HOUSE AMENDED
PRIOR PRINTER'S NO. 908 PRINTER'S NO. 1433
No. 752 Session of 2003
INTRODUCED BY DENT, ORIE, WONDERLING, KITCHEN, MOWERY, BOSCOLA
AND CORMAN, JUNE 3, 2003
AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF
REPRESENTATIVES, AS AMENDED, MARCH 16, 2004
AN ACT
1 Amending the act of October 5, 1978 (P.L.1109, No.261), entitled
2 "An act requiring the licensing of practitioners of
3 osteopathic medicine and surgery; regulating their practice;
4 providing for certain funds and penalties for violations and
5 repeals," further providing for respiratory care <--
6 practitioners certificates and permits; providing for refusal
7 or suspension or revocation of respiratory care practitioner
8 certificates, for automatic suspension and temporary
9 suspension of respiratory care practitioners, for impaired
10 professionals and for continuing respiratory care education.
11 TEMPORARY RESPIRATORY CARE PERMITS; AND PROVIDING FOR <--
12 CONTINUING EDUCATION.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 Section 1. Section 10.2(b) of the act of October 5, 1978
16 (P.L.1109, No.261), known as the Osteopathic Medical Practice
17 Act, added July 2, 1993 (P.L.418, No.59), is amended and the
18 section is amended by adding a subsection to read:
19 Section 10.2. Respiratory care practitioner certificates and
20 permits.
21 * * *
22 (b) [Twelve months after the effective date of this section,
1 the] The board shall issue temporary permits for the practice of
2 respiratory care to individuals who have applied for
3 certification from the board and who meet any of the following
4 requirements:
5 (1) Graduation from an accredited respiratory care
6 training program recognized by the board.
7 (2) Enrollment in an accredited respiratory care
8 training program recognized by the board if the individual is
9 expected to graduate within 30 days from the date of
10 application.
11 (3) Designation as a "Certified Respiratory [Therapy <--
12 Technician"] THERAPIST" or a "Registered Respiratory <--
13 Therapist" by a nationally recognized credentialing agency
14 approved by the board.
15 (4) Continuous provision of respiratory care services
16 for a minimum of 12 months immediately preceding the
17 effective date of this section.
18 (5) Holding certification, licensure or registration as
19 a respiratory care practitioner issued by another state, the
20 District of Columbia or a territory of the United States
21 where the requirements for licensure, registration or
22 certification are substantially similar to those required by
23 the board.
24 (b.1) Beginning with the renewal cycle which commences after <--
25 the effective date of this subsection, the board shall refuse to
26 renew a certificate issued to a respiratory care practitioner
27 unless he has completed 20 credit hours of approved continuing
28 education offered by providers approved by the board by
29 regulation.
30 (b.2) The board shall not issue a certificate or permit to
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1 an applicant who has been convicted of a felony under the act of
2 April 14, 1972 (P.L.233, No.64), known as "The Controlled
3 Substance, Drug, Device and Cosmetic Act," or of an offense
4 under the laws of another jurisdiction which, if committed in
5 this Commonwealth, would be a felony under "The Controlled
6 Substance, Drug, Device and Cosmetic Act," unless:
7 (1) at least ten years have elapsed from the date of
8 conviction;
9 (2) the applicant satisfactorily demonstrates to the
10 board that he has made significant progress in personal
11 rehabilitation since the conviction such that certification
12 of the applicant should not be expected to create a
13 substantial risk of harm to the health and safety of patients
14 or the public or a substantial risk of further criminal
15 violations; and
16 (3) the applicant otherwise satisfies the qualifications
17 contained in or authorized by this act.
18 As used in this subsection, the term "convicted" includes a
19 finding or verdict of guilt, an admission of guilt or a plea of
20 nolo contendere.
21 * * *
22 (F) (1) THE BOARD SHALL ADOPT, PROMULGATE AND ENFORCE RULES <--
23 AND REGULATIONS CONSISTENT WITH THE PROVISIONS OF THIS ACT
24 ESTABLISHING REQUIREMENTS OF CONTINUING EDUCATION TO BE MET
25 BY INDIVIDUALS HOLDING CERTIFICATION AS RESPIRATORY CARE
26 PRACTITIONERS UNDER THIS ACT AS A CONDITION FOR CERTIFICATE
27 RENEWAL. THE REGULATIONS SHALL INCLUDE ANY FEES NECESSARY FOR
28 THE BOARD TO CARRY OUT ITS RESPONSIBILITIES UNDER THIS
29 SECTION.
30 (2) BEGINNING WITH THE LICENSE PERIOD DESIGNATED BY
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1 REGULATION, CERTIFICATE HOLDERS SHALL BE REQUIRED TO ATTEND
2 AND COMPLETE 20 HOURS OF MANDATORY CONTINUING EDUCATION
3 DURING EACH TWO-YEAR CERTIFICATE PERIOD.
4 (3) AN INDIVIDUAL APPLYING FOR THE FIRST TIME FOR
5 CERTIFICATION IN THIS COMMONWEALTH SHALL BE EXEMPTED FROM THE
6 CONTINUING EDUCATION REQUIREMENT FOR THE BIENNIAL RENEWAL
7 PERIOD FOLLOWING INITIAL CERTIFICATION.
8 (4) THE BOARD MAY WAIVE ALL OR A PORTION OF THE
9 CONTINUING EDUCATION REQUIREMENT FOR BIENNIAL RENEWAL FOR A
10 CERTIFICATE HOLDER WHO SHOWS TO THE SATISFACTION OF THE BOARD
11 THAT THE INDIVIDUAL WAS UNABLE TO COMPLETE THE REQUIREMENTS
12 DUE TO SERIOUS ILLNESS, MILITARY SERVICE OR OTHER
13 DEMONSTRATED HARDSHIP. THE REQUEST SHALL BE MADE IN WRITING,
14 WITH APPROPRIATE DOCUMENTATION, AND SHALL INCLUDE A
15 DESCRIPTION OF CIRCUMSTANCES SUFFICIENT TO SHOW WHY THE
16 CERTIFICATE HOLDER IS UNABLE TO COMPLY WITH THE CONTINUING
17 EDUCATION REQUIREMENT. WAIVER REQUESTS SHALL BE EVALUATED BY
18 THE BOARD ON A CASE-BY-CASE BASIS. THE BOARD SHALL SEND THE
19 CERTIFICATE HOLDER WRITTEN NOTIFICATION OF ITS APPROVAL OR
20 DENIAL OF A WAIVER REQUEST.
21 (5) A CERTIFICATE HOLDER SEEKING TO REINSTATE AN
22 INACTIVE OR LAPSED CERTIFICATE SHALL SHOW PROOF OF COMPLIANCE
23 WITH THE CONTINUING EDUCATION REQUIREMENT FOR THE PRECEDING
24 BIENNIUM.
25 (6) ALL COURSES, LOCATIONS, INSTRUCTORS AND PROVIDERS
26 SHALL BE APPROVED BY THE BOARD. NO CREDIT SHALL BE GIVEN FOR
27 ANY COURSE IN OFFICE MANAGEMENT.
28 (7) THE BOARD SHALL INITIATE THE PROMULGATION OF
29 REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS SECTION
30 WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS SUBSECTION.
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1 Section 2. The act is amended by adding sections to read: <--
2 Section 10.3. Refusal or suspension or revocation of
3 certificate or permit.
4 (a) The board shall refuse to issue a respiratory care
5 practitioner certificate or permit to any person and, after
6 notice and hearing in accordance with rules and regulations, may
7 suspend or revoke the certificate or permit of any person who
8 has:
9 (1) attempted or obtained certification or a permit by
10 fraud or misrepresentation;
11 (2) committed repeated occasion of negligence or
12 incompetence in the practice of respiratory therapy;
13 (3) been convicted of a felony in a Federal court or in
14 the courts of this Commonwealth or any other state, territory
15 or country;
16 (4) habitually indulged in the use of narcotics or other
17 habit-forming drugs or excessively indulged in the use of
18 alcoholic liquors;
19 (5) been found guilty of unprofessional conduct;
20 (6) treated or undertaken to treat human ailments
21 otherwise than by respiratory therapy as defined in this act;
22 (7) had his certificate or permit to practice
23 respiratory therapy revoked or suspended or had other
24 disciplinary action taken or his application for a
25 certificate or permit revoked or suspended by the proper
26 certifying or licensing authority of another state, territory
27 or country; or
28 (8) made a misleading, deceptive, untrue or fraudulent
29 representation in violation of this act or otherwise in the
30 practice of the profession.
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1 (b) All action of the board shall be taken subject to the
2 right of notice, hearing and adjudication and the right of
3 appeal therefrom in accordance with 2 Pa.C.S. (relating to
4 administrative law and procedure).
5 (c) Unless ordered to do so by a court, the board shall not
6 reinstate the certificate or permit of a person to practice as a
7 respiratory therapist which has been revoked, and such person
8 shall be required to apply for a certificate or permit after a
9 five-year period if he desires to practice at any time after
10 such revocation.
11 (d) As used in this section, the following words and phrases
12 shall have the meanings given to them in this subsection:
13 "Convicted." Includes a finding or verdict of guilt, an
14 admission of guilt or a plea of nolo contendere.
15 "Unprofessional conduct." Includes any departure from or the
16 failure to conform to the minimal standards of acceptable and
17 prevailing respiratory therapy practice, in which proceeding
18 actual injury to a patient need not be established.
19 Section 10.4. Automatic suspension of respiratory care
20 practitioners.
21 (a) A certificate or permit issued under section 10.2 shall
22 automatically be suspended upon:
23 (1) the legal commitment of a certificate or permit
24 holder to an institution because of mental incompetence from
25 any cause upon filing with the board a certified copy of such
26 commitment; or
27 (2) conviction of a felony under the act of April 14,
28 1972 (P.L.233, No.64), known as "The Controlled Substance,
29 Drug, Device and Cosmetic Act."
30 (b) Automatic suspension under this section shall not be
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1 stayed pending an appeal of a conviction.
2 (c) Restoration of such certificate or permit shall be made
3 as provided in this act for revocation or suspension of such
4 certificate or permit holder.
5 (d) As used in this section, "conviction" includes a finding
6 or verdict of guilt, an admission of guilt or a plea of nolo
7 contendere.
8 Section 10.5. Temporary suspension of respiratory care
9 practitioners.
10 (a) The board shall temporarily suspend a certificate or
11 permit issued under section 10.2 under circumstances as
12 determined by the board to be an immediate and clear danger to
13 the public health or safety.
14 (b) The board shall issue an order to that effect without a
15 hearing, but upon due notice, to the certificate or permit
16 holder concerned at his last known address, which shall include
17 a written statement of all allegations against the certificate
18 or permit holder. The board shall thereupon commence formal
19 action to suspend, revoke or restrict the certificate or permit
20 of the person concerned as otherwise provided for in this act.
21 All actions shall be taken promptly and without delay.
22 (c) Within 30 days following the issuance of an order
23 temporarily suspending a certificate or permit, the board shall
24 conduct, or cause to be conducted, a preliminary hearing to
25 determine whether there is a prima facie case supporting the
26 suspension. The certificate or permit holder whose certificate
27 or permit has been temporarily suspended may be present at the
28 preliminary hearing and may be represented by counsel, cross-
29 examine witnesses, inspect physical evidence, call witnesses,
30 offer evidence and testimony and make a record of the
20030S0752B1433 - 7 -
1 proceedings. If it is determined that there is not a prima facie
2 case, the suspended certificate or permit shall be immediately
3 restored.
4 (d) The temporary suspension shall remain in effect until
5 vacated by the board, but in no event longer than 180 days.
6 Section 10.6. Impaired professionals.
7 (a) The board, with the approval of the Commissioner of
8 Professional and Occupational Affairs, shall appoint and fix the
9 compensation of a professional consultant who shall be a
10 licensee of the board or such other professional, as the board
11 may determine, with education and experience in the
12 identification, treatment and rehabilitation of persons with
13 physical or mental impairments. This consultant shall be
14 accountable to the board and shall act as a liaison between the
15 board and treatment programs, such as alcohol and drug treatment
16 programs licensed by the Department of Health, psychological
17 counseling and impaired professional support groups which are
18 approved by the board and which provide services to licensees,
19 registrants or certificate holders under this act.
20 (b) The board may defer and ultimately dismiss any of the
21 types of corrective actions set forth in this act for an
22 impaired professional so long as the professional:
23 (1) is progressing satisfactorily in an approved
24 treatment program; and
25 (2) has not been convicted of a felonious act prohibited
26 by the act of April 14, 1972 (P.L.233, No.64), known as "The
27 Controlled Substance, Drug, Device and Cosmetic Act," or
28 convicted of a felony relating to a controlled substance in a
29 court of law of the United States or any other state,
30 territory or country.
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1 (c) An approved program provider shall upon request disclose
2 to the consultant such information in its possession regarding
3 an impaired professional in treatment which the program provider
4 is not prohibited from disclosing by an act of this
5 Commonwealth, another state or the United States. The
6 requirement of disclosure by an approved program provider shall
7 apply in the case of impaired professionals who:
8 (1) Enter an agreement in accordance with this section.
9 (2) Are the subject of a board investigation or
10 disciplinary proceeding.
11 (3) Voluntarily enter a treatment program other than
12 under the provisions of this section but who fail to complete
13 the program successfully or to adhere to an aftercare plan
14 developed by the program provider.
15 (d) (1) An impaired professional who enrolls in an approved
16 treatment program shall enter into an agreement with the
17 board under which the professional's license, registration or
18 certificate shall be suspended or revoked and under which
19 enforcement of that suspension or revocation may be stayed
20 for the length of time the professional remains in the
21 program and makes satisfactory progress, complies with the
22 terms of the agreement and adheres to any limitations on his
23 practice imposed by the board to protect the public.
24 (2) Failure to enter into such an agreement shall
25 disqualify the professional from the impaired professional
26 program and shall activate an immediate investigation and
27 disciplinary proceeding by the board.
28 (e) If, in the opinion of the consultant after consultation
29 with the provider, an impaired professional who is enrolled in
30 an approved treatment program has not progressed satisfactorily,
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1 the consultant shall report to the board all information in his
2 possession regarding the professional, and the board shall
3 institute proceedings to determine if the stay of the
4 enforcement of the suspension or revocation of the impaired
5 professional's license, registration or certificate shall be
6 vacated.
7 (f) An approved program provider who makes a disclosure
8 pursuant to this section shall not be subject to civil liability
9 for such disclosure or its consequences.
10 (g) (1) Any hospital or health care facility or home health
11 care operation, peer or colleague who has substantial
12 evidence that a professional has an active addictive disease
13 for which the professional is not receiving treatment, is
14 diverting a controlled substance or is mentally or physically
15 incompetent to carry out the duties of his license or
16 registration or certification shall make or cause to be made
17 a report to the board.
18 (2) A person or facility who acts in a treatment
19 capacity to an impaired professional in an approved treatment
20 program shall not be subject to the mandatory reporting
21 requirements of this subsection.
22 (3) Any person or facility who reports pursuant to this
23 subsection in good faith and without malice shall be immune
24 from a civil or criminal liability arising from such report.
25 (4) Failure to provide a report under this subsection
26 within a reasonable time from receipt of knowledge of
27 impairment shall subject the person or facility to a fine not
28 to exceed $1,000. The board shall levy this penalty only
29 after affording the party the opportunity for a hearing, as
30 provided in 2 Pa.C.S. (relating to administrative law and
20030S0752B1433 - 10 -
1 procedure).
2 Section 3 2. This act shall take effect in 60 days. <--
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