ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2348
(By Mr. Speaker, Mr. Chambers, and Delegates Gallagher, Leach,
Compton, Kiss, Calvert and Sprouse)
[Passed March 10, 1995; in effect ninety days from passage.]
AN ACT 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 shall be 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. The provisions of this article are 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 therapist.
§30-34-2. Definitions.
(a) "Board" means the West Virginia board for respiratory
care;
(b) "Formal training" means a supervised, structured
educational activity that includes 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 the board determines to be both valid and
reliable;
(c) "Graduate respiratory care technician" means an individual
who has graduated from a respiratory care technician education
program and who is scheduled to take the next available examination
administered by the state or a national organization approved by
the board;
(d) "Graduate respiratory care therapist" means an individual
who has graduated from a respiratory therapist educational program
and is scheduled to take the next available examination administered by the state or a national organization approved by
the board;
(e) "Practice of respiratory care" means the practice of
respiratory care, and any part of respiratory care, by persons
licensed under the provisions of this article and 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
care;
(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;
(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
Virginia; or
(5) The initiation of emergency procedures under the
regulations of the board or as otherwise permitted in this article;
(f) "Qualified medical director" means the medical director of
any inpatient 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 shall 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 shall be readily accessible to the respiratory care practitioners and assure their competency;
(g) "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;
(h) "Respiratory care education program" means a course of
study leading to eligibility for registry or certification in
respiratory care and the program is approved by the board;
(i) "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
respiratory therapist;
(j) "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; and
(k) "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.
(a) There is hereby created the West Virginia board of
respiratory care. The board shall consist of seven members,
appointed by the governor with the advice and consent of the
Senate, and shall consist of one lay citizen member; one practicing
physician member currently licensed in West Virginia with board
certification, clinical training and experience in the management
of pulmonary disease; and five members licensed under the
provisions of this article and engaged in the practice of
respiratory care for the five years immediately preceding their
appointment. One of the respiratory practitioners appointed shall
be employed full time in home respiratory care by a home medical
equipment supplier. All appointees shall be citizens of the
United States and residents of this state. The West Virginia
society for respiratory care or its successor organization shall
make recommendations to the governor regarding individuals to be considered for initial and subsequent appointments.
(b) The members of the board shall each serve terms that
commence on the first day of July, one thousand nine hundred
ninety-five. Of the initial appointments to the board, one
physician and one respiratory care practitioner shall serve for
two-year terms, one public member and two respiratory care
practitioners shall serve for three-year terms, and two respiratory
care practitioners shall serve for four-year terms. Thereafter,
each appointment shall be for a four-year term commencing upon the
expiration of the term of his or her previous term or of his or her
predecessor's term. No member may be appointed for more than three
consecutive terms. Vacancies shall be appointed in a like manner
for the balance of an unexpired term.
(c) The West Virginia medical association, or other
organizations if requested by the governor, may submit the names of
three physicians qualified to serve in that designated position on
the board.
(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. Organization and meetings of board; quorum; expenses.
(a) The board shall meet at least twice a year and elect annually a chairperson and a vice chairperson from its members.
The board may hold other meetings during the year as the
chairperson or board deem necessary to transact its business.
(b) A majority, including one officer, constitutes a quorum at
any meeting, but a majority of the board is required 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.
§30-34-5. Board responsibilities.
The board shall:
(a) Provide public notice to all state hospitals and to all
persons currently practicing as respiratory care practitioners that
a license shall be required to continue practicing as a respiratory
care technician or respiratory therapist, after the thirtieth day
of June, one thousand nine hundred ninety-six;
(b) Examine, license and renew the licenses of duly qualified
applicants;
(c) Maintain a current registry of persons licensed to
practice respiratory care under this article which shall contain information on the licensee's place of employment, address, license
number and the date of licensure;
(d) Cause the prosecution of all persons violating this
article, incurring any expenses necessary;
(e) Keep a record of all proceedings of the board and make it
available to the public for inspection during reasonable business
hours;
(f) Conduct hearings on charges that subject a licensee to
disciplinary action and on the denial, revocation or suspension of
a license;
(g) Maintain an information registry of persons whose licenses
have been suspended, revoked or denied. The information shall
include the individual's name, social security number, type and
cause of action, date of board action, type of penalty incurred and
the length of penalty. This information shall be available for
public inspection during reasonable business hours and supplied to
similar boards in other states upon request;
(h) Establish rules pursuant to the provisions of chapter
twenty-nine-a of this code regarding relicensure and continuing
education requirements. Continuing education requirements shall be
established pursuant to a recognized continuing respiratory care
education program such as, but not limited to, the program established by the american association for respiratory care;
(i) Maintain continuing education records; and
(j) 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; fund.
(a) The board may:
(1) Adopt rules pursuant to article three, chapter twenty-
nine-a of this 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, including an administrative secretary, and
pay all 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 two hundred dollars for
initial licensure or one hundred fifty dollars for annual license
renewal. All fees shall be reviewed periodically and modified as
necessary.
(b) The board shall designate one person to accept and deposit
moneys paid to the board. The money so collected shall be
deposited 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. No
part of the state's general revenue fund shall be expended to carry
out the purposes of this article.
(c) The board may 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.
The application is to be submitted with a license fee of two
hundred dollars. If any application is rejected, the board shall
return the fee less any actual costs incurred 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 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 of a fee equal to
that established for the initial license. 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 person currently licensed to practice pursuant to this
article may apply for an inactive status by providing written
notice to the board and ceasing to engage in the practice of
respiratory care in this state: Provided, That the inactive status
is granted for no longer than five years. The board shall maintain
a list of licensees on inactive status. Any person granted
inactive status is not subject to the payment of any fees otherwise
required by the board. Prior to engaging in the practice of
respiratory care, the person shall submit to the board an
application for the renewal of the license and payment of a renewal
fee for the current year.
(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
program;
(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
or revoked.
(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 the proper fee the board may issue a temporary
permit to practice respiratory care for a period of six months
under the following conditions:
(a) The applicant is currently practicing, or has practiced
within the last twelve months in another state, territory or
country, and is completing the requirements for licensing in this
state: Provided, That the applicant provides written evidence,
verified by oath of that practice;
(b) The applicant is a graduate of a respiratory care
educational program and is scheduled to take the next available
examination, or is awaiting the results of that examination:
Provided, That the temporary permit shall be revoked in the event
that the applicant does not achieve a passing score on the entry
level technician examination.
§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;
(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;
(c) Practice as a respiratory care provider unless duly
licensed to do so under the provisions of this article;
(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;
(e) Practice as a respiratory care provider during the time
his or her license issued under the provisions of this article is
suspended or revoked;
(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 misdemeanor shall be punishable by a
fine of not less than twenty-five nor more than two hundred fifty
dollars.
§30-34-11. Grandfather clause.
(a) After the establishment of the board of respiratory care,
a license shall be issued to applicants who, on 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.
(b) Applicants who have not passed either of these national
examinations or their equivalent on the effective date of this
article and who, through written evidence and verified by oath,
demonstrate that they have been functioning for two years in the
capacity of a respiratory care provider as defined by this article
shall be issued a temporary license to practice respiratory care.
A temporary license issued pursuant to this section shall be
renewed at intervals prescribed by the board. A temporary license
shall not be valid after the first day of June, one thousand nine
hundred ninety-seven. Persons holding a temporary license shall be
issued a license to practice only after achieving a passing score
on a licensure exam administered or approved by the board.
(c) Any person issued a license pursuant to this section shall
be required to pay the license or renewal fees established in
section seven of this article.
§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 provide
a copy thereof within twenty-four hours of a request from an
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
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 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 a copy of the
complaint or list of allegations to the person about whom the
complaint was filed. 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.
§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 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 authorized individuals.
(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.