1399.365. Basic Respiratory Tasks and Services
On June 5, 2025, the Office of Administrative Law (OAL) approved the Respiratory Care Board’s (RCB) regulations related to Basic Respiratory Tasks and Services codified at California Code of Regulations, title 16, section 1399.365. The regulation will become effective on October 1, 2025.
On January 12, 2026, the Office of Administrative Law (OAL) approved an emergency amendment to California Code of Regulations, title 16, section 1399.365.
What Changed
The emergency amendment that was approved by OAL January 12, 2026 added subsection (d) to clarify that this section does not apply to LVNs performing respiratory care services identified by the RCB while working in, and under the conditions specified, specific home and community-based exempt settings listed under in subdivisions (i) and (j) of section 3765 of the B&P.
Regulatory Language
1399.365. Basic Respiratory Tasks and Services.
(a) For purposes of this section, “assessment” means making an analysis or judgment and making recommendations concerning the management, diagnosis, treatment, or care of a patient or as a means to perform any task in regard to the care of a patient. Assessment as used in this section is beyond documenting observations, and gathering and reporting data to a licensed respiratory care practitioner, registered nurse, or physician.
(b) For purposes of subdivision (a) of section 3702.5 of the B&P, basic respiratory tasks and services do not require a respiratory assessment and include the following:
- Patient data collection.
- Application and monitoring of a pulse oximeter.
- Medication administration by aerosol that does not require manipulation of an invasive or non-invasive mechanical ventilator.
- Heat moisture exchanger (HME) and oxygen tank replacement for patients who are using non-invasive mechanical ventilation.
- Hygiene care including replacement of tracheostomy ties and gauze and cleaning of the stoma sites.
- Use of a manual resuscitation device and other cardio-pulmonary resuscitation technical skills (basic life support level) in the event of an emergency.
- Documentation of care provided, which includes data retrieved from performing a breath count or transcribing data from an invasive or non-invasive ventilator interface.
- Observing and gathering data from chest auscultation, palpation, and percussion.
(c) For purposes of subdivision (a) of section 3702.5 of the B&P, basic respiratory tasks and services do not include the following:
- Manipulation of an invasive or non-invasive ventilator.
- Assessment or evaluation of observed and gathered data from chest auscultation, palpation, and percussion.
- Pre-treatment or post-treatment assessment.
- Use of medical gas mixtures other than oxygen.
- Preoxygenation, or endotracheal or nasal suctioning.
- Initial setup, change out, or replacement of a breathing circuit or adjustment of oxygen liter flow or oxygen concentration.
- Tracheal suctioning, cuff inflation/deflation, use or removal of an external speaking valve, or removal and replacement of the tracheostomy tube or inner cannula.
(d) This section does not apply to licensed vocational nurses performing respiratory care services identified by the Board while working in any of the exempt settings listed, and under the conditions specified, in subdivisions (i) and (j) of section 3765 of the B&P.
The respiratory care services that LVNs may perform in the exempt settings were identified by the RCB at its November 14, 2025 Board Meeting (Agenda Item 3). While the Board approved the proposed text identifying these services, staff is continuing the full rulemaking process with the OAL. Stakeholders who wish to receive updates as this process moves forward are encouraged to join the RCB’s email subscription list: Subscribe for Updates
Background and Development
- March 28, 2024: The Board was presented with, and approved, text to begin the rulemaking process.
- June 5, 2024: RCB staff filed the initial rulemaking package with OAL, and the 45-day public comment period began on June 21, 2024, with a closing date of August 6, 2024.
- August 7, 2024: A public hearing was held. The Board received six (6) timely comment letters addressing 35 separate issues, and 15 additional untimely letters/emails after the public comment deadline.
- October 14, 2024: The Board reviewed all comments, timely and untimely, and directed staff to revise the regulation and issue a Notice of Modified Text.
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October 15, 2024: Staff issued a Notice of Availability of Modified Text. Changes included:
- Definition of "assessment": Clarified that it involves analysis and judgment, not mere data collection.
- Subdivision (b) Revisions: Reorganized for clarity and moved non-basic tasks to a new subdivision (c).
- New Subdivision (c): Created to list tasks excluded from the definition of basic respiratory tasks.
- Non-substantive edits: Reformatted text and clarified language.
- March 13, 2025: The Board considered all public comments and adopted the proposed regulation text without further changes.
- June 5, 2025: OAL approved the regulation and filed it with the Secretary of State. The regulation became effective October 1, 2025.
- January 12, 2026: OAL approved an emergency amendment and filed it with the Secretary of State adding subsection (d) to clarify that this section
does not apply to LVNs performing respiratory care services identified by the RCB while working in specific home and community-based exempt
settings listed, and under the conditions specified, in in subdivisions (i) and (j) of section 3765 of the B&P. The amendment became effective January 12, 2026.
School-Only Exemption – SB 389 (Effective January 1, 2026)
Senate Bill 389 (SB 389) was signed by the Governor on October 10, 2025 and added Business and Professions Code § 3765(l). This provision authorizes licensed vocational nurses (LVNs), when working under the supervision of a credentialed school nurse, to perform suctioning and other basic respiratory tasks and services for students as part of their school-day care.
The school-setting authority in BPC § 3765(l) is to be carried out in accordance with existing Education Code § 49423.5 and related Education Code requirements.
Effective Date: SB 389 became effective January 1, 2026.
For more details, view the bill text and history on the SB-389 — Pupil Health page. Additional information is available on the RCB’s SB 389 information page.
On September 29, 2025, the RCB sent a letter to the California Department of Education clarifying the application of existing Education Code provisions to LVNs in school settings and requested that CDE distribute this information to school districts.
Note for Speech-Language Pathologists (SLPs)
Under Business and Professions Code § 2530.2(d)(4), SLPs are authorized to perform suctioning when it is connected to their scope of practice, provided they have completed a medical facility’s training protocols on suctioning procedures.
How This Regulation Affects You
The RCB has established dedicated webpages that outline what this regulation means for:
- Respiratory Care Practitioners (RCPs)
- Licensed Vocational Nurses (LVNs)
- Employers and health care providers
- Patients and the public
Each page offers straightforward explanations, answers to frequently asked questions, and practical guidance tailored to each group. These guidance pages will be updated to reflect updates as they occur.
If you have any questions, please don’t hesitate to contact us by phone at (916) 999-2190 or by email at rcbinfo@dca.ca.gov.
