You have worked hard to complete your education and earn your certificate as a respiratory care practitioner. However, now a complaint against you is threatening your career. You have too much at stake to try and handle a complaint and potential disciplinary action on your own. Instead, call an experienced respiratory care practitioner license defense lawyer to assist you in protecting your rights and your reputation. By getting legal representation, you can also better understand the types of sanctions you may face in disciplinary proceedings.
The Complaint and Investigation Process for Respiratory Care Practitioners
The Texas Medical Board (TMB) oversees the process of respiratory care practitioners obtaining certification and temporary permits. The Texas Board of Respiratory Care is an advisory board within the TMB that deals with complaints against respiratory care practitioners.
Under Tex. Occ. Code § 604.171, the advisory board must complete a preliminary investigation regarding any complaints about respiratory care practitioners within 45 days of receipt. Initially, the advisory board shall determine whether the practitioner constitutes a continuing threat to the public welfare. The advisory board then will determine whether there is sufficient evidence to begin an official investigation into the matters alleged in the complaint.
Bases for Disciplinary Actions Against Respiratory Care Practitioners
If the advisory board finds that the holder of a respiratory care practitioner certificate or temporary permit has committed any of the following actions, it must take disciplinary action against that person:
- Commits fraud or deceit in procuring, renewing, or attempting to procure a certificate or temporary permit;
- Acts with negligence or another cause of incompetency has caused the persons to be unfit or incompetent;
- Improperly obtains, possesses, uses, distributes, or is addicted to a habit-forming drug or narcotic, is habitually intemperate in the use of alcoholic beverages;
- Commits dishonest or unethical conduct;
- Practices respiratory care with an expired certificate or temporary permit;
- Practices respiratory care under an illegally or fraudulently obtained or issued certificate or temporary permit;
- Practices respiratory care without the direction of a qualified medical director or other licensed physician;
- Violates this chapter or aided or abetted another in violating this chapter; or
- Violates:
- A rule adopted under this chapter;
- An order of the advisory board previously entered in a disciplinary proceeding; or
- An order to comply with a subpoena issued under this chapter.
The advisory board must also suspend the certificate or temporary permit of a practitioner serving a federal or state prison term under Tex. Occ. Code § 604.208.
Potential Sanctions in a Disciplinary Case
Tex. Occ. Code § 604.201 authorizes the advisory board to take any of the following actions if it finds that a practitioner has violated a rule or law that governs respiratory care practitioners:
- Deny, suspend, suspend on an emergency basis, restrict, revoke, or refuse to renew a certificate or temporary permit;
- Place the certificate or permit holder on probation under conditions set by the advisory board; or
- Reprimand the certificate or permit holder.
The advisory board also has the right to temporarily suspend a certificate or temporary permit on an emergency basis if a three-member panel of the advisory board determines that continued practice by the practitioner would be a continued threat to the public welfare.
Furthermore, the advisory board can assess administrative penalties against a respiratory care practitioner for rules or law violations. Under Tex. Occ. Code § 604.302, the amount of the administrative penalty may not exceed $1,000. However, each day that a violation continues is a separate violation. A practitioner who has received an administrative penalty may accept the determination and pay the penalty or appeal the penalty by asking for a hearing.
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Disposition of Disciplinary Cases
The advisory board and the practitioner who is the focus of the complaint can resolve the complaint through informal or formal proceedings, depending on the circumstances.
Informal Proceedings
Under Tex. Occ. Code § 604.209, the advisory board must schedule an informal meeting that allows both the practitioner and the complaining party to be heard before the board, at least one of its staff members, and its attorney. Following the presentation of evidence by both sides, the advisory board representative can recommend that the complaint be closed or attempt to mediate the disputed matters and make a recommendation as to the disposition of the case. In addition, the advisory board may make a settlement offer in writing to the practitioner to resolve the case informally. The practitioner may accept or reject the settlement offer within a certain period.
Formal Proceedings
If the advisory board and the practitioner cannot settle the complaint, the advisory board formally files a complaint with the State Office of Administrative Hearings (SOAH). An administrative law judge (ALJ) from SOAH will conduct an administrative hearing. After the hearing, the ALJ will issue findings of fact and conclusions of law, which the advisory board may not change. The advisory board may either issue a final order based on the ALJ’s findings of fact and conclusions of law or appeal the ALJ’s findings of fact and conclusions of law if it disagrees with them. In any case, the ALJ can issue no recommendation as to the appropriate sanctions in a disciplinary case; sanctions are within the sole discretion of the advisory board.
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Count on Bertolino, LLP, to Defend Your License from Disciplinary Action
When a complaint threatens your ability to earn a living, you need a seasoned respiratory care practitioner license defense attorney on your side. We will defend you against these attacks on the credentials you have worked so hard to earn. Contact the lawyers of Bertolino LLP today by calling (512) 515-9518 or visiting us online.
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