BILL ANALYSIS
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|Hearing Date:March 23, 2009 |Bill No:SB |
| |132 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC
DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 132Author:Denham
As Introduced: February 9, 2009Fiscal: Yes
SUBJECT: Polysomnographic technologists: sleep and wake
disorders. (Urgency)
SUMMARY: An urgency measure that requires the Medical
Board of California to adopt regulations to establish
qualifications for certified polysomnographic
technologists, polysomnographic technicians and
polysomnographic trainees. Would authorize persons who meet
specified education, examination and certification
requirements to use the title "certified polysomnographic
technologist" and engage in the practice of polysomnography
under the supervision and direction of a licensed physician
and surgeon.
Existing law:
1)Provides for the licensing and regulation of physician
assistants by the Physician Assistant Committee (PAC) of
the Medical Board of California (MBC), within the
Department of Consumer Affairs (DCA), and prescribes the
medical services as set forth by the regulations of the
MBC that may be performed by a physician assistant under
the supervision of a licensed physician and surgeon.
2)Provides for the licensing and regulation of respiratory
care practitioners by the Respiratory Care Board of
California (RCB) within DCA.
3)Defines the practice of respiratory care, and prohibits
its practice without a license issued by the RCB, subject
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to certain exceptions.
This bill:
1)Defines "polysomnography" to mean the treatment,
management, diagnostic testing, research, control,
education, and care of patients with sleep and wake
disorders. Includes within the definition:
a) The analysis, monitoring and recording of
physiologic data during sleep and wakefulness to
assist in the treatment of disorders, syndromes, and
dysfunctions that are sleep-related, manifest during
sleep, or disrupt normal sleep activities.
b) The therapeutic diagnostic use of oxygen, the use
of positive airway pressure including continuous
positive airway pressure (CPAP) and bi-level
modalities, adaptive servo-ventilation, and
maintenance of nasal and oral airways that do not
extend into the trachea.
2)Requires the MBC to adopt regulations within one year of
the effective date of the bill, to establish
qualifications for certified polysomnographic
technologists. The quaifications shall require the
following:
a) Valid, current credentials from a national
accrediting agency approved by the MBC.
b) Graduation from an educational program approved by
the MBC.
c) Passage of a national certifying examination
approved by the MBC, or submission of proof to MBC of
at least 5 years of polysomnographic practice. Three
years after the bill becomes effective, all
individuals seeking certification shall have passed
the national certifying examination.
3)Requires applicants for registration to submit
fingerprint images in order to conduct a criminal record
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information search (CORI) through the Department of
Justice to determine whether the applicant has a state or
federal criminal record.
4)Authorizes an individual to use the title "certified
polysomnographic technologist" and to engage in the
practice of polysomnography only under the following
circumstances:
a) The individual is registered with MBC.
b) The individual works under the supervision and
direction of a licensed physician and surgeon.
c) The individual meets the certification
requirements.
5)Requires the MBC to adopt regulations related to the
employment of polysomnographic technicians and trainees.
Requires the MBC to adopt regulations within one year
that establishes the means and circumstances in which a
licensed physician and surgeon may employ
polysomnographic technicians and polysomnographic
trainees.
6)Authorizes the MBC to adopt regulations specifying the
scope of services that may be provided by a
polysmnographic technician or trainee, and to specify the
level of supervision required when working under the
supervision of a certified polysomnographic technologist
or licensed health care professional.
7)Exempts from the requirements, allied health
professionals, including respiratory care practitioners
working within the scope of practice of their license.
8)Authorizes the MBC to deny, suspend, revoke, or otherwise
subject to discipline a registration for any of the
following:
a) Incompetence, gross negligence, or repeated similar
negligent acts performed by the registrant.
b) An act of dishonesty or fraud.
c) Committing any act or being convicted of a crime
constituting grounds for denial of licensure or
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registration, as specified.
9)Requires each registrant to pay a fee to be specified by
MBC, not to exceed $100. Specifies that:
a) The registration shall expire after two years, and
may be renewed biennially for a fee not to exceed $50.
b) The MBC's Contingent Fund shall receive the
registration and renewal fees and shall be used for
the administration of the registration program.
10)States that nothing in the bill shall prohibit a clinic
or health facility from employing a polysomnographic
technologist, as specified.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal"
by Legislative Counsel.
COMMENTS:
1.Note : Last Year's SB 1526 (Perata). This bill is a
reintroduction of last year's SB 1526 (Perata) which was
one of an unprecedented number of bills that were vetoed
by the Governor citing the delay in passing the Budget.
That bill passed this Committee on an 8-0 vote.
2.Purpose. This bill is sponsored by California Sleep
Society (Sponsor) to establish criteria for individuals
assisting licensed physicians in the practice of sleep
medicine. According to the Author, polysomnography
involves monitoring and recording physiological data,
generally while an individual is asleep, to assess and
help treat sleep disorders. The Author indicates that
the practice of polysomnography is a well-established
medical discipline that has been growing in popularity,
and is practiced by licensed physicians who specialize in
sleep medicine, with the aid of trained technicians. The
bill establishes educational requirements, background
checks, and other consumer protections, for those
technicians that aid licensed physicians in the practice
of polysomnography. The bill will also help ensure that
patients are able to continue to seek and receive
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valuable and needed medical services in the area of sleep
medicine, according to the Author.
3.Background. Sleep medicine has been practiced by
licensed physicians for some time and was recognized by
the American Medical Association as a specialty in 1996.
Physician sleep specialists are board certified, and the
American Board of Sleep Medicine is one of the specialty
boards officially recognized and approved by the
California Medical Board.
The Author states "Recently, the California Respiratory
Care Board has threatened to issue significant fines
against those involved in the practice of sleep medicine.
Because of this, uncertainty and concern among trained
medical professionals practicing sleep medicine has
developed, and the availability of these important
medical services has been threatened."
4.Recent Actions by the Respiratory Care Board. On August
24th of 2007, the California Respiratory Care Board
passed a motion to move forward with issuing citations
against entities engaged in the practice of sleep
medicine. According to both the Sponsor and the RCB,
this has caused a great deal of concern and uncertainty
among those who treat sleep disorders and their patients.
Furthermore, the RCB has already initiated
investigations into sleep care physicians for employment
of technicians who are not licensed respiratory
therapists, but the RCB has indicated to Committee staff
that any actions have been put on hold pending the
outcome of this legislation.
According to RCB estimates, there are over 175 sleep
laboratories in California and that 65% of the personnel
are not licensed. The RCB believes these figures will
continue to rise exponentially, because there is a
growing demand for sleep testing, and it is a lucrative
field lacking regulation. Sleep testing is being
performed in homes, hotel rooms, independent and
unregulated facilities, as well as in hospitals according
to RCB.
RCB states that hundreds and possibly thousands of
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unlicensed technicians are working with patients in
vulnerable circumstances where most have not had a
criminal background check and competency testing is
optional. While the RCB is aware of two specific
incidents involving unlicensed sleep technicians and
criminal activity, the Board surmises there are many more
similar cases.
RCB states that there have been numerous reports of
incompetence in this field. Inaccurate testing and
misdiagnoses can result in serious harm to patients and
unnecessary health care costs contributed to retesting.
5.Statistics and facts relating to sleep disorders. To
indicate the scope and breadth of the issues related to
sleep disorders, the Sponsors have stated the following:
It is estimated that 50 million to 70 million
Americans suffer from a chronic sleep disorder.
Almost 20 percent of all serious car-crash injuries
are associated with driver sleepiness.
It is estimated that there are 110,000
sleep-related injuries and 5,000 fatalities each year
in motor vehicle crashes involving commercial trucks.
About six million people suffer from moderate to
severe obstructive sleep apnea (OSA.)
OSA is found in at least 4 percent of men and 2
percent of women in the middle-aged workforce; older
adults (65 to 90 years) are three times more likely to
have OSA than middle-aged adults.
About 80 to 90 percent of adults with OSA remain
undiagnosed.
Insomnia is the most commonly reported sleep
problem, affecting at least 10 percent of adults in
the U.S.; chronic insomnia affects about 30 million
Americans.
Restless legs syndrome and periodic limb movement
disorder affect about 6 million people.
Over the past century the average amount of time
that Americans sleep has decreased by around 20
percent.
About one in 5 adults report that they get an
insufficient amount of sleep (most adults need about 7
to 8 hours of nightly sleep to feel alert and well
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rested).
One out of every 5 workers in industrialized
countries performs shift work (more than 20 million
Americans).
Sleep loss and sleep disorders have been associated
with an increased risk of other health problems such
as high blood pressure, diabetes, obesity, depression,
heart attack and stroke.
The majority of people with sleep disorders have
not yet been diagnosed.
Billions of dollars are spent each year in the U.S.
on the direct costs of sleep loss and sleep disorders
(doctor visits, hospital services, medications, etc.)
1.Related Legislation. SB 1526 (Perata) , as noted under
comment # 1, above, was nearly identical to this bill,
but was ultimately vetoed by the Governor.
SB 1125 (Denham, 2008) would have establishd a new license
category and regulatory scheme under the Respiratory Care
Board for polysomnographic technologists. That bill,
jointly sponsored by California Society for Respiratory
Care (CSRC) and the Respiratory Care Board of California
(RCB) was never set for hearing.
2.RCB Concerns about Polysomnography. In 2001, the RCB
noted its concern with the unlicensed practice of
respiratory care as it relates to polysomnography in its
report to the then Joint Legislative Sunset Review
Committee (JLSRC). In response, the JLSRC included in
its 2002 recommendations to support the RCB's effort to
review the function and skill of currently unlicensed
technicians and further study to determine the need for
regulation.
Over the ensuing years, the RCB reviewed the issues in
detail, considering a number of factors including: the
level of harm of unlicensed practice by various
credentialed and non-credentialed technicians, existing
industry standards, and the demand for sleep studies.
The RCB determined that the most effective alternative to
protect the public from the unlicensed and unqualified
practices of respiratory care and polysomnography is to
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establish a new licensure category for polysomnographic
technologists, however
SB 1125, which proposed to establish that licensing scheme
died without being heard in Committee.
3.Level of Regulation. It is important to note the
distinction between "title regulation" and "practice
regulation." A practice act confers the exclusive right
to practice a given profession on practitioners who meet
specified criteria related to education, experience, and
examination, and often is embodied in a licensing act
(i.e., those who are not licensed cannot lawfully
practice the profession). A practice act is the highest
and most restrictive form of professional regulation, and
is intended to avert severe harm to the public health,
safety or welfare that could be caused by unlicensed
practitioners.
A title act, on the other hand, reserves the use of a
particular professional designation to practitioners who
have demonstrated specified education, experience or
other criteria. A title act typically does not restrict
the practice of a profession or occupation; it merely
differentiates between practitioners who meet the
specified criteria, and are authorized by law to
represent themselves accordingly, and those who do not.
SB 1526 does not establish a full licensing practice act;
neither does it establish a pure title act. The bill is
a modest hybrid proposal which would require those who
engage in the practice of polysomnography or use the
title "certified polysomnographic technologist" to meet
certain education, examination and certification
requirements, work under the supervision and direction of
a licensed physician and surgeon, and undergo a criminal
record clearance.
4.Regulations by the Medical Board of California (MBC).
This bill requires the MBC to adopt regulations regarding
the qualifications for polysomnographic technologists.
It further requires the MBC to approve the entity that
credentials practitioners, educational programs and the
certifying examination. This would seem to be the
appropriate regulatory agency to carry out these
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functions with regard to practitioners who must engage in
practice under the supervision and direction of a
physician and surgeon. This bill appears to set an
appropriate level of competency weighed against the
potential for consumer harm in this area.
5.Arguments in Support. A number of sleep technologists
and sleep medicine physicians have written in support
that the bill will help to ensure that there are uniform
educational requirements, background checks and other
consumer protections for sleep technologists. The
California Medical Association indicates that the bill
establishes the appropriate oversight of healthcare
providers and ensures patient safety.
6.Support if Amended. The Respiratory Care Board of
California (RCB) has taken a support if amended position,
requesting that SB 132 be amended to fully exempt
respiratory care practitioners by removing the exemption
for "working within the scope of practice of their
license." According to the RCB, the amendment would
clarify that there is no question of whether
polysomnography is within their scope of practice of a
respiratory care practitioner.
While the requested amendment would not directly amend the
scope of practice of respiratory care practitioners, the
effect would be that licensed respiratory care
practitioners would be permitted to carry out all of the
functions of a Polysomnographic technologist, regardless
of whether or not they were dealing with
respiratory-related issues relating to sleep disorders.
The Committee may wish to ask the RCB to more-fully
explain the rationale behind the requested amendment.
7.Clarification Needed. There is an apparent inconsistency
in the supervision requirements which should be addressed
by the Author. The bill requires a certified
polysomnographic technologist to work under the
supervision and direction of a physician and surgeon
(Page, 4, line 30), and requires physician and surgeon
supervision with the definition of supervision (Page 3,
line 8). However, the bill authorizes the MBC to adopt
regulations specifying the scope of services that may be
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provided by a polysmnographic technician or trainee, and
to specify the level of supervision required "when
working under the supervision of a certified
polysomnographic technologist or licensed health care
professional" (Page 5, lines 2-3).
The Author should clarify the following issues: (1)
Whether the bill anticipates a different level of
supervision for technicians and trainees than for
certified technologists; (2) What is intended by "working
under the supervision of a . . . licensed health care
professional" (Page 5, lines 2-3).
SUPPORT AND OPPOSITION:
Support:
California Sleep Society (Sponsor)
California Medical Association
Numerous sleep technologists
Numerous sleep medicine physicians
Support if Amended:
Respiratory Care Board of California
Opposition:
None on file as of March 16, 2009
Consultant: G. V. Ayers