It's Deja Vu, all over again. Since 1986, respiratory therapists in Colorado have suffered from "license envy".
That year was their first (but not their last) appearance before the Sunrise-Sunset Committee, which agreed with the Department of Regulatory Agencies (DORA) that the public was clearly not harmed by lack of state regulation of respiratory therapists.
Finally, in 1993, facing a new Sunrise-Sunset Committee (five of the six members never having served before) the respiratory therapists pulled a "Hail Mary" in the closing hour of the closing day of the committee meeting.
They had been turned down earlier during the official Sunrise hearing, as urged by the DORA recommendation. But credit some heavy lobbying for turning one legislator around, followed by a motion to reconsider, and a 4 to 2 vote to approve.
As a result, the bill proposed never went through the DORA office for review or suggested language...it went straight from the lobbyist to the committee to the drafting office. The bill was an obvious copy of a law from another state, and judging from its quaint language, was a creature from the middle to late 1960s. Introduced by Rep. George, HB 1016 passed HEWI and died in House Appropriations.
This year, the lobbyists decided to start in the Senate, and SB 41 is carried by Sen. Casey, with Rep. George as the House sponsor. The bill passed the Senate Feb. 6th. And, for the first time (having copied word for word parts of the Nursing Act, CRS 12-38-117), there are actually some modern grounds for imposing discipline against the potential licensees.
Leaving "discipline" aside, SB 41 still needs a lot of rewriting. Here are some examples:
CERTIFICATION: The bill says respiratory therapists will be "certified". The term "certified" is supposed to mean that the titles "respiratory care practitioner" or "R.C.P." can only be used by a respiratory therapist who has met the testing qualifications set in the bill. (Educational qualifications provided in the 1993 bill have been abandoned.)
Under true certification, any other therapist could practice as long as he or she did not use those titles. But that is NOT what the bill provides. It states under 12-41.5-114 "it is unlawful to practice respiratory care unless certified to do so under this article."
That means this is a "licensing" bill. Perhaps the lobbyists and the professional association pushing the bill didn't want the legislators to think "license" since the term usually means "monopoly" and shutting out competition. Or perhaps, they just think legislators can be fooled.
GRANDFATHERING: There are about 1,500 respiratory therapists in Colorado. Around half to two-thirds have graduated from a program approved by the American Medical Association and have passed the test given by the National Board for Respiratory Care (NBRC). Passing an equivalent test is necessary under this bill to be licensed. It makes sense to avoid having them retake an exam already passed, so proponents can justify "grandfathering" them in.
But there is another group of respiratory therapists who haven't met this standard. The bill lets them come in free of education or testing if the applicant "can demonstrate that he or she was functioning in the capacity of a respiratory care practitioner as of July l,1995 as long as they pass the required national exam no later than Dec. l,1996." This reduces the potantial for a lot of angry respiratory therapists.
But proponents had pointed out the bill was needed as there were respiratory therapists practicing who " were likely to cause damage to patients because they lacked the education and testing background". Then the bill not only "grandfathers" them in for seventeen months.....it allows them to "supervise, direct, or teach less skilled personnel in the provision of respiratory care services" for those seventeen months.
THE PRESIDENT. When the bill was introduced, the person in charge was to be the director of the DORA division of registrations. This is the normal approach for a new licensing group without a separate board, since the director's staff has experience in this task. In the Senate, the bill was amended to put licensees under the PRESIDENT. No, not THAT president. This one is in charge of the state's medical board.
The eleven member Colorado Medical Board supervises 13,000 physicians in addition to having jurisdiction over physician assistants. The board prioritizes and does a good job of disciplining physicians, especially when compared to other states.
Putting 1,500 respiratory therapists under the cloak of a single individual, the president of the medical board, to approve tests, discipline practitioners, approve temporary licenses, adopt rules and regulations, collect fees, investigate, hold hearings, subpoena witnesses, administer oaths, and consult with professional respiratory associations, and make sure the licensees complete 24 hours of continuing education guarantees the only thing the president will have time to do is hold a rubber stamp that says "OK". This isn't just bad drafting...it's just plain silly.
CRIMES. For the criminal offense, the bill includes a catch-all "violates any provision of this article" which has been discarded in Colorado as too vague, in favor of specific offenses. For example, having your license suspended in another state violates the article, and the criminal section makes you subject to a Class l misdemeanor.
But don't worry. The only criminal penalty is a fine of $500 to $5000. No self-respecting DA would bother with this kind of offense, when he has violent felons filling his docket. And the penalty doesn't increase for subsequent offenses.
Under the Nursing Act (which this bill "attempts" to copy) the first criminal offense is a Class 3 misdemeanor, including jail time, and a subsequent offense is a Class 6 felony, including prison.
Should respiratory therapists be licensed? That's a judgment call for the legislature to make, after they consider possible resulting increases in health care costs. Should they pass THIS bill? Only if they enjoy future embarrassment.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
Copyright 2015 Jerry Kopel & David Kopel