In August, the Respiratory Care Board of California (RCB) voted unanimously to pass a motion allowing for the issuance of citations and fines for the unlicensed practice of respiratory care associated with polysomnography. Not only are investigations stemming from this motion under way, but also the RCB has now drafted new licensure legislation.

According to the Respiratory Care Board of California's Fall 2007 newsletter (launches PDF), "Citations may be issued to both unlicensed personnel and employers of unlicensed personnel illegally practicing respiratory care, with fine amounts up to $15,000. The issuance of these citations and fines is separate from, and in addition to, citations issued to employers by the Department of Health Care Services for failure to use properly licensed personnel."

This move heated up debate among many sleep professionals who feel requiring licensure of RPSGTs is doing little more than widening a divide between the sleep and the respiratory care professions.

Signed into law in 1983, the Respiratory Care Practice Act tasks the RCB with overseeing the licensure and regulation of respiratory professionals.

"In 2002 we added a code, Section 3767, which authorized us to cite and fine for the unlicensed practice of respiratory therapy," said Stephanie Nunez, executive officer for the Respiratory Care Board of California (Sacramento). Section 3767 became effective January 1, 2003. "We've been working on this since 2001 and have reached out to the community through surveys and roundtable meetings. Unfortunately, because these individuals are not licensed or regulated, we were very limited in how we were able to contact them." Nunez added that in 2004, there weren't many techs who were credentialed, a fact that has changed in recent years.

While, to date, there have not been any citations or fines issued to either sleep techs or their employers, there has been an ongoing effort from the RCB to inform the community about the new requirement.

"We sent a [online] survey out to more than 400 people, as well as a notice, in 2004," Nunez added. A hard copy of the survey was also distributed to about 150 people. "We received only 29 responses." This type of minimal involvement is a point of frustration for Nunez.

Polysomnographic Technologist Act

In addition to gathering information from the industry on, among other things, how licensing should be instituted, the RCB has put forth its suggested solution, the Polysomnographic Technologist Act. The proposed legislation—which is available on the organization's site (launches PDF)—is sitting idle, waiting for backing by a public official who could push it into law.

According to an AASMAdvocacy e-mail to AAST members, the proposal would require a sleep technologist to fulfill one of the following criteria to obtain licensure:
-  Possession of a current license to practice respiratory care in California.
-  Completion of an accredited respiratory care program as prescribed by the board and has an associated degree.
-  Completion of an accredited electroneurodiagnostics program as prescribed by the board and has an associated degree.
-  Completion of a polysomnography educational program prescribed by the board and has an associated degree.
-  Completion of 18 months or 3,000 hours of full-time paid work experience as an applicant sleep technologist, including 1,000 hours in polysomnography-related respiratory care services as prescribed by the board and satisfactorily performed as verified by a physician or surgeon.

The e-mail also stated, "AAST and AASM are formulating a number of strategies to counter this measure, one of which includes introducing our own bill, but no decision has been made at this time. Though we have not made a decision, we will still be working with our attorneys on our own bill so we are prepared for the upcoming legislative session."

The tone of the e-mail conveys concern—a feeling that Nunez has also recognized. "The feedback we are getting is that the American Academy of Sleep Medicine, physicians, and some sleep lab owners are adamantly against any type of regulation, while sleep technicians and some sleep lab owners support regulation. But currently, the fact is that respiratory care must be performed by a licensed person," Nunez said. "So, we are seeking a resolution to this, and we've tried to stress that we want the techs to get involved; we want them to help us fix this problem."

Those techs are also feeling frustration. In many cases, they view the RCB as "playing favorites" and as trying to eliminate or ignore sleep professionals with additional legislation. Such accusations are unfounded, according to Nunez.

"We recognize that respiratory therapists need additional training in this area and that RPSGTs are probably the best qualified," she said. "Our recommendation is to establish a license category within our board, and it isn't excluding anyone: it recognizes the BRPT exam, it recognizes experience, and it recognizes all the people who are in the practice right now. It is not a turf war. It is a consumer protection effort."

Driving the goal of licensing is the ability to screen and monitor those in the profession. Among other requirements, licensure would mandate that techs pass a criminal background check. Not all hospitals—and very few independent facilities—perform such checks, according to Nunez, and even those who do are not privy to the privileged information the government can access.

"Licensure also addresses employees who are incompetent or who did something unethical. In those cases, the employer, most times, will terminate the tech and that person goes on to work somewhere else, with no record of it," said Nunez. "Granted, someone can do an employment check, but not everyone does—and employers are also leery of giving out that type of information, for fear of being sued."

"Accusations of sexual assault on patients in a California sleep lab by an unlicensed sleep technician last May, focused the spotlight on the importance of regulating the profession," said Nunez.

"I think what's happening right now is the good [techs] are taking offense, because they feel they're being accused and criticized for not being good enough—and that is absolutely not true," she said. "It is the other people that we are worried about. It is about creating a level playing ground and ensuring that everyone has competency testing, such as the BRPT [Board of Registered Polysomnographic Technologists] exam or the NBRC [National Board for Respiratory Care] exam, if that comes about. We are not putting one above the other—we would recognize both."