Request By:
Lizette Kautzmann, Chairman
Kentucky Occupational Therapy Board
P.O. Box 456
Frankfort, Kentucky 40602-0456David L. Nicholas, Director
Division of Occupations and Professions
Finance and Administration Cabinet
Berry Hill Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; V. Lynne Schroering, Assistant Attorney General
You have written the Attorney General for a legal opinion involving the status of occupational therapy aides. The Kentucky Occupational Therapy Board has found three sections of the occupational therapy statute regarding occupational therapy aides which may conflict with each other. The three statutes in question are set forth in pertinent part. KRS 319A.010(5) provides:
'Occupational therapy aide' means a person not licensed who assists in the practice of occupational therapy under the direct supervision of a licensed occupational therapist or occupational therapy assistant and who is required to have an understanding of occupational therapy but is not required to have professional or advanced training in the basic anatomical, biological, psychological, and social sciences involved in the practice of occupational therapy;
KRS 319A.080(1) provides:It shall be unlawful for any person to practice occupational therapy or render services designated as occupational therapy in the Commonwealth of Kentucky, unless licensed under the provisions of this chapter.
KRS 319A.090 provides:
The provisions of this chapter shall not be construed as preventing or restricting the practices, services, or activities of:
* * *
(6) Any person employed as an occupational therapy aide.
The board has requested that the Attorney General address the following questions regarding these statutes:
1. Which of the above mentioned statutes prevails regarding the status of OT aides?
2. If none of the statutes absolutely prevail and they must be considered in concert, what is the status of OT aides?
3. May OT aides directly perform occupational therapy services or must their involvement in the occupational therapy process be limited to supportive activities?
The three sections from the Occupational Therapy Act which you have referenced should be read together as a whole to conform with the intent and purpose of the legislature. Commonwealth v. Trent, Ky., 77 S.W. 390 (1903); Seaboard Oil Company v. Commonwealth, Ky., 237 S.W. 48 (1922).
In order to evaluate the meaning of the sections we must use the general rule of statute construction that where two interpretations of the statute are possible, one whereby the entire act is harmonious and the other whereby there is discord between the provisions, the former construction should be applied. Bischoff v. Hennessy, Ky., 251 S.W.2d 582 (1952). Although it is possible to view these sections of KRS 319A.010, et al., as being inconsistent and contradictory, it is our opinion that the better view is that the provisions are harmonious.
The Occupational Therapy Act was created to regulate the practice of occupational therapy and to license individuals to perform the services in Kentucky. Consequently, persons not licensed or who violate the provisions of the Act are in violation of the statute and are subject to license penalization, civil penalties, or imprisonment. KRS 319A.190 and KRS 319A.990.
The exemption provisions of the Occupational Therapy Act state that the provisions of this chapter shall not be construed as preventing or restricting the practices, services, or activities of an occupational therapy aide. KRS 319A.090(6). This section must be read in conjunction with the definition of occupational therapy aide contained in KRS 319A.010(5). An aide is a nonlicensed individual who "assists" in the practice of occupational therapy and is under the "direct supervision" of a licensed occupational therapist or occupational therapy assistant. KRS 319A.010(5). Read together, the Act allows nonlicensed aides to assist licensed individuals in the practice of occupational therapy. KRS 319A.090(6). It would be absurd and contrary to the Occupational Therapy Act to exempt occupational therapy aides from the Act. Therefore, in determining the status of occupational therapy aides, you should follow the definitional section of KRS 319A.010(5) and allow the aides to assist under the direct supervision of licensed occupational therapists and assistants.
You have also questioned whether the occupational therapy aides may directly perform occupational therapy services or whether their involvement must be limited to supportive activities. It is the opinion of the Attorney General that an occupational therapy aide, by statute, may "assist" in the practice of occupational therapy if the aide is under the "direct supervision" of a licensed occupational therapist or occupational therapy assistant. In interpreting this section regarding the duties of an occupational therapy aide, it is important to examine the entire Act and the use of the term "assist" in other sections.
The Occupational Therapy Act defines occupational therapy assistant as an individual who may "assist" in the practice of occupational therapy if under the "supervision" of an occupational therapist. KRS 319A.010(4).
The Act's provisions that both assistants and aides are allowed to "assist" in the practice of occupational therapy leads to the conclusion that the job duties of the occupational therapy aide and occupational therapy assistant may be identical. The only statutory difference in their job duties is in the degree of supervision required.
In OAG 81-56, the Attorney General interpreted the words "direct supervision" in a similar statute regarding working under the direct supervision of a pharmacist. It was our opinion that the plain meaning of the phrase "direct supervision" required the presence of a pharmacist on the immediate vicinity so the pharmacist could actually oversee the non licensee. We call this "eyeball" supervision. The occupational therapy aide requires "direct" or "eyeball" supervision by a licensed occupational therapist or occupational therapy assistant.
The Occupational Therapy Act requires "supervision" of the occupational therapy assistant. We believe that there is a distinction between the level of supervision needed for a licensed occupational therapy assistant and an unlicensed occupational therapy aide. The assistant does not require "eyeball" or direct supervision. Rather, the assistant may perform occupational therapy procedures under the supervision of an occupational therapist. We believe this supervision must be on the premises so that the occupational therapist could be quickly and easly available.