BILL NUMBER: SB 1125 INTRODUCED BILL TEXT INTRODUCED BY Senator Denham JANUARY 28, 2008 An act to add Chapter 8.4 (commencing with Section 3800) to Division 2 of, and to repeal Section 3840.5 of, the Business and Professions Code, relating to polysomnographic technologists. LEGISLATIVE COUNSEL'S DIGEST SB 1125, as introduced, Denham. Polysomnographic Technologist Act. Existing law, the Respiratory Care Practice Act, provides for the licensure and regulation of respiratory professionals by the Respiratory Care Board of California. Existing law defines the practice of respiratory therapy, and prohibits its practice without a license issued by the board, subject to certain exceptions. Under existing law, all licensing fees collected under the Respiratory Care Practice Act are deposited into the Respiratory Care Fund. This bill would enact the Polysomnographic Technologist Act, which would provide for the licensing and regulation of polysomnographic technologists by the board. The bill would prohibit the unlicensed performance of polysomnography or polysomnography-related respiratory care services, as defined, except as specified. The bill would provide for certain licensing and regulatory fees to be deposited into the fund. The bill would make a violation of the provisions of the act a crime, thereby imposing a state-mandated local program. 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. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Chapter 8.4 (commencing with Section 3800) is added to Division 2 of the Business and Professions Code, to read: CHAPTER 8.4. POLYSOMNOGRAPHIC TECHNOLOGISTS Article 1. General Provisions 3800. This chapter shall be known and may be cited as the Polysomnographic Technologist Act. 3802. "Polysomnography" means the process of analysis and attended monitoring and recording of physiologic data during sleep and wakefulness to assist in the assessment and diagnosis of sleep or wake disorders and other disorders, syndromes, and dysfunctions that are sleep related, manifest during sleep, or disrupt normal sleeping and waking cycles and activities. 3802.5. "Polysomnography-related respiratory care services" means the limited practice of respiratory care in the provision of polysomnography services, including all of the following: (a) The diagnostic and therapeutic use of oxygen. (b) Noninvasive ventilatory assistance of spontaneously breathing patients and cardiopulmonary resuscitation. (c) Establishment of baseline oxyhemoglobin saturation. (d) Routine fitting of positive airway pressure mask or cannula. (e) Maintenance of nasal and oral airways that do not extend into the trachea. (f) Continuous observation, analysis, and recordation of carbon dioxide concentrations in respiratory gases, and other respiratory events. (g) Validation of respiratory-related data integrity. (h) Calibration of respiratory care devices. (i) Implementation of appropriate interventions, including actions necessary for patient safety. (j) Application of the knowledge and skills necessary to recognize and provide age specific respiratory care in the treatment, assessment, and education of neonatal, pediatric, adolescent, adult, and geriatric patients. 3803. (a) The practice of polysomnography and polysomnography-related respiratory care services may be performed in any approved sleep disorder program that includes a sleep disorder center, or any laboratory, facility, home, or other area where polysomnography is conducted and that is under the supervision of a medical director responsible for patient care provided at that location. (b) The practice of polysomnography and polysomnography-related respiratory care services shall be performed under the supervision of a medical director in accordance with a prescription of a physician and surgeon or pursuant to polysomnography protocols. (c) "Polysomnography protocols," as used in this chapter, mean policies and protocols developed by a California licensed health facility through collaboration, when appropriate, with administrators and physicians and surgeons, registered nurses, and respiratory care practitioners licensed in California, and in accordance with federal and state laws and regulations. 3804. For purposes of this chapter, the following terms have the following meanings: (a) "Board" means the Respiratory Care Board of California. (b) "Medical director" means a physician and surgeon who is a member of a health care facility's active medical staff, who specializes in sleep medicine, who is knowledgeable in respiratory care, and who is licensed to practice medicine pursuant to Chapter 5 (commencing with Section 2000). (c) "Polysomnographic technologist" means a person licensed pursuant to this chapter. (d) "Respiratory care practitioner" means a person licensed pursuant to Chapter 8.3 (commencing with Section 3700). 3804.5. Notwithstanding Chapter 8.3 (commencing with Section 3700), a person holding a polysomnographic technologist license issued pursuant to this chapter may perform polysomnography and polysomnography-related respiratory care services. 3805. Nothing in this chapter shall be construed as authorizing a polysomnographic technologist to practice medicine, surgery, or respiratory care, except as authorized by this chapter. Article 2. Administration 3810. The board shall enforce and administer this chapter. The board may employ an executive officer exempt from civil service and, subject to the provisions of law relating to civil service, clerical assistants, and, except as provided in Section 159.5, other employees as it may deem necessary to carry out its powers and duties. 3817. (a) The board, or any respiratory care practitioner, licensed polysomnographic technologist, enforcement staff, or investigative unit appointed by the board, may inspect, or require reports from, a general or specialized hospital, any other facility, office, or corporation providing or suspected of providing respiratory care or polysomnography services and the staff thereof, with respect to the care or suspected patient care provided therein, or the employment of staff, and may inspect and copy patient records with respect to care, treatment, services, or facilities. The authority to make inspections and to require reports as provided by this section is subject to the restrictions against disclosure contained in Section 2225. Those persons may also inspect and copy employment records relevant to an official investigation. (b) The failure of an employer to provide documents as required by this section is punishable by an administrative fine not to exceed fifteen thousand dollars ($15,000) per violation. This penalty shall be in addition to, and not in lieu of, any other civil or criminal remedies. 3818. The board shall issue, deny, suspend, place probationary terms upon, and revoke licenses to practice polysomnography and polysomnography-related respiratory care services. 3819. A person renewing his or her license shall submit proof satisfactory to the board that, during the preceding two-year period, he or she completed the required number of continuing education hours established by regulation of the board. The required continuing education shall be 15 hours every two years. The board may increase the number of hours by regulation not to exceed 30 hours every two years. Successful completion of an examination approved by the board may be submitted by a licensee for a designated portion of continuing education credit. The board shall determine the hours of credit to be granted for the passage of particular examinations. 3819.5. The board may require successful completion of one or more professional courses offered by the board, the American Association for Respiratory Care, the California Society for Respiratory Care, or the National Board for Respiratory Care in any or all of the following circumstances: (a) As part of continuing education. (b) Prior to initial licensure. (c) Prior to consideration of a reinstatement petition. 3822. The board shall adopt any regulations as may be necessary to effectuate this chapter. Article 3. Licensure of Technologists 3830. (a) All licenses for the practice of polysomnography and polysomnography-related respiratory care services in this state shall be issued by the board. All applications for those licenses shall be submitted directly to and filed with the board. (b) Each application shall be accompanied by the application fee prescribed in Section 3875, shall be signed by the applicant, and shall contain a statement under oath of the facts. Each applicant shall furnish a full set of fingerprints for purposes of conducting criminal history record checks as provided by Section 144. The application shall contain other information as the board deems necessary to determine the qualifications of the applicant. 3831. A person holding a license as a polysomnographic technologist issued by the board shall use the title "polysomnographic technologist" or the letters "PSGT." The license shall not authorize the use of the prefix "Dr.," or the word "doctor," or any suffix or affix indicating or implying that the licensed person is a doctor or a physician and surgeon. The suffix "M.D." shall not be used unless the licensed practitioner is licensed as a physician and surgeon in this state. 3832. The board shall investigate an applicant for a license, before a license is issued, in order to determine whether or not the applicant has the qualifications required by this chapter. Notwithstanding any other provision, criminal background or application or complaint investigations shall be completed before a work permit or license may be issued. 3835. Except as otherwise provided in this chapter, no applicant shall receive a license under this chapter without first successfully passing an examination approved and prescribed by the board. 3836. Examinations for a license as a polysomnographic technologist may be conducted by the board under a uniform examination system, and for that purpose the board may make any arrangements with organizations furnishing examination material as may in its discretion be desirable. 3838. Prior to licensure, each applicant shall be at least 18 years of age and possess a current nationally recognized certificate in cardiopulmonary resuscitation. 3839. (a) Except as otherwise provided in this section, a person who has filed an application and who meets all the requirements for licensure, other than those requirements contained in Sections 3835 and 3840, may be issued a work permit by the board to perform, between the dates specified in the permit, as an applicant polysomnographic technologist under the direct supervision of a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) or a respiratory care practitioner, provided that all of the following apply: (1) He or she has not failed an examination required for licensure pursuant to Section 3835 or has subsequently passed an examination required for licensure. (2) He or she is employed by a sleep disorder program as described in Section 3803. (3) The medical director of the sleep disorder program provides acknowledgment of the director's responsibility to provide direct supervision, as set forth in subdivision (e), and to provide routine reports as required by the board. (4) The applicant only identifies himself or herself in this capacity as an applicant polysomnographic technologist. (5) The applicant provides any and all information requested by the board in relation to paragraphs (1), (2), (3), and (4). (b) The board may rescind a work permit issued pursuant to this section if new information is received, or information requested by the board is not received, that affects the status of the application for licensure or the board's ability to verify requirements. (c) No applicant for a polysomnographic technologist license shall be authorized to perform as an applicant polysomnographic technologist if cause exists to deny his or her application for licensure. (d) An applicant polysomnographic technologist may, while under the direct supervision described in subdivision (a), perform those diagnostic and therapeutic procedures defined as "polysomnography" and "polysomnography-related respiratory care services," except that under no circumstances may an applicant polysomnographic technologist make any type of independent assessment. (e) "Under the direct supervision" means that a person is assigned to a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) or a respiratory care practitioner who is on duty and immediately available, within five minutes, in the assigned patient care area. (f) A work permit issued pursuant to this section may be issued for an initial term not to exceed six months, and may be extended in one-year increments not to exceed two and one-half years from the start date of the initial issuance of the work permit. An extension shall only be issued upon the request of the applicant and after all of the following have been provided to the board's satisfaction: (1) Verification of current certification in cardiopulmonary resuscitation. (2) Verification of current employer and medical director and their contact information. (3) A recent acknowledgment form completed by the applicant and the medical director responsible for the direct supervision and verification of paid work experience of the applicant. (4) A written statement signed under oath as to whether the applicant has been arrested or convicted for any crime in the past 18 months and details of the incident as requested by the board. (g) An applicant polysomnographic technologist shall report to the board within 10 days of a change in employer or medical director taking responsibility for direct supervision and verification of his or her paid work experience. Article 4. Education Standards 3840. Prior to licensure, an applicant for licensure under this chapter shall meet all of the following requirements: (a) Fulfill one of the following criteria as further prescribed by the board by regulation: (1) He or she possesses a current license to practice respiratory care in California. (2) He or she completed an accredited respiratory care program and has an associate degree or a higher level degree. (3) He or she has completed an accredited electroneurodiagnostics program and has an associate degree or higher level degree. (4) He or she has completed an accredited polysomnography education program and has an associate degree or higher level degree. (5) He or she has completed 18 months or 3,000 hours of full-time, paid work experience as an applicant polysomnographic technologist, including 1000 hours in polysomnography-related respiratory care services, and satisfactorily performed all hours as verified by the medical director and supported by official personnel records. (b) Complete any other educational courses, clinical practice, or work experience identified by the board through regulation. (c) Provide documentation to the satisfaction of the board of meeting the above requirements. 3840.5. (a) Any person who applies for a license pursuant to this chapter before January 1, 2010, may use paid work experience earned in the two years preceding January 1, 2010, to meet, either partially or fully, the work experience requirement in paragraph (5) of subdivision (a) of Section 3840 without having held a work permit as an applicant polysomnographic technologist. (b) Paid work experience described in this section must be satisfactorily performed as verified by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) and supported by official personnel records, including duty statements, performance reviews or appraisals, salary and shift information and any other documentation as required by the board. (c) This section shall remain in effect only until January 1, 2010, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2010, deletes or extends that date. 3841. During the period of any clinical training, polysomnography or polysomnography-related respiratory care services may be rendered by a student enrolled in an approved education program if these services are incidental to his or her course of study and he or she acquires and maintains a current nationally recognized certificate in cardiopulmonary resuscitation. Under no circumstances may a student make any type of independent assessment. A student shall be identified only as a student polysomnographic technologist. 3842. During the period of clinical training, a student polysomnographic technologist shall be assigned to, and under the direct supervision of, a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) or a respiratory care practitioner who is on duty and immediately available, within five minutes, in the assigned patient care area. 3843. Applications may be considered null and void after 12 months of inactivity or failure to progress toward meeting licensure requirements. Article 5. Application and License Discipline 3850. The board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under this chapter, for any of the following causes: (a) Advertising in violation of Section 651 or Section 17500. (b) Fraud in the procurement of any license under this chapter. (c) Knowingly employing unlicensed persons to perform polysomnography or polysomnography-related respiratory care services. (d) Conviction of a crime that substantially relates to the qualifications, functions, or duties of a polysomnographic technologist. The record of conviction or a certified copy of the record shall be conclusive evidence of the conviction. (e) Impersonating or acting as a proxy for an applicant in any examination given under this chapter. (f) Negligence in his or her practice of polysomnography or polysomnography-related respiratory care services. (g) Conviction of a violation of any of the provisions of this chapter or of any provision of Division 2 (commencing with Section 500), or violating, or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision or term of, this chapter or of any provision of Division 2 (commencing with Section 500). (h) Aiding or abetting any person to violate this chapter or any regulations duly adopted under this chapter. (i) Aiding or abetting any person to engage in the unlawful practice of polysomnography or polysomnography-related respiratory care services. (j) Commission of any fraudulent, dishonest, or corrupt act that is related to the qualifications, functions, or duties of a polysomnographic technologist. (k) Falsifying, or making grossly incorrect, grossly inconsistent, or unintelligible entries in any patient, hospital, or other record. (l) Changing the prescription of a physician and surgeon, or falsifying verbal or written orders for treatment or a diagnostic regime received, whether or not that action resulted in actual patient harm. (m) Denial, suspension, or revocation of any license to practice by another agency, state, or territory of the United States for any act or omission that would constitute grounds for the denial, suspension, or revocation of a license in this state. (n) Except for good cause, the knowing failure to protect patients by failing to follow infection control guidelines of the board, thereby risking transmission of blood-borne infectious diseases from licensee to patient, from patient to patient, and from patient to licensee. In administering this subdivision, the board shall consider referencing the standards, regulations, and guidelines of the State Department of Public Health developed pursuant to Section 1250.11 of the Health and Safety Code and the standards, regulations, and guidelines pursuant to the California Occupational Safety and Health Act of 1973 (Part 1 (commencing with Section 6300) of Division 5 of the Labor Code) for preventing the transmission of HIV, hepatitis B, and other blood-borne pathogens in health care settings. The board shall seek to ensure that licensees are informed of the responsibility of licensees and others to follow infection control guidelines, and of the most recent scientifically recognized safeguards for minimizing the risk of transmission of blood-borne infectious diseases. (o) Incompetence in his or her practice as a polysomnographic technologist. (p) A pattern of substandard care. 3850.5. In addition to any other grounds specified in this chapter, the board may deny, suspend, or revoke the license of any applicant or licenseholder who has done any of the following: (a) Obtained, possessed, or used in violation of law, or except as directed by a licensed physician and surgeon, dentist, or podiatrist administered to himself or herself, or furnished or administered to another, any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, or any dangerous drug as defined in Article 2 (commencing with Section 4015) of Chapter 9. (b) Used any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, or any dangerous drug as defined in Article 2 (commencing with Section 4015) of Chapter 9 or alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, another person, or the public or to the extent that the use impaired his or her ability to conduct with absolute safety to the public the practice authorized by his or her license. (c) Applied for employment or worked in any health care profession or environment while under the influence of alcohol. (d) Been convicted of a criminal offense involving the consumption or self-administration of any of the substances described in subdivisions (a) and (b), or the possession of, or falsification of a record pertaining to, the substances described in subdivision (a), in which event the record of the conviction is conclusive evidence thereof. (e) Been committed or confined by a court of competent jurisdiction for intemperate use of or addiction to the use of any of the substances described in subdivisions (a), (b), and (c), in which event the court order of commitment or confinement is prima facie evidence of that commitment or confinement. (f) Falsified, or made grossly incorrect, grossly inconsistent, or unintelligible entries in any hospital, patient, or other record pertaining to the substances described in subdivision (a). 3850.6. Upon request, every holder of a pocket license shall produce for inspection the original pocket license issued by the board. A facsimile of the license is not sufficient for that purpose. Upon request, every applicant issued a work permit shall produce for inspection the original permit issued by the board. A facsimile of the work permit is not sufficient for that purpose. 3851. A person whose license has been revoked, surrendered, or suspended, or placed on probation, may petition the board for reinstatement, modification, or termination of probation as provided in Section 3751. 3852. A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge of any offense that substantially relates to the qualifications, functions, or duties of a polysomnographic technologist is deemed to be a conviction within the meaning of this article. The board shall order the license suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. 3852.5. For purposes of Division 1.5 (commencing with Section 475), and this chapter, a crime involving bodily injury or attempted bodily injury shall be considered a crime substantially related to the qualifications, functions, or duties of a polysomnographic technologist. 3852.6. For purposes of Division 1.5 (commencing with Section 475), and this chapter, a crime involving sexual misconduct or attempted sexual misconduct, whether or not with a patient, shall be considered a crime substantially related to the qualifications, functions, or duties of a polysomnographic technologist. 3852.7. Notwithstanding Section 3850, any proposed decision or decision issued under this chapter in accordance with the procedures set forth in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, that contains any finding of fact that a licensee or applicant engaged in any act of sexual contact, as defined in Section 729, with a patient, or has committed an act or been convicted of a sex offense as defined in Section 44010 of the Education Code, shall contain an order of revocation. The revocation shall not be stayed by the administrative law judge. For purposes of this section, the patient shall no longer be considered a patient of the polysomnographic technologist when the order for polysomnography and polysomnography-related respiratory care services is terminated, discontinued, or not renewed by the prescribing physician and surgeon. 3852.8. (a) Notwithstanding the Administrative Procedures Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), the board may suspend without a hearing the license of a polysomnographic technologist for up to 60 days upon receipt of a certified arrest report or certified court record that alleges the licensee committed or was convicted of a sex offense, as defined in Section 729 of this code or Section 44010 of the Education Code. (b) Notice of the suspension shall be delivered or mailed overnight to the respondent's address of record and shall go into effect either immediately upon confirmed delivery or one day following the date the notice was mailed, whichever occurs first. (c) At any time during the suspension period, the licensee may present a written appeal to the board with documentation providing either of the following: (1) He or she is not the individual who was arrested. (2) He or she has not been arrested for a sex offense as defined in subdivision (a). (d) After receiving the appeal and any supporting documentation, the board shall review the appeal and notify the licensee of its decision within five working days. (e) Should the board determine at any time during the 60-day suspension period that paragraph (1) or (2) of subdivision (c) is accurate, the board shall immediately withdraw the order of suspension. (f) A suspension order that is issued pursuant to this section is a public record. However, if a notice of suspension is withdrawn pursuant to subdivision (d) or (e), the notice of suspension shall not be disclosed to the public after the date of the withdrawal. (g) Nothing in this section shall in any way limit the board's authority or ability to institute disciplinary proceedings pursuant to this article. 3853. Except as otherwise provided in Section 3852.8, the procedure in all matters and proceedings relating to the denial, suspension, or revocation of licenses under this chapter shall be governed by the provisions of the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code). 3853.1. (a) An administrative disciplinary decision imposing terms of probation may include, among other things, a requirement that the licensee-probationer pay the monetary costs associated with monitoring the probation. (b) The board shall not renew or reinstate the license of any licensee who has failed to pay all of the costs ordered under this section once a licensee has served his or her term of probation. 3853.5. (a) In any order issued in resolution of a disciplinary proceeding before the board, the board or the administrative law judge may direct any license or applicant found to have committed a violation or violations of law or probationary terms to pay to the board a sum not to exceed the costs of the investigation and prosecution of the case. A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the official custodian of the record or his or her designated representative shall be prima facie evidence of the actual costs of the investigation and prosecution of the case. (b) The costs shall be assessed by the administrative law judge and shall not be increased by the board. However, the costs may be imposed or increased by the board if it does not adopt the proposed decision of the case. If an order for recovery of costs is made and timely payment is not made as directed in the board's decision, the board may enforce the order for repayment in any appropriate court. This right of enforcement shall be in addition to any other rights the board may have as to any licensee or applicant directed to pay costs. (c) In any action for recovery of costs, proof of the board's decision shall be conclusive proof of the validity of the order of payment and the terms for payment. (d) (1) The board shall not renew or reinstate the license of any licensee who has failed to pay all of the costs ordered under this section. (2) Notwithstanding paragraph (1), the board may, in its discretion, conditionally renew, for a maximum of one year, the license of any licensee who demonstrates financial hardship, through documentation satisfactory to the board, and who enters into a formal agreement with the board to reimburse the board within that one-year period for those unpaid costs. 3853.7. For purposes of this chapter, costs of prosecution shall include attorney general or other prosecuting attorney fees, expert witness fees, and other administrative, filing, and service fees. 3854. The board may deny an application for, or issue with terms and conditions, or suspend or revoke, or impose probationary conditions upon, a license in any decision made after a hearing, as provided in Section 3853. 3854.5. The board shall initiate action against any licensee who obtains a license by fraud or misrepresentation. The board shall take action against any licensee whose license was issued by mistake. 3855. The board may take action against any polysomnographic technologist who is charged with unprofessional conduct in administering, or attempting to administer, direct or indirect polysomnography or polysomnography-related respiratory care services. Unprofessional conduct includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe polysomnography or polysomnography-related procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision of Section 3850. The board may determine unprofessional conduct involving any and all aspects of polysomnography or polysomnography-related respiratory care services performed by anyone licensed as a polysomnographic technologist. 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. 3856. (a) A polysomnographic technologist who provides polysomnography or polysomnography-related respiratory care services may be ordered to undergo a professional competency examination approved by the board if, after investigation and review by one or more polysomnography technologist and respiratory care practitioner consultants of the board, there is reasonable cause to believe that the person providing polysomnography or polysomnography-related respiratory care services is unable or unwilling to practice polysomnography or polysomnography-related respiratory care services with reasonable skill and patient safety. Reasonable cause shall be determined by the board and may include, but shall not be limited to, the following: (1) Negligence. (2) A pattern of inappropriate direct or indirect administration of polysomnography or polysomnography-related respiratory care services protocols, procedures, therapeutic regimens, or diagnostic testing of monitoring techniques. (3) An act of incompetence or negligence causing death or serious bodily injury. (4) A pattern of substandard care. (5) Violation of any provision of this chapter. (b) The matter shall be presented by the board's executive officer or designee by way of a written petition detailing the reasonable cause. The petition shall contain all conclusions and facts upon which the presumption of reasonable cause is based. A copy of the petition shall be served on the person who shall have 45 days after receipt of the copy of the petition to file written opposition to the petition. Service of the petition and any order shall be in accordance with the methods of service authorized by subdivision (c) of Section 11505 of the Government Code. (c) The board shall review the petition and any written opposition from the person who has charges brought against him or her, or the board may hold a hearing in accordance with the Administrative Procedures Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code) to determine if reasonable cause exists, as specified in subdivision (a). The person who has charges brought against him or her shall have the right to be represented at that hearing by a person of his or her choice. If the board is satisfied that reasonable cause exists that is considered by the board as unprofessional conduct, the board shall issue an order compelling the person who has charges brought against him or her to undergo an examination of professional competency, as measured by community standards. For purposes of this section, "community standards" means the statewide standards of the community of licensees. Failure to comply with the order duly served on the person charged shall constitute unprofessional conduct for purposes of disciplinary proceedings and failure to pass the examination shall result in denial, suspension, or revocation of the license, which shall be determined by the board in its discretion. (d) If the board proceeds pursuant to Sections 3855 and 3856, and the person charged passes the professional competency examination administered, the board shall be precluded from filing an accusation of incompetency based solely on the circumstances giving rise to the reasonable cause for the examination. (e) If the board determines there is insufficient cause to file an accusation based on the examination results, then all agency records of the proceedings, including the petition and order for the examination, investigative reports, if any, reports of staff or the board's consultants, and the reports of the examiners, shall be kept confidential and shall not be subject to discovery or subpoena. 3857. The board may refuse to issue a license or an applicant work permit whenever it appears that the applicant may be unable to practice his or her profession safely due to mental illness or chemical dependency. The procedures set forth in Section 820 shall apply to any denial of a license or work permit pursuant to this section. 3858. (a) Any employer of a polysomnographic technologist shall report to the board the suspension or termination for cause of any technologist in their employ. The reporting required herein shall not act as a waiver of confidentiality of medical records. The information reported or disclosed shall be kept confidential except as provided in subdivision (c) of Section 800, and shall not be subject to discovery in civil cases. (b) For purposes of the section, "suspension or termination for cause" is defined to mean suspension or termination from employment for any of the following reasons: (1) Use of controlled substances or alcohol to an extent that it impairs the ability to safely practice polysomnography and polysomnography-related respiratory care services. (2) Unlawful sale of controlled substances or other prescription items. (3) Patient neglect, physical harm to a patient, or sexual contact with a patient. (4) Falsification of medical records. (5) Gross incompetence or negligence. (6) Theft from patients, other employees, or the employer. (c) Failure of an employer to make a report required by this section is punishable by an administrative fine not to exceed fifteen thousand dollars ($15,000) per violation. 3858.5. If a licensee has knowledge that another person may be in violation of, or has violated, any of the statutes or regulations administered by the board, the licensee shall report this information to the board in writing and shall cooperate with the board in furnishing information or assistance as may be required. 3858.6. (a) In addition to the reporting required under Section 3858, an employer shall also report to the board the name, professional licensure type and number, and title of the person supervising the licensee who has been suspended or terminated for cause, as defined in subdivision (b) of Section 3858. If the supervisor is a licensee under this chapter, the board shall investigate whether due care was exercised by that supervisor in accordance with this chapter. If the supervisor is a health professional, licensed by another licensing board under this division, the employer shall report the name of that supervisor and any and all information pertaining to the suspension or termination for cause of the person licensed under this chapter to the appropriate licensing board. (b) The failure of an employer to make a report required by this section is punishable by an administrative fine not to exceed fifteen thousand dollars ($15,000) per violation. 3859. Pursuant to Section 43.8 of the Civil Code, no person shall incur any civil penalty as a result of making any report required by this chapter. Article 6. Offenses and Enforcement 3860. (a) No person may practice polysomnography and polysomnography-related respiratory care services or represent himself or herself to be a polysomnographic technologist in this state, without a valid license granted under this chapter, except as otherwise provided in this chapter. (b) For purposes of this section, engaging in the practice of polysomnography and polysomnography-related respiratory care services includes, but is not limited to, representations by a person, whether through verbal claim, sign, advertisement, letterhead, business card, or other representation that he or she is able to perform any polysomnography and polysomnography-related respiratory care services, or performance of any polysomnography-related respiratory care services. (c) A person who is unlicensed, whose polysomnographic technologist license has been revoked or suspended, or whose license is not valid shall not engage in the practice of polysomnography and polysomnography-related respiratory care services, even though the person may continue to hold a certificate or registration issued by a private certifying entity. (d) Except as otherwise provided in this chapter, a person shall not represent himself or herself to be a polysomnographic technologist, or a polysomnographic equipment technician or a polysomnographic technician or use the abbreviation or letters "PSGT" or use any modifications or derivatives of those titles, abbreviations, or letters without a current and valid license issued under this chapter. (e) A person shall not begin practice as an applicant polysomnographic technologist until he or she meets the applicable requirements of this chapter and obtains a valid work permit. (f) A person, company, organization, or corporation shall not knowingly employ or contract with a person who holds himself or herself out to be a polysomnographic technologist without a valid license granted under this chapter, except as otherwise provided in this chapter. 3862. Nothing in this chapter is intended to limit, preclude, or otherwise interfere with the practice of a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000), a registered nurse licensed pursuant to Chapter 6 (commencing with Section 2700), or a respiratory care practitioner, in carrying out authorized and customary duties and functions. 3863. Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor punishable by a fine not exceeding one thousand dollars ($1,000) or imprisonment in a county jail not exceeding six months, or both, for each offense. 3864. Whenever any person has engaged or is about to engage in any acts or practices that constitute or will constitute an offense against this chapter, the superior court of any county, on application of the board, the Medical Board of California, or by 10 or more persons holding respiratory care practitioner licenses or polysomnographic technologist licenses issued under this chapter, may issue an injunction or other appropriate order restraining that conduct. Proceedings under this section shall be governed by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that no undertaking shall be required in any action commenced by the board. 3865. This chapter does not prohibit any of the following activities: (a) The performance of polysomnography and polysomnography-related respiratory care services by a respiratory care practitioner. (b) Self-care by a patient or the gratuitous care by a friend or member of the family of the patient who does not represent or hold himself or herself to be a polysomnographic technologist. (c) The performance by a respiratory care practitioner or polysomnographic technologist of advances in the art and techniques of polysomnography and polysomnography-related respiratory care services learned through formal or specialized training. (d) The performance by a person employed by a home medical device retail facility or by a home health agency licensed by the State Department of Public Health of specific, limited, and basic polysomnography and polysomnography-related respiratory care services as may be identified as "specific, limited, and basic respiratory care or respiratory care related services" authorized by the board pursuant to subdivision (h) of Section 3765. 3866. (a) The board may issue a citation containing an order of abatement and civil penalties against a person who acts in the capacity of, or engages in the business of, a polysomnographic technologist in this state without having a license in good standing issued pursuant to this chapter. (b) The board may issue a citation containing an order of abatement and civil penalties against a person employing or contracting with a person who acts in the capacity of, or engages in the business of, a polysomnographic technologist in this state without having a license in good standing issued pursuant to this chapter. 3867. (a) The board shall issue a citation to a person and to his or her employer or contractor, if, upon inspection or investigation, either upon complaint or otherwise, the following conditions are met: (1) The board has probable cause to believe that the person is acting in the capacity of, or engaging in the practice of, a polysomnographic technologist in this state without having a license in good standing issued pursuant to this chapter. (2) The person is not otherwise exempted from the provisions of this chapter. (b) Each citation issued pursuant to subdivision (a) shall meet all of the following requirements: (1) Be in writing and describe with particularity the basis of the citation. (2) Contain an order of abatement and an assessment of a civil penalty in an amount not less than two hundred dollars ($200) or more than fifteen thousand dollars ($15,000). (c) A person served with a citation may appeal to the board within 15 calendar days after service of the citation with respect to any of the following: (1) The violations alleged. (2) The scope of the order of abatement. (3) The amount of the civil penalty assessed. (d) If, within 15 calendar days after service of the citation, the person cited fails to notify the board that he or she intends to appeal the citation, the citation shall be deemed a final order of the board and not subject to review by any court or agency. The board may extend the 15-day period for good cause. (e) (1) If a person cited under this section notifies the board in a timely manner that he or she intends to contest the citation, the board shall afford an opportunity for a hearing. (2) The board shall thereafter issue a decision, based on findings of fact, affirming, modifying, or vacating the citation, or directing other appropriate relief. (f) With the approval of the board, the executive officer shall prescribe procedures for the issuance and appeal of a citation and procedures for a hearing under this section. The board shall adopt regulations covering the assessment of a civil penalty that shall give due consideration to the gravity of the violation and any history of previous violations. (g) The sanctions authorized under this section shall be separate from, and in addition to, any other civil or criminal remedies. 3868. (a) After the exhaustion of the review procedures provided for in Section 3867, and as adopted by regulation, the board may apply to the appropriate superior court for both of the following: (1) A judgment in the amount of the civil penalty. (2) An order compelling the cited person to comply with the order of abatement. (b) The application described in subdivision (a) shall include a certified copy of the final order of the board. (c) The application described in subdivision (a) shall constitute a sufficient showing to warrant the issuance of the judgment and order. (d) The board may employ collection agencies or other methods in order to collect civil penalties. 3869.3. (a) Notwithstanding any other provision, the board may, by stipulation with the affected licensee, issue a public reprimand, after it has conducted an investigation, in lieu of filing or prosecuting a formal accusation. (b) The stipulation shall contain the authority, grounds, and causes and circumstances for taking that action and by way of waiving the affected licensee's rights, inform the licensee of his or her rights to have a formal accusation filed and stipulate to a settlement thereafter or have the matter in the statement of issues heard before an administrative law judge in accordance with the Administrative Procedures Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code). (c) The stipulation shall be public information and shall be used as evidence in any future disciplinary or penalty action taken by the board. Article 7. Fiscal Administration 3870. The department shall keep a record of its proceedings under this chapter, and a register of all persons licensed under it. The register shall show the name of every living licensed polysomnographic technologist, his or her last known place of residence, or address of record, and the date and number of his or her license as a polysomnographic technologist. Any interested person is entitled to obtain a copy of that list upon application to the department and payment of an amount as may be fixed by the department, which amount shall not exceed the cost of the list so furnished. 3871. Within 10 days after the beginning of each calendar month, the board shall report to the Controller the amount and source of all collections made from persons licensed or seeking to be licensed under this chapter, and all fines and forfeitures to which the board is entitled, and at the same time, pay all these sums into the State Treasury, where they shall be credited to the Respiratory Care Fund, to carry out the purposes of this chapter. 3872. All collections from persons licensed or seeking to be licensed under this chapter shall be paid by the board into the fund after the report to the Controller at the beginning of each month of the amount and source of the collections. 3873. At the time of application for renewal of a polysomnographic technologist license, the licensee shall notify the board of all of the following: (a) Whether he or she has been arrested or convicted of any crime subsequent to the licensee's previous renewal and the details of that arrest or conviction as requested by the board. (b) The name and address of the licensee's current employer or employers. (c) Whether he or she has maintained a current nationally recognized certificate for cardiopulmonary resuscitation and the current expiration date of the certification. 3874. On or before the birthday of a licensee in every other year, following the initial licensure, the board shall mail to the licensee, at the latest address furnished by the licensee, a notice stating the amount of the renewal fee and the date on which it is due. The notice shall state that failure to pay the renewal fee on or before the due date and submit evidence of compliance with Sections 3819 and 3873 shall result in expiration of the license. Each license not renewed in accordance with this section shall expire but may within a period of three years thereafter be reinstated upon payment of all accrued and unpaid renewal fees and penalty fees required by this chapter. The board may also require submission of proof of the applicant's qualifications, except that during the three-year period no examination shall be required as a condition for the reinstatement of any expired license that has lapsed solely by reason of nonpayment of the renewal fee. 3875. The fees applicable to this chapter shall be as follows: (a) The application fee shall be two hundred fifty dollars ($250). The board may increase this fee, by regulation, to an amount not to exceed five hundred dollars ($500). (b) The initial work permit fee shall be one hundred dollars ($100). The board may increase this fee, by regulation, to an amount not to exceed two hundred dollars ($200). (c) An extended work permit fee shall be two hundred dollars ($200). The board may increase this fee, by regulation, to an amount not to exceed four hundred dollars ($400). (d) The licensing fee shall be two hundred dollars ($200) and may be prorated at the board's discretion. The board may increase this fee, by regulation, to an amount not to exceed four hundred dollars ($400). (e) The fee for any examination or reexamination required by the board shall be the actual cost to the board for developing, purchasing, grading, and administering each examination or reexamination. (f) The license renewal fee shall be four hundred dollars ($400). The board may increase this fee, by regulation, to an amount not to exceed six hundred dollars ($600). (g) Delinquency fees shall be in the following amounts: (1) If the license is renewed not more than two years from the date of its expiration, the delinquency fee shall be 50 percent of the renewal fee in effect at the time of renewal. (2) If the license is renewed after two years, but not more than three years, from the date of expiration of the license, the delinquency fee shall be 100 percent of the renewal fee in effect at the time of renewal. (h) The duplicate license fee shall be twenty-five dollars ($25). The board may increase this fee, by regulation, to an amount not to exceed one hundred dollars ($100). (i) The endorsement fee shall be seventy-five dollars ($75). The board may increase this fee, by regulation, to an amount not to exceed one hundred fifty dollars ($150). (j) Costs incurred by the board in order to obtain and review documents or information related to the past and present employment of, criminal history of, rehabilitation of, disciplinary actions taken by another state agency against, or acts of negligence in the practice of polysomnography and polysomnography-related respiratory care services by, an applicant, petitioner, or licensee, shall be paid by the applicant petitioner, or licensee before a license will be issued or reinstated or a subsequent renewal is processed. (k) Fees paid in any form other than check, money order, or cashier's check shall be subject to an additional processing charge equal to the board's actual processing costs. (l) Fees incurred by the board to process return mail shall be paid by the applicant or licensee for whom the charges were incurred. (m) Notwithstanding any other provision of this chapter, the board, in its discretion, may reduce the amount of any fee otherwise prescribed by this section. 3875.5. The fee for an inactive license shall be the same as the renewal fee for the practice of polysomnography and polysomnography-related respiratory care services as specified in Section 3875. 3875.6. (a) A licensee may request that his or her license be placed in a "retired" status at any time, provided the license has not been canceled, and any outstanding fines, cost recovery, and monthly probation monitoring costs are paid in full. (b) An individual with retired status is not subject to any renewal or reporting requirements. (c) Once an individual is placed on retired status, all privileges to practice polysomnography and polysomnography-related respiratory care services are rescinded. If an individual practices with a "retired" license, the individual shall be subject to discipline as prescribed by this chapter for the unlicensed practice of polysomnography and polysomnography-related respiratory care services. 3876. (a) Any person who submits to the board a check for fees that is returned unpaid shall pay all subsequent required fees by cashier' s check or money order. (b) Any person who submits to the board a check for fees that is returned unpaid shall be assessed an additional processing fee as determined by the board. 3877. Where an applicant is issued a license to practice polysomnography and polysomnography-related respiratory care services, and it is later discovered that all required fees have not been paid, approved continuing education is not reported or completed, employer information is not reported, or any other requirements as prescribed by this chapter are not met, the license shall not be renewed or reinstated unless all past and current required fees have been paid and all requirements are met. 3878. Notwithstanding any other provision of law, the board may contract with a collection service for the purpose of collecting outstanding fees, fines, or cost recovery amounts, and may release personal information, including the birth date, telephone number, and social security number of any applicant or licensee for this purpose. The contractual agreement shall provide that the collection service shall not inappropriately use or release personal information, and shall provide safeguards to ensure that the information is protected from inappropriate disclosure. The contractual agreement shall hold the collection service liable for inappropriate use or disclosure of personal information. 3879. For purposes of license verification, a person may rely upon the licensing information as it is displayed on the board's Internet Web site that includes the issuance and expiration dates of any license issued by the board. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.