Senate Bill No. 122

(By Senators Sharpe, Minard, Ross, Chernenko,

Helmick, Blatnik, Schoonover, Anderson and Whitlow)

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[Introduced January 27, 1994; referred to the Committee
on Health and Human Resources; and then to the Committee
on Finance.]

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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-four, relating to creating a self-supporting state board for respiratory care practitioners; requiring a license to practice; defining the scope of practice and related terms; specifying board composition, powers, responsibilities and operating procedures; establishing criteria and fees for issuing, renewing and reinstating full and limited licenses and temporary permits; creating penalties for nonlicensure; exempting certain categories from licensure; providing a grandfather clause; setting standards for disciplinary action, license revocation and suspension, and due process; and delineating 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-four, to read as follows:
ARTICLE 34. BOARD OF RESPIRATORY CARE PRACTITIONERS.

§30-34-1. 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 thirty-first day of December, one thousand nine hundred ninety-four, it is unlawful for any person not licensed under the provisions of this article to practice as a respiratory care practitioner in this state, to deliver any portion of the description of services or scope of practice, or to use any title, sign, card or device to indicate that he or she is a respiratory care practitioner except that a respiratory care practitioner licensed by the board of respiratory care may use the title respiratory care practitioner and the designation RCP.
The practice of respiratory care may be performed in any clinic, hospital, skilled nursing facility, 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 under the direction of a qualified medical director.
§30-34-2. Definitions.

(a) "Board" means the state board for respiratory care.
(b) "Department" means the department of health and human resources.
(c) "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 to needs, objectives, activities and a defined means of evaluation. The training is approved by a local, regional or national accrediting agency recognized by the board. 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.
(d) "Practice of respiratory care" means rendering or offering to render to individuals, groups, organizations or the public any service involving the evaluation of cardiopulmonary function, the treatment of cardiopulmonary impairment, the assessment of treatment effectiveness and the care of patients who have 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, blood gases, electrolytes and gas samples in the determination of the cardiopulmonary parameters and relatedphysiological data, including flows, pressures and volumes, and the use of equipment employed for this purpose;
(2) Administering monitoring, recording the results of and instructing in the use of medical gases, hyperbaric oxygen, aerosols and bronchopulmonary hygiene techniques, including drainage, aspiration, sampling and applying, maintaining and instructing in the use of artificial airways, ventilators, extracorporeal membrane oxygenation, hyperbaric oxygen therapy 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;
(5) Insertion and removal of indwelling arterial and venous catheters.
(e) "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 should be responsible for the quality, safety and appropriateness of the respiratory services provided and require that respiratory care be ordered bya physician who has medical responsibility for the patient. The medical director should be readily accessible to the respiratory care practitioners and should assure their competency.
(f) "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 upon the written prescription or verbal order of a licensed physician and under the direction of a qualified medical director and includes "inhalation therapy" and "respiratory therapy."
(g) "Respiratory care assistant" means one who has received on the job training in respiratory care with no formal educational background in respiratory care.
(h) "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 an accredited training program 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 an accredited training program and who has successfully completed the entry level certification examination for respiratory care technicians administered by the National Board of Respiratory Care, Inc.;
(3) A "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) A "student respiratory care practitioner" means:
(i) An individual enrolled in an accredited program 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 and who is also employed for compensation to provide respiratory care services.
§30-34-3. Board of respiratory care.

Before the first day of August, one thousand nine hundred ninety-four, the department shall make a public notice that all persons intending to apply for a license to practice respiratory care in this state shall submit a written letter of intent that includes their name, social security number, current employer and current address to the department and pay an initial nonrefundable filing fee of two hundred dollars before the first day of December, one thousand nine hundred ninety-four. All filing fees paid to the department for this purpose shall be accepted by a person designated by the department and deposited by this person with the treasurer of the state and credited to anaccount to be known as the "board of respiratory care fund." These filing fee moneys shall be used to cover the initial costs of the board and to reimburse the department for expenses actually incurred in administering this filing fee. The letters of intent shall be turned over to the board for issuance of licensure applications.
(a) Within sixty days after the effective date of this article the governor shall appoint a board consisting of seven 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 five 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 first appointed 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 two years; one public member and two respiratory care practitioners for a period of three years; and two respiratory care practitioners for aperiod 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 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 State 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 incompetence or unethical or dishonorable conduct.
§30-34-4. 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 chairperson or as the board may determine for such other meetings as may be deemed necessary to transact its business.
(b) A majority, five members of the board including the chairperson or vice chairperson, constitute a quorum at anymeeting 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 by the provisions of this article.
(c) The board may appoint and employ a qualified person who shall not be 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.
§30-34-5. 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 which 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, incurring any expenses necessary;
(d) Keep a record of all proceedings of the board and make it available to the public for inspection during reasonable business hours;
(e) Conduct hearings on charges that subject a licensee to disciplinary action and on the denial, revocation or suspension of a license;
(f) Maintain an up-to-date list of persons whose licenses have been suspended, revoked or denied identifying their names, social security numbers, type and cause of action, date and penalty incurred and the length of penalty, which shall be made available for public inspection during reasonable business hours and supplied to similar boards in other states upon request;
(g) Establish rules pursuant to chapter twenty-nine-a of this code regarding relicensure and continuing education requirements; and
(h) Maintain continuing education records.
§30-34-6. Powers of the board.

(a) The board may:
(1) Adopt rules and regulations which are in accord with the law of the state of West Virginia and as may be necessary to enable it to effect the provisions of this article;
(2) Employ such personnel as may be necessary to perform the functions of the board and pay such personnel 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, who shall receive travel and other necessary expenses consistent with state laws and policies whilethey are engaged in consultative service to the board and who shall be reimbursed exclusively from the board of respiratory care fund;
(5) Fix appropriate and reasonable fees for mandatory licensure which shall be no greater than one hundred fifty dollars per year for issuance or renewal of a license and which shall be reviewed and modified periodically, 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 any other expense that may be incurred by the board, including the cost of employing personnel and resource consultants, shall be paid from such fund and no part of the state's general revenue fund shall be expended for this purpose.
§30-34-7. Issuance of license; renewal of license; renewal fee; inactive status; 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 feeestablished by the board which in any case shall be no greater than one hundred fifty dollars. 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 the current year. After the expiration of such five-year period, a license may be renewed only by complying with the provisions 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 person's 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 current year shall be made to the board.
(d) The board may deny any application for renewal of a license for any reason which would justify the denial of an original application for a license as specified by provisions of this article.
(e) The board shall prescribe the form of licenses.
§30-34-8. Criteria for licensure.

(a) An applicant for a license to practice respiratory careshall 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 in collaboration with the Joint Review Committee for Respiratory Therapy Education (JRCRTE) or its 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 equivalent to, or greater than, those required in this state.
(c) The board may issue a license to practice respiratory care by endorsement to respiratory therapists 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 credentials have not been suspended or revoked.
§30-34-9. Limited license.

Upon payment of a proper fee, not to exceed seventy-five dollars, the board may issue a limited license to practice in one or more areas covered by this article to an individual who has demonstrated his or her competency in such areas.
Such practice shall be limited to only those functions thathe or she is qualified by examination to perform. Organizations administering such examinations shall be those approved by the board.
§30-34-10. 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:
Provided, That the applicant shows written evidence, verified by oath.
(b) A temporary permit may be granted to a student actively enrolled in an accredited respiratory care educational program. (c) A temporary permit may be granted to a graduate of an accredited respiratory care educational program for a period of one year from the date of graduation.
§30-34-11. 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, Inc., entry-level or registry examinations or their equivalent, as approved by the board. Other applicants who have not passed either of these national examinations or their equivalent at the time of the effective date of this article andwho, 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 issued a temporary license to practice respiratory care after payment of the proper fee. This particular temporary license shall be valid until the first day of June, one thousand nine hundred ninety- six. An applicant must have been practicing in the role of respiratory care provider for a period of two years at the effective date of this article as verified by oath.
§30-34-12. 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 such license to his or her employer or prospective employer when requested.
§30-34-13. 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 been suspended;
(h) Has practiced respiratory care under cover of any permit or license illegally or fraudulently obtained or issued; or
(i) Has violated or aided or abetted others in violation of any provision of this article.
§30-34-14. Due process procedure.

(a) Upon filing with the board a written complaint charging a person with being guilty of any of the acts described in section thirteen of this article, 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 in advance of the hearing date. 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 hisor her counsel, the board shall petition the court to issue subpoenas 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.
§30-34-15. 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 accredited by organizations approved by the board. 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 federal facilities providing respiratory care services when functioningin the course of their assigned duties; and
(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.
§30-34-16. 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 self- supporting board of respiratory care practitioners and to provide for licensing and regulation of this profession.

This article is new; therefore, strike-throughs and underscoring have been omitted.