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.