March 25, 2005 Board Meeting Minutes

BOARD MEETING
PUBLIC SESSION MINUTES

March 25, 2005

State Capitol Building
10TH & L Streets, Room 112
Sacramento, CA 95814

CALL TO ORDER

The Public Session meeting was called to order at 9:30 a.m. by President Renner. A quorum was present.

HEARINGS FOR PETITIONS FOR REINSTATEMENT OF RCP LICENSURE

The Board conducted petitions for reinstatement hearings and heard testimony from the following petitioners:

* Fidel Orozco, Jr.

* Harold R. Leo

* Ronetta E. Hill

HEARING FOR PETITION TO TERMINATE PROBATION

The Board conducted a petition to terminate probation hearing and heard testimony from the following petitioner:

* Larry D. Corridon

RAY HERNANDEZ, PRESIDENT, GREATER BAY AREA CHAPTER,
CALIFORNIA SOCIETY FOR RESPIRATORY CARE (CSRC)
(Ethics Course)

Ray Hernandez provided the Board with an update regarding the development status of CSRC's Law and Professional Ethics Course.

SAM GIORDANO, EXECUTIVE DIRECTOR,
AMERICAN ASSOCIATION FOR RESPIRATORY CARE PRESENTATION
(Issues and Activities Affecting the Practice)

President Renner introduced Sam Giordano, Executive Director of the American Association for Respiratory Care (AARC).

Mr. Giordano thanked the Board for allowing him to speak and added that he wants to bring the Board up to date with some activities the AARC is undertaking and some issues they think are relevant to what the Board is doing. He provided an update regarding the following items:

1. 1. The status of the AARC's "Benchmarking Project" to help provide an unbiased objective for respiratory therapy staffing, based on demands and services, and nothing else.
2. 2. Smoking cessation and the activities of the AARC as they relate to working to encourage respiratory therapists to undertake responsibility for providing counseling and making sure the Federal government is aware of the significant role that respiratory therapists play in this process.
3. 3. The status of the AARC's Law and Professional Ethics Course.
4. 4. Home care standards and the AARC's initial phases of developing voluntary home care standards which will be patient centric. They will include input from patient groups, DME providers, respiratory care physicians, and payers. The goal is to recognize that some DME providers do make the initial investment of hiring hire licensed respiratory care practitioners, but currently there is no way to differentiate them from the 17,000 that do not and the AARC wants them to be recognized for their investment and they also want a basis for letting consumers know who these organizations are.
5. 5. The AARC continues to encourage early detection of chronic lung diseases, especially asthma and COPD, and hopes that the Board understands the need for this to occur throughout California. It is not only a good public service, but it is also a way for respiratory care practitioners in California to interface with the general public as opposed to the pulmonary public.
6. 6. Mr. Giordano added that the AARC is at the initial stages of establishing spirometry training and will focus on persons who may not be respiratory therapists. The course will teach office spirometry only and there will be a way to certify skills and will include sending test results on a periodic basis to ensure skill level is retained.
7. 7. The AARC is working on a series of an education conferences as a means to envision the future of respiratory therapists based on the needs of what the future healthcare system are. Three conferences are being planned. The first will be to get information on what the future of healthcare will look like in the United States. The second conference will be to determine the education and skills needed. The third and final conference will be lead mostly be educators and will discuss how to get from where we are today to where we need to be tomorrow.

BOARD CONVENED INTO CLOSED SESSION AT 12:05 P.M.

Mr. Svonkin departed.

BOARD CONVENED INTO PUBLIC SESSION AT 1:35 P.M.

APPROVAL OF DECEMBER 13, 2004 PUBLIC SESSION MINUTES

Dr. Sheldon moved to approve the December 13, 2004 Public Session Minutes as written.

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

LEGAL COUNSEL REPORT
(George Ritter, Legal Counsel)

Petition Hearings: Board Meetings vs. Office of Administrative Hearings

Mr. Ritter explained why reinstatement and petition hearings are now being conducted in conjunction with scheduled meetings. According to Mr. Ritter, the Respiratory Care Practice Act has special reinstatement hearing provisions which requires the Board to conduct a "hearing." Because a hearing is required, it must be conducted under guidelines of the Administrative Procedures Act. The Board must either hear the matter as it has been doing with an Administrative Law Judge (ALJ) presiding, or the Board may delegate the hearing to an ALJ, which will be heard without the Board being present. The ALJ would then prepare a proposed decision which would be sent to the Board for consideration. The Board could adopt the proposed decision, reject it, or return it to the ALJ for additional evidence, or to make minor corrections. If the Board decides to not adopt the ALJ's proposed decision, a reason is not required. If the Board wishes to decrease the level of discipline, it doesn't need to be reheard, the Board would adopt the ALJ's decision and modify the discipline. If the Board wishes to increase the discipline, that would be the same as rejecting the proposed decision. If that occurs, the transcripts and exhibits would be ordered, and the petitioner then has the option of presenting oral or written arguments which become part of the record, before the Board orders its final decision in the matter.

Dr. Sheldon stated that when the decisions are reviewed via mail vote, the process is convenient, however, when hearings are conducted in person, you feel the emotions involved. He asked Mr. Ritter if there is a preference between mail votes and conducting a hearing in person?

Mr. Ritter replied that when they are heard at Board meetings, the public and licensees have a chance to see the Board in action and the process involved.

Mr. Ritter stated that hearings could be conducted by mail if the respondent agrees to this by stipulation.

Discussion ensued.

Mr. Ritter stated that he recalls being asked if the Board could conduct a reinstatement or petition hearing via mail vote, and the answer was no.

Mr. Stern stated that he would like to see early termination cases separated from the others.

Ms. Nunez asked the Board if they would support legislation being introduced to the Legislature that would allow the Board to address petitions via mail votes, so long as the petitioner agrees.

Mr. Stern moved to retain the current system for the review of petitions, subject to each case by paper, and staff will advise if a hearing is necessary.

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

Bagley-Keene Open Meeting Act Review

Mr. Ritter complemented the Board for its continued compliance with the Bagley-Keene Open Meetings Act and then reviewed some of the Acts provisions.

EXECUTIVE COMMITTEE REPORT
(Larry L. Renner, President; Kim Cooper Salinger, Vice-President)

Governor's Reorganization Plan, Boards and Commissions

Mr. Renner updated the Board regarding the Governor's plan and how it affected the Board.

Strategic Goals and Objectives

Mr. Renner updated the Board on the status of the Board's Strategic goals and objectives.

2001/02 Sunset Review Recommendations

Mr. Renner stated that Board received notification from the Sunset Committee that its 2005 review will be delayed for one year.

He added that Ms. Nunez has volunteered to coordinate and attend a meeting with the Joint Committee to discuss some issues which may require addressing this year. Ms. Nunez will work with the Executive Committee to determine what issues to bring to the Joint Committee.

Dr. Sheldon moved to approve the Executive Committee to work with Ms. Nunez on issues to bring before the Joint Legislative Sunset Review Committee.

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

Budget & Revenue Reports

Ms. Nunez reported that the Attorney General cost for this year is $330,000, $22,000.00 more than last year, and can be attributed to the paralegal rate which nearly doubled.

EXECUTIVE OFFICER'S REPORT
(Stephanie Nunez)

CSRC Respiratory Care Summit- February 11th

Ms. Nunez stated that she met with the CSRC in January and February. The focus of the discussion was to see what is happening with respiratory care and how to improve patient care. Some of the ideas which resulted from the meetings were (1) proposed competency requirement, mandating passage of the RRT examination within three years; (2) proposed regulatory change: prohibit training of unlicensed personnel; (3) respiratory care practice by other licensed professionals; and (4) licensed vocational nurse bridge to licensed respiratory care practitioner.

Student Criminal Background Checks

Ms. Molina stated that at the last Board meeting Mr. Ray Hernandez, Co-Chair of CSRC's Education Committee and Program Director at Skyline College, requested that the Board provide a recommendation as to what level of background check would be acceptable toward meeting the student requirement.

Ms. Molina conducted research to determine whether or not the hospitals or the programs themselves were entitled to receive criminal information from the Department of Justice (DOJ) in a manner similar to the Board's receipt of information for licensing purposes, and she confirmed that they are not. The person she spoke with at DOJ stated that they had been contacted by various nursing programs because they are addressing the same requirement. Ms. Molina added that she did contact both the Board of Vocational Nursing and the Board of Registered Nursing and they stated that they have received numerous inquiries from their programs, and it appears that everyone is handling it the same way. Ms. Molina asked the representatives from both boards if they had any intention or if their respective boards had talked about issuing a policy or guidelines regarding background checks and they said that at that point, they had not.

Ms. Molina stated that if the Board were to establish a recommended level of background check, it would be the same as the background check we do for licensing, and that isn't a possibility because programs and hospitals aren't entitled to the same criminal information. That brings up the issue as to whether or not the Board wants to consider, from a patient safety prospective, to pursue statutory authority to require a student or clinical work permit, issued only after conducting a background check similar to that of applicants. Ms. Molina added that this may be an issue that should be further discussed in Strategic Planning.

This issue was discussed with Mr. Ritter because some programs were asking if we would be denying someone's right to an education if they had a background that prohibited us from issuing a work permit.

Mr. Ritter responded that so long as there's due process, an appeal process, and done in a consistent manner, the Board would be okay.

President Renner stated that it isn't a matter of licensure, it's a matter of what JCAHO is requiring, and that is that everyone must have a background check to work in a facility. President Renner added that in order for facilities to address that, they have to go back to the hospital administration and there must be agreements in place. It is up to the program to determine if the facility will accept an internet site as a method for background checks.

Ms. Stenson added that her hospital's nursing, radiologist, and respiratory students are doing this.

Mr. Hernandez added that there is no standard across the board in hospitals.

Mr. Hernandez stated that (1) The chancellor's office asked if colleges are legally responsible for enforcing the requirement for students to go through a criminal background check? Their answer was "no". (2) Can a college require a student to undergo a legally required background check as a pre-requisite to a clinical course? Their answer was "yes".

Ms. Molina added that although an individual is entitled to obtain a full background history on themselves, the individual, by law, cannot release that information to others, it's against the law because different agencies are entitled to different levels of background information.

Outreach Efforts / Conference Attendance

Ms. Nunez informed the Board that Ms. Molina attended the CSRC Greater Bay Area Chapter Conference held on March 10th & 11th. It was noted by attendees that Ms. Molina represented the Board very well.

Ms. Nunez added that she will be traveling to Las Vegas to attend the Med Trade Home Care Conference on April 6th.

She added that Ms. Molina will be attending the Better Business Bureau Consumer Expo on April 30th.

Ms. Nunez attended a couple of different Departmental meetings and some of the things they're trying to remind everyone is to be sure to complete and submit the Statement of Economic Interest forms (Form 700).

She informed the Board that the ethics training course is approaching and they will be receiving information regarding the dates and locations.

General Report

Ms. Nunez informed the Board that there are four new respiratory schools in California. She also added that Sacramento has a new high school specifically related to health care.

Bob Bence: Mr. Bence added that the healthcare high school in Sacramento is a federally funded pilot program and the only one in the nation.

Ms. Bolden: Ms. Bolden asked how the health school differs from the others?

Bob Bence: Mr. Bence replied that this particular high school is only specific to students interested in pursuing health professions.

LEGISLATIVE/LEGAL AFFAIRS COMMITTEE REPORT
(Gary N. Stern, Chair; Scott J. Svonkin, Member)

Legislative Committee Agenda and Guidelines

Mr. Stern entertained questions regarding this issue.

President Renner asked Mr. Ritter if it would be acceptable if the chair of the Legislative Committee called the chair of the Executive Committee to make a decision on legislative issues.

Mr. Ritter replied that there would be no conflict since it only involves two people. It would need to be noticed if there were three or more.

Mr. Stern moved to revise the proposed Legislative Committee Guidelines to state, "The Respiratory Care Board grants the chairs of the Legislative and Executive Committees the authority to take a position and action(s) thereon, as they find appropriate and in the interest of the full Board, on proposed legislation that is brought about between regularly scheduled Board meetings in accordance with the following guidelines:

The action would be the result of unanimous consent of the Legislative and Executive Committee chairs."

. . .

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

2005 Proposed Legislation

Mr. Stern briefly reviewed the 2005 proposed legislation as follows:

Section	Subject	Status
3702.5	Sedation	Was withdrawn as new respiratory devices to induce deep sedation will not be produced as expected.
3717.5	Subpoenas	Cross Cutting
3735 3735.3 3736 3739	Exam Admission & administration	To be placed in B&P Committe Bill
3735.5 3735.1	Equivalent Exam	Will be considered for inclusion in Joint Committee on Boards, Commissions, and Consumer Protection (JCBCC) Bill
3751	Petitions	Will be considered for inclusion in JBCC Bill
3768.5	Cite & Fine Appeals-Cost Recovery	Cross Cutting Issue
3769.5	Applicant-Conditional License	Cross Cutting Issue
3769.7	Licensee-Probationary License	Cross Cutting Issue
3775.2	Fee for CE Approval Providers	To be placed in B&P Committee Bill
3775.3	Report of Proposal to Adopt or Increase Fee	To be placed in B&P Committee Bill
3779	Reliance on Web Printout for License Verification	To be placed in B&P Committee Bill

Mr. Stern stated that it appears there is no opposition to the proposed legislation and entertained questions from the Board. None was received at this time.

Mr. Stern moved to approve the legislation as proposed.

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

CALIFORNIA CODE OF REGULATIONS SECTIONS 1399.327,
1399.350.5, 1399.352.7, and 1399.372.5
Re: Law and Professional Ethics Course Requirement: Discussion/Vote
(no further public testimony will be taken as formal comments under
the APA rulemaking process)

Mr. Stern reported that the Respiratory Care Board did not receive any oral or written comments regarding the proposed addition of California Code of Regulations sections 1399.327, 1399.350.5, 1399.352.7, and 1399.372.5, in response to the Notice of Proposed Changes.

Mr. Stern moved to accept these regulations as currently written.

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

PROFESSIONAL LICENSING COMMITTEE REPORT
(Larry L. Renner, Chair; Richard L. Sheldon, Member)

Home Care Review and Recommendations

Ms. Nunez reported that Agenda Item 12(a) is an updated version.

Mr. Stern moved to approve the home care recommendation as written.

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

Board of Vocational Nursing and Psychiatric Technicians:
Adjustments to Ventilator Settings Policy

President Renner explained that this issue is listed under this committee due to the fact that he's received numerous calls regarding this matter. President Renner asked Mr. Ritter what the Board's options are and asked him to explain underground regulations.

Mr. Ritter stated that this issue comes up all the time and added that he hasn't had a chance to review the scope of work. He added that during the past week, Ms. Nunez spoke with Teresa Bello-Jones regarding this matter. Mr. Ritter explained that this subject is expected to be on the BVNPT's May board meeting agenda. He added that if this cannot be resolved by reaching an amicable resolution, the Board could go to court and file a legal action. This would be very expensive.

Mr. Ritter explained that this issue occurred between two other boards and they were able to reach a compromise and he agrees that this is a very serious issue and believes that an amicable solution can be reached.

President Renner proposed that the Board write a letter and be present at the next BVNPT meeting and added that he would be willing to attend and address this issue.

Ms. Bolden: Ms. Bolden asked if other overlapping procedures are being performed by LVN's?

Ms. Nunez stated that she was unaware of any other procedures being performed.

Ms. Bolden: Ms. Bolden stated that this is not a turf war, it's a direct patient care safety issue.

ENFORCEMENT COMMITTEE REPORT
(Gopal Chaturvedi, Chair; Gary N. Stern, Member)

Enforcement Statistics

Mr. Chaturvedi reported that, as shown in the statistics, we are doing better than last year. He then welcomed questions from the Board. None were received.

FUTURE AGENDA ITEMS

President Renner requested that a date be chosen to conduct strategic planning. The Board decided that a strategic planning session will be held in conjunction with the August board meeting.

Next Board Meeting will be held on August 11 & 12, 2005 in Sacramento. The meeting was originally scheduled to be held in Los Angeles.

PUBLIC COMMENT ON ITEMS NOT ON THE AGENDA

None were received at this time.

ADJOURNMENT

President Renner adjourned Public Session at 3:30 p.m.