H. B. 2714
(By Delegates Gallagher, Rutledge and Huntwork)
[Introduced March 25, 1993; referred to the
Select Committee on Health Care Policies then Finance.]
A BILL to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-three,
relating to creating a state board for respiratory care
practitioners; license required to practice; scope of
practice defined; definitions; board members; board powers
and duties; criteria for licensing; renewal, reinstatement
fees and penalties for licensure; exemption from licensing;
revocation or suspension of licensure; providing a
grandfather clause; disciplinary criteria and exceptions.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-three, to
read as follows:
ARTICLE 33. BOARD OF RESPIRATORY CARE PRACTITIONERS.
§30-33-1. License required to practice.
In order to protect the life, health and safety of the
public, any person practicing or offering to practice as a
respiratory care practitioner is required to submit evidence that
he or she is qualified to practice, and is licensed as provided
in this article. After the thirtieth day of June, one thousand
nine hundred ninety-three, it is unlawful for any person not
licensed under the provisions of this article to practice as a
respiratory care practitioner in this state, or to use any title,
sign, card, or device to indicate that the person is a
respiratory care practitioner except, a respiratory care
practitioner licensed by the board of respiratory care may use
the title respiratory care practitioner and the designation RCP.
§30-33-2. Practice of respiratory care defined.
"Respiratory Care" means rendering or offering to render to
individuals, groups, organizations or other public any service
involving the evaluation of cardiopulmonary function, the
treatment of cardiopulmonary impairment, the assessment of
treatment effectiveness and the care of the patient, with
deficiencies and abnormalities associated with the
cardiopulmonary system, performed upon the written prescription
or verbal order, and under the supervision of a licensed
physician. The practice of respiratory care includes:
(1) Obtaining, analyzing, testing, measuring and monitoring
blood and gas samples in the determination of the cardiopulmonary
parameters and related physiological data, including flows,
pressures and volumes and the use of equipment employed for thispurpose;
(2) Administering monitoring, recording the results of and
instructing in the use of medical gases, aerosols and
bronchopulmonary hygiene techniques, including drainage,
aspiration, sampling and applying, maintaining and instructing in
the use of artificial airways, ventilators, and other life
support equipment employed in the treatment of cardiopulmonary
impairment and provided in collaboration with other licensed
health care professionals responsible for providing care;
(3) Performing cardiopulmonary resuscitation and respiratory
rehabilitation techniques;
(4) Administering medications for the testing or treatment
of cardiopulmonary impairment upon the written prescription or
verbal order and under the supervision of a licensed physician.
The practice of respiratory care may be performed in any
clinic, hospital, skilled nursing facility and private dwelling;
or other place deemed appropriate or necessary by the board; in
accordance with the prescription or verbal order of a licensed
physician and shall be performed under the direction of a
qualified medical director.
§30-33-3. Definitions.
(a) "Board" means the state board for respiratory care.
(b) "Formal training" is a supervised, deliberate and
systematic educational activity in the affective, psychomotor and
cognitive domains. It is intended to develop new proficiencies
with an application in mind; it is presented with attention toneeds, objectives, activities and a defined means of evaluation.
The training is approved by a local, regional or national
accrediting agency. In the allied health field, it includes
supervised preclinical (didactic and laboratory) and clinical
activities. It also includes an evaluation of competence through
standardized tests determined to be valid and reliable.
(c) "Qualified medical director" means the medical director
of any inpatient or outpatient respiratory care service,
department or home care agency. He or she shall be a licensed
physician who is knowledgeable in the diagnosis and treatment of
respiratory problems. This physician is responsible for the
quality, safety and appropriateness of the respiratory services
provided and requires that respiratory care be ordered by a
physician who has medical responsibility for the patient.
(d) "Respiratory care" means the allied health profession
responsible for the treatment, management, diagnostic testing,
control and care of patients with deficiencies and abnormalities
associated with the cardiopulmonary system performed under the
direction of a qualified medical director and includes
"Inhalation Therapy" and "Respiratory Therapy."
(e) "Respiratory care assistant" means one who has received
on the job training in respiratory care with no formal
educational background in respiratory care.
(f) "Respiratory care practitioner" means a person who holds
a mandatory license approved by the board. The term "respiratory
care practitioner" includes the following:
(1) "Respiratory therapist" means an individual who has
successfully completed a training program accredited by the
American medical association's committee on allied health
education and accreditation in collaboration with the joint
review committee for respiratory therapy education or their
successor organizations, and who has successfully completed the
registry examination for respiratory therapists administered by
the National Board of Respiratory Care, Inc.;
(2)"Respiratory care technician" means an individual who has
successfully completed a training program accredited by the
American medical association's committee on allied health
education & accreditation in collaboration with the joint review
committee for respiratory therapy education or their successor
organizations, and who has successfully completed the entry level
certification examination for respiratory care technicians
administered by the National Board of Respiratory Care, Inc.;
(3)"Graduate respiratory care practitioner" means an
individual who has graduated from an accredited educational
program and is waiting to sit for the next available entry-level
certification exam that will be administered by the National
Board of Respiratory Care, Inc.
(4)"Student respiratory care practitioner" means:
(i) An individual in an enrolled program, accredited by the
American medical association's committee on allied health
education & accreditation in collaboration with the joint review
committee for respiratory therapy education or their successororganizations and whose sponsoring educational institution
assumes responsibility for the supervision of and the services
rendered by the student respiratory care practitioner while he or
she is functioning in a clinical training capacity; or
(ii) An individual enrolled in an education and training
program, accredited by the American medical association's
committee on allied health education & accreditation in
collaboration with the joint review committee for respiratory
therapy education or their successor organizations and who is
also employed for compensation to provide respiratory care
services.
§30-33-4. Board of respiratory care.
(a) The governor shall appoint a board consisting of five
members, all citizens of the United States and residents of this
state. There shall be one public member, one physician member
who is licensed in West Virginia with board certification and
clinical training and experience in the management of pulmonary
disease, and three members engaged in the practice of respiratory
care for a period of no less than five years immediately
preceding their appointment to the board. The West Virginia
society for respiratory care or its successor organization shall
recommend to the governor individuals to be considered for such
appointments, on or before the first day of June each year and at
such other time or times as a vacancy on the board exists.
(b) The governor shall appoint the members of the board for
terms of four years. The terms of office of the members firstappointed shall begin when they are appointed and shall continue
thereafter for the following periods: One physician and one
respiratory care practitioner for a period of three years; one
public member, and two respiratory care practitioners for a
period of four years. Upon the expiration of such terms and all
terms thereafter, the governor shall appoint a successor for the
member whose term expires for a term of four years, with no
member being appointed for more than three consecutive terms and
with the respiratory care practitioner's members being licensed
under the provisions of this article. Vacancies in the board
shall be filled by appointment by the governor in like manner for
the balance of an unexpired term and each member shall serve
until his or her successor is appointed and qualified.
(c) Upon expiration of the term of a physician member, the
West Virginia medical association shall submit a list of three
physicians qualified to serve for the position vacated.
Appointments may be made from these lists by the governor and
additional lists may be provided by other organizations if
requested by the governor.
(d) The governor may remove any member from the board for
neglect of any duty required by law or for incompetency or
unethical or dishonorable conduct.
§30-33-5. Board operating procedures.
(a) The board shall meet at least twice a year and shall
elect annually, a chairperson and a vice chairperson from its
members. The board may convene at the request of the chairpersonor as the board may determine for such other meetings as may be
deemed necessary to transact its business.
(b) A majority, three members of the board including the
chairperson or vice chairperson, constitute a quorum at any
meeting and a majority of the required quorum is sufficient for
the board to take action by vote. The board members shall
receive travel and other necessary expenses actually incurred
while engaged in board activities up to a maximum of two hundred
dollars per board meeting. All reimbursement of expenses shall
be paid out of the board of respiratory care fund created in
subsection (b), section seven of this article.
(c) The board may appoint and employ a qualified person who
is not a member of the board to serve as administrative secretary
to the board and define the duties of the administrative
secretary, in addition to those enumerated in this article.
§30-33-6. Board responsibilities.
The board shall:
(a) License and renew the licenses of duly qualified
applicants;
(b) Maintain an up-to-date list of every living person
licensed to practice respiratory care under this article. The
list shall show the licensee's last known place of employment,
last known place of residence and the date and number of his or
her license;
(c) Cause the prosecution of all persons violating this
article and incur the necessary expenses therefore;
(d) Keep a record of all proceedings of the board and such
record shall be made available to the public for inspection
during reasonable business hours;
(e) Conduct hearings upon charges calling for discipline of
a licensee, or denial, revocation or suspension of a license;
(f) Maintain an up-to-date list of persons whose licenses
have been suspended, revoked or denied. This list shall include
the names, social security numbers, type and cause of action,
date and penalty incurred and the length of penalty. This list
shall be available for public inspection during reasonable
business hours. This list shall be supplied to similar boards in
other states upon request;
(g) Establish rules pursuant to chapter twenty-nine-a of
this code for requirements of continuing education and any other
requirements necessary for relicensure;
(h) Maintain records for continuing education.
§30-33-7. Powers of the board.
(a) The board may:
(1) Adopt such rules pursuant to article twenty-nine-a of
this code not inconsistent with the law as may be necessary to
enable it to carry into effect the provisions of this article;
(2) Employ such personnel as necessary to perform the
functions of the board and pay such personnel exclusively from
the board of respiratory care fund;
(3) Establish relicensure requirements and procedures as
deemed appropriate;
(4) Secure the services of resource consultants as deemed
necessary by the board. Resource consultants shall receive
travel and other necessary expenses, consistent with state laws
and policies, incurred while engaged in consultative service to
the board. All reimbursement and expenses shall be paid
exclusively from the board of respiratory care fund as noted in
subsection (b) of this section;
(5) Fix appropriate and reasonable fees for mandatory
licensure and shall periodically review and modify these fees as
necessary;
(b) All moneys paid to the board shall be accepted by a
person designated by the board and deposited by this person with
the treasurer of the state and credited to an account to be known
as the "Board of Respiratory Care Fund." The reimbursement of
all reasonable and necessary expenses actually incurred by
members of the board, as well as the cost of the employment of
personnel or resource consultants shall be paid from such fund
and no part of the state's general revenue fund shall be expended
for this purpose.
§30-33-8. Issuance of license; renewal of license; renewal fee;
display of license.
(a) When the board finds that an applicant meets all of the
requirements of this article for a license to engage in the
practice of respiratory care, it shall forthwith issue to that
person a license. Otherwise, the board shall deny the
application.
(b) Every licensee shall renew his or her license on or
before the first day of January of each year by payment of a fee
established by the board. Any license which is not so renewed
shall automatically lapse. A license which has lapsed, may be
renewed, within five years of its expiration date by meeting the
requirements set forth by the board and payment to the board of
the appropriate renewal fee for each year or part thereof during
which the license was not renewed. After the expiration of such
five-year period, a license may be renewed only by complying with
the provisions herein relating to the issuance of an original
license.
(c) A licensee desiring to cease engaging in the practice of
respiratory care temporarily shall send written notice to the
board. Upon receipt of the notice, the board shall place the
name of the person upon the inactive list. While the persons
name remains on this list, the person is not subject to the
payment of any fee and shall not engage in the practice of
respiratory care in this state. When the person again desires to
engage in the practice of respiratory care within the five-year
period, application for the renewal of the license and payment of
a renewal fee for the then current year shall be made to the
board.
The board may deny any application for renewal of a license
or reactivation of an inactive license for any reason which would
justify the denial of an original application for a license as
specified in section thirteen of this article.
(e) The board shall prescribe the form of licenses.
§30-33-9. Criteria for licensure.
(a) An applicant for a license to practice respiratory care
shall submit to the board written evidence, verified by oath,
that the applicant:
Has completed a respiratory care educational program. A
respiratory care educational program means a program accredited
by the American medical association's committee on allied health
education and accreditation (CAHEA) in collaboration with the
joint review committee for respiratory therapy education (JRCRTE)
or their successor organizations.
(b) The board may issue a license to practice respiratory
care by reciprocity to:
An applicant who is currently licensed to practice
respiratory care under the laws of another state, territory or
country if the qualifications of the applicant are deemed by the
board to be board to be equivalent to those required in this
state.
(c) The board may issue a license to practice respiratory
care by endorsement:
Respiratory therapist and respiratory care technicians
holding credentials conferred by the National Board for
Respiratory Care, Inc. or its successor organizations, if the
credentials have not been suspended or revoked.
(d) Applicants applying under the conditions of this section
shall be required to certify under oath that their credentialshave not been suspended or revoked.
§30-33-10. Temporary permits.
Upon payment of a proper fee the board may issue a temporary
permit to practice respiratory care under the following
conditions:
(a) A temporary permit may be granted for a period of six
months to an applicant who is currently practicing, or has within
the last twelve months practiced respiratory care in another
state, territory or country, pending compliance with the
requirements for licensing, providing the applicant shows written
evidence, verified by oath.
(b) A temporary permit may be granted to a graduate of a
respiratory care program accredited by the joint review committee
for respiratory therapy education, or its successor
organizations, for a period of one year from the date of
graduation.
(c) A temporary permit may be granted to a student actively
enrolled in a respiratory care program accredited by the joint
review committee for respiratory therapy education, or its
successor organizations.
§30-33-11. Grandfather clause.
After the establishment of the board of respiratory care a
license shall be issued to applicants who at the time of the
effective date of this article, have passed the national board of
respiratory care examinations, or their equivalent as approved by
the board. Other applicants who have not passed either of thesenational board of respiratory care examinations or their
equivalent at the time of the effective date of this article, and
who through written evidence verified by oath, demonstrate that
they were functioning in the capacity of a respiratory care
practitioner as defined by this article, shall be given license
to practice respiratory care. An applicant must have been
practicing in the role of respiratory care providers for a period
of one year at the effective date of this article.
§30-33-12. Professional identification.
(a) A person holding a license to practice respiratory care
in this state may use the title "respiratory care practitioner"
and the abbreviation "RCP."
(b) A licensee shall show his or her license to their
employer or prospective employer when requested.
§30-33-13. Disciplinary Criteria.
The board may revoke, suspend or refuse to renew any license
or place on probation, or otherwise reprimand a licensee or
permit holder or deny a license to an applicant if it finds that
the person:
(a) Is guilty of fraud or deceit in procuring or attempting
to procure a license or renewal of a license to practice
respiratory care;
(b) Is guilty of negligence, or gross misconduct;
(c) Is habitually intemperate in the use of alcoholic
beverages;
(d) Is addicted to, or has improperly obtained, possessed,used or distributed habit-forming drugs or narcotics;
(e) Is convicted of a felony;
(f) Is guilty of unethical conduct as determined by the
board of respiratory care;
(g) Has practiced respiratory care after his or her license
or permit has expired or has been been suspended;
(h) Has practiced respiratory care under cover of any permit
or license illegally or fraudulently obtained or issued;
(i) Has violated or aided or abetted others in violation of
any provision of this article.
§30-33-14. Due process procedure.
(a) Upon filing of written complaint with the board,
charging a person with being guilty of any of the acts described
in section thirteen, the administrative secretary or other
authorized employee of the board shall make an investigation. If
the board finds reasonable grounds for the complaint, a time and
place for a hearing shall be set, notice of which shall be served
on the licensee, permit holder or applicant at least fifteen
calendar days prior thereto. The notice shall be by personal
service or by certified or registered mail sent to the last known
address of the person.
(b) The board may petition the circuit court for the county
within which the hearing is being held to issue subpoenas for the
attendance of witnesses and the production of necessary evidence
in any hearing before it. Upon request of the respondent or his
or her counsel, the board shall petition the court to issuesubpoenas in behalf of the respondent. The circuit court upon
petition may issue such subpoenas as it deems necessary.
(c) Unless otherwise provided in this article, hearing
procedures shall be promulgated in accordance with, and a person
who feels aggrieved by a decision of the board may take an appeal
pursuant to, the administrative procedures of this state.
§30-33-15. Exceptions.
(a) A person may not practice respiratory care or represent
himself or herself to be a respiratory care practitioner unless
he or she is licensed under this article, except as otherwise
provided by this article.
(b) This article does not prohibit:
(1) The practice of respiratory care which is an integral
part of the program of study by students enrolled in respiratory
care education programs recognized by the joint review committee
for respiratory therapy education and the American medical
association council on allied health education or their
successors. Students enrolled in respiratory care education
programs shall be identified as "student-rcp" and may only
provide respiratory care under clinical supervision;
(2) Self-care by a patient, or gratuitous care by a friend
or family member who does not represent or hold himself out to be
a respiratory care practitioner;
(3) Respiratory care services rendered in the course of an
emergency;
(4) Persons in the military services or working in federalfacilities providing respiratory care services when functioning
in the course of their assigned duties;
(5) The respiratory care practitioner from performing
advances in the art and techniques of respiratory care learned
through formalized or specialized training.
(c) Nothing in this article is intended to limit, preclude
or otherwise interfere with the practices of other persons and
health care providers licensed by appropriate agencies of the
state of West Virginia.
(d) An individual who has demonstrated his or her competency
in one or more areas covered by this article may perform only
those functions that he or she is qualified by examination to
perform. The standards of the national commission for health
certifying agencies shall serve to evaluate those examining
organizations.
§30-33-16. Practice of medicine prohibited.
Nothing in this article may be construed to permit the
practice of medicine.
NOTE: The purpose of this bill is to create a board of
respiratory care practitioners and provide for licensing and
regulation of this profession.
This article is new; therefore, strike-throughs and
underscoring have been omitted.