H. B. 2348
(By Mr. Speaker, Mr. Chambers, and Delegates Gallagher,
Leach, Compton, Kiss, Calvert and Sprouse)
[Introduced February 3, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-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; and severability.
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 thirty-first
day of March, one thousand nine hundred ninety-five, 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 therapist.
§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" 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 and reliable.
(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 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; 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 Virginia; or
(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 respiratory therapist.
(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
the board.
(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; or
(2) An individual enrolled in a respiratory care educational
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-five, the department shall make 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-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-five, 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 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 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 and qualified.
(c) Upon expiration of the term of a physician member, 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 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) Examine, 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 which utilize the continuing respiratory care
education program of the American association for respiratory care as one vehicle for program approval;
(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 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 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,
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.
§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.
(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 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) 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 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
technician examination.
§30-34-10. 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
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-seven. 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.
§30-34-11. 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 show such license when requested.
§30-34-12. 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.
§30-34-13. 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 twelve 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 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.
§30-34-14. 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 prohibits home medical equipment
dealers from delivering or instructing in the use of medical
gases including oxygen, oxygen concentrators or aerosol delivery
devices.
(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.
§30-34-15. 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 establish the Board of
Respiratory Care Practitioners.
This article is new; therefore, strike-throughs and
underscoring have been omitted.