51 N.J.R. 1346(a)

VOLUME 51, ISSUE 16, AUGUST 19, 2019
RULE PROPOSALS

Reporter
51 N.J.R. 1346(a)
NJ - New Jersey Register  >  2019  >  AUGUST  >  AUGUST 19, 2019  >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement

INTERESTED PERSONS
Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal.

The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of    N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register.
At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at    N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code.

Agency


LAW AND PUBLIC SAFETY > DIVISION OF CONSUMER AFFAIRS > STATE BOARD OF RESPIRATORY CARE

Administrative Code Citation

Proposed Repeal and New Rule: N.J.A.C. 13:44F-5.1

Proposed Amendments: N.J.A.C. 13:44F-1.1, 1.2, 3.1, 3.2, 4.1, 4.2, 4.4, 8.2, 8.4, 9.1, and 10.2A

Text

Respiratory Care Practitioner Licensing Act Rules; Continuing Education

Authorized By: New Jersey State Board of Respiratory Care, Renee Clark, Executive Director.

Authority: N.J.S.A. 45:1-15 and 45:14E-7; and P.L. 2017, c. 120.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2019-124.

Submit written comments by October 18, 2019, to:

   Renee Clark, Executive Director
   New Jersey State Board of Respiratory Care
   124 Halsey Street
   PO Box 45031
   Newark, New Jersey 07101
   or electronically at http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.

The agency proposal follows:

Summary

The Board of Respiratory Care (Board) is proposing amendments to implement P.L. 2017, c. 120, which became effective on July 21, 2017. The new law revises various sections of the Respiratory Care Practitioner Licensing Act, concerning the definitions of various terms associated with respiratory care practice, proper titles and acronyms to be used by licensed respiratory care practitioners, examination requirements associated with the licensure of respiratory care practitioners, and the criteria by which credit for continuing education in respiratory care will be accepted. In addition, P.L. 2017, c. 120 eliminated temporary licensure for those waiting to take the licensure examination.

The Board proposes to amend N.J.A.C. 13:44F-1.1(a) to reference P.L. 2017, c. 120. In addition, consistent with the revised statutory definition of a "respiratory care practitioner," the Board proposes to amend N.J.A.C. 13:44F-1.1(b), 3.1(a), recodified 3.1(c), (d), and (e), and 3.2(a) and (b), to specify that, in addition to working under the direction or supervision of a plenary licensed physician, respiratory care practitioners may also work under the direction or supervision of a physician assistant or advanced practice nurse.

Consistent with P.L. 2017, c. 120, the Board proposes to amend N.J.A.C. 13:44F-1.2 to include definitions for the terms "respiratory care practitioner," "respiratory care protocols," and "respiratory care education program." In addition, the Board proposes to amend the term "respiratory care" to specify that it is a health specialty involving disease prevention and to remove the modifier "disease" before "management."

The Board proposes new N.J.A.C. 13:44F-3.1(b) to specify the duties of educating patients and caregivers and providing consultation services consistent with the revised statutory definition of "respiratory care." In addition, the Board proposes new N.J.A.C. 13:44F-3.1(c)3 to provide that working under the direction of a physician, physician assistant, or advanced practice nurse includes following the respiratory care protocols established by the health care facility at which he or she practices.

The Board proposes new N.J.A.C. 13:44F-4.1(b)1i to provide that, if an applicant is unable to produce a copy of his or her high school diploma, the Board will accept as evidence of having obtained a high school diploma or its educational equivalent, a bachelor's degree or higher from an accredited educational institution of higher learning. The Board believes this provision will assist applicants who have difficulty producing a copy of his or her high school diploma.

In accordance with P.L. 2017, c. 120 (N.J.S.A. 45:14E-15), the Board proposes to amend N.J.A.C. 13:44F-4.2(a) to change the required respiratory care examination from the National Board for Respiratory Care Entry Level Examination to the Registered Respiratory Therapist examination offered by the National Board of Respiratory Care. Similarly, the Board proposes to amend the reference to the required examination at N.J.A.C. 13:44F-4.4(b)3.

As P.L. 2017, c. 120 repealed N.J.S.A. 45:14E-14a, concerning temporary licensure for those who applied for licensure and were eligible for examination, the Board proposes to repeal and replace the temporary licensure provisions at N.J.A.C. 13:44F-5.1. Consistent with revised N.J.S.A. 45:14E-14, the Board proposes new subsection (a) to codify the process for those applying for a temporary license to assist in a medical emergency or to engage in a special project or teaching assignment relating to respiratory care practice. In accordance with N.J.S.A. 45:14E-14, the Board proposes new subsection (b) to specify that a temporary license is valid for one year and may be renewed by the Board for one additional year.

Consistent with the proposed recodification at N.J.A.C. 13:44F-3.1, the Board proposes to amend the cross-reference at N.J.A.C. 13:44F-8.2(a)6. The Board also proposes to update the name of the Department of Health at subsection (c). In addition, the Board proposes to update the Board's website address at N.J.A.C. 13:44F-8.4(b).

Consistent with N.J.S.A. 45:14E-9, the Board proposes to amend N.J.A.C. 13:44F-9.1(a)2 to expand acts or practices deemed to be the unlicensed practice of respiratory care to include the use of the terms "inhalation therapy" and "pulmonary therapy," and to add "terms, letters, insignia" in connection with inhalation therapy, respiratory care, respiratory therapy, and pulmonary therapy. The Board also proposes to amend paragraph (a)3 to include the use of the designation of respiratory therapy technician, pulmonary technician, and to add "letters and insignia."

Consistent with N.J.S.A. 45:14E-16.b(3), the Board proposes new N.J.A.C. 13:44F-10.2A(d) to specify that, notwithstanding the provisions of N.J.A.C. 13:44F-10.2A(a), (b), and (c), pursuant to the statute, the Board will not grant credit for continuing education for any program of [page=1347] activities designed to fulfill assigned general employment responsibilities specific to the expectations of an employer.

The Board has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The proposed amendments, repeal, and new rule will have a positive social impact on respiratory care practitioners and the general public by safeguarding the public health, safety, and welfare by ensuring appropriate practice standards, which will enable licensees to provide the highest quality care in the performance of respiratory care services.
The Board believes that the proposed amendments expanding the group of practitioners who may supervise or direct respiratory care practitioners to include advance practice nurses and physician assistants will assist patients by allowing them to timely receive the care they need. The Board does not believe that the proposed repeal and new rule at N.J.A.C. 13:44F-5.1, pertaining to the temporary licensure provisions will have any impact because it issues very few temporary licenses.

Economic Impact

The proposed amendments to N.J.A.C. 13:44F-4.2, concerning the required examination, may have an economic impact to the extent the costs for the Registered Respiratory Therapist Examination differ from those for the National Board of Respiratory Care Entry Level Examination. The costs for the examinations are controlled by the National Board for Respiratory Care.

In addition, to the extent the proposed amendments to N.J.A.C. 13:44F-10.2A limit in-house continuing education programs, which are generally provided at a low-cost or no-cost alternative for practitioners to attain continuing education, the proposed amendments may have an economic impact on respiratory care practitioners. In accordance with N.J.A.C. 13:44F-10.1, licensees applying for biennial license renewal must still complete 30 continuing education credits.

Federal Standards Statement

A Federal standards analysis is not required because the proposed amendments, repeal, and new rule are governed by N.J.S.A. 45:1-15 and 45:14E-1 et seq., and are not subject to any Federal requirements or standards.

Jobs Impact

The Board does not believe that the proposed amendments, repeal, and new rule will result in the creation or loss of jobs in the State.

Agriculture Industry Impact

The proposed amendments, repeal, and new rule will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

Currently, the Board licenses approximately 3,600 respiratory care practitioners and two temporary permit holders. If Board licensees are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.

The proposed amendments, repeal, and new rule will not impose any reporting or recordkeeping requirements, but will impose compliance requirements upon licensed respiratory care practitioners. These requirements are discussed in the Summary above. No additional professional services will be needed to comply with the proposed amendments. The costs of compliance with the proposed amendments are discussed in the Economic Impact above. The Board believes that the proposed amendments, repeal, and new rule should be uniformly applied to all licensees in order to ensure the health, safety, and welfare of the general public in the provision of respiratory care services and, therefore, no differing compliance requirements for any licensee are provided based upon the size of the business.

Housing Affordability Impact Analysis

The proposed amendments, repeal, and new rule will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed amendments concern the practice of respiratory care and continuing education for respiratory care practitioners.

Smart Growth Development Impact Analysis

The proposed amendments, repeal, and new rule will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendments concern the practice of respiratory care and continuing education for respiratory care practitioners.

Racial and Ethnic Community Criminal Justice and Public Safety Impact

The Board has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.

Regulations

Full text of the rule proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 13:44F-5.1.

Full text of the proposed amendments and new rule follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 1.    PURPOSE AND SCOPE; DEFINITIONS

13:44F-1.1     Purpose and scope

(a) This chapter is promulgated by the Director of the Division of Consumer Affairs. The rules contained in this chapter implement the provisions of the Respiratory Care Practitioner Licensing Act, P.L. 1991, [c.31,] c. 31 and P.L. 2017, c. 120, and regulate the practice of respiratory care within the State of New Jersey.

(b) This chapter shall apply to all individuals who render respiratory care, as defined in N.J.A.C. 13:44F-1.2, under the direction or supervision of a plenary licensed physician, physician assistant, or advanced practice nurse, and to anyone within the jurisdiction of the Board of Respiratory Care.

(c) (No change.)

13:44F-1.2     Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

. . .

"Respiratory care" means the health specialty involving disease prevention, the treatment, [disease] management, control, and care [of] for patients with deficiencies and abnormalities of the cardiac and pulmonary system, as further defined in N.J.S.A. 45:14E-[3(c)]3.c.

"Respiratory care education program" means a program of respiratory care education accredited by the Commission on Accreditation for Respiratory Care (CoARC), or its predecessor, or successor organization.

"Respiratory care practitioner" means a person licensed by the Board to practice respiratory care under the direction or supervision of a licensed physician, physician assistant, or advanced practice nurse, and who may transcribe and implement written, verbal, and protocol orders for respiratory care.

"Respiratory care protocols" means policies and protocols developed by a licensed health care facility through collaboration, when appropriate, with administrators, physicians, registered nurses, physical therapists, respiratory care practitioners, and other licensed health care practitioners.

. . .

SUBCHAPTER 3.    AUTHORIZED PRACTICE

13:44F-3.1     Scope of practice

(a) For the purposes of treating, managing, controlling, and caring for patients with deficiencies and abnormalities of the cardiac and pulmonary system, a respiratory care practitioner may perform the following duties under the direction or supervision of a physician, physician assistant, or advanced practice nurse:

1.-13. (No change.)

[page=1348] (b) A respiratory care practitioner may perform the following duties under the direction or supervision of a physician, physician assistant, or advanced practice nurse:

1. Educate patients and caregivers about respiratory care procedures as part of a patient's disease management program; and

2. Provide professional consultation services to health care, educational, and community organizations, and State and local agencies.

[(b)] (c) For purposes of this subchapter, "under the direction of a physician, physician assistant, or advanced practice nurse" means that respiratory care shall not be rendered unless one of the following conditions is met:

1. The licensee has obtained a written order or prescription from a plenary licensed physician, physician assistant, or advanced practice nurse, or from such other health care practitioner authorized by law to prescribe or order respiratory care;

2. The licensee has documented the [physician's] physician, physician assistant, or advanced practice nurse's clearance for treatment of the patient, which may include the [physician's] physician, physician assistant, or advanced practice nurse's countersigning of the respiratory care practitioner's proposed plan of treatment; [or]

3. The licensee has followed the respiratory care protocols established by the health care facility at which he or she practices; or

[3.] 4. (No change in text.)

[(c)] (d) In no case will physician, physician assistant, or advance practice nurse direction be construed to have been provided on the basis of a patient's representation that he or she has obtained a [physician's] physician, physician assistant, or advanced practice nurse's clearance.

[(d)] (e) For the purposes of this subchapter, "under the supervision of a physician, physician assistant, or advanced practice nurse" means that respiratory care shall not be rendered unless a physician, physician assistant, or advanced practice nurse is constantly accessible, either on-site or through electronic communication, and available to render physical assistance when required.

13:44F-3.2     Practice by trainees

(a) A trainee may perform those duties essential for completion of his or her clinical service, without having to obtain a license, provided the duties are performed under the direction of a physician, physician assistant, or advanced practice nurse, as defined in N.J.A.C. 13:44F-3.1[(b)1](c)1 and 2, and the supervision of a physician, physician assistant, or advanced practice nurse as defined in N.J.A.C. 13:44F-3.1[(d)](e), or under the direct supervision of a [licensed] respiratory care practitioner[, as defined in N.J.A.C. 13:44F-5.1].

(b) The trainee shall, when performing duties pursuant to (a) above, wear a badge which identifies the person as a trainee. Additionally, the supervising licensee or physician, physician assistant, or advanced practice nurse shall inform the patient that the person rendering care is a trainee.

SUBCHAPTER 4.    APPLICANT QUALIFICATIONS; BOARD-APPROVED EXAMINATION

13:44F-4.1     Eligibility for licensure

(a) (No change.)

(b) An applicant shall submit, with the completed application form and the required fee, satisfactory proof that the applicant:

1. Has a high school diploma or its educational equivalent;

i. If an applicant is unable to produce a copy of his or her high school diploma, the Board shall accept as evidence of having obtained a high school diploma or its educational equivalent, a bachelor's degree or higher from an accredited educational institution of higher learning.

2.-3. (No change.)

13:44F-4.2     Nature of examination; passing grade

(a) The respiratory care examination shall be the Registered Respiratory Therapist examination offered by the National Board for Respiratory Care, [Entry Level Examination] or its successor organization.

1.-2. (No change.)

13:44F-4.4     Credit towards licensure for education, training, and experience received while serving as a member of the Armed Forces

(a) (No change.)

(b) The Board shall issue a license to the applicant if the applicant presents evidence to the Board that:

1.-2. (No change.)

3. The applicant complies with all other requirements for licensure, including successful completion of the Registered Respiratory Therapist examination offered by the National Board for Respiratory Care, [Entry Level Examination] as set forth in N.J.A.C. 13:44F-4.1 and 4.2.

(c)-(e) (No change.)

SUBCHAPTER 5.    TEMPORARY LICENSURE

13:44F-5.1         Temporary license

(a) In accordance with N.J.S.A. 45:14E-14, the Board may issue, without examination, a temporary license to practice respiratory care in this State provided that the person:

1. Submits an application on the forms provided by the Board;

2. Pays the fee set forth at N.J.A.C. 13:44F-8.1;

3. Provides evidence that he or she is qualified to engage in the practice of respiratory care; and

4. Is in the State on a temporary basis to assist in a medical emergency or to engage in a special project or teaching assignment relating to respiratory care practice.

(b) A temporary license shall expire one year from its date of issuance and may be renewed by the Board for an additional one-year period.

SUBCHAPTER 8.    GENERAL PROVISIONS

13:44F-8.2     Patient records

(a) Respiratory care practitioners shall prepare contemporaneous, permanent treatment records. If custody of the patient records is within the responsibility of the licensee, the licensee shall ensure that every patient record shall be kept for at least seven years from the date of the most recent entry, except that if a patient is a minor, the records shall be kept for an additional two years beyond the age of 18. Such records shall include:

1.-5. (No change.)

6. Written prescription for care or a care plan signed by a physician or such other health care practitioners authorized by law to prescribe, or a verbal order or prescription memorialized by the prescriber in writing pursuant to the provisions of N.J.A.C. 13:44F-3.1[(b)3](c)3. The licensee shall document verbal prescriptions in the patient record contemporaneously with administration of treatment;

7.-9. (No change.)

(b) (No change.)

(c) In addition to the requirements of (a) above, a licensee employed in a setting regulated by the Department of Health [and Senior Services] shall comply with all applicable Department of Health [and Senior Services] rules.

(d) (No change.)

13:44F-8.4     Office location; Board information

(a) (No change.)

(b) Information related to Board operations may be obtained at the following website: [www.state.nj.us/lps/ca/medical/respcare.htm]

http://www.njconsumeraffairs.gov/resp/Pages/regulations.aspx.

SUBCHAPTER 9.    UNLICENSED PRACTICE

13:44F-9.1     Acts amounting to unlicensed practice

(a) The following acts or practices shall be deemed to be the unlicensed practice of respiratory care:

1. (No change.)

2. The use of the words inhalation therapy, respiratory care, respiratory therapy, pulmonary therapy, or other such similar words or their related terms, letters, insignia, or abbreviations in connection with the offering of measures or services [which] that are utilized in the [page=1349] rendition of respiratory care by any person who does not hold a license to render respiratory care services or is not otherwise exempt from the licensure requirement;

3. The use of the designation respiratory care practitioner, respiratory therapist, respiratory therapy technician, pulmonary technician, or other such similar terms, letters, insignia, and their related abbreviations in connection with the offering of measures or services [which] that are utilized in the rendition of respiratory care by any person who does not hold a license to render respiratory care services or is not otherwise exempt from licensure; or

4. (No change.)

SUBCHAPTER 10.  CONTINUING EDUCATION

13:44F-10.2A  Performance-based competency assessment; approval; determination of credits

(a)-(c) (No change.)

(d) Notwithstanding the provisions of (a), (b), and (c) above, pursuant to N.J.S.A. 45:14E-16.b(3), the Board shall not grant credit for continuing education for any program of activities designed to fulfill assigned general employment responsibilities specific to the expectations of an employer.