Jerry Kopel

Occupational therapists

March 22, 2008

By Jerry Kopel


Occupational therapists are baaaack! Under SB 152, Sen. Lois Tochtrop (D) and Rep. Sara Gagliardi (D) would license those persons under the Dept. of Regulatory Agencies (DORA).

Oops! When SB 152 was heard in Senate Business Affairs committee, the sponsors moved an amendment to strike everything below the enacting clause and put in a "new" bill. Well, not exactly "new". They took out the definition of "licensure" and put in a definition of "registrant".

Wherever the word "licensure" appeared, it was replaced by "registered". But the requirements of "registered" remained the same as when it was called "licensure". There is the same title protection, educational requirements, internship, passing an examination given under the jurisdiction of DORA, disciplinary action for violations, and exclusivity of the right to practice.

In my opinion, whoever prepared this "new" bill either had no true understanding of the difference between licensing (the highest form of regulation) and registration (a low threshold type of regulation) or had a low expectation of the ability of legislators to see through the bait and switch. Calling it "registered" instead of "licensure" in no way changes the exclusivity the bill promotes.

These therapists have a long and convoluted legislative history. Back in 1995, the occupational therapists came before the House-Senate Sunrise-Sunset Committee (which committee no longer exists) for the third time and the committee voted again in opposition to regulation based on DORA's recommendation.

DORA has now recommended "do not regulate occupational therapists" for four applications: 1987, 1990, 1995, and 2006. Based on the 2006 review, proponents had a two year window, 2007 and 2008, to seek bill passage. DORA did not suggest "do not license", DORA recommended "do not regulate".

DORA in 2006 did an exhaustive study (six single space pages) in the report concerning any injuries that should be subject to discipline from 1987 to 2006. Citing specific examples discovered, DORA found no justification for regulation.

Occupational therapy involves helping with almost everything the non-disabled are presently able to do for themselves, hopefully leading to a learning process for the injured and less dependence on others.

"Occupational" essentially means whatever the particular patient needs to do in activities of daily living. It is not confined to a wage-earner setting.

Most of SB 152 is boiler-plate DORA language you will find in any DORA licensing law relating to health issues.

"Licensure" wrote DORA in 1995 "does not assure that the public will be more protected than they currently are by Colorado statutes, federal law, and the existing private credentials of occupational therapists".

The occupational therapist lobby could have proceeded with their licensure bill in 1996, but the therapists instead sought title protection under the Consumer Protection Act. That protection in CRS 6-1-707 (c) would be repealed and replaced by SB 152.

Under the 1996 law, the education standards and experience level sought under the 1995 Sunrise application for licensure was the standard for persons to exclusively use the title "occupational therapists" or the abbreviation "O.T".

As of March 31, 2006, according to the DORA report, there were 1,932 occupational therapists under the title protection act, as well as 395 occupational therapist assistants. If nothing else is passed, the OTA's should be included in the title protection.

So here is where we are. There is title protection based on an educational background and passage of a national test resulting in national certification. That Colorado statute has been in existence for 11 years.

However, persons who don't meet those qualifications can presently practice the occupation as long as the protected titles are not used to identify them. Hospitals can use such non-titled persons at obviously lower cost to the hospital (bearing the burden of choosing competent individuals ) and to the consumer and insurance payers.

DORA's 2006 report zeroed in on examples of alleged financial disputes stating these were "insufficient to justify state intervention in the marketplace ... Regulation would only serve to limit the supply of OT's and OTA's, thus driving up the price of the service."

When you turn to licensing as the desired step, or registration as promoted under SB 152, you turn to exclusivity. Fortunately the Sunrise review enables the legislature and the public to discover whether consumers are being harmed by the present law.

As often stated in the DORA reviews, licensing, even when called "registration" may feed the ego of the regulated, but it doesn't necessarily fall under the present DORA theme of providing consumer protection.

According to DORA, the fiscal cost for 2008 to 2009 of SB 152 is $172,000.

(Jerry Kopel served 22 years in the Colorado House.)

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