December 13, 2004 Board Meeting Minutes

BOARD MEETING
PUBLIC SESSION MINUTES

December 13, 2004

Santa Clara County Training and Conference Center
Training Rooms 1 & 2 (Second Floor)
1641 N. 1st St.
San Jose, CA 95112

CALL TO ORDER

The Public Session meeting was called to order at 8:30 a.m. by Vice-President Cooper Salinger. A quorum was present.

HEARINGS FOR PETITIONS FOR REINSTATEMENT OF RCP LICENSURE

The Board conducted reinstatement hearings for the following petitioners:

Thomas F. Garlipp
Renee Frank
Richard S. Wigton Jr.
Donald J. Sanders
Terry L. Christofferson

CLOSED SESSION

The Board convened into Closed Session, as authorized by Government Code section 11126(c)(3), to deliberate each petition for reinstatement listed in Item 2. Board Member Barbara Stenson recused herself in the matter of the petition for reinstatement of Thomas F. Garlipp and Board Member Kim Cooper Salinger did not participate in the proceedings in the matter of the petition for reinstatement of Terry L. Christofferson.

The Board reconvened into open session at approximately 1:30 PM.

APPROVAL OF JUNE 24, 2004 PUBLIC SESSION MINUTES

Dr. Sheldon moved to approve the June 24, 2004 Public Session Minutes.

M/Sheldon /S/Renner
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

EXECUTIVE OFFICER'S REPORT
(Stephanie Nunez, Executive Officer)

California Performance Review (CPR)

Ms. Nunez advised the Board that after the release of the initial CPR recommendations in August, 2004 the CPR Commission held eight hearings throughout California and received comments from over 3,600 members of the public.

In regard to the consolidation of licensing and certification functions which included the transferring of health regulatory boards from the Department of Consumer Affairs to a newly established Health and Human Services Agency [recommendation number HHS21], the public made 95 comments; 9 in support, 85 in opposition, and 1 neutral.

Ms. Nunez then referenced the CPR Commission report released in November following the public hearings which provides that the Commission was now recommending that professional license functions, including health boards, remain within the new Commerce and Consumer Protection Department.

Ms. Nunez concluded by stating that all of the reports and recommendations are under review by the Governor's Office.

California Licensed RCPs Holding CRT/RRT Credentials

Ms. Nunez reported that at the last Board meeting the CSRC had introduced the idea of requiring the "RRT" examination for licensure. At that time, the Board noted that it could not require the NBRC to allow its use as the licensing examination, therefore, there was no ground to consider the proposal. However, the Board did request staff to report the number of licensees who held CRT and RRT credentials. Ms. Nunez stated that:
30% of licensed RCPs hold the RRT credential
46% hold the CRT credential
24% do not hold either a CRT or RRT credential

Ms. Nunez added that the group of licensees holding the RRT credential also hold the CRT credential, however, that count was not included in order to avoid duplicating the number of people holding credentials. It was also noted that the CRT and/or RRT are not required for licensure in the State of California, and that the percentage of individuals who do not hold a credential may represent those who were licensed pursuant to the grandfather provision.

Office of State Printing Memorandum of Understanding

Ms. Nunez stated that since 2002 we've explored generating revenues through advertising in our biannual newsletter. We have collected approximately $12,000 for five newsletters with a roughly estimated profit of $1,500 (after additional printing costs). The Memorandum of Understanding to continue to accept advertisements expired last August and I have not renewed the agreement pending review by the Board. The Department has strongly advised against advertising in our newsletter, primarily because the risk of litigation is far greater than the limited benefits. The Board determined not to renew the Memorandum of Understanding at this time.

CSRC: Respiratory Care Summit

Ms. Nunez reported that Janyth Bolden, recently appointed President of the CSRC, is organizing a "Respiratory Care Summit" with the first meeting scheduled for January 7, 2005. Ms. Bolden stated that the past president of CoARC is expected to attend as well as Terry McHale. Ms. Bolden requested representation from our Board. Ms. Nunez asked the Board if they were interested in being a liaison for these meetings. Given time constraints that members may have, Ms. Nunez offered to attend the meetings and provide reports to the Board. The Board agreed that Ms. Nunez will attend on behalf of the Board and will provide meeting updates.

CSRC: Greater Bay Area Chapter Meeting

Ms. Nunez reported that the CSRC's Greater Bay Area Chapter Meeting is taking place March 9-11, 2005 in Lake Tahoe. The Board agreed to staff attendance at the chapter meeting.

Medtrade Spring Conference

Ms. Nunez explained that Medtrade conferences are the recognized annual conferences held for the home care industry. Last summer Steve Vinci, President of the California Association for Medical Product Suppliers invited Ms. Nunez to participate on a session panel during the 2005 Medtrade Conference being held in Las Vegas, Nevada in April. The session is aimed at discussing the Board's review of home care and its recommendations to the Legislature. Mr. Vinci is aware of the Board's limited out-of-state funding, therefore, CAMPS has offered to pay for Ms. Nunez's airfare and hotel.

Ms. Nunez added that this would be a great opportunity to reach a large audience and to share the Board's findings in its efforts to improve trends and practices in home care as they relate to respiratory care and the safety of patients. The Board approved Ms. Nunez's attendance at the April 2005 Medtrade Conference.

General Report

Ms. Nunez informed the Board that Denise Robertson, a part-time AGPA and Enforcement Coordinator, resigned from State service last August to devote her attention to her family full-time. Ms. Nunez added that Ms. Robertson gave nearly three months notice which allowed for the reorganization of duties and adequate training time for staff.

In addition, Colleen Whitestine, Probation Coordinator, has taken on the title of Enforcement Coordinator and now coordinates the functions of both the Probation and Enforcement Units. Jennifer Mercado, an analyst from the Administration Unit was reassigned to the Enforcement Unit.

Ms. Nunez stated that Craig Martinez, a previous employee, returned to the Board last week at a clerical level and on a full-time basis in the Administration Unit. Craig left the Board last year during threats of staff layoffs, at which time he worked in the Licensing Unit and proved himself to be an excellent employee. Ms. Nunez indicated that we are please to have him back.

Ms. Nunez also mentioned again that at this time, per-diem is being paid and that all members should submit their per-diem forms to Stephanie Aguirre for processing.

There is no longer a specific budget line item for per-diem, however, we are permitted to use savings from other areas to reimburse members. Ms. Molina was asked to develop an on-going report for the Executive Committee's review of per-diem claimed and its impact on the budget. This will help the Executive Committee identify patterns of usage and take necessary action to ensure our budget is not overspent.

PROFESSIONAL LICENSING COMMITTEE REPORT
(Larry L. Renner, RCP, Chair, Richard L. Sheldon, M.D., Member)

Respiratory Care in California DVD

Ms. Nunez informed the Board that Mr. Renner developed the "Respiratory Care In California" DVD and stated that it is excellent and that staff has received many compliments on it. She added that the DVD has been reproduced and sent to all California respiratory program directors to be used as an education or outreach tool. Ms. Nunez further stated that the DVD will be available through the Board's website, although it cannot be streamlined at this time. The DVD will also be available to the public upon request.

Vice-President Cooper Salinger stated that she was very impressed with the DVD and commended Mr. Renner for his work. She asked if it would be possible to have the information be made available on CSRC's website. Mr. Ritter, DCA Legal Counsel, stated that since the information provided on the DVD is part of our education performance goals, there would be no problem in having the information placed on CSRC's website, so long as CSRC doesn't request anything in exchange for placing the presentation on its website.

Unlicensed Personnel in the Practice of
Hyperbaric Oxygen Therapy Review and Recommendations

Before reviewing and discussing all items under this agenda item, Mr. Renner thanked Ms. Nunez and staff for their assistance in helping Dr. Sheldon and himself in the preparation of the attached reports. Mr. Renner stated that the recommendations before the Board are a result of a year of research, many statewide meetings, and the obtaining of numerous opinions. The outcome and recommendations that follow include what the Professional Licensing Committee (PLC) believes is reasonable and safe for the State of California in regards to unlicensed practice.

Mr. Renner stated that in regards to unlicensed personnel in the practice of Hyperbaric Oxygen (HBO) Therapy, he has received a very positive review from Tom Workman and Paul Baker, from Loma Linda University Medical Center who also gave an excellent presentation to Ms. Nunez, and the PLC with regards to the clinical benefits associated with hyperbaric medicine.

After review of the information gathered, Mr. Renner stated that the PLC finds that the practice of HBO Therapy is a serious threat to the safety, health and welfare of consumers and that regulatory oversight is needed. However, given the infancy of HBO Therapy and consumer reliance upon the benefits of it, it would be impractical and burdensome to impose regulation of HBO Therapy and personnel at this time.

Dr. Sheldon added that he recently met with Mike Terry who requested that Dr. Sheldon inform the Board that the California Society for Respiratory Care agrees with the PLC's recommendation and added that the technicians be certified through the society and also recommended that centers also be certified.

Dr. Sheldon moved to approve the PLC's recommendations as written.

M/Sheldon/S/Cooper Salinger
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Unlicensed Personnel in the Practice of
Pulmonary Function Testing Review and Recommendations

Mr. Renner stated that he and Dr. Sheldon spoke with professional organizations and reviewed what other states do in regards to pulmonary function testing (PFT). After reviewing all the information obtained, the PLC is recommending providing exemptions from the RCPA to allow credentialed personnel to perform PFT and non-credentialed personnel with required training and supervision, to perform "limited and basic" pulmonary function testing.

Dr. Sheldon added that the CSRC also supports the PLC's recommendation regarding pulmonary function testing.

Discussion ensued.

Vice-President Cooper Salinger moved to approve the PLC's recommendation.

M/Cooper Salinger/S/Stenson

Ms. Nunez suggests that the Professional Licensing Committee be given the authority to make any changes that are not extensive. Ms. Nunez also added that on this particular recommendation, the 16 hours referenced came from the fact that the spirometry course currently available is a two-day, 16 hour course. With that in mind, she stated it may be better to reword the recommendation to read "a course approved by the Board, which does not exceed 16 hours."

Dr. Sheldon moved to approve the recommendation and modify the wording to read ". . . not to exceed 16 hours . . . "

M/Sheldon/S/Stenson
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Unlicensed Personnel in the Practice of
Polysomnography Review and Recommendations

Mr. Renner explained that for him this item was the most difficult to determine. The PLC identified so much information with regards to sleep testing, different types of sleep testing, how to perform, who's performing this function, the risks to patients, etc..

Dr. Sheldon stated that there has been an enormous amount of resistence regarding this issue. He added that no matter what decision the Board makes today, it will not be the end of it. Dr. Sheldon indicated that he believes this is an issue that will probably be revisited again and again.

Dr. Sheldon stated that the CSRC would like a compromise that includes initial licensure at some point.

Discussion ensued.

Mr. Renner stated that the PLC recommends the establishment of a new licensure category for Polysomnographic Technologist.

Ms. Nunez added that generally if you have national standards that are recognized and followed and they are appropriate, that weighs in. She added that the Sleep Association is still in development and their medical supervision of people who are unlicensed and is limited. The PLC's recommendation allows for work experience as the Board is not attempting to prohibit anyone from entering this field, it is more a means of supervision, competency and criminal background checks. The Board is trying to accommodate everybody that has an interest in this area, while protecting the public.

Mr. Renner stated that this is a long-term process and will take years to draft legislation, have it presented, etc., which is why it is important to start the process now.

Vice-President Cooper Salinger moved to adopt the PLC's recommendation.

M/Cooper Salinger/S/Stenson

Dr. Sheldon requested the Board to include a statement of approval or a paragraph in the recommendation which states that this Board agrees with the California Thoracic Society's position, but regrets that there is a lack of documentation of how they would implement and track.

Dr. Sheldon moved to amend the previous motion made to add a paragraph or footnote to the recommendation to indicate the Board's approval of the California Thoracic Society's petition, but requests that the CTS forward to the Board the methodology for implementation and tracking.

Ms. Nunez suggested that the Board acknowledge that it agrees with what the California Thoracic Society and is open to any additional information it may provide.

M/Sheldon/S/Stenson
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Home Care Review and Recommendations

Mr. Renner informed the Board that the Professional Licensing Committee has participated in several meetings with different organizations and agencies that have a vested interest in this issue. Literature searches were also conducted to understand what the role the Department of Health Services and other regulatory bodies play.

Ms. Nunez explained the recommendations being proposed. She added that CAMPS was very helpful in educating the PLC in this entire process and coming up with many recommendations that provide a lot of consumer safety provisions. Ms. Nunez stated that she realizes that this is a national issue and one of the biggest is the follow-up care to be provided to people who deliver oxygen. In its recommendation, the PLC stated that a qualified licensed person should follow-up once oxygen equipment is delivered, within 72 hours. CAMPS has pointed out to us that this provision was taken care of in the third one and we didn't point that out. She also added that the 72 hour requirement isn't feasible and would probably create more problems. Ms. Nunez explains that some changes and re-wording are still needed, but overall believes that we're heading in the right direction.

Discussion ensued.

Steve Vinci, Past President, CAMPS: Mr. Vinci stated that CAMPS worked closely with everyone and tried to come up with something realistic and appropriate. CAMPS is requesting a plan of action and they want that to be done on unlicensed people and they pattern this after New Mexico's statute. They want to have the ability and responsibility that if anyone that goes through a DME, as Ms. Nunez stated, it comes up in conversation with either a physician, caregiver, the delivery person that the patient says that they want to see a RCP, that this attributes to a RCP visit as opposed to just arbitrary number of 72 hours. They should not be not required unless necessary.

Ms. Nunez clarified that the information provided is phrased differently and it reads that each patient shall be advised that if they would like a follow-up at anytime, they can request a RCP or another licensed personnel.

Vernon Pertelle, Corporate Director, Apria HealthCare: Mr. Pertelle spoke on behalf of Apria and the home health care industry and stated that they are pleased with the clarification of what one should do and the change in the language. He stated that patient safety is paramount and offered their services to the Board. Mr. Pertelle added that Apria Health care is the largest provider of home medical equipment, as well as home care services, in the country and has had some exposure to some of the challenges in states across the country.

Ms. Nunez suggested that this issue be deferred to the next meeting in order to allow additional work with CAMPS to provide clearer information and ensure support before proceeding any further.

Vice-President Cooper Salinger moved to defer this item to the next meeting.

M/Cooper Salinger/S/Renner
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Enforcement and Outreach Alternatives

Ms. Nunez advised the Board that it has the statutory authority to cite and fine for unlicensed practice. She added that once we know exactly where we're going, what kind of support we have, and where the legislature stands, we will be able to actually draft regulations. Ms. Nunez further stated that citing and fining for unlicensed practice is a new process and hasn't been perfected, therefore, we don't know how effective it will be but we are willing to take the course.

EDUCATION COMMITTEE REPORT
(Barbara M. Stenson, RCP, Chair, Kim Cooper Salinger MBA, RRT, Member)

Law and Professional Ethics Course Implementation Plan

Ms. Stenson thanked Ms. Nunez and Vice-President Cooper Salinger for their hard work on this item. She then stated that the Education Committee is awaiting receipt of specific scenarios with related questions which will be included in the professional ethics portion of the course from the AARC and the CSRC. Vice-President Cooper Salinger added that proposals received thus far have been extremely positive.

Proposed Ethics Course Regulatory Language

Mr. Renner moved to approve the regulatory language presented by the Education Committee and also moved to allow the Education Committee make any changes that are non-substantive to the language as needed.

M/Renner/S/Chaturvedi
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Student Criminal Background Checks

Ms. Nunez stated that the issue of criminal background checks for students has been previously brought before the Board. This issue is being revisited because the Board has been contacted by program directors informing staff that JCAHO is enforcing a rule requiring criminal background checks for students performing the clinical portion of their programs.

According to JCAHO, volunteer employees and students are subject to the same background requirements imposed on other employees. Therefore, if the facility requires a background check as part of its standard hiring process, then students are now required to obtain a criminal background check in order to begin their clinical training. Students are then required to undergo another criminal background check when they apply to the Board for licensure. Various program directors have inquired as to whether this process can be streamlined by the Board conducting a background check and issuing a student clinical work permit. Ms. Nunez stated that this can be done but would require legislative amendments and changes in the application process.

Ms. Molina added that she was contacted by a school that offers both a respiratory and a nursing program which contacted JCAHO regarding the background checks and were referred to information addressing the requirement on JCAHO's website. According to the information, hospitals are given a substantial amount of leeway to decide whether or not it will require a background check for clinical students.

Raymond Hernandez, Program Director, Skyline College: Mr. Hernandez explained that his students are currently experiencing this problem. He's also been informed that it is up to the hospital if this is a requirement of the students. Mr. Hernandez added that Skyline will be requiring this of their students in the Spring of 2005. Students will comply with this requirement by utilizing an online/internet background check service that will provide for a three-year background check.

Mr. Hernandez requested that the Board provide a recommendation as to what level of background check would be acceptable. Dr. Sheldon requested that Mr. Hernandez submit a suggested recommendation to the Board for review and consideration.

Mr. Hernandez will pose this question to various respiratory care program directors and will report that information to the Board.

EXECUTIVE COMMITTEE REPORT
(Scott J. Svonkin, President, Kim Cooper Salinger, MBA, RRT, Vice-President)

Strategic Goals and Objectives

Ms. Nunez entertained questions from the Board regarding strategic goals and objectives. None were received at this time.

Sunset Review Recommendations

Ms. Nunez provided the Board with an update on the Sunset Review Recommendations and stated that with the exception of recommendation number 2 currently being addressed by the Professional Licensing Committee, the Board is in compliance with the recommendations. Ms. Nunez added that the Board is scheduled to submit a report to the Sunset Committee on September 1, 2005.

Fiscal Review

Ms. Nunez informed the Board that expenditures during FY 03/04 exceeded revenues by approximately $50,000 and that this amount will likely increase during this fiscal year as a result of previously negotiated pay raises, increases in Attorney General rates, and other items out of the Board's control such as health benefits, workers compensation, etc.

Fee Reduction Scenarios

Ms. Nunez stated that during the last meeting there was discussion about reducing fees. In response, various fee reduction scenarios were included for consideration. The Board determined that adjusting fees by reducing some and increasing others may negatively impact the existing RCP shortage. While it strongly supports fee reductions, at this time, the Board must focus on containing and reducing expenditures wherever possible and must concentrate on increasing revenues.

ENFORCEMENT COMMITTEE REPORT
(Vacant, Chair, Gary N. Stern, Esq., Member)

Enforcement Statistics

Vice-President Cooper Salinger entertained questions from the Board regarding the Enforcement Statistics.

LEGISLATIVE/LEGAL AFFAIRS COMMITTEE REPORT
(Scott J. Svonkin, Chair, Gopal D. Chaturvedi, Member)

Legislative Committee Agenda and Guidelines

This agenda item was deferred to the next board meeting.

2004 Legislation

Ms. Nunez summarized the 2004 Legislation and entertained questions from the Board.

2005 Proposed Legislation

Ms. Nunez informed the Board that the Legislative/Legal Affairs Committee has approved the proposed language. She explained that most of the language is the same as what was pursued by the Board last year. She added that the proposed legislation submitted last year for conscious sedation was opposed by anaesthesiologists and nurses, therefore, was removed. Ms. Nunez asked the Board if they were interested in resubmitting this.

Mr. Renner suggested that legislation regarding conscious sedation be attempted again.

§ 2707 and HR 2905 Federal Legislation

Ms. Nunez is requesting the Board's approval to send a letter to California Congressional Members urging their support of HR 295 and § 2707 which propose needed changes to the Medicare home health services benefit, specifically adding respiratory therapists and their services to a list of other providers and services that may be considered "skilled visits" under the plan of care.

Dr. Sheldon moved to send the letter as written.

M/Sheldon/S/Renner
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

ELECTION OF OFFICERS

Vice-President Coope Salinger moved to nominate Mr. Renner for President.

M/Cooper Salinger/S/Sheldon
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

Ms. Stenson moved to nominate Vice-President Cooper Salinger for Vice-President.

M/Stenson/S/Renner
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED

2005 MEETING PLANNING

Ms. Nunez advised that Abbie Rosenberg, CSRC Executive Director, invited the Board to attend the CSRC's Annual Convention on June 22, 2005 in San Francisco free of charge. The Board agreed to send a representative and to have staff participate as an exhibitor.

The 2005 Board meeting dates and locations are as follows:

1. March 25, 2005 (Sacramento)
2. August 12, 2005 (Burbank)

PUBLIC COMMENT ON ITEMS NOT ON THE AGENDA

Vernon Pertelle, Corporate Director, Apria Health care: Mr. Pertelle stated that an important issue in home care is that it's a very essential component of the community of care. Yet in most cases it's very difficult to address across the board, at the federal and state levels. Home care is necessary for patients as they transition from the hospital to home and this issue needs to be raised to the surface. The trend being seen more and more is that patients are being discharged a lot sooner into the home care environment and the set-up that the family and care givers have to deal with is becoming much more complex and technical. Mr. Pertelle suggests that the Board consider forming an AdHoc Committee to address these issues.

Discussion ensued.

Mr. Renner suggested the use of the expertise of those individuals in the home care industry and the expertise of those who sit on the Board. Mr. Renner added that he doesn't necessarily recommend expanding this Board to do that, but thinks we could utilize the resources of the Board as well as the expertise of those in the industry.

Ms. Nunez added that Mr. Pertelle can also create his own AdHoc Committee and that the Board would welcome and consider any issue introduced by such a committee.

Raymond Hernandez, Program Director, Skyline College: Mr. Hernandez stated that he's received numerous calls from foreign trained individuals and wants to know the response they'll receive from the Respiratory Care Board in regards to their out of country education.

Ms. Molina responded that the revised statute requires that foreign education be evaluated by a CoARC approved program which explains the number of calls being received. Foreign trained individuals must go to an approved respiratory program and that college will utilize their evaluation service and determine whether or not the education meets the minimum requirement. If so, and the program indicates that, then the Board accepts that education. If not, the individual is required to enroll in and complete those courses identified as needed by the program.

Ms. Nunez stated that prior to the statutory change, foreign trained applicants were required to have their education evaluated by a foreign evaluation service. A majority of the time, the evaluation concluded that the applicant met the minimum education requirements although statistics documented that foreign trained applicants could rarely pass the licensing examination, even after numerous attempts. For consistency, in order to determine equivalency with current minimum standards, the requirement to enroll in a CoARC approved program was established. This allows program directors from approved programs to determine if additional course work is needed to ensure that the foreign trained individual possesses the knowledge and skills to competently and safely practice respiratory care in accordance with national standards.

Bob Bence: Mr. Bence thanked the Board for holding its meeting in San Jose and congratulated Mr. Renner for being elected President. He also commended the Board for its pro-activeness in reference to the ethics course. Mr. Bence concluded by again requesting the Board to increase the entry-level examination to the RRT.

ADJOURNMENT

Dr. Sheldon moved that the meeting be adjourned at 2:45 p.m.

M/Sheldon/S/Chaturvedi
Unanimous: Chaturvedi, Cooper Salinger, Renner, Sheldon, Stenson
MOTION PASSED