SB412: Bill Text

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2021 - 2022 LEGISLATURE

2021 Senate BILL 412

June 10, 2021 - Introduced by Senators Ballweg, Cowles, Felzkowski, Marklein, Nass and L. Taylor, cosponsored by Representatives VanderMeer, Moses, Cabral-Guevara, Billings, Brandtjen, Dallman, Doyle, Mursau, Novak, Oldenburg, Rozar, Spiros, Subeck, Tauchen, Thiesfeldt and Tusler. Referred to Committee on Insurance, Licensing and Forestry.

SB412,1,9 An Act to amend 49.45 (9r) (a) 7. c., 146.81 (1) (es), 146.997 (1) (d) 4., 146.997 (1) (d) 5., 155.01 (7), 252.14 (1) (ar) 4p., 440.03 (9) (a) (intro.), 440.03 (9) (a) 2., 440.03 (13) (b) (intro.), 440.03 (13) (c), 440.15, 446.01 (1v) (h), 448.956 (1m), 448.96 (4) and (6), 448.961, 448.968 (2) (intro.), 450.10 (3) (a) 5. and 451.02 (1); and to create 14.89, 440.03 (11m) (c) 2r., 448.96 (1n) and (1o) and subchapter XI of chapter 448 [precedes 448.987] of the statutes; relating to: ratification of the Occupational Therapy Licensure Compact, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill ratifies and enters Wisconsin into the Occupational Therapy Licensure Compact (compact), which provides for the ability of an occupational therapist or occupational therapy assistant licensed in one member state (licensee) to obtain a “compact privilege” to practice in a remote state without obtaining a license in that remote state. Significant provisions of the compact include:

1. The creation of a Occupational Therapy Compact Commission (commission), which includes one member or representative of the licensure boards of each member state. The compact grants various powers and duties to the commission, including overseeing the administration of the compact, enforcing the compact, adopting bylaws, promulgating binding rules for the compact, establishing an executive committee, and employing officers and employees. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff.

2. A process whereby a licensee may obtain a compact privilege to practice in another member state. A licensee's primary state of residence is considered to be his or her home state, and any other member state in which the licensee seeks to practice is considered a remote state. A licensee providing occupational therapy in a remote state under a compact privilege is subject to that state's regulatory authority. A remote state may take action against a licensee's compact privilege in the remote state, and the licensee is then not eligible for a compact privilege in any state until certain criteria are met. If a licensee's compact privilege in any remote state is removed, the individual may lose his or her compact privilege in any remote state until certain criteria are met. However, a home state has the exclusive power to impose adverse action against a license issued by the home state. If a home state license is encumbered (i.e., suspended), the licensee's compact privilege in any remote state is deactivated until all encumbrances have been removed from the home state license. Member states may charge a fee for granting a compact privilege and may impose a jurisprudence requirement for granting a compact privilege that assesses an individual's knowledge of the laws and rules governing the practice of occupational therapy in a particular state.

3. The ability for member boards to conduct joint investigations of licensees and the ability of member states to issue subpoenas that are enforceable in other states.

4. The creation of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states. A member state must submit a uniform data set to the data system on all individuals to whom this compact is applicable as required by the rules of the commission.

5. Various provisions regarding resolutions of disputes between the commission and member states and between member and nonmember states, including a process for termination of a state's membership in the compact if the state defaults on its obligations under the compact.

The compact becomes effective in this state upon enactment of the bill or upon enactment of the compact in ten states, whichever occurs later. The compact provides that it may be amended upon enactment of an amendment by all member states. A state may withdraw from the compact by repealing the statute authorizing the compact, but the compact provides that a withdrawal does not take effect until six months after the effective date of that repeal.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB412,1 Section 1. 14.89 of the statutes is created to read:

SB412,3,6 14.89 Occupational therapy licensure compact. There is created an occupational therapy compact commission as specified in s. 448.987. The delegate of the commission representing this state shall be an individual described in s. 448.987 (8) (b) 2. The commission has the powers and duties granted and imposed under s. 448.987.

SB412,2 Section 2. 49.45 (9r) (a) 7. c. of the statutes is amended to read:

SB412,3,9 49.45 (9r) (a) 7. c. An occupational therapist who is licensed under subch. VII of ch. 448 or who holds a compact privilege under subch. XI of ch. 448.

SB412,3 Section 3. 146.81 (1) (es) of the statutes is amended to read:

SB412,3,13 146.81 (1) (es) An occupational therapist or occupational therapy assistant who is licensed under subch. VII of ch. 448 or who holds a compact privilege under subch. XI of ch. 448.

SB412,4 Section 4. 146.997 (1) (d) 4. of the statutes is amended to read:

SB412,3,20 146.997 (1) (d) 4. A physician, podiatrist, or perfusionist, physical therapist, or physical therapist assistant, occupational therapist, or occupational therapy assistant licensed under ch. 448 or; a physical therapist or physical therapist assistant who holds a compact privilege under subch. IX of ch. 448 ; or an occupational therapist or occupational therapy assistant who holds a compact privilege under subch. XI of ch. 448.

SB412,5 Section 5. 146.997 (1) (d) 5. of the statutes is amended to read:

SB412,4,2 146.997 (1) (d) 5. An occupational therapist, occupational therapy assistant, physician assistant or A respiratory care practitioner certified under ch. 448.

SB412,6 Section 6. 155.01 (7) of the statutes is amended to read:

SB412,4,16 155.01 (7) “Health care provider" means a nurse licensed or permitted under ch. 441, a chiropractor licensed under ch. 446, a dentist licensed under ch. 447, a physician, physician assistant, perfusionist, podiatrist, physical therapist, physical therapist assistant, occupational therapist, or occupational therapy assistant licensed under ch. 448, a person practicing Christian Science treatment, an optometrist licensed under ch. 449, a psychologist licensed under ch. 455, a physical therapist or physical therapist assistant who holds a compact privilege under subch. IX of ch. 448, an occupational therapist or occupational therapy assistant who holds a compact privilege under subch. XI of ch. 448, a partnership thereof, a corporation or limited liability company thereof that provides health care services, a cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility, or a home health agency, as defined in s. 50.49 (1) (a).

SB412,7 Section 7. 252.14 (1) (ar) 4p. of the statutes is amended to read:

SB412,4,20 252.14 (1) (ar) 4p. An occupational therapist or occupational therapy assistant who is licensed under subch. VII of ch. 448 or who holds a compact privilege under subch. XI of ch. 448.

SB412,8 Section 8. 440.03 (9) (a) (intro.) of the statutes is amended to read:

SB412,5,2 440.03 (9) (a) (intro.) Subject to pars. (b) and (c) and s. 458.33 (2) (b) and (5), the department shall, biennially, determine each fee for an initial credential for which no examination is required, for a reciprocal credential, and for a credential renewal and any fee fees imposed under s. ss. 448.986 (2) and 448.9875 (2) by doing all of the following:

SB412,9 Section 9. 440.03 (9) (a) 2. of the statutes is amended to read:

SB412,5,17 440.03 (9) (a) 2. Not later than January 31 of each odd-numbered year, adjusting for the succeeding fiscal biennium each fee for an initial credential for which an examination is not required, for a reciprocal credential, and, subject to s. 440.08 (2) (a), for a credential renewal, and any fee fees imposed under s. ss. 448.986 (2) and 448.9875 (2), if an adjustment is necessary to reflect the approximate administrative and enforcement costs of the department that are attributable to the regulation of the particular occupation or business during the period in which the initial or reciprocal credential, credential renewal, or compact privilege is in effect and, for purposes of each fee for a credential renewal, to reflect an estimate of any additional moneys available for the department's general program operations as a result of appropriation transfers that have been or are estimated to be made under s. 20.165 (1) (i) during the fiscal biennium in progress at the time of the deadline for an adjustment under this subdivision or during the fiscal biennium beginning on the July 1 immediately following the deadline for an adjustment under this subdivision.

SB412,10 Section 10. 440.03 (11m) (c) 2r. of the statutes is created to read:

SB412,5,21 440.03 (11m) (c) 2r. The coordinated database and reporting system under s. 448.987 (9), if such disclosure is required under the occupational therapy licensure compact under s. 440.987.

SB412,11 Section 11. 440.03 (13) (b) (intro.) of the statutes is amended to read:

SB412,6,4 440.03 (13) (b) (intro.) The department may investigate whether an applicant for or holder of any of the following credentials has been charged with or convicted of a crime only pursuant to rules promulgated by the department under this paragraph, including rules that establish the criteria that the department will use to determine whether an investigation under this paragraph is necessary, except as provided in par. (c) and ss. 441.51 (5) (a) 5., 448.980 (5) (b) 3., and 448.985 (3) (a) 4., and 448.987 (3) (a) 5. a. and (5) (b) 2. a.:

SB412,12 Section 12. 440.03 (13) (c) of the statutes is amended to read:

SB412,7,3 440.03 (13) (c) The department shall require an applicant for a private detective license or a private security permit under s. 440.26, an applicant for a juvenile martial arts instructor permit under sub. (17), an applicant for a real estate appraiser certification under s. 458.06 or license under s. 458.08, an applicant for a multistate license under s. 441.06 (1c) or 441.10 (1c), an applicant for a compact license under s. 448.05 (2) (f), an applicant for a physical therapist license under s. 448.53 or physical therapist assistant license under s. 448.535, an applicant for an occupational therapist or occupational therapy assistant compact privilege under s. 448.987 (4), an applicant for an occupational therapist or occupational therapy assistant license described in s. 448.987 (5) (b) 2. a., and a person for whom the department conducts an investigation under par. (b), to be photographed and fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may submit the fingerprint cards, and the department of justice shall submit the fingerprint cards of all applicants for a real estate appraiser certification under s. 458.06 or license under s. 458.08, of all applicants for a multistate license under s. 441.06 (1c) or 441.10 (1c), of all applicants for a compact license under s. 448.05 (2) (f), and of all applicants for a physical therapist license under s. 448.53 or a physical therapist assistant license under s. 448.535, to the federal bureau of investigation for the purpose of verifying the identity of the persons fingerprinted and obtaining records of their criminal arrests and convictions. Information obtained from the federal bureau of investigation may be shared with the department or the appropriate credentialing board, but shall otherwise be kept confidential and is not subject to disclosure under s. 19.35.

SB412,13 Section 13. 440.15 of the statutes, as affected by 2021 Wisconsin Act 25, is amended to read:

SB412,7,11 440.15 No fingerprinting. Except as provided under ss. 440.03 (13) (c), 441.51 (5) (a) 5., 448.980 (5) (b) 3., 448.985 (3) (a) 4., 448.987 (3) (a) 5. a. and (5) (b) 2. a., 450.071 (3) (c) 9., and 450.075 (3) (c) 9., the department or a credentialing board may not require that an applicant for a credential or a credential holder be fingerprinted or submit fingerprints in connection with the department's or the credentialing board's credentialing.

SB412,14 Section 14. 446.01 (1v) (h) of the statutes is amended to read:

SB412,7,15 446.01 (1v) (h) Occupational therapists affiliated credentialing board under subch. VII of ch. 448. “Health care professional" also includes an individual who holds a compact privilege under subch. XI of ch. 448.

SB412,15 Section 15. 448.956 (1m) of the statutes is amended to read:

SB412,7,23 448.956 (1m) Subject to sub. (1) (a), a licensee may provide athletic training to an individual without a referral, except that a licensee may not provide athletic training as described under s. 448.95 (5) (d) or (e) in an outpatient rehabilitation setting unless the licensee has obtained a written referral for the individual from a practitioner licensed or certified under subch. II, III, IV, V, or VII of this chapter; under ch. 446; or under s. 441.16 (2) or from a practitioner who holds a compact privilege under subch. IX or XI of ch. 448.

SB412,16 Section 16. 448.96 (1n) and (1o) of the statutes are created to read:

SB412,8,2 448.96 (1n) “Compact" means the occupational therapy licensure compact under s. 448.987.

SB412,8,4 (1o) “Compact privilege" means a compact privilege, as defined in s. 448.987 (2) (d), that is granted under the compact to an individual to practice in this state.

SB412,17 Section 17. 448.96 (4) and (6) of the statutes are amended to read:

SB412,8,8 448.96 (4) “Occupational therapist" means an individual who is licensed by the affiliated credentialing board to practice occupational therapy or who holds an occupational therapist compact privilege.

SB412,8,12 (6) “Occupational therapy assistant" means an individual who is licensed by the affiliated credentialing board to assist in the practice of occupational therapy under the supervision of an occupational therapist or who holds an occupational therapy assistant compact privilege.

SB412,18 Section 18. 448.961 of the statutes is amended to read:

SB412,8,19 448.961 License required. (1) Except as provided in s. 448.962 (1), a no person who is not licensed as an occupational therapist may not practice occupational therapy, designate himself or herself as an occupational therapist, claim to render occupational therapy services, or use the abbreviation “O.T." or “O.T.R." after the person's name unless the person is licensed as an occupational therapist or holds a valid occupational therapist compact privilege.

SB412,9,2 (2) Except as provided in s. 448.962 (2) a , no person who is not licensed as an occupational therapy assistant may not assist in the practice of occupational therapy, describe himself or herself as an occupational therapy assistant or, claim to render occupational therapy services as an occupational therapy assistant , or use the abbreviation “O.T.A." or “C.O.T.A." after the person's name unless the person is licensed as an occupational therapy assistant or holds a valid occupational therapy assistant compact privilege.

SB412,19 Section 19. 448.968 (2) (intro.) of the statutes is amended to read:

SB412,9,8 448.968 (2) (intro.) Subject to the rules promulgated under s. 440.03 (1), the affiliated credentialing board may reprimand a licensee or compact privilege holder or deny, limit, suspend or revoke a license granted under this subchapter or a compact privilege if it finds that the applicant or , licensee, or compact privilege holder has done any of the following:

SB412,20 Section 20. Subchapter XI of chapter 448 [precedes 448.987] of the statutes is created to read:

SB412,9,11 CHAPTER 448

SB412,9,14 SUBCHAPTER XI OCCUPATIONAL therapy licensure compact

SB412,9,21 448.987 Occupational therapy licensure compact. (1) Purpose. The purpose of this compact is to facilitate interstate practice of occupational therapy with the goal of improving public access to occupational therapy services. The practice of occupational therapy occurs in the state where the patient/client is located at the time of the patient/client encounter. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure. This compact is designed to achieve the following objectives:

SB412,9,23 (a) Increase public access to occupational therapy services by providing for the mutual recognition of other member state licenses;

SB412,9,24 (b) Enhance the states' ability to protect the public's health and safety;

SB412,10,2 (c) Encourage the cooperation of member states in regulating multi-state occupational therapy practice;

SB412,10,3 (d) Support spouses of relocating military members;

SB412,10,5 (e) Enhance the exchange of licensure, investigative, and disciplinary information between member states;

SB412,10,7 (f) Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state's practice standards; and

SB412,10,9 (g) Facilitate the use of telehealth technology in order to increase access to occupational therapy services.

SB412,10,11 (2) Definitions. As used in this compact, and except as otherwise provided, the following definitions shall apply:

SB412,10,14 (a) “Active duty military” means full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 USC ch. 1209 and 10 USC ch. 1211.

SB412,10,20 (b) “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state's laws which is imposed by a licensing board or other authority against an occupational therapist or occupational therapy assistant, including actions against an individual's license or compact privilege such as censure, revocation, suspension, probation, monitoring of the licensee, or restriction on the licensee's practice.

SB412,10,22 (c) “Alternative program” means a non-disciplinary monitoring process approved by an occupational therapy licensing board.

SB412,11,3 (d) “Compact privilege” means the authorization, which is equivalent to a license, granted by a remote state to allow a licensee from another member state to practice as an occupational therapist or practice as a occupational therapy assistant in the remote state under its laws and rules. The practice of occupational therapy occurs in the member state where the patient/client is located at the time of the patient/client encounter.

SB412,11,6 (e) “Continuing competence/education” means a requirement, as a condition of license renewal, to provide evidence of participation in, and/or completion of, educational and professional activities relevant to practice or area of work.

SB412,11,11 (f) “Current significant investigative information” means investigative information that a licensing board, after an inquiry or investigation that includes notification and an opportunity for the occupational therapist or occupational therapy assistant to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.

SB412,11,14 (g) “Data system” means a repository of information about licensees, including but not limited to license status, investigative information, compact privileges, and adverse actions.

SB412,11,17 (h) “Encumbered License” means a license in which an adverse action restricts the practice of occupational therapy by the licensee or said adverse action has been reported to the National Practitioners Data Bank (NPDB).

SB412,11,19 (i) “Executive committee” means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the commission.

SB412,11,21 (j) “Home state” means the member state that is the licensee's primary state of residence.

SB412,11,23 (k) “Impaired practitioner” means individuals whose professional practice is adversely affected by substance abuse, addiction, or other health-related conditions.