The regulatory environment under which respiratory care practitioners (RCPs), also called respiratory care therapists (RCTs), work is complex, constantly changing, and usually confusing. Since the Respiratory Care Board (RCB) is responsible for protecting the public, it thoroughly investigates allegations of wrongdoing by RCPs and strictly enforces the rules.
If you learn that you are under investigation by the RCB for alleged misconduct, you want to seek immediate legal counsel, as your license is at risk. A skilled lawyer can help safeguard your license, career, and the right to practice. At San Jose License Attorney, our goal is to provide effective, experienced, and compassionate legal representation to RCPs by offering expert legal counsel at each stage of the disciplinary process. We have helped RCPs obtain and protect their licenses for several years. Contact us to learn more about how our lawyers can effectively help you with your licensing issue.
The RCB Role
The RCB is part of the California Department of Consumer Affairs (DCA). It is the body that regulates respiratory care practice throughout California. Its primary mandate is to serve and safeguard the consumer and general public, and it does this by:
- Licensing qualified RCPs and denying licenses to those who do not meet the proper training and education requirements
- Administering exams to respiratory care therapists before issuing licenses
- Administering and enforcing the Respiratory Care Practice Act (RCPA) and its regulations in the interest of safe respiratory care practices.
- Protecting the general public from unqualified and unauthorized respiratory care practice
- Conducting public awareness campaigns about respiratory care
- Investigating complaints against licensed RCPs
- Imposing disciplinary actions against RCPs who have violated the RCPA, Business and Professions Code, or other relevant laws
Remember, the board’s primary purpose is to safeguard consumers, not to help license holders or even applicants. If the board accuses you of wrongdoing, its goal is to punish you, not to assist you in proving your innocence. The only person who can help you prove your innocence is a skilled, licensed healthcare professional or defense lawyer. So, when you find out the board is accusing you of misconduct, you need to hire one right away.
What Do Respiratory Care Therapists Do?
Respiratory care therapists regularly perform critical, life-supporting, and lifesaving procedures prescribed by doctors that directly impact major organs. They provide direct patient care in patients’ homes, hospitals, nursing homes, or clinics. RCTs attend to patients who may have emphysema, lung cancer, cystic fibrosis, or asthma, and premature infants with underdeveloped lungs. Some of their duties include the following:
- They are responsible for performing and interpreting pulmonary function tests, blood gas analysis, and other medical procedures that assess oxygen levels and lung function.
- Managing and operating life support systems, including mechanical ventilators. They are heavily involved in emergencies, helping with managing airways and intubations.
- Inserting venipuncture for blood draws, inserting arterial lines, and starting IVs for particular purposes
- Delivering indirect and direct therapeutic and diagnostic services, such as administering pharmacological agents and medical gases.
- Maintaining patient charts, assessing their conditions, and collaborating with nurses and doctors
- Providing health care in geriatric, pediatric, neonatal, and pulmonary rehabilitation.
- Educating patients on managing their condition, including how to properly use equipment at home
- Using advanced equipment like oxygen therapy devices and mechanical ventilators to support patients’ breathing
- Providing bedside care to patients with breathing problems, such as those with traumatic injuries and asthma
As an RCP, your job can be trying and intense, and its nature constantly exposes you to possible criminal charges, lawsuits, and administrative sanctions. Even if you excel in your job, you may occasionally make a simple, genuine mistake that could potentially lead to a disciplinary process. Other times, a patient or someone else may file a formal complaint against you based on a misunderstanding or because you did not meet their unfair or unrealistic expectations. You always want to involve a lawyer if you are facing a complaint, as they may be able to save you from disciplinary action you did not deserve.
Common Allegations Against RCPs
The RCB prosecutes cases against licensed RCPs if there are allegations of one or more of the following common grounds for discipline:
- Chemical dependency
- Peer review actions
- Unprofessional conduct
- Conviction of a criminal offense substantially related to the duties, functions, and qualifications of an RCP
- Incompetent or negligent practice
- Sexual misconduct especially on the job
- Practicing with no license
- Aiding and abetting the unlicensed practice
- Boundary violations
- Making grossly wrong entries in or falsifying any patient chart
- False or misleading advertising
- Fiscal fraud, dishonesty, or theft
- Alcohol or substance abuse, including abuse of prescription drugs
- Changing a physician’s prescription without authorization
The RCB Complaint Process
For the complaint process to kick off, the RCB must receive a formal written complaint against a licensed RCP. The RCB then processes this complaint through various stages until it finds a resolution. When the RCB receives a formal complaint against you, it investigates the allegations therein and actively pursues them.
Note that any party can file a complaint against you. For example, a complaint can originate from a patient, a colleague, a hospital, a physician, another licensing agency, a board member, a member of the public, or a law enforcement agency. The complaint may contain any of the allegations mentioned above.
Initial Investigations into a Complaint
An investigation into a complaint is usually confidential, and the board might not notify you that one is underway. If notified, the board may contact you by written request or phone to discuss the official complaint against you. Remember that the RCB can use any details obtained during your exchange with the investigator to pursue further discipline. Therefore, you should avoid speaking with the investigator in the absence of your lawyer. You could simply inform the investigator that your lawyer will call them and request their contact details.
It is essential to retain an attorney before you participate in any interview with the investigator. Consulting experienced legal counsel beforehand is a proactive measure and minimizes the effect of the complaint on your license. Your attorney can ensure the investigations include accurate and complete facts.
At the end of the investigations, the investigator will draft a report and send it to the RCB’s Enforcement Unit. The report illustrates the investigator’s findings. The Enforcement Unit will review the report and take one of these steps:
- Close the case due to a lack of adequate evidence
- Impose a citation and fine against you if the report indicates you violated the RCPA, but your violation was minor
- Refer your case to the Office of the Attorney General for further action against you
- Refer your case to the District Attorney for criminal prosecution
Filing of An Accusation
If the RCB Enforcement Division chooses to impose a citation and fine, the board will notify you. A citation refers to a document listing unproven and alleged violations and is a public record. The RCB will publish the citation and fine on its website.
Should you believe that the citation and fine are unjustified, you are entitled to file an appeal with your argument and evidence proving why the citation is not justified. After filing an appeal, the RCB may uphold or dismiss the citation and fine. If upheld, you can demand an administrative hearing before an Administrative Law Judge (ALJ) or accept the disciplinary action.
If the RCB refers your case to the Office of the Attorney General, a Deputy Attorney General will file a formal Accusation or Statement of Issues. An Accusation applies to license holders, while a Statement of Issues applies to license applicants. These are formal documents detailing all the unsubstantiated allegations of misconduct on which the Attorney General’s Office will proceed. An Accusation is a public document, and the RCB will post it on its website, making it accessible to patients, clinics, hospitals, and all federal and state governmental agencies.
After filing an accusation or statement of issues, there is a limited period within which you have to file your response to preserve your legal right to challenge the allegations you are facing. You have just fifteen days to submit a Notice of Defense with the RCB. A Notice of Defense advises the RCB that you wish to defend your license against the allegations stated in the Accusation and are therefore asking for a hearing.
Failure to file a Notice of Defense on time will lead to the RCB revoking your RCP license without granting you the chance to defend yourself. Having a lawyer by your side when you receive an Accusation or Statement of Issues is advantageous, as they can help ensure you do not miss the deadline to file your Notice of defense.
The Accusation stage of the complaint process often takes months or weeks. Your lawyer can negotiate a favorable resolution to your case so you don’t have to go to an administrative proceeding. The RCB has the authority to settle the Accusation before the hearing, typically through a predetermined agreement. A skilled lawyer will be necessary to advocate on your behalf. Your lawyer will help you argue the facts and mitigating factors that justify a fair resolution.
The RCB is among the few boards allowed to suspend an RCP’s capability to practice without an administrative proceeding when the RCP is serving a probation sentence. Often, when an RCP is on probation, they are guaranteed an impartial administrative proceeding before the RCB can suspend their right to practice. However, the RCB has the discretion to issue a cease-practice order without a proceeding if the RCP has committed a more severe violation. Consequently, you want to consult your lawyer before agreeing to any stipulated settlement terms with the RCB.
Administrative Hearing
Sometimes, the RCB will decline to offer favorable settlement conditions or instruct the Attorney General’s Office to schedule an administrative hearing. Deciding whether you want a hearing is critical. You must consider it carefully with help from your skilled licensing lawyer. The proceeding is presided over by an ALJ, and no jury is present.
However, in California administrative law, ALJs do not have the ultimate say. The final say rests only with the licensing board. The judge will write their recommendations at the end of the hearing, which are nonbinding on the RCB. That means you could win at the proceeding, but the RCB might reject the judge’s recommendations and discipline your license.
Possible disciplinary actions against your license include probation, revocation, suspension, and public reprimand. All these disciplinary actions are public records, meaning the board publishes them on its website and makes them accessible to the public.
Before going to the hearing, you want to understand the likely proposed decision by the ALJ and your appeal options in case the RCB rejects the judge’s proposed decision.
Denial of License Application
To add to the disciplining of existing licenses, the same process applies whenever the RCB denies an application for those seeking a license. The RCB may deny your application for a professional license if you have failed to satisfy the licensure qualifications, have a criminal conviction record, or have perpetrated an act considered professional misconduct. If the board has denied your application, you must quickly file a notice of defense, as mentioned above, to challenge the denial by requesting an administrative hearing.
Contact a Knowledgeable Healthcare Professional License Defense Lawyer Near Me
As an RCP, you may think you can fight a violation case alone or that ignoring it will make it go away. However, RCB investigations are not informal processes and do not go away on their own. Even though it might seem straightforward to represent yourself before the board, you are placing your license and livelihood at risk. You need the help of a skilled RCP license defense lawyer who comprehends the process to increase the chances of keeping your license.
San Jose License Attorney, we can review your case and advise on the best course of action. Our lawyers can also mount a compelling defense strategy and employ an understanding approach to all the issues that might jeopardize your license. If the RCB is investigating you, has filed an accusation against you, or has denied your license application, please call us at (669) 330-4517 to help you defend your license.
