A new section 77.10 is added to the regulations of the Commissioner of Education, establishing continuing education requirements for licensed physical therapists and certified physical therapist assistants.

Subdivision (a) of section 77.10 defines the term acceptable accrediting agency and higher education institution.

Subdivision (b) of section 77.10 cites the applicability of the continuing education requirement, namely that each licensed physical therapist and certified physical therapist assistant required to register with the department to practice in New York State shall comply with the mandatory continuing education requirements prescribed in the section. This subdivision also provides for exemptions and adjustments to the requirement.

Exemptions are allowed for those licensed physical therapists and certified physical therapist assistants who are: (a) in their first triennial registration period during which they are first licensed to practice as a physical therapist or physical therapist assistant in New York State; and (b) not engaged in practice as a physical therapy or physical therapist assistant in New York State, as evidenced by not being registered to practice in New York State, except as otherwise provided.

An adjustment to the requirement is permitted for the licensee who documents good cause that prevents compliance, such as poor health certified by a physician, or a specific physical or mental disability certified by an appropriate health care professional, or extended active duty with the armed forces of the United States, or other good cause beyond the licensee's control which in the judgment of the department makes it impossible for the licensee to comply with the continuing education requirements in a timely manner.

Paragraph (1) of subdivision (c) of section 77.10 sets the general mandatory continuing education requirement for licensed physical therapists and certified physical therapist assistants. Subparagraph (i) establishes the requirement: at least 36 hours of continuing education acceptable to the Department for each triennial registration period. Licensees whose first registration following September 1, 2009, is less than three years from that date but on or after January 1, 2010 shall be required to complete continuing education hours on a prorated basis at the rate of one-half hour of acceptable continuing education per month beginning January 1, 2010 up to the first registration date thereafter. Subparagraph (ii) sets forth the continuing education requirement during each registration period of less than three years.

Paragraph (2) of subdivision (c) of section 77.10 defines continuing education that is acceptable to the State Education Department. Such continuing education must be in the subjects prescribed in subparagraph (i) of this paragraph and be the types of learning activities prescribed in subparagraph (ii) of this paragraph and subject to the prohibitions contained in subparagraph (iii).

Acceptable continuing education shall contribute to the professional practice of physical therapy and shall have its focus: activities that enhance knowledge and skill in examination, evaluation, prognosis and planning, intervention, re-examination, prevention and outcomes in physical therapy; clinical interventions/evidence-based models, and philosophy and principles of physical therapy; patient communications, recordkeeping, and reimbursement issues; general supervision and business practices; pedagogical methodologies or other topics which contribute to the professional practice of physical therapy; or matters relating to health care, law, and/or ethics which contribute to professional practice in physical therapy and the health, safety, and/or welfare of the public.

Acceptable courses of learning and other education activities that are acceptable are: (1) courses of learning offered by an approved sponsor; university and college credit and non-credit courses; and professional development and technical sessions related to the practice of physical therapy. Other acceptable education activities include: (1) preparing and teaching a course offered by a sponsor of continuing education provided that such teaching shall not be acceptable where the licensee has taught the course on more than one occasion without presenting new or revised material; (2) preparing and teaching a course, acceptable to the department, at a higher education institution relating to the practice of physical therapy, provided that such teaching shall not be acceptable where the licensee has taught the course on more than one occasion without presenting new or revised material; (3) making a technical presentation at a professional conference sponsored by an organization that is a sponsor of continuing education, provided that the presentation shall not be acceptable where the licensee has presented on the topic on more than one occasion without presenting new or revised material; (4) achieving specialty certification from an entity acceptable tot the department; (5) completing a self-study program; (6) authoring an article published in a peer-reviewed journal or a published book; and (7) completing and receiving a passing score on an examination approved by the department that demonstrates the licensee's knowledge of the laws, rules and regulations of New York relating to the practice of physical therapy.

Any continuing education designed for the sole purpose of maximizing profits for the practice of a physical therapist or a physical therapist assistant shall not be considered by the department as acceptable continuing education.

Subdivision (d) of section 77.10 provides that at each re-registration, the licensed physical therapist and certified physical therapist assistant must certify to the Department compliance with the continuing education requirements or that they are subject to an exemption or adjustment of such requirements.

Subdivision (e) of section 77.10 prescribes the requirement for a licensee returning to practice as a physical therapist or physical therapist assistant after a lapse in practice, defined as not being registered to practice in New York State.

Subdivision (f) of section 77.10 authorizes the department to issue a conditional registration to a physical therapist or physical therapist assistant who attests to or admits to noncompliance with the continuing education requirement and prescribes the requirements for a conditional registration.

Subdivision (g) of section 77.10 requires the licensed physical therapist or certified physical therapist assistant to maintain and ensure access by the Department to records of completed continuing education as specified in that subdivision.

Subdivision (h) of section 77.10 provides for the measurement of continuing education study, specifically, that a minimum of 50 minutes of study equal one hour of continuing education credit and that continuing education credit for other educational activities shall be awarded as prescribed by the department.

Subdivision (i) of section 77.10 establishes the requirements for sponsors of continuing education to physical therapists and physical therapist assistants.

Paragraph (1) of subdivision (i) states that sponsors of continuing education to licensed physical therapists and certified physical therapist assistants in the form of courses of learning or self-study programs shall meet the requirements of either paragraphs (2) or (3) of this subdivision.

Paragraph (2) of subdivision (i) provides that the Department will deem approved as a sponsor of continuing education to licensed physical therapists and certified physical therapist assistants: (1) a national physical therapy professional organization or other professional organization acceptable to the department; (2) a New York State physical therapy professional organization acceptable to the department; (3) a national organization of jurisdictional boards of physical therapy; (4) an entity, hospital or health facility defined in section 2801 of the Public Health Law; and (5) a higher education institution.

Paragraph (3) of subdivision (i) establishes the standards for Department approval of sponsors to offer continuing education to licensed physical therapists and physical therapist assistants that are not otherwise deemed approved.

Subdivision (j) of section 77.10 establishes the fees for mandatory continuing education, conditional registration, and the fee for an organization desiring to offer continuing education to licensed physical therapists and physical therapist assistants based upon a Department review.

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Subdivision (3) of section 212 of the Education Law authorizes the State Education Department to determine and set fees for certifications and permits.

Section 6504 of the Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practice of the professions.

Paragraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations in administering the admission to and the practice of the professions.

Paragraph (a) of subdivision (1) of section 6742-a of the Education Law, as added by Chapter 207 of the Laws of 2008, requires a licensed physical therapist and physical therapist assistant to complete mandatory continuing education as a condition for registration to practice in New York State and provides an exception to licensees with a conditional registration certificate.

Paragraph (b) of subdivision (1) of section 6742-a of the Education Law allows physical therapists and physical therapist assistants to be exempt from the mandatory continuing education requirement for the triennial registration period during which they are first licensed. It also authorizes the State Education Department to adjust the requirement in certain cases.

Paragraph (c) of subdivision (1) of section 6742-a of the Education Law provides an exemption from the continuing education requirement for licensees not engaged in the practice of physical therapy and physical therapist assistant and directs the State Education Department to establish continuing education requirements for licensees reentering the profession.

Subdivision (2) of section 6742-a of the Education Law provides that a physical therapist or physical therapist assistant must complete the mandatory continuing education requirements to be registered to practice in New York State, and establishes the continuing education hour requirement and a prorated formula for licensees whose first registration date follows September 1, 2009 and occurs less than three years from such effective date.

Subdivision (3) of section 6742-a of the Education Law authorizes the State Education Department to issue conditional registrations for physical therapists or physical therapist assistants who do not meet the regular continuing education requirements, to establish requirements for such licensees under conditional registration, and to charge a fee for such conditional registration in addition to the fee for triennial registration.

Subdivision (4) of section 6742-a of the Education Law defines acceptable continuing education as formal courses of learning and educational activities which contribute to professional practice in physical therapy and which meet standards prescribed in the Regulations of the Commissioner of Education. This subdivision also authorizes the department to require the completion of continuing education courses in specific subjects to fulfill the continuing education requirement and authorizes such courses to be taken from a sponsor approved by the department, pursuant to the regulations of the commissioner.

Subdivision (5) of section 6742-a of the Education Law requires physical therapists and physical therapist assistants to maintain adequate documentation of compliance with the continuing education requirements and provide such documentation at the request of the State Education Department.

Subdivision (6) of section 6742-a of the Education Law authorizes the State Education Department to charge physical therapists and physical therapist assistants a mandatory continuing education fee of $45, in addition to the triennial registration fee required by section 6734 of the Education Law.

Section 2 of Chapter 207 of the Laws of 2008 authorizes the State Education Department to add, amend, and/or repeal any rule or regulation necessary to timely implement the new law requiring the completion of continuing education by physical therapists and physical therapist assistants.

2. LEGISLATIVE OBJECTIVES:

The proposed regulation carries out the intent of the aforementioned statutes in that it will, as directed by statute, establish standards relating to mandatory continuing education for physical therapists and physical therapist assistants. Specifically, the proposed regulation establishes appropriate standards for what constitutes acceptable continuing education, continuing education requirements when there is a lapse in practice, requirements for licensees under conditional registration, recordkeeping requirements applicable to licensees, and standards for the approval of sponsors of continuing education to licensed physical therapists and physical therapist assistants.

3. NEEDS AND BENEFITS:

The purpose of the proposed regulation is to establish continuing education requirements that licensed physical therapists and physical therapist assistants must complete to be registered to practice this profession in New York State and requirements for the approval of sponsors of such continuing education. The proposed regulation is needed to clarify and implement the requirements of section 6742-a of the Education Law, as added by Chapter 207 of the Laws of 2008.

As required by statute, the proposed regulation is also needed to establish continuing education requirements when there is a lapse in practice, requirements for licensees under conditional registration, and standards for the approval of sponsors of continuing education to licensed physical therapists and physical therapist assistants. In addition, the regulation is needed to establish a fee for the review by the State Education Department of sponsors of courses of learning or educational activities in order to defray the cost of such review.

4. COSTS:

(a) Costs to State government. The proposed regulation implements statutory requirements and establishes standards as directed by statute. The regulation will not impose any additional cost on State government, over and above the cost imposed by the statutory requirements.

(b) Costs to local government: None.

(c) Cost to private regulated parties. The proposed regulation does not impose additional costs on licensed physical therapists and physical therapist assistants beyond those imposed by statute. Statutory provisions impose a mandatory continuing education fee of $45 for physical therapists and physical therapist assistants at each triennial registration and require that physical therapists and physical therapist assistants complete a prescribed number of hours of acceptable continuing education. The proposed regulation establishes a $900 fee for sponsors reviewed by the State Education Department for approval to offer continuing education in the form of courses of learning or educational activities for a three-year term.

(d) Cost to the regulatory agency: As stated above in Costs to State government, the proposed amendment does not impose additional costs on the State Education Department beyond those imposed by statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed regulation implements the requirements of section 6742-a of the Education Law relating to continuing education requirements for physical therapists and physical therapist assistants. It does not impose any program, service, duty, or responsibility upon local governments.

6. PAPERWORK:

The proposed regulation requires each licensee to maintain or ensure access, for six years, of a record of completed continuing education which includes: the type of educational activity, the title of the course if a course, subject of the continuing education, the number of hours completed, the sponsor's name and any identifying number (if applicable), attendance verification if a course, participation verification if another educational activity, and the date and location of the continuing education. In addition, the proposed amendment requires sponsors of continuing education to physical therapists and physical therapist assistants, reviewed for approval by the State Education Department, to maintain a record for at least six years which includes: the name and curriculum vitae of the faculty, a record of attendance of licensed physical therapists or physical therapist assistants in the course if a course, a record of participation of a licensed physical therapist or physical therapist assistant in a self-study program if a self-study program, an outline of the course or program, date and location of the course or program, and the number of hours for completion of the course or program.

7. DUPLICATION:

There are no other State or Federal requirements on the subject matter of this amendment. Therefore, the amendment does not duplicate other existing State or Federal requirements.

8. ALTERNATIVES:

There are no viable alternatives to the proposed amendment, and none were considered. The proposed regulation implements statutory requirements.

9. FEDERAL STANDARDS:

There are no Federal standards for the continuing education of licensed physical therapists or physical therapist assistants.

10. COMPLIANCE SCHEDULE:

The proposed regulation implements and clarifies statutory continuing education requirements for physical therapists and physical therapist assistants. Physical therapists and physical therapist assistants must comply with the continuing education requirements on the effective date of the authorizing statute, September 1, 2009. The statute and implementing regulation establish a phase-in period in which the licensee will be required to complete less than the full 36 hours of continuing education based upon a proration formula. No additional period of time is necessary to enable regulated parties to comply.

(a) Small Businesses:

1. EFFECT OF RULE:

The proposed rule relates to mandatory continuing education for licensed physical therapists and physical therapist assistants. This continuing education will be provided by sponsors approved by the State Education Department, some of which are small businesses. The State Education Department does not know the exact number of sponsors that will be small businesses, but estimates that number using the methodology below.

Individuals licensed in public accountancy have been subject to mandatory continuing education requirements since 1985, and sponsors of such continuing education must be approved by the State Education Department, after a State Education Department review. In accounting, about 800 sponsors of continuing education are approved by the State Education Department. There are about 60.2 percent as many physical therapists (18,565) and physical therapist assistants (4,604) as individuals licensed in public accountancy (38,479) in this State. Using that percentage, we calculate that there will be a need for about 400 sponsors of continuing education to physical therapists and physical therapist assistants. Of these, based upon a survey of the sponsors in accounting, the Department estimates that about 75 percent or 300 will be small businesses.

The proposed regulation has a provision that permits a sponsor to be deemed approved by the State Education Department, if it is approved by another prescribed organization that approves continuing education for physical therapists and physical therapist assistants. For such sponsors there are no additional compliance requirements in the regulation. The Department expects that almost all 300 sponsor/small businesses will be deemed approved by virtue of their being approved by another organization that approves continuing education for physical therapists and physical therapist assistants. Based upon the Department's experience in other licensed professions, which have similar sponsor approval procedures (podiatry, ophthalmic dispensing), only about 50 sponsors will seek approval through a State Education Department review, of which only about 38 will be small businesses (.75 x 50).

2. COMPLIANCE REQUIREMENTS:

The regulation contains no compliance requirements for sponsors that are deemed approved through the approval of other organizations that approve continuing education for physical therapists and physical therapist assistants.

There are compliance requirements for sponsors seeking approval through a State Education Department review. Every three years, organizations desiring to offer continuing education to licensed physical therapists and physical therapist assistants based upon a review by the State Education Department must submit an application for advance approval as a sponsor at least 90 days prior to the date for the commencement of the continuing education. The applicant must document in the application: curricular areas of offerings, its organizational status as an educational entity or expertise in the professional area, the qualifications of course instructors, methods for assessing the learning of participants, and recordkeeping procedures. Applicants would be approved to offer continuing education to physical therapists and physical therapist assistants for a three-year term.

3. PROFESSIONAL SERVICES:

No professional services are expected to be required by small businesses to comply with the proposed regulation. The regular staff of small businesses will be able to complete the application needed for the review by the State Education Department.

4. COMPLIANCE COSTS:

An organization seeking approval as a sponsor of continuing education to physical therapists and physical therapist assistants through a State Education Department review would be required to pay the State Education Department a fee of $900 to defray the cost of its review. Such fee would be paid once every three years, upon submission of the organization's application. Therefore, the annualized cost is $300.

The Department estimates that it would require a staff member to spend about eight hours to complete the application. Based on an hourly rate of $37 per hour (including fringe benefits), we estimate that the cost of completing the application to be $296. An application would have to be completed once every three years. Therefore, the annualized cost of completing the application is estimated to be $98.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed regulation will not impose any technological requirements on regulated parties. See above Compliance Costs for the economic impact of the regulation.

6. MINIMIZING ADVERSE IMPACT:

The Department believes that the standards for sponsor review by the State Education Department are reasonable, and that uniform standards should apply, regardless of the size of the sponsoring organization, in order to ensure the quality of the continuing education.

7. SMALL BUSINESS PARTICIPATION:

Members of the State Board for Physical Therapy, many of whom have experience in a small business environment, provided input in the development of the proposed regulation. In addition, staff of the State Education Department worked with the statewide and national professional associations and councils that represent physical therapists and physical therapist assistants by disseminating information concerning the proposed regulation to these organizations and seeking their input. These organizations include members who own and operate small businesses.

(b) Local Governments:

The proposed regulation establishes continuing education requirements for physical therapists and physical therapist assistants and standards for sponsors of such continuing education. It will not impose any reporting, recordkeeping, or other compliance requirements, or have any adverse economic impact on local governments. Because it is evident from the nature of the proposed rule that it does not affect local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for local governments is not required and one has not been prepared.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed regulation will apply to the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. All 18,752 licensed physical therapists and 4,662 licensed physical therapist assistants who are registered to practice in New York would be subject to the requirements of the proposed regulation. Of these 2,361 physical therapists and 954 physical therapist assistants reported that their permanent address of record is in a rural county of the State.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

As required by section 6742-a of the Education Law, effective September 1, 2009, the proposed regulation will require physical therapists and physical therapist assistants, including those that reside or work in rural areas, to complete a prescribed number of hours of acceptable continuing education to be registered to practice in New York State. The proposed regulation prescribes the educational activities that may meet the continuing education requirement and the subjects for that continuing education. The regulation requires licensees to certify that they have met the requirement upon applying for renewal of registration to practice in New York State. The proposed regulation requires each licensee to maintain prescribed information concerning completed acceptable continuing education for six years from the date of completion of the course.

The proposed regulation also establishes standards for the Department's review of sponsors desiring to offer acceptable continuing education in the form of courses of learning or self-study programs, including sponsors that may be located in rural areas. The regulation requires such sponsors to maintain specified records related to the offering of the courses of learning and self-study programs for a six-year period from the date of completion of the coursework.

The proposed regulation does not impose a need for professional services other than educational services to meet the continuing education requirements.

3. COSTS:

The proposed regulation does not impose additional costs on physical therapists and physical therapist assistants beyond the costs imposed by statute. However, the regulation does establish a fee of $900 for entities reviewed by the State Education Department to become an approved sponsor of continuing education to licensed physical therapists and physical therapist assistants for a three-year term.

4. MINIMIZING ADVERSE IMPACT:

The proposed regulation implements and clarifies the continuing education requirements for physical therapists and physical therapist assistants found in section 6742-a of the Education Law. The statutory requirements do not make exceptions for individuals who live or work in rural areas. The Department has determined that the proposed regulation's requirements should apply to all physical therapists and physical therapist assistants, regardless of their geographic location, to help ensure continuing competency across the State. The Department has also determined that uniform standards for the Department's review of sponsors are necessary to ensure quality offerings in all parts of the State. Because of the nature of the proposed regulation, alternative approaches for rural areas were not considered.

5. RURAL AREA PARTICIPATION:

Comments on the proposed regulation were solicited from statewide organizations representing all parties having an interest in the practice of physical therapy and physical therapist assistant. Included in this group were the State Board for Physical Therapy and professional associations representing the physical therapy profession. These groups have members who live or work in rural areas.

Section 6742-a of the Education Law, as added by Chapter 207 of the Laws of 2008, establishes mandatory continuing education requirements for licensed physical therapists and physical therapist assistants registered to practice in New York State. The proposed regulation establishes standards for acceptable continuing education to meet the statutory requirement and the requirements for the approval of sponsors of such continuing education.

The proposed regulation implements specific statutory requirements and directives. Section 6742-a of the Education Law establishes the requirement that licensed physical therapists and physical therapist assistants must complete a prescribed number of hours of continuing education in order to be registered to practice in this State. Therefore, any impact on jobs and employment opportunities by establishing a continuing education requirement for physical therapists and physical therapist assistants is attributable to the statutory requirement, not the proposed rule, which simply establishes consistent standards as directed by statute.

In any event, a similar statutory continuing education requirement was established for individuals licensed respiratory therapists and respiratory therapy technicians in 2000, and the Department is not aware that the requirement significantly affected jobs or employment opportunities in that profession. In addition, the statutory requirement should increase job and employment opportunities for instructors and administrators who will be needed to provide the continuing education instruction to licensees.

Because it is evident from the nature of the proposed regulation, which implements specific statutory requirements and directives, that the proposed rule will have no impact on jobs or employment opportunities attributable to its adoption or only a positive impact, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one was not prepared.