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.