Jerry Kopel

"First you say you do and then you don't,

and then you say you will and then you won't.

You're undecided now, so what are you gonna do?"

"Undecided", Copyright 1939, MCA Music

By Jerry Kopel

Breathing is, of course, necessary to continue living. And respiratory therapists treat and care for persons with breathing disorders ranging from premature infants without fully developed lungs to elderly people with diseased lungs.

Respiratory therapists tried three times, 1986, 1994, and 1995 to become licensed in Colorado. To do that they had to go through a Sunrise process (as a group seeking initial regulation) with review provided by the Dept. of Regulatory Agencies (DORA) under Gov. Dick Lamm in 1986 and Gov. Roy Romer in 1993 (for introduction in 1994 and if needed, again in 1995).

For each review, the proponents were asked "where's the beef?" There was no statistical or anecdotal evidence that respiratory therapists needed to be licensed by the state in order to avoid harm to persons. So each DORA review ended with a report against regulation. The legislature killed bills introduced in 1994 and 1995. I don't believe the 1986 application ever became a bill.

"First you say you do....."

Which brings us to 1999, Gov. Bill Owens' first year in office. Four years had passed since the last try. The Sunrise statute continued to require analysis of whether unregulated practice clearly harms or endangers the health, safety, or welfare of the public. But DORA now opined while there was still no actual or anecdotal evidence of harm, DORA accepted "potential" harm as the basis for regulation, and the legislature passed HB 1249 in 2000.

The law doesn't require testing or accredited education other than that provided by rules of the National Board for Respiratory Care.

Once you have complied with the national board, you are entitled to be licensed. Colorado then defines the practice, a disciplinary process and prohibits unlicensed persons from doing the type of practice set out.

"....and then you don't."

In 2005, the legislature has to decide whether or not to continue licensing. Failure to pass a bill in 2005 or 2006 automatically ends licensing. DORA has recommended letting the law licensing 1,971 respiratory therapists die.

Why the switch from "yes" to "no"? During the past four fiscal years, there were 40 complaints filed against therapists. Sixteen of the 40 have already been dismissed. Action was taken on 18 other complaints. "None of these cases" according to DORA's review "involved actual, physical harm to the public" by the therapists. In simple terms, the "reason" for licensure in 2000 did not develop.

DORA is counting on the U.S. Health Department Inspector General to keep an eye on Colorado since federal programs won't pay for anything a person furnishes, orders or prescribes, if the Inspector General decides something bad happened.

Colorado's Health Facilities Division (HFD) director regulates hospitals and patient care. According to DORA, HFD requires licensed health care facilities including hospitals to document and take approriate action against employees who harm patients.

"and then you say you will..."

DORA's back-up position is "if the legislature wants to continue to regulate, here are some (very modest) revisions to the law." DORA then lists four amendments, none of which should be controversial.

"and then you won't...."

Of course, the final decision will be made by the governor. Based on past experience, I'm fairly certain the legislature won't override a veto. And I assume the Colorado Hospital Assn. would be quite happy to see state licensing of the therapists expire.

"You're undecided now, so what are you gonna do?"

(Jerry Kopel served 22 years in the Colorado House.)

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