March 22, 2008
By Jerry Kopel
Occupational therapists are baaaack! Under SB
152, Sen. Lois Tochtrop (D) and Rep. Sara Gagliardi (D) would license
those persons under the Dept. of Regulatory Agencies (DORA).
Oops! When SB 152 was heard in Senate Business Affairs committee, the
sponsors moved an amendment to strike everything below the enacting
clause and put in a "new" bill. Well, not exactly "new". They took out
the definition of "licensure" and put in a definition of "registrant".
Wherever the word "licensure" appeared, it was replaced by "registered".
But the requirements of "registered" remained the same as when it was
called "licensure". There is the same title protection, educational
requirements, internship, passing an examination given under the
jurisdiction of DORA, disciplinary action for violations, and
exclusivity of the right to practice.
In my opinion, whoever prepared this "new" bill either had no true
understanding of the difference between licensing (the highest form of
regulation) and registration (a low threshold type of regulation) or had
a low expectation of the ability of legislators to see through the bait
and switch. Calling it "registered" instead of "licensure" in no way
changes the exclusivity the bill promotes.
These therapists have a long and convoluted legislative history. Back in
1995, the occupational therapists came before the House-Senate
Sunrise-Sunset Committee (which committee no longer exists) for the
third time and the committee voted again in opposition to regulation
based on DORA's recommendation.
DORA has now recommended "do not regulate occupational therapists" for
four applications: 1987, 1990, 1995, and 2006. Based on the 2006 review,
proponents had a two year window, 2007 and 2008, to seek bill passage.
DORA did not suggest "do not license", DORA recommended "do not
DORA in 2006 did an exhaustive study (six single space pages) in the
report concerning any injuries that should be subject to discipline from
1987 to 2006. Citing specific examples discovered, DORA found no
justification for regulation.
Occupational therapy involves helping with almost everything the
non-disabled are presently able to do for themselves, hopefully leading
to a learning process for the injured and less dependence on others.
"Occupational" essentially means whatever the particular patient needs
to do in activities of daily living. It is not confined to a wage-earner
Most of SB 152 is boiler-plate DORA language you will find in any DORA
licensing law relating to health issues.
"Licensure" wrote DORA in 1995 "does not assure that the public will be
more protected than they currently are by Colorado statutes, federal
law, and the existing private credentials of occupational therapists".
The occupational therapist lobby could have proceeded with their
licensure bill in 1996, but the therapists instead sought title
protection under the Consumer Protection Act. That protection in CRS
6-1-707 (c) would be repealed and replaced by SB 152.
Under the 1996 law, the education standards and experience level sought
under the 1995 Sunrise application for licensure was the standard for
persons to exclusively use the title "occupational therapists" or the
As of March 31, 2006, according to the DORA report, there were 1,932
occupational therapists under the title protection act, as well as 395
occupational therapist assistants. If nothing else is passed, the OTA's
should be included in the title protection.
So here is where we are. There is title protection based on an
educational background and passage of a national test resulting in
national certification. That Colorado statute has been in existence for
However, persons who don't meet those qualifications can presently
practice the occupation as long as the protected titles are not used to
identify them. Hospitals can use such non-titled persons at obviously
lower cost to the hospital (bearing the burden of choosing competent
individuals ) and to the consumer and insurance payers.
DORA's 2006 report zeroed in on examples of alleged financial disputes
stating these were "insufficient to justify state intervention in the
marketplace ... Regulation would only serve to limit the supply of OT's
and OTA's, thus driving up the price of the service."
When you turn to licensing as the desired step, or registration as
promoted under SB 152, you turn to exclusivity. Fortunately the Sunrise
review enables the legislature and the public to discover whether
consumers are being harmed by the present law.
As often stated in the DORA reviews, licensing, even when called
"registration" may feed the ego of the regulated, but it doesn't
necessarily fall under the present DORA theme of providing consumer
According to DORA, the fiscal cost for 2008 to 2009 of SB 152 is
(Jerry Kopel served 22 years in the Colorado House.)