Florida Occupational Therapy Laws and Rules
COURSE PRICE: $20.00
CONTACT HOURS: 2
This course is approved by the Florida Board of Occupational Therapy. CE Broker Provider #50-2174.
Wild Iris Medical Education is an approved provider of continuing education by the American Occupational Therapy Association (AOTA), Provider #3313. Courses are accepted by the NBCOT Certificate Renewal program.
Course Availability: Expires June 1, 2018. You must score 70% or better on the test and complete the course evaluation to earn a certificate of completion for this CE activity. Wild Iris Medical Education, Inc., provides educational activities that are free from bias. The information provided in this course is to be used for educational purposes only. It is not intended as a substitute for professional healthcare. Medical Disclaimer Legal Disclaimer Disclosures
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.
Florida Occupational Therapy Laws and Rules
Copyright © 2015 Wild Iris Medical Education, Inc. All Rights Reserved.
COURSE OBJECTIVE: The purpose of this course is to prepare Florida OTs and OTAs 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.
Upon completion of this course, you will be able to:
- Describe the Florida Board of Occupational Therapy.
- Contrast the Florida Board of Occupational Therapy with occupational therapy professional organizations.
- Identify the levels of occupational therapy practice in Florida.
- 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 therapist or occupational therapy assistant license in Florida.
- Discuss Florida occupational therapy law grounds for discipline and penalties.
- Differentiate between ethical and legal issues.
- Summarize the American Occupational Therapy Association’s Code of Ethics and Ethical Standards.
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.
- Chapter 120 of the Florida Statutes covers the Administrative Procedure Act.
- (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, 2014a).
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, 2014c).
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 this 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, 2014).
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 affiliated with the practice of the profession
(F.S., Title XXXII, Ch. 468.205)
Members of the Board can serve two four-year terms. The Board is supported by a full-time professional staff based in Tallahassee.
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
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) 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 of Certification for 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.
OT PRACTICE IN FLORIDA
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 OT as defined in the Act and whose license is in good standing; entry-level practice requires a master’s degree.
- 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; entry-level practice requires an associate’s degree.
- 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., Title XXXII, Ch. 468.203)
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
(F.S., Title XXXII, Ch. 468.203)
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”
It is important to note that “under supervision of an occupational therapist” means that the occupational therapist has delegated tasks to a qualified occupational therapy assistant. The OT does not in all instances have to be on the premises in order for the OTA to perform the delegated functions. However, the OT must provide initial direction in developing the plan of treatment and periodically inspect the actual implementation of the plan.
This must be distinguished from direct supervision of an aide. “Under direct supervision of an occupational therapist or an occupational therapy assistant” means that the aide must be within the line of vision of the supervising occupational therapist or occupational therapy assistant.
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
- 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 occupational therapist 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.
An electrical stimulation device used during a therapy treatment. (Source: Praisaneg/Shutterstock.com.)
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’d 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
[This section is taken from F.S., Title XXXII, Chapter 468, and F.A.C., Chapter 64B11.]
Florida OT and OTA licenses are monitored by the Florida Board of Occupational Therapy and required to be renewed every two years. All licenses expire on February 28 of every odd-numbered year.
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
- 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 classes. (Wild Iris Medical Education reports automatically 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. Florida now offers the VALOR System (Veterans Application for Licensure Online Response System). This new system provides an expedited licensing avenue for honorably discharged veterans with an active license in another state, with most licensing fees waived. It also provides an expedited temporary certificate to practice in an area of critical need.
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 or delinquent 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
The following acts 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 for a minimum of ninety days and thereafter until the licensee appears before the Board to demonstrate current competency and ability to practice safely and compliance with any previous Board orders
- Denial of licensure with conditions to be met prior to any reapplication
- Permanent revocation, with limited ability to reapply
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
Violations and Range of Penalties
In imposing discipline upon applicants and licensees, a penalty within the range corresponding to the violations is set forth. 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.
The Board may not reinstate the license of practitioner, or cause a license to be issued to a person it has deemed unqualified, until such time as the Board is satisfied that such person has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of occupational therapy.
Citations result in monetary penalties as outlined in F.A.C. 64B11.
Occupational therapists and occupational therapy assistants practice within a society governed by state and federal laws. For that reason, it is important that occupational therapy professionals understand the basis of law (jurisprudence), its sources and types, and the relationship of law to ethics in the practice of occupational therapy.
Basis and Sources of Law
Laws flow from ethical principles 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. As such, laws change with time and circumstances. In the United States, law is based on the Old English system wherein the monarch held supreme power over the land and its people, acting according to “divine right.” The ruler’s decisions became the law of the land and eventually became known as common law, or case law. These case-by-case decisions set precedent and shaped future laws.
The U.S. Constitution established three separate branches of government within the federal system—executive, legislative, and judicial—and granted specific powers to the federal government. These are called express powers. Under the Tenth Amendment, all other powers are retained by the states, including licensure of healthcare professionals. Thus, the state of Florida has the power to create and enforce laws governing the profession of occupational therapy.
In the states, including Florida, the division of power mirrors that of the federal government:
- The legislative branch makes laws on behalf of the people.
- The judicial branch interprets these laws and adjudicates disputes, fulfilling its purpose to administer justice without partiality.
- The executive branch administers and enforces the laws, using the police power of the state.
|Source||Laws passed by legislative bodies of federal, state, and local governments|
|Functions||Protects and provides for the general welfare of society|
|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|
|Source||Executive powers, delegated by the legislative branch|
|Functions||Carries out special duties of various agencies|
|Example||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|
Types of Law
There are two major divisions of law: criminal and civil.
The purpose of criminal law is to protect society from actions that directly threaten the order of society. Because some crimes are more serious than others and children are considered less responsible for their acts than adults, there are three categories of criminal offenses: misdemeanor, felony, and juvenile.
The purpose of civil law is to make restitution for injury suffered by one or more individuals. Civil law is further divided into contract law and tort law.
|Source: Adapted from Hamilton, 1996.|
|Function||To protect society from actions that directly threaten its orderly existence. Criminal acts, while aimed at individuals, are offenses against the state, thus perpetrators are punished by the state (imprisoned, fined, performance of hours of work); victims usually are not compensated but may initiate civil action against perpetrators to recover monetary damages for injury or loss.|
|Proof||Beyond a reasonable doubt; jury decision must be unanimous|
|Function||To redress wrongs and injuries suffered by individuals|
|Proof||By a preponderance of the evidence; adjudicated by a judge or jury; a jury decision need not be unanimous|
Criminal law is concerned with harm against society—that is, with action that directly threatens the orderly existence of society. Criminal acts, while causing harm to individuals, are offenses against the state. Thus, in criminal cases the government attorney acts as the prosecutor on behalf of the people.
When a guilty verdict is returned, the victim usually does not receive redress (compensation) even though the person who commits the crime is punished in some way, such as being sentenced to jail, fined, or placed on probation. To receive compensation, the victim must bring a civil suit against the accused perpetrator (Hamilton, 1996).
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.
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.
It is important to be aware that an action can potentially be both criminal and civil in nature (Stanford & Connor, 2012).
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.
Except in rare circumstances, clients have the right to refuse treatment. Other examples of assault and battery are:
- 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
False imprisonment is confining people against their will by physical or verbal means. Some examples of false imprisonment are:
- Restraining a client for non–medically approved reasons
- Restraining a mentally ill client who is not a danger to self or others
- Detaining an unwilling client in the hospital if the client insists on leaving
- Detaining a person who is medically ready for discharge for an unreasonable period of time
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 the Health Insurance Portability and Accountability Act’s (HIPAA) 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 healthcare professionals 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 over-exertion 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)
PRINCIPLES AFFECTING MALPRACTICE ACTIONS
Professional negligence (malpractice) is the improper discharge of professional duties or failure to meet standards of care, resulting in harm to another person. Four important principles affect malpractice actions: individual responsibility, respondeat superior, res ipso loquitor, and standard of care.
- Individual responsibility affirms the principle that every person is responsible for his or her own actions. Even when several other people are involved in a situation, it is difficult for any one person to remain free of all responsibility and shift all responsibility to others.
- Doctrine of respondeat superior (“let the master speak”) holds employers indirectly and vicariously liable for the negligence of their employees who are acting within the scope of their employment at the time a negligent act occurs. This doctrine allows an injured party to sue both the employee and employer, to sue only the employee, or to sue only the employer for alleged injuries.
Although each person is responsible for her or his own acts, professionals with oversight duties are held responsible for the actions of those they supervise. For example, an occupational therapist is held accountable for the actions of occupational therapy assistants or occupational therapy aides that s/he supervises.
- Doctrine of res ipso loquitor (“the thing speaks for itself”) is a rule of evidence designed to equalize the positions of plaintiffs and defendants in the situation when plaintiffs (those injured) may be at a disadvantage. The rule allows a plaintiff to prove negligence by circumstantial evidence when the defendant has the primary, and sometimes only, knowledge of what happened to cause an injury.
Generally speaking, plaintiffs must prove every element of a case against defendants. Until they do, the court presumes that the defendants did meet the applicable standard of care. However, when the court applies the res ipso loquitor rule, defendants must prove that they were not negligent. Plaintiffs can ask the court to invoke the res ipso loquitor rule if three elements are present:
- The act that caused the injury was in the exclusive control of the defendant.
- The injury would not have happened in the absence of negligence by the defendant.
- No negligence on the part of the plaintiff contributed to the injury.
- Standard of care refers the level of care provided to a patient that would be reasonably expected to be provided by another individual in a comparable situation.
Preventing Malpractice Claims
Because today’s healthcare consumers are more likely to take an active role in their care, more likely to question the quality of healthcare services, and more apt to take legal action against providers, occupational therapists must take precautions to minimize the risk of malpractice claims being brought against them. Below are some suggested actions that may help prevent malpractice claims. (This information is in no way intended to be a substitute for professional legal advice.)
- Delegate duties cautiously. Occupational therapists are responsible for subordinates, equipment, and supplies. When assigning a task to an OTA or occupational therapy aide, OTs should ensure the task is not beyond the ability or scope of practice of the subordinate because, if an error occurs, the supervising therapist is responsible.
- Develop self-awareness. Occupational therapists must recognize their own strengths and weaknesses and use continuing education to expand their knowledge and skill set. They should not be afraid to admit lack of knowledge in some clinical areas and should not take on patients whose rehabilitative needs lie outside of their skill set or scope of practice.
- Follow agency policies and procedures. These documents are designed to prevent errors, injuries, and accidents. If an error occurs and legal action results, the court will want to know if the practitioner followed established policies and procedures.
- Document actions accurately. Legally, if an action is not documented, it did not happen. Notes should be written accurately, objectively, and without subjective judgments that could be construed as libelous.
- Write detailed incident reports. Practitioners must document in detail all errors, injuries, and accidents. Because long periods of time may elapse between an incident and court action, an incident report may be the only detailed account of what happened.
- Recognize suit-prone clients and intervene appropriately. When people feel frightened and powerless, they may become critical and demanding. By reacting defensively or avoiding such clients, an occupational therapist may inadvertently confirm clients’ fears and/or and foster their anger. When occupational therapy professionals listen actively, discuss treatment plans openly, and involve clients in decision-making, they help to foster trust and respect.
- Prevent accidents. Be alert for hazards that cause injury. Spilled water, broken equipment, protruding apparatus, exposed electrical wires, and cluttered hallways are accidents waiting to happen. When they do, people are more likely to suffer injuries, and healthcare professionals may be held responsible.
- Become informed consumers of professional liability insurance. The possibility of being sued is real. Lawsuits are costly and the price of defending oneself may be immense. Given these realities, occupational therapy professionals should become informed consumers of professional liability insurance.
James works as an independent occupational therapist in a joint practice with another occupational therapist. One day James received a referral from an orthopedic surgeon for Ms. Bell, who was recovering from surgery for a wrist injury. At her occupational therapy evaluation, Ms. Bell told James how much she had suffered with the injury, how long she had waited for care, that she had once sued her employer, and how angry she was with the entire medical establishment.
James had never dealt with a suit-prone patient before but realized that he should be especially cautious and thoughtful in his interactions with Ms. Bell. James checked his professional liability insurance policy to be sure it was in effect, established consistent two-way communication with the referring surgeon, and meticulously documented the evaluation and all subsequent therapy treatments provided. At Ms. Bell’s second visit, James listened attentively to the patient, discussed his recommended treatment plan with her in detail, and involved Ms. Bell in decision-making in regard to every aspect of her care.
After several visits, Ms. Bell began to trust and respect James. She gradually regained the strength and mobility in her wrist and verbalized pleasure at being able to return to her previously enjoyed hobby of playing the cello. Upon her discharge from therapy, Ms. Bell told James how frightened and powerless she had felt and how much she appreciated the care that James had given her, particularly the considerate way that he had actively sought her opinion and listened to and validated her thoughts and feelings.
Ethics are broadly defined as the division of philosophy that deals specifically with questions concerning the nature of values in regards to matters of human conduct. That is, ethics is concerned with the rightness or wrongness of human behavior and the goodness or badness of its effects.
ETHICS, VALUES, OR LAWS?
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, 2014).
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. These rules are enforced by an authority with the power to see that they are obeyed.
Ethical Principles and Healthcare
There are four fundamental ethical principles generally accepted and applied to the practice of healthcare as a whole.
- Autonomy refers to the ability of an individual to think, decide, and act upon one’s own initiative. It is the responsibility of healthcare providers to provide sufficient and accurate information to a patient to allow the patient to make informed decisions and to honor a patient’s decisions regarding their own healthcare even when a patient’s decision may diverge from what the healthcare team would choose.
- Beneficence means working actively for the best interests of the patient. This principle highlights the general concept of doing good for others and, in the context of a provider-patient relationship, entrusts a healthcare provider with performing professional and clinical duties in a competent, caring manner that will benefit the patient.
- Nonmaleficence means to do no harm to a patient. This may mean carefully weighing potential benefits against potential negative results and/or side effects that may potentially result from providing healthcare interventions.
- Justice refers to a healthcare provider’s ethical responsibility to, insofar as possible, provide equal and impartial treatment to all patients in similar situations, regardless of a patient’s age, disability status, socioeconomic status, race, religion, gender identification, sexual orientation, or other background factors.
(University of Ottawa, 2014)
These four fundamental ethical principles are applicable and implicit in the components of the American Occupational Therapy Association’s Occupational Therapy Code of Ethics (see “Occupational Therapy Code of Ethics and Ethical Standards” below).
PATIENT SELF-DETERMINATION ACT
The responsibility held by healthcare providers to ensure and respect a patient’s right to autonomy is also legally enforced by the federal Patient Self-Determination Act (PSDA) of 1991. The PSDA mandates that any Medicare- and/or Medicaid-certified healthcare institution must actively work to educate adult patients and the community as a whole about the rights of a patient to accept or refuse healthcare interventions. The PSDA obligates healthcare providers to ensure that patients are informed of their legal rights, under individual state law, to make decisions about their own healthcare, as well as to create an advance directive for themselves.
This law mandates that patients admitted to healthcare facilities be asked whether they have an advance directive in place; that healthcare facilities maintain policies and procedures regarding advance directives; and that this information be provided to patients when they are admitted. (The PSDA defines an advance directive as a “written instrument, such as a living will or durable power of attorney for healthcare, recognized under state law, relating to the provision of such care when the individual is incapacitated.”)
Advance directive laws were put in place in response to several highly visible legal cases in order to protect the right of a patient to predetermine whether or not to receive life-sustaining healthcare interventions.
Sources: Castillo et al, 2011; Washington State Hospital Association, 2014.
Amanda works as an occupational therapist in a long-term care facility. When she arrives at the room of Mrs. Mark, who has had a total hip replacement, to begin her scheduled morning occupational therapy session, she finds the patient still in bed. When Amanda inquires about this at the nurse’s station, she is told that Mrs. Mark stated that she did not want any OT today “because I’m in too much pain.” This is the second time Mrs. Mark has refused therapy.
Amanda now faces an ethical dilemma. While the ethical principle of autonomy dictates that Mrs. Mark does indeed have the right to accept or refuse occupational therapy treatments, Amanda is concerned that continued missed therapy sessions may lead to a poorer overall functional outcome for Mrs. Mark 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.
Amanda documents the missed visit for the morning and goes immediately to her rehab director to discuss the dilemma. Amanda and the rehab director consult with the nursing staff, a social worker, and Mrs. Mark’s physician, as well as with Mrs. Mark and her husband. It is eventually discovered that Mrs. Mark’s post-operative pain has not been sufficiently managed by her currently prescribed medication, but that she has been hesitant to discuss her discomfort with the nursing staff because “I didn’t want to bother them, they’re already so busy.”
It is decided that Mrs. Mark’s physician will adjust her medication to better manage her pain. Mrs. Mark seems pleased with the plan of action. Within one day, she is reporting significantly less pain and is once again willing to participate in occupational therapy sessions.
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 specific group. One of the hallmark characteristics 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 specific ethical standards of that profession.
In order to assert the values and standards expected of members of the profession of occupational therapy, the American Occupational Therapy Association (AOTA) publishes the Occupational Therapy Code of Ethics and Ethics Standards. This document is regularly revised and updated with the latest codes and standards (AOTA, 2015).
(Portions of this document are provided here; see “Resources” at the end of this course for a link to the complete version.)
The specific purposes of the Occupational Therapy Code of Ethics and Ethics Standards are to:
- Identify and describe the principles supported by the occupational therapy profession
- Educate the general public and members regarding established principles to which occupational therapy personnel are accountable
- Socialize occupational therapy personnel to expected standards of conduct
- Assist occupational therapy personnel in recognition and resolution of ethical dilemmas
The Occupational Therapy Code of Ethics and Ethics Standards defines the set of principles that apply to occupational therapy personnel at all levels:
- Beneficence. Principle 1: Occupational therapy personnel shall demonstrate a concern for the well-being and safety of the recipients of their services.
- Nonmaleficence. Principle 2: Occupational therapy personnel shall intentionally refrain from actions that cause harm.
- Autonomy and Confidentiality. Principle 3: Occupational therapy personnel shall respect the right of the individual to self-determination.
- Social Justice. Principle 4: Occupational therapy personnel shall provide services in a fair and equitable manner.
- Procedural Justice. Principle 5: Occupational therapy personnel shall comply with institutional rules; local, state, federal, and international laws; and AOTA documents applicable to the profession of occupational therapy.
- Veracity. Principle 6: Occupational therapy personnel shall provide comprehensive, accurate, and objective information when representing the profession.
- Fidelity. Principle 7: Occupational therapy personnel shall treat colleagues and other professionals with respect, fairness, discretion, and integrity.
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.
Florida Administrative Code, Chapter 64B11 (Board of Occupational Therapy)
Florida Statutes, Chapter 120 (Administrative Procedure Act)
Florida Statutes, Chapter 456 (Health Professions and Occupations: General Provisions)
Florida Statutes, Chapter 468 (Part III, Occupational Therapy)
NOTE: Complete URLs for references retrieved from online sources are provided in the PDF of this course (view/download PDF from the menu at the top of this page).
American Occupational Therapy Association (AOTA). (2010). Occupational therapy code of ethics and ethics standards. Retrieved from https://www.aota.org
Castillo LS, Williams BA, Hooper SM, et al. (2011). Lost in translation: the unintended consequences of advance directive law on clinical care. Ann Intern Med, 154(2), 121–8.
Florida Board of Occupational Therapy (FL BOT). (2014a). Resources for practice. Retrieved from http://floridasoccupationaltherapy.gov
Florida Board of Occupational Therapy (FL BOT). (2014b). Home page. Retrieved from http://floridasoccupationaltherapy.gov
Florida Department of State. (2010b). Learn about rulemaking. Retrieved from https://www.flrules.org
Florida Legislature. (2014c). 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.
Loyola University New Orleans. (2014). Some fundamental concepts in ethics. Retrieved from http://www.loyno.edu
National Association of Social Workers, Illinois Chapter. (2013). Ethics corner: resolving ethical dilemmas. Retrieved from http://naswil.org
National Institutes of Health (NIH). (2014). Exploring bioethics. Retrieved from http://science.education.nih.gov
Raths LE, Harmin M, Simons SB. (1979). Values and teaching (2nd ed.). Columbus, OH: Merrill.
Washington State Hospital Association. (2014). End of life care manual. Retrieved from http://www.wsha.org