BILL ANALYSIS Ó AB 923 Page 1 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 AB 923 Page 2 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 § AB 923 Page 3 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 AB 923 Page 4 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 AB 923 Page 5 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. AB 923 Page 6 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 AB 923 Page 7 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 AB 923 Page 8