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.
(Amended by Stats. 1994, Ch. 1274, Sec. 23. Effective January 1, 1995.)