CHAPTER 153
AN ACT TO PROVIDE FOR THE REGULATION OF THE PRACTICE OF NURSING: TO PROVIDE FOR A BOARD OF NURSING AND TO DEFINE THE POWERS AND DUTIES OF THE BOARD INCLUDING LICENSING OF PRACTITIONERS OF NURSING AND ESTABLISHMENT OF STANDARDS FOR EDUCATIONAL PROGRAMS PREPARING FOR NURSING PRACTICE, AND TO PRESCRIBE PENALTIES FOR VIOLATIONS OF THE PROVISIONS OF THIS ACT.
WHEREAS, a great need exists for professional and practical nurses, and said need is increasing due to greater coverage of insurance and other health programs to include professional and practical nursing services, such covered services including licensed practitioners only; and it appears desirable for the protection of the public that licenses shall be held by persons who offer their services for hire as professional or practical nurses; and
WHEREAS, it has been found that encouragement is given to entering the preparation for nursing where adequate statutory provisions for supervising and preparing of nurses exists;
NOW, THEREFORE,
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Chapter 19, Title 24, Delaware Code, is amended and revised by repealing all of said Chapter 19, and inserting in lieu thereof a new Chapter 19 as follows:
CHAPTER 19. NURSING AND SCHOOLS OF NURSING
§ 1901. Declaration of legislative intent
In order to safeguard life and health, the general administration and supervision of the education, examination, licensing, and regulation of professional and practical nursing is declared essential, and such general administration and supervision hereby is vested in a Board of Nursing.
§ 1902. Definitions
As used in this chapter--
"Attendant" means a person employed by and in a mental hospital or mental institution in the performance of duties assigned to him/her and under the direction of a professional nurse.
"Board" means the Delaware Board of Nursing.
"Non-professional aide" means a person other than a professional or practical nurse employed by a physician or a dentist in his office and performing such duties as are assigned by the physician or dentist in his office.
"Nurse's aide" means a person employed in and by a hospital or a nursing home other than a mental hospital or mental institution and performing duties assigned by and under the direction of a professional nurse.
"Nursing" shall mean professional nursing or practical nursing.
"Practice of professional nursing" means the performance for compensation of any act in the observation, care and counsel of the ill, injured or infirm, or in the maintenance of health or prevention of illness of others, or in the supervision and teaching of other personnel, or the administration of medications and treatments as prescribed by a licensed physicians or dentist; requiring substantial specialized judgment and skill and based on knowledge and application of the principles of biological, physical and social science. The foregoing shall not be deemed to include acts of diagnosis or prescription of therapeutic or corrective measures.
"Professional nurse" means a person who has met all the requirements for license as a registered professional nurse, and who engages in nursing as hereinabove described.
"Practice of practical nursing" means the performance for compensation of selected acts in the care of the ill, injured, or infirm under the direction of a registered professional nurse or a licensed physician or a licensed dentist; and not requiring the substantial specialized skill, judgment, and knowledge required in professional nursing.
"Practical nurse" means a person who has met all the requirements for license as a practical nurse, and who engages in practical nursing as hereinabove described.
§ 1903. Delaware Board of Nursing; appointment; qualifications; terms of office; vacancies
(a) The Delaware Board of Nursing (hereafter in this chapter referred to as the "Board") is hereby established and shall consist of five members. The Term of office of every member appointed to the Board, except those appointed to fill vacancies occurring during any term of office, shall be for three years. All members appointed to the Board shall be professional nurses with an earned degree in nursing, or nursing education or education. All members of the Board shall have had at least three years' active practice as nurses, with administrative or teaching experience.
() Upon the expiration of the full term of office of any member of the Board, a successor shall be appointed for a full term of three years by the Governor from a list of three nominations of qualified persons, as herein provided, furnished him annually by the Delaware Nurses' Association. All vacancies occurring on the Board for any cause other than expiration of term shall be filled by appointment by the Governor for the unexpired term from a like list of nominations of qualified persons to be furnished to the Governor by the Association.
(a) At least one member of the Board shall be chosen from person's resident in the City of Wilmington, one from New Castle County, one from Kent County, and one from Sussex County. If no qualified person is available in any of the said foregoing geographical subdivisions, qualified person available in any other geographical subdivision may be appointed.
(b) The nursing experience referred to in this section must be within the last eight years preceding appointment, and said professional nurse must be currently licensed in Delaware.
§ 1904. Election of officers; quorum; by-laws; special meetings
(a) The members of the Board shall, annually in the month of June, elect from their members a president and a secretary-treasurer.
(b) Three members of the Board shall constitute a quorum.
(c) The Board may adopt and promulgate such by-laws as may be necessary to govern its proceedings, define the duties of its officers and to effectuate the intent and purpose of this chapter.
(d) Special meetings of the Board may be called by the Executive Secretary upon written request of the President or of any two members.
(e) The members of the Board shall receive $10 for each day actually engaged in service and all proper and necessary expenses.
(f) The Board shall be issued a seal with the rights and privileges to use the seal on all official documents.
§ 1905. Executive Director; appointment; qualifications
The Board may appoint an Executive Director at an annual salary to be fixed by the Board. Such Executive Director shall also be entitled to his or her necessary travel and other expenses incurred in the discharge of his or her official duties. Such Executive Director shall keep a record of all meetings of the Board and maintain a register of names of all nurses duly licensed under this chapter, which shall be at all times open for inspection. Such Executive Director shall be a registered professional nurse and shall have had experience of at least five years in an administrative or teaching position in an accredited school of nursing. She shall have an earned degree in nursing, nursing education or education, and shall have had advanced courses in nursing education.
§ 1906. Powers and duties of the Board of Nursing
The Board may
(a) Adopt and, from time to time, revise such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this chapter;
(b) Prescribe curricula and standards for educational programs preparing persons for license under this chapter;
(c) Provide for surveys of such programs at such times as it may deem necessary;
(d) Accredit such programs as meet the requirements of this chapter and of the Board;
(e) Deny or withdraw accreditation from educational programs for failure to meet prescribed curricula or other standards;
(f) Examine, license, and renew the licenses of duly qualified applicants, including applicants for conducting schools of nursing;
(g) Conduct hearings upon charges calling for discipline of a licensee or revocation of a license;
(h) Have the power to issue subpoenas, and compel the attendance of witnesses, and administer oaths to persons giving testimony at hearings;
() Cause the prosecution of all persons violating this chapter and have power to incur such necessary expenses therefor;
(a) Keep a record of all its proceedings;
(a) Make an annual report to the Governor;
(1) Appoint and employ a qualified person who shall not be a member of the Board to serve as executive officer to the Board;
(m) Define the duties and fix the compensation for the executive director;
() Employ such other persons as may be necessary to carry on the work of the Board; and
(a) Appoint and prescribe an advisory committee of licensed practical nurses and such other advisory committees as the Board deems desirable.
§ 1907. Revenue and expenses of Board
(a) All fees and other money received by the Board shall be paid over to the State Treasurer, in accordance with Chapter 61 of Title 29.
(b) Expenses of the Board, within the limits of appropriations made to it, shall be paid by the State Treasurer upon warrants signed by the proper officers of the Board.
§ 1908. Meetings; examinations; fees
(a) The Board shall meet as often as required but no more often than twelve times a year for the purpose of examining applicants for licensing or accreditation under this chapter as professional nurses or as practical nurses.
(b) The Board shall examine all applicants for licensing as professional or practical nurses under this chapter.
(c) The Board shall consider and act upon applications to conduct a school of nursing.
(d) Every applicant for examination and licensing shall deposit a fee of $15.00.
§ 1909. Requirements for nursing
Any person practicing or offering to practice professional or practical nursing for compensation or personal profit shall be a duly licensed professional or practical nurse. Upon request she shall submit evidence that she is duly licensed.
§ 1910. Requirements for a professional nurse
Applicants for license to practice as a registered professional nurse shall submit to the Board satisfactory evidence that applicant:
(a) Is twenty years of age;
(b) Is of good moral character;
(c) Is in satisfactory physical and mental health;
(d) Has completed, previous to entering the school of nursing, four years of high school education;
(e) Has graduated from a school of nursing connected with a general hospital where at least two years of instruction is given in surgical, medical, obstetrical, pediatric, and psychiatric nursing or has received instruction in different hospitals for periods of time amounting to at least a two-year course as aforesaid, and then graduated, which school or combination of schools must be approved by the Board for licensing of nurses as provided in this chapter.
§ 1911. Examination for a professional nurse
An applicant to practice as a registered professional nurse shall be required to pass a written examination in such subjects as the Board may determine. Upon successfully passing such examination, the Board shall issue to the applicant a license to practice nursing as a registered professional nurse.
§ 1912. Endorsement
The Board may issue a license to practice professional nursing as a registered professional nurse by endorsement, without a written examination, to an applicant who has been duly licensed as a graduate, professional or registered nurse under the laws of another state, territory or foreign country, if in the opinion of the Board the applicant, at the time he/she was prior licensed, met with the qualifications for license in this State.
§ 1913. License for a practical nurse
Applicant for license to practice as a licensed practical nurse shall submit to the Board satisfactory evidence that the applicant:
(a) Is eighteen years of age;
(b) Is of good moral character;
(c) Is in satisfactory physical and mental health;
(d) Has completed two years of high school education;
(e) Has such other educational qualifications requirements as the Board may prescribe.
§ 1914. Program and Examination for practical nurse
All applicants for license as a practical nurse shall have completed a program in practical nursing, and shall hold a certificate from a school for the preparation of practical nurses approved by the Board. Applicants shall also be required to pass such examination as the Board may determine. Every applicant who shall pass the prescribed examination shall receive a license to practice as a licensed practical nurse.
§ 1915. Endorsement for practical nurse
The Board may issue a license to practice practical nursing as a licensed practical nurse by endorsement, without a written examination, to an applicant who has as of the effective date of this chapter been duly licensed as a practical nurse or a person entitled to perform similar services under a different title by practical nurse's examination under the laws of any state, territory or foreign country if, in the opinion of the Board, the applicant has the qualifications required by this chapter for the licensing of practical nurses.
§ 1916. Waiver for those licensed prior to enactment of this Chapter
Any person holding a valid license to practice professional or practical nursing issued by the Board on the date this chapter becomes effective shall be deemed to be licensed under the provisions of this chapter.
§ 1917. Renewal of registration
(a) Every professional or practical nurse who is duly registered under any provision of this chapter shall re-register every year by filing an application to re-register during the month of December. When an applicant re-registers, such applicant shall deposit a fee of $5.00.
() Upon receipt of the application and fee, the Board shall verify the accuracy of the information set forth in the application and issue to the applicant a certificate of renewal for one year. Such certificate of renewal shall render the holder thereof a legal practitioner of professional or practical nursing, for the period stated on the certificate of renewal. Any licensee who allows his license to lapse by failing to renew the license as provided above may be reinstated by the Board on satisfactory explanation for such failure to renew his license and on payment of a penalty of $1.00.
(a) Any person practicing nursing during the time his license has lapsed shall be considered an illegal practitioner and shall be subject to the penalties provided for violations of this chapter.
(b) A person licensed under any of the provisions of this chapter, desiring to retire from practice in this State temporarily, shall send a written notice to the Board. Upon receipt of such notice, the Board shall place the name of such person upon a non-practicing list or file. While retained on this list or file, the person shall not be subject to the payment of any renewal fees, but such person shall not practice nursing in this State. When the person desires to resume practice, application for renewal of license and payment of renewal fee shall be made to the Board.
§ 1918. Schools of nursing
(a) A hospital or institution desiring to conduct a school of nursing shall apply to the Board and submit evidence that it is prepared and qualified to carry out the prescribed basic curriculum for educating nurses, and that it is prepared to meet other standards now or hereafter established by the Board. The Board may set standards for and authorize the temporary operation of a school or program pending evaluation for accreditation. If the Board shall determine that requirements for an accredited school of nursing are met, the Board shall approve the school as an accredited school of nursing. From time to time, as deemed necessary by the Board, it shall be the duty of the Board, through its Executive Director or some member of the Board. to survey all schools of nursing in the State. Written reports of such surveys shall be submitted to the Board.
(b) If the Board determines that any accredited school of nursing is not maintaining the standards required by this chapter and by the Board, notice thereof in writing, specifying the defect or defects and the time within which the same shall be corrected, shall be immediately given to the school. The Board shall withdraw such school's accreditation if it fails to correct the specified defects and such school of nursing shall discontinue its operations; provided, however, that the Board shall grant a hearing to such school upon written application and extend the period for correcting specified defects upon good cause being shown.
(c) A survey of the applicant institution or hospital with which any school of nursing is to be affiliated shall be made by the Executive Director or some other member of the Board who shall submit a written report of the survey so conducted to the Board. The Board is authorized to survey and visit any school of nursing whenever deemed necessary or desirable by the Board.
§ 1919. Certificate required to practice as a professional graduate, registered or licensed practical nurse
(a) No person shall practice nursing as a professional graduate or registered nurse without a certificate from the Board.
(b) A graduate professional nurse who has received a certificate as a professional nurse, according to the provisions of this chapter, shall be known as a "registered nurse". No other person shall assume such title or use the abbreviation "R. N.", or any other words, letters, signs, figures, to indicate that the person using the same is a registered professional nurse.
(c) No person shall practice nursing as a practical nurse without a certificate from the Board.
(d) No person shall assume or use the title "Licensed Practical Nurse" or the abbreviation "L. P. N.", or any other word, letters, signs or figures, to indicate that the person using the same is a licensed practical nurse unless such person shall have been licensed as such by the Board according to the provisions of this chapter.
(e) No letters or symbols shall be used to indicate the differences in preparation except R. N. and L. P. N. on the license or identification card but such information shall be made available to prospective employers upon request from the Board Office.
§ 1920. Exceptions
This Chapter shall not be construed to affect or apply to the gratuitous nursing of the sick by friends or members of the family; nor shall it apply to the following cases:
(a) Incidental care of the sick by domestic servants or by persons primarily employed as housekeepers, as long as they do not practice nursing within the meaning of this chapter;
(b) 'Administration of care of the sick in private homes, by any person, for hire.
(c) Nursing services in case of emergency--"Emergency", as used in this subdivision, means and includes an epidemic or a state or national disaster.
(d) Services rendered by nurses' aides or attendants under adequate nursing supervision;
(e) Persons employed as operating room technicians, first aid attendants employed by industry, dental technicians or dental hygienists or assisting in a dentist's office or non-professional aides or physician's assistants working under the supervision of a dentist or physician licensed to practice in the State;
(f) Nursing services rendered by a student enrolled in an accredited school of professional or practical nursing when these services are incidental to the course of study or given by a graduate of such a school working under supervision pending results of the first licensing examination. The Board shall establish by rules the procedures and extent to which subsequent examinations may be taken and the length of time and the character of nursing service which may be rendered pending subsequent examinations;
(g) The practice of nursing in this State by a legally qualified nurse of another state whose employment requires him or her to accompany and care for a patient temporarily residing in the State, said services not to exceed six months' duration; provided, that such a person does not represent himself or herself as a nurse licensed to practice nursing in this State;
(h) The practice of nursing by any legally qualified nurse of another state who is employed by the United States Government or any bureau, division or agency thereof, while in the discharge of his or her official duties.
() The practice of non-medical nursing in connection with healing by prayer of spiritual means alone in accordance with the tenets and practice of any well recognized church or religious denomination provided that no persons practicing such non-medical nursing holds himself out to be a professional graduate or registered nurse or licensed practical nurse.
§ 1921. Disciplinary Proceedings
(a) Grounds for discipline: The Board may revoke or suspend any license to practice nursing issued by the Board, or refuse a license on re-registration in accordance with the provisions of this chapter or to otherwise discipline a licensee upon proof that the person-
1. Is guilty of fraud or deceit in procuring or attempting to procure a license to practice nursing; or
2. Is guilty of a crime involving moral turpitude or gross immorality; or
3. Is unfit or incompetent by reason of negligence, habits, or other causes; or
4. Is habitually intemperate or is addicted to the use of habit forming drugs; or
5. Is mentally incompetent; or
6. Whose physical condition is or may be injurious or prejudicial to patients or to the public; or
7. Is guilty of unprofessional conduct as shall be determined by the Board which may include any violation of the Code of Ethics adopted by the American Nurses Association or the willful neglect of a patient; or
8. Has willfully or repeatedly violated any of the provisions of this chapter.
(b) Proceedings;
1. Upon filing of a sworn complaint with the Board, charging the person with having been guilty of any of the actions specified in this chapter as a ground for disciplinary action, the Board shall fix a time and place for a hearing of the charges.
2. The Board shall cause a copy of the charges, together with a notice of the time and place fixed for the hearing, to be served on the person charged at least ten days prior to the date fixed for the hearing. When personal service cannot be effected, and such fact is certified on oath by any person duly authorized to make legal service, the Board shall cause to be published, twice in each of two successive weeks, a notice of the hearing in a newspaper of general circulation in the county in which the accused last practiced, according to the records of the Board, and shall mail a copy of the charges and of such notice to the accused at his or her last known address as shown on the records of the Board. When publication of the notice is necessary, the date of the hearing shall be not less than ten days after the last date of the publication of the notice.
3. In all proceedings herein:
A. The nurse may be represented by counsel with the right of examination and cross-examination.
B. The nurse and the Board may subpoena witnesses. Subpoenas shall be issued by the President or the Secretary-Treasurer of the Board upon written request and shall be served as provided by the Superior Court rules of the State of Delaware and shall have like effect as a subpoena issued by said Court.
C. Testimony before the Board shall be under oath. Any member of the Board shall have power to administer oath for this purpose.
D. A stenographic record of the hearing shall be taken and prepared by a qualified Court stenographer, or otherwise if the parties shall so agree in writing; the transcript to be paid for by the Board with copies to be supplied to the nurse.
E. Any determination by the Board shall be based upon sufficient legal evidence.
4. If the charges shall be sustained, the Board may refuse to issue a license to the applicant or may revoke, suspend, or otherwise discipline a licensee. A suspended license may be reissued upon a hearing initiated at the request of the suspended licensee by written application in accordance with the rules of the Board.
5. Every determination of the Board shall be final and conclusive, unless within twenty days after a copy of the said determination shall have been sent to the said nurse by registered mail such nurse shall appeal to the Superior Court for the county in which he or she shall be a resident.
§ 1922. Judicial Review:
In case of every such appeal, the cause shall be determined by the Court from the record, which shall include a certified copy of the evidence, findings and the decision of the Board, without the aid of a jury. The notice of appeal and all other matters regulating the appeal shall be in the form and according to the procedure as shall be provided by the Rules of the Superior Court. The Court shall decide all relevant questions of law and all other matters involved, and shall sustain any Board action, findings and conclusions supported by substantial evidence. The Court may reverse, affirm or modify the decision of the Board or remand the cause to the Board for a rehearing. In case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in the case of the original hearing before the Board.
§ 1923. Unlawful practice of nursing
After June 1, 1963, it shall be unlawful--
(a) For any person except those referred to in Section 1926 of this chapter to practice or to offer to practice professional or practical nursing, or to represent himself or herself as a licensed professional or practical nurse in this State, or to use any title, abbreviation, sign, card or device to indicate that such a person is practicing professional or practical nursing unless such person has been duly licensed and registered under the provisions of this chapter;
(b) For any person, hospital or institution to conduct or offer to conduct a school of professional or practical nursing unless such person, hospital or institution has been duly licensed and registered under the provisions of this chapter.
§ 1924. Violations and penalties Whoever shall--
(a) Sell or fraudulently obtain or furnish any nursing diploma, license, renewal, or record or aid or abet therein; or
(b) Practice professional or practical nursing and/or hold or represent himself or herself as a licensed professional or practical nurse as defined by this chapter under cover of any diploma, license or record illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representations; or
(c) Practice professional or practical nursing as defined by this chapter, unless duly licensed to do so under the provisions of this chapter; or
(d) Use in connection with his or her name any designation tending to imply that he or she is a registered licensed professional or practical nurse, unless duly licensed so to practice under provisions of this chapter; or
(e) Practice nursing during the time his or her license issued under the provisions of this chapter shall be suspended or revoked; or
(f) Conduct a school of professional or practical nursing unless the school or the program has been approved or accredited by the Board; or
(g) Shall be fined not more than five hundred dollars or be imprisoned not more than one year, or both.
§ 1925. Status of present Board Members
The members of the State Board of Examiners of Graduate Nurses, existing under the provisions of Chapter 19, Title 24, repealed by the provisions of this chapter, shall continue and shall be members of the Board hereby created until the expiration of the respective terms for which each of them was originally appointed. Any vacancy which may occur in the present members of the said Board before the expiration of the term to which the member was appointed, shall be filled in the manner provided for filling the vacancies.
§ 1926. Waiver
For a period of twelve months after the effective date of this Act, the Board shall accept applications from the following persons:
(a) Unlicensed professional nurses, residents of Delaware, at the time this Act shall become effective, who meet all the requirements of Section 1910.
(b) Notwithstanding the provisions of Section 1913 of this Chapter, the Board shall issue a license to practice as a licensed practical nurse to any person who shall within one year after the effective date of this Chapter submit to the Board satisfactory evidence that the applicant possesses the following qualifications:
(1) Is at least eighteen years of age.
(2) Is of good moral character.
(3) Is in satisfactory physical and mental health.
(4) Has been engaged in practical nursing within the State of Delaware whether licensed or unlicensed for a period of not less than six months within the preceding two years of the effective date of this Act.
(5) Has received certification in writing by at least 2 physicians duly licensed to practice medicine in this State, who have knowledge of the applicant's previous experience in practical nursing to the effect that the applicant is qualified to engage in the practical nursing of the ill, injured or infirm within this State.
(c) Practical nurses qualifying under sub-section (b) of this Section shall be subject to examination by the Board within the 2 year period immediately following the effective date of this Act. For the purpose of examination, the Board shall cause to be set up refresher courses for both morning and evening classes in all three counties, prior to the examination given in compliance with this sub-section, which courses shall be given for a period of at least six months prior to said examination.
(d) Professional nurses qualifying under sub-section (a) of this Section shall be subject to examination by the Board within the 2 year period immediately following the effective date of this Act.
(e) The Board shall issue a license to the foregoing applicants who shall make a passing score or better on each part of the written examination.
§ Severability
If any clause, sentence, section, provision or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, invalidate or affect the remainder of this Act, which shall remain in full force and effect.
§ 1928.
Any appropriation heretofore or hereafter made to the Board of Examiners of Graduate Nurses shall be deemed to have been made for the Delaware Board of Nursing provided by this Act which is the continuation of and successor of the Board of Examiners of Graduate Nurses existing at the time this Act becomes effective and any said appropriations shall be paid to the Delaware Board of Nursing provided by this Act.
Approved October 11, 1963.