Occupational therapists (OTs) and occupational therapy assistants (OTAs) help clients develop, maintain, and recover skills necessary for daily living or for particular purposes. From helping elderly clients achieve independence to assisting individuals recovering from an injury work on skills necessary for getting back on the workforce. With thousands of occupational OTs and OTAs, all 50 states have decided that some form of regulation was in order, with a particular emphasis on forcing aspiring OTs and OTAs to acquire state-issued licensed.
In California, over 4,000 OTs and over 700 OTAs are currently licensed by the California Board of Occupational Therapy (BOT). OTs and OTAs must submit fingerprints, meet education and work requirements, agree to submit to continuing education requirements, and apply for license renewal every two years. Applicants must be certified by the National Board for Certification in Occupational Therapy (NBCOT), a private organization nationally with a nationally recognized certification program. More on that later.
Prior to the creation of the BOT through Senate Bill 1046 in 2000, California utilized a title protection law, which made it a crime to call oneself an OT unless they were certified by the (now called) NBCOT. Arguments in support of regulation, made by the Occupation Therapy Association of California (OTAC), included claims that laws at the time did “not provide sufficient protection or effective recourse for consumers against uncertified therapists.” Other claims made by proponents included the idea that licensure offers unique protection against “unqualified individuals from providing occupational therapy services.” Naturally, there wasn’t any particular evidence in support of these claims. As recently as March 2013, the sole justification for the BOTs existence provided for a background paper for state legislators was: “The health and safety of consumers is protected by well-regulated professions. The Board is charged with protecting the consumer from unprofessional and unsafe licensees.”
The BOT’s 2012 sunset review report provides little information about whether or not it is fulfilling its mission; it does note that it issued 173 fines in FY 2011-2012. The top three reasons for citations were (in order): “failure to report a change of mailing address within 30 days,” “practicing with an expired licensed or with an inactive license,” or violations pertaining to the required continuing education mandated by the BOT. In other words, violations that don’t relate to quality of work, competence, or professional conduct. The BOT also maintains a public list of licensees and other individuals “on probation.” The list primarily consists of individuals who either committed offenses unrelated to their occupation or who were working without a license. Given this information, it doesn’t seem that the health and safety of consumers is protected uniquely by licensing requirements and enforcement activities of the BOT.
Colorado has long resisted licensing and regulating the occupational therapy field, and research going back to the 1980s has repeatedly demonstrated that it isn’t necessary. Colorado has had a title protection law since 1996, which prevented individuals from calling themselves “occupational therapists,” “certified occupational therapists,” and related titles, unless they had met certain educational and certification requirements. Former state legislator Jerry Kopel wrote in 2008 that despite this, there exist many individuals in Colorado who work as OTs without calling themselves OTs. Despite this, there doesn’t seem to be much of a problem. From 1987 to 2006, the NBCOT had only received 29 complaints related to occupational therapists in Colorado; and only in two cases was there any resulting disciplinary action by the private organization.
The Department of Regulatory Agencies (DORA), which conducts sunset reviews on regulatory policies in Colorado, has repeatedly argued against regulation. In 2006, DORA was charged with reviewing whether or not regulation of OTs or OTAs was justified. DORA began on the premise that “regulation is justified only when the public is being harmed.” Reviewing the previously mentioned NBCOT data that indicated there was no pressing public safety interest in regulating the industry, the DORA reported, “regulation is a poor vehicle by which to address unethical business practices or fraud.”
Despite this, the Colorado legislature enacted the Occupational Therapy Practice Act (OTPA) of 2008, requiring the registration of occupational therapists. Less onerous than licensing, the registration requirement in Colorado requires occupational therapists (and not occupational therapy assistants) to prove that they have completed an educational program for occupational therapy, are accredited, and have six months of supervised field experience.
Operating under the same justification of California’s BOT, of protecting consumers, the registration requirements were reviewed by DORA in 2012. The sunset committee concluded, “there is no evidence that the public was being harmed before the OTPA was enacted,” and observed no changes in the three years that the OTPA was in place. As a result, DORA recommended the repeal of the OTPA on the grounds that it was never necessary.
Also in 2012, the Michigan Office of Regulatory Reinvention reviewed all occupational boards in the state. It recommended the abolition of the state Board of Occupational Therapy, on the grounds that credentialing by the private NBCOT “provides sufficient qualifications to employers.” If only this thought occurred to California legislators and regulators. This is a point often lost in the development of occupational licensing requirements. Given the litany of private organizations that offer certification to individuals in virtually any profession, and considering that state licensing requirements bestow no particular contributions to quality, an absence of state licensure does not mean that quality control is lost. Consumers and employers now have a number of tools available to them, from the Better Business Bureau to Angie’s List, which, coupled with private certification, give both far more meaningful information about a service provider than unnecessary state licenses.
Given that California’s primary problems with OTs and OTAs have been unrelated to their actual practice, California’s licensure requirements revolve around standards set by a nationally recognized credentialing organization, and that nearby Colorado has long found even minimal regulation to be unnecessary, California should reconsider its practice of licensing OTs and OTAs. Further, sunset reviews shouldn’t be focused entirely on streamlining and improving the efficacy of regulations, but instead should focus on whether or not the regulations are necessary in the first place.