Any time you feel that your career as an occupational therapist is sidelined or threatened, you will need an attorney who has experience in working with the Board of Occupational Therapy for you to secure your license. At the San Diego License Attorney, we have a team of highly experienced lawyers who have represented numerous occupational therapists and occupational therapy assistants in various legal matters. We understand how the occupational therapy licensing board works and its expectations for you to secure your license. Our focus is to provide high-quality legal services to occupational therapy professionals in San Diego.
The Crucial Duties of Occupational Therapists and Occupational Therapy Assistants
Many people in California suffer from mental or physical impairments. These impairments make them unable to carry out their normal duties. They struggle to do the things we take for granted. The primary role of occupational therapists and occupational therapy assistants is to assist these individuals in becoming self-reliant and improving the general skills needed in their day to day lives.
An individual can incur grievous injuries in a road accident, become a victim of an atrocious crime, or undergo a major surgical process. Such an individual will require the assistance of an occupational therapist for him to regain his normal abilities fully. An occupational therapist will help him in improving his motor skills, eating and cooking, dressing up, and managing money and time.
Occupational therapists and occupational therapy assistants may teach patients to utilize various medical devices that can assist them in becoming self-reliant. They are also in charge of maintaining accurate records of their patients and submitting important paperwork to the insurance companies.
As you can see, occupational therapists constantly assist people who are in extremely demanding and challenging stages of their lives. Each passing day, they always put themselves at risk of losing their professional licenses. When an individual has so many duties to fulfill in a high-pressure situation, they are more prone to making mistakes. Just a single error can cause an occupational therapist to lose his livelihood.
Moreover, family members and friends of the patient may accuse these occupational therapy professionals falsely, especially in situations where something goes wrong. These friends and family members usually assume that they are guilty, just because they worked closely with the patient.
Laws Governing the Practice of Occupational Therapy in California
The main legislation governing the practice of occupational therapy in California is the Occupational Therapy Practice Act. This act establishes the Occupational Therapy Board of California. As per the provisions of this act, the principal function of this board is to protect the public while discharging its regulatory, licensing, and disciplinary duties. This law also sets out the procedure to be used in the application, denial, revocation, and suspension of licenses.
Besides the Occupational Therapy Practice Act, there is the California Code of Regulations for occupational therapy professionals. These regulations complement the provisions of the act.
Common Complaints against Occupational Therapists and Occupational Therapy Assistants in California
Here are some examples of the most common complaints that are made against occupational therapists and occupational therapy assistants to the California Board of Occupational Therapy:
- Practicing without a license
- Abusing a client physically, financially, or mentally
- Obtaining the practicing license through fraudulent means
- Misconduct or sexual abuse involving a patient
- Permitting unlicensed assistants to work under you in roles that require a license
- Being convicted of a felony or a misdemeanor, that is 'substantially related to' your ability to safely continue your practice
- Insurance fraud
- Not maintaining proper patient confidentiality
- Misleading or false advertising techniques
- Failing to adhere to appropriate infection control standards
- Incompetent performance, ordinary negligence, or gross negligence while discharging his official duties
- Illegal dealings in prescription drugs or narcotics
- Maintaining false patient records
- Unlawful changing of a physician-ordered prescription
- Indulging in alcohol or drug abuse while on the job
Application Procedure of Occupational Therapist or Therapy Assistant License
According to the Occupational Therapy Practice Act, it is unlawful for any person in California to practice, offer to practice, or hold himself out as an occupational therapist or occupational therapy assistant without a valid license. It is the California Board of Occupational Therapy that is mandated with issuing licenses to prospective occupational therapy professionals.
Therefore, for you to obtain your practicing license, you must make an application to this board after you have met all the required academic credentials. Your application should be signed, and it should contain a statement under oath affirming that you are entitled to receive a license without an examination. You should also pay the requisite application fees.
After you have applied to the board, it will investigate to ascertain whether you meet all the requirements as stipulated by the Occupational Therapy Practice Act. Furthermore, you may have to complete and pass various board examinations. It is only until you satisfy all the conditions laid by the board when you will receive your license.
Generally, this application process is hectic and tedious. Also, it has no guarantee that you will get your practicing license, even if you meet all the conditions. If you believe that the California Board of Occupational Therapy has unfairly denied you a practicing license, yet you fulfilled all the requirements, you should consult a license attorney. This attorney will help you get your license by instituting administrative review proceedings against the board.
Even if you are fortunate enough to obtain a license, it can be revoked or suspended whenever someone makes a complaint against you to the board. In such a situation, you will be summoned for a disciplinary hearing, and you will have to retain a license attorney to defend you.
Disciplinary Guidelines of the California Board of Occupational Therapy
If you allegedly violate the provisions of the Occupational Therapy Practice Act and the California Code of Regulations for Occupational Therapy Professionals, a complaint will be made against you to the board. When the board receives the complaint, it will commence investigations to find out whether the complaint holds weight.
You may receive a notice of investigation, or a board-employed investigator may visit your premises or call you. You should not answer any question that the investigator poses to you without consulting your attorney. This is because you may incriminate yourself intentionally, or limit some of your possible defense strategies.
You can find the official disciplinary guidelines at the website of the California Board of Occupational Therapy. These guidelines are frequently utilized by Administrative Law Judges who preside over administrative hearings on alleged violations of occupational therapists and occupational therapy assistants.
If the judge finds you guilty of substance abuse, failing to submit to a clinical diagnostic evaluation ordered by the board, or violating the terms of your probation, he will adhere to the strict standards stipulated in the disciplinary guidelines. For instance, he may order you to cease your practice as an occupational therapist or occupational therapy assistant. This means that your license may be suspended or revoked. He may also assign you more penalties, especially in situations where you don’t have an attorney to defend your legal rights.
However, some minor allegations that do not present an imminent danger to the patients or the public may result in less harsh rulings. The maximum penalty for most complaints is license revocation. On the other hand, the minimum form of discipline for most offenses is a 30-day license suspension period followed by a 3-year probation term. In some cases, your defense attorney can help you obtain a lesser punishment to this minimum form of discipline.
An experienced license defense attorney will do all it takes to help you emerge victorious in the disciplinary hearing. Sometimes, it can be difficult to get a dismissal. In such cases, your lawyer will help you fight for a lesser form of discipline by presenting mitigating factors.
If you retain a highly-skilled license defense attorney, you will have higher chances of winning a dismissal. If getting a dismissal is impossible, then you will receive the most lenient form of discipline.
Your license defense attorney can help you win your case or gain a favorable plea offer even before an administrative hearing is conducted. In fact, most occupational therapy license cases do not make it to the hearing stage, especially if the defendants have attorneys who can gain capitulations and concessions.
Assuming your case goes into an administrative hearing, the presiding judge will hear all the evidence adduced against you by the board’s investigators, and that presented in your favor by your license defense attorney. On your behalf, your attorney will present both exculpatory and mitigating evidence, and he will expose the weak points of the board’s case through cross-examination. He can even call in some expert witnesses to help demonstrate that you are innocent.
In most cases, you don’t need to be present at the hearing. However, your attorney can still advise you to attend it if he believes that your presence and personal explanation will be beneficial. An experienced license defense attorney will assist you to know when you should attend, and how to speak, and what to do in case you attend. Don’t make the mistake of trying to speak out for yourself or going alone to an occupational therapy license administrative hearing. Many people who have attempted to do so have landed themselves into deeper trouble by missing out on possibilities of sentence reduction, probation, or dismissal.
The administrative law judge will consider various factors before rendering his decision. Some of these factors include:
- The severity and nature of the complaint
- Whether the occupational therapy professional admitted error and the probability of him repeating it
- If the actual harm caused by the professional’s misconduct affected a patient or another person
- Whether the professional cooperated with the board at the investigation phase
- The nature of the potential harm that might affect the patient currently and in the future if the occupational therapist or occupational therapy assistant repeats the mistake
- Whether the professional has a prior criminal conviction that is directly related to his field of work when he was convicted, and if he adhered to the probation terms ordered by the court
- Whether the board had taken any previous disciplinary actions against the professional
- Evidence of rehabilitation
- How many violations the professional faces
- All mitigating and aggravating factors that could lessen or heighten the punishment
If you have been accused of alcohol or drug-related violations, the judge will subject you to strict standard penalties (as mentioned above). First, he will order an experienced licensed professional to conduct a medical diagnostic evaluation on you for him to ascertain whether you have a drug or alcohol addiction problem. The primary purpose of this test is to determine if you have an addiction problem. Then, the licensed professional will give various recommendations for rehabilitation, treatment, and practice restrictions. Professionals who test positive in this test will be ordered to stop practicing immediately. However, with the help of a license defense attorney, they can be granted probation and continue with their career; though while adhering to specific requirements and restrictions.
Some examples of standard probation conditions include complying fully with the reporting requirements, not taking part in criminal activities, personally appearing before the board when ordered to, notifying the board of any change of contact information or address, notifying your employer that you are on probation, and completing all the requisite training courses related to your violations.
Apart from the standard probation conditions, you may also be granted optional probation conditions. Some of them include taking psychological or physical exams, participating in support group meetings, undergoing psychotherapy, completing a state-certified rehab program, and submitting to the clinical diagnostic evaluation. Your license defense attorney can help you negotiate for lenient probation terms.
Moreover, you will have to compensate the board for the investigation and monitoring costs. You can pay in installments for a one-year period if you are going through financial hardship. If you fail to pay, you will be deemed to have violated the probation conditions. If you decide to discontinue your practice or move out of state for a particular period, the board will 'toll' this period onto your probation period, thus extending it.
After the administrative hearing, you may accept the board’s decision, or seek to overturn it. In some cases, the board's decision may not turn out in your favor. For instance, your license may be revoked, or you may be issued harsh probation conditions, even if your attorney built an excellent defense strategy for you.
If you believe that the administrative law judge did not give a reasonable ruling after considering the evidence of both parties, your attorney may appeal to the superior court for this ruling to be reversed under California’s Code of Civil Procedure (CCP) section 1094.5. After all, you are defending your career – and you shouldn’t give up so easily.
Your license defense attorney will institute an appeal to the superior court by way of a writ of administrative mandamus. Typically, you have only thirty days from the date of the board’s decision to file an appeal to the superior court.
When your attorney files your appeal, he will combine it with an ex parte application to stay the punishments issued by the board. This way, you will maintain the status quo in your practice until the appeal is heard and determined. For instance, if the board had issued an order to revoke your license; your license will not be canceled, and you will be able to practice until the superior court judge renders a decision.
If you are not satisfied with the decision of the superior court, you can make a further appeal to the district court of appeal within sixty days from the date of the superior court judgment. Your attorney will still be able to stay the board’s penalties via a writ of supercedeas.
Appeals may take up to one year. This is why your attorney will apply for a stay of implementation of the board's decision when filing an appeal. If the stay application is successful, you will continue to enjoy all the privileges of being a certified occupational therapy professional in California. You should file an appeal as soon as possible to prevent the board’s decision from taking effect and prejudicing you.
When You Need an Occupational Therapy License Defense Attorney
There are several instances where you will need an occupational therapy license defense attorney. Some of these instances include:
- When you are under investigation by the California Board of Occupational Therapy
- When you have been arrested or convicted for a criminal offense that is directly related to your practice as an occupational therapist or occupational therapy assistant
- When the California Board of Occupational Therapy has summoned you for an administrative hearing
- When your license has been suspended, revoked, or placed on probation
- When the California Board of Occupational Therapy has denied your license application with a statement of issues
- When you are aggrieved by the board's ruling, and you intend to overturn it
Find a San Diego Occupational Therapy License Defense Attorney Near Me
At the San Diego License Attorney, we are well equipped to help you defend your license against all manners of accusations. Call us today at 619-728-7448 for a free consultation.