BILL ANALYSIS Ó
AB 923
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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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