PRINTER'S NO. 2393
No. 1836 Session of 2001
INTRODUCED BY J. TAYLOR, JUNE 22, 2001
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, JUNE 22, 2001
AN ACT
1 Amending the act of December 20, 1985 (P.L.457, No.112),
2 entitled "An act relating to the right to practice medicine
3 and surgery and the right to practice medically related acts;
4 reestablishing the State Board of Medical Education and
5 Licensure as the State Board of Medicine and providing for
6 its composition, powers and duties; providing for the
7 issuance of licenses and certificates and the suspension and
8 revocation of licenses and certificates; providing penalties;
9 and making repeals," further providing for respiratory care
10 practitioners; and providing for refusal or suspension or
11 revocation of respiratory care practitioner certificates, for
12 automatic suspension and temporary suspension of respiratory
13 care practitioners, for impaired professionals and for
14 continuing respiratory care education.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Section 13.1(a) of the act of December 20, 1985
18 (P.L.457, No.112), known as the Medical Practice Act of 1985,
19 added July 2, 1993 (P.L.424, No.60), is amended to read:
20 Section 13.1. Respiratory care practitioners.
21 (a) Certificate required.--[Eighteen months after the
22 effective date of this section, it]
23 (1) It shall be unlawful for any person to hold himself
24 out to the public as a respiratory care practitioner and to
1 practice or offer to practice respiratory care unless he
2 holds a valid, current temporary permit or certificate issued
3 by the board.
4 (2) Beginning with the renewal cycle which commences
5 after the effective date of this paragraph, the board shall
6 refuse to renew a certificate issued to a respiratory care
7 practitioner unless he has completed 20 credit hours of
8 approved continuing education offered by providers approved
9 by the board by regulation.
10 (3) The board shall not issue a certificate to an
11 applicant who has been convicted of a felony under the act of
12 April 14, 1972 (P.L.233, No.64), known as The Controlled
13 Substance, Drug, Device and Cosmetic Act, or of an offense
14 under the laws of another jurisdiction which, if committed in
15 this Commonwealth, would be a felony under The Controlled
16 Substance, Drug, Device and Cosmetic Act, unless:
17 (i) at least ten years have elapsed from the date of
18 conviction;
19 (ii) the applicant satisfactorily demonstrates to
20 the board that he has made significant progress in
21 personal rehabilitation since the conviction such that
22 certification of the applicant should not be expected to
23 create a substantial risk of harm to the health and
24 safety of patients or the public or a substantial risk of
25 further criminal violations; and
26 (iii) the applicant otherwise satisfies the
27 qualifications contained in or authorized by this act.
28 As used in this subsection, the term "convicted" includes a
29 finding or verdict of guilt, an admission of guilt or a plea of
30 nolo contendere.
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1 * * *
2 Section 2. The act is amended by adding sections to read:
3 Section 13.3. Refusal or suspension or revocation of
4 certificate.
5 (a) General rule.--The board shall refuse to issue a
6 respiratory care practitioner certificate to any person and,
7 after notice and hearing in accordance with rules and
8 regulations, may suspend or revoke the certificate of any person
9 who has:
10 (1) attempted or obtained certification by fraud or
11 misrepresentation;
12 (2) committed repeated occasion of negligence or
13 incompetence in the practice of respiratory therapy;
14 (3) been convicted of a felony in a Federal court or in
15 the courts of this Commonwealth or any other state, territory
16 or country;
17 (4) habitually indulged in the use of narcotics or other
18 habit-forming drugs or excessively indulged in the use of
19 alcoholic liquors;
20 (5) been found guilty of unprofessional conduct;
21 (6) treated or undertaken to treat human ailments
22 otherwise than by respiratory therapy as defined in this act;
23 (7) had his certificate or license to practice
24 respiratory therapy revoked or suspended or had other
25 disciplinary action taken or his application for a
26 certificate or license revoked or suspended by the proper
27 certifying or licensing authority of another state, territory
28 or country; or
29 (8) made a misleading, deceptive, untrue or fraudulent
30 representation in violation of this act or otherwise in the
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1 practice of the profession.
2 (b) Procedure.--All action of the board shall be taken
3 subject to the right of notice, hearing and adjudication and the
4 right of appeal therefrom in accordance with 2 Pa.C.S. (relating
5 to administrative law and procedure).
6 (c) Reinstatement.--Unless ordered to do so by a court, the
7 board shall not reinstate the certificate of a person to
8 practice as a respiratory therapist which has been revoked, and
9 such person shall be required to apply for a certificate after a
10 five-year period if he desires to practice at any time after
11 such revocation.
12 (d) Definitions.--As used in this section, the following
13 words and phrases shall have the meanings given to them in this
14 subsection:
15 "Convicted." Includes a finding or verdict of guilt, an
16 admission of guilt or a plea of nolo contendere.
17 "Unprofessional conduct." Includes any departure from or the
18 failure to conform to the minimal standards of acceptable and
19 prevailing respiratory therapy practice, in which proceeding
20 actual injury to a patient need not be established.
21 Section 13.4. Automatic suspension of respiratory care
22 practitioners.
23 (a) General rule.--A certificate issued under section 13.1
24 shall automatically be suspended upon:
25 (1) the legal commitment of a certificate holder to an
26 institution because of mental incompetence from any cause
27 upon filing with the board a certified copy of such
28 commitment; or
29 (2) conviction of a felony under the act of April 14,
30 1972 (P.L.233, No.64), known as The Controlled Substance,
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1 Drug, Device and Cosmetic Act.
2 (b) Stay prohibited.--Automatic suspension under this
3 section shall not be stayed pending an appeal of a conviction.
4 (c) Restoration.--Restoration of such certificate shall be
5 made as provided in this act for revocation or suspension of
6 such certificate holder.
7 (d) Definitions.--As used in this section, "conviction"
8 includes a finding or verdict of guilt, an admission of guilt or
9 a plea of nolo contendere.
10 Section 13.5. Temporary suspension of respiratory care
11 practitioners.
12 (a) Standard for suspension.--The board shall temporarily
13 suspend a certificate issued under section 13.1 under
14 circumstances as determined by the board to be an immediate and
15 clear danger to the public health or safety.
16 (b) Procedure.--The board shall issue an order to that
17 effect without a hearing, but upon due notice, to the
18 certificate holder concerned at his last known address, which
19 shall include a written statement of all allegations against the
20 certificate holder. The board shall thereupon commence formal
21 action to suspend, revoke or restrict the certificate of the
22 person concerned as otherwise provided for in this act. All
23 actions shall be taken promptly and without delay.
24 (c) Preliminary hearing.--Within 30 days following the
25 issuance of an order temporarily suspending a certificate, the
26 board shall conduct, or cause to be conducted, a preliminary
27 hearing to determine whether there is a prima facie case
28 supporting the suspension. The certificate holder whose
29 certificate has been temporarily suspended may be present at the
30 preliminary hearing and may be represented by counsel, cross-
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1 examine witnesses, inspect physical evidence, call witnesses,
2 offer evidence and testimony and make a record of the
3 proceedings. If it is determined that there is not a prima facie
4 case, the suspended certificate shall be immediately restored.
5 (d) Suspension period.--The temporary suspension shall
6 remain in effect until vacated by the board, but in no event
7 longer than 180 days.
8 Section 13.6. Impaired professionals.
9 (a) Consultant to board.--The board, with the approval of
10 the commissioner, shall appoint and fix the compensation of a
11 professional consultant who shall be a licensee of the board or
12 such other professional, as the board may determine, with
13 education and experience in the identification, treatment and
14 rehabilitation of persons with physical or mental impairments.
15 This consultant shall be accountable to the board and shall act
16 as a liaison between the board and treatment programs, such as
17 alcohol and drug treatment programs licensed by the Department
18 of Health, psychological counseling and impaired professional
19 support groups which are approved by the board and which provide
20 services to licensees, registrants or certificate holders under
21 this act.
22 (b) Deferral and dismissal of corrective action.--
23 (1) The board may defer and ultimately dismiss any of
24 the types of corrective actions set forth in this act for an
25 impaired professional so long as the professional:
26 (i) is progressing satisfactorily in an approved
27 treatment program; and
28 (ii) has not been convicted of a felonious act
29 prohibited by the act of April 14, 1972 (P.L.233, No.64),
30 known as The Controlled Substance, Drug, Device and
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1 Cosmetic Act, or convicted of a felony relating to a
2 controlled substance in a court of law of the United
3 States or any other state, territory or country.
4 (c) Disclosure of information to consultant.--An approved
5 program provider shall upon request disclose to the consultant
6 such information in its possession regarding an impaired
7 professional in treatment which the program provider is not
8 prohibited from disclosing by an act of this Commonwealth,
9 another state or the United States. The requirement of
10 disclosure by an approved program provider shall apply in the
11 case of impaired professionals who:
12 (1) Enter an agreement in accordance with this section.
13 (2) Are the subject of a board investigation or
14 disciplinary proceeding.
15 (3) Voluntarily enter a treatment program other than
16 under the provisions of this section but who fail to complete
17 the program successfully or to adhere to an aftercare plan
18 developed by the program provider.
19 (d) Agreement with board required.--
20 (1) An impaired professional who enrolls in an approved
21 treatment program shall enter into an agreement with the
22 board under which the professional's license, registration or
23 certificate shall be suspended or revoked and under which
24 enforcement of that suspension or revocation may be stayed
25 for the length of time the professional remains in the
26 program and makes satisfactory progress, complies with the
27 terms of the agreement and adheres to any limitations on his
28 practice imposed by the board to protect the public.
29 (2) Failure to enter into such an agreement shall
30 disqualify the professional from the impaired professional
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1 program and shall activate an immediate investigation and
2 disciplinary proceeding by the board.
3 (e) Consultant report to board.--If, in the opinion of the
4 consultant after consultation with the provider, an impaired
5 professional who is enrolled in an approved treatment program
6 has not progressed satisfactorily, the consultant shall report
7 to the board all information in his possession regarding the
8 professional, and the board shall institute proceedings to
9 determine if the stay of the enforcement of the suspension or
10 revocation of the impaired professional's license, registration
11 or certificate shall be vacated.
12 (f) Immunity for provider.--An approved program provider who
13 makes a disclosure pursuant to this section shall not be subject
14 to civil liability for such disclosure or its consequences.
15 (g) Health professional duty to report.--
16 (1) Any hospital or health care facility or home health
17 care operation, peer or colleague who has substantial
18 evidence that a professional has an active addictive disease
19 for which the professional is not receiving treatment, is
20 diverting a controlled substance or is mentally or physically
21 incompetent to carry out the duties of his license or
22 registration or certification shall make or cause to be made
23 a report to the board.
24 (2) A person or facility who acts in a treatment
25 capacity to an impaired professional in an approved treatment
26 program shall not be subject to the mandatory reporting
27 requirements of this subsection.
28 (3) Any person or facility who reports pursuant to this
29 subsection in good faith and without malice shall be immune
30 from a civil or criminal liability arising from such report.
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1 (4) Failure to provide a report under this subsection
2 within a reasonable time from receipt of knowledge of
3 impairment shall subject the person or facility to a fine not
4 to exceed $1,000. The board shall levy this penalty only
5 after affording the party the opportunity for a hearing, as
6 provided in 2 Pa.C.S. (relating to administrative law and
7 procedure).
8 Section 3. This act shall take effect in 60 days.
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