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

Posted Aug 06 2012 3:01pm
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.
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