Impact of the New Regulation on Employers and Health Care Providers

The Respiratory Care Board (RCB) has enacted a new regulation at California Code of Regulations section 1399.365 that specifies the basic respiratory tasks and services that can be performed safely without respiratory assessments. The regulation provides employers and healthcare providers with clear guidelines on staff roles, delegation of respiratory tasks and services, and compliance requirements to ensure quality respiratory care delivery. This page explains what this regulation means for your organization and staffing practices.

What the Regulation Means for Employers

• Employers must ensure that staff perform only those respiratory tasks within their authorized scope of practice, as defined by the new regulation.
• Proper training and supervision must be provided for non-RCP personnel, such as LVNs, who are assigned basic respiratory tasks.
• Job descriptions, protocols, and delegation procedures should be updated to reflect the new regulatory definitions.
• Documentation and quality assurance processes should align with regulatory requirements and include competency assessments for delegated tasks.
• Clear communication with staff about roles, responsibilities, and supervision requirements is essential to maintain compliance and patient safety.
• Employers should monitor updates from the RCB regarding future exemptions for LVNs in home health and community-based settings and adjust internal policies accordingly.
• Concerns about improper delegation of respiratory care practices should be reported through the RCB’s employer complaint process at rcb.ca.gov.

Frequently Asked Questions

• Is the Facility Self-Audit Tool required, and what should we do with it?

  The Facility Self-Audit Tool is a recommended resource to help verify alignment with CCR § 1399.365. Use it to confirm that your policies, training, competency validation, and delegation practices match the regulation. You do not need to submit it to the RCB.

  Downloads:
  • Facility Self-Audit Tool (PDF)
  • Printable Version of CCR § 1399.365 (PDF)

• How should employers ensure compliance with the new regulation?

  Employers should verify employee credentials, provide training, document competency, and implement supervision consistent with the regulation’s definitions of basic and excluded tasks. Employers are responsible for ensuring that only tasks listed in section 1399.365(b) are delegated, and that tasks listed in subdivision (c) remain with RCPs.
  
  To streamline this review, use the RCB’s Facility Self-Audit Tool (PDF) and keep a printable copy of CCR § 1399.365 on file for reference.

• Are there new reporting requirements?

  No. The regulation reinforces existing documentation standards but does not add new reporting obligations. Employers should continue to maintain records of training, competencies, and delegation decisions, which may be reviewed during audits or investigations.

• How should we update our policies based on the new regulation?

  Employers should review job descriptions and scopes of practice to align with the regulation. Policies should clearly define which staff may perform basic respiratory tasks, incorporate prohibited tasks from section 1399.365(c), and ensure that proper training, competency, and supervision are documented.

• What is the impact on staffing and delegation?

  The regulation allows flexibility in delegating basic tasks to LVNs and other trained personnel, but it does not eliminate the need for RCPs. Advanced respiratory care, patient assessments, and all tasks listed in section 1399.365(c) remain the responsibility of licensed RCPs.

• Are there liability concerns with delegating these tasks?

  Yes. Employers are responsible for ensuring delegated tasks are performed only by competent staff under appropriate supervision. Delegating outside the limits of section 1399.365 could expose both the facility and individual licensees to liability or discipline.

• Can LVNs initiate or adjust oxygen therapy?

  No. Licensed Vocational Nurses (LVNs) may not initiate new oxygen therapy or make any changes to an existing oxygen prescription, such as adjusting the flow rate or concentration. These functions are excluded from basic tasks and must be performed by a licensed RCP or another provider authorized by law, such as a RN.

  Initiating or adjusting oxygen therapy requires a respiratory assessment and clinical judgment to determine the patient’s needs and response to treatment, skills that are part of an RCP’s specialized education and training to ensure patient safety.

• Can LVNs set up oxygen concentrators or replace oxygen tanks?

  LVNs may replace oxygen tanks when a patient is already receiving oxygen and the prescribed flow rate remains unchanged. This is considered part of routine patient care and does not involve initiating or adjusting therapy.

  However, setting up a new oxygen concentrator, initiating therapy, or changing any oxygen settings requires the specialized knowledge and clinical judgment of an RCP or other provider authorized by law.

• Can LVNs apply CPAP or BiPAP masks or operate non-invasive ventilators?

  No. LVNs may not perform any function involving CPAP or BiPAP devices, including applying, removing, initiating, adjusting, or monitoring the device. CPAP/BiPAP systems are considered non-invasive mechanical ventilation and are not among the basic respiratory tasks listed in § 1399.365. LVNs may provide supportive care to patients already using CPAP/BiPAP, such as assisting with hygiene, skin inspection, comfort measures, and routine observation or documentation. Any manipulation of pressures, alarms, or mask fittings requires a respiratory assessment and must be done by an RCP or other provider authorized by law.

• Can LVNs suction patients?

  No. Suctioning is excluded from basic tasks under Section 1399.365(c) and must be performed by a licensed RCP or another provider authorized by law, such as a RN. This includes all forms of suctioning, oral, nasal, tracheal, and endotracheal. Suctioning of any type requires continuous respiratory assessment and clinical judgment before, during, and after the procedure to ensure the patient’s airway remains clear and stable. Because of these safety considerations, suctioning must only be performed by an RCP or another qualified provider authorized by law.

• Can non-RCP staff replace or change ventilator circuits?

  No. Initial setup, change-out, or replacement of ventilator circuits is specifically excluded from basic tasks under section 1399.365(c). These functions must be performed by an RCP.

• Can non-RCP staff turn a ventilator on or off?

  No. Turning a ventilator or non-invasive ventilator (such as CPAP or BiPAP) on or off is considered manipulation and is excluded from basic tasks under section 1399.365(c). This function is restricted to licensed RCPs.

• Does this regulation affect Speech-Language Pathologists (SLPs) and suctioning?

  No. The regulation at CCR § 1399.365 does not change SLP scope. 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 will the RCB review employer compliance?

  The RCB may review employer compliance during complaint investigations or when responding to reported concerns. Employers should maintain clear documentation of policies, training, and delegation decisions to demonstrate compliance with section 1399.365.

• What happens if my facility fails to comply with the regulation?

  Non-compliance may result in enforcement actions, including citations, fines, or referral to other regulatory agencies. Facilities are expected to ensure compliance by maintaining proper staffing, training, and documentation practices.

• How can we stay informed about pending exemptions for LVNs?

  The RCB will publish updates on exemptions and related regulations on its website. Employers should monitor www.rcb.ca.gov and communicate updates to staff as they become available.

• How can employers report violations or concerns about an RCP?

  Employers who have concerns about a licensed respiratory care practitioner’s conduct or practice may file a complaint with the RCB. Complaints can be submitted online, by mail, fax, or phone. For detailed instructions and to access the employer complaint form, visit rcb.ca.gov/consumers/emp_file_a_complaint.shtml, email rcbinfo@dca.ca.gov, or call (916) 999-2190.

References & Implementation Tools

• Facility Self-Audit Tool – A checklist to help facilities verify that policies, training, and delegation practices align with CCR § 1399.365.
• CCR § 1399.365 – Printable Version (PDF) – A clean, printer-friendly copy of the full regulation for reference, staff training, and internal policy files.

Need More Information?

For assistance, contact the RCB at (916) 999-2190 or rcbinfo@dca.ca.gov.