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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