H. B. 2348
(By Mr. Speaker, Mr. Chambers, and Delegates Gallagher, Leach,
Compton, Kiss, Calvert and Sprouse)
(Originating in the House Committee on Finance)
[February 28, 1995]
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 misdemeanor penalties for
nonlicensure and other acts; 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
technician or respiratory therapist 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-six, it is unlawful for any person not
licensed under the provisions of this article to practice as a
respiratory care technician or respiratory therapist 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 technician or respiratory
therapist, except a respiratory care technician or respiratory
therapist licensed by the board of respiratory care, may use the
title licensed respiratory care technician or licensed respiratory
therapist and the designations LRCT or LRT. This is not intended to limit, preclude or otherwise interfere with the practice of
other health care providers including those health care providers
working in any setting and licensed by appropriate agencies or
boards of the state of West Virginia whose practices and training
may include elements of the same nature as the practice of a
licensed respiratory care technician or a licensed respiratory
(a) "Board" means the state board for respiratory care.
(b) "Department" means the department of health and human
(c) "Formal training" means a supervised, structured
educational activity that must include preclinical didactic and
laboratory activities and clinical activities. The training must
be approved by an accrediting agency recognized by the board. It
must include an evaluation of competence through standardized
testing mechanisms that is determined by the board to be both valid
(d) "Practice of respiratory care" means the practice of
respiratory care, and any part of respiratory care, by respiratory
care technicians and respiratory therapists shall be limited to
that which has been learned through formal or special training including performance evaluation to evaluate competence. 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 orders of a licensed physician or other
legally authorized person with prescriptive authority, and/or under
the direction of a qualified medical director. Practice of
respiratory care includes, but is not limited to:
(1) The administration of pharmacological, diagnostic and
therapeutic agents related to respiratory care procedures necessary
to implement a treatment, disease prevention, pulmonary
rehabilitative or diagnostic regimen prescribed by a physician;
(2) Transcription and implementation of written or verbal
orders of a physician or other legally authorized person with
prescriptive authority, pertaining to the practice of respiratory
(3) Observing and monitoring signs and symptoms, general
behavior, general physical response to respiratory care treatment
and diagnostic testing, including determination of whether such
signs, symptoms, reactions, behavior or general response exhibit
abnormal characteristics; and
(4) Based on observed abnormalities, appropriate reporting, referral or implementation of respiratory care protocols or changes
in treatment pursuant to the written or verbal orders of a person
with prescriptive authority under the laws of the state of West
(5) The initiation of emergency procedures under the
regulations of the board or as otherwise permitted in this article.
(e) "Qualified medical director" means the medical director of
any impatient or outpatient respiratory care service, department or
home care agency. The medical director 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 by a
physician, or other legally authorized person with prescriptive
authority, 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 direct and indirect services in the treatment,
management, diagnostic testing and care of patients with
deficiencies and abnormalities associated with the cardiopulmonary
system, under a qualified medical director. Respiratory care includes inhalation therapy and respiratory therapy.
(g) "Respiratory care education program" means a course of
study leading to eligibility for registry or certification in
respiratory care. The program is approved by the board.
(h) "Respiratory therapist" means an individual who has
successfully completed an accredited training program, and who has
successfully completed an examination for respiratory therapists
administered by the state or a national organization approved by
the board and who is licensed by the board as a licensed
(i) "Respiratory care technician" means an individual who has
successfully completed an accredited training program and who has
successfully completed a certification examination for respiratory
care technicians administered by the state or a national
organization approved by the board, and who is licensed by the
board as a licensed respiratory care technician.
(j) "Graduate respiratory care practitioner" means an
individual who has graduated from a respiratory care educational
program and is waiting to sit for the next available examination
administered by the state or a national organization approved by
(k) "Graduate respiratory care technician" means an individual who has graduated from a respiratory care technician education
program and who is waiting to sit for the next available
examination administered by the state or a national organization
approved by the board.
(l) A "student respiratory care therapist or student
respiratory care technician" means:
An individual enrolled in a respiratory educational 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.
§30-34-3. Board of respiratory care.
Before the first day of August, one thousand nine hundred
ninety-five, the department shall make public notice which includes
mailing announcements to all state hospitals and making a mailing
to all respiratory care practitioners as provided by the West
Virginia society of respiratory care, and 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-five. 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 an account to be known as
the "board of respiratory care fund." Expenditures from the fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code: Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-six,
expenditures are authorized from collections rather than pursuant
to an appropriation by the Legislature. 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 practicing physician member who is licensed in West Virginia with board certification and clinical
training and experience in the management of pulmonary disease
selected as provided for in subsection (c) of this section, 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. One of the respiratory practitioners
appointed shall be employed full time in home respiratory care and
employed by a home medical equipment supplier. 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 or 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 member's 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 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 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
(c) Upon expiration or vacancy of the physician's board
membership, the West Virginia medical association may 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, four members of the board, including the chairperson or vice chairperson, constitutes 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 by the provisions of
(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) Examine, license and renew the licenses of duly qualified
(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
(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
(e) Conduct hearings on charges that subject a licensee to
disciplinary action and on the denial, revocation or suspension of
(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
which utilize a recognized continuing respiratory care education
program such as but not limited to the program established by the
american association for respiratory care;
(h) Maintain continuing education records; and
(i) Approve the training, continuing education and competency
evaluation methods for respiratory care practitioners to perform
entry level and advanced procedures in the art and techniques of respiratory care.
§30-34-6. Powers of the board.
(a) The board may:
(1) Adopt rules pursuant to article three, chapter twenty-
nine-a of the code, as may be necessary to enable it to effect the
provisions of this article;
(2) Employ such personnel as necessary to perform the
functions of the board and pay such personnel from the board of
respiratory care fund;
(3) Establish relicensure requirements, rules of probation for
licensees, and other 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, while
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.
(c) Contract with other state boards or state agencies to
share offices, personnel and other administrative functions as
authorized under this article.
§30-34-7. 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.
A one time application fee of two hundred dollars shall be
submitted by each applicant. Upon rejection of any application,
the board shall return the application fee less any actual costs
incurred by the board in processing 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 which in any case shall be no greater than
one hundred fifty dollars. Any license that 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
(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) Upon payment of the proper fees, an applicant for a
license to practice respiratory care shall submit to the board
written evidence, verified by oath, that the applicant:
(1) Has completed an approved respiratory care educational
(2) Passed an examination, except where otherwise provided in
this article. This examination may be administered by the state or
by a national agency approved by the board. The board shall set
the passing score for the examination.
(b) The board may also issue a license to practice respiratory
care by endorsement 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 also 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 it's successor organizations, if the credentials have not been suspended or revoked. Applicants
applying under the conditions of this section shall be required to
certify under oath that their credentials have not been suspended
(d) If an applicant fails to complete the requirements for
licensure within ninety days from the date of filing, the
application is deemed to be abandoned.
§30-34-9. Temporary permits.
Upon payment of a proper fee the board may issue a temporary
permit to practice respiratory care for a period of six months
under the following conditions:
(a) A temporary permit may be granted 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 graduate of a
respiratory care educational program for a period of nine months
from the date of graduation;
(c) A temporary permit shall be revoked in the event that the
applicant does not achieve a passing score on the entry level
§30-34-10. Prohibitions and penalties.
It shall be a misdemeanor for any person, including any
corporation or association, to:
(a) Sell or fraudulently obtain or furnish any respiratory
care provider license or record or aid or abet therein; or
(b) Practice as a respiratory care provider under cover of any
diploma, license or record illegally or fraudulently obtained or
signed or issued or under fraudulent representation; or
(c) Practice as a respiratory care provider unless duly
licensed to do so under the provisions of this article; or
(d) Use in connection with his or her name any designation
tending to imply that he or she is licensed to practice as a
respiratory care provider unless duly licensed so to practice under
the provisions of this article; or
(e) Practice as a respiratory care provider during the time
his or her license issued under the provisions of this article
shall be suspended or revoked; or
(f) Conduct a respiratory care provider licensing program for
the preparation of respiratory care provider unless such program
has been accredited by the board; or
(g) Otherwise violate any provisions of this article.
Upon conviction, each such misdemeanor shall be punishable by a fine of not less than twenty-five nor more than two hundred fifty
§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 and
who, through written evidence, verified by oath, demonstrate that
they were functioning in the capacity of a respiratory care
provider 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-seven. Those
persons holding a temporary license must pass a licensure exam
administered or approved by the board following the expiration of
this temporary license in order to be issued a permanent license to
practice under this article. An applicant for this particular
temporary permit 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 as
a technician in this state may use the title "licensed respiratory
care technician" and the abbreviation "LRCT."
(b) A person holding a license to practice respiratory care as
a respiratory therapist in this state may use the title "licensed
respiratory therapist" and the abbreviation "LRT."
(c) A licensee shall either show his or her license or
provides a copy thereof within twenty-four hours of a request by
either his or her employer or the board.
§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
(a) Is guilty of fraud or deceit in procuring or attempting to
procure a license or renewal of a license to practice respiratory
(b) Is unfit or incompetent by reason of negligence, habits or
other causes of incompetence;
(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 that materially affects the
person's ability to safely practice respiratory care;
(f) Is guilty of dishonest or unethical conduct as determined
by the board of respiratory care;
(g) Has practiced respiratory care after his or her license or
permit has expired, been suspended or revoked;
(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 provide the person about
whom the complaint. That person will have twenty days thereafter
to file a written response to the complaint. The board shall
thereafter, if the allegations warrant, 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 of his or
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 in this state as
provided in chapter twenty-nine-a of this code.
(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
(4) Persons in the military services or working in federal
facilities providing respiratory care services when functioning in
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 approved by the board.
(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.
(d) Nothing in this article shall prohibit home medical equipment dealers from delivering and instructing persons in the operation of
home medical respiratory equipment, or, from receiving requests for
changes in equipment and settings from physicians or other
(e) An individual who passes an examination that includes
content in one or more of the functions included in this article is
not prohibited from performing such procedures for which he or she
was tested, so long as the testing body offering the examination is
approved by the board.
§30-34-16. Practice of medicine prohibited.
Nothing in this article may be construed to permit the
practice of medicine.