A BILL TO BE ENTITLED
AN ACT authorizing the licensure of polysomnographic technologists, authorizing the north carolina respiratory care board to increase its membership from ten to twelve and allowing the department of justice to conduct criminal history record checks from state and national repositories of criminal history of applicants for licensure as polysomnographic technologists.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 90 of the General Statutes is amended by adding a new Article to read:
"Article 42.
"Polysomnographic Technologists Licensure Act.
"§ 90‑710.  Legislative findings.
The General Assembly finds that the practice of polysomnography is an area of health care that is continually evolving to include more sophisticated and demanding patient care activities. The General Assembly further finds that the practice of polysomnography by unauthorized, unqualified, unprofessional, and incompetent persons is a threat to public health, safety, and welfare. Therefore, it is necessary to establish minimum standards of education, training, and competency for persons engaged in the practice of polysomnography in this State.
"§ 90‑711.  Definitions.
The following definitions apply in this Article:
(1)	Board. – The North Carolina Respiratory Care Board, as established under Article 38 of this Chapter.
(2)	Committee. –  The North Carolina Polysomnography Advisory Committee.
(3)	Licensee. – A person who has been issued a license to practice polysomnography under this Article.
(4)	Polysomnography. – The process of analysis, attended monitoring, and recording of physiologic data during sleep and wakefulness to assist in the assessment and diagnosis of sleep and wake disorders and other disorders, syndromes, and dysfunctions that are sleep‑related, manifest during sleep, or disrupt normal sleep and wake cycles and activities.
(5)	Polysomnography protocols. – Policies developed or approved by a licensed health care facility through collaboration with physicians, licensed polysomnographic technologists, and other licensed health care professionals that establish guidelines related to polysomnography.
(6)	Practice of polysomnography. – The performing of functions, under the supervision of a licensed physician, necessary for the diagnostic testing, research, control, education, and care of patients with sleep and wake disorders under a qualified medical director, including the process of analyzing, monitoring, and recording physiologic data during sleep and wakefulness to assess, diagnose, and assist in the treatment and research of disorders, syndromes, and dysfunctions that are sleep‑related, manifest during sleep, or disrupt normal sleep and wake cycles and activities. Polysomnography shall also include the therapeutic and diagnostic use of oxygen, noninvasive ventilatory assistance of spontaneously breathing patients, and cardiopulmonary resuscitation, maintenance of nasal and oral airways that do not extend into the trachea, and transcription and implementation of the written or verbal orders of a physician pertaining to the practice of polysomnography.
(7)	Registered polysomnographic technologist. – A person who has successfully completed the examination process and has been issued a certificate by the Board of Registered Polysomnographic Technologists or its successor organization to practice polysomnography.
(8)	Sleep disorders center or laboratory. – A facility providing clinical diagnostic services or treatment for patients who present with symptoms or features that suggest the presence of a sleep disorder.
"§ 90‑712.  Respiratory Care Board approval required.
The Committee shall report to the Respiratory Care Board all actions taken by the Committee pursuant to this Article, except for actions taken by the Committee pursuant to G.S. 90‑714. No action by the Committee is effective unless the action is approved by the Board. The Board may also rescind or supersede, in whole or in part, any action taken by the Committee in carrying out the provisions of this Article, except for actions taken by the Committee pursuant to G.S. 90‑714.
"§ 90‑713.  License required; exemptions.
(a)	On or after October 1, 2009, no person shall practice polysomnography, offer to practice polysomnography, or employ unlicensed persons to practice polysomnography as defined in this Article, use the title 'licensed polysomnographic technologist,' 'licensed sleep technologist,' 'provisional licensed polysomnographic technologist,' or 'provisional licensed sleep technologist,' use the letters 'LST,' 'LST‑P,' or otherwise imply orally or in writing or indicate in any way that the person is licensed to practice polysomnography unless that person is currently licensed as provided in this Article.
(b)	The provisions of this Article shall not apply to:
(1)	Any person registered, certified, credentialed, or licensed to engage in another profession or occupation or any person working under the supervision of a person registered, certified, credentialed, or licensed to engage in another profession or occupation in this State if the person is performing work incidental to or within the practice of that profession or occupation and the person does not represent himself or herself as a licensed polysomnographic technologist or a provisionally licensed polysomnographic technologist.
(2)	A student enrolled in an accredited polysomnography education program if polysomnography services performed by the student are an integral part of the student's course of study and are performed under the direct supervision of a licensed polysomnographic technologist.
(3)	A polysomnographic technologist employed by the United States government when performing duties associated with that employment.
"§ 90‑714.  Polysomnography Advisory Committee.
(a)	Composition and Terms. – The North Carolina Polysomnography Advisory Committee is created. The Committee shall consist of five members who shall serve staggered terms. On or before July 1, 2008, the initial Committee members shall be selected as follows:
(1)	The North Carolina Respiratory Care Board shall appoint two licensed polysomnographic technologists, one of whom shall serve a term of three years and one of whom shall serve a term of two years.
(2)	The North Carolina Medical Board shall appoint one physician who is licensed under Article 1 of Chapter 90 of the General Statutes and is Certified by the American Board of Sleep Medicine or a certifying board approved by the American Board of Medicine Specialties, who shall serve a term of three years.
(3)	The North Carolina Hospital Association shall appoint one member who shall serve a term of two years.
(4)	The Governor shall appoint one public member who shall serve a term of one year.
Upon the expiration of the terms of the initial Committee members, members shall be appointed by the appointing authorities designated in subdivisions (1) through (4) of this subsection for a term of three years and shall serve until a successor is appointed. No member may serve more than two consecutive full terms.
(b)	Qualifications. – Members of the Committee shall be citizens of the United States and residents of this State. The polysomnographic technologist members shall hold current licenses from the Committee and shall remain in good standing with the Committee during their terms. Public members of the Committee shall not be: (i) trained or experienced in the practice of polysomnography, (ii) an agent or employee of a person engaged in the practice of polysomnography, (iii) a health care professional licensed under this Chapter or a person enrolled in a program to become a licensed health care professional, (iv) an agent or employee of a health care institution, a health care insurer, or a health care professional school, (v) a member of an allied health profession or a person enrolled in a program to become a member of an allied health profession, or (vi) a spouse of an individual who may not serve as a public member of the Committee.
(c)	Vacancies. – Any vacancy shall be filled by the authority originally filling that position. Appointees to fill vacancies shall serve the remainder of the unexpired term and until their successors have been duly appointed and qualified.
(d)	Removal. – The Committee may remove any of its members for neglect of duty, incompetence, or unprofessional conduct. A member subject to disciplinary proceedings in his or her capacity as a licensed polysomnographic technologist shall be disqualified from participating in the official business of the Committee until the charges have been resolved.
(e)	Compensation. – Each member of the Committee shall receive per diem and reimbursement for travel and subsistence as provided in G.S. 93B‑5.
(f)	Officers. – The officers of the Committee shall be a chair, a vice‑chair, and other officers deemed necessary by the Committee to carry out the purposes of this Article. Each officer shall be elected annually by the Committee for a one‑year term and shall serve until his or her successor is elected and qualified.
(g)	Meetings. – The Committee shall hold its first meeting within 30 days after the appointment of its members and shall hold at least two meetings each year to conduct business and to review the standards and rules previously adopted by the Committee. The Committee shall establish the procedures for calling, holding, and conducting regular and special meetings. A majority of Committee members constitutes a quorum.
"§ 90‑715.  Powers of the Committee.
The Committee shall have the power and duty to:
(1)	Administer this Article.
(2)	Issue interpretations of this Article.
(3)	Adopt, amend, or repeal rules as may be necessary to carry out the provisions of this Article.
(4)	Employ and fix the compensation of personnel that the Committee determines is necessary to carry into effect the provisions of this Article and incur other expenses necessary to effectuate this Article.
(5)	Determine the qualifications and fitness of applicants for licensure, provisional licensure, licensure renewal, and reciprocal licensure.
(6)	Request that the Department of Justice conduct criminal history record checks of applicants for licensure in accordance with G.S. 114‑19.11B.
(7)	Issue, renew, deny, suspend, or revoke licenses, order probation, issue reprimands, and carry out any other disciplinary actions authorized by this Article.
(8)	Set fees for licensure, provisional licensure, temporary licensure, licensure renewal, late licensure renewal, and other services deemed necessary to carry out the purposes of this Article.
(9)	Establish continuing education requirements for licensees.
(10)	Establish a code of ethics for licensees.
(11)	Maintain a current list of all persons who have been licensed under this Article.
(12)	Conduct inspections of sleep disorders centers and laboratories.
(13)	Conduct investigations, subpoena individuals and records, and do all other things necessary and proper to discipline persons licensed under this Article and to enforce this Article.
(14)	Conduct administrative hearings in accordance with Article 3A of Chapter 150B of the General Statutes.
(15)	Maintain a record of all proceedings and make available to all licensees and other concerned parties an annual report of all Committee action.
(16)	Adopt a seal containing the name of the Committee for use on all official documents and reports issued by the Committee.
"§ 90‑716.  Qualifications for licensure; provision of services.
(a)	An applicant shall be licensed to practice polysomnography if the applicant meets all of the following qualifications:
(1)	Is at least 18 years old.
(2)	Completes an application on a form provided by the Committee.
(3)	Successfully completes a polysomnography education program accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP).
(4)	Pays the required fee under G.S. 90‑721.
(5)	Is a registered polysomnographic technologist.
(6)	Successfully completes the requirements for Basic Cardiac Life Support as recognized by the American Heart Association, the American Red Cross, or the American Safety and Health Institute.
(b)	All persons licensed under this section shall practice polysomnography under the supervision of a physician licensed under Article 1 of Chapter 90 of the General Statutes.
(c)	Polysomnography services shall be provided only when ordered by a physician who has medical responsibility for the patient.
"§ 90‑717.  Criminal record checks of applicants for licensure.
(a)	The Committee shall, in its discretion, investigate the background of an applicant for licensure as a polysomnographic technologist to determine the applicant's qualifications for licensure with due regard given to the applicant's competency, honesty, truthfulness, and integrity. In accordance with G.S. 114‑19.11B, the Department of Justice may provide a criminal record check to the Committee for a person who has applied for a license through the Committee. The Committee shall provide to the Department of Justice, along with the request, the fingerprints of the applicant, any additional information required by the Department of Justice, and a form signed by the applicant consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The Committee shall keep all information pursuant to this subsection privileged, in accordance with applicable State law and Federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes. The Committee shall collect any fees required by the Department of Justice and shall remit the fees to the Department of Justice for expenses associated with conducting the criminal history record check.
(b)	For purposes of this section, the term 'criminal history' means a history of conviction of a State crime, whether a misdemeanor or felony, that bears on an applicant's fitness for licensure as a polysomnographic technologist. The crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer‑Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act in Article 5 of Chapter 90 of the General Statutes and alcohol‑related offenses including sale to underage persons in violation of G.S. 18B‑302 or driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.
"§ 90‑718.  (Effective until October 1, 2009)  Exemption from certain requirements.
(a)	The Committee may issue a license to an applicant who, as of October 1, 2008, has passed the registered polysomnographic technologist examination given by the Board of Registered Polysomnographic Technologists. An applicant applying for licensure under this subsection shall submit his or her application to the Committee before October 1, 2009, along with payment of the appropriate fees pursuant to G.S. 90‑721(c).
(b)	The Committee may grant a temporary license to an applicant who, as of October 1, 2008, does not meet the qualifications of G.S. 90‑716 but, through written evidence verified by oath, demonstrates that he or she is performing the duties of a polysomnographic technologist within the State. The temporary license is valid until October 1, 2009, within which time the applicant shall be required to complete the requirements of G.S. 90‑716(a)(5). A license granted under this subsection shall contain an endorsement indicating that the license is temporary and shall state the date the license was granted and the date it expires. An applicant applying for a temporary license under this subsection shall pay the appropriate fees pursuant to G.S. 90‑721(c).
"§ 90‑719.  Reciprocity.
The Committee may grant, upon application and payment of proper fees, a license to a person who has been licensed to practice polysomnography in another state or territory of the United States whose standards of competency are substantially equivalent to those provided in this Article.
"§ 90‑720.  Provisional license.
The Committee may grant a provisional license for a period not exceeding 12 months to any applicant who has successfully completed an approved polysomnography education program and pays the required fee under G.S. 90‑721. A provisional license shall allow the individual to practice polysomnography under the direct supervision and direction of a licensed polysomnographic technologist and in accordance with rules adopted by the Committee pursuant to this Article. A license granted under this section shall contain an endorsement indicating that the license is provisional and stating the terms and conditions of its use by the licensee. The license shall state the date the license was granted and the date it expires.
"§ 90‑721.  Expenses; fees.
(a)	All fees shall be payable to the Respiratory Care Board and deposited in the name of the Board in financial institutions designated by the Board as official depositories. These fees shall be used to carry out the purposes of this Article.
(b)	All salaries, compensation, and expenses incurred or allowed to carry out the purposes of this Article shall be paid by the Respiratory Care Board exclusively out of the fees received by the Board as authorized by this Article or funds received from other sources. In no case shall any salary, expense, or other obligation authorized by this Article be charged against the State Treasury.
(c)	The Committee, upon the approval of the Respiratory Care Board, shall establish fees not exceeding the following amounts:
(1)	For an initial application, a fee not to exceed fifty dollars ($50.00).
(2)	For issuance of any license, a fee not to exceed one hundred fifty dollars ($150.00).
(3)	For the renewal of any license, a fee not to exceed seventy‑five dollars ($75.00).
(4)	For the late renewal of any license, an additional late fee not to exceed seventy‑five dollars ($75.00).
(5)	For a provisional license or a license with a temporary endorsement, a fee not to exceed fifty dollars ($50.00).
(6)	For copies of rules adopted pursuant to this Article and licensure standards, charges not exceeding the actual cost of printing and mailing.
(7)	For official verification of licensure status, a fee not to exceed twenty dollars ($20.00).
(8)	For approval of continuing education programs, a fee not to exceed one hundred fifty dollars ($150.00).
"§ 90‑722.  License as property of the Committee; display requirement; renewal of licenses.
(a)	A license issued by the Committee is the property of the Committee and shall be surrendered by the licensee to the Committee on demand.
(b)	The licensee shall display the license in a manner prescribed by the Committee.
(c)	The licensee shall inform the Committee of any change of the licensee's name, address, or practice site.
(d)	All licenses to practice polysomnography shall expire one year after the date they were issued. The Committee shall send a notice of expiration to each licensee at his or her last known address at least 30 days before the expiration of his or her license. All applications for renewal of unexpired licenses shall be filed with the Committee and accompanied by proof satisfactory to the Committee that the applicant has completed the continuing education requirements established by the Committee and the renewal fee as required by G.S. 90‑721(c).
(e)	An application for renewal of a license that has been expired for less than two years shall be accompanied by proof satisfactory to the Committee that the applicant has satisfied the continuing education requirements established by the Committee and the renewal and late fees required by G.S. 90‑721(c). A license that has been expired for more than two years shall not be renewed, but the applicant may reapply for licensure by complying with the current requirements for licensure under this Article.
"§ 90‑723.  Suspension, revocation, and refusal to renew.
(a)	The Committee may deny, refuse to renew, suspend, or revoke an application or license, order probation, or issue a reprimand if the applicant or licensee:
(1)	Gives false information or withholds material information from the Committee in procuring or attempting to procure a license.
(2)	Gives false information or withholds material information from the Committee during the course of an investigation conducted by the Committee.
(3)	Has been convicted of or pled guilty or no contest to a crime that indicates the person is unfit or incompetent to practice polysomnography as defined in this Article or that indicates the person has deceived, defrauded, or endangered the public.
(4)	Has a habitual substance abuse or mental impairment that interferes with his or her ability to provide appropriate care as established by this Article or rules adopted by the Committee.
(5)	Has demonstrated gross negligence, incompetency, or misconduct in the practice of polysomnography as defined in this Article.
(6)	Has had an application for licensure or a license to practice polysomnography in another jurisdiction denied, suspended, or revoked for reasons that would be grounds for similar action in this State.
(7)	Has willfully violated any provision of this Article or rules adopted by the Committee.
(b)	The taking of any action authorized under subsection (a) of this section may be ordered by the Committee after a hearing is held in accordance with Article 3A of Chapter 150B of the General Statutes. The Committee may reinstate a revoked license if the Committee finds that the reasons for revocation no longer exist and that the person can reasonably be expected to perform the services authorized under this Article in a safe manner.
"§ 90‑724.  Violation a misdemeanor.
Any person who violates any provision of this Article shall be guilty of a Class 1 misdemeanor.
"§ 90‑725.  Enjoining illegal practices.
The Board may apply to the superior court for an order enjoining violations of this Article. Upon a showing by the Board that any person has violated this Article or is about to violate this Article, the court may grant injunctive relief or take other appropriate action.
"§ 90‑726.  Civil penalties; disciplinary costs.
(a)	Authority to Assess Civil Penalties. – The Committee may assess a civil penalty not in excess of one thousand dollars ($1,000) for the violation of any section of this Article or the violation of any rules adopted by the Committee. The clear proceeds of any civil penalty assessed under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
(b)	Consideration Factors. – Before imposing and assessing a civil penalty, the Committee shall consider the following factors:
(1)	The nature, gravity, and persistence of the particular violation.
(2)	The appropriateness of the imposition of a civil penalty when considered alone or in combination with other punishment.
(3)	Whether the violation was willful and malicious.
(4)	Any other factors that would tend to mitigate or aggravate the violations found to exist.
(c)	Schedule of Civil Penalties. – The Committee shall establish a schedule of civil penalties for violations of this Article and rules adopted by the Committee.
(d)	Costs. – The Committee may assess the costs of disciplinary actions against a person found to be in violation of this Article or rules adopted by the Committee.
"§ 90‑727.  Third‑party reimbursement.
Nothing in this Article shall be construed to require direct third‑party reimbursements to persons licensed under this Article."
SECTION 2.  G.S. 90‑629 reads as rewritten:
"§ 90‑649.  North Carolina Respiratory Care Board; creation.
(a)	The North Carolina Respiratory Care Board is created. The Board shall consist of 12 members as follows:
(1)	Two members shall be respiratory care practitioners.
(1a)	One member shall be a polysomnographic technologist.
(2)	Five members shall be physicians licensed to practice in North Carolina, and whose primary practice is Pulmonology, Anesthesiology, Critical Care Medicine, Sleep Medicine, or whose specialty is Cardiothoracic Disorders.
(3)	One member shall represent the North Carolina Hospital Association.
(4)	One member shall represent the North Carolina Association of Medical Equipment Services.
(5)	Two members shall represent the public at large.
(b)	Members of the Board shall be citizens of the United States and residents of this State. The respiratory care practitioner members shall have practiced respiratory care for at least five years and shall be licensed under this Article. The polysomnographic technologist member shall have practiced polysomnography for at least five years and shall be licensed under Article 42 of Chapter 90 of the General Statutes. The public members shall not be: (i) a respiratory care practitioner or polysomnographic technologist,  (ii) an agent or employee of a person engaged in the profession of respiratory care or polysomnography, (iii) a health care professional licensed under this Chapter or a person enrolled in a program to become a licensed health care professional, (iv) an agent or employee of a health care institution, a health care insurer, or a health care professional school, (v) a member of an allied health profession or a person enrolled in a program to become a member of an allied health profession, or (vi) a spouse of an individual who may not serve as a public member of the Board."
SECTION 3.  G.S. 90‑650(a) reads as rewritten:
"(a)	The members of the Board shall be appointed as follows:
(1)	The Governor shall appoint the public members described in G.S. 90‑649(a)(5).
(2)	The General Assembly, upon the recommendation of the Speaker of the House of Representatives, shall appoint one of the respiratory care practitioner members described in G.S. 90‑649(a)(1), the polysomnographic technologist member described in G.S. 90‑649(a)(1a), and one of the physician members described in G.S. 90‑649(a)(2) in accordance with G.S. 120‑121.
(3)	The General Assembly, upon the recommendation of the President Pro Tempore of the Senate, shall appoint one of the respiratory care practitioner members described in G.S. 90‑649(a)(1), the physician member certified in sleep medicine described in G.S. 90‑649(a)(2), and one of the physician members described in G.S. 90‑649(a)(2) in accordance with G.S. 120‑121.
(4)	The North Carolina Medical Society shall appoint one of the physician members described in G.S. 90‑649(a)(2).
(5)	The Old North State Medical Society shall appoint one of the physician members described in G.S. 96‑649(a)(2).
(6)	The North Carolina Hospital Association shall appoint the member described in G.S. 90‑649(a)(3).
(7)	The North Carolina Association of Medical Equipment Services shall appoint the member described in G.S. 90‑649(a)(4)."
SECTION 4.  Article 4 of Chapter 114 of the General Statutes is amended by adding a new section to read:
"§ 114‑19.11B.  Criminal record checks of applicants for licensure as polysomnographic technologists.
The Department of Justice may provide to the North Carolina Polysomnography Advisory Committee from the State and National Repositories of Criminal Histories the criminal history of any applicant for licensure as a polysomnographic technologist under Article 42 of Chapter 90 of the General Statutes. Along with the request, the Committee shall provide to the Department of Justice the fingerprints of the applicant, a form signed by the applicant consenting to the criminal record check and use of fingerprints and other identifying information required by the State and National Repositories, and any additional information required by the Department of Justice. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The Committee shall keep all information obtained pursuant to this section confidential. The Department of Justice may charge a fee to offset the cost incurred by it to conduct a criminal record check under this section. The fee shall not exceed the actual cost of locating, editing, researching, and retrieving the information."
SECTION 5.  Notwithstanding G.S. 90‑714(a)(1), as enacted by Section 1 of this act, the initial polysomnography technologists appointed to the North Carolina Polysomnography Advisory Committee by the North Carolina Respiratory Care Board do not have to meet the licensure requirements established under G.S. 90‑716, as enacted by Section 1 of this act. The appointees must be registered polysomnographic technologists and must apply for and obtain a license from the Committee within 90 days after the Committee begins issuing licenses.
SECTION 6.  This act is effective when it becomes law.