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SPONSOR: |
Rep. Ulbrich; |
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Reps. Hudson, Valihura; Sens. Copeland, Sokola |
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HOUSE OF REPRESENTATIVES 142nd GENERAL ASSEMBLY |
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HOUSE BILL NO. 308 |
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AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE MEDICAL PRACTICES ACT. |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 17, Title 24 of the Delaware Code by striking Chapter 17 in its entirety and substituting in lieu thereof the following:
Recognizing that the practice of medicine, along with the practices of certain related healthcare professions, is a privilege and not a natural right of individuals, it is hereby considered a matter of policy in the interests of public health, safety, and welfare to provide laws and provisions covering the granting of that privilege and its subsequent use and control, and to provide regulations to the end that the public health, safety, and welfare are promoted and that the public is properly protected against the unprofessional, improper, unauthorized, or unqualified practice of medicine or practice of certain related healthcare professions and from unprofessional conduct by persons authorized to practice medicine or to practice certain related healthcare professions.
The following definitions apply to this chapter unless otherwise expressly stated or implied by the context.
(1) 'Board' means the Board of Medical Practice.
(2) 'Certificate to practice medicine' means a document awarded by the Board to a person who qualifies to practice medicine in this State by meeting the requirements of this chapter.
(3) 'Division' means the Division of Professional Regulation.
(4) 'Executive Director' means the Executive Director of the Board of Medical Practice.
(5) 'Healthcare institution' means a facility or agency licensed, certified, or otherwise authorized by law to provide in the ordinary course of business treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition.
(6) 'Medicine' means the science of restoring or preserving health and includes traditional medicine and surgery, osteopathic medicine and surgery, forensic medicine, and all the respective branches of the foregoing.
(7) 'Physician' means a traditional medical doctor or surgeon or an osteopathic doctor or surgeon.
(8) 'Practice of medicine' or 'practice medicine' means:
a. advertising, holding out to the public, or representing in any manner that one is authorized to practice medicine in this State;
b. offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of another person;
c. offering or undertaking to prevent or to diagnose, correct, and/or treat in any manner or by any means, methods, or devices a disease, illness, pain, wound, fracture, infirmity, defect, or abnormal physical or mental condition of another person, including the management of pregnancy and parturition;
d. offering or undertaking to perform a surgical operation upon another person;
e. rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient within the State by a physician located outside the State as a result of transmission of individual patient data by electronic or other means from within the State to the physician or to the physician's agent;
f. rendering a determination of medical necessity or a decision affecting the diagnosis and/or treatment of a patient;
g. using the designation Doctor, Doctor of Medicine, Doctor of Osteopathy, physician, surgeon, physician and surgeon, Dr., M.D., or D.O., or any combination thereof, in the conduct of an occupation or profession pertaining to the prevention, diagnosis, or treatment of human disease or condition unless the designation additionally contains the description of another branch of the healing arts for which one holds a valid license in the State.
For the purposes of this chapter, in order that the full resources of the State are available for the protection of patients, the act of the practice of medicine may occur where the patient resides or where the patient is treated.
(9) 'Registration' means the entry of a certificate to practice medicine into the records of the Board of Medical Practice pursuant to the regulations of the Board.
(10) 'Regulatory Council' means the Physician Assistant Regulatory Council.
(11) 'Unauthorized practice of medicine' means the practice of medicine as defined in subsection (8) of this section by a person not authorized under this chapter to perform an act set forth in that subsection.
§1703. Nonapplicability of chapter.
This chapter does not apply to:
(1) a student who is engaged in training in a medical school approved by the Board of Medical Practice;
(2) a person providing service in an emergency, where no fee or other consideration is contemplated, charged, or received;
(3) physicians of any civilian or military branch of the United States government in the discharge of their official duties; or
(4) physical therapists, physician assistants, respiratory care practitioners, emergency medical technicians, psychologists, optometrists, pharmacists, chiropractors, cosmetologists, chiropodists, podiatrists, veterinarians, barbers, dentists, oral hygienists, advanced practice nurses, professional nurses, practical nurses, or persons engaged in other professions or occupations who are certified, licensed, or registered according to law and are acting within the scope of the activity for which they are certified, licensed, or registered.
(5) a person administering a lawful domestic or family remedy to a member of his or her family;
(6) a person fully certified, licensed, or otherwise authorized to practice medicine in another state of the United States who briefly renders emergency medical treatment or briefly provides critical medical service at the specific lawful direction of a medical institution or federal agency that assumes full responsibility for the treatment or service and is approved by the Board of Medical Practice;
(7) a person who has earned a doctorate degree from a recognized college or university and who uses the designation of 'Dr.' in connection with his or her name or calls himself or herself 'Doctor', except in matters related to medicine or health, in which case the type of doctorate held must be specified;
(8) the mechanical application of glasses;
(9) the practice of massage;
(10) the business of manicuring;
(11) the practice of ritual circumcision performed pursuant to the requirements or tenets of a religion; provided, however, that a person certified and registered to practice medicine in this State certifies in writing to the Board that, in the person's opinion, the circumcision practitioner has sufficient knowledge and competence to perform a ritual circumcision according to accepted medical standards;
(12) the practice of healing by spiritual means in accordance with the tenets and practice of a religion by an accredited practitioner of the religion. In the practice of healing by spiritual means, an accredited practitioner may not use medical titles or other designations which imply or designate that the practitioner is certified to practice medicine in this State. A person engaged in the practice of healing by spiritual means may not perform surgical operations or prescribe medications, nor may a pharmacist or pharmacy honor a prescription drawn by the person. A person engaged in the practice of healing by spiritual means must observe all State and federal public health laws;
(13) a physician from another state or jurisdiction testifying in a judicial or quasi judicial proceeding;
(14) the rendering of medical assistance to a supervising physician by a person who is registered with the Board as a physician assistant. A physician assistant must be a regular employee of the supervising physician to whom assistance is rendered and must limit his or her medical assistance activities to patients under the care of the supervising physician. A physician assistant may not maintain or manage an office separate and apart from the supervising physician's primary office. The medical assistance rendered by a physician assistant must be in compliance with regulations adopted by the Board, delineating the activities in which a physician assistant may engage; provided, however, that a regulation of the Board may not authorize a physician assistant to engage in diagnosis, to prescribe legend drugs or therapeutics, to practice medicine or surgery or refraction, or to pronounce a patient dead in any setting. A physician who employs a physician assistant shall direct and supervise the activities of the assistant and shall be responsible for the professional and clinical actions of the assistant. A physician assistant may not delegate an assigned task to another individual, nor may the assistant independently bill a patient for services rendered at the request of the physician. Nothing in this subsection may be construed to change or modify practices currently prevailing in the practice of optometry or ophthalmology or construed to apply to the rendering of clerical assistance to a physician;
(15) a person rendering medical, surgical, or other health services who is functioning as a member of an organized emergency program which has been approved by the Board of Medical Practice; who has successfully completed an emergency medical course; and who is acting under the supervision and control of a person certified and registered to practice medicine in this State or in a state contiguous to this State;
(16) a licensed registered nurse making a pronouncement of death and signing all forms or certificates registering the death as permitted or required by the State, but only if the nurse is an attending nurse caring for a terminally ill patient (i) in the patient's home or place of residence as part of a hospice program or a certified home healthcare agency program; (ii) in a skilled nursing facility; (iii) in a residential community associated with a skilled nursing facility; (iv) in an extended care facility; or (v) in a hospice; and only if the attending physician of record has agreed in writing to permit the attending licensed registered nurse to make a pronouncement of death in that case;
(17) the provisions of Subchapter II, Chapter 27 of Title 16, the Uniform Anatomical Gift Act.
§1704. If a law, rule, or regulation of this State requires the services or qualifications of a physician or surgeon, the requirement may be met only by a person certified and registered to practice medicine under this chapter.
(a) The Board of Medical Practice has the sole authority in this State to issue certificates to practice medicine and is the State's supervisory, regulatory, and disciplinary body for the practice of medicine.
(b) The Board consists of 16 voting members appointed by the Governor, 6 of whom are persons certified and registered to practice medicine in this State (but are not osteopathic physicians) and have their primary place of practicing medicine in New Castle County; 2 of whom are persons certified and registered to practice medicine in this State (but are not osteopathic physicians) and have their primary place of practicing medicine in Kent County; 2 of whom are persons certified and registered to practice medicine in this State (but are not osteopathic physicians) and have their primary place of practicing medicine in Sussex County; 1 of whom is an osteopathic physician certified and registered to practice medicine in this State; and 5 of whom are public members. A public member may not be nor may ever have been certified, licensed, or registered in any health-related field; may not be the spouse of someone certified, licensed, or registered in any health-related field; at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered in any health-related field; may not be employed by a company engaged in a directly health-related business; and may not have a material financial interest in providing goods or services to persons engaged in the practice of medicine.
(c) The Medical Society of Delaware and the Delaware State Osteopathic Medical Society may submit lists of their resident members and any recommendations to the Governor by January 1 of each year under the seal of and signed by the Secretary of the Society to aid the Governor in the appointment of new members to the Board.
(d) Every person who is a member of the Board on June 7, 1990, may continue to serve until the expiration of the person's term. Any vacancy occurring in the membership of the former Board shall be filled in accordance with the provisions of this chapter.
(e) On or after June 7, 1990, the Governor shall appoint to the Board 1 public member whose principal place of residence is in New Castle County and whose term expires 1 year after the member's initial appointment, 1 public member whose principal place of residence is in Kent County and whose term expires 2 years after the member's initial appointment, and 1 public member whose principal place of residence is in Sussex County and whose term expires 3 years after the member's initial appointment. An appointment made after the initial classification and appointment of these 3 public members is for a full term of 3 years to succeed the member whose term has expired.
(f) A physician appointee to the Board must be a certified and registered physician in good standing, and must have practiced medicine under the laws of this State for a period of not less than 5 years prior to his or her appointment to the Board.
(g) The Governor shall fill vacancies on the Board and, after a hearing, may remove a member of the Board for cause due to the member's neglect of the duties required by this chapter, or, after a hearing, on the recommendation of the Board due to the member's unprofessional or dishonorable conduct.
(h) A member of the Board may not serve more than 2 full, consecutive 3-year terms, which is not diminished by serving an unexpired term. Upon serving 2 full, consecutive 3-year terms, a former member is eligible for reappointment to the Board no earlier than 1 year after the expiration of the last term served on the Board by the former member.
(i) While serving on the Board, a member may not be an officer of any state or local traditional medical society or osteopathic medical society.
(j) While serving on the Board, a member of the Board may not be a member of the board of directors of a professional review organization.
(k) A member of the Board is eligible to be reimbursed for all expenses involved in each meeting, including travel. In addition, a member may receive not more than $50 for each meeting attended, and not more than a total of $500 for meetings attended in any calendar year.
(a) The Board shall organize annually within 30 days of its appointment and shall elect from among its members a president, a secretary, a treasurer, and such other officers as it considers necessary, 2 of whom may be the same person.
(b) The Board may employ and set the job duties and salary for an executive director and other necessary staff. The executive director may not be a Board member.
(c) The Board shall establish and maintain an office within this State.
(d) The Board shall meet at least 8 times a year at a public place and at a time as the Board determines, subject to guidelines established or approved by the Division of Professional Regulation.
(e) Unless otherwise provided in this chapter, meetings of the Board are open to the public and may be closed to the public only in accordance with the provisions contained in §
10004 of Title 29.(a) A quorum for the transaction of business consists of 9 members of the Board entitled to vote. A majority of the quorum present and voting, but not less than 7 affirmative votes, is required to transact certain business as provided elsewhere in this chapter.
(b) An affirmative vote of 7 members of the Board present and voting at a meeting is required to adopt a regulation which can deprive a physician of the physician's certificate to practice medicine or subject a person to disciplinary action.
(a) The Board has the following powers and duties in addition to other powers and duties set forth in this chapter:
(1) To investigate, through the Executive Director of the Board, the character of each applicant for a certificate to practice medicine to determine if the applicant has previously engaged in unprofessional conduct pursuant to §1731(b) of this chapter, and if the applicant is physically and mentally capable of engaging in the practice of medicine with reasonable skill or safety to patients and with regard to the health, safety, and welfare of the public pursuant to §1731(c) of this chapter;
(2) To conduct or approve of such examinations as it deems necessary and proper, and not inconsistent with the laws of this State and of the United States, to determine the professional qualifications of each person who applies for a certificate to practice medicine in this State;
(3) To investigate, through the Executive Director, complaints and charges of unprofessional conduct against any holder of a certificate to practice medicine;
(4) To investigate, through the Executive Director, complaints and charges of the inability of a person to practice medicine with reasonable skill or safety to patients due to the person's physical, mental, or emotional illness or incompetence, including but not limited to deterioration through the aging process, or loss of motor skill, or excessive use or abuse of drugs, including alcohol;
(5) To investigate, through the Executive Director, complaints of the unauthorized practice of medicine;
(6) To levy fines not to exceed $1,000, and to grant, deny, restrict, revoke, suspend, reinstate, or reissue a certificate to practice medicine;
(7) To issue subpoenas, compel the attendance of witnesses, and administer oaths;
(8) To require the production of and receive information regarding changes in hospital privileges as a result of disciplinary action taken by hospitals, or regarding disciplinary action taken by medical societies against any person certified to practice medicine;
(9) To reprimand, censure, or take other appropriate disciplinary action with respect to any person certified to practice medicine in this State;
(10) To take depositions or cause depositions to be taken, as needed in any investigation, hearing, or proceeding;
(11) To hold hearings;
(12) To promulgate rules and regulations not inconsistent with this chapter or other laws of this State for carrying out the powers and duties required by this subchapter. Such rules and regulations must be published and made available to the public upon request;
(13) By resolution passed by a majority of the members of the Board, to designate 1 or more committees, with each committee to include 1 or more of the members of the Board and such other person or persons as may be appropriate. Unless a specific vote of the Board is required by this chapter, a committee has the authority delegated to it by the Board; provided, however, that a committee may not levy a fine or refuse to grant, grant, restrict, revoke, suspend, reinstate, or reissue a certificate to practice medicine;
(14) To designate records of the Board confidential and exempt from public disclosure, in accordance with §
(15) To designate 3 members of the Board to act as a hearing panel for the purpose of hearing charges of unprofessional conduct as set forth in §
1731(b) of this title or charges of the inability to practice medicine as set forth in §1731(c) of this title, or for the purpose of making determinations of fact in connection with the temporary suspension of a certificate to practice medicine pursuant to §1738 of this title;(16) A. To adopt regulations regarding activities which may be undertaken by physician assistants and to register all physician assistants with the Board. The Board may establish categories of physician assistants commensurate with the training and experience of physician assistants. The Board may establish the maximum number of physician assistants who may be supervised by a physician, provided, however, that if the Board does not designate a maximum number, the number is 2. The Division of Professional Regulation shall establish fees for registering physician assistants and for renewing the registration on a biennial basis. The fees must approximate the costs reasonably necessary to defray the actual expenses of the Board, as well as the proportional expenses incurred by the Division in administering the registration, the renewal of registration, and the regulation of physician assistants. The Board may suspend, revoke, or restrict the registration of a physician assistant or otherwise discipline a physician assistant for engaging in unprofessional conduct as defined in §
B. Physician Assistant Regulatory Council.
To assist the Board of Medical Practice in the performance of its duties relating to the regulation of physician assistants, the president of the Board, with advice and approval of the Board, shall appoint members to the Regulatory Council for Physician Assistants. The Regulatory Council is chaired by a member of the Board appointed by the president and has 6 other members, including 1 physician appointed by the Board of Medical Practice and 1 pharmacist appointed by the Board of Pharmacy. The 4 remaining members must be physician assistants and must meet the same requirements and be subject to the same limitations and causes for removal as a physician member of the Board, except that the requirement for certification and registration to practice medicine is replaced by registration as a physician assistant. Terms and limitations of service for members of the Regulatory Council are the same as terms and limitations of service for members of the Board. The chairperson of the Regulatory Council is compensated and reimbursed in the same amount as a Board member is compensated and reimbursed. The other 6 members of the Regulatory Council are compensated at an appropriate and reasonable level as determined by the Board and may be reimbursed for meeting-related travel and expenses at the State's current approved rate. The Regulatory Council shall meet at least quarterly each calendar year to review the regulation of physician assistants and to advise the Board of policy, rules, and regulations relating to that regulation of physician assistants. The Board may consult Regulatory Council members for advice on particular issues, including issues relating to disciplinary matters for physician assistants. The Board shall determine the specific functions of the Regulatory Council.
(b) A member of the Board or a member of any committee designated by the Board pursuant to subsection (a)(13) of this section is immune from claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act or omission performed or not performed under the authority of this chapter so long as the member acted in good faith and without gross or wanton negligence, with good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.
(c) A member of the Board may not discriminate against a person holding or applying for a certificate to practice medicine by reason of gender, race, color, creed, religion, age, disability, or national origin.
(d) The Board shall provide by rule or regulation for up to 25 hours of continuing medical education per calendar year for persons certified to practice medicine.
The amount of a fee imposed under this chapter must approximate and reasonably reflect the actual cost of services or activities provided by the Board, as well as the proportional expenses incurred by the Division of Professional Regulation for services or activities provided on behalf of the Board. A separate fee may be charged for each service or activity, but a fee may not be charged for a purpose not specified in this chapter. The application fee for a certificate to practice medicine may not be combined with any other fee or charge. At the beginning of each calendar year, the Division, or another State agency acting in its behalf, shall compute the fee for each separate service or activity that the Board or the Division expects to provide during that calendar year.
The Division of Professional Regulation shall keep a register of all approved applications for certificates to practice medicine, for registrations and renewals of registrations to practice as physician assistants, and for licenses and renewals of licenses to practice respiratory therapy, and for all other certificates, registrations, and registration renewals granted by the Board. In addition, the Director shall maintain complete records relating to meetings of the Board, examinations, rosters, changes and additions to the Board's rules and regulations, complaints, hearings, and such other documents as the Board determines. Records kept by the Division are prima facie evidence of the proceedings of the Board. A certificate holder, registrant, or licensee must notify the Division of Professional Regulation of a change in any information on his or her application or registration form within 15 days of the change.
(a) A person may not practice medicine in this State unless the person has a certificate to practice medicine from the Board of Medical Practice; registers the certificate to practice medicine and renews it biennially; and has an occupational license pursuant to Part III of Title 30.
(b) An application for a certificate to practice medicine in this State must:
(1) have a working ability to read, write, speak, understand, and be understood in the English language;
(2) possess the following educational credentials:
a. a degree of Doctor of Medicine or Doctor of Osteopathy, or an equivalent degree, from a legally incorporated medical college or school located in the United States or Canada, which medical college or school has been approved by the appropriate accrediting body of the American Medical Association or the American Osteopathic Association; or
b. a degree of Doctor of Medicine or Doctor of Osteopathy, or an equivalent degree, from a legally incorporated medical college or school located in a country other than the United States or Canada, which medical college or school has been approved by the appropriate accrediting body of the American Medical Association or the American Osteopathic Association, along with documentary proof that the applicant successfully passed the examination administered by the Educational Council for Foreign Medical Graduates; or
c. a degree of Doctor of Medicine or Doctor of Osteopathy, or an equivalent degree, from a legally incorporated medical college or school located in a country other than the United States or Canada, which medical college or school has not been approved by the appropriate accrediting body of the American Medical Association or the American Osteopathic Association, but the applicant has completed 3 years of postgraduate training in a residency program which has been approved by the Accreditation Council for Graduate Medical Education and has successfully passed the examination administered by the Educational Council for Foreign Medical Graduates;
d. documentary proof that all clinical rotations served by the applicant in the United States or Canada as part of training received in a medical college or school were conducted in institutions that are formal parts, such as a primary hospital, of a medical college or school or that have formal affiliation with a medical college or school approved by the appropriate accrediting body of the American Medical Association or the American Osteopathic Association, or that the clinical rotations were served in hospitals which had, at the time the rotations were served, a residency training program approved by the Accreditation Council for Graduate Medical Education in the subject matter of the clinical rotation;
(3) have satisfactorily completed an internship or equivalent training in an institution, which internship or training and institution are approved by the Board;
(4) submit to the Board a sworn or affirmed statement that he or she (i) has not been convicted of a felony; (ii) has not been professionally penalized or convicted of drug addition; (iii) has not had his or her license or certificate to practice traditional medicine or osteopathic medicine in any other state, territory, or foreign nation revoked, suspended, restricted, limited, or subjected to other disciplinary action by the certifying or licensing authority thereof; (iv) has not been removed, suspended, expelled, or disciplined by any professional medical association or society when the suspension, expulsion, or discipline was based upon what the association or society found to be unprofessional conduct, professional incompetence, or professional malpractice; (v) has not been disciplined by a licensed hospital or by the medical staff of the hospital, including the removal, suspension, or limitation of hospital privileges, the nonrenewal of privileges for cause, the resignation of privileges under pressure or investigation, or other disciplinary action if the action was based upon what the hospital or medical staff found to be unprofessional conduct, professional incompetence, or professional malpractice; (vi) has not engaged in the practice of medicine without a certificate or license or other authorization to practice medicine; (vii) has not unlawfully prescribed narcotic drugs; (ix) has not willfully violated the confidence of a patient; or (x) has not been professionally penalized or convicted of fraud;
(5) submit to the Board a sworn or affirmed statement that he or she is, at the time of application, physically and mentally capable of engaging in the practice of medicine according to generally accepted standards, and must submit to such examination as the Board may deem necessary to determine his or her capability;
(6) submit to the Board a certified copy of his or her State and federal criminal history record from the Delaware State Bureau of Investigation. An applicant may not be certified to practice medicine until his or her criminal history reports have been produced. An applicant whose record shows a prior criminal conviction may not be certified by the Board unless a waiver is granted pursuant to subsection (e) of this section;
(7) submit to the Board evidence of continuing medical education equivalent to the requirements of section 1713(d) of this chapter; and
(8) pass the professional examination administered by the Board under §
(c) An applicant for a certificate to practice medicine in this State must submit to the Board an application in writing in such form as the Board requires.
(d) An applicant for a certificate to practice medicine in this State must fulfill the requirements of subsection (b) of this section in accord with the form and manner required by the Board in its rules and regulations. If the Board approves an application for a certificate to practice medicine, the applicant must pay the application fee set by the Board in its rules and regulations, and, unless an exception in §
1725 of this chapter applies, the applicant must pass a professional examination pursuant to §1721 of this chapter.(e) The Board, by the affirmative vote of 12 of its members, may waive any of the requirements of this section if it finds all of the following:
(1) the applicant's education, training, qualifications, and conduct have been sufficient to overcome the deficiency or deficiencies in meeting the requirements of this section;
(2) the applicant is capable of practicing medicine in a competent and professional manner; and
(3) the granting of the waiver will not endanger the public health, safety, or welfare.
(f) In determining if an applicant qualifies for certification to practice medicine, the Board may rely upon relevant decisions made by the appropriate authority in other states and may not permit a collateral attack upon those decisions.,
(a) The Board shall require written and/or clinical professional examination of each applicant for a certificate to practice medicine in accordance with the Board's rules and regulations.
(b) The professional examination must be in the English language, must be comprehensive in character, and designed to determine an applicant's fitness to practice medicine. It must cover those general subjects and topics, a knowledge of which is commonly and generally required of candidates for the degree of Doctor of Medicine or Doctor of Osteopathy conferred by approved medical colleges or schools in the United States.
(c) After an applicant completes the required professional examination, the Board shall promptly notify the applicant whether or not he or she passed the examination.
(d) The Board shall include in its rules and regulations the number of times and the conditions under which an applicant who has failed 1 or more professional examinations conducted pursuant to this section may again apply for a certificate to practice medicine under this chapter.
(a) The Board may adopt rules and regulations that waive the professional examination required pursuant to §1721 of this chapter for the issuance of a certificate to practice medicine in the following cases:
(1) The applicant for whom the examination is to be waived is licensed, certified, registered, or otherwise legally qualified to practice medicine in another state of the United States or in another jurisdiction, and seeks a temporary certificate to practice medicine for not less than 2 weeks nor more than 3 months for the purpose of taking charge of the practice of a person certified and registered to practice medicine in this State during the person's temporary illness or absence from this State. The Board may, in its discretion, extend a temporary certificate to practice medicine pursuant to this paragraph for an additional 3 months, but not longer. A temporary certificate may be issued to an applicant by the Board upon the written request of a person certified and registered to practice medicine in this State and upon the payment of a fee established for such purpose by the Division of Professional Regulation. The written request must contain an affirmation that the purpose of the temporary certificate is to allow the applicant to take charge of the practice of the person certified and registered to practice medicine in this State during the person's temporary illness or absence from the State;
(2) The applicant for whom the examination is to be waived (i) is employed in this State as an intern, resident, house physician, or fellow in a hospital accredited by the Joint Commission on the Accreditation of Hospitals or by the American Osteopathic Hospital Association, or (ii) is a staff physician employed in a governmental institution in this State and is applying for a certificate to practice medicine for a period of time not to exceed the length of time of employment in the hospital or governmental institution. A certificate issued pursuant to this paragraph is subject to yearly renewal and restricts the applicant to practice only in the hospital or institution where the applicant is employed;
(3) The applicant for whom the examination is to be waived is licensed, certified, registered, or otherwise legally qualified to practice medicine by competent authority in any other of the United States or in any other jurisdiction approved by the Board;
(4) The applicant for whom the examination is to be waived has satisfactorily passed the examination given by the National Board of Medical Examiners or by the National Board of Examiners for Osteopathic Physicians and Surgeons.
(a) The Board shall issue a certificate to practice medicine in this State and register the certificate for an applicant who meets the requirements of this chapter.
(b) The Division shall keep a current register of all persons certified to practice medicine in this State and of all certificates issued under this chapter. A person issued a certificate to practice medicine shall inform the Division of any change in his or her application and registration information within 15 days of the change.
(c) The registration of the certificate to practice medicine must be renewed biennially, in the manner determined by the regulations of the Division. The regulations must include payment of an appropriate registration and registration renewal fee; submission of a renewal form provided by the Division; proof that the certified person has met the continuing education requirement established by the Board; the period of time within which a person certified to practice medicine in this State may renew his or her registration without penalty, notwithstanding the fact that the person failed to renew his or her registration on or before the renewal date; and the penalty for failure to renew registration in a timely manner.
(a) The Board may issue a temporary emergency certificate to practice medicine for a period of time not to exceed 12 months, but renewable at the discretion of the Board, to a person whom it finds qualified to practice medicine in this State. A temporary emergency certificate may be issued only during a public emergency declared by the President of the United States, the Governor of the State, or by the unanimous vote of the entire Board and only if the issuance of the certificate is directly related to the availability of and the need for persons who practice medicine. When an occupational license is issued by the Director of Revenue pursuant to §
1724 of this chapter and the temporary certificate is registered by the Board, the holder of a temporary emergency certificate may, during the term specified in the certificate unless sooner revoked, practice medicine in this State, subject to all the laws of this State and to the regulations and restrictions which the Board may adopt, including, but not limited to, location limitations and limitations on the nature of the practice of medicine within the State.(b) The Board may issue a temporary certificate to practice medicine for a period of time not to exceed 3 months to a person otherwise qualified to practice medicine who has applied for certification to practice medicine, while the application for certification is pending. When an occupational license is issued by the Director of Revenue pursuant to §
1724 of this chapter and the temporary certificate is registered by the Board, the holder of a temporary certificate may, during the time specified in the certificate unless sooner revoked, practice medicine in this State, subject to all the laws of this State and to the regulations or restrictions which the Board may adopt, including, but not limited to, location limitations and limitations on the nature of the practice of medicine within the State.The Executive Director of the Board shall, immediately upon issuing a certificate to practice medicine, notify the director of the Division of Public Health of the Department of Health and Social Services of the issuance of the certificate and give to the Division of Public Health the full name and address of the person to whom the certificate was issued and the date thereof, and, in the case of the issuance of a temporary certificate pursuant to §1722 of this chapter or a temporary emergency certificate pursuant to §1724 of this chapter, the length of time for which the certificate authorizes the practice of medicine, and the limitation on the authorization, if any.
This chapter does not prevent a person who is certified, licensed, or otherwise authorized to practice medicine in another state or in a foreign country from engaging in a consultation with a person certified and registered to practice medicine in this State.
(a) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board if he or she is treating professionally another person who possesses a certificate to practice medicine for a condition defined in §
1731(c) of this chapter, if, in the reporting person's opinion, the person being treated may be unable to practice medicine with reasonable skill or safety. The reporting person shall provide the Board with a written report which includes the name and address of the person being treated, the exact condition being treated, and the reporting person's opinion of whether or not action should be taken under §1731 of this chapter. A person reporting to the Board or testifying in any proceeding as a result of making a report pursuant to this section is immune from, claim, suit, liability, damages, or any other recourse, civil or criminal, so long as the person acted in good faith and without gross or wanton negligence; good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.(b) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board within 30 days any change in hospital privileges resulting from disciplinary action taken by a hospital and any disciplinary action taken by a medical society against him or her.
(c) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board all information concerning medical malpractice claims settled or adjudicated to final judgment, as provided in
Chapter 68 of Title 18.(a) A person to whom a certificate to practice medicine in this State has been issued may be disciplined for unprofessional conduct, as defined in subsection (b) of this section, by the Board by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of his or her certificate to practice medicine, or by other appropriate action.
(b) 'Unprofessional conduct' includes but is not limited to any of the following acts or omissions:
(1) the use of any false, fraudulent, or forged statement or document or the use of any fraudulent, deceitful, dishonest, or immoral practice in connection with a certification, registration, or licensing requirement of this chapter;
(2) conviction of a felony;
(3) any dishonorable or unethical conduct likely to deceive, defraud, or harm the public;
(4) the practice of medicine under a false or assumed name;
(5) the practice of medicine without a certificate to practice medicine and registration or renewal of registration of the certificate, unless otherwise authorized by the Medical Practices Act;
(6) the use, distribution, or issuance of a prescription for the use of a dangerous or narcotic drug, other than for therapeutic or diagnostic purposes;
(7) advertising of the practice of medicine in an unethical or unprofessional manner;
(8) solicitation or acceptance of a fee from a patient or other person by fraudulent representation that a manifestly incurable condition, as determined with reasonable medical certainty, can be permanently cured;
(9) knowing or intentional performance of an act which, unless authorized by this chapter, assists an uncertified or unregistered person to practice medicine;
(10) the failure to provide adequate supervision to an individual working under the supervision of a person who is certified and registered to practice medicine;
(11) misconduct, incompetence, or gross negligence in the practice of medicine;
(12) willful violation of the confidential relationship or confidential communications of a patient;
(13) willful failure to report to the Board as required by §
(14) willful failure to report to the Board as required by §
1730(b) of this title;(15) willful failure to report to the Board as required by §
1730(c) of this title;(16) unjustified failure upon request to divulge information relevant to the authorization or competence of a person to practice medicine to the Board, to any committee thereof, to the Executive Director, or to anyone designated by him or her to request such information;
(17) the violation of a provision of this chapter or the violation of an order or regulation of the Board related to medical procedures, the violation of which more probably than not will harm or injure the public or an individual;
(18) charging a grossly exorbitant fee for professional services rendered;
(19) suspension or revocation of a certificate to practice medicine, or other disciplinary action taken by the certifying or licensing authority in another state or territory; provided, however, that the underlying grounds for such action in another state have been presented to the Board by either certified record or live testimony and that the Board has determined that the facts found by the certifying or licensing authority in the other state or territory constitute unprofessional conduct as that term is defined in this section. In making its determination, the Board may rely upon decisions made by the appropriate authorities in other states and may not permit a collateral attack on those decisions.
(c) A certificate to practice medicine issued to a person is subject to restriction, suspension, or revocation, either temporarily or permanently, in case of the inability of the person to practice medicine with reasonable skill or safety to patients by reason of 1 or more of the following:
(1) mental illness or mental incompetence;
(2) physical illness, including, but not limited to, deterioration through the aging process or loss of motor skill;
(3) excessive use or abuse of drugs, including alcohol.
(d) The Board may establish, by class and not by individual, requirements for continuing education and/or reexamination as a condition for renewal of registration and for recertification to practice medicine.
(e) A person who files a complaint with the Board or any of its members, the Executive Director, or the Division, or who provides information to the Board or any of its members, the Executive Director, or the Division regarding a complaint, or who testifies as a witness at a hearing before the Board or any of its hearing panels or committees concerning unprofessional conduct by a person certified to practice medicine in this State or concerning the inability of a person certified to practice medicine for the reasons set forth in subsection (c) of this section, may not be held liable in any cause of action arising out of the filing of the complaint, the providing of information, or the giving of testimony, provided that the person does so in good faith and without gross or wanton negligence.
(a) Any person may report to the Board in writing information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be medically incompetent, guilty of unprofessional conduct, or mentally or physically unable to engage safely in the practice of medicine. The following have an affirmative duty to report, and must report, such information to the Board in writing within 30 days of becoming aware of the information:
(1) all persons certified to practice medicine under this chapter;
(2) all certified, registered, or licensed healthcare providers;
(3) the Delaware Medical Society and its components;
(4) all healthcare institutions in the State;
(5) all State agencies;
(6) all law enforcement agencies in the State.
(b) If a person certified to practice medicine in this State voluntarily resigns from the staff of a healthcare institution, or voluntarily limits his or her staff privileges at a healthcare institution, or fails to reapply for hospital or staff privileges at a healthcare institution, the healthcare institution and the person shall promptly report in writing such conduct to the Board if the conduct occurs while the person is under formal or informal investigation by the institution or a committee thereof for any reason related to possible medical incompetence, unprofessional conduct, or mental or physical impairment.
(c) Upon receiving a report pursuant to subsection (a) or (b) of this section, or on its own motion, the Board shall investigate any evidence which appears to show that the person reported is or may be medically incompetent, guilty of unprofessional conduct, or mentally or physically unable to engage safely in the practice of medicine.
(d) Upon a determination that an investigation is necessary, the Executive Director, with the approval of the assisting Board members who must be or must include a physician and a public member when the investigation relates to the quality of medical care provided by a physician or to the competency of a physician to engage safely in the practice of medicine, has the authority to inquire from any organization which undertakes physician peer review or physician quality assurance evaluations whether or not there has been any peer review, quality assurance, or similar process instituted involving the physician under investigation that has resulted in any disciplinary action. If disciplinary action resulted, the Executive Director may, by subpoena, compel the production of a list of the medical records reviewed during the peer review process, a list of the quality assurance indicators, and/or a list of other issues which were the basis for the peer review, quality assurance, or similar process. The lists produced must identify each item with a unique medical identifier to replace the patient's name and specific identifying information. If necessary, after receiving the lists the Executive Director may, by subpoena, compel the production of the medical records relevant to the disciplinary action. However, the individual, hospital, organization, or institution shall remove the patient's name and specific identifying information from the records prior to complying with the subpoena. If, after having reviewed the records produced, the physician Board member and public Board member consider it necessary, the Executive Director may, by subpoena, compel the production of the patient's name. An individual, hospital, organization, or institution that furnishes information to the Board pursuant to a subpoena issued pursuant to this subchapter with respect to any patient is not by reason of furnishing the information liable in damages to any person or subject to any other recourse, civil or criminal.
(e) The Board shall promptly acknowledge all reports received under this section. Individuals or entities reporting under this section must be promptly informed of the Board's final disposition of the reported matters.
(f) Malpractice insurance carriers and insured persons certified to practice medicine in this State shall file with the Board a report of each final judgment, settlement, or award against the insured persons. A person not covered by a malpractice insurance carrier shall file a report with the Board. A report required to be filed under this subsection must be made to the Board within 30 days of a final judgment, settlement, or award.
(g) An individual, institution, agency, or organization required to report under this section who does so in good faith is not subject to civil damages or criminal prosecution for reporting.
(h) Whoever violates this section is subject to a fine of not less than $50 nor more than $250.
(a) If the Executive Director and the president of the Board determine after an investigation that a person certified to practice medicine has violated a provision of this chapter or a regulation enacted pursuant to this chapter, but that the violation does not warrant formal disciplinary action under §
1734 of this chapter, the Executive Director and the president may elect to counsel the person regarding the violation. If counseling is elected, the Executive Director shall notify the person in writing of the Executive Director's and the president's findings and of their decision not to proceed by formal disciplinary action. The notification must explain the findings of the Executive Director and the president, and request the presence of the person at a counseling session. During the counseling session the Executive Director or president shall discuss the violation with the person, as well as any required corrective action.(b) Attendance of a person certified to practice medicine at a counseling session pursuant to this section is voluntary; but, if the person fails to be counseled or fails to take the corrective action, if any, required by the Executive Director or president, the Executive Director's notification letter is conclusive evidence that the underlying violation occurred, and the letter may be used in a subsequent hearing regarding the person. If a person challenges the findings set forth in the Executive Director's letter, the person is entitled to a hearing in accordance with §
1734 of this title to determine whether the violation occurred. If a person requests a hearing pursuant to this section, the hearing must be conducted as a disciplinary hearing under §1734 of this chapter.(c) Counseling under this section is not considered disciplinary action. If a person certified to practice medicine attends counseling and complies with any corrective action required by the Executive Director or the president, the fact that the person was counseled may not be considered disciplinary action, nor may it be used in considering disciplinary sanctions in any future hearing unrelated to the incident for which the person was counseled unless a future incident involves the same or similar allegation as that for which the person was counseled.
(d) If the Executive Director and the president of the Board, or a member of the Board designated to assist in an investigation concerning a person certified to practice medicine, determine after the investigation that a violation of this chapter or of regulations enacted pursuant to this chapter which warrants formal disciplinary action under §1734 of this chapter has not occurred, but that an act or omission of the person is a matter of concern and that the person's practice may be improved if the person is made aware of the concern, the Executive Director, with the concurrence of the president or the assisting Board member, may issue a non-disciplinary confidential letter of concern regarding the person's act or omission.
(e) A person certified to practice medicine who receives 3 or more letters of concern or 3 or more letters of counseling within a 12-month period may be reasonably considered by the Executive Director to require a formal assessment of professional competency pursuant to §1732(e) of this chapter to assess the person's continued ability to protect the health and safety of his or her patients.
(a) The Executive Director shall:
(1) investigate by complaint, or by his or her own motion or by the Board's own motion, reported cases of unprofessional conduct or inability to practice medicine with reasonable skill or safety to patients as defined by §
(2) formulate charges, if circumstances under paragraph (1) of this subsection warrant, by bringing a formal complaint against a person to whom a certificate to practice medicine in this State has been issued;
(3) present all formal complaints to the Board in accordance with the procedures set forth in this subchapter.
(b) The Executive Director shall appoint at least 1 unbiased member of the Board to assist him or her in investigations concerning charges of unprofessional conduct and medical malpractice. The Executive Director shall also appoint investigators from the Division of Professional Regulation to participate in those investigations, which must stay within the bounds of the charge being investigated unless the Executive Director determines that the investigation itself provides good cause for additional investigation. The Executive Director shall report in a timely manner to the Board his or her activities and provide his or her recommendation as to whether a formal complaint should be issued. The Board may then request that the Executive Director prepare a formal complaint against the person investigated.
(c) The Executive Director shall appoint at least 1 unbiased member of the Board to assist him or her in investigations concerning charges of inability to practice medicine with reasonable skill or safety to patients. The Executive Director shall also appoint investigators from the Division of Professional Regulation to participate in those investigations, which must stay within the bounds of the charge being investigated unless the Executive Director determines that the investigation itself provides good cause for additional investigation. The Executive Director, or his or her designee, shall conduct an examination to determine whether the person to whom a certificate to practice medicine has been issued is able to practice medicine with reasonable skill and safety to patients, either on a restricted or unrestricted basis. If the Executive Director reasonably believes that a diagnostic mental or physical examination of the person under investigation is necessary, he or she shall order the person to submit to an examination at the person's expense to be conducted by a physician designated by the Executive Director. Every person to whom a certificate to practice medicine has been issued is deemed to have given his or her consent to submit to a diagnostic mental or physical examination when so directed by the Executive Director, and to have waived all objections to the admissibility of the examination report to the Board on the grounds of privileged communication. A person who submits to a diagnostic mental or physical examination as ordered by the Executive Director has the right to designate another physician to be present at the examination and to submit an independent report on the examination to the Board. The Executive Director shall report to the Board in a timely manner his or her activities and provide his or her recommendation as to whether a formal complaint should be issued. The Board may then direct the Executive Director to prepare a complaint against the person investigated and/or examined.
(d) To assist in an investigation of alleged unprofessional conduct, medical malpractice, or inability to practice medicine with reasonable skill or safety to patients, the Executive Director, on behalf of the Board, may, by subpoena, compel the production of necessary patient medical records of and patient medical records reviewed by all hospitals, organizations, and healthcare institutions located in the State and by all quality assurance, peer review, and other similar committees, including the records of the Delaware Medical Society and its committees. A subpoena issued under this subsection is subject to the subpoena restrictions in §
1731A(d) of this chapter.(e) The Executive Director may require an applicant for or the holder of a certificate to practice medicine, at the applicant's or certificate holder's expense, to complete a formal assessment of professional competency if the Executive Director, after consultation with the president of the Board and at least one other physician member of the Board, determines that a formal assessment is warranted to protect the health and safety of present or prospective patients. A formal assessment must be performed by the assessment center established by the Federation of State Medical Boards and the National Board of Medical Examiners, or by another assessment center as the Executive Director directs. A formal assessment may not be required of an applicant or certificate holder by the Executive Director without the written concurrence of the president of the Board and at least one other physician member of the Board that the assessment is warranted pursuant to this subsection.
(a) Any member of the public or of the Board, or the Executive Director may file with the Board a complaint concerning any aspect of the practice of medicine against a person to whom a certificate to practice medicine in this State has been issued. The Executive Director shall keep the complainant reasonably advised of the status of proceedings relative to the complaint.
(b) The Executive Director shall investigate in accord with the procedures set forth in §
1732 of this chapter each complaint which appears to be valid and well-founded.(c) A complaint against a person to whom a certificate to practice medicine has been issued must be in writing, and signed by the complaining party. The complaint must set forth with particularity the essential facts constituting the alleged unprofessional conduct, medical malpractice, or inability to practice medicine with reasonable skill or safety to patients. The Executive Director in his or her discretion may maintain the confidentiality of the complaining party from the Board. In the absence of an Executive Director or acting Executive Director, the Secretary of Administrative Services may exercise that discretion. The Executive Director may also investigate an unwritten complaint at his or her discretion, provided the complaining party is identified.
(d) After investigation by the Executive Director, if the Board elects to file a formal written complaint against a person to whom a certificate to practice medicine has been issued, the person must be served personally or by certified mail, return receipt requested, with a copy of the complaint not less than 30 days nor more than 60 days prior to a hearing on the complaint.
(e) A formal written complaint filed under subsection (d) of this section must describe in detail the allegations upon which the complaint is based. The complaint must also inform the person of the date, time, and place of the hearing; state the statute or regulation allegedly violated and the statutory or regulatory authority which gives the Board authority to act; state that the person has a right to be represented by counsel at the hearing and to present evidence on his or her own behalf; and inform the person that the Board must base its decision solely upon evidence received at the hearing. The person is entitled to file with the Board a written response to the complaint within 20 days of service or of receipt by certified mail of the complaint.
(f) A complaint of the unauthorized practice of medicine must be reported immediately to the Attorney General. A person who files a complaint with or provides information to the Board concerning the unauthorized practice of medicine is not liable in any cause of action arising out of the filing of the complaint or the providing of information, provided that the person does so in good faith and without gross or wanton negligence.
(g) The Office of the Attorney General shall provide legal services to the Board, its committees, and the Executive Director.
(a) Procedure.
(1) If the Board accepts a complaint which has been investigated by the Executive Director pursuant to this chapter, it shall appoint a hearing panel composed of 3 unbiased members of the Board who shall hear the evidence concerning alleged charges of unprofessional conduct or inability to practice medicine with reasonable skill or safety to patients. The hearing panel shall convene in executive session to hear the evidence no more than 90 days after the Board accepts a formal complaint unless the Board, in its discretion, grants a continuance of the hearing date. All evidence at the hearing must be taken under oath or affirmation, but technical rules of evidence do not apply. After the evidence has been heard by the hearing panel, the panel shall make written findings of fact and conclusions of law. Only evidence presented at the hearing may be considered by the hearing panel in reaching its findings of fact and conclusions of law. The findings of fact made by the hearing panel are binding on the parties appearing before it and on the Board. If the hearing panel finds that the allegations made in the complaint are not supported by the evidence, it shall so indicate to the Board, together with its recommendation that no further action be taken and that the person complained about be exonerated of all charges. If a majority of the members of the Board who consider the matter, excluding members who participated in the investigation of the complaint or members on the hearing panel or members who are otherwise biased, vote to accept the hearing panel's conclusions of law and recommendation, no further proceedings may be held before the Board. However, if a majority of the members of the Board who consider the matter, excluding any members who participated in the investigation of the complaint or members on the hearing panel or members who are otherwise biased, vote to reject the hearing panel's conclusions of law and recommendation, a formal hearing must be held before the Board to enable the Board to make its own conclusions of law and to determine what discipline, if any, should be imposed. In such a case, the hearing panel's findings of fact are binding upon the Board.
(2) If the hearing panel finds that any of the factual allegations made in the complaint are supported by the evidence it has considered, the Board, excluding members who participated in the investigation of the complaint or members on the hearing panel or members who are otherwise biased, will consider the findings of fact and conclusions of law made by the hearing panel at a formal hearing.
(3) A formal hearing must be held within 60 days after the issuance of the written findings of facts and conclusions of law of the hearing panel pursuant to this subsection; provided, however, that if the hearing panel finds that the person complained about presents a clear and imminent danger to the public health by his or her continued practice of medicine, then the full Board may meet for the formal hearing as soon as possible, but only upon 3 days written notice of the formal hearing being provided to the person or to his or her attorney. Affirmative votes by the majority of the Board members who considered the matter, but in every case no less than 7 affirmative votes, are necessary in order for disciplinary action to be taken. Upon reaching its conclusions of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order in accordance with §
(b) Open hearings. A hearing on a complaint conducted by a hearing panel is open to the public only at the request of the person complained about. A formal hearing on a complaint before the Board is open to the public in accordance with the provisions of §
10004 of Title 29.(c) Transcript of proceedings. A stenographic transcript must be made of the formal hearings of the Board and of the hearings of the Board's hearing panels. The person complained about is entitled upon the person's request to obtain a copy of the person's hearing transcript at the person's expense. If the hearing panel determines that the allegations of the complainant are supported by the evidence, the Board shall hold a formal hearing on the complaint. The complainant is entitled, upon request, to obtain a copy of the transcript at his or her own expense.
(d) Rights of respondent. The person complained about is entitled to be represented by counsel before a hearing panel and before the Board. The person also has the right to cross-examine witnesses against him or her, the right to present his or her own witnesses, and the right to introduce evidence at the hearing panel hearing. In addition, the person has the right to compel the issuance of a subpoena for the attendance of witnesses to appear and testify or for the production of books, records, or other documents at the hearing panel hearing.
(e) Conduct of hearing before the hearing panel. The Executive Director or the Director's designee or a staff attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. He or she may call witnesses and cross-examine any witnesses called on behalf of the person complained about. A member of the Board who participated in the investigation of the complaint under consideration or a member who is biased may not sit on the hearing panel or take part in the deliberations or decisions of the hearing panel. To find that a fact or allegation is supported by evidence, the panel members must unanimously agree that the fact or allegation is supported by the evidence. The hearing panel shall make its findings of fact and conclusions of law based solely upon the evidence presented to it at the hearing.
(f) Conduct of formal hearing before the Board. The findings of fact made by a hearing panel on a complaint are binding upon the Board at a formal hearing on the same complaint. At a formal hearing, the Board may not consider additional evidence. The Board shall deliberate and reach its own conclusions of law based upon the findings of fact made by the hearing panel. The Board shall consider the hearing panel's conclusions of law, but is not bound by them. To adopt conclusions of law, a majority of the Board members must vote in favor of them. After adopting its conclusions of law, the Board shall determine what disciplinary action, if any, against the person complained about is appropriate, based solely upon the record before it. To impose disciplinary action, affirmative votes by the majority of the Board members who considered the matter, but in every case no less than 7 affirmative votes are necessary. The Executive Director, Board members who participated in the investigation of the complaint under consideration, the members of the hearing panel, and any Board members who are otherwise biased, may not participate in the deliberations of the Board concerning a complaint investigated by the Executive Director.
(g) Written decision and order. Upon reaching its conclusion of law and determining the appropriate disciplinary action, if any, the Board shall issue a written opinion and order in accordance with §
10128 of Title 29. The opinion and order must be served in person upon the person complained about.(a) If the Board determines pursuant to this subchapter that a fine and/or the restriction, suspension, or revocation of a certificate to practice medicine and/or any other disciplinary action is warranted, an order describing the disciplinary action must be served personally or sent by certified mail to the certificate holder. In addition, copies of the order must be filed in the office of the Board, in the Division of Public Health of the Department of Health and Social Services, and with the Director of Revenue. Upon receipt of an order of the Board revoking or suspending a certificate to practice medicine, the Director of Revenue shall forthwith revoke or suspend the occupational license to practice medicine issued by the Director and comply with any terms of the order applicable to the Division of Revenue.
(b) The Director of Revenue may not issue an occupational license or a license renewal to any person whose certificate to practice medicine has been revoked or suspended by the Board, unless issuance is in conformity with the terms and conditions of the order of revocation or suspension, or in conformity with any order of reinstatement issued by the Board, or in accordance with a final judgment in any proceeding for review instituted under this chapter.
(a) A person against whom a decision of the Board has been rendered may appeal the decision to the Superior Court in the county in which the person was practicing medicine at the time of the offense.
(b) An appeal pursuant to this section must be filed within 30 days after the day the written decision and order of the Board is issued.
(c) An appeal pursuant to this section is on the record of the Board hearing, without a trial de novo.
(d) A Board action revoking, suspending, or otherwise restricting a person's certificate to practice medicine may not be stayed upon appeal unless so ordered by the Superior Court.
(e) A person whose certificate to practice medicine has been revoked, suspended, or otherwise restricted may, after the expiration of 90 days from the decision of the Superior Court, or of the Supreme Court if the decision of the Superior Court is appealed, or after 90 days from the decision and order of the Board if no appeal is taken, apply to the Board to have the certificate reinstated or reissued for good cause shown.
Release of records of the Board is governed by the provisions of the Freedom of Information Act,
Chapter 100 of Title 29.(a) If the Board receives a formal or informal complaint concerning the activity of a person certified to practice medicine and the Board members reasonably believe that the activity presents a clear and immediate danger to the public health, the Board may issue an order temporarily suspending the person's certificate to practice medicine pending a hearing. An order temporarily suspending a certificate to practice medicine may not be issued by the Board unless the person or the person's attorney received at least 24 hours' written or oral notice prior to the temporary suspension so that the person or the person's attorney can be heard in opposition to the proposed suspension, and unless at least 8 members of the Board vote in favor of the temporary suspension. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the person requests a continuance of the hearing date. If the suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered.
(b) A person whose certificate to practice medicine has been temporarily suspended pursuant to this section must be notified of the temporary suspension immediately and in writing. Notification consists of a copy of the complaint and the order of temporary suspension pending a hearing personally served upon the person or sent by certified mail, return receipt requested, to the person's last known address.
(c) A person whose certificate to practice medicine has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision of the Board to temporarily suspend his or her certificate to practice medicine.
(d) As soon as possible after the issuance of an order temporarily suspending a person's certificate to practice medicine pending a hearing, the Board shall appoint a 3-member hearing panel. After notice to the person pursuant to subsection (b) of this section, the hearing panel shall convene within 60 days of the date of the issuance of the order of temporary suspension in order to consider the evidence regarding the matters alleged in the complaint. If the person requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Board. The 3-member panel shall proceed to a hearing in accordance with the procedures set forth in §
1734 of this subchapter and shall render a decision within 30 days of the hearing.(e) In addition to making findings of fact, the hearing panel shall also determine whether the facts found by it constitute a clear and immediate danger to public health. If the hearing panel determines that the facts found constitute a clear and immediate danger to public health, the order of temporary suspension must remain in effect until the full Board, pursuant to §
1734(f) of this subchapter, deliberates and reaches conclusions of law based upon the findings of fact made by the hearing panel. An order of temporary suspension may not remain in effect for longer than 60 days from the date of the decision rendered by the hearing panel unless the suspended person requests an extension of the order pending a final decision of the Board. Upon the final decision of the Board, an order of temporary suspension is vacated as a matter of law and is replaced by the disciplinary action, if any, ordered by the Board.Pursuant to the State Early Opt-in provision of 42 U.S.C. §11111(c)(2), the protection from liability set forth in subsection (a) of §11111 of Title 42 of the United States Code applies to professional review actions, as defined in 42 U.S.C. §11151, commenced on or after September 10, 1988.
(a) An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death pursuant to this section must be made in accordance with accepted medical standards.
(b) A determination of death pursuant to this section may be made by a person certified to practice medicine under this chapter by either:
(1) personal examination of the individual believed to be dead, or
(2) the use of information provided by an EMT-P (paramedic) using telemetric or transtelephonic means in accordance with protocols approved by the Board of Medical Practice, following recommendations of the Board's Advanced Life Support Committee.
(c) This section must be applied and construed to effectuate its general purpose to make the law uniform with respect to the determination of death among states enacting it.
(d) This section may be cited as the Uniform Determination of Death Act.
(a) A person certified to practice medicine under this chapter who is discontinuing a medical-practice business in this State or who is leaving this State and who is not transferring patient records to another person certified to practice medicine shall notify his or her patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practices. The notice must be published at least 3 times over a 3-month period in advance of discontinuing the business or leaving the State and must explain how a patient can procure his or her patient records. All patients of record who have not requested their records 30 days before the person discontinues the medical-practice business or leaves the State must be notified by first class mail by the person to permit his or her patients to procure their records. Any patient records that have not been procured within 7 years after the person discontinues business or leaves the State may be permanently disposed of in a manner that ensures confidentiality of the records.
(b) If a person certified to practice medicine under this chapter dies and has not transferred patient records to another person certified to practice medicine and has not made provisions for a transfer of patient records to occur upon the person's death, a personal representative of the person's estate shall notify the person's patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practiced. The notice must be published at least 3 times over a 3-month period after the person's death and must explain how a patient can procure his or her patient records. All patients of record who have not requested their records 30 days after such publication must be notified by first class mail by the personal representative of the estate to permit the patients to procure their records. Any patient records that have not been procured within 7 years after the death of the person may be permanently disposed of in a manner that ensures confidentiality of the records.
(c) If a patient changes from the care of one person certified to practice medicine to another person certified to practice medicine, the former person shall transfer the records of the patient to the current person upon the request of either the current person or the patient. The former person may charge for the reasonable expenses of copying the patient's records, not to exceed $25. Alternatively, if the patient and current person agree, the former person may forward to the current person a summary of the patient's record, in lieu of transferring the entire record, at no charge to the patient. If a patient changes care from one person certified to practice medicine to another and fails to notify the former person, or leaves the care of the former person for a period of 7 years from the last entry date on the patient's record and fails to notify the former person, or fails to request the transfer of records to the current person, then the former person shall maintain the patient's records for a period of 7 years from the last entry date in the patient's medical record, after which time the records may be permanently disposed of in a manner that insures confidentiality of the records.
(d) This section does not apply to a person certified to practice medicine who has seen or treated a patient on referral from another person certified to practice medicine and who has provided a record of the diagnosis and/or treatment to the other person, or to a hospital or an agency which has provided treatment for the patient.
(e) A person certified to practice medicine or the personal representative of the estate of such person who disposes of patient records in accordance with the provisions of this section is not liable for any direct or indirect loss suffered as a result of the disposal of a patient's records.
(a) Every person certified to practice medicine who attends to or treats a stab wound; poisoning by other than accidental means; or a bullet wound, gunshot wound, powder burn, or other injury or condition arising from or caused by the discharge of a gun, pistol, or other firearm, or when such injury or condition is treated in a hospital, sanitarium, or other institution, the person, manager, superintendent, or other individual in charge shall report the injury or condition as soon as possible to the appropriate police authority where the individual in charge, hospital, sanitarium, or institution is located. This section does not apply to wounds, burns, poisonings, or injuries or conditions received by a member of the armed forces of the United States or the State while engaged in the actual performance of duty. A person who fails to make a report required by this section shall be fined not less than $25 nor more than $100.
(b) A person certified to practice medicine or other individual who makes a report pursuant to this section is immune from liability for the report, provided that the person or other individual acted in good faith and without gross or wanton negligence.
A person certified to practice medicine who attends to or treats an individual who is subject to loss of consciousness due to a disease of the central nervous system shall report within 1 week to the Division of Motor Vehicles the name, age, and address of the individual unless the individual's infirmity is under sufficient control to permit him or her to operate a motor vehicle with safety to persons and property.
A report filed pursuant to this section must be kept confidential and may be used only for the purpose of determining the eligibility of an individual to operate a motor vehicle on the highways of this State.
A person certified to practice medicine who fails to make a report required by this section shall be fined not less than $25 nor more than $100 for each report that the person fails to make.
The provisions of this chapter may not be construed to interfere with the operation of the provisions of
Title 29 relating to State licenses and taxes.(a) A person who practices or attempts to practice medicine contrary to the provisions of this chapter is guilty of a class F felony and shall be fined not less than $1000 nor more than $5000 or imprisoned not more than 3 years, or both.
(b) A person who terminates or attempts to terminate or assists in the termination of a human pregnancy otherwise than by birth, except in accordance with Subchapter X of this chapter, is guilty of a class C felony and shall be fined not more than $5,000 and imprisoned not less than 2 nor more than 10 years.
(c) The Attorney General of this State or a deputy Attorney General shall enforce this chapter.
A person certified to practice medicine under this chapter who, in good faith and without gross or wanton negligence, renders emergency care at the scene of an emergency is not liable for civil damages as a result of any acts or omissions in rendering the emergency care.
(a) The Board of Medical Practice and the Medical Society of Delaware, their members, and the members of any committees appointed by the Board or Society; the members of any committee appointed by a certified health maintenance organization; members of hospital and osteopathic medical society committees; members of a professional standards review organization established under federal law; and members of other peer review committees or organizations whose function is the review of medical records, medical care, and physicians' work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits, are immune from, claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act, omission, proceeding, decision, or determination undertaken or performed, or from any recommendation made so long as the person acted in good faith and without gross or wanton negligence in carrying out the responsibilities, authority, duties, powers, and privileges of the offices conferred by law upon them under this chapter, with good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.
(b) Unless otherwise provided by this chapter, the records and proceedings of committees and organizations described in subsection (a) of this section are confidential and may be used by those committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization. The records and proceedings are not public records and are not available for court subpoena, nor are they subject to discovery. A person in attendance at a meeting of any such committee or organization is not required to testify as to what transpired at the meeting. A person certified to practice medicine, or a hospital, organization, or institution furnishing, in good faith and without gross or wanton negligence, information, data, reports, or records to such a committee or organization or a member thereof with respect to any patient examined or treated by a person certified to practice medicine or examined, treated, or confined in the hospital or institution is not, by reason of furnishing such information, data, reports, or records, liable in damages to any person or subject to any other recourse, civil or criminal. Nothing in this subsection prevents the Board from providing information, data, reports, or records in its possession to a medical or osteopathic licensing board of any other state or territory of the United States regarding a person who is certified to practice medicine under this chapter, or who has been certified under this chapter or who has attempted to be certified under this chapter. The Board and its members and employees are not liable in any cause of action arising out of the providing of information, data, reports, or records provided that the person has acted in good faith and without gross or wanton negligence. This section may not be construed to create a privilege or right to refuse to honor a subpoena issued by or on behalf of the Board of Medical Practice pursuant to §
1731A(d) of this title.A person certified to practice medicine who bills patients or third party payors for individual tests or test series administered by any private or hospital clinical laboratory shall disclose on the bill the name of the laboratory, the amount or amounts charged by the laboratory for individual tests or test series and the amount of any procurement or processing charge made by the person certified to practice medicine for each test or test series. A test or test series performed at a state laboratory or at another laboratory at which no charge is made must be noted on the bill.
(a) A person certified to practice medicine who treats, advises, or counsels pregnant women shall post warnings and give written and verbal warnings to all pregnant women regarding possible problems, complications, and injuries to themselves and/or to the fetus from the consumption or use of alcohol or cocaine, marijuana, heroin, and other narcotics during pregnancy.
(b) A person certified to practice medicine may designate a licensed nurse to give the warnings required by this section.
(c) The Director of the Division of Public Health shall prescribe the form and content of the warnings required pursuant to this section.
Subchapter VI. Physician Assistants.
(a) As used in this section:
(1) 'physician assistant' or 'PA' means an individual who (i) has graduated from a physician or surgeon assistant program which is accredited by the Committee on Allied Health Education and Accreditation (CAHEA) of the American Medical Association (AMA), or a successor agency acceptable to and approved by the Board; (ii) has passed a national certifying examination acceptable to the Physician Assistant Regulatory Council of the Board and approved by the full Board; and (iii) is registered under this chapter to practice as a physician assistant; and has maintained continuing medical education (CME) credits as required by rules and regulations developed under this chapter.
(2) 'supervision of physician assistants' means the ability of the supervising physician to provide or exercise control and direction over the services of a physician assistant. The constant physical presence of the supervising physician is not required in the supervision of a physician assistant, provided that the supervising physician is readily accessible by some form of electronic communication and that the supervising physician can be physically present with the physician assistant within 30 minutes, if necessary.
(3) The phrase 'delegated medical acts' means the performance of healthcare activities and duties by a physician assistant under the delegation and control of a supervising physician.
§1771. Physician's duties in supervision of a physician assistant.
(a) A physician who delegates medical responsibility to a physician assistant is responsible for the physician assistant's medical activities and must provide adequate supervision.
(b) A supervising physician may not delegate a function to a physician assistant who, by statute or professional regulation, is prohibited from performing the function.
(c) A supervising physician may not be involved in patient care in name only.
(d) A supervising physician may not delegate responsibilities to a physician assistant that exceed the physician's specialty.
(e) A supervising physician may not supervise more than 2 physician assistants, unless a regulation of the Board increases or decreases the number.
(f) A physician who supervises a physician assistant in violation of the provisions of this subchapter or of regulations adopted pursuant to this subchapter is subject to disciplinary action by the Board of Medical Practice for permitting the unauthorized practice of medicine.
(g) A supervising physician who has his or her patients followed by a physician assistant shall reevaluate at least every 3 months every patient receiving controlled substances and at least every 6 months every patient receiving other prescription medications or therapeutics.
(h) Prescription and nonprescription medications may be initiated by standing orders if these standing orders have been approved by the responsible delegating physician and by the Physician Assistant Regulatory Council.
(i) Hospitals, clinics, and other healthcare facilities may employ physician assistants; however, no more than 2 physician assistants may be employed and supervised for each physician practicing in the same facility unless a regulation of the Board increases or decreases the number. Physician assistants employed by healthcare facilities must work under protocols approved by the Board.
§1772. Prohibited acts by a physician assistant.
(a) A physician assistant may not maintain or manage an office separate and apart from the office of his or her supervising physician.
(b) A physician assistant may not engage in diagnosis, prescribe or dispense legend drugs or therapeutics, practice medicine or surgery or refractions, or pronounce a patient dead in any setting independent of the supervision of a physician who is licensed to practice medicine.
(c) A physician assistant may not delegate an assigned task to another individual.
(d) A physician assistant may not independently bill a patient for services rendered at the request of the supervising physician.
(e) Nothing in this chapter may be construed to authorize a physician assistant to practice independent of a supervising physician.
(f) Except as otherwise provided in this chapter or in a medical emergency, a physician assistant may not perform any medical act which has not been delegated by a supervising physician.
(g) A physician assistant may not practice as a member of any other health profession regulated under this title unless the physician assistant is authorized to practice the other profession.
§1773. The Board in conjunction with the Physician Assistant Regulatory Council established under §1713(a)(16)B. of this chapter shall:
(a) Adopt regulations regarding activities which may be undertaken by physician assistants and register all physician assistants with the Board.
(b) Define the scope of practice of physician assistants including:
(1) issuance of license to physician assistant to allow:
a. performance of delegated medical acts within the education and experience of the physician assistant; and
b. performance of services customary to the practice of the supervising physician(s);
(2) delegated medical services provided by a physician assistant to include but not limited to:
a. performance of complete histories and physical examinations;
b. recording of patient progress notes in an outpatient setting;
c. relaying, transcribing, or executing specific diagnostic or therapeutic orders so long as all such notes, orders and other writings shall be reviewed and countersigned by the supervising physician within 24 hours, barring extraordinary events or circumstances;
d. delegated acts of diagnosis and prescription of therapeutic drugs and treatments within the scope of physician assistant practice as defined in the regulations promulgated by the Physician Assistant Regulatory Council and approved by the Board of Medical Practice;
e. prescriptive authority for therapeutic drugs and treatments within the scope of physician assistant practice as defined in the regulations promulgated by the Physician Assistant Regulatory Council and approved by the Board of Medical Practice. The physician assistant's prescriptive authority and authority to make independent medical diagnoses and treatment decisions are subject to biennial renewal upon application to the Physician Assistant Regulatory Council.
(c) Suspend or revoke the registration of a physician assistant or otherwise discipline a physician assistant for engaging in unprofessional conduct as defined in §
1731(b) of this title, or for the inability to render medical services with reasonable skill or safety to patients because of mental illness or mental incompetence, physical illness, or excessive use of drugs, including alcohol, or for representing himself or herself as a physician or for knowingly allowing himself or herself to be represented as a physician. Disciplinary action undertaken against a physician assistant must be in accordance with the procedures, including appeal procedures, applicable to disciplinary actions against physicians pursuant to Subchapter V of this chapter.§1774. (a) Notwithstanding any provision of this subchapter to the contrary, the Board may grant a temporary registration to an individual who has graduated from a physician or surgeon assistant program which has been accredited by the Committee on Allied Health Education and Accreditation (CAHEA) of the American Medical Association (AMA) and who otherwise meets the qualifications for registration but who has not yet taken a national certifying examination; provided, that the individual is registered to take and takes the next scheduled national certifying examination. A temporary registration granted by the Board pursuant to this subsection is valid until the results of the examination are available from the certifying agency. If the individual fails to pass the national certifying examination, the temporary registration granted by the Board pursuant to this subsection must be immediately rescinded until the individual successfully qualifies for registration pursuant to this subchapter.
(b) An individual who is temporarily registered pursuant to this section may not have a prescriptive practice.
(a) As used in this section:
(1) 'respiratory care practitioner' or 'RCP' means an individual who practices respiratory care.
(2) 'respiratory care' means the allied health profession, under the direction of a person certified to practice medicine, which is responsible for direct and indirect services in the treatment, management, diagnostic testing, control, and care of patients with deficiencies and abnormalities associated with the cardiopulmonary system. Respiratory care includes inhalation therapy and respiratory therapy.
(b) A respiratory care practitioner works under the general supervision of a person certified to practice medicine, whether by direct observation and monitoring, by protocols approved by the person, or by orders written or verbally given by the person. A respiratory care practitioner may evaluate patients and make decisions within parameters defined by the person or by the Board of Medical Practice. The work performed by a respiratory care practitioner includes, but is not limited to:
(1) collecting samples of blood, secretions, gases, and body fluids for respiratory evaluations;
(2) measuring cardiorespiratory volumes, flows, and pressures;
(3) administering pharmacological agents, aerosols, and medical gases;
(4) inserting and maintaining airways, natural or artificial, for the flow of respiratory gases;
(5) controlling the environment and ventilatory support systems such as hyperbaric chambers and ventilators;
(6) resuscitating individuals with cardiorespiratory failure;
(7) maintaining bronchopulmonary hygiene;
(8) researching protocols in respiratory disorders;
(9) studying pulmonary function.
(c) Nothing in this subchapter is intended to limit, preclude, or otherwise interfere with the professional activities of other individuals and healthcare providers formally trained and licensed by the State.
(d) An individual who has passed an examination that includes the subject matter of 1 or more of the professional activities included in subsection (b) of this section may not be prohibited from performing those professional activities passed in the examination, provided that the testing body that administered the examination is approved by the Board.
(e) (1) The Respiratory Care Advisory Council (Council) consists of 7 members, one of whom is a physician member of the Board of Medical Practice. The remaining council members are individuals fully trained in respiratory care who have been employed primarily in the practice of respiratory care for at least 2 of the 3 years immediately prior to appointment.
(2) Each Council member is appointed by the Board for a term of 3 years, and may succeed himself or herself for 1 additional 3-year term; provided, however, that if a member is initially appointed to fill a vacancy, the member may succeed himself or herself for only 1 additional 3-year term. A person appointed to fill a vacancy on the Council is entitled to hold office for the remainder of the unexpired term of the former member. Each term of office expires on the date specified in the appointment; however, the Council member remains eligible to participate in Council proceedings until replaced by the Board. A person who has never served on the Council may be appointed to the Council for 2 consecutive terms, but the person is thereafter ineligible for appointment to the Council except as hereinafter provided. A person who has been twice appointed to the Council or who has served on the Board for 6 years within any 9-year period may not again be appointed to the Council until an interim period of at least 1 year has expired since the person last served. A member serving on the Council may not be an elected officer or a member of the board of directors of any professional association of respiratory care practitioners.
(3) The Council shall promulgate rules and regulations governing the practice of respiratory care, after public hearing and subject to the approval of the Board of Medical Practice. The Board must approve or reject within 60 days proposed rules or regulations submitted to it by the Council. If the Board fails to approve or reject the proposed rules or regulations within 60 days, the proposed rules or regulations are deemed to be approved by the Board.
(4) The Council shall meet quarterly, and at such other times as license applications are pending. The Council shall, from time to time, present to the Board the names of individuals qualified to be licensed or qualified to receive temporary licenses, and shall recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations.
(f) Licensure. The requirements for licensure as a respiratory care practitioner are:
(1) The applicant must successfully complete a national qualifying examination with a passing grade that leads to a credential conferred by the National Board for Respiratory Care, Inc. (NBRC), or its successor organization, as a certified respiratory therapist (CRT) and/or as a registered respiratory therapist (RRT); or
(2) The applicant must possess a current license in a state which has licensing requirements equal to or exceeding the requirements of this subsection, and there may not be any outstanding or unresolved complaints pending against the applicant;
(3) The applicant may not have been assessed any administrative penalties regarding his or her practice of respiratory care, including but not limited to fines, formal reprimands, license suspension or revocation (except for license suspension or revocation for nonpayment of license renewal fees), and probationary limitations, and may not have entered into a consent agreement which contains conditions placed by a Board on his or her professional conduct or practice, including the voluntary surrender of his or her license while under investigation for misconduct. However, the Board may, after a hearing, waive the assessment of an administrative penalty if the penalty prevents the issuance of a license.
(4) The applicant may not have an impairment related to the current use of drugs or alcohol which substantially impairs the practice of respiratory care in a manner inconsistent with the safety of the public;
(5) The applicant may not have been convicted of a felony;
(6) The applicant may not have a criminal conviction record or a pending criminal charge relating to an offense, the circumstances of which substantially relate to or affect the practice of respiratory care. An applicant who has a criminal conviction record or a pending criminal charge must arrange for information about the record or charge to be provided directly to the Board by the appropriate authorities in sufficient specificity to enable the Board to make a determination of whether the record or charge is substantially related to or affects the practice of respiratory care.
(g) License denial. If it appears to the Board that an applicant has been intentionally fraudulent or that an applicant has intentionally submitted, or intentionally caused to be submitted, false information as part of the application process, the Board may not issue a license to the applicant and must report the incident of fraud or submitting false information to the Office of the Attorney General for further action.
(h) (1) Temporary license. The Board of Medical Practice may issue a temporary license to a person recommended by the Council who has completed a Board-recognized or Board-approved course of study in respiratory care and who is waiting to take the next scheduled licensing examination. A temporary license issued under this paragraph expires 90 days after the examination has been administered or upon the availability of the examination results.
(2) The Board of Medical Practice, with the concurrence of 1 officer of the Respiratory Care Advisory Council may issue a temporary permit to an applicant for licensure who has presented a completed application to the Board. A temporary permit issued under this paragraph is valid for a period of not more than 90 days and may not be renewed. Only 1 temporary permit may be issued under this paragraph.
(i) License suspension, revocation, or nonrenewal.
The Advisory Council, after appropriate notice and hearing, may recommend to the Board of Medical Practice that the Board revoke, suspend, or refuse to issue a license, or place the licensee on probation, or otherwise reprimand a licensee found guilty of unprofessional conduct. Unprofessional conduct includes fraud, deceit, incompetence, negligence, dishonesty, or behavior in the licensee's professional activity which is likely to endanger the public health, safety, or welfare, or the inability to render respiratory care services with reasonable skill or safety to patients because of mental illness or mental incompetence, physical illness, or the excessive use of drugs, including alcohol. Disciplinary action taken against a respiratory care practitioner must be in accordance with the procedures for disciplinary actions against physicians, including appeals, as set forth in Subchapter V of this chapter. However, the full Council will be the disciplinary body which hears and determines complaints.
(j) The Division of Professional Regulation shall establish reasonable fees for licensing respiratory care practitioners and for biennial license renewal. A licensee, when renewing a license, shall provide documentation of continuing education related to respiratory care pursuant to the continuing education requirements for respiratory care practitioners established by the Advisory Council.
(k) Prohibited acts; penalties; enforcement.
(1) A person may not practice respiratory care in this State or represent that he or she is a respiratory care practitioner unless the person is licensed under this subchapter, except as otherwise provided in this subchapter.
(2) A person who, contrary to the provisions of this subchapter, practices or attempts to practice respiratory care within the State or represents that he or she is a respiratory care practitioner shall be fined not less than $500 nor more than $2,000 or imprisoned not more than 1 year, or both.
(3) The Office of the Attorney General is charged with the enforcement of this subchapter.
§1776. Emergency medical technicians (EMTs).
(a) As used in this section:
(1) 'emergency medical technician' or 'EMT' means an individual who has successfully completed a course of study which meets the objectives of the national standard curriculum for EMTs; who has met additional requirements for licensure as an EMT pursuant to regulations established by the Board of Medical Practice; and who is licensed by the Board as an emergency medical technician;
(2) 'emergency medical technician-cardiac' or 'EMT-C' or 'cardiac rescue technician' or 'CRT' means an individual who has successfully completed a course of study which meets the objectives of the national standard curriculum for EMT-Cs; who has met the additional requirements for licensure as an EMT-C pursuant to regulations established by the Board of Medical Practice; and who is licensed by the Board as an emergency medical technician-cardiac;
(3) 'emergency medical technician-paramedic' or 'EMT-P' means an individual who has successfully completed a course of study which meets the objectives of the national standard curriculum for EMT-Ps; who has met the additional requirements for licensure as an EMT-P pursuant to regulations established by the Board of Medical Practice; who acts under the direct control or radio control of a physician or physician surrogate; and who is licensed by the Board as an emergency medical technician-paramedic;
(b) Licensure.
(1) A person seeking licensure as an EMT, an EMT-C, or an EMT-P shall apply to the Board using forms prescribed by the Board and shall submit evidence, verified by oath or affirmation and satisfactory to the Board, that the applicant has successfully completed a course of study which meets the objectives of the national standards curriculum for an EMT, an EMT-C, or an EMT-P; that the applicant has had clinical and field experience as part of the course of study; and that the applicant has met the additional requirements for licensure pursuant to regulations established by the Board.
(2) An applicant shall pay the application fee set by the Division of Professional Regulation.
(3) An applicant shall arrange for his or her entire criminal history record to be submitted to the Board by both the State Bureau of Identification (SBI) and the Federal Bureau of Investigation (FBI). If the applicant does not have a criminal history record with an agency, the applicant shall arrange for a statement to that effect to be submitted to the Board by the agency. The SBI is the intermediary for the purpose of this paragraph and the Board or its designee is the screening point for the receipt of the federal criminal history record or statement that the applicant has no record. The applicant must pay any fee required to obtain his or her records.
(c) Fees. The Division of Professional Regulation shall establish reasonable fees for initial licensing of EMTs, EMT-Cs, and EMT-Ps, and for renewing the license on a biennial basis.
(d) Rules and regulations. The Board may adopt rules and regulations that it considers necessary to supplement the provisions of this section. The regulations must specify medical services which EMTs, EMT-Cs, and EMT-Ps may and may not perform; the specific medical services which require and do not require supervision; and the type of supervision required.
(e) Prohibited acts. A person may not represent himself or herself as being an EMT, an EMT-C, or an EMT-P, or use or assume a title or description conveying or tending to convey the impression that he or she is a certified EMT, EMT-C, or EMT-P unless the person is licensed in good standing as an EMT, an EMT-C, or an EMT-P.
(f) The penalty for a violation of this section is, for a first conviction, a fine of not less than $500 nor more than $1,000, and for a second or subsequent conviction, a fine of not less than $1,000 nor more than $2,000. Justice of the Peace Courts have jurisdiction over violations of this section.
(g) The Board may suspend or revoke the license of an EMT, an EMT-C, or an EMT-P or impose other disciplinary sanctions upon an EMT, EMT-C, or EMT-P for engaging in unprofessional conduct as defined in §1731(b) of this chapter or for the inability to render medical services with reasonable skill or safety because of mental illness or mental incompetence, physical illness, or excessive use of drugs, including alcohol. Any disciplinary action initiated against an EMT, an EMT-C, or an EMT-P must be in accordance with the procedures, including appeals, applicable to disciplinary actions against physicians set forth in Subchapter V of this chapter.
(h) The Advanced Life Support Standards Committee created under 16 Del. C. §6801(b) shall assist the Board of Medical Practice in establishing rules and regulations relating to the licensing and regulation of EMTs, EMT-Cs, and EMT-Ps.
(i) EMTs, EMT-Cs, and EMT-Ps are not civilly liable for any act or omission related to their authorized professional healthcare activities so long as the act or omission is not caused by their bad faith or gross or wanton negligence.
This subchapter may be cited as the Parental Notice of Abortion Act.
(a) The General Assembly of the State finds as fact that:
(1) immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences;
(2) the physical, emotional, and psychological consequences of teen pregnancy are serious and can be lasting, particularly when the patient is immature;
(3) the capacity to become pregnant and the capacity for mature judgment concerning how to choose among the alternatives for managing that pregnancy are not necessarily related;
(4) parents ordinarily possess information essential to enable a physician to exercise the physician's best medical judgment concerning the child;
(5) parents who are aware that their minor daughter has had an abortion can ensure that she receives adequate medical attention after the abortion;
(6) parental consultation is usually desirable and in the best interest of their minor children, and parents ordinarily act in the best interest of their minor children; and
(7) parental involvement legislation enacted in other states has been shown to have significant impact in reducing abortion, birth, and pregnancy rates among minors.
(b) It is the intent of the General Assembly of the State in enacting this parental notice provision to further the important and compelling State interests of:
(1) protecting minors against their own immaturity;
(2) fostering the family structure and preserving it as a viable social unit;
(3) protecting the rights of parents to rear children who are members of their household; and
(4) protecting the health and safety of minor children.
For purposes of this subchapter, the following definitions apply unless context clearly indicates otherwise.
(a) 'Minor' means a female person under the age of 16.
(b) 'Emancipated minor' means a minor female who is or has been married or has, by court order or otherwise, been freed from the care, custody, and control of her parents or any other legal guardian.
(c) 'Abortion' means the use of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
(d) 'Medical emergency' means a condition which, on the basis of the physician or other medically authorized person's good faith clinical judgment, so complicates the medical condition of a pregnant minor as to necessitate the immediate termination of her pregnancy to avert her death or for which delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(e) 'Coercion' means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter.
(f) 'Licensed mental health professional' means a person licensed under the Division of Professional Regulation of the State as a:
(i) psychiatrist;
(ii) psychologist; or
(iii) professional counselor of mental health.
(a) A physician or other medically authorized person may not perform an abortion upon an unemancipated minor unless the physician or other medically authorized person, or an agent of the physician or of the other medically authorized person, has given at least 24 hours actual notice to one or both parents (either custodial or non-custodial), a grandparent, a licensed mental health professional (who may not be an employee or under contract to an abortion provider except employees or contractors of an acute care hospital), or to the legal guardian of the pregnant minor of the intention to perform the abortion, or unless the physician or other medically authorized person, or an agent of the physician or of the other medically authorized person, has received a written statement or oral communication from another physician or another medically authorized person, hereinafter called the "referring physician or medically authorized person," certifying that the referring physician or medically authorized person has given such notice. If the person contacted pursuant to this subsection is not the parent or the legal guardian of the pregnant minor, the person so contacted must explain to the minor the options available to her, including adoption, abortion, and full-term pregnancy, and must agree that it is in the best interest of the minor that a waiver of the parental notice requirement be granted. Any licensed mental health professional so contacted shall certify that the professional has performed an assessment of the specific factors and circumstances of the pregnant minor being assessed, including but not limited to the age and family circumstances of the minor and the long-term and short-term consequences to the minor of termination or continuation of the pregnancy.
(b) A pregnant minor may petition the Family Court ("Court") of any county of this State for a waiver of the notice requirement of this section pursuant to the procedures of §
1784 of this subchapter. A physician or other medically authorized person who has received a copy of a court order granting a waiver application under §1784 of this subchapter may not, at any time, give notice of the minor's abortion or intent to have an abortion to any person without the minor's written permission.(c) A physician or other medically authorized person may not charge a referral fee to a person authorized under this section to receive notice; nor may a person authorized under this section to receive notice charge a referral fee to a physician or other medically authorized person.
(d) Nothing in this section affects the obligations of a person pursuant to other provisions of this Code to report instances of child abuse to appropriate government agencies.
(a) The Court shall consider waiving the notice requirement of §
1783 of this subchapter upon the proper application of a pregnant minor. The application must be in writing, signed by the minor, and verified by her oath or affirmation before a person authorized to perform notarial acts. The application must include:(1) the minor's name and residence address;
(2) a mailing address where the Court's order may be sent and a telephone number where messages for the minor may be left;
(3) a statement that the minor is pregnant;
(4) a statement that the minor desires to obtain an abortion;
(5) the name and relationship to the minor of each person for whom the notice requirement is sought to be waived; and
(6) the particular facts and circumstances which indicate that the minor is mature and well-informed enough to make the abortion decision on her own and/or that it is in the best interest of the minor that notification pursuant to §
(b) The Court, by a judge, shall grant the written application for a waiver if the facts and circumstances recited in the application establish that the minor is mature and well-informed enough to make the abortion decision on her own and/or that it is in the best interest of the minor that notification pursuant to §
1783 of this subchapter be waived. The Court shall presume that married parents not separated and married grandparents not separated are complete confidants, such that, on application to waive the notice requirement as to either, grounds to waive the notice requirement as to one parent or one grandparent constitute grounds to waive the notice requirement as to the spouse thereof.(c) If the Court fails to rule within 5 calendar days of the time of the filing of the written application, the application is deemed granted; in which case, on the 6th day, the Court shall issue an order stating that the application is deemed granted.
(d) On the day that an order is issued pursuant to this subchapter, the Court shall mail 3 copies of the order to the mailing address identified in the application pursuant to subsection (a)(2) of this section, shall attempt to notify the minor by telephone. If so requested, the Court shall make copies of the order available at Court chambers for the minor.
(e) An expedited appeal to the Supreme Court is available to any minor whose application to waive notice is denied by a judge of the Family Court. Notice of intent to appeal must be given within 2 days of the receipt of actual notice of the denial of the application. The Supreme Court shall advise the minor that she has a right to court-appointed counsel and shall provide her with such counsel upon request, at no cost to the minor. The Supreme Court shall expedite proceedings to the extent necessary and appropriate under the circumstances. The Supreme Court shall notify the minor of its decision consistent with the procedure in subsection (d) of this section.
(f) A court may not assess any fee or cost upon a minor for any proceeding under this section.
(g) Each court shall provide by rule for the confidentiality of proceedings under this subchapter, but shall continue to initiate investigations into any allegations of past abuse where otherwise appropriate, without disclosing that an application under this subchapter was the source of the information prompting the investigation.
The following is a sufficient form of affidavit and application for the waiver of notice requirement under this subchapter:
IN THE FAMILY COURT OF THE STATE OF DELAWARE
IN AND FOR (NAME OF COUNTY) COUNTY
IN THE MATTER OF: AFFIDAVIT AND
APPLICATION FOR
(NAME OF MINOR APPLICANT), WAIVER OF NOTICE
OF
ABORTION
STATE OF DELAWARE
SS.
________ COUNTY
BE IT REMEMBERED that on this ________ day of ________ , A.D. ________ before me, (name of person authorized to perform notarial acts), personally appeared (name of minor applicant/affiant), who, being by me duly sworn or affirmed, did depose and say:
(1) that the minor applicant resides at (minor's address);
(2) that the Court may send its order to (mailing address designated by minor applicant) and leave telephone messages for the minor applicant at (phone number designated by minor applicant);
(3) that the minor applicant is pregnant;
(4) that the minor applicant desires to obtain an abortion;
(5) that the minor applicant desires that the Court waive the notice requirement of §
(6) that the minor applicant believes that she is mature and well-informed enough to make the abortion decision on her own and/or it would be in her best interest that a waiver of notice be granted because (state reasons why the minor is mature and well-informed enough and/or why waiver of notice is in the minor's best interest based upon the minor's age and family circumstances and the long-term and short-term consequences to the minor of termination or continuation of the pregnancy).
WHEREFORE, this minor applicant/affiant intends to submit this affidavit and application for waiver of notice of abortion to the Family Court, and to pray that an order be issued waiving the notification requirement of §
1783 of Title 24 as to the following persons (identify each such person):___________________________________________________________________
Minor applicant/affiant
SWORN TO or affirmed and subscribed before me by the minor applicant/affiant this ________ day of ________ , A.D. ________ .
___________________________________________________________________
(Notary)
A parent, guardian, or other person may not coerce a minor to terminate or to continue a pregnancy. A minor who is threatened with such coercion may apply to a court of competent jurisdiction for relief. The court shall provide the minor with counsel, give the matter expedited consideration, and grant such relief as may be necessary to prevent such coercion. If a minor is denied the financial support of her parents or legal guardian by reason of her refusal to terminate or to continue a pregnancy, she is considered emancipated for purposes of eligibility for assistance benefits.
The requirements of §
1783, §1784, and §1786 of this subchapter do not apply when, in the best medical judgment of the physician or other medically authorized person, based on the facts of the case, a medical emergency exists that so complicates the pregnancy as to require the immediate termination of the pregnancy.The Division of Child Mental Health Services of the Department of Services for Children, Youth and Their Families shall offer counseling and support to any minor who is pregnant and is considering filing or has filed an application for waiver of notification under this subchapter, if the minor requests such services. Notwithstanding any contrary statute, no notification of the request for or provision of such services to the minor may be provided to any person, nor shall the consent of any person be required before providing such services to the minor.
(a) A person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion has been performed is an unemancipated minor, and who intentionally or knowingly violates any requirement of this subchapter, is guilty of a class A misdemeanor.
(b) The Superior Court has exclusive jurisdiction of violations of this section.
In a criminal prosecution pursuant to §
1789 of this subchapter, the State shall prove beyond a reasonable doubt that the physician or other medically authorized person who performed the abortion did not have a good faith belief that actual notice was given by the physician or other medically authorized person, the physician's or other medically authorized person's agent, or the referring physician or another medically authorized person to a person required to receive notice pursuant to §1783(a) of this subchapter. In a civil case, the plaintiff must prove the absence of such a good faith belief by clear and convincing evidence.Failure to give notice pursuant to the requirements of this subchapter is prima facie evidence of interference with family relations in an appropriate civil action. The law of this State may not be construed to preclude the award of punitive damages in a civil action relating to a violation of this subchapter.
§1789C. Nothing in this subchapter may be construed to limit the common law rights of parents.
(a) A person may not terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth, except that a physician licensed by this State may terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy if the procedure takes place in a hospital accredited by a nationally recognized medical or hospital accreditation authority and if a hospital abortion review authority appointed by the hospital authorizes the procedure after determining that 1 or more of the following conditions exist:
(1) continuation of the pregnancy is likely to result in the death of the mother;
(2) a substantial risk exists that the child will be born with grave and permanent physical deformity or mental retardation;
(3) the pregnancy probably resulted from:
a. incest, or
b. rape or unlawful sexual intercourse in the first or second degree committed as a result of force or bodily harm or threat of force or bodily harm, and the Attorney General of this State has certified to the hospital abortion review authority in writing over the Attorney General's signature that there is probable cause to believe that rape or unlawful sexual intercourse in the first or second degree did occur, except that during the first 48 hours after an alleged rape or unlawful sexual intercourse in the first or second degree certification by the Attorney General is not required;
(4) continuation of the pregnancy involves substantial risk of permanent injury to the physical or mental health of the mother.
(b) A physician may not terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth unless:
(1) not more than 20 weeks of gestation have passed; or
(2) continuation of the pregnancy is likely to result in the death of the mother; or
(3) the fetus is dead; and
(4) two physicians licensed by this State, 1 of whom may be the physician proposed to perform the abortion, certify to the abortion review authority of the hospital where the procedure is to be performed that the two physicians are of the opinion, formed in good faith, that 1 of the circumstances set forth in subsection (a) of this section exists, except that certification is not necessary for the circumstances set forth in subsection (a)(3)b. of this section. If the personal physician of a pregnant woman claims that she has a mental or emotional condition, a psychiatrist licensed by the State and the personal physician shall certify to the abortion review authority of the hospital where the procedure is to be performed that they are both of the opinion, formed in good faith, that 1 of the circumstances set forth in subsection (a) of this section exists, except that certification is not necessary for the circumstances set forth in subsection (a)(3)b. of this section; and
(5) in the case of an unmarried female under the age of 18 or mentally ill or incompetent, there is filed with the hospital abortion review authority the written consent of the parents or guardians who reside in the same household with the unmarried female, or, if the unmarried consenting female does not reside in the same household with either of her parents or guardians, then with the written consent of 1 of her parents or guardians.
(c) The hospital abortion review authority of each hospital in which a procedure is performed pursuant to this section shall, on or before the 1st day of March in each year, file with the Department of Health and Social Services a written report of each procedure performed pursuant to the authorization of the authority during the preceding calendar year, setting forth the grounds for each authorization, but not including the name of the patient.
(a) A person may not be required to perform or participate in medical procedures which result in the termination of pregnancy. The refusal of a person to perform or participate in such medical procedures is not grounds for civil liability to the person, nor a basis for disciplinary or other recriminatory action against the person.
(b) A hospital, hospital director, or governing board may not be required to permit medical procedures which result in the termination of human pregnancies within its institution. The refusal to permit such procedures is not grounds for civil liability to the hospital, hospital director, or governing board, nor a basis for disciplinary or other recriminatory action against it.
(c) The refusal of a person to submit to an abortion or to give consent is not grounds for loss of any privileges or immunities to which the person would otherwise be entitled, nor is submission to an abortion or the granting of consent a condition precedent to the receipt of any public benefits.
Unless the termination of a human pregnancy has been authorized pursuant to §
1790 of this subchapter, a person may not:(1) sell or give, or cause to be sold or given, any drug, medicine, preparation, instrument, or device for the purpose of causing, inducing, or obtaining a termination of such pregnancy; or
(2) give advice, counsel or information for the purpose of causing, inducing or obtaining a termination of such pregnancy; or
(3) knowingly assist or cause by any means whatsoever the obtaining or performing of a termination of such pregnancy.
(a) A person may not perform a termination of a human pregnancy upon a female within the State unless the female has been a resident of this State for a period of at least 120 days immediately prior to the performance of the termination.
(b) This section does not apply to a female who is gainfully employed in this State at the time of conception, or whose spouse is gainfully employed in this State at the time of conception, or to a female who has been a patient, prior to conception, of a physician licensed by this State, or to a female who is attempting to secure the termination of her pregnancy because continuation of the pregnancy is likely to result in her death.
(a) An abortion may not be performed unless the woman submitting to the abortion first gives her written consent to the abortion stating that she freely and voluntarily consents to the abortion and that she has received a full explanation of the abortion procedure and its effects, including, but not limited to, the following:
(1) The abortion procedure to be utilized.
(2) The probable effects of the abortion procedure on the woman, including the effects on her child-bearing ability and effects on possible future pregnancies.
(3) The facts of fetal development as of the time the proposed abortion is to be performed.
(4) The risks attendant to the procedure.
(5) An explanation of the reasonable alternatives to abortion and of the reasonable alternative procedures or methods of abortion.
(b) An abortion may not be performed on a woman within 24 hours after the woman's giving written consent pursuant to subsection (a) of this section unless, in the opinion of her treating physician, an emergency situation exists that presents a substantial danger to the life of the woman. If a woman's treating physician determines that an abortion is necessary because an emergency situation exists that presents a substantial danger to the life of the woman and the woman is unable to give her consent to an abortion, an abortion may be performed on the woman.
(a) If an abortion or an attempted abortion results in the live birth of a child, the person performing or inducing the abortion or attempted abortion and all persons rendering medical care to the child after its birth must exercise that degree of medical skill, care, and diligence which would be rendered to a child who is born alive as the result of a natural birth. A person who knowingly violates this subsection is guilty of a class A misdemeanor.
(b) Nothing in this section precludes prosecution under any other applicable section of the Delaware Code for knowing or reckless conduct which is detrimental to the life or health of an infant born as a result of a procedure designed to terminate pregnancy.".
Section 2. . If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and, to that end, the provisions of this Act are declared to be severable.
SYNOPSIS
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This bill reorganizes and revises the Medical Practices Act pursuant to the recommendations of the Joint Sunset Committee for the review of 2001 to 2002. |