BILL ANALYSIS Ó
AB 923
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CONCURRENCE IN SENATE AMENDMENTS
AB
923 (Steinorth)
As Amended August 1, 2016
Majority vote
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|ASSEMBLY: | 78-0 |(January 27, |SENATE: | | |
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Original Committee Reference: B. & P.
SUMMARY: Makes changes to the disciplinary provisions of the
Respiratory Care Practice Act, including creating additional
causes for disciplinary action, specifying that the loss of a
license does not deprive the Respiratory Care Board (RCB) of
jurisdiction to commence with disciplinary proceedings, and
making other technical changes. Specifically, this bill:
1)Provides 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 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 shall not deprive the RCB 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.
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2)Expands the definition of unprofessional conduct to include
any act of abuse towards a patient and any act of
administering unsafe respiratory care procedures, protocols,
therapeutic regimens, or diagnostic testing or monitoring
techniques.
3)Authorizes the RCB 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 statements provided
to the RCB was false 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.
4)Modifies the intent requirement the RCB must prove when an
employer who employs an unlicensed person who presents herself
or himself as a licensed respiratory care practitioner from
"when the employer knew the person was not licensed" to "when
the employer knew or should have known the person was not
licensed."
The Senate amendments:
1)Change the intent requirement from "knowingly" to "knew or
should have known" for 3) and 4) above.
2)Delete the provisions relating to acts against individuals who
are not patients.
3)Make technical and conforming changes.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, this bill will have
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negligible state costs.
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."
Background. The RCB regulates the practice of respiratory care
by respiratory care practitioners (RCPs). 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.
The RCB's enforcement program investigates complaints, issues
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 Respiratory Care Practice Act
authorizes the RCB to pursue disciplinary actions against
licensees for negligence, incompetence, and patterns of
substandard care related to the practice of respiratory care.
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In addition, it is unprofessional conduct for all healing arts
practitioners under the Business and Professions Code 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.
However, the RCB sometimes suspects abuse but is unable to
pursue disciplinary action because the case either ended with
no conviction or the RCB was advised that the conviction would
not likely be deemed to be substantially related to the
practice of a RCP. This bill will expand the definition of
unprofessional conduct for RCPs to include abuse toward
patients, authorizing the RCP to take administrative action
without a conviction.
Known or Should Have Known. In order for the Office of the
Attorney General (OAG) to prove a licensee "knowingly" did
something, the OAG must essentially show that the licensee
willfully violated a requirement or law. This bill lowers the
"knowingly" standard to recklessness, which, in addition to
when a licensee knowingly commits a violation, holds a
licensee accountable for when the licensee reasonably should
have known it would be a violation. For instance, this would
include when a licensee submits a document with false
statements without verifying whether the statements are
actually true.
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.
Analysis Prepared by:
AB 923
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Vincent Chee / B. & P. / (916) 319-3301 FN:
0003734