(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the employment of an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer should have known the person was not licensed. The bill would also include among those causes for discipline the provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action when the individual knew or should have known the statements or information was false.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any act of abuse towards a patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the employment of an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer should have known the person was not licensed. The bill would also include among those causes for discipline the provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action when the individual knew or should have known the statements or information was false.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any act of abuse towards a patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the employment of an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer should have known the person was not licensed. The bill would also include among those causes for discipline the provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action when the individual knew or should have known the statements or information was false.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any act of abuse towards a patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the employment of an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer should have known the person was not licensed. The bill would also include among those causes for discipline the commission by specified licensees of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as described, without regard to whether the person is a patient. The bill would also include among those causes for discipline the provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action when the individual knew or should have known the statements or information was false.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any act of abuse towards a patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the employment of an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer should have known the person was not licensed. The bill would also include among those causes for discipline the commission by specified licensees of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as described, without regard to whether the person is a patient, and patient. The bill would also include among those causes for discipline the knowing provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action. action when the individual knew or should have known the statements or information was false.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any act of abuse towards a patient. patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the commission by specified licensees of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as described, without regard to whether the person is a patient, and the knowing provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

(2)Under the act the board may take action against a respiratory care practitioner who is charged with unprofessional conduct which includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision for which the board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license. The act provides that engaging in repeated acts of unprofessional conduct is a crime.

This bill would expand the definition of unprofessional conduct to include any single act described above or any single act of abusive behavior, including, but not limited to, humiliation, intimidation, ridicule, coercion, threat, or any other conduct that threatens the health, welfare, or safety of a person, whether or not the victim is a patient, a friend or family member of the patient, or an employee. any act of abuse towards a patient. Because this bill would change the definition of a crime, it would impose a state-mandated local program.

(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the commission of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as described. and the provision of false statements or information on any form provided by the board or to any person representing the board during an investigation, probation monitoring compliance check, or any other enforcement-related action.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

Under the Respiratory Care Practice Act, the Respiratory Care Board of California licenses and regulates the practice of respiratory care and therapy. The act authorizes the board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under the act, for any of specified causes. A violation of the act is a crime.

This bill would include among those causes for discipline the commission of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as described.

The bill would provide that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee, does not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 923

Author:(Steinorth)

As Amended Ver:August 1, 2016

Majority vote

Original Committee Reference: B. & P.

SUMMARY: Makes changes to the disciplinary provisions of the Respiratory Care Practice Act, including creating additional causes for disciplinary action, specifying that the loss of a license does not deprive the Respiratory Care Board (RCB) of jurisdiction to commence with disciplinary proceedings, and making other technical changes. Specifically, this bill:

1. Provides that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the RCB, or a court of law; the placement of a license on a retired status; or the voluntary surrender of the license by a licensee shall not deprive the RCB of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.
2. Expands the definition of unprofessional conduct to include any act of abuse towards a patient and any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques.
3. Authorizes the RCB to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license of a licensee who knowingly provides false statements or should have known that the statements provided to the RCB was false on any form provided by the RCB or to any person representing the RCB during an investigation, probation monitoring compliance check, or any other enforcement-related action.
4. Modifies the intent requirement the RCB must prove when an employer who employs an unlicensed person who presents herself or himself as a licensed respiratory care practitioner from "when the employer knew the person was not licensed" to "when the employer knew or should have known the person was not licensed."

The Senate amendments:

1. Change the intent requirement from "knowingly" to "knew or should have known" for 3) and 4) above.
2. Delete the provisions relating to acts against individuals who are not patients.
3. Make technical and conforming changes.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, this bill will have negligible state costs.

COMMENTS:

Purpose. This bill is co-sponsored by the RCB and the California Society for Respiratory Care (CSRC). According to the author, this bill "is a consumer protection measure which safeguards patients from potentially dangerous or unprofessional respiratory care licensees. Existing law does not adequately specify the types of behavior for which the [RCB] may pursue disciplinary action, which leaves vulnerable patients to be cared for by persons who may abuse, neglect, or harass them. This [bill] clarifies specific actions which qualify as 'unprofessional conduct,' so that this problem may be avoided in the future."

Background. The RCB regulates the practice of respiratory care by respiratory care practitioners (RCPs). A RCP is a health care worker that specializes in problems affecting the heart and lungs. RCPs work under the supervision of a medical director, which is a physician and surgeon who is a member of a health care facility's active medical staff and is knowledgeable in respiratory care.

The RCB's enforcement program investigates complaints, issues penalties and warnings, and oversees the administrative prosecution against licensed and unlicensed personnel. However, according to the RCB, there are loopholes in its enforcement authority that require statutory changes.

Discipline for Acts of Abuse. The Respiratory Care Practice Act authorizes the RCB to pursue disciplinary actions against licensees for negligence, incompetence, and patterns of substandard care related to the practice of respiratory care. In addition, it is unprofessional conduct for all healing arts practitioners under the Business and Professions Code to commit acts of sexual abuse. While there is no express authority to pursue cases of abuse without a conviction, the RCB may take action against a RCP convicted of a crime that substantially relates to the qualifications, functions, or duties of a RCP.

However, the RCB sometimes suspects abuse but is unable to pursue disciplinary action because the case either ended with no conviction or the RCB was advised that the conviction would not likely be deemed to be substantially related to the practice of a RCP. This bill will expand the definition of unprofessional conduct for RCPs to include abuse toward patients, authorizing the RCP to take administrative action without a conviction.

Known or Should Have Known. In order for the Office of the Attorney General (OAG) to prove a licensee "knowingly" did something, the OAG must essentially show that the licensee willfully violated a requirement or law. This bill lowers the "knowingly" standard to recklessness, which, in addition to when a licensee knowingly commits a violation, holds a licensee accountable for when the licensee reasonably should have known it would be a violation. For instance, this would include when a licensee submits a document with false statements without verifying whether the statements are actually true.

Jurisdiction for Suspended Licenses. This bill seeks to ensure that the RCB will maintain jurisdiction in disciplinary matters in cases where a RCP's license is canceled or voluntarily surrendered before a disciplinary matter is finalized. According to the RCB, proceedings are halted when the license is canceled, and the incomplete proceedings do not become part of the public record. In some cases, the RCB notes that it then has no record of licensee, and the person is able to reapply for a license and the duplicative proceedings waste the RCB's resources. Therefore, this bill will add language ensuring the RCB may maintain jurisdiction in those cases.

Analysis Prepared by: Vincent Chee / B. & P. / (916) 319-3301 FN: 0003734

 THIRD READING  

Bill No: AB 923

Author:

:

Vote:

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 6/6/16

AYES: Hill, Bates, Block, Gaines, Galgiani, Hernandez, Mendoza, Wieckowski

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 78-0, 1/27/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: California Society for Respiratory Care

DIGEST: This bill makes changes to disciplinary provisions of the Respiratory Care Practice Act.

Senate Floor Amendments of 8/1/16 replace the term “Health Care Services” with “Public Health” in order to correctly reflect the appropriate state entity.

ANALYSIS:

Existing law:

1. Establishes the Respiratory Care Board (Board) of California to implement the Respiratory Care Practice Act (Act). (Business and Professions Code (BPC) § 3710)
2. States that protection of the public shall be the highest priority for the Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 3710.1)
3. Defines respiratory care as a practice to mean the therapy, management, rehabilitation, diagnostic evaluation, and care of patients with deficiencies and abnormalities which affect the pulmonary system and associated aspects of cardiopulmonary and other systems functions, under the supervision of a medical director. (BPC § 3702)
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under this chapter, for knowingly employing unlicensed persons who present themselves as licensed respiratory care practitioners. (BPC § 3750)
5. States that any person who engages in repeated acts of unprofessional conduct shall be guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment for a term not to exceed six months, or by both that fine and imprisonment. (BPC § 3755)

This bill:

1. Modifies the scienter requirement from “knowingly” to “knew or should have known” for an employer who employs an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer knew or should have known the person was not licensed. 
2. States that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law; the placement of a license on a retired status; or the voluntary surrender of the license by a licensee shall not deprive the Board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.
3. States that unprofessional conduct includes, but is not limited to:
   1. Any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques; or,
   2. Any act of abuse towards a patient.
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license of a licensee who knowingly provides false statements or should have known that the provided to the Board was false on any form provided by the Board or to any person representing the Board during an investigation, probation monitoring compliance check, or any other enforcement-related action.
5. Makes technical changes.

Background

Respiratory Care Therapists (RCPs). The Board regulates a single category of health care workers –RCPs. RCPs are specialized health care workers who work under the supervision of medical directors and are involved in the prevention, diagnosis, treatment, management, and rehabilitation of problems affecting the heart and lungs. RCPs provide treatments for patients who have breathing difficulties, including those dependent upon life support, and treat those with acute and chronic diseases, including Chronic Obstructive Pulmonary Disease, trauma victims, and surgery patients. They are typically employed in hospitals, however, a growing number of RCPs work in alternative settings like skilled nursing facilities, physician offices, hyperbaric oxygen therapy facilities and sleep laboratories. There are over 34,000 RCP licensees in California.

2013 Sunset Review. According to the Board’s 2013 Sunset Review, the Board believes there are roadblocks within the Act that prevent administrative suspension or discipline for egregious criminal offenses committed by RCPs. The Board stated that many Deputy Attorneys General (DAGs) believe the Board’s existing law does not allow it to pursue administrative suspension or discipline for some sexually related crimes, or even in a case where the RCP was arrested for attempted murder unless there is a conviction. The Board has found that DAGs are often reluctant to take action solely based on “a corrupt act;” for example, because the language is too broad.

This bill is intended to clarify the parameters for the administration of discipline in the Act by adding examples of what constitutes “unprofessional conduct”; modifies the scienter requirement to prove an employer acted unlawfully; prohibits the provision of false information by a licensee; and clarifies that the Board has jurisdiction over any individual who violates the Act regardless of the expiration, cancellation, forfeiture, surrender, retirement, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law.

It should be noted, however, that while it is important for the Board to police its licensees for conduct dangerous to patients, it is equally critical that licensees are afforded appropriate due process for any real or perceived transgressions, and discipline is not meted out based on insubstantial evidence. These amendments are not intended to reduce the burden of proof for the Board, but rather provide further guidance in administering the Act.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/2/16)

California Society for Respiratory Care (source)

Respiratory Care Board of California

OPPOSITION: (Verified 8/2/16)

None received

ARGUMENTS IN SUPPORT: The Respiratory Care Board of California and the California Society for Respiratory Care write that this bill will strengthen legal framework in the Act related to disciplinary actions, which will further the consumer protection mandate of the Board and allow it to effectively regulate the Respiratory Care profession in California.

ASSEMBLY FLOOR: 78-0, 1/27/16

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Mathis

Prepared by:

8/8/16 9:57:41

**** END ****

 THIRD READING 

Bill No: AB 923

Author: Steinorth (R)

Amended: 5/31/16 in Senate

Vote: 21

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 6/6/16

AYES: Hill, Bates, Block, Gaines, Galgiani, Hernandez, Mendoza, Wieckowski

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 78-0, 1/27/16 (Consent) - See last page for vote

SUBJECT: Respiratory care practitioners

SOURCE: California Society for Respiratory Care

DIGEST: This bill makes changes to disciplinary provisions of the Respiratory Care Practice Act (Act).

ANALYSIS:

Existing law:

1. Establishes the Respiratory Care Board (Board) of California to implement the Act. (Business and Professions Code (BPC) § 3710)
2. States that protection of the public shall be the highest priority for the Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 3710.1)
3. Defines respiratory care as a practice to mean the therapy, management, rehabilitation, diagnostic evaluation, and care of patients with deficiencies and abnormalities which affect the pulmonary system and associated aspects of cardiopulmonary and other systems functions, under the supervision of a medical director. (BPC § 3702)

This bill:

1. Modifies the scienter requirement from “knowingly” to “knew or should have known” for an employer who employs an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer knew or should have known the person was not licensed. 
2. States that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law; the placement of a license on a retired status; or the voluntary surrender of the license by a licensee shall not deprive the Board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.
3. States that unprofessional conduct includes, but is not limited to:
   1. Any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques; or,
   2. Any act of abuse towards a patient.
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license of a licensee who knowingly provides false statements or should have known that the statements provided to the Board was false on any form provided by the Board or to any person representing the Board during an investigation, probation monitoring compliance check, or any other enforcement-related action.
5. Makes technical changes.

Background

According to the author’s office, “The goals of AB 923 are aimed at the very core of the Respiratory Care Board’s mandate to protect its most vulnerable consumers.

AB 923 ensures that the commission of an act of neglect, endangerment, or abuse is grounds for discipline by the Respiratory Care Board; California’s Respiratory Care Board can maintain disciplinary jurisdiction over cases, even if a licensee allows their license to expire.”

The Board regulates a single category of health care workers – respiratory care practitioners (RCPs). RCPs are specialized health care workers who work under the supervision of medical directors and are involved in the prevention, diagnosis, treatment, management, and rehabilitation of problems affecting the heart and lungs. RCPs provide treatments for patients who have breathing difficulties, including those dependent upon life support, and treat those with acute and chronic diseases, including Chronic Obstructive Pulmonary Disease, trauma victims, and surgery patients. They are typically employed in hospitals, however, a growing number of RCPs work in alternative settings like skilled nursing facilities, physician offices, hyperbaric oxygen therapy facilities and sleep laboratories. There are over 34,000 RCP licensees in California.

2013 Sunset Review. According to the Board’s 2013 Sunset Review, the Board believes there are roadblocks within the Act that prevent administrative suspension or discipline for egregious criminal offenses committed by RCPs. The Board stated that many Deputy Attorneys General (DAGs) believe the Board’s existing law does not allow it to pursue administrative suspension or discipline for some sexually related crimes or even in a case where the RCP was arrested for attempted murder, unless there is a conviction. The Board has found that DAGs are often reluctant to take action solely based on “a corrupt act;” for example, because the language is too broad.

This bill is intended to clarify the parameters for the administration of discipline in the Act by adding examples of what constitutes “unprofessional conduct;” modifies the scienter requirement to prove an employer acted unlawfully; prohibits the provision of false information by a licensee; and clarifies that the Board has jurisdiction over any individual who violates the Act regardless of the expiration, cancellation, forfeiture, surrender, retirement, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law.

It should be noted, however, that while it is important for the Board to police its licensees for conduct dangerous to patients, it is equally critical that licensees are afforded appropriate due process for any real or perceived transgressions, and discipline is not meted out based on insubstantial evidence. These amendments are not intended to reduce the burden of proof for the Board, but rather provide further guidance in administering the Act.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 6/20/16)

California Society for Respiratory Care (source)

The Respiratory Care Board of California

OPPOSITION: (Verified 6/20/16)

None received

ARGUMENTS IN SUPPORT: The Respiratory Care Board of California and the California Society for Respiratory Care write that this bill will strengthen legal framework in the Act related to disciplinary actions, which will further the consumer protection mandate of the Board and allow it to effectively regulate the Respiratory Care profession in California.

ASSEMBLY FLOOR: 78-0, 1/27/16

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Mathis

Prepared by: Sarah Huchel / B., P. & E.D. / (916) 651-4104

6/24/16 14:04:14

**** END ****

 CONSENT  

Bill No: AB 923

Author:

:

Vote:

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 6/6/16

AYES: Hill, Bates, Block, Gaines, Galgiani, Hernandez, Mendoza, Wieckowski

NO VOTE RECORDED: Jackson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 78-0, 1/27/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: California Society for Respiratory Care

DIGEST: This bill makes changes to disciplinary provisions of the Respiratory Care Practice Act (Act).

ANALYSIS:

Existing law:

1. Establishes the Respiratory Care Board (Board) of California to implement the Act. (Business and Professions Code (BPC) § 3710)
2. States that protection of the public shall be the highest priority for the Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 3710.1)
3. Defines respiratory care as a practice to mean the therapy, management, rehabilitation, diagnostic evaluation, and care of patients with deficiencies and abnormalities which affect the pulmonary system and associated aspects of cardiopulmonary and other systems functions, under the supervision of a medical director. (BPC § 3702)

This bill:

1. Modifies the scienter requirement from “knowingly” to “knew or should have known” for an employer who employs an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer knew or should have known the person was not licensed. 
2. States that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law; the placement of a license on a retired status; or the voluntary surrender of the license by a licensee shall not deprive the Board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.
3. States that unprofessional conduct includes, but is not limited to:
   1. Any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques; or,
   2. Any act of abuse towards a patient.
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license of a licensee who knowingly provides false statements or should have known that the statements provided to the Board was false on any form provided by the Board or to any person representing the Board during an investigation, probation monitoring compliance check, or any other enforcement-related action.
5. Makes technical changes.

Background

According to the author’s office, “The goals of AB 923 are aimed at the very core of the Respiratory Care Board’s mandate to protect its most vulnerable consumers.

AB 923 ensures that the commission of an act of neglect, endangerment, or abuse is grounds for discipline by the Respiratory Care Board; California’s Respiratory Care Board can maintain disciplinary jurisdiction over cases, even if a licensee allows their license to expire.”

The Board regulates a single category of health care workers – respiratory care practitioners (RCPs). RCPs are specialized health care workers who work under the supervision of medical directors and are involved in the prevention, diagnosis, treatment, management, and rehabilitation of problems affecting the heart and lungs. RCPs provide treatments for patients who have breathing difficulties, including those dependent upon life support, and treat those with acute and chronic diseases, including Chronic Obstructive Pulmonary Disease, trauma victims, and surgery patients. They are typically employed in hospitals, however, a growing number of RCPs work in alternative settings like skilled nursing facilities, physician offices, hyperbaric oxygen therapy facilities and sleep laboratories. There are over 34,000 RCP licensees in California.

2013 Sunset Review. According to the Board’s 2013 Sunset Review, the Board believes there are roadblocks within the Act that prevent administrative suspension or discipline for egregious criminal offenses committed by RCPs. The Board stated that many Deputy Attorneys General (DAGs) believe the Board’s existing law does not allow it to pursue administrative suspension or discipline for some sexually related crimes or even in a case where the RCP was arrested for attempted murder, unless there is a conviction. The Board has found that DAGs are often reluctant to take action solely based on “a corrupt act;” for example, because the language is too broad.

This bill is intended to clarify the parameters for the administration of discipline in the Act by adding examples of what constitutes “unprofessional conduct;” modifies the scienter requirement to prove an employer acted unlawfully; prohibits the provision of false information by a licensee; and clarifies that the Board has jurisdiction over any individual who violates the Act regardless of the expiration, cancellation, forfeiture, surrender, retirement, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law.

It should be noted, however, that while it is important for the Board to police its licensees for conduct dangerous to patients, it is equally critical that licensees are afforded appropriate due process for any real or perceived transgressions, and discipline is not meted out based on insubstantial evidence. These amendments are not intended to reduce the burden of proof for the Board, but rather provide further guidance in administering the Act.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/20/16)

California Society for Respiratory Care (source)

The Respiratory Care Board of California

OPPOSITION: (Verified 6/20/16)

None received

ARGUMENTS IN SUPPORT: The Respiratory Care Board of California and the California Society for Respiratory Care write that this bill will strengthen legal framework in the Act related to disciplinary actions, which will further the consumer protection mandate of the Board and allow it to effectively regulate the Respiratory Care profession in California.

ASSEMBLY FLOOR: 78-0, 1/27/16

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Mathis

Prepared by:

6/22/16 15:14:56

**** END ****

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Jerry Hill, Chair

2015 - 2016 Regular

Bill No: AB 923 Hearing Date: June 6, 2016

Subject: Respiratory care practitioners

SUMMARY:

Makes changes to disciplinary provisions of the Respiratory Care Practice Act.

Existing law:

1. Establishes the Respiratory Care Board (Board) of California to implement the Respiratory Care Practice Act (Act). (Business and Professions Code (BPC) § 3710)
2. States that protection of the public shall be the highest priority for the Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 3710.1)
3. Defines respiratory care as a practice to mean the therapy, management, rehabilitation, diagnostic evaluation, and care of patients with deficiencies and abnormalities which affect the pulmonary system and associated aspects of cardiopulmonary and other systems functions, under the supervision of a medical director. (BPC § 3702)
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under this chapter, for knowingly employing unlicensed persons who present themselves as licensed respiratory care practitioners. (BPC § 3750)
5. States that any person who engages in repeated acts of unprofessional conduct shall be guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment for a term not to exceed six months, or by both that fine and imprisonment. (BPC § 3755)

This bill:

1. Modifies the scienter requirement from “knowingly” to “knew or should have known” for an employer who employs an unlicensed person who presents herself or himself as a licensed respiratory care practitioner when the employer knew or should have known the person was not licensed. 
2. States that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law; the placement of a license on a retired status; or the voluntary surrender of the license by a licensee shall not deprive the Board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee, or to render a decision to suspend or revoke the license.
3. States that unprofessional conduct includes, but is not limited to:
   1. Any act of administering unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques; or,
   2. Any act of abuse towards a patient.
4. Authorizes the Board to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license of a licensee who knowingly provides false statements or should have known that the provided to the Board was false on any form provided by the Board or to any person representing the Board during an investigation, probation monitoring compliance check, or any other enforcement-related action.
5. Makes technical changes.

FISCAL EFFECT:

According to the Assembly Appropriations Committee analysis dated January 21, 2016, any costs from this bill to the Board are minor and absorbable (Respiratory Care Fund).

COMMENTS:

1. Purpose. This bill is sponsored by the California Society for Respiratory Care. According to the Author’s office, “The goals of AB 923 are aimed at the very core of the Respiratory Care Board’s mandate to protect its most vulnerable consumers.
   AB 923 ensures that the commission of an act of neglect, endangerment, or abuse is grounds for discipline by the Respiratory Care Board; California’s Respiratory Care Board can maintain disciplinary jurisdiction over cases, even if a licensee allows their license to expire.”
2. Background. The Board regulates a single category of health care workers – respiratory care practitioners (RCPs). RCPs are specialized health care workers who work under the supervision of medical directors and are involved in the prevention, diagnosis, treatment, management, and rehabilitation of problems affecting the heart and lungs. RCPs provide treatments for patients who have breathing difficulties, including those dependent upon life support, and treat those with acute and chronic diseases, including Chronic Obstructive Pulmonary Disease, trauma victims, and surgery patients. They are typically employed in hospitals, however, a growing number of RCPs work in alternative settings like skilled nursing facilities, physician offices, hyperbaric oxygen therapy facilities and sleep laboratories. There are over 34,000 RCP licensees in California.
3. 2013 Sunset Review. According to the Board’s 2013 Sunset Review, the Board believes there are roadblocks within the Act that prevent administrative suspension or discipline for egregious criminal offenses committed by RCPs. The Board stated that many Deputy Attorneys General (DAGs) believe the Board’s existing law does not allow it to pursue administrative suspension or discipline for some sexually related crimes, or even in a case where the RCP was arrested for attempted murder, unless there is a conviction. The Board has found that DAGs are often reluctant to take action solely based on “a corrupt act;” for example, because the language is too broad.

This bill is intended to clarify the parameters for the administration of discipline in the Act by adding examples of what constitutes “unprofessional conduct”; modifies the scienter requirement to prove an employer acted unlawfully; prohibits the provision of false information by a licensee; and clarifies that the Board has jurisdiction over any individual who violates the Act regardless of the expiration, cancellation, forfeiture, surrender, retirement, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law, by order or decision of the Board, or a court of law.

It should be noted, however, that while it is important for the Board to police its licensees for conduct dangerous to patients, it is equally critical that licensees are afforded appropriate due process for any real or perceived transgressions, and discipline is not meted out based on insubstantial evidence. These amendments are not intended to reduce the burden of proof for the Board, but rather provide further guidance in administering the Act.

1. Arguments in Support. The Board and the California Society for Respiratory Care write that this bill will strengthen legal framework in the Act related to disciplinary actions, which will further the consumer protection mandate of the Board and allow it to effectively regulate the Respiratory Care profession in California.

SUPPORT AND OPPOSITION:

Support:

California Society for Respiratory Care (sponsor)

The Respiratory Care Board of California

Opposition: None on file.

-- END --

Date of Hearing: January 21, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 923

Author:(Steinorth) – As Amended Ver:January 4, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill expands the Respiratory Care Board’s (RCB) enforcement authority to include additional causes for adverse licensure actions, provides that the loss of a license does not deprive the RCB of jurisdiction to commence with disciplinary proceedings, and expands the definition of unprofessional conduct.

FISCAL EFFECT:

Any costs to the RCB are minor and absorbable (Respiratory Care Fund).

COMMENTS:

Purpose. According to the author, this bill protects patients from potentially dangerous or unprofessional respiratory care licensees. The author explains existing law does not adequately specify the types of behavior for which the RCB may pursue disciplinary action, which leaves vulnerable patients to be cared for by persons who may abuse, neglect, or harass them. This bill is co-sponsored by the RCB and the California Society for Respiratory Care.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing:

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Susan Bonilla, Chair

ABPCA Bill Id:AB 923

Author:Steinorth – As Amended Ver:January 4, 2016

SUBJECT: Respiratory care practitioners.

SUMMARY: Expands the Respiratory Care Board’s (RCB) enforcement authority to include additional causes for adverse licensure actions, provides that the loss of a license does not deprive the RCB of jurisdiction to commence with disciplinary proceedings, and expands the definition of unprofessional conduct.

EXISTING LAW:

1. Provides that the commission of an act of sexual abuse, misconduct, or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action for any healing arts licensee under Division 2 of the Business and Professions Code (BPC), under any initiative act referred to in Division 2 of the BPC, and under Chapter 17 (commencing with Section 9000) of Division 3 of the BPC. (BPC § 726)
2. Requires each board under the BPC to develop criteria to determine whether a crime or act is substantially related to the qualifications, functions, or duties of the business or profession it regulates, when considering the denial, suspension, or revocation of a license. (BPC § 481)
3. Establishes the RCB, under the Department of Consumer Affairs (DCA), to regulate the practice of respiratory care by Respiratory Care Practitioners (RCPs) and enforce the Respiratory Care Practice Act (RCPA). (BPC §§ 3700-3779)
4. Authorizes the RCB to order the denial, suspension, or revocation of or the imposition of probationary conditions upon a license for causes specified under the RCPA, including negligence, incompetence, or the conviction of a crime that substantially relates to the qualifications of a RCP. (BPC § 3750)
5. Provides that a crime involving bodily injury or attempted bodily injury is considered a crime substantially related to the qualifications, functions, or duties of a RCP. (BPC § 3752.5)
6. Provides that a crime involving sexual misconduct or attempted sexual misconduct, whether or not with a patient, is considered a crime substantially related to the qualifications, functions, or duties of a RCP. (BPC § 3752.6)
7. Authorizes the RCB to take action against a RCP who is charged with unprofessional conduct. Unprofessional conduct includes repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and any violation for which the RCB may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon a license. (BPC § 3755)

THIS BILL:

1. Authorizes the RCB to order the denial, suspension, or revocation of, or the imposition of probationary conditions upon a license for, if the licensee is a mandated reporter or required to report under sections 11160-11174.3 of the Penal Code, the commission of an act of neglect, endangerment, or abuse involving a person under 18 years of age, a person 65 years of age or older, or a dependent adult, as specified, without regard to whether the person is a patient.
2. Authorizes the RCB to order the denial, suspension, or revocation of or the imposition of probationary conditions upon a license for knowingly providing false statements or information on any form provided by the RCB or to any person representing the RCB during an investigation, probation monitoring compliance check, or any other enforcement-related action.
3. Provides that the expiration, cancellation, forfeiture, or suspension of a license, practice privilege, or other authority to practice respiratory care by operation of law or by order or decision of the RCB or a court of law, the placement of a license on a retired status, or the voluntary surrender of the license by a licensee does not deprive the RCB of jurisdiction to commence or proceed with any investigation of or disciplinary action against the licensee or to render a decision to suspend or revoke the license.
4. Expands the definition of unprofessional conduct to include an act of abuse toward a patient.
5. Provides that no reimbursement is required by the bill pursuant to Section 6 of Article XIII B of the California Constitution, as specified.

FISCAL EFFECT: Unknown. This bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is co-sponsored by the RCB and the California Society for Respiratory Care (CSRC). According to the author, this bill “is a consumer protection measure which safeguards patients from potentially dangerous or unprofessional respiratory care licensees. Existing law does not adequately specify the types of behavior for which the [RCB] may pursue disciplinary action, which leaves vulnerable patients to be cared for by persons who may abuse, neglect, or harass them.

This [bill] clarifies specific actions which qualify as ‘unprofessional conduct,’ so that this problem may be avoided in the future. [It] also clarifies that acts of abuse or neglect against a child, dependent adult, or the elderly, are grounds for discipline by the RCB.”

Background. The RCB regulates the practice of respiratory care by RCPs and enforces the RCPA. A RCP is a health care worker that specializes in problems affecting the heart and lungs. RCPs work under the supervision of a medical director, which is a physician and surgeon who is a member of a health care facility’s active medical staff and is knowledgeable in respiratory care (BPC § 3704).

The RCB’s enforcement program investigates complaints, issues penalties and warnings, and oversees the administrative prosecution against licensed and unlicensed personnel. However, according to the RCB, there are loopholes in its enforcement authority that require statutory changes.

Discipline for Acts of Abuse. The RCPA authorizes the RCB to pursue disciplinary actions against licensees for negligence, incompetence, and patterns of substandard care related to the practice of respiratory care. In addition, it is unprofessional conduct for all healing arts practitioners under the BPC to commit acts of sexual abuse. While there is no express authority to pursue cases of abuse without a conviction, the RCB may take action against a RCP convicted of a crime that substantially relates to the qualifications, functions, or duties of a RCP.

The RCPA specifies two types of crimes that substantially relate to the practice of a RCP: (1) those involving sexual misconduct or attempted sexual misconduct, whether or not with a patient, and (2) those involving bodily injury or attempted bodily injury. In addition, existing law requires boards to develop their own criteria when determining whether a crime substantially relates to the profession (BPC § 481). Therefore, the RCB is able to take disciplinary action against a licensee who engages in most of the acts of abuse that could result in a conviction.

Still, the RCB has complained of cases of suspected abuse in which it felt it had a strong case but was unable to pursue disciplinary action, because either the case ended with no conviction or the RCB was advised that the conviction would likely not be deemed to be substantially related to the practice of a RCP. Therefore, this bill will expand the definition of unprofessional conduct for RCPs to include abuse toward patients.

Additionally, because RCPs are mandated reporters, and already required to report suspected cases of abuse or neglect of children and the elderly, this bill will authorize the RCB to take action against licensees for acts of abuse and neglect toward the covered populations, including non-patients.

Currently there are only three other healing arts boards under the DCA specifically authorized to take action for abuse without a conviction that substantially relates to the duties of the profession. The Board of Occupational Therapy and the Board of Vocational Nursing and Psychiatric Technicians may take action for excessive force, mistreatment, or abuse of patients (BPC §§ 2570.28(j), 2878(a)(4), 2878.1(d)(3), 4521(i), 4521.2(d)(3)). The Physical Therapy Board may take action for verbal abuse (BPC § 2660(i)).

Jurisdiction for Suspended Licenses. This bill seeks to ensure that the RCB will maintain jurisdiction in disciplinary matters in cases where a RCP’s license is canceled or voluntarily surrendered before a disciplinary matter is finalized. According to the RCB, proceedings are halted when the license is canceled, and the incomplete proceedings do not become part of the public record. In some cases, the RCB notes that it then has no record of licensee, and the person is able to reapply for a license and the duplicative proceedings waste the RCB’s resources. Therefore, this bill will add language ensuring the RCB may maintain jurisdiction in those cases. The language is similar to that of the Board of Registered Nursing (BPC § 2764).

Previous/Prior Related Legislation. SB 531 (Bates), Chapter 261, Statutes of 2015, among other things, provided that the expiration, cancellation, forfeiture, or suspension of a license, registration, or other authority to practice by operation of law or by order or decision of the board or a court of law, the placement of a license on a retired status, or the voluntary surrender of a license or registration by a licensee or registrant, of any license or registration within the authority of the board, shall not deprive the Board of Behavioral Sciences of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee or registrant or to render a decision suspending or revoking the license or registration.

SB 544 (Price) of 2011 would have enacted the Consumer Health Protection Enforcement Act, which included various provisions relating to the investigation and enforcement of disciplinary actions against licensees of healing arts boards, including expanding the definition of unprofessional conduct and requiring health boards to post information on their websites regarding license status, discipline, and convictions. NOTE: This bill failed passage in the Senate Committee on Business, Professions and Economic Development.

REGISTERED SUPPORT:

Respiratory Care Board of California (sponsor)

California Society for Respiratory Care (sponsor)

REGISTERED OPPOSITION:

None on file.

Analysis Prepared by: Vincent Chee / B. & P. / (916) 319-3301