Bill 3762

                    Current Status

Bill Number:               3762
Ratification Number:       443
Act Number:                403
Introducing Body:          House
Subject:                   Provide for the regulation of respiratory
                           care, to create the respiratory care committee
                           and provide its responsibilities, to provide
                           fees, and to provide penalties

(A403, R443, H3762)

AN ACT AMEND CHAPTER 47, TITLE 40, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PHYSICIANS, SURGEONS, AND OSTEOPATHS, BY ADDING ARTICLE 5 SO AS TO PROVIDE FOR THE REGULATION OF RESPIRATORY CARE, TO CREATE THE RESPIRATORY CARE COMMITTEE AND PROVIDE ITS RESPONSIBILITIES, TO PROVIDE FEES, AND TO PROVIDE PENALTIES.

Be it enacted by the General Assembly of the State of South Carolina:

Findings

SECTION 1. (A) The General Assembly finds and declares that the practice of respiratory therapy or respiratory care in South Carolina affects the public health, safety, and welfare and should be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of respiratory care and from unprofessional conduct by persons certified to practice respiratory care.

(B) The General Assembly also recognizes the practice of respiratory care to be a dynamic and changing art and science, the practice of which is continually evolving to include newer ideas and more sophisticated techniques in patient care.

(C) The General Assembly further expresses its intent that nothing in this act may be construed to allow, authorize, or otherwise permit a respiratory care practitioner to practice medicine, surgery, or any other form of licensed medical care.

Respiratory Care Practice Act

SECTION 2. Chapter 47, Title 40 of the 1976

Code is amended by adding:

"Article 5

Respiratory Care

Section 40-47-500. This article is known and may be cited as the 'South Carolina Respiratory Care Practice Act'.

Section 40-47-510. As used in this article:

(a) 'Board' means the Board of Medical Examiners of South Carolina.

(b) 'Committee' means the Respiratory Care Committee which is established by this article as an advisory committee responsible to the board.

(c) 'Respiratory care or respiratory therapy' means the allied health profession or specialty which provides educational, therapeutic, or diagnostic procedures utilized in the prevention, detection, and management of deficiencies or abnormalities, or both, of the cardiopulmonary systems.

(d) 'Practice of respiratory care' may include the transcription of a verbal order into patient records for co-signature by the ordering physician and implementation of the physician's written and verbal orders which pertain to the practice of respiratory care if this practice is specifically authorized by the medical director and the health care facility where the care is taking place. In the delivery of respiratory home care this practice must be specifically authorized by the physician sponsor.

(e) 'Respiratory care practitioner' means a respiratory therapist or a respiratory therapy technician certified to practice respiratory therapy who is a graduate of an American Medical Association approved school for respiratory therapy.

(f) 'Medical director' means a physician licensed to practice medicine in South Carolina who has special interest and knowledge in the diagnosis, treatment, and assessment of respiratory problems. The practice of respiratory care or respiratory therapy must occur under the supervision of a qualified medical director. In the home care of cardiopulmonary patients, the existence of qualified physician sponsorship must be submitted and documented to the committee and approved by the board.

Section 40-47-520. Individuals holding themselves out as respiratory therapists and respiratory therapy technicians employed to provide respiratory therapy procedures for inpatients, outpatients, and home patients must be certified in accordance with this article.

Section 40-47-530. This article does not affect:

(a) any person employed to provide respiratory care by the United States government if he provides respiratory care solely under the direction or control of the organization by which he is employed;

(b) any person pursuing a course of study leading to a degree or certificate in respiratory therapy in a program accredited by the American Medical Association in collaboration with the Joint Review Committee for Respiratory Therapy Education if the activities and services constitute a part of a supervised course of study and if he is designated by a title which clearly indicates his status as a student;

(c) any individual or other health care professional who is licensed by the State or who by passage of an examination certified by the National Council of Health certifying agencies, has proven his competency in one or more of the functions included in the definition of the practice of respiratory care as long as he does not represent himself as a respiratory care practitioner;

(d) a respiratory therapy student who may be employed and works under the direct supervision of a respiratory care practitioner and practices to his level of proven clinical competency as certified by an American Medical Association approved program;

(e) any employee of a licensed hospital in this State when performing services commonly within the definition of respiratory care as long as the services are performed within the course and scope of his employment as an employee of the hospital. No regular employee of a licensed hospital in this State is required to be licensed as a condition of employment by or for performance of these services as long as he does not represent himself as a respiratory care practitioner.

Section 40-47-540. There is created the Respiratory Care Committee as an advisory committee to the board which consists of nine members to be appointed by the board. Five of the members must be respiratory care practitioners with at least five years' experience each, one member must be a consumer, and three members must be physicians who are licensed to practice in South Carolina who have special interest and knowledge in the diagnosis, treatment, and assessment of respiratory problems. All of the respiratory care practitioners must be certified except for the first members of the committee, who must be certified as soon after their appointment as possible. All organizations, groups, or interested individuals may submit recommendations to the board of at least two individuals for each position to be filled on the committee.

Section 40-47-550. The members shall serve for terms of four years and until their successors are appointed and qualify, except that initial terms of two practitioners, the consumer member, and one physician, are for two years. Vacancies must be filled in the manner of the original appointment for the unexpired portion of a term. The board, after notice and opportunity for hearing, may remove any member of the committee for neglect of duty, incompetence, revocation or suspension of certification, or other dishonorable conduct. Members of the committee shall receive mileage, subsistence, and per diem provided by law for members of state boards, commissions, and committees for each meeting attended. No member may serve more than one full four-year term consecutively, but he is eligible for reappointment two years from the date the full four-year term expires.

Section 40-47-560. The committee shall meet at least twice each year and at other times as its regulations provide. The quorum for meetings consists of five members with no more than three of these being respiratory care practitioners. At its initial meeting the committee shall elect from its membership a chairman, vice-chairman, and a secretary to serve for one-year terms. The committee may recommend regulations regarding respiratory care necessary to perform its duties which must be reviewed and approved by the board prior to adoption.

Section 40-47-570. The board may employ additional staff as necessary for the performance of its duties under this article and may expend its funds for any purpose the board considers necessary for the proper performance of its duties under this article.

Section 40-47-580. The board shall receive and account for all monies collected under the provision of this article and shall pay the monies to the State Treasurer for deposit in the state general fund.

Section 40-47-590. (A) The committee has the responsibility of evaluating the qualifications and supervising the examinations of applicants for certification and making appropriate recommendations to the board.

(B) The board may issue subpoenas, examine witnesses, and administer oaths, and may investigate allegations of practices violating the provisions of this article.

(C) The committee:

(1) shall recommend regulations to the board relating to professional conduct to carry out the policy of this article including, but not limited to, professional certification and the establishment of ethical standards of practice for persons holding a certificate to practice respiratory care or respiratory therapy in this State;

(2) shall conduct hearings and keep records and minutes necessary to carry out its functions;

(3) shall provide notice of all hearings authorized under this article pursuant to the Administrative Procedures Act;

(4) shall determine the qualifications and make appropriate recommendations regarding the issuance of certificates to qualified respiratory care practitioners;

(5) shall recommend to the board whether to issue or renew certificates under those conditions prescribed in this article;

(6) may recommend continuing professional education to the board;

(7) shall keep a record of its proceedings and a register of all persons certified. The register shall show the name of every registrant and his last known place of employment and residence. The board shall annually compile and make available a list of respiratory care practitioners authorized to practice in this State. Any interested person may obtain a copy of this list upon application to the board and payment of an amount fixed by the board;

(8) shall make an annual report to the board containing an account of duties performed, actions taken, and appropriate recommendations;

(9) shall hear all disciplinary cases and recommend findings of fact, conclusions, and sanctions to the board. The board shall conduct a final order hearing at which it makes a final decision.

Section 40-47-600. An applicant for certification as a respiratory care practitioner shall file a written application on forms provided by the board showing to the satisfaction of the committee and the board that he meets the following requirements:

(a) good moral character;

(b) successful completion of the academic requirements of the Commission on Allied Health Education and Accreditation in respiratory therapy with concentration in biologic and physical science, psychology, or sociology and education in selected manual skills;

(c) successful passage of the entry-level examination given by the National Board for Respiratory Care, Inc., or other examination as the committee, in its discretion, may administer or approve.

Section 40-47-610. (A) The board may certify as a respiratory care practitioner, upon payment of the fee set by the board, an applicant who is a respiratory therapist or a respiratory therapy technician of another state, territory, or the District of Columbia, if the requirements were substantially equal to the requirements of this State as determined by the board;

(B) The committee shall waive the professional education and examination requirements and issue a certificate to any person who can demonstrate to the committee, through evidence verified under oath, that he was actively performing the duties of a respiratory care practitioner in South Carolina within the sixty-day period before the board appoints the committee. The applicants shall produce proof of high school graduation or the equivalent and shall apply within ninety days after the application process is put into effect by the committee.

Section 40-47-620. The board shall issue a certificate to any person who meets the requirements of this article upon payment of the certification fee.

Section 40-47-630. (A) The committee may recommend to the board that it revoke, suspend, issue a public or private reprimand, or impose any other reasonable limitation or practice where the unprofessional, unethical, or illegal conduct of the respiratory care practitioner is likely to endanger the health, welfare, or safety of the public. The conduct includes the following:

(1) use of any false, fraudulent, or forged statement or any fraudulent, deceitful, or dishonest act practiced by the holder of a certificate in connection with any of the certifying requirements;

(2) that the holder of a certificate is addicted to alcohol or drugs to such a degree as to render him unfit to practice respiratory care;

(3) that the holder of a certificate has been convicted of the illegal or unauthorized practice of respiratory care;

(4) that the holder of a certificate has knowingly performed any act which in any way assists an uncertified person to practice respiratory care;

(5) that the holder of a certificate has sustained any physical or mental disability which renders further practice by him dangerous to the public;

(6) that the holder of a certificate has violated the code of ethics or regulations as adopted by the committee and the board;

(7) that the holder of a certificate is guilty of engaging in any dishonorable, unethical, or unprofessional conduct that is likely to deceive or harm the public;

(8) that the holder of a certificate is guilty of the use of any false or fraudulent statement in any document connected with the practice of respiratory care;

(9) that the holder of a certificate has intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation or conspiring to violate any provisions of this article;

(10) that the holder of a certificate is guilty of the commission of any act, during the course of practice conducted pursuant to a certificate issued under this article, that constitutes fraud, dishonest dealing, illegality, incompetence, or gross negligence.

(B) The suspension, revocation, reprimand, or imposition of probationary conditions upon a respiratory care practitioner may be recommended by the committee to the board after a hearing is conducted in accordance with the Administrative Procedures Act. A transcribed record of the hearing must be made.

(C) Any respiratory care practitioner aggrieved by a decision of the committee or board under this section may appeal the decision

to the circuit court on the record made before the committee or board.

Section 40-47-640. (A) Certificates issued under this article are subject to annual renewal and expire unless renewed in the manner prescribed by the regulations of the committee. The committee may recommend additional requirements for certificate renewal which provide evidence of continued competency. The board may provide for the late renewal of a certificate upon payment of a late fee.

(B) An inactive certificate is subject to expiration and may be renewed as provided in this section, but renewal does not entitle the respiratory care practitioner, while the certificate remains inactive, to engage in the certified activity of respiratory therapy or to hold himself out as a respiratory care practitioner. If a certificate suspended on disciplinary grounds is reinstated, the respiratory care practitioner, as a condition of reinstatement, shall pay the renewal fee and any applicable late fee.

Section 40-47-650. The board and the committee shall prescribe fees in amounts recommended by the committee for:

(1) initial certification, not to exceed two hundred dollars;

(2) renewal of certificate fee, not to exceed fifty dollars;

(3) late renewal fee, not to exceed double renewal fee.

The fees must be set in such an amount as to reimburse the State to the extent feasible for the cost of the services rendered by the board.

Section 40-47-660. (A) It is unlawful for any person who is not certified under this article to hold himself out as a respiratory care practitioner, respiratory therapist, or a respiratory therapy technician. Any person who holds himself out as a respiratory care practitioner without being certified under this article, during a period of suspension, or after his certificate has been revoked by the board is guilty of a misdemeanor and upon conviction must be fined not more than three hundred dollars or imprisoned for not more than ninety days, or both.

(B) For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, the court of common pleas, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it, produce documentary evidence, and give other evidence concerning the matter under inquiry.

When the board has sufficient evidence that any person is violating any provisions of this article, it may, in addition to all other remedies, order the person to immediately desist and refrain from this conduct. The board may apply to the court of common pleas for an injunction restraining the person from this conduct. The court may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond may be required of the board by the court as a condition to the issuance of any injunction or order contemplated by the provisions of this section.

(C) Every communication, whether oral or written, made by or on behalf of any person or firm to the board or any person designated by it to investigate or otherwise hear matters relating to the revocation, suspension, or other restriction on a certificate or other discipline of a certificate holder, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, may lie against the person or firm for the communication except upon proof that the communication was made with malice.

(D) No provision of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law nor prohibiting the respondent from normal access to the charges and evidence filed against him as a part of due process under the law."

Appointments to committee

SECTION 3. Initial recommendations for appointment to the Respiratory Care Committee must be made within forty-five days after the effective date of this act, and the Board of Medical Examiners shall appoint the Respiratory Care Committee within ninety days after the effective date of this act.

Time effective

SECTION 4. This act shall take effect upon approval by the Governor.