Denial/Discipline Information - Laws and Regulation Excerpts
The Respiratory Care Board's (RCB's) mandate is to protect and serve the consumer. As part of enforcing its mandate, the RCB ensures that minimum licensing standards are met by each applicant.
Please note, the RCB cannot make a determination as to whether or not a license will be denied until an application is filed and all pertinent documents and evidence are reviewed.
The following excerpts are intended to provide information that can be used as a guide by schools, counselors and prospective students in making informed decisions regarding the RCB application process. For a complete copy of all the laws specific to the practice of respiratory care, please contact the Respiratory Care Board or go to Laws/Regulations.
The RCB is authorized by statute to deny an application for licensure based on a criminal conviction or the commission of an act substantially related to the practice of respiratory care. Grounds for denial of an application for licensure are based on statutes and regulations identified within the Business and Professions Code (B&PC) and the California Code or Regulations (CCR). The most common grounds for denial affecting new applicants, as well as statues and regulations of interest, are listed as follows:
JURUSDICTION / AUTHORITY
B&P § 3732. Investigation of applicant
(a) The board shall investigate an applicant for a license, before a license is issued, in order to determine whether or not the applicant has the qualifications required by this chapter.
(b) The board may deny an application, or may order the issuance of a license with terms and conditions, for any of the causes specified in this chapter for suspension or revocation of a license, including, but not limited to, those causes specified in Sections 3750, 3750.5, 3752.5, 3752.6, 3755, 3757, 3760, and 3761.
B&P § 3739. Practice by graduate prior to receipt of license
(a)(1) Except as otherwise provided in this section, every person who has filed an application for licensure with the board may, between the dates specified by the board, perform as a respiratory care practitioner applicant under the direct supervision of a respiratory care practitioner licensed in this state provided he or she has met education requirements for licensure as may be certified by his or her respiratory care program, and if ever attempted, has passed the national respiratory therapist examination.
(2) During this period the applicant shall identify himself or herself only as a "respiratory care practitioner applicant."
(3) If for any reason the license is not issued, all privileges under this subdivision shall automatically cease on the date specified by the board.
(b) If an applicant fails the national respiratory therapist examination, all privileges under this section shall automatically cease on the date specified by the board.
(c) No applicant for a respiratory care practitioner license shall be authorized to perform as a respiratory care practitioner applicant if cause exists to deny the license.
(d) "Under the direct supervision" means assigned to a respiratory care practitioner who is on duty and immediately available in the assigned patient care area.
GROUNDS FOR DENIAL
The Respiratory Care Board (Board) has the authority to deny licensure based on convictions of crimes, acts of dishonesty or fraud, acts involving bodily injury, unlicensed activity, violations of certain sections of the Health and Safety Code, convictions of alcohol/substance abuse, or any act which if done by a licentiate would be grounds for suspension or revocation of a license.
B&P § 3750. Causes for denial of, suspension of, revocation of, or probationary conditions upon license - The board may order the denial, suspension, or revocation of, or the imposition of probationary conditions upon, a license issued under this chapter, for any of the following causes:
(a) Advertising in violation of Section 651 or Section 17500.
(b) Fraud in the procurement of any license under this chapter.
(c) Knowingly employing unlicensed persons who present themselves as licensed respiratory care practitioners.
(d) Conviction of a crime that substantially relates to the qualifications, functions, or duties of a respiratory care practitioner. The record of conviction or a certified copy thereof shall be conclusive evidence of the conviction. [Refer to B&P 3752.5, 3752.6, 3752.7, and CCR 1399.370 for substantial relationship criteria]
(e) Impersonating or acting as a proxy for an applicant in any examination given under this chapter.
(f) Negligence in his or her practice as a respiratory care practitioner.
(g) Conviction of a violation of any of the provisions of this chapter or of any provision of Division 2 (commencing with Section 500), or violating, or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision or term of this chapter or of any provision of Division 2 (commencing with Section 500).
(h) The aiding or abetting of any person to violate this chapter or any regulations duly adopted under this chapter.
(i) The aiding or abetting of any person to engage in the unlawful practice of respiratory care.
(j) The commission of any fraudulent, dishonest, or corrupt act which is substantially related to the qualifications, functions, or duties of a respiratory care practitioner. [Refer to B&P 3752.5, 3752.6, 3752.7, and CCR 1399.370 for substantial relationship criteria]
(k) Falsifying, or making grossly incorrect, grossly inconsistent, or unintelligible entries in any patient, hospital, or other record.
(l) Changing the prescription of a physician and surgeon, or falsifying verbal or written orders for treatment or a diagnostic regime received, whether or not that action resulted in actual patient harm.
(m) Denial, suspension, or revocation of any license to practice by another agency, state, or territory of the United States for any act or omission that would constitute grounds for the denial, suspension, or revocation of a license in this state.
(n) Failure to protect patients by failing to follow infection control guidelines .
(o) Incompetence in his or her practice as a respiratory care practitioner.
(p) A pattern of substandard care.
B&P § 3750.5. Additional grounds for denial, suspension, or revocation of license - In addition to any other grounds specified in this chapter, the board may deny, suspend, or revoke the license of any applicant or licenseholder who has done any of the following:
(a) Obtained or possessed, used, or administered to himself or herself in violation of law, or furnished or administered to another any controlled substances as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, or any dangerous drug as defined in Article 2 (commencing with Section 4015) of Chapter 9, except as directed by a licensed physician and surgeon, dentist, podiatrist or other authorized health care provider.
(b) Used any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, or any dangerous drug as defined in Article 2 (commencing with Section 4015) of Chapter 9 of this code, or alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, or to others, or that impaired his or her ability to conduct with safety the practice authorized by his or her license.
(c) Applied for employment or worked in any health care profession or environment while under the influence of alcohol.
(d) Been convicted of a criminal offense involving the consumption or self-administration of any of the substances described in subdivisions (a) and (b), or the possession of, or falsification of a record pertaining to, the substances described in subdivision (a), in which event the record of the conviction is conclusive evidence thereof.
(e) Been committed or confined by a court of competent jurisdiction for intemperate use of or addiction to the use of any of the substances described in subdivisions (a), (b), and (c), in which event the court order of commitment or confinement is prima facie evidence of that commitment or confinement.
(f) Falsified, or made grossly incorrect, grossly inconsistent, or unintelligible entries in any hospital, patient, or other record pertaining to the substances described in subdivision (a).
B&P § 3754.5. Action against licensee obtaining license by fraud or misrepresentation - The board shall initiate action against any licensee who obtains a license by fraud or misrepresentation.
B&P § 3755. Action for unprofessional conduct - The board may take action against any respiratory care practitioner who is charged with unprofessional conduct in administering, or attempting to administer, direct or indirect respiratory care. Unprofessional conduct includes, but is not limited to, repeated acts of clearly administering directly or indirectly inappropriate or unsafe respiratory care procedures, protocols, therapeutic regimens, or diagnostic testing or monitoring techniques, and violation of any provision of Section 3750. The board may determine unprofessional conduct involving any and all aspects of respiratory care performed by anyone licensed as a respiratory care practitioner. Any person who engages in repeated acts of unprofessional conduct shall be guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment for a term not to exceed six months, or by both that fine and imprisonment.
B&P § 3757. Mental illness or chemical dependency - The board may refuse to issue a license or an authorization to work as a "respiratory care practitioner applicant" whenever it appears that the applicant may be unable to practice his or her profession safely due to mental illness or chemical dependency. The procedures set forth in Article 12.5 (commencing with Section 820) of Chapter 1 shall apply to any denial of a license or authorization pursuant to this section.
B&P § 3760. Unauthorized practice or use of title
(a) Except as otherwise provided in this chapter, no person shall engage in the practice of respiratory care, respiratory therapy, or inhalation therapy. For purposes of this section, engaging in the practice of respiratory care includes, but is not limited to, representations by a person whether through verbal claim, sign, advertisement, letterhead, business card, or other representation that he or she is able to perform any respiratory care service, or performance of any respiratory care service.
(b) No person who is unlicensed or whose respiratory care practitioner license has been revoked or suspended, or whose license is not valid shall engage in the practice of respiratory care during the period of suspension or revocation, even though the person may continue to hold a certificate or registration issued by a private certifying entity.
(c) Except as otherwise provided in this chapter, no person may represent himself or herself to be a respiratory care practitioner, a respiratory therapist, a respiratory care technician, or an inhalation therapist, or use the abbreviation or letters "R.C.P.," "R.P.," "R.T.," or "I.T.," or use any modifications or derivatives of those abbreviations or letters without a current and valid license issued under this chapter.
(d) No respiratory care practitioner applicant shall begin practice as a "respiratory care practitioner applicant" pursuant to Section 3739 until the applicant meets the applicable requirements of this chapter and obtains a valid work permit.
B&P § 3761. License required for practice
(a) No person may practice respiratory care or represent himself or herself to be a respiratory care practitioner in this state, without a valid license granted under this chapter, except as otherwise provided in this chapter.
SUBSTANTIAL RELATIONSHIP CRITERIA
B&P § 3752. Procedure on conviction of felony or other offense relating to professional qualifications - A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge of any offense which substantially relates to the qualifications, functions, or duties of a respiratory care practitioner is deemed to be a conviction within the meaning of this article. The board shall order the license suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.
B&P § 3752.5. Crime involving bodily injury or attempted bodily injury - A crime involving bodily injury or attempted bodily injury shall be considered a crime substantially related to the qualifications, functions, or duties of a respiratory care practitioner.
B&P § 3752.6. Crime involving sexual misconduct - A crime involving sexual misconduct or attempted sexual misconduct, whether or not with a patient, shall be considered a crime substantially related to the qualifications, functions, or duties of a respiratory care practitioner.
CCR §1399.370. Substantial Relationship Criteria - For the purposes of denial, suspension, or revocation of a license, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a respiratory care practitioner, if it evidences present or potential unfitness of a licensee to perform the functions authorized by his or her license or in a manner inconsistent with the public health, safety, or welfare. Such crimes or acts include but are not limited to those involving the following:
(a) Violating or attempting to violate, directly or indirectly, or assisting or abetting the violation of or conspiring to violate any provision or term of the B&P.
(b) Commission of an act or conviction of a crime involving fraud, fiscal dishonesty, theft or larceny.
(c) Commission of an act or conviction of a crime involving driving under the influence or reckless driving while under the influence.
(d) Commission of an act or conviction of a crime involving harassment or stalking as defined by the Penal Code and/or Civil Code.
(e) Commission of an act or conviction of a crime involving lewd conduct, prostitution or solicitation thereof, or pandering and/or indecent exposure, as defined by the Penal Code.
(f) Commission of an act or conviction of a crime involving human trafficking, as defined by the Penal Code.
(g) Commission of an act or conviction of a crime involving gross negligence in the care of an animal or any form of animal cruelty as defined by the B&P or Penal Code.
(h) Failure to comply with a court order
(i) Commission of an act or conviction of a crime, involving verbally abusive conduct or unlawful possession of a firearm or weapon
REHABILITATION CRITERIACCR §1399.372. Rehabilitation Criteria - When considering the denial, petition for reinstatement, modification of probation, suspension or revocation of an RCP license the board will consider the following criteria in evaluating the rehabilitation of such person and his or her eligibility for a license:
(a) The nature and severity of the act(s) or offense(s).
(b) The total criminal record.
(c) The time that has elapsed since the commission of the act(s) or offense(s).
(d) Compliance with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against such person.
(e) Evidence of any subsequent act(s) or crime(s) committed.
(f) Any other evidence of rehabilitation submitted that is acceptable to the board, including:
(1) Successful completion of respiratory care courses with a "C" or better, as determined by the institution;
(2) Active continued attendance or successful completion of rehabilitative programs such as 12-step recovery programs or psychotherapy counseling;
(3) Letters relating to the quality of practice signed under penalty of perjury from licensed health care providers responsible for the supervision of his/her work.
(g) Statements, letters, attestations of good moral character, or references relating to character, reputation, personality, marital/family status, or habits shall not be considered rehabilitation unless they relate to quality of practice as listed in section (f).