OTs Battle NBCOT over Recertification Demands
By Loretta Marmer
and E.J. Brown
Over the course of the next five years, the National Board for Certification in Occupational Therapy (NBCOT)--formerly AOTCB--will be asking all OTRs and COTAs to complete a brief questionnaire--not a test--and pay $75 to the board if they wish to continue to practice in good standing.
According to NBCOT officials, the nationwide recertification process announced earlier this year is meant to protect the public by ensuring that occupational therapists are up to date in their skills and have broken no federal laws or been negligent in practice. Questions on the renewal form are designed to screen for unethical or incompetent behavior, and to provide practice and demographic data for use in developing new professional assessment tools to ensure continued competency.
But therapists who fail to meet the board's requirements will be classified "inactive" on lists to be made available to state regulatory agencies, employers and the public, and inactive therapists will be denied the right to use the OTR and COTA credentials after their names.
NBCOT, through its executive director, Roy Swift, registered the certification marks with the U.S. Patent and Trademark Office earlier this year, and NBCOT now claims ownership of the letters according to federal law. As of April 1, 1997, that law will supersede the management of the OTR/COTA credentials by practice boards.
Some occupational therapy professionals are loudly crying foul. They believe the certification board cannot legally revoke the right of any therapists certified by AOTA or AOTCB in the past to use OTR and COTA unless they are convicted of felonies or malpractice.
Texas therapist Barbara Plummer, MOT, OTR, has hired patent attorney Tracy Druce to look into the legality of the federal certification marks, registered for COTA in December 1995, and for OTR in January 1996. She may file an objection to the patent.
Meanwhile, former COP chair Jim Hinojosa, along with Jeffrey Tomlinson, has filed a resolution for next year's meeting of the Representative Assembly, charging AOTA's executive board "with developing an official statement that states that the association does not recognize... (NBCOT's) role, or any assertion of its authority over defining the scope or standards of OT practice."
Plummer has filed a resolution of her own, asking the RA to direct AOTA to take back the certification powers it granted to AOTCB 10 years ago. So far, 28 practitioners and educators, have signed statements of support for the resolution, pretty much assuring that it will reach the floor of the RA.
However, according to an agreement executed in 1995 between AOTA and AOTCB, the national association has indicated it will not interfere with NBCOT's ownership of the trademark.
NBCOT expected a battle; it may get a revolution.
NBCOT President Beth Cada admitted in an interview with ADVANCE last April that the change would not be easy. "We recognize this is people's right to work," she emphasized. "We know we have to offer due process."
But Plummer, of Lubbock, TX, believes the certification board is violating the Sherman Anti-Trust Act by trying to control the occupational therapy product nationwide through the monopolization of its workforce credential.
"We own it," she told ADVANCE. "(NBCOT is) trying to undo something that is ours. The only way to resolve it is to take them to court."
Plummer's resolution formally asks the Executive Board "and all others as appropriate" to "initiate the necessary legal processes to return AOTA to the only authority which certifies OTR/COTA, OT/OTA or whatever the 'official initials'; since AOTA created AOTCB/NBCOT, so it can seek to dissolve NBCOT or at least regain the authority to certify the occupational therapy profession."
In the introduction to her resolution, Plummer states, "...Private control (NBCOT) over our profession has created a variety of possible legal problems which appear to be able to be resolved through the legal process/or by AOTA returning to certify the OT profession."
Even if the move is entirely legal--which Swift says it is--it could cause major problems. In an Oct. 8 letter to AOTA's Executive Board, Texas attorney Thomas R. Wilkins Jr., a lawyer engaged by Plummer to look over the recertification plan, warned the board of possible litigious situations that could arise from the recertification process as it is now written.
"...Therapists and assistants may be adversely affected due to NBCOT's actions...," he wrote. "The resultant impact on the profession could be very negative unless appropriate measures are taken to insure the integrity and collective professionalism your organization undoubtedly wishes to portray."
Wilkins pointed out that the "inactive" label is misleading. "There does not appear to be any clarification that NBCOT certification renewal is only an acknowledgement by the certifier and does not mean that the therapist or assistant is incompetent or lacking in appropriate skill, education or experience," the attorney noted.
He added that certification renewal "...further abrogates the state licensing or registration process by implying that these individuals have somehow been deficient in a particular area."
However, Swift believes all of NBCOT's actions will hold up under scrutiny. They are similar to those being devised by many other allied health professions, he said.
So who has the authority over practice?
The states, mostly, says Swift. Nevada, for instance, requires a licensed therapist to maintain certification with AOTCB/NBCOT, so individuals there will have to maintain certification to practice. Other states whose licensure laws use similar language are currently checking with legal counsel to see where they stand.
In other states, however, where certification is not specifically made a requirement of regulation statutes, practitioners will still be able to maintain licensure, even if they don't recertify.
But--and it's a big "but"--even those practicing therapists will not be able to use the OTR or COTA credential.
Swift says they could use their degrees in OT as their professional initials, such as a BSOT, MOT, or in the case of a COTA, an associate degree in occupational therapy. But Plummer fears this would conflict with licensure statutes as they are now written and confuse colleagues and the general public.
In the long run, Swift expects that market demands will probably force most practitioners to stay actively registered with NBCOT, for good reasons.
"Licensing provides for entry-level standards; certification demands a higher degree of expertise," Swift wrote in an ADVANCE guest editorial Aug. 12. "Unfortunately, the distinction between the two has been blurred in recent years." With disciplinary actions up 44 percent and requests for credential verification up 152 percent in the past two years, Swift believes that national control of OT is a necessity.
In a Wirthlin survey of 500 practitioners done last August, 6 percent of respondents said they personally knew of unethical, illegal or incompetent behaviors within the profession. At that percentage, NBCOT's disciplinary division could see up to 4,000 cases of misconduct in the near future--more than 10 times the total it has seen over the past 10 years.
Swift also contends that state deregulation now threatening all of the allied health professions could leave OTs out in the cold if licensure laws fall.
"We hope people will see this as a positive thing for their careers, and not something punitive or policing," Swift had told ADVANCE at AOTA's Chicago conference last April.
Cada added, "I think there was a mandate for Roy, as executive director, to make this change."
NBCOT had unveiled the recertification plan to some 280 OTRs and COTAs in the fall of 1995, before it was finalized, via nationwide telephone survey and focus groups concentrated in the Maryland-DC area. In August, the certification board sent questionnaires to another 300 OTRs and 200 COTAs, asking their opinion of the plan.
Of those who responded to the survey questionnaires, more than half (52 percent) readily accepted the changes and the fee, according to Swift. Another 18 percent were not entirely pleased about the renewal fee but indicated that they would pay it, he said. Three percent said they were not likely to renew.
However, the new proposal for certification renewal was never put before the whole body of OT practitioners because NBCOT was not required by law to do that.
Once the program became official, the certification board published continuing ads and explanations of it in occupational therapy magazines, including ADVANCE.
The question of who should officially validate the competency of OT practitioners is not a new one.
Ten years ago, in April 1986, an AOTA Executive Board report to the RA proposed changes in the certification program. At that time all therapists had to hold membership in AOTA in order to become certified. But AOTA had been advised through its legal counsel that such a requirement might be in violation of the Sherman Anti-Trust Act. So the RA moved to have AOTA restructure and transfer administration of OT certification to an autonomous board within the national organization.
The amended bylaws and policy changes passed a membership vote that year, and the assembly approved Resolution 616-86 and added Article XXI to its bylaws, that would place an autonomous certification board within AOTA the following year.
But in 1987, problems were still foreseen because the two organizations were still linked. When the RA met in 1988, the assembly asked the executive board to remove the American Occupational Therapy Certification Board from the AOTA by rescinding Article XXI of the bylaws. The assembly adopted the agreement, making AOTCB a completely autonomous certifying body.
It's not clear just what power AOTA granted AOTCB back in 1987, or whether there is any legal relationship between the two organizations today. The answer is contained in the AOTA-AOTCB Memorandum of Understanding that the two signed that year, a corporate document which the national office has refused to release to members since the controversy erupted, and in the AOTA-AOTCB Trademark License Agreement executed in October 1995.
In that document, AOTA allegedly "acknowledged NBCOT ownership of these symbols, agreed not to contest ownership, and further agreed to guard against any infringement of the trademarks," according to NBCOT's correspondence posted to an OT Internet listserve, email@example.com, Dec.3.
Stephanie Hoover, associate executive director for professional affairs at AOTA, said that her organization is not in a position to make a statement about resolutions just yet.
"We are in the data-gathering process now...That process will go on until the Representative Assembly meets in April," she told ADVANCE. "It is the Representative Assembly that is primarily empowered to speak officially on this ...issue, and they won't do that until after they've had an opportunity to hear from their members," Hoover said.
The certification board is a non-profit organization, but its profit margin is not regulated by law. Says Suzanne Sweet, director of financial operations for NBCOT, "We try to have at least six months of operating expenses on hand. We do a yearly audit and an annual report."
Last year, the certification board raised $2.4 million in revenues, with 88 percent of that amount deriving from exam fees, due to increased number of candidates. It was a 10 percent increase over 1994.
According to Susan McFadden, NBCOT's director of regulatory affairs, some 55,000 OTRs and COTAs will be up for recertification in 1997, so if everyone complied, the organization could bring in more than $4.1 million in recertification fees alone the first year, and at least $600,000 each year thereafter. Even if the move is completely legal, does NBCOT need that much money to institute and operate the recertification program?
"A lot of people don't even think we can make it on $75 a person," Swift said when contacted by ADVANCE last week. "Yes, it does seem like a lot of money, but it takes a lot to develop the instrument (that will be used to create a database of therapists' current standing for state licensure boards and employers to use) and in mailing fees, to get the word out."
Beginning in 2002, NBCOT also will require continuing education credits for recertification.
"Starting next year we'll be conducting regional workshops across the country to start developing the models."
The $75 fee, he contended, is in line with other recertification fees that the health care industry is imposing on its practitioners for developing continuing competency programs.
Cada summed up NBCOT's position on recertification in the April interview, when she concluded, "Sometimes we take these steps because they are the right thing to do." *