BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 923          Hearing Date:    June 6,  
          2016
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          |Author:   |Steinorth                                             |
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          |Version:  |May 31, 2016    Amended                               |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Sarah Huchel                                          |
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                      Subject:  Respiratory care practitioners


          SUMMARY:  Makes changes to disciplinary provisions of the Respiratory  
          Care Practice Act. 

          Existing law:
          
          1) Establishes the Respiratory Care Board (Board) of California  
             to implement the Respiratory Care Practice Act (Act).   
             (Business and Professions Code (BPC) § 3710)

          2) States that protection of the public shall be the highest  
             priority for the Board in exercising its licensing,  
             regulatory, and disciplinary functions.  Whenever the  
             protection of the public is inconsistent with other interests  
             sought to be promoted, the protection of the public shall be  
             paramount.  (BPC § 3710.1)

          3) Defines respiratory care as a practice to mean the therapy,  
             management, rehabilitation, diagnostic evaluation, and care  
             of patients with deficiencies and abnormalities which affect  
             the pulmonary system and associated aspects of  
             cardiopulmonary and other systems functions, under the  
             supervision of a medical director.  (BPC § 3702)

          4) Authorizes the Board to order the denial, suspension, or  
             revocation of, or the imposition of probationary conditions  
             upon, a license issued under this chapter, for knowingly  







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             employing unlicensed persons who present themselves as  
             licensed respiratory care practitioners.  (BPC § 3750)

          5) States that 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. (BPC §  
             3755)

          This bill:

          1)Modifies the scienter requirement from "knowingly" to "knew or  
            should have known" for an employer who employs an unlicensed  
            person who presents herself or himself as a licensed  
            respiratory care practitioner when the employer knew or should  
            have known the person was not licensed.  
          2)States that the expiration, cancellation, forfeiture, or  
            suspension of a license, practice privilege, or other  
            authority to practice respiratory care by operation of law, by  
            order or decision of the Board, or a court of law; the  
            placement of a license on a retired status; or the voluntary  
            surrender of the license by a licensee shall not deprive the  
            Board of jurisdiction to commence or proceed with any  
            investigation of, or action or disciplinary proceeding  
            against, the licensee, or to render a decision to suspend or  
            revoke the license.

          3)States that unprofessional conduct includes, but is not  
            limited to:

             a)   Any act of administering unsafe respiratory care  
               procedures, protocols, therapeutic regimens, or diagnostic  
               testing or monitoring techniques; or,

             b)   Any act of abuse towards a patient.

          4)Authorizes the Board to order the denial, suspension, or  
            revocation of, or the imposition of probationary conditions  
            upon, a license of a licensee who knowingly provides false  
            statements or should have known that the provided to the Board  
            was false on any form provided by the Board or to any person  
            representing the Board during an investigation, probation  
            monitoring compliance check, or any other enforcement-related  








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            action.

          5)Makes technical changes. 
          

          FISCAL  
          EFFECT:  According to the Assembly Appropriations Committee  
          analysis dated January 21, 2016, any costs from this bill to the  
          Board are minor and absorbable (Respiratory Care Fund). 
          
          COMMENTS:
          
         1.Purpose.  This bill is sponsored by the  California Society for  
            Respiratory Care  .  According to the Author's office, "The  
            goals of AB 923 are aimed at the very core of the Respiratory  
            Care Board's mandate to protect its most vulnerable consumers.  

         AB 923 ensures that the commission of an act of neglect,  
            endangerment, or abuse is grounds for discipline by the  
            Respiratory Care Board; California's Respiratory Care Board  
            can maintain disciplinary jurisdiction over cases, even if a  
            licensee allows their license to expire."

          2. Background.   The Board regulates a single category of health  
             care workers - respiratory care practitioners (RCPs).  RCPs  
             are specialized health care workers who work under the  
             supervision of medical directors and are involved in the  
             prevention, diagnosis, treatment, management, and  
             rehabilitation of problems affecting the heart and lungs.   
             RCPs provide treatments for patients who have breathing  
             difficulties, including those dependent upon life support,  
             and treat those with acute and chronic diseases, including  
             Chronic Obstructive Pulmonary Disease, trauma victims, and  
             surgery patients.  They are typically employed in hospitals,  
             however, a growing number of RCPs work in alternative  
             settings like skilled nursing facilities, physician offices,  
             hyperbaric oxygen therapy facilities and sleep laboratories.   
             There are over 34,000 RCP licensees in California.
          
          3. 2013 Sunset Review.  According to the Board's 2013 Sunset  
             Review, the Board believes there are roadblocks within the  
             Act that prevent administrative suspension or discipline for  
             egregious criminal offenses committed by RCPs.  The Board  
             stated that many Deputy Attorneys General (DAGs) believe the  








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             Board's existing law does not allow it to pursue  
             administrative suspension or discipline for some sexually  
             related crimes, or even in a case where the RCP was arrested  
             for attempted murder, unless there is a conviction.  The  
             Board has found that DAGs are often reluctant to take action  
             solely based on "a corrupt act;" for example, because the  
             language is too broad. 
             
             This bill is intended to clarify the parameters for the  
             administration of discipline in the Act by adding examples of  
             what constitutes "unprofessional conduct";  modifies the  
             scienter requirement to prove an employer acted unlawfully;  
             prohibits the provision of false information by a licensee;   
             and clarifies that the Board has jurisdiction over any  
             individual who violates the Act regardless of the expiration,  
             cancellation, forfeiture, surrender, retirement, or  
             suspension of a license, practice privilege, or other  
             authority to practice respiratory care by operation of law,  
             by order or decision of the Board, or a court of law.  

             It should be noted, however, that while it is important for  
             the Board to police its licensees for conduct dangerous to  
             patients, it is equally critical that licensees are afforded  
             appropriate due process for any real or perceived  
             transgressions, and discipline is not meted out based on  
             insubstantial evidence.  These amendments are not intended to  
             reduce the burden of proof for the Board, but rather provide  
             further guidance in administering the Act.    

          4. Arguments in Support.   The Board  and the  California Society  
             for Respiratory Care  write that this bill will strengthen  
             legal framework in the Act related to disciplinary actions,  
             which will further the consumer protection mandate of the  
             Board and allow it to effectively regulate the Respiratory  
             Care profession in California.   

          
          SUPPORT AND OPPOSITION:
          
           Support:  

          California Society for Respiratory Care (sponsor)
          The Respiratory Care Board of California









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           Opposition:  None on file. 


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