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 ----------------------------------------------------------------- |Author: |Steinorth | |----------+------------------------------------------------------| |Version: |May 31, 2016 Amended | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Sarah Huchel | |: | | ----------------------------------------------------------------- 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 AB 923 (Steinorth) Page 2 of ? 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 AB 923 (Steinorth) Page 3 of ? 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 AB 923 (Steinorth) Page 4 of ? 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 AB 923 (Steinorth) Page 5 of ? Opposition: None on file. -- END --