Special interests drive language changes to OT Assistant laws in NY State

As I blogged about earlier this year, there were some problems with the changes to the NY State occupational therapy law that placed significant barriers to non traditional fieldwork settings.  OTA fieldwork educators in New York State and NYSOTA saw these problems and there was a last minute rush to file a technical amendment to the law so that they would not have to operate under such restrictive conditions.

It is true that the way the law was written could have contributed to a decreased pool of practitioners able to accept fieldwork students; OTA students would have had to compete with OT students for licensed occupational therapy supervisors.  Fieldwork educators already struggle to find 'slots' for their students and the law certainly did not help by imposing restrictive limits on WHO could supervise a student.

However, restrictions are in place for a reason - namely to protect the public - and both Medicare and Medicaid have rather severe restrictions that functionally supersede the State law because if an agency wants to get reimbursed then they will have to be rather cautious with the way that students are involved in their agencies.

So now the law has been amended so that OTA students can be supervised by OTAs, as long as the OTA is in turn supervised by an OT.  However, the requirement is no longer for "direct supervision" but it calls for "direction and supervision."  I find this to be a wordsmithing change that completely alters the intent of the original legislation - and the educators who met in a private pow-wow with NYSOTA representatives at the national conference to come up with changes have to know that they fundamentally altered the original intent.

I understand that the original language was less than optimal.  Actually it might have been detrimental.  I also understand that there was a time crunch to get the technical amendment introduced.  Still, the idea that such a dramatic turnaround in intent and language could be engineered by such a small contingent of people that represents a focal point of interest in extraordinarily unhealthy for our profession.

What are we left with?  Well OTA students still can't operate in schools or nursing homes (that are seeking Medicare and Medicaid reimbursement) unless they are under the direct line of sight or continuous attendance of the licensed professional.  However, with the way that the law is now written fieldwork educators can place students in non-traditional placements (in other words, places that are not so tightly regulated) and provide them with this generic level of "direction and supervision."

Now that is a win for the fieldwork educators who suddenly have a lot more latitude for student placements.  But there is a problem:  According to Practice Analysis studies nearly 80% of all COTAs work in skilled nursing facilities, rehabilitation facilities, or schools - all of which function under those more restrictive Medicare and Medicaid guidelines that actually require direct supervision.  Since NY State law also now mandates that OTAs pass a certification examination (which by the way happens to be based on a practice analysis and not on impromptu pow-wows) that means that OTA students may be legally placed in these non-traditional settings where they will receive "direction and supervision" but they sure will have a difficult time passing the certification examination that asks questions about the traditional work settings.

Here are the takeaways for all this:

1. If you are an OTA student in NY State, just because you are legally allowed to complete fieldwork in non-traditional settings under "direction and supervision" that does not mean that those experiences will necessarily prepare you adequately for passing the certification examination and subsequent entry level practice.  So being an OTA for the soup kitchen or domestic violence shelter might be cool, or being an OTA for the private community agency that provides dance and karate lessons to children who have disabilities might sound like fun - but just be ready to know that most entry level practice does not occur in these settings.

2. If you are an employer who is now hiring OTAs who are operating under limited permits (until they pass their exam) then you might want to screen a little closer to make sure that the students had adequate fieldwork experience.  There are a lot of employers out there (myself included) who had to struggle with students/new therapists who previously were not required to pass a certification examination.  Have these changes really ensured that these students will be prepared for the new requirement of examination and for practice?

Alternately, if you are an employer who operates under the fast food industry's theory of a never ending supply of unskilled labor you might like hiring these marginally prepared students and just dumping them after a year when it is apparent that they won't be passing their certification examination.  NY State allows nursing homes and hospitals and schools to do this with impunity, but you won't find these candidates operating anywhere near a private practice because the law doesn't allow it. 

3. If you are a health care consumer in NY State you should be aware that this is the way that practice laws are getting written.  That should concern you.

3. If you are a NY State politician then you might want to drink an extra cup of coffee during these last minute legislative marathons so you can notice that there is a world of difference between "direct supervision" and "direction and supervision."

4.  If you are a blogger (like me), make sure you write enough disclaimers so that people know you are not anti-progress, or anti-non traditional fieldwork.  Instead, make a lot of statements so that people reading this will know that these concerns are generated based on the belief that achieving expansion into emerging areas should not come by potentially sacrificing the quality in our educational programs.  It should also not come at the price of public safety and by negligence of our duty to prepare students appropriately to serve the public.


Anonymous said…

AOTA's view is that OTAs should be able to supervise OTA students.

AOTA has an official document that might be helpful:

Fieldwork Level II and Occupational Therapy Students: A Position Paper

In SNF Part A, CMS lifted the line of sight supervision requirement for students and OTAs may serve as clinical supervisors (in compliance with state laws).

See: http://www.aota.org/Practitioners/Reimb/Pay/Medicare/FactSheets/Medicare-Coverage-of-Services.aspx?FT=.pdf

From my perspective, the langauge in the original NY law updating the OT practice act could have limited opportunities for OTA students in a variety of fieldwork settings; a restriction that was not previously in place.

To post this comment I selected "anonymous" but my contact information is below.

Chuck Willmarth
Director, State Affairs
301/652-6611 x 2019
Thanks, Chuck - I agree that the original language was a concern, and that is a separate drum I have been banging regularly.

Thanks also for clarifying the line of sight issue for SNF Part A. That one flew under my radar. From what I can currently tell, other Part A restrictions and all the Part B restrictions and all the Medicaid in Education restrictions (specific to NYS) all remain in place. That is still an awful lot of restriction that requires constant attendance, line of sight, etc.

I am just not comfortable with the 'big picture' impact of loose supervision for students and if non traditional settings prepare these students for practice.

These concerns are not addressed within the technical amendment - probably related to the fact that the solution was reportedly driven by a single focus special interest group.

Anonymous said…
The change in statutory language from "direct supervision" to "direction and supervision" should have no impact on public safety. The details requiring supervision of the OTA have been spelled out in commissioner's regulations and in our estimation represents very comprehensive supervision requirements written by the sbot. The change in statutory language was sought to reduce confusion in the field. OTs and administrators read the statute, see "direct supervision," and assume that it means in the line-of-sight or in the same room, without ever bothering to read the regulations. OTs, OTAs and administrators need to read the statute and the regs!

Jeff Tomlinson, OTR, FAOTA
NYSOTA Legislative & Government Relations Coordinator
Hi Jeff,

The issue is that student supervision, as written in the law AND as written in the current regulations, is LESS STRINGENT than what is required by major payors Medicare and Medicaid.

You can believe that the State Board wrote comprehensive supervision requirements, but the fact is that OTA students as allowed by the law and the regs DO NOT HAVE TO RECEIVE LINE OF SIGHT SUPERVISION. Rather, they just have to receive 'direction and supervision.' This 'direction and supervision' as written in the current regs does not mandate a particularly 'close' level of supervision, at least in the way that Medicare and Medicaid operationally define student supervision requirements.

We can have debates about 'what does CLOSE SUPERVISION or DIRECT SUPERVISION mean,' but this opens up the opportunity for non traditional fieldwork models for student placement where there is no onsite OT or OTA supervision. Unrelated to legislation, there have been many articles in our professional publications exploring the possibilities of such placements.

As these types of fieldwork can now happen under the law, there is risk to the preparedness level of those OTA students. That also translates to a threat to public safety.

As a specific example, suppose an OTA student is completing a non-traditional fieldwork placement for a 'movement and dance' organization for children who have disabilities. This is a community based/emergent practice setting and there is no defined role for OT. The OTA student goes and sets up learning objectives with their academic FW coordinator who makes a weekly site visit. The student is supervised daily by the owner of the dance company, who is not an OT. In this instance, since the payment for services is all private, there is no requirement for what is defined as 'direct' supervision under Medicaid rules.

Now the question is whether or not this is an appropriate model for training a student, whether said student will be able to pass a certification examination, and also whether said student is adequately prepared for entry level practice. These all directly lead to public safety questions.
Let me also take this one step further:

The OT/OTA student who completed a nontraditional fieldwork placement with no onsite OT supervisor at the dance company graduates and gets a degree. Then this person applies for and is given a limited permit - so they get a job at a school where they are treating children.

Although there are supervision requirements in place as required by law and regulation, would you want this limited permittee who has not had any traditional supervision and mentoring and who has not yet had to take an exam to be treating children in schools?

In the past all these people flew under the radar because there was always a fail-safe mechanism whereby people who could never pass an exam could at least get registered as OTAs and practice as un-certified assistants. Now you will see just how many people were actually playing around these edges.

In my opinion, allowing fieldwork educators to unilaterally dictate the terms of appropriate supervision was a mistake.

Also in my opinion, the NYSOTA and AOTA push to promote limited permits was also a mistake.

In my opinion, neither of these goes far enough to protect the public. Rather, liberal supervision requirements serve the needs of educators and liberal access to limited permits serves the needs of practitioners. Neither adequately protects the interests of the public - and ironically that is supposed to be the point of legislation and regulation.
Anonymous said…

In terms of limited permits, we disagreed with the language in the proposed regulation that allows someone that fails the exam to continue to practice.

Our comments are online at:
http://aota.org/practitioners/advocacy/state/statenews/news/aota-letter-to-ny-prop-rules.aspx?ft=.pdf (page 2)

I do understand that the Board does not have to renew the limited permit in every case.


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