written record of the decision-making process is a crucial component in resolution of an ethical dilemma.
Lucy works as an occupational therapist on the postoperative orthopedic floor of a large urban hospital. Mr. Smith, who recently sustained a transradial amputation of his dominant upper extremity, was just referred to Lucy for therapy. Lucy evaluated Mr. Smith previously and has begun his occupational therapy program. Today, Lucy arrives at Mr. Smith’s room for his scheduled OT session but finds Mr. Smith still in bed in his hospital gown. Lucy inquires about this at the nurse’s station and is told that Mr. Smith stated he did not want any OT today “because he just wants to die.” This is the third time this has happened this week.
Lucy faces an ethical dilemma. While the ethical principle of autonomy dictates that Mr. Smith does have the right to accept or refuse occupational therapy interventions, Lucy is concerned that continued missed therapy sessions may lead to a poorer overall functional outcome for Mr. Smith in the long term. This would run counter to the ethical principle of beneficence, or acting in a clinical manner that would positively affect a patient’s well-being.
Lucy documents the missed visit for the morning and goes immediately to the rehab director to discuss the dilemma. Lucy and the rehab director consult with the nursing staff, a social worker, and Mr. Smith’s surgeon, as well as with Mr. Smith and his wife. It is eventually established that Mr. Smith is experiencing depressive symptoms, which is not uncommon with him being a new amputee.
The surgeon starts Mr. Smith on an antidepressant and communicates with the nursing staff to monitor Mr. Smith for any adverse side effects and any changes to his depressive symptoms. Lucy adds new goals in relation to depression management and occupational engagement and, at her next patient visit, educates Mr. Smith and his wife on support groups and provides materials on depression after amputation. The consultations and agreed-upon course of action are documented in Mr. Smith’s medical record, and Mr. Smith is accepting of the plan.
The Florida laws related to occupational therapy are in place to define the Board of Occupational Therapy that then, along with the law itself, sets the standards of competent occupational therapy practice and standards for promoting patient safety. By so doing, the mission of the Board of Occupational Therapy to promote and protect the health of citizens through safe occupational practice is achieved.
NOTE: Complete URLs for references retrieved from online sources are provided in the PDF of this course.
American Occupational Therapy Association (AOTA). (2015a). Occupational therapy code of ethics (2015). American Journal of Occupational Therapy, 69(Suppl. 3), 6913410030. Retrieved from http://dx.doi.org/10.5014/ajot.2015.696S03
American Occupational Therapy Association (AOTA). (2015b). Enforcement procedures for the occupational therapy code of ethics. American Journal of Occupational Therapy, 69(Suppl. 3), 6913410012. Retrieved from https://ajot.aota.org
Florida Board of Occupational Therapy (FL BOT). (2018). Homepage. Retrieved from http://floridasoccupationaltherapy.gov
Florida Board of Occupational Therapy (FL BOT). (2014). Resources for practice. Retrieved from http://floridasoccupationaltherapy.gov
Florida Department of Health (FL DOH). (2018). Florida Veterans Application for Licensure Online Response System (VALOR). Retrieved from http://www.flhealthsource.gov
Florida Legislature. (2018). Online Sunshine: statutes and constitution. Retrieved from http://www.leg.state.fl.us
Hamilton PM. (1996). Realities of contemporary nursing (2nd ed.). Menlo Park, CA: Addison-Wesley Nursing.
Louisiana State University Law Center. (2018). False imprisonment. Retrieved from https://biotech.law.lsu.edu
National Association of Social Workers (NASW), Illinois Chapter. (2013). Ethics corner: resolving ethical dilemmas. Retrieved from http://naswil.org
Physical Therapy Board of California (PTBC). (2017). Laws. Retrieved from http://www.ptbc.ca.gov
Stanford CC & Connor VJ. (2012). Ethics for health professionals. Burlington, MA: Jones and Bartlett Learning.
Townsville Community Legal Services. (2018). Community workers and the law. Retrieved from http://www.tcls.org.au
University of Minnesota Open Library. (2018a). Criminal law. Retrieved from http://open.lib.umn.edu
University of Minnesota Open Library. (2018b). Assault and battery. Retrieved from http://open.lib.umn.edu
University of Ottawa. (2017). Basic ethical principles. Retrieved from https://www.med.uottawa.ca