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CHAPTER 36-4C

RESPIRATORY CARE PRACTITIONERS

36-4C-1      Definition of terms.
36-4C-2      Respiratory care defined.
36-4C-3      Respiratory care authorized.
36-4C-4      Respiratory Care Practitioner's Advisory Committee--Membership--Duties.
36-4C-5      Use of title and abbreviation.
36-4C-6      Medical practice not authorized.
36-4C-7      Construction of chapter.
36-4C-8      Temporary permit.
36-4C-9      Written application--Requirements.
36-4C-10      Qualification for license.
36-4C-11      Fee required for license or temporary permit.
36-4C-12      Renewal of license.
36-4C-13      Prescription and publication of fees.
36-4C-14      Promulgation of rules to set standards of practice.
36-4C-15      Revocation, suspension or cancellation of license or permit--Grounds.
36-4C-16      Initiation of revocation, suspension, or cancellation proceeding.
36-4C-17      Majority of board required for revocation, suspension or cancellation proceedings.
36-4C-18      Procedures for revocation, suspension or cancellation of license.
36-4C-19      Appeal by aggrieved party.
36-4C-20      Reinstatement of license or permit.
36-4C-21      Record keeping responsibilities of secretary of board.
36-4C-22      Recommendation of prosecution and civil actions.
36-4C-23      Investigation of violations.
36-4C-24      Injunction as alternative to criminal proceedings.


     36-4C-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Affiliate," the South Dakota affiliate of the American Association for Respiratory Care;
             (2)      "Board," the State Board of Medical and Osteopathic Examiners;
             (3)      "Committee," the Respiratory Care Advisory Committee provided for in this chapter;
             (4)      "Qualified medical director," the physician responsible for the medical direction of any inpatient or outpatient respiratory care service, department, or home care agency. The medical director shall be a licensed physician pursuant to chapter 36-4 who has special interest and knowledge in the diagnosis and treatment of cardiopulmonary problems. If possible, the medical director shall be qualified by special training or be experienced in the management of acute and chronic respiratory disorders or both. The medical director is responsible for the quality, safety, and appropriateness of respiratory care services;
             (5)      "Respiratory care practitioner," any person with a temporary permit or license to practice respiratory care as defined in this chapter and whose temporary permit or license is in good standing;
             (6)      "Registered respiratory therapist," a respiratory care practitioner who has successfully completed a training program accredited by the Commission on Accreditation of Allied Health Education Programs in collaboration with the Committee on Accreditation for Respiratory Care and who has successfully completed the registry examination for advanced respiratory therapists administered by the National Board for Respiratory Care, Incorporated;
             (7)      "Certified respiratory therapist," a respiratory care practitioner who has successfully completed a training program accredited by the Commission on Accreditation of Allied Health Education Programs in collaboration with the Committee on Accreditation for Respiratory Care and who has successfully completed the entry level examination for respiratory therapists administered by the National Board for Respiratory Care, Incorporated;
             (8)      "Graduate respiratory care practitioner," a person who has graduated from an education and training program accredited by the Commission on Accreditation of Allied Health Education Programs in collaboration with the Committee on Accreditation for Respiratory Care and who is eligible to take the licensure examination required by § 36-4C-8;
             (9)      "Student respiratory care practitioner," a person who is enrolled in an education and training program for respiratory care practitioners which is accredited by the Commission on Accreditation of Allied Health Education Programs and the Committee on Accreditation for Respiratory Care and who provides respiratory care under direct supervision of a licensed respiratory care practitioner who is on the premises where the respiratory care services are provided and who is available for immediate consultation.

Source: SL 1993, ch 273, § 1; SL 1994, ch 294, § 1; SL 2004, ch 245, § 1.


     36-4C-2.   Respiratory care defined. Respiratory care is the treatment, management, diagnostic testing, and care of patients with deficiencies and abnormalities associated with the cardiopulmonary system and associated aspects of other systems. Respiratory care includes observing, assessing, and monitoring signs, symptoms, reactions, general behavior, and general physical response of individuals to respiratory care, including determination of whether those signs, symptoms, reactions, behaviors, or general physical response exhibit abnormal characteristics; the administration of pharmacological, diagnostic, and therapeutic agents related to respiratory care; the administration of analgesic agents by subcutaneous injection or inhalation for performance of respiratory care procedures; the collection of blood specimens and other bodily fluids and tissues for, and the performance of, cardiopulmonary diagnostic testing procedures including blood gas analysis; the insertion of maintenance of artificial airways; the insertion of devices to analyze, infuse, or monitor pressure in arterial, capillary, or venous blood; development, implementation, and modification of respiratory care treatment plans based on assessment of the cardio-respiratory system, respiratory care protocols, clinical pathways, referrals and written, verbal, or telecommunicated orders of a physician; application, operation, and management of mechanical ventilatory support and other means of life support; hyper baric oxygen medicine; advances in the art of techniques of respiratory care learned through formal or specialized training; and the initiation of emergency procedures.

Source: SL 1993, ch 273, § 2; SL 2004, ch 245, § 2.


     36-4C-3.   Respiratory care authorized. Respiratory care may be performed in any clinic, hospital, skilled nursing facility, private dwelling, or other place deemed appropriate by the board, in accordance with the prescription or verbal order of a physician and shall be performed under a qualified medical director where mandated by institutional accrediting agencies.

Source: SL 1993, ch 273, § 3.


     36-4C-4.   Respiratory Care Practitioner's Advisory Committee--Membership--Duties. The board shall appoint a Respiratory Care Practitioners' Advisory Committee composed of five members as follows:
             (1)      Two registered respiratory therapists;
             (2)      Two certified respiratory therapists; and
             (3)      A physician licensed pursuant to chapter 36-4 who practices as a pulmonologist.
     Each committee member shall serve a term of three years. However, the terms of initial appointees shall be staggered so that no more than two members' terms expire in any one year. No committee member may be appointed to more than three consecutive full terms. If a vacancy occurs, the board shall appoint a person to fill the unexpired term. The appointment of a person to an unexpired term is not considered a full term. The committee shall meet at least annually or as deemed necessary to conduct business.
     The advisory committee shall assist the board in evaluating the qualifications of applicants for licensure and reviewing the examination results of applicants. The committee shall also make recommendations to the board regarding rules promulgated pursuant to this chapter.

Source: SL 1993, ch 273, § 4; SL 2004, ch 245, § 3; SL 2005, ch 199, § 9.


     36-4C-5.   Use of title and abbreviation. A person who does not hold a license or temporary permit under this chapter as a respiratory care practitioner or whose license or temporary permit has been suspended or revoked may not use in connection with the person's practice the words, respiratory care, respiratory therapist, respiratory care practitioner, certified respiratory care practitioner, respiratory therapy technician, inhalation therapist, or respiratory care therapist, or the letters, R.C.P., or any other words, letters, abbreviations, or insignia indicating that the person is a respiratory care practitioner, or otherwise represent in any way that the person is a respiratory care practitioner. A person who holds a license or temporary permit to practice respiratory care under this chapter may use the title, respiratory care practitioner, and the abbreviation, R.C.P.

Source: SL 1993, ch 273, § 5; SL 1994, ch 294, § 2; SL 2004, ch 245, § 4.


     36-4C-6.   Medical practice not authorized. Nothing in this chapter may be construed to permit the practice of medicine.

Source: SL 1993, ch 273, § 6.


     36-4C-7.   Construction of chapter. Nothing in this chapter may be construed to prevent or restrict the practice, services, or activities of:
             (1)      Any person licensed or certified in this state by any other law from engaging in the profession or occupation for which he is licensed or certified who is performing services within his authorized scope of practice;
             (2)      A student respiratory care practitioner who is performing respiratory care without compensation in a clinical training capacity;
             (3)      Self care, or gratuitous care by a friend or family member who does not represent or hold himself out to be a respiratory care practitioner;
             (4)      Federal employees when functioning in the course of their assigned duties;
             (5)      A person rendering respiratory care in an emergency;
             (6)      A person other than a respiratory care practitioner who has passed an examination which includes content in one or more of the practices included in this chapter, if the person performs only those procedures for which the person has been successfully tested and the testing body offering the examination is certified by the National Commission for Health Certifying Agencies or its equivalent as determined by the board;
             (7)      A person, other than a respiratory care practitioner, employed by a hospital or related institution as licensed pursuant to chapter 34-12 who performs simple oxygen administration, incentives spirometry or chestphysiotherapy under the direction of a licensed physician, registered nurse, licensed practical nurse, licensed respiratory care practitioner, certified nurse practitioner or certified physicians assistant;
             (8)      A person, other than a respiratory care practitioner, employed by a home medical equipment company who installs, delivers, and maintains home respiratory therapy equipment but does not perform patient assessment or patient care, patient education, or clinical instruction relating to home respiratory therapy; or
             (9)      A person licensed or certified to practice respiratory care in another state or foreign country who provides respiratory care to a critically ill patient while the patient is being transported to a hospital in this state.

Source: SL 1993, ch 273, § 7; SL 2004, ch 245, § 5.


     36-4C-8.   Temporary permit. The board may grant a temporary permit to practice respiratory care to a graduate respiratory care practitioner. The board may also grant a temporary permit to a student respiratory care practitioner, but the permit may only allow the student to perform those respiratory care services for which the student has successfully completed clinical competency evaluation. A temporary permit is nonrenewable and terminates three months from the date when the applicant becomes eligible to take the licensure examination required by § 36- 4C-9 or upon the applicant's failure to pass the examination, whichever occurs first.

Source: SL 1993, ch 273, § 8; SL 2004, ch 245, § 6.


     36-4C-9.   Written application--Requirements. Any applicant applying for a license as a respiratory care practitioner shall file a written application provided by the board, showing that the applicant meets the following requirements:
             (1)      Character--Applicant shall be of good moral character;
             (2)      Education--Applicant shall present evidence satisfactory to the board of having successfully completed an education and training program accredited by the Commission on Accreditation of Allied Health Education Programs in collaboration with the Committee on Accreditation for Respiratory Care; and
             (3)      Examination--An applicant for licensure as a respiratory care practitioner shall pass an examination recommended by the Respiratory Care Advisory Committee and approved by the board.

Source: SL 1993, ch 273, § 9; SL 2004, ch 245, § 7.


     36-4C-10.   Qualification for license. The board shall grant a license to any applicant who, through written evidence, verified by oath, demonstrates:
             (1)      That he has been performing respiratory care services in the State of South Dakota prior to November 1, 1993; or
             (2)      That he is actively certified or registered by the National Board for Respiratory Care or its successor; or
             (3)      That he is currently licensed as a respiratory care practitioner or equivalent in any other state, District of Columbia or territory of the United States which requires standards for licensure considered by the board to be at least equivalent to the requirements for licensure in this chapter.

Source: SL 1993, ch 273, § 10.


     36-4C-11.   Fee required for license or temporary permit. The board shall issue a license or temporary permit to any applicant who meets the requirements of this chapter upon payment of the prescribed fee.

Source: SL 1993, ch 273, § 11.


     36-4C-12.   Renewal of license. The license of every person licensed under the provisions of this chapter shall be renewed biennially. The expiration date shall be established by the board. The board shall mail a notice for renewal of license to the last known address of each licensee currently licensed, at least ninety days prior to the expiration date of the license. The licensee shall return the notice with the required fee to the board before the expiration date. Upon receipt of the notice and fee, the board shall issue to the licensee a certificate of renewal. Failure to receive the notice for renewal of license does not relieve the licensee of the responsibility for renewing the license and paying the renewal fee within the prescribed time. Failure of a licensee to renew the license constitutes a forfeiture of such license. However, any person who has forfeited a license under this chapter may have it restored by making written application and payment of the biennial renewal fee and the late renewal fee. Late renewal of a license may not be granted more than one year after its expiration. The board may establish, by rule, promulgated pursuant to chapter 1-26, requirements for continuing education or retesting for any person who has not been licensed for a continuous period of time greater than one year. The board may establish additional requirements for license renewal which may include evidence of continuing competency.

Source: SL 1993, ch 273, § 12; SL 1994, ch 294, § 3.


     36-4C-13.   Prescription and publication of fees. The board shall prescribe and publish annual fees for the following by promulgating rules pursuant to chapter 1-26:
             (1)      Initial license fee, not to exceed seventy-five dollars;
             (2)      Renewal of license fee, not to exceed sixty dollars;
             (3)      Late renewal fee, not to exceed ninety-five dollars; and
             (4)      Temporary permit fee, not to exceed forty dollars.

Source: SL 1993, ch 273, § 13; SL 2008, ch 191, § 8.


     36-4C-14.   Promulgation of rules to set standards of practice. The board may promulgate rules pursuant to chapter 1-26 to set standards of professional practice for licensed respiratory care practitioners and other rules as may be reasonably necessary to implement licensing fees and continuing education requirements.

Source: SL 1993, ch 273, § 14.


     36-4C-15.   Revocation, suspension or cancellation of license or permit--Grounds. The license or temporary permit of a respiratory care practitioner may be revoked, suspended or cancelled upon any one of the following grounds:
             (1)      The licensee or temporary permit holder is guilty of fraud in the practice of respiratory care;
             (2)      The licensee or temporary permit holder is engaged in the practice of respiratory care under a false or assumed name and has not registered that name or is impersonating another practitioner of a like or different name;
             (3)      The licensee or temporary permit holder is determined by a medical examiner to be addicted to the habitual use of intoxicating liquors, narcotics or stimulants to the extent that it incapacitates him for the performance of his professional duties;
             (4)      The physical or mental condition of the licensee or permit holder is determined by a medical examiner to be such as to jeopardize or endanger those who seek treatment from the licensee. A majority of the board may demand an examination of the licensee or permit holder by a competent medical examiner selected by the board at the board's expense. If the licensee or permit holder fails to submit to the examination, this constitutes immediate grounds for suspension of his license or permit;
             (5)      The licensee or temporary permit holder obtains or attempts to obtain a license, renewal thereof or temporary permit by bribery or fraudulent representation;
             (6)      The licensee or temporary permit holder is guilty of unprofessional conduct as defined by the rules established by the board or violation of the code of ethics adopted and published by the board;
             (7)      The licensee or temporary permit holder makes a false statement on any form promulgated by the board in accordance with this chapter or the rules adopted by the board;
             (8)      The licensee or temporary permit holder has violated or aided or abetted others in violation of any provision of this chapter;
             (9)      The licensee or temporary permit holder has been convicted of any crimes related to health care or the delivery of health care.

Source: SL 1993, ch 273, § 15.


     36-4C-16.   Initiation of revocation, suspension, or cancellation proceeding. A proceeding for cancellation, revocation, or suspension of a license or temporary permit may be initiated if the board has written information that any person may have been guilty of any misconduct pursuant to § 36-4C-15 or is guilty of incompetence or unprofessional or dishonorable conduct.

Source: SL 1993, ch 273, § 16; SL 2005, ch 199, § 10.


     36-4C-17.   Majority of board required for revocation, suspension or cancellation proceedings. Any proceedings relative to the cancellation, revocation, or suspension of a license or temporary permit or relative to reissuance of a license or temporary permit which has been cancelled, revoked, or suspended shall be held only when a majority of the members of the board are present at the hearing. The decision of the board to suspend, revoke or cancel a license or temporary permit or to reissue a license or temporary permit which has been cancelled, revoked, or suspended requires a majority vote of all the board members.

Source: SL 1993, ch 273, § 17.


     36-4C-18.   Procedures for revocation, suspension or cancellation of license. Any proceeding relative to the cancellation, revocation or suspension of a license shall conform to the procedures set forth in chapter 1-26.

Source: SL 1993, ch 273, § 18.


     36-4C-19.   Appeal by aggrieved party. Any party who is aggrieved by an act, ruling or decision of the board relating to refusal to grant a license or temporary permit or cancellation, revocation or suspension of a license or temporary permit may appeal pursuant to chapter 1-26.

Source: SL 1993, ch 273, § 19.


     36-4C-20.   Reinstatement of license or permit. Upon written application establishing compliance with existing licensing or temporary permit requirements and for reasons the board deems sufficient, the board, for good cause shown, by majority vote, may, under the conditions it may impose, reinstate or reissue a license or temporary permit to any person whose license or temporary permit has been cancelled, suspended or revoked. Upon suspension of a license or temporary permit, the board may provide an automatic reinstatement thereof after a specified fixed period of time.

Source: SL 1993, ch 273, § 20.


     36-4C-21.   Record keeping responsibilities of secretary of board. The secretary of the board shall keep a record book in which are entered the names of all persons to whom licenses or temporary permits have been granted under this chapter, the identification number of the license or temporary permit, the date of granting the license or temporary permit, license renewal dates, and other matters of record. This book is a book of records and transcripts of any record therein pertaining to a person charged with a violation of any of the provisions of this chapter, certified under the hand of the secretary, and the seal of the board, and shall be admitted as evidence in any of the courts of this state. The original books, records and papers of the board shall be kept at the office of the secretary of the board. The secretary shall furnish any person making an application a copy of any requested record, certified by him as secretary, upon payment of a fee of twenty-five cents per page.

Source: SL 1993, ch 273, § 21.


     36-4C-22.   Recommendation of prosecution and civil actions. The board shall recommend prosecutions for violations of this chapter to the appropriate state's attorney and recommend to the attorney general the commencement of civil actions to seek injunctions and other relief for violations of this chapter.

Source: SL 1993, ch 273, § 22.


     36-4C-23.   Investigation of violations. The board shall investigate every alleged violation of this chapter and report it to the proper law enforcement officials of the county wherein the alleged violation has occurred.

Source: SL 1993, ch 273, § 23.


     36-4C-24.   Injunction as alternative to criminal proceedings. Any person violating any provision of this section may be enjoined from further violations by a suit brought by the state's attorney of the county wherein the violation occurred or suit may be brought by any citizen of this state. An action for injunction is an alternative to criminal proceedings, and the commencement of one proceeding by the board constitutes an election.

Source: SL 1993, ch 273, § 24.


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