Respiratory Care Board to pursue emergency rulemaking after public outcry over LVN respiratory tasks

The Respiratory Care Board of California voted on Oct. 31, 2025, to schedule an expedited meeting to consider emergency regulatory revisions aimed at restricting the recently adopted basic respiratory tasks regulation (Cal. Code Regs. §1399.365) so it applies only in settings that are not currently statutorily exempt. The action followed hours of public comment from families, licensed vocational nurses, registered nurses, respiratory care practitioners and facility administrators who warned that immediate enforcement of the regulation as written had disrupted long-standing care arrangements for medically fragile patients. "This approach provides critical breathing room for all stakeholders," Executive Officer Christine Molina told the board, describing the option to file emergency regulations that would confine §1399.365 to nonexempt settings while the legislature considers statutory changes.

The board’s discussion focused on the interaction between the October 1, 2025, regulation defining which respiratory tasks are "basic" and a set of statutory exemptions in Business and Professions Code §3765 (commonly cited as subdivisions (i) and (j)). Molina told the board the statute requires the Respiratory Care Board to identify tasks LVNs may lawfully perform and that, "without the board identifying the tasks, no exemption exists." She described the board’s current enforcement posture as discretionary: the board has not actively pursued discipline for LVNs practicing in exempt settings since the 2023 statutory change, except in cases alleging gross negligence or patient harm.

Why this matters

Public speakers said the regulation’s current wording has left licensed vocational nurses (LVNs) uncertain about whether they may continue long‑standing duties such as oxygen administration, suctioning of upper and tracheal airways, CPAP/BiPAP management and selected airway‑clearance therapies in home health, pediatric day health centers, congregate living health facilities and school settings. Parents and providers warned that restricting those tasks could cause patients to be hospitalized or relocated from community-based homes. "When a child aspirates…air cannot wait," said Caitlin Ashton, executive director of a pediatric day health facility. "Please suspend enforcement immediately."

Public testimony and stakeholder concerns

More than three dozen commenters gave in-person and Webex testimony. Common themes included: - Patient safety and continuity of care: Families described examples in which LVNs provided lifesaving suctioning and ventilator support at home or in pediatric day programs. Jenny McClelland, a mother of a 14-year-old who depends on a tracheostomy and nighttime ventilation, asked whether the LVN who cares for her son "can clock into work tonight and manage his ventilator when he rolls over and disconnects." Legal counsel and staff repeatedly said the board will consider enforcement discretion for exempt settings and prioritize complaints alleging gross negligence. - Workforce and fiscal impacts: Skilled nursing and assisted living administrators warned that immediate compliance would force facilities to hire many more registered nurses or respiratory therapists—professionals who typically command higher wages—and could be financially unsustainable for Medi-Cal–dependent facilities. "The additional cost…would be in the hundreds of millions of dollars statewide," said Yvonne Chung of the California Association of Health Facilities. - Training and transition paths: Several speakers, including LVN educators and RNs, urged the board to create or accept competency-based training and credentialing pathways instead of an across‑the‑board restriction. Some proposed joint courses taught by RNs and respiratory care practitioners for LVNs working in home and community settings.

Board action and next steps

After public comment the board approved a motion to schedule an additional meeting, soon, to take formal action on emergency regulatory text designed to make §1399.365 apply only in nonexempt settings. The vote was taken by roll call and passed unanimously. The board instructed staff to draft regulatory language, coordinate a rapid notice and provide a public comment period as required under the Administrative Procedure Act for emergency rulemaking.

Staff and legal counsel told the board the next regulatory step is to refine the proposed list of tasks and associated training standards for LVNs in the home and community settings (presented as draft proposed CCR §1399.361 during the meeting). Several technical edits were discussed on the record — including removing the word "initiation" from certain lines referencing high-acuity therapies so that the regulation would emphasize "instruction, assistance, setup and operation" rather than authorizing autonomous initiation of complex therapies in the home.

Other business

The board also reviewed its 2025–26 sunset report and a 2025–2030 workforce succession plan. The board approved the succession plan and authorized the executive committee to finalize edits to the sunset report for submission. Officers for 2026 were elected. The board asked staff to issue public notice for the expedited rulemaking meeting as soon as schedules permit.

What the board did not do

The board did not adopt final emergency regulatory text at this meeting. Instead, it voted to convene quickly to consider and approve a specific emergency rulemaking package after staff prepares draft amendments and the professional qualifications committee reviews training and competency language.

What to watch for next

- Notice of the expedited meeting: staff said it will be scheduled as soon as calendars permit and will be publicly noticed; interested parties should watch the board’s website for date/time and materials. - Draft emergency regulatory text: staff will circulate proposed language intended to limit §1399.365 to nonexempt settings and to present a separate draft identifying tasks and training standards for LVNs working in the statutory exemptions in BPC §3765(i) and (j). - Legislative action on subdivision timing: staff and committee consultants indicated the legislature may be asked to remove a 01/01/2028 operative date that currently delays applicability of certain statutory exemptions.

Votes at a glance

- Motion to approve the 06/06/2025 meeting minutes: Approved by roll call (all present voted "Aye"). - Motion to schedule an expedited meeting to consider emergency regulatory text limiting CCR §1399.365 to nonexempt settings: Approved by roll call (all present voted "Aye"). - Motion to approve the workforce succession plan (2025–2030): Approved. - Motion to finalize and submit the sunset report with minor edits delegated to the executive committee: Approved.

Who spoke (selected)

- Christine Molina, Executive Officer, Respiratory Care Board of California (staff report and regulatory context) - Reza Pesher, Legal Counsel, Respiratory Care Board of California (procedural and enforcement clarifications) - Joe Haffancil, Acting President, California Association for Health Services at Home (opposed combining statutory exemptions) - Terry Racciato, RN, founder Together We Grow (support for statutory exemption and LVN role) - Caitlin Ashton, Executive Director, pediatric day health facility (detailed patient/safety concerns) - Yvonne Chung, California Association of Health Facilities (workforce/fiscal impacts)

Context and limits

This article reports only on statements and formal actions taken during the board meeting. It does not assume outcomes of future regulatory or legislative work. Where participants referred to laws, statutes or other authorities during the meeting, this article cites those references as they were stated by staff or counsel.