BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  January 12, 2016


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                Susan Bonilla, Chair


          AB 923  
          Steinorth - As Amended January 4, 2016


          SUBJECT:  Respiratory care practitioners.


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


          EXISTING LAW:


          1)Provides that the commission of an act of sexual abuse,  
            misconduct, or relations with a patient, client, or customer  
            constitutes unprofessional conduct and grounds for  
            disciplinary action for any healing arts licensee under  
            Division 2 of the Business and Professions Code (BPC), under  
            any initiative act referred to in Division 2 of the BPC, and  
            under Chapter 17 (commencing with Section 9000) of Division 3  
            of the BPC.  (BPC § 726)


          2)Requires each board under the BPC to develop criteria to  
            determine whether a crime or act is substantially related to  








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            the qualifications, functions, or duties of the business or  
            profession it regulates, when considering the denial,  
            suspension, or revocation of a license.  (BPC § 481)


          3)Establishes the RCB, under the Department of Consumer Affairs  
            (DCA), to regulate the practice of respiratory care by  
            Respiratory Care Practitioners (RCPs) and enforce the  
            Respiratory Care Practice Act (RCPA).  (BPC §§ 3700-3779)


          4)Authorizes the RCB to order the denial, suspension, or  
            revocation of or the imposition of probationary conditions  
            upon a license for causes specified under the RCPA, including  
            negligence, incompetence, or the conviction of a crime that  
            substantially relates to the qualifications of a RCP.  (BPC §  
            3750)


          5)Provides that a crime involving bodily injury or attempted  
            bodily injury is considered a crime substantially related to  
            the qualifications, functions, or duties of a RCP.  (BPC §  
            3752.5)


          6)Provides that a crime involving sexual misconduct or attempted  
            sexual misconduct, whether or not with a patient, is  
            considered a crime substantially related to the  
            qualifications, functions, or duties of a RCP.  (BPC § 3752.6)


          7)Authorizes the RCB to take action against a RCP who is charged  
            with unprofessional conduct.  Unprofessional conduct includes  
            repeated acts of clearly administering directly or indirectly  
            inappropriate or unsafe respiratory care procedures,  
            protocols, therapeutic regimens, or diagnostic testing or  
            monitoring techniques, and any violation for which the RCB may  
            order the denial, suspension, or revocation of, or the  
            imposition of probationary conditions upon a license.  (BPC §  








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            3755)


          THIS BILL:


          8)Authorizes the RCB to order the denial, suspension, or  
            revocation of, or the imposition of probationary conditions  
            upon a license for, if the licensee is a mandated reporter or  
            required to report under sections 11160-11174.3 of the Penal  
            Code, the commission of an act of neglect, endangerment, or  
            abuse involving a person under 18 years of age, a person 65  
            years of age or older, or a dependent adult, as specified,  
            without regard to whether the person is a patient.
          9)Authorizes the RCB to order the denial, suspension, or  
            revocation of or the imposition of probationary conditions  
            upon a license for knowingly providing false statements or  
            information on any form provided by the RCB or to any person  
            representing the RCB during an investigation, probation  
            monitoring compliance check, or any other enforcement-related  
            action.


          10)Provides that the expiration, cancellation, forfeiture, or  
            suspension of a license, practice privilege, or other  
            authority to practice respiratory care by operation of law or  
            by order or decision of the RCB or a court of law, the  
            placement of a license on a retired status, or the voluntary  
            surrender of the license by a licensee does not deprive the  
            RCB of jurisdiction to commence or proceed with any  
            investigation of or disciplinary action against the licensee  
            or to render a decision to suspend or revoke the license.


          11)Expands the definition of unprofessional conduct to include  
            an act of abuse toward a patient. 


          12)Provides that no reimbursement is required by the bill  








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            pursuant to Section 6 of Article XIIIB of the California  
            Constitution, as specified.


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


          COMMENTS:


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


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


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


          The RCB's enforcement program investigates complaints, issues  








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


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


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


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









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


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


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


          Previous/Prior Related Legislation.  SB 531 (Bates), Chapter  
            261, Statutes of 2015, among other things, provided that the  
            expiration, cancellation, forfeiture, or suspension of a  
            license, registration, or other authority to practice by  
            operation of law or by order or decision of the board or a  








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            court of law, the placement of a license on a retired status,  
            or the voluntary surrender of a license or registration by a  
            licensee or registrant, of any license or registration within  
            the authority of the board, shall not deprive the Board of  
            Behavioral Sciences of jurisdiction to commence or proceed  
            with any investigation of, or action or disciplinary  
            proceeding against, the licensee or registrant or to render a  
            decision suspending or revoking the license or registration.


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


          REGISTERED SUPPORT:  


          Respiratory Care Board of California (sponsor)


          California Society for Respiratory Care (sponsor)




          REGISTERED OPPOSITION:  
          None on file.




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








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