2010 California Code
Business and Professions Code
Article 5. Suspension, Revocation, And Reinstatement Of Certificates

3750.  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.
   (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.
   (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) Except for good cause, the knowing failure to protect patients
by failing to follow infection control guidelines of the board,
thereby risking transmission of blood-borne infectious diseases from
licensee to patient, from patient to patient, and from patient to
licensee. In administering this subdivision, the board shall consider
referencing the standards, regulations, and guidelines of the State
Department of Health Services developed pursuant to Section 1250.11
of the Health and Safety Code and the standards, regulations, and
guidelines pursuant to the California Occupational Safety and Health
Act of 1973 (Part 1 (commencing with Section 6300) of Division 5 of
the Labor Code) for preventing the transmission of HIV, hepatitis B,
and other blood-borne pathogens in health care settings. As
necessary, the board shall consult with the California Medical Board,
the Board of Podiatric Medicine, the Board of Dental Examiners, the
Board of Registered Nursing, and the Board of Vocational Nursing and
Psychiatric Technicians, to encourage appropriate consistency in the
implementation of this subdivision.
   The board shall seek to ensure that licensees are informed of the
responsibility of licensees and others to follow infection control
guidelines, and of the most recent scientifically recognized
safeguards for minimizing the risk of transmission of blood-borne
infectious diseases.
   (o) Incompetence in his or her practice as a respiratory care
practitioner.
   (p) A pattern of substandard care.



3750.5.  In addition to any other grounds specified in this chapter,
the board may deny, suspend, place on probation, or revoke the
license of any applicant or licenseholder who has done any of the
following:
   (a) Obtained, 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).




3750.51.  (a) Except as provided in subdivisions (b), (c), and (e),
any accusation filed against a licensee pursuant to Section 11503 of
the Government Code shall be filed within three years from the date
the board discovers the alleged act or omission that is the basis for
disciplinary action, or within seven years from the date the alleged
act or omission that is the basis for disciplinary action occurred,
whichever occurs first.
   (b) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging the procurement of a license by
fraud or misrepresentation is not subject to the limitations set
forth in subdivision (a).
   (c) The limitation provided for by subdivision (a) shall be tolled
for the length of time required to obtain compliance when a report
required to be filed by the licensee or registrant with the board
pursuant to Article 11 (commencing with Section 800) of Chapter 1 is
not filed in a timely fashion.
   (d) If an alleged act or omission involves a minor, the seven-year
limitations period provided for by subdivision (a) and the 10-year
limitations period provided for by subdivision (e) shall be tolled
until the minor reaches the age of majority.
   (e) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging sexual misconduct shall be
filed within three years after the board discovers the act or
omission alleged as the ground for disciplinary action, or within 10
years after the act or omission alleged as the ground for
disciplinary action occurs, whichever occurs first.
   (f) The limitations period provided by subdivision (a) shall be
tolled during any period if material evidence necessary for
prosecuting or determining whether a disciplinary action would be
appropriate is unavailable to the board due to an ongoing criminal
investigation.



3750.6.  Upon request, every holder of a pocket license shall
produce for inspection the original pocket license issued by the
board. A facsimile of the license is not sufficient for that purpose.
   Upon request, every applicant issued a work permit shall produce
for inspection the original permit issued by the board. A facsimile
of the work permit is not sufficient for that purpose.



3751.  (a) A person whose license has been revoked, surrendered, or
suspended, or placed on probation, may petition the board for
reinstatement, modification, or termination of probation, provided
the person has paid all outstanding fees, fines, and cost recovery in
full, and monthly probation monitoring payments are current.
   (b) A person petitioning for reinstatement of his or her license
that has been revoked or surrendered for three or more years shall
also meet the current education requirements required for initial
licensure.
   (c) A petition may be filed only after a period of time has
elapsed, but not less than the following minimum periods from the
effective date of the decision ordering that disciplinary action:
   (1) At least three years for reinstatement of a license that has
been revoked or surrendered.
   (2) At least two years for early termination of probation of three
years or more.
   (3) At least one year for modification of a condition, or
reinstatement of a license revoked or surrendered for mental or
physical illness, or termination of probation of less than three
years.
   (d) The petition shall state any facts as may be required by the
board. The petition shall be accompanied by at least two verified
recommendations from licensed health care practitioners who have
personal knowledge of the professional activities of the petitioner
since the disciplinary penalty was imposed. The board may accept or
reject the petition.
   (e) Written or oral argument may be provided by the petitioner or,
at the request of the board, by the Attorney General. Unless the
board or the petitioner requests the presentation of oral argument,
the petition shall be considered and voted upon by mail. If the
petitioner or the board requests the opportunity for oral argument,
the petition shall be heard by the board or the board may assign the
petition to an administrative law judge.
   (f) Consideration shall be given to all activities of the
petitioner since the disciplinary action was taken, the offense for
which the petitioner was disciplined, the petitioner's activities
during the time the license was in good standing, and the petitioner'
s rehabilitative efforts, general reputation for truth, and
professional ability.
   (g) The board may deny the petition for reinstatement, reinstate
the license without terms and conditions, require an examination for
the reinstatement, restoration, or modification of probation, or
reinstate the license with terms and conditions as it deems
necessary. Where a petition is heard by an administrative law judge,
the administrative law judge shall render a proposed decision to the
board denying the petition for reinstatement, reinstating the license
without terms and conditions, requiring an examination for the
reinstatement, or reinstating the license with terms and conditions
as he or she deems necessary. The board may take any action with
respect to the proposed decision and petition as it deems
appropriate.
   (h) No petition shall be considered under either of the following
circumstances:
   (1) If the petitioner is under sentence for any criminal offense
including any period during which the petitioner is on court-imposed
probation or parole.
   (2) If an accusation or a petition to revoke probation is pending
against the person.
   (i) The board may deny without a hearing or argument any petition
filed pursuant to this section within a period of three years from
the effective date of the prior decision.
   (j) Petitions for reinstatement shall include a processing fee
equal to fees charged pursuant to subdivisions (a) and (h) of Section
3775. In addition, petitions for reinstatement that are granted
shall include a fee equal to the fee charged pursuant to subdivision
(d) of Section 3775, before the license may be reinstated.
   (k) Nothing in this section shall be deemed to alter Sections 822
and 823.


3751.5.  Notwithstanding Section 489, a person whose application for
licensure has been denied for cause may reapply to the board for
licensure only after a period of three years has elapsed from the
date of the denial.


3752.  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.



3752.5.  For purposes of Division 1.5 (commencing with Section 475),
and this chapter, 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.



3752.6.  For purposes of Division 1.5 (commencing with Section 475),
and this chapter, 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.


3752.7.  Notwithstanding Section 3750, any proposed decision or
decision issued under this chapter in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee or registrant engaged in any act of
sexual contact, as defined in Section 729, with a patient, or has
committed an act or been convicted of a sex offense as defined in
Section 44010 of the Education Code, shall contain an order of
revocation. The revocation shall not be stayed by the administrative
law judge. For purposes of this section, the patient shall no longer
be considered a patient of the respiratory care practitioner when the
order for respiratory procedures is terminated, discontinued, or not
renewed by the prescribing physician and surgeon.



3753.  The procedure in all matters and proceedings relating to the
denial, suspension, or revocation of licenses under this chapter
shall be governed by the provisions of the Administrative Procedure
Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code).



3753.1.  (a) An administrative disciplinary decision imposing terms
of probation may include, among other things, a requirement that the
licensee-probationer pay the monetary costs associated with
monitoring the probation.
   (b) The board shall not renew or reinstate the license of any
licensee who has failed to pay all of the costs ordered under this
section once a licensee has served his or her term of probation.




3753.5.  (a) In any order issued in resolution of a disciplinary
proceeding before the board, the board or the administrative law
judge may direct any practitioner or applicant found to have
committed a violation or violations of law or any term and condition
of board probation to pay to the board a sum not to exceed the costs
of the investigation and prosecution of the case. A certified copy of
the actual costs, or a good faith estimate of costs where actual
costs are not available, signed by the official custodian of the
record or his or her designated representative shall be prima facie
evidence of the actual costs of the investigation and prosecution of
the case.
   (b) The costs shall be assessed by the administrative law judge
and shall not be increased by the board; however, the costs may be
imposed or increased by the board if it does not adopt the proposed
decision of the case.
   Where an order for recovery of costs is made and timely payment is
not made as directed in the board's decision the board may enforce
the order for repayment in any appropriate court. This right of
enforcement shall be in addition to any other rights the board may
have as to any practitioner directed to pay costs.
   (c) In any action for recovery of costs, proof of the board's
decision shall be conclusive proof of the validity of the order of
payment and the terms for payment.
   (d) (1) The board shall not renew or reinstate the license of any
licensee who has failed to pay all of the costs ordered under this
section.
   (2) Notwithstanding paragraph (1), the board may, in its
discretion, conditionally renew, for a maximum of one year, the
license of any licensee who demonstrates financial hardship, through
documentation satisfactory to the board, and who enters into a formal
agreement with the board to reimburse the board within that one-year
period for those unpaid costs.



3753.7.  For purposes of this chapter, costs of prosecution shall
include attorney general or other prosecuting attorney fees, expert
witness fees, and other administrative, filing, and service fees.



3754.  The board may deny an application for, or issue with terms
and conditions, or suspend or revoke, or impose probationary
conditions upon, a license in any decision made after a hearing, as
provided in Section 3753.


3754.5.  The board shall initiate action against any licensee who
obtains a license by fraud or misrepresentation. The board shall take
action against any licensee whose license was issued by mistake.



3755.  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.


3756.  (a) A respiratory care practitioner who provides respiratory
care may be ordered to undergo a professional competency examination
approved by the board if, after investigation and review by one or
more respiratory care practitioner consultants of the board, there is
reasonable cause to believe that the person providing respiratory
care is unable or unwilling to practice respiratory care with
reasonable skill and patient safety. Reasonable cause shall be
determined by the board and may include, but shall not be limited to,
the following:
   (1) Negligence.
   (2) A pattern of inappropriate direct or indirect administration
of respiratory care protocols, procedures, therapeutic regimens, or
diagnostic testing of monitoring techniques.
   (3) An act of incompetence or negligence causing death or serious
bodily injury.
   (4) A pattern of substandard care.
   (5) Violation of any provision of this chapter.
   (b) The matter shall be presented by the board's executive officer
or designee by way of a written petition detailing the reasonable
cause. The petition shall contain all conclusions and facts upon
which the presumption of reasonable cause is based. A copy of the
petition shall be served on the person who shall have 45 days after
receipt of the copy of the petition to file written opposition to the
petition. Service of the petition and any order shall be in
accordance with the methods of service authorized by subdivision (c)
of Section 11505 of the Government Code.
   (c) The board shall review the petition and any written opposition
from the person who has charges brought against him or her, or the
board may hold a hearing in accordance with the Administrative
Procedure Act to determine if reasonable cause exists, as specified
in subdivision (a). The person who has charges brought against him or
her shall have the right to be represented at that hearing by a
person of his or her choice. If the board is satisfied that
reasonable cause exists that is considered by the board as
unprofessional conduct, the board shall issue an order compelling the
person who has charges brought against him or her to undergo an
examination of professional competency, as measured by community
standards. For purposes of this section, "community standards" means
the statewide standards of the community of licensees. Failure to
comply with the order duly served the person charged shall constitute
unprofessional conduct for purposes of disciplinary proceedings and
failure to pass the examination shall result in denial, suspension,
or revocation of the license, or registration which shall be
determined by the board in its discretion.
   (d) If the board proceeds pursuant to Sections 3755 and 3756 and
the person charged passes the professional competency examination
administered, the board shall be precluded from filing an accusation
of incompetency based solely on the circumstances giving rise to the
reasonable cause for the examination.
   (e) If the board determines there is insufficient cause to file an
accusation based on the examination results, then all agency records
of the proceedings, including the petition and order for the
examination, investigative reports, if any, reports of staff or the
board's consultants, and the reports of the examiners, shall be kept
confidential and shall not be subject to discovery or subpoena.
   (f) If no further proceedings are conducted to determine the
person's fitness to practice during a period of five years from the
date of the petition under Section 3756, then the agency shall purge
and destroy all records pertaining to the proceeding.



3757.  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.



3758.  (a) Any employer of a respiratory care practitioner shall
report to the Respiratory Care Board the suspension or termination
for cause of any practitioner in their employ. The reporting required
herein shall not act as a waiver of confidentiality of medical
records. The information reported or disclosed shall be kept
confidential except as provided in subdivision (c) of Section 800,
and shall not be subject to discovery in civil cases.
   (b) For purposes of the section, "suspension of termination for
cause" is defined to mean suspension or termination from employment
for any of the following reasons:
   (1) Use of controlled substances or alcohol to such an extent that
it impairs the ability to safely practice respiratory care.
   (2) Unlawful sale of controlled substances or other prescription
items.
   (3) Patient neglect, physical harm to a patient, or sexual contact
with a patient.
   (4) Falsification of medical records.
   (5) Gross incompetence or negligence.
   (6) Theft from patients, other employees, or the employer.
   (c) Failure of an employer to make a report required by this
section is punishable by an administrative fine not to exceed ten
thousand dollars ($10,000) per violation.



3758.5.  If a licensee has knowledge that another person may be in
violation of, or has violated, any of the statutes or regulations
administered by the board, the licensee shall report this information
to the board in writing and shall cooperate with the board in
furnishing information or assistance as may be required.




3758.6.  (a) In addition to the reporting required under Section
3758, an employer shall also report to the board the name,
professional licensure type and number, and title of the person
supervising the licensee who has been suspended or terminated for
cause, as defined in subdivision (b) of Section 3758. If the
supervisor is a licensee under this chapter, the board shall
investigate whether due care was exercised by that supervisor in
accordance with this chapter. If the supervisor is a health
professional, licensed by another licensing board under this
division, the employer shall report the name of that supervisor and
any and all information pertaining to the suspension or termination
for cause of the person licensed under this chapter to the
appropriate licensing board.
   (b) The failure of an employer to make a report required by this
section is punishable by an administrative fine not to exceed ten
thousand dollars ($10,000) per violation.




3759.  Pursuant to Section 43.8 of the Civil Code, no person shall
incur any civil penalty as a result of making any report required by
this chapter.