2006 Delaware Code - Subchapter II — Pharmacists

§ 2513. Certificate requirement; exceptions.

(a) No person who has not been issued a certificate as a pharmacist within the meaning of this chapter shall conduct or manage any pharmacy, drug or chemical store, apothecary shop or other place of business for the compounding or dispensing of any drugs, or chemicals which require by law a practitioner's authority or for the compounding of prescriptions, except as provided in this chapter.

(b) No person who has not been issued a certificate as a pharmacist or who is not a pharmacy intern or a pharmacy student participating in an approved college of pharmacy coordinated practical experience program under the direct supervision of a licensed pharmacist, within the meaning of this chapter, shall certify a prescription, perform drug utilization review, provide drug information requiring clinical or technical knowledge, counsel patients, receive new verbal prescription orders without recorded backup or contact a prescriber concerning prescription drug order interpretation or therapy modification. Other responsibilities may be delegated to a certified pharmacy technician or pharmacy technician who are under the direct supervision of a pharmacist.

(c) No owner or manager of a pharmacy, or drug store or other place of business, shall cause or permit any person other than one holding a certificate as a pharmacist to compound, dispense any drug or medicine, except as an aid to or under the supervision of a person holding a certificate as a pharmacist.

(d) No person who has been issued a certificate as a pharmacist within the meaning of this chapter shall fail to dispense a prescription because it is not clearly written and/or lacks information required by this title without first making a reasonable effort to contact the practitioner who issued the prescription to gather the clear and complete information.

(e) Nothing in this section shall be construed to interfere with:

(1) Any legally registered practitioner of the healing arts licensed under the law of this State to dispense or compound the practitioner's own prescriptions or to prevent the practitioner supplying to patients such medicines as the practitioner may deem proper;

(2) The selling at retail of over-the-counter preparations; or

(3) The sale of noncontrolled drugs designated for veterinary use which require a prescription by a business not licensed as a pharmacy; provided, that:

a. The business is registered with the Board;

b. The sale is authorized by a written or oral order from a veterinarian licensed in this or another state.

1. Prior to dispensing an order from an out-of-state veterinarian, the seller must confirm and document that the veterinarian is properly licensed in the veterinarian's state.

2. Oral orders must be confirmed by the veterinarian in writing no later than 72 hours after the seller receives the order;

c. The written order or confirmation of an oral order must be retained on the premises of the business for at least 2 years after the original date of the order.

(f) [Repealed.] (24 Del. Laws, c. 140, § 1; Code 1915, § 862; Code 1935, § 942; 24 Del. C. 1953, § 2521; 64 Del. Laws, c. 452, § 1; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 161, § 9; 75 Del. Laws, c. 260, §§ 1, 2.)

§ 2514. Application for license; examination.

Every person who desires to be licensed as a pharmacist shall:

(1) File with the Secretary of the Board an application accompanied by a fee that reflects the cost of the examination, duly verified under oath, setting forth:

a. The name and age of the applicant;

b. The place or places at which the person studied and the time spent in the study of the science and art of pharmacy; and

c. The person's experience in the compounding of practitioners' prescriptions which the person had under the direction of a legally licensed pharmacist; and

(2) Appear at a time and place designated by the Board and submit to an examination as to the person's qualifications for registration as a licensed pharmacist. (24 Del. Laws, c. 140, § 2; Code 1915, § 863; Code 1935, § 943; 46 Del. Laws, c. 95, § 1; 24 Del. C. 1953, § 2522; 53 Del. Laws, c. 90, § 6; 62 Del. Laws, c. 251, § 6; 65 Del. Laws, c. 378, § 3; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2515. Qualifications of applicants for license.

An applicant for a license as a pharmacist, except a renewal license, shall:

(1) Have graduated from a school or college of pharmacy accredited by the American Council on Pharmaceutical Education at the time of graduation or, in the event that the applicant is a graduate of a foreign school, have graduated and received the first professional undergraduate degree from a pharmacy degree program which has been approved by the Board;

(2) Pass a national examination as may be approved by the Board; and

(3) All applicants for licensure by examination shall obtain practical experience in the practice of pharmacy concurrent with or after college attendance or both, under such terms and conditions as the Board shall determine. The Board shall also determine the necessary qualifications of any preceptors used in any internship or other programs.

(4) [Repealed.] (24 Del. Laws, c. 140, § 3; Code 1915, § 864; 35 Del. Laws, c. 56, § 1; Code 1935, § 944; 41 Del. Laws, c. 87, § 1; 42 Del. Laws, c. 91, § 1; 46 Del. Laws, c. 95, § 2; 24 Del. C. 1953, § 2523; 53 Del. Laws, c. 90, § 7; 58 Del. Laws, c. 511, § 57; 59 Del. Laws, c. 318, § 3; 64 Del. Laws, c. 167, § 1; 68 Del. Laws, c. 206, § 1; 75 Del. Laws, c. 436, § 22.)

§ 2516. Qualifications for licensure by reciprocity.

(a) Requirements. -- To obtain a license as a pharmacist by reciprocity, an applicant for licensure shall:

(1) Have submitted a written application in the form prescribed by the Board;

(2) Have attained the age of majority;

(3) Have possessed at the time of initial licensure as a pharmacist such other qualifications necessary to have been eligible for licensure at that time in this State;

(4) Have presented to the Board proof of initial licensure by examination and proof that such license and any other license or licenses granted to the applicant by any other state or states have not been suspended, revoked, cancelled or otherwise restricted for any reason except nonrenewal or the failure to obtain required continuing education credits in any state where the applicant is licensed but not engaged in the practice of pharmacy; and

(5) Have paid the fees specified by the Board for issuance of a license.

(b) Eligibility. -- No applicant shall be eligible for licensure by reciprocity unless the state in which the applicant was initially licensed as a pharmacist also grants reciprocal licensure to pharmacists duly licensed by examination in this State, under like circumstances and conditions. (24 Del. Laws, c. 140, § 3; Code 1915, § 864; 35 Del. Laws, c. 56, § 1; Code 1935, § 944; 41 Del. Laws, c. 87, § 1; 42 Del. Laws, c. 91, § 1; 46 Del. Laws, c. 95, § 2; 24 Del. C. 1953, § 2523; 53 Del. Laws, c. 90, § 7; 58 Del. Laws, c. 511, § 57; 59 Del. Laws, c. 318, § 3; 64 Del. Laws, c. 167, § 1; 68 Del. Laws, c. 206, § 1; 75 Del. Laws, c. 436, § 23.)

§ 2517. Renewal of license.

(a) On or before January 1 biennially, each pharmacist shall make application to the Secretary of the Board for a renewal of license.

(b) Every licensed pharmacist who desires to continue in the practice of the profession shall, within 30 days next preceding the expiration of the license, file with the Board an application for the renewal thereof, which application shall be accompanied by the fee prescribed in § 2512 of this title. If the Board finds that the applicant has been legally licensed in this State and is entitled to a renewal of license, it shall issue to the applicant a certificate attesting to that fact.

(c) If any pharmacist fails for a period of 60 days after the expiration of the pharmacist's license, to make application to the Board for its renewal, the pharmacist's name shall be erased from the register of licensed pharmacists. Such person in order to again become registered as a licensed pharmacist shall be required to pay all such biennial registration fees as had become due since the year the pharmacist's name was dropped as herein provided and shall also comply with the Board's continuing education requirements for relicensure for such years.

(d) No renewal certificates shall be issued to a pharmacist pursuant to this section unless such pharmacist has submitted proof to the Board of the required number of continuing education units obtained through the satisfactory completion of an accredited program of continuing professional education prescribed by Board regulation. The number of continuing education units (CEU's) required for relicensure shall not exceed 3 CEU's during any biennial registration. One CEU is equivalent to 10 hours of continuing education. Any continuing education program that is currently approved by the American Council on Pharmaceutical Education will automatically qualify for continuing education credit. The Board shall renew the license of a pharmacist who has completed a recognized alternative program of compliance. Alternative programs may include any other program which the Board deems equivalent to completing required continuing education units. (24 Del. Laws, c. 140, § 6; Code 1915, §§ 865, 867; 32 Del. Laws, c. 45, § 1; Code 1935, §§ 945, 947; 24 Del. C. 1953, § 2525; 49 Del. Laws, c. 263; 62 Del. Laws, c. 251, § 9; 64 Del. Laws, c. 247, § 1; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2518. Discipline.

(a) The Board may refuse to issue or renew or may suspend, revoke or restrict the license of any person after due notice and hearing pursuant to procedures established in compliance with Chapter 101 of Title 29, the Administrative Procedures Act, upon 1 or more of the following grounds:

(1) Procuring or attempting to procure a license by fraud or intentional misrepresentation;

(2) Incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence and safety to the public. This would include incapacity due to mental incompetence, a physical condition, addiction to alcohol or narcotics or other dangerous drugs;

(3) Convicted of a crime that is substantially related to the practice of pharmacy; however, after a hearing, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(4) of this section, if it finds all of the following:

a. More than 5 years have elapsed since the applicant has fully discharged all imposed sentences. As used herein, the term "sentence" includes, but is not limited to, all periods of modification of a sentence, probation, parole or suspension. However, sentence does not include fines, restitution or community service, as long as the applicant is in substantial compliance with such fines, restitution and community service.

b. The applicant is capable of practicing pharmacy in a competent and professional manner.

c. The granting of the waiver will not endanger the public health, safety or welfare;

(4) Guilty of engaging or aiding and abetting an individual to engage in the practice of pharmacy without a license;

(5) Gross negligence or incompetence in the person's practice as a pharmacist;

(6) Failure to notify the Board that the person's license to practice pharmacy has been subject to discipline, surrendered, suspended or revoked by another board; or if the registrant has been convicted of a crime that is substantially related to the practice of pharmacy;

(7) Failure to provide the report required by § 2522 of this title.

(b) Upon due notice and hearing, the Board may revoke or suspend any license granted pursuant to this chapter, if the Board determines that the licensee, or a person employed by the pharmacy has violated any provision of this chapter, any regulation promulgated pursuant to § 2509 of this title or any law of this State or of the United States.

(c) The hearing be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.

(d) Any person aggrieved by an order of the Board may appeal therefrom to the Superior Court in the county where such person resided within 30 days after receipt of such order. If the hearing is held in absentia, the order must be appealed within 30 days of issuance. The appeal to the Superior Court shall be on the record of the proceedings before the Board. (24 Del. Laws, c. 140, § 4; Code 1915, § 865; 32 Del. Laws, c. 45, § 1; Code 1935, § 945; 24 Del. C. 1953, § 2527; 53 Del. Laws, c. 90, § 10; 53 Del. Laws, c. 267; 54 Del. Laws, c. 253; 55 Del. Laws, c. 316, § 2; 59 Del. Laws, c. 318, § 4; 62 Del. Laws, c. 251, § 11; 65 Del. Laws, c. 355, § 1; 65 Del. Laws, c. 378, § 4; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, §§ 44, 45; 75 Del. Laws, c. 436, §§ 24-26.)

§ 2518A. Counseling of pharmacists.

(a) If the Executive Secretary and President determine after the investigation that there has been a violation of this chapter or regulations enacted pursuant to this chapter, but that such violation does not warrant a formal disciplinary action under § 2518 of this title, the Executive Secretary may decide to counsel the pharmacist regarding the violation. The Executive Secretary shall notify the pharmacist of the Executive Director's findings and of this decision not to proceed by formal disciplinary action. Such notification shall explain the finding of the Executive Secretary and shall request the presence of the pharmacist at a counseling session. During the counseling session, the Executive Secretary shall discuss the violation with the pharmacist as well as any necessary plans of correction.

(b) Attendance at a counseling session shall be voluntary, but if the pharmacist fails to be counseled or fails to take the corrective action specified by the Executive Secretary, the Executive Secretary's notification letter shall be conclusive evidence that such violation occurred and may be used in a subsequent hearing regarding the pharmacist unless challenged by the pharmacist. In the event any pharmacist challenges the findings of the Executive Secretary, such pharmacist shall be entitled to a hearing in accordance with § 2518 of this title as to whether such violations occurred. In the event the pharmacist requests a hearing, the hearing shall be conducted as a disciplinary hearing under § 2518 of this title.

(c) The counseling of pharmacists under this section shall not be considered disciplinary action and provided the pharmacist attends and complies with any corrective action required by the Executive Secretary, the fact of such counseling shall 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 pharmacist is counseled unless such future incident involves the same or similar allegations(s) as that for which the pharmacist was counseled hereunder. (71 Del. Laws, c. 101, § 1; 70 Del. Law, c. 186, § 1.)

§ 2519. Emergency suspension.

By a decision of 5 members, the Board may suspend any license prior to a hearing simultaneously with the scheduling of a hearing if it finds that the pharmacist continuing the practice is an imminent danger to the public health and safety which warrants this action. The suspension shall continue in effect until the conclusion of the proceedings, including judicial review thereof, unless sooner withdrawn by the Board or stayed by the Superior Court. The hearing must be held no later than 30 days from the date of service of the suspension order unless continued at the request of the licensee. (68 Del. Laws, c. 206, § 1.)

§ 2520. Register; issuance of license; replacement of certificate.

If the applicant for license as a pharmacist has complied with the requirements of §§ 2514-2516 of this title, the Board shall enroll the applicant's name upon the register of pharmacists and issue a license which shall entitle the applicant to practice as pharmacist for the remainder of the renewal period. A certificate may be replaced if lost or destroyed upon the payment of $10 by the registrant. (24 Del. Laws, c. 140, § 4; Code 1915, § 865; 32 Del. Laws, c. 45, § 1; Code 1935, § 945; 24 Del. C. 1953, § 2524; 53 Del. Laws, c. 90, § 8; 62 Del. Laws, c. 251, §§ 7, 8; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2521. Use of title.

No person not legally licensed as a pharmacist shall take, use or exhibit the title of pharmacist, or licensed or registered pharmacist or the title druggist, or apothecary, or pharmacy or medicine store or any other title or description of like import. (24 Del. Laws, c. 140, § 16; Code 1915, § 872; 32 Del. Laws, c. 45, § 2; Code 1935, § 952; 24 Del. C. 1953, § 2529; 68 Del. Laws, c. 206, § 1.)

§ 2522. Impaired pharmacists; reporting, disciplinary action.

(a) The Board may defer and ultimately take no action with regard to an impaired licensee who voluntarily reports the impairment to the Board and voluntarily signs an agreement, in a form satisfactory to the Board, agreeing to not practice pharmacy and to enter an approved treatment program in accordance with this section, provided that this section should not apply to a licensee who has been convicted of, pleads guilty to or enters a plea of nolle contendere to a felonious act prohibited by Chapter 47 of Title 16 or a conviction relating to a controlled substance in a court of law of the United States or any other state, territory or country. A licensee who is physically or mentally impaired due to addiction to drugs or alcohol may qualify as an impaired pharmacist and have disciplinary action deferred and ultimately waived only if the Executive Secretary of the Board is satisfied that such action will not endanger the public and the licensee enters into an agreement with the Board for a treatment plan approved by the Board, progresses satisfactorily in such treatment program, complies with all terms of the agreement and all other applicable terms of subsection (c) of this section. Failure to enter into such agreement or to comply with the terms and make satisfactory progress in the treatment program shall disqualify the licensee from the provisions of this section and the Board shall activate an immediate investigation and disciplinary proceedings. Upon completion of the rehabilitation program in accordance with the agreement signed by the Board the licensee may apply for permission to resume the practice of pharmacy upon such conditions as the Board determines necessary. Upon resumption of practice, the licensee's records shall not reflect any disciplinary action and all records concerning the impairment shall be sealed and not considered public records open to public inspection; provided, however, that the licensee consents that should a further incident of the impairment come to light, the Board may consider these records in imposing future disciplinary action.

(b) The Board may defer and ultimately dismiss disciplinary action brought under § 2518 of this title with regard to an impaired licensee who does not qualify under subsection (a) of this section so long as the licensee is progressing satisfactorily in an approved treatment program in accordance with this section. A licensee who is physically or mentally impaired due to addiction to drugs or alcohol may qualify as an impaired pharmacist and have disciplinary action deferred only if the Board finds that such action will not endanger the public and the licensee enters into an agreement with the Board for a treatment plan approved by the Board and progresses satisfactorily in such treatment program and complies with all terms of the agreement.

(c) The Board may require a licensee to enter into an agreement which includes, but is not limited to, the following provisions:

(1) Licensee agrees that the license shall be suspended or revoked indefinitely under subsection (b) of this section or who has voluntarily agreed not to practice under subsection (a) of this section.

(2) Licensee will enroll in a treatment program approved by the Board.

(3) Licensee agrees that failure to satisfactorily progress in such treatment program shall be reported to the Board by the treating professional who shall be immune from any liability for such reporting made in good faith.

(4) Licensee consents to the treating physician or professional of the approved treatment program reporting to the Board on the progress of licensee at such intervals as the Board deems necessary and such person making such report will not be liable when such reports are made in good faith.

(d) The ability of an impaired pharmacist to practice shall only be restored and charges dismissed when the Board is satisfied by the reports it has received from the approved treatment program that the licensee can resume practice without danger to the public.

(e) Licensee consents, in accordance with applicable law, to the release of any treatment information from anyone within the approved treatment program.

(f) The impaired licensee who has enrolled in an approved treatment program and entered into an agreement with the Board in accordance with subsection (b) of this section hereof shall have the license suspended or revoked but enforcement of this suspension or revocation shall be stayed by the length of time the licensee remains in the program and makes satisfactory progress, and complies with the terms of the agreement and adheres to any limitations on practice imposed by the Board to protect the public. Failure to enter into such agreement or to comply with the terms and make satisfactory progress in the treatment program shall disqualify the licensee from the provisions of this section and the Board shall activate an immediate investigation and disciplinary proceedings.

(g) Any pharmacist who has substantial evidence that a licensee has an active addictive disease for which the licensee is not receiving treatment under a program approved by the Board pursuant to an agreement entered into under this section, is diverting a controlled substance, or is mentally or physically incompetent to carry out the duties of the license, shall make or cause to be made a report to the Board. Any person who reports pursuant to this section in good faith and without malice shall be immune from any civil or criminal liability arising from such reports. Failure to provide such a report within a reasonable time from receipt of knowledge may be considered grounds for disciplinary action against the licensee so failing to report, in accordance with § 2518 of this title. (68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2523. Penalties.

(a) Whoever, not being licensed as a pharmacist, conducts or manages any drug store, pharmacy or other place of business for the compounding, dispensing or sale of any drugs, or medicine, or for the compounding of physicians' prescriptions, contrary to § 2513 of this title shall be fined not less than $100 nor more than $1,000.

(b) Whoever, not being licensed as a pharmacist, compounds, dispenses or sells any drug, medicine or pharmaceutical preparation, either upon a prescription or otherwise; and whoever, being the owner or manager of a drug store, pharmacy or other place of business, causes or permits anyone not licensed as a pharmacist, to dispense, sell or compound any drug, medicine or prescriptions contrary to § 2513 of this title shall be fined not less than $100 nor more than $1,000.

(c) Whoever, being the holder of any license granted under this chapter, continues, after the expiration of such license, and without renewing the same, to carry on the business for which such license was granted, contrary to § 2514 of this title, shall be fined not less than $100 nor more than $1,000.

(d) Any person not legally licensed as a pharmacist or pharmacy who takes, uses or exhibits the title, "pharmacist," or the title, "druggist," or "apothecary" or a "pharmacy" or "medicine store" or any other title or description of like import, contrary to § 2521 of this title shall be fined not less than $100 nor more than $1,000. Each week that such a violation exists shall constitute a separate and distinct offense.

(e) Justices of the peace shall have original jurisdiction to hear offenses under this chapter. (24 Del. C. 1953, § 2531; 53 Del. Laws, c. 90, §§ 12-16; 62 Del. Laws, c. 251, § 12; 63 Del. Laws, c. 234, § 1; 68 Del. Laws, c. 206, § 1.)