2019 Delaware Code
Title 24 - Professions and Occupations


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Legislative Council, General Assembly State of Delaware Title 24 Professions and Occupations NOTICE: The Delaware Code appearing on this site is prepared by the Delaware Code Revisors and the editorial staff of LexisNexis in cooperation with the Division of Research of Legislative Council of the General Assembly, and is considered an official version of the State of Delaware statutory code. This version includes all acts effective as of September 20, 2019, up to and including 82 Del. Laws, c. 218. DISCLAIMER: With respect to the Delaware Code documents available from this site or server, neither the State of Delaware nor any of its employees, makes any warranty, express or implied, including the warranties of merchantability and fitness for a particular purpose, or assumes any legal liability or responsibility for the usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately-owned rights. Please seek legal counsel for help on interpretation of individual statutes. Title 24 - Professions and Occupations Chapter 1 Board of Accountancy § 101 Objectives and functions. The primary objective of the Board of Accountancy, to which all other objectives and purposes are secondary, is to protect the general public (specifically those persons who are direct recipients of services regulated by this chapter) from unsafe practices, including incompetent auditing, accounting and tax services rendered by certificate and permit holders, and from occupational practices which tend to reduce competition or fix the price of services rendered. Secondary objectives of the Board include maintaining minimum standards of competency in accounting, auditing and tax services rendered by certificate and permit holders and maintaining minimum standards in the delivery of such services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence, shall monitor complaints brought against practitioners regulated by the Board, adjudicate such complaints at formal hearings, promulgate rules and regulations, and impose sanctions where necessary against practitioners. (71 Del. Laws, c. 139, § 1.) § 102 Definitions. The following definitions shall apply, unless the definition is inappropriate for the context: (1) “AICPA” means the American Institute of Certified Public Accountants. (2) “Attest” means providing the following services: a. Any audit or other engagement to be performed in accordance with the Statements on Auditing Standards (SAS); b. Any review of a financial statement to be performed in accordance with the Statements on Standards for Accounting and Review Services (SSARS); c. Any examination of prospective financial information to be performed in accordance with the Statements on Standards for Attestation Engagements (SSAE); d. Any engagement to be performed in accordance with the standards of the PCAOB; and e. Any examination, review, or agreed upon procedures engagement to be performed in accordance with the SSAE, other than an examination described in paragraph (2)c. of this section. (3) “Board” means the Delaware State Board of Accountancy. (4) “Certificate” means a certificate of “certified public accountant” issued by the Board pursuant to this chapter or the prior law of this State, or a corresponding certificate of certified public accountancy issued after examination under the law of any other state. (5) “Certified public accountant” means the holder of a permit to practice certified public accountancy. (6) “Certified public accounting” or “the practice of certified public accountancy” means the performance, or offer to perform, for a client or a potential client, by a person or firm holding itself out to the public as a CPA permit holder, of 1 or more kinds of services involving the use of accounting or auditing skills, including the issuance of reports or financial statements, or of 1 or more kinds of management advisory, financial advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters. (7) “Client” means a person or entity that agrees with a permit holder or permit holder’s employer to receive any professional service. (8) “Compilation” means providing a service to be performed in accordance with, and as defined by, Statements on Standards for Accounting and Review Services (SSARS). (9) “Division” means the State of Delaware Division of Professional Regulation. (10) “Firm” means a sole proprietorship, partnership, corporation or any other entity authorized under Delaware law or a similar statute of another state. (11) “Licensee” means an individual or firm licensed under this title or under corresponding law in another jurisdiction. (12) “NASBA” means the National Association of State Boards of Accountancy. (13) “Nonpublic entity” means an entity other than one whose securities trade in a public market either on a stock exchange (domestic or foreign) or in the over-the-counter market, including securities quoted only locally or regionally, or an entity that makes a filing with a regulatory agency in preparation for the sale of any of its securities in a public market. (14) “PCAOB” means the Public Company Accounting Oversight Board. (15) “Peer review” means a board-approved study, appraisal, or review of 1 or more aspects of the attest and compilation services rendered by an individual or firm permit holder performed by a person or persons who hold Delaware permits or are duly licensed in another jurisdiction and who are not affiliated with the individual or firm permit holder being reviewed. (16) “Permit” or “permit to practice” means a permit issued by the Board to practice either public accountancy or certified public accountancy. (17) “Principal place of business” means the office location designated by the licensee. Page 1 Title 24 - Professions and Occupations (18) “Public accountant” means the holder of a permit to practice public accountancy. (19) “Public accounting” or “practice of public accountancy” means the performance, or offer to perform, for a client or a potential client, by a person or firm holding itself out to the public as a permit holder, of 1 or more kinds of services involving the use of accounting or auditing skills, including the issuance of reports or financial statements, or of 1 or more kinds of management advisory, financial advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters. (20) “Regulation” means any rule or regulation duly adopted by the Board. (21) “Report” when used with reference to any attest or compilation service, means an opinion, report, or other form of language that states or implies assurance as to the reliability of the attested information or compiled financial statements and that also includes or is accompanied by any statement or implication that the person or firm issuing it has special knowledge or competence in accounting or auditing. Such a statement or implication of special knowledge or competence may arise from use by the issuer of the report of names or titles indicating that the person or firm is an accountant or auditor, or from the language of the report itself. The term “report” includes any form of language which disclaims an opinion when such form of language is conventionally understood to imply any positive assurance as to the reliability of the attested information or compiled financial statements referred to and/or special competence on the part of the person or firm issuing such language; and it includes any other form of language that is conventionally understood to imply such assurance and/or such special knowledge or competence. (22) “State” means any state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, the Commonwealth of the Northern Mariana Islands, and Guam; except that “this State” means the State of Delaware. (23) “Substantial equivalency” is a determination by the Board of Accountancy or its designee that the education, examination and experience requirements contained in the statutes and administrative rules of another jurisdiction are comparable to, or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act or that an individual CPA’s education, examination and experience qualifications are comparable to or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act. In ascertaining substantial equivalency as used in this act the Board shall take into account the qualifications without regard to the sequence in which experience, education or examination requirements were attained. (24) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to accountancy. (60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 71 Del. Laws, c. 139, § 1; 74 Del. Laws, c. 262, § 1; 75 Del. Laws, c. 128, § 1; 76 Del. Laws, c. 418, § 1; 80 Del. Laws, c. 247, § 1.) § 103 Board of Accountancy; appointments; qualifications; term; vacancies. (a) There is created a State Board of Accountancy which shall administer and enforce this chapter. (b) The Board shall consist of 9 members who are residents of this State and are appointed by the Governor, as follows: (1) Five certified public accountants, all of whom must hold active permits to practice certified public accountancy; (2) One public accountant who holds a valid permit to practice public accountancy; (3) Two members from the public at large; and (4) One public member who is employed full time in the field of post-secondary accounting education. (c) To serve on the Board, the public members referred to in paragraph (b)(3) of this section, shall not be nor ever have been a certified public accountant or public accountant, nor a member of the immediate family of a certified public accountant or public accountant; shall not be nor ever have been employed by a person or firm which provides certified public accounting or public accounting services; shall not have a material financial interest in the providing of goods and services to any person or firm which provides accounting services; nor have been engaged in an activity directly related to accounting services. The public members shall be accessible to inquiries, comments and suggestions from the general public. (d) Except as provided in subsection (e) of this section, each member shall serve for a term of 3 years and may succeed himself or herself for 1 additional term. Each term of office shall expire on the date specified in the appointment; however, the board member shall remain eligible to participate in board proceedings unless and until replaced by the Governor. (e) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period shall again be appointed to the Board until an interim period of at least 3 years has expired since such person last served. (f) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (e) of this section, unless such amendment or revision amends this section to permit such an appointment. (g) No member of the Board of Accountancy, while serving on the Board, shall be an officer (president, chairperson, president-elect, vice president, secretary or treasurer) of a professional accounting organization, including the American Institute of Certified Public Accountants (AICPA), the Delaware Society of Certified Public Accountants (DSCPA), the National Society of Public Accountants (NSPA), the Delaware Association of Public Accountants (DAPA) or any other professional accounting association. Page 2 Title 24 - Professions and Occupations (h) The provisions set forth for “employees” in Chapter 58 of Title 29 shall apply to members of the Board and to all agents appointed or otherwise employed by the Board. (i) Any member who is absent without adequate reason for 3 consecutive meetings or fails to attend at least half of all regular business meetings during any calendar year shall be guilty of neglect of duty. (j) Each member of the Board shall be compensated at an appropriate and reasonable level as determined by the Division and may be reimbursed for meeting-related travel expenses at the State’s approved rate. (27 Del. Laws, c. 98, § 2; Code 1915, § 980; 32 Del. Laws, c. 48, § 2; Code 1935, § 1091; 46 Del. Laws, c. 110, § 1; 24 Del. C. 1953, § 101; 50 Del. Laws, c. 167, § 1; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 67 Del. Laws, c. 368, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 76 Del. Laws, c. 418, § 2; 80 Del. Laws, c. 247, § 1.) § 104 Officers; meetings; conduct of business; quorum; absences. (a) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the president may deem necessary, or at the request of a majority of Board members. (b) The Board shall elect annually from its members a president and a secretary. Each officer shall serve for 1 year and shall not succeed himself or herself for more than 2 consecutive years. (c) A majority of members of the Board shall constitute a quorum for the transaction of all business and no disciplinary action shall be taken without the affirmative vote of at least 5 members. (d) Minutes of all meetings shall be recorded and copies shall be maintained by the Division. At any hearing in which evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it. (27 Del. Laws, c. 98, § 2; Code 1915, § 980; 32 Del. Laws, c. 48, § 2; Code 1935, § 1091; 46 Del. Laws, c. 110, § 1; 24 Del. C. 1953, § 101; 50 Del. Laws, c. 167, § 1; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1.) § 105 Powers and duties. (a) The Board of Accountancy shall have the authority to: (1) Formulate rules and regulations, with appropriate notice to those affected. Each rule or regulation shall implement or clarify a specific section of this chapter. All rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act, Chapter 101 of Title 29; (2) Designate the application form to be used by all applicants and to process all applications; (3) Designate an examination to be taken by persons applying for a permit, as follows: a. The Board shall adopt the Uniform Certified Public Accountant Examination as the national examination to be taken by all applicants for licensure as certified public accountants and use the advisory grading service of the American Institute of Certified Public Accountants (AICPA), or its successor organization. b. The Board shall adopt the examination recognized by the National Society of Public Accountants (NSPA) as the national examination to be taken by applicants for permits as public accountants and use the advisory grading service of the NSPA. c. The Division shall have the power to review, approve and execute all contracts for examination services; (4) Provide notice and information to applicants regarding their applications; (5) Designate the requirements for the issuance of permits to practice consistent with the provisions of this chapter; (6) [Repealed]. (7) Issue permits to practice to individuals and firms who meet the qualifications of this chapter; (8) Require the completion of continuing education requirements for all licensees; (9) Evaluate certified records to determine whether an applicant for a permit to practice, who has been previously licensed or certified, or who has held a certificate and/or permit in another jurisdiction, has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicants for such acts or offenses; (10) Refer all complaints from licensees and the public concerning accountants and the practice of public accounting or certified public accounting, or concerning practices of the Board or of the profession, or concerning the unlicensed practice of public accountancy or certified public accountancy, to the Division for investigation pursuant to § 8735 of Title 29 and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint. Such member shall recuse himself or herself from the deliberations on the complaint; (11) Conduct hearings and issue orders in accordance with procedures established pursuant to this chapter, the Administrative Procedures Act (Chapter 101 of Title 29) and § 8735 of Title 29. Where such provisions conflict with the provisions of this chapter, this chapter shall govern. The Board shall determine whether or not a person or firm shall be subject to a disciplinary hearing, and, Page 3 Title 24 - Professions and Occupations if so, shall conduct such hearing in accordance with this chapter, the Administrative Procedures Act (Chapter 101 of Title 29) and § 8735 of Title 29; (12) Where it has been determined, after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed; (13) Bring proceedings in the courts for the enforcement of this chapter; (14) To become a member of the National Association of State Boards of Accountancy or its successor organization and to pay such dues which that association shall establish; to send delegates to its meetings; and to assist members attending that association’s meetings; and (15) To require all applicants for permits to practice to obtain a passing grade on the Code of Ethics examination administered and graded by the American Institute of Certified Public Accountants (AICPA). (b) The Board of Accountancy shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of accountancy. (27 Del. Laws, c. 98, § 3; Code 1915, § 982; 32 Del. Laws, c. 48, §§ 2, 3; Code 1935, § 1093; 24 Del. C. 1953, § 106; 50 Del. Laws, c. 167, § 3; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 74 Del. Laws, c. 262, § 2; 76 Del. Laws, c. 418, § 3; 80 Del. Laws, c. 247, § 1.) § 106 Certificate or permit required. (a) The use of the title or designation “certified public accountant” or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that a person is a certified public accountant shall be limited to a person who holds an active permit to practice issued by the Board pursuant to this chapter or issued under the laws of another jurisdiction. Holders of certificates only, who have never held a Delaware permit to practice, may not use the title or designation “certified public accountant” or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that a person is a certified public accountant. Up to and including June 30, 2017, holders of certificates only who have held a Delaware permit to practice which has since lapsed may use the title or designation “certified public accountant” or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that a person is a certified public accountant; provided that it is clearly indicated that such person is not holding himself or herself out as a practicing certified public accountant. Upon proper notification to the Board, holders of CPA permits to practice who no longer provide any type of service or advice involving the use of accounting, attest, compilation, management advisory, financial advisory, tax or consulting skills and who no longer meet the continuing education requirement under § 108 of this title must place the word “inactive” adjacent to their CPA title. (b) The use of the title or designation “public accountant” or the abbreviation “PA” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that such person is a public accountant shall be limited to a person who holds a valid permit to practice public accountancy. (27 Del. Laws, c. 98, § 1; Code 1915, § 981; Code 1935, § 1092; 24 Del. C. 1953, § 103; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 75 Del. Laws, c. 128, § 2; 80 Del. Laws, c. 247, § 1.) § 107 Requirements and qualifications for a permit to practice as a certified public accountant. (a) Each person who is engaged in the practice of certified public accountancy and whose principal place of business is in this State, whether as a principal or employee of a firm, shall be required to obtain and maintain a valid permit to practice certified public accountancy. The permit to practice as a certified public accountant shall be granted to persons who meet the education, experience, lack of disqualifying conviction and examination requirements of the following subsections of this section and rules adopted thereunder and who make application therefore pursuant to § 108 of this title. (b) The applicant has not been convicted of a crime that is substantially related to the practice of accountancy; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this subsection, if it finds all of the following: (1) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (2) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (3) The applicant is capable of practicing accountancy in a competent and professional manner. (4) The granting of the waiver will not endanger the public health, safety or welfare; (c) The applicant has completed at least 150 semester hours of college education including a baccalaureate or higher degree conferred by an accredited college or university acceptable to the Board, the total educational program to include an accounting concentration or equivalent as determined by Board rule to be appropriate; Page 4 Title 24 - Professions and Occupations (d) The applicant has successfully passed the Uniform Certified Public Accountant Examination and/or such successor examinations as may be required to qualify for a permit to practice, provided that the applicant may not sit for said exams until that applicant has successfully completed at least 120 semester hours of college education including a baccalaureate or higher degree conferred by an accredited college or university acceptable to the Board, the total educational program to include an accounting concentration or equivalent as determined by Board rule to be appropriate; (e) The applicant has successfully passed the AICPA self-study course and examination in professional ethics; and (f) The applicant has had 1 year of experience. This experience shall include providing any type of service or advice involving the use of accounting, attest, compilation, management advisory, financial advisory, tax or consulting skills all of which was supervised by a United States certified public accountant, meeting requirements prescribed by the Board by rule. This experience would be acceptable if it was gained through employment in government, industry, academia or public practice. (27 Del. Laws, c. 98, § 3; Code 1915, § 982; 32 Del. Laws, c. 48, §§ 2, 3; Code 1935, § 1093; 45 Del. Laws, c. 82, § 1; 24 Del. C. 1953, § 104; 50 Del. Laws, c. 167, § 2; 55 Del. Laws, c. 193; 58 Del. Laws, c. 511, § 49; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 72 Del. Laws, c. 468, § 1; 74 Del. Laws, c. 262, § 3; 75 Del. Laws, c. 128, § 3; 75 Del. Laws, c. 436, § 1; 76 Del. Laws, c. 418, §§ 4-12; 77 Del. Laws, c. 199, § 1; 78 Del. Laws, c. 44, §§ 1, 2; 80 Del. Laws, c. 247, § 1.) § 108 Substantial equivalency [Transferred]. (Former 108 was renumbered to be 109 by 80 Del. Laws, c. 247, § 1.) § 108 Issuance and renewal of CPA permits to practice and maintenance of competency; reciprocity. (a) The Board shall grant or renew permits to practice to persons who make application and demonstrate that: (1) Their qualifications, including where applicable the qualifications prescribed by § 107 of this title, are in accordance with the following subsections of this section, or (2) They are eligible under the substantial equivalency standard set out in § 109(a)(2) of this title. (b) Permits to practice shall be initially issued, and renewed, for periods of not more than 2 years but in any event shall expire on June 30 of the odd-numbered year following issuance or renewal. Applications for such permits to practice shall be made in such form, and in the case of applications for renewal, between such dates, as the Board shall by rule specify, and the Board shall grant or deny any such application no later than 120 days after the application is filed in proper form. (c) (1) Reciprocal permits to practice shall be issued to applicants who have passed the Uniform CPA Examination and hold a valid CPA certificate, license or permit to practice in a substantially equivalent state or who individually are determined to be substantially equivalent. (2) With regard to applicants that do not qualify for reciprocity under the substantial equivalency standard set out in § 109 of this title, the Board shall issue a permit to practice to a holder of a certificate, license or permit issued by another state upon a showing that: a. The applicant passed the Uniform CPA Examination; b. The applicant had 4 years of experience of the type described in § 107(f) of this title or meets comparable requirements prescribed by the Board by rule, after passing the examination upon which the applicant’s certificate was based and within the 10 years immediately preceding the application; and c. If the applicant’s certificate, license or permit was issued more than 4 years prior to the application for issuance of an initial certificate under this section, that the applicant has fulfilled the requirements of continuing professional education that would have been applicable under subsection (d) of this section. (d) Permits to practice shall be renewed biennially. An applicant for renewal of a permit under this section shall show that the applicant has completed no less than 80 hours of continuing professional education as determined by Board rule during the 2-year renewal period that has elapsed since the last biennial renewal date. If an applicant’s initial permit to practice was issued less than 2 years prior to the renewal date, the applicant must fulfill the following continuing professional educational requirements: (1) No continuing education requirement if initial permit was issued less than 1 year prior to the renewal date; or (2) A prorated continuing professional education requirement as determined by Board rule if initial permit was issued 1 year or more, but less than 2 years, prior to the renewal date. (e) For renewal of a permit to practice under this section, each licensee shall participate in a program of learning designed to maintain professional competency. Such program of learning must comply with rules adopted by the Board. The Board may by rule create an exception to this requirement for permit holders who do not perform or offer to perform 1 or more kinds of services involving the use of accounting or auditing skills, including issuance of reports on financial statements or of 1 or more kinds of management advisory, financial advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters, and who make application for inactive status to the Board. Licensees granted such an exception by the Board must place the word “inactive” adjacent to their CPA title on any business card, letterhead or other document or device with the exception of their CPA permit to practice, on which their CPA title appears. Holders of an inactive permit to practice certified public accountancy may apply to have their permit to practice reinstated pursuant to Board rule. Page 5 Title 24 - Professions and Occupations (f) Applicants for initial issuance or renewal of permits to practice under this section shall in their applications list all states in which they have applied for or hold certificates, licenses or permits and list any past denial, revocation or suspension of a certificate, license or permit, and each holder of or applicant for a permit to practice under this section shall notify the Board in writing, within 30 days after its occurrence, of any issuance, denial, revocation or suspension of a certificate, license or permit by another state. (g) Holders of expired permits to practice as of July 1, 2016, may apply to have their permit to practice reinstated upon a showing that the applicant has completed no less than 80 hours of continuing professional education as determined by Board rule during the 2-year renewal period ending June 30, 2017. Any holder of an expired permit to practice who fails to reinstate his or her permit by June 30, 2017, shall be required to meet all of the requirements for the initial issuance of a permit to practice pursuant to this section. (80 Del. Laws, c. 247, § 1; 70 Del. Laws, c. 186, § 1.) § 109 Substantial equivalency. (a) (1) An individual whose principal place of business is not in this State and who holds a valid license as a certified public accountant from any state which the NASBA National Qualification Appraisal Service has verified to be in substantial equivalence with the CPA licensure requirements of the AICPA/NASBA Uniform Accountancy Act shall be presumed to have qualifications substantially equivalent to this State’s requirements and shall have all the privileges of permit holders of this State without the need to obtain a permit under § 108 of this title. Notwithstanding any other provision of law, an individual who offers or renders professional services, whether in person, by mail, telephone or electronic means, under this section shall be granted practice privileges in this State and no notice or other submission shall be provided by any such individual. Such an individual shall be subject to the requirements in paragraph (a)(3) of this section. (2) An individual whose principal place of business is not in this State and who holds a valid license as a certified public accountant from any state which the NASBA National Qualification Appraisal Service has not verified to be in substantial equivalence with the CPA licensure requirements of the AICPA/NASBA Uniform Accountancy Act shall be presumed to have qualifications substantially equivalent to this State’s requirements and shall have all the privileges of permit holders of this State without the need to obtain a permit under § 108 of this title if such individual obtains from the NASBA National Qualification Appraisal Service verification that such individual’s CPA qualifications are substantially equivalent to the CPA licensure requirements of the AICPA/NASBA Uniform Accountancy Act. Any individual who passed the Uniform CPA Examination and holds a valid license issued by any other state prior to January 1, 2012, may be exempt from the education requirement in § 107(c) of this title for purposes of this paragraph (a)(2). Notwithstanding any other provision of law, an individual who offers or renders professional services, whether in person, by mail, telephone or electronic means, under this section shall be granted practice privileges in this State and no notice or other submission shall be provided by any such individual. Such an individual shall be subject to the requirements in paragraph (a)(3) of this section. (3) An individual licensee of another state exercising the privilege afforded under this section and the firm which employs that licensee hereby simultaneously consent, as a condition of the grant of this privilege: a. To the personal and subject matter jurisdiction and disciplinary authority of the Board; b. To comply with this chapter and the Board’s rules; c. That in the event the license from the state of the individual’s principal place of business is no longer valid, the individual will cease offering or rendering professional services in this State individually and on behalf of a firm; and d. To the appointment of the State Board which issued their license as their agent upon whom process may be served in any action or proceeding by this Board against the licensee. (b) A permit holder of this State offering or rendering services or using that permit holder’s CPA title in another state shall be subject to disciplinary action in this State for an act committed in another state for which the permit holder would be subject to discipline for an act committed in the other state. The Board shall be required to investigate any complaint made by the board of accountancy of another state. (c) Practice within this State by individuals who qualify for the practice privilege under this section shall not obligate a firm that does not maintain an office in this State to obtain a firm permit under § 111 of this title. (76 Del. Laws, c. 418, § 13; 80 Del. Laws, c. 247, § 1.) § 110 Requirements for permits to practice public accountancy. (a) Each person who intends to be or is engaged in the practice of public accountancy in this State, whether as a principal of a firm or an employee of a firm, shall be required to obtain and maintain a valid permit to practice public accountancy. The Board shall grant and/ or renew permits to persons who make application and demonstrate their qualifications in accordance with this section. (b) Permits shall be issued and renewed for periods of 2 years. (c) An applicant for initial issuance of a permit under this section shall show that the applicant: (1) Has not been convicted of a crime that is substantially related to the practice of accountancy; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (c)(1) of this section, if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. Page 6 Title 24 - Professions and Occupations b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing accountancy in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare; (2) Holds, at a minimum, an associate degree, conferred by an accredited college or university, or a degree from an accredited 2year college with a concentration in accounting, or what the Board determines to be substantially the equivalent of such concentration; (3) Has passed either all parts of the examination recognized by the National Society of Public Accountants or both the Financial Accounting and Reporting (FAR) and Auditing and Attestation (AUD) portions of the Uniform Certified Public Accountant Examination; (4) Has successfully passed the AICPA self-study course and examination in professional ethics; and (5) Has not engaged in any acts or offenses that would be grounds for disciplinary action under this chapter and has no disciplinary proceedings or unresolved complaints pending against the applicant in any jurisdiction where the individual has been or currently holds a permit to practice. Each holder of or applicant for a permit under this section shall notify the Board in writing, within 30 days after its occurrence, of any issuance, denial, revocation or suspension of a permit by another state. (d) An applicant for renewal of a permit under this section shall show that the applicant has completed no less than 80 hours of continuing professional education as determined by Board rule during the 2-year renewal period that has elapsed since the last biennial renewal date. If an applicant’s initial permit to practice was issued less than 2 years prior to the renewal date, the applicant must fulfill the following continuing professional education requirements: (1) No continuing education requirement if initial permit was issued less than 1 year prior to the renewal date; or (2) A prorated continuing professional education requirement as determined by Board rule if initial permit was issued 1 year or more, but less than 2 years, prior to the renewal date. (e) No new permits to practice public accountancy shall be issued after December 31, 2016. Applications for reciprocal public accountant permits to practice will be accepted from public accountants who hold an active public accountant permit in good standing in another jurisdiction and who relocate to Delaware and identify Delaware as their primary residence. The Board may, by rule, require continuing education as a condition to issuance of the reciprocal permit. (65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 76 Del. Laws, c. 418, § 15; 80 Del. Laws, c. 247, § 1.) § 111 Requirements for permits to practice by firms. (a) Each firm with an office in this State and which intends to be or is engaged in the practice of certified public accountancy or the practice of public accountancy in this State shall be required to obtain and maintain a valid permit to practice. The Board shall grant or renew permits to firms that make application and demonstrate their qualifications in accordance with this section. (b) A firm that does not have an office in this State may engage in the practice of certified public accountancy in this State through an individual practicing pursuant to the practice privilege afforded by § 109 of this title without obtaining a permit under this section or otherwise notifying the Board. (c) Permits shall be renewed biennially. (d) An applicant for initial issuance or renewal of a CPA firm permit to practice under this section shall be required to show that: (1) Notwithstanding any other provision of law, a simple majority of the ownership of the firm, in terms of financial interests and voting rights, of all partners, officers, shareholders, members or managers, belongs to holders of a CPA certificate, CPA permit, or CPA license who are licensed in some state. All partners, officers, shareholders, members or managers, whose principal place of business is in this State, and who perform certified public accounting services in this State hold a valid permit to practice under § 108 of this title, or the corresponding provision of prior law. Although firms may include nonlicensee owners, the firm and its ownership must comply with applicable rules promulgated by the Board. (2) Any certified public accounting firm as defined in this title may include nonlicensee owners provided that: a. The firm designated a permit holder of this State who is responsible for the proper registration of the firm and identifies that individual to the Board. b. All nonlicensee owners are active individual participants in the certified public accounting firm or affiliated entities. c. The firm complies with such other requirements as the Board may impose by rule. (e) An applicant for initial issuance or renewal of a PA firm permit to practice under this section shall be required to show that: (1) Notwithstanding any other provision of law, a simple majority of the ownership of the firm, in terms of financial interests and voting rights, of all partners, officers, shareholders, members or managers, belongs to holders of permits to practice under § 110 of this title. All partners, officers, shareholders, members or managers, whose principal place of business is in this State, and who perform public accounting services in this state hold a valid permit to practice under § 110 of this title. Although firms may include nonlicensee owners, the firm and its ownership must comply with applicable rules promulgated by the Board. Page 7 Title 24 - Professions and Occupations (2) Any public accounting firm as defined in this title may include nonlicensee owners provided that: a. The firm designated a permit holder of this State who is responsible for the proper registration of the firm and identifies that individual to the Board. b. All nonlicensee owners are active individual participants in the public accounting firm or affiliated entities. c. The firm complies with such other requirements as the Board may impose by rule. (f) For purposes of this section, the employees of a public accounting firm with its principal office or offices outside of this State must obtain a permit for those employees who work in excess of 80 hours in this State or who work for a client or clients located in this State. However, any firm which is engaged to practice public accountancy in this State, for even 1 hour, is required to obtain a permit. Every principal of a public accounting firm who is responsible for the accounting work in this State shall obtain an individual permit to practice under § 110 of this title. (g), (h) [Repealed]. (i) An applicant for initial issuance or renewal of a permit to practice under this section shall be required to register each office of the firm within this State with the Board and to affirm that all attest and compilation services rendered in this State are under the charge of a person holding an active permit to practice issued under this chapter or qualifies for the practice privilege under § 109 of this title. (j) An applicant for initial issuance or renewal of permits under this section shall in his or her application list all states in which they have applied for or hold permits as CPA firms and list any past denial, revocation or suspension of a permit by any other state, and each holder of or applicant for a permit under this section shall notify the Board in writing, within 30 days after its occurrence, of any change in the identities of partners, officers, shareholders, members or managers whose principal place of business is in this State, any change in the number or location of offices within this State, any change in the identity of the persons in charge of such offices, and any issuance, denial, revocation or suspension of a permit by any other state. (k) An applicant for initial issuance or renewal of permits under this section shall in his or her application list all states in which they have applied for or hold permits as PA firms and list any past denial, revocation or suspension of a permit by any other state, and each holder of or applicant for a permit under this section shall notify the Board in writing, within 30 days after its occurrence, of any change in the identities of partners, officers, shareholders, members or managers whose principal place of business is in this State, any change in the number or location of offices within this State, any change in the identity of the persons in charge of such offices, and any issuance, denial, revocation or suspension of a permit by any other state. (l) Firms which fall out of compliance with the provisions of this section due to changes in ownership or personnel, after receiving or renewing a permit, shall take corrective action to bring the firm back into compliance within 60 days. Failure to bring the firm back into compliance within 60 days will result in the suspension or revocation of the firm permit. (m) Effective July 1, 2017, the Board shall by rule require as a condition to renewal of permits under this section, that firms that provide attest and/or compilation services be enrolled in a board-approved peer review program and comply with the applicable standards and guidance of that program, provided that any such rule: (1) Shall be promulgated reasonably in advance of the time when it first becomes effective; (2) Shall include reasonable provision for compliance by a firm showing that it has, within the preceding 3 years, undergone a peer review. Such compliance requirement shall first be effective for the renewal period ending June 30, 2019; and (3) Shall require, with respect to any organization administering peer review programs, that it be subject to evaluations by the Board or its designee, to periodically assess the effectiveness of the peer review program under its charge. (65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 75 Del. Laws, c. 128, § 5; 76 Del. Laws, c. 418, § 16; 80 Del. Laws, c. 247, § 1.) § 112 Professional responsibilities. While § 111(a) of this title requires firms to obtain permits to practice, and § 102(10) of this title defines “firm” to include valid partnerships and corporations, this chapter shall not be interpreted to alter professional responsibility standards. All firms and accountants practicing in firms shall continue to be bound by professional responsibility standards no less stringent than those stated in § 608 of Title 8. (71 Del. Laws, c. 139, § 1; 80 Del. Laws, c. 247, § 1.) § 113 Examinations. The Board may, by regulation, prescribe the terms and conditions for granting credit to a candidate for a permit to practice certified public accountancy or an applicant for a permit to practice public accountancy based on the candidate’s or applicant’s satisfactory completion of an examination in any 1 or more of the subjects of the Uniform Certified Public Accountant Examination, the examination recognized by the National Society of Public Accountants and any written examination in any other subject or subjects given by the Board or by the licensing authority in any other jurisdiction. (27 Del. Laws, c. 98, § 3; Code 1915, § 982; 32 Del. Laws, c. 48, §§ 2, 3; Code 1935, § 1093; 24 Del. C. 1953, § 105; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 80 Del. Laws, c. 247, § 1.) Page 8 Title 24 - Professions and Occupations § 114 [Reserved.] (27 Del. Laws, c. 98, § 4; Code 1915, § 983; Code 1935, § 1094; 45 Del. Laws, c. 82, § 2; 24 Del. C. 1953, § 107; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 71 Del. Laws, c. 139, § 1; 75 Del. Laws, c. 128, § 6; 80 Del. Laws, c. 247, § 1, effective May 25, 2016.) § 115 Prohibited acts; limitation of services. (a) No person or firm shall perform compilation, review or audit services, as defined by the American Institute of Certified Public Accountants (AICPA), except holders of a valid permit to practice. (b) Audit services provided by holders of permits to practice public accountancy shall be limited to services for nonpublic entities. (65 Del. Laws, c. 167, § 1; 71 Del. Laws, c. 139, § 1.) § 116 Complaints. (a) The Board or any aggrieved person may file a complaint against any individual or firm holding a permit to practice or any certificate holder. All complaints shall be received and investigated by the Division in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation. The Division may refer a complaint against an individual practicing under § 109 of this title to the state of licensure for handling. (b) When it is determined that an individual or firm is engaged in the practice of certified public accountancy or public accountancy without having first obtained the appropriate permit, the Board shall apply to the Division of Professional Regulation to issue a cease and desist order. (c) Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation. (71 Del. Laws, c. 139, § 1; 76 Del. Laws, c. 418, § 17; 80 Del. Laws, c. 247, § 1.) § 117 Unprofessional conduct. An individual holding a certificate and any individual or firm holding a permit to practice shall be subject to those disciplinary actions set forth in § 118 of this title if, after a hearing, the Board finds that the individual or firm: (1) Has employed or knowingly cooperated in fraud or material deception in order to acquire or renew a certificate or permit to practice or be otherwise authorized to practice accountancy; or impersonated another person holding a certificate or permit to practice; or allowed another person to use the individual’s certificate or permit to practice; or aided or abetted a person not holding a certificate or permit to practice to represent himself or herself as holding a certificate or permit to practice; (2) Has engaged in an act of fraud or gross negligence in the practice of accounting or engaged in dishonorable, unethical or unprofessional conduct intended to or likely to deceive, defraud or harm the public; (3) Has been found guilty of or has entered a plea of guilty or nolo contendere to a crime that is substantially related to the practice of accountancy; (4) Has been subject to disciplinary sanction or censured or has had the individual’s certificate or permit to practice revoked or suspended in any other state for any cause other than failure to pay an annual registration fee; (5) Has been subject to disciplinary sanction or censured or has had the individual’s right to practice revoked before any state or federal agency; or (6) Has violated a lawful provision of this chapter or any lawful regulation or rule of professional conduct established thereunder. (27 Del. Laws, c. 98, § 5; Code 1915, § 984; Code 1935, § 1095; 24 Del. C. 1953, § 108; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 74 Del. Laws, c. 262, § 4; 76 Del. Laws, c. 418, § 18; 80 Del. Laws, c. 247, § 1.) § 118 Disciplinary sanctions. (a) The Board may impose any of the following sanctions or take any of the following actions, singly or in combination, when it finds that 1 or more of the conditions or violations set forth in § 117 of this title applies to a certificate or permit holder or to an individual or firm with practice privileges under § 109 of this title: (1) Issue a letter of reprimand; (2) Censure the certificate or permit holder or individual or firm with practice privileges under § 109 of this title; (3) Suspend the certificate or permit to practice or the practice privilege of the individual or firm; (4) Place the certificate or permit holder or the practice privilege holder on probationary status and require him or her to: a. Report regularly to the Board upon the matters which are the basis of the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; and/or c. Continue or renew his or her professional education until the required degree of skill has been attained in the areas which are the basis of the probation; Page 9 Title 24 - Professions and Occupations (5) Revoke the certificate or permit to practice or practice privilege of an individual or firm; (6) Impose a fine of up to $10,000 for each offense, at the discretion of the Board; and/or (7) Require the certificate or permit holder or practice privilege holder or firm to reimburse the Division for the cost of the investigation, including but not limited to, legal assistance, public hearings, materials, human resources, contractual assistance and appropriate salary and overtime pay for all state employees involved notwithstanding merit system laws or regulations to the contrary. (b) The Board may refuse or reject an applicant for a permit to practice if, after a hearing, the Board finds that an applicant has misstated or misrepresented a material fact in connection with the applicant’s application; has violated any section of the AICPA Code of Professional Conduct; or practiced public accountancy or certified public accountancy without being registered in accordance with this chapter. (c) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such actions have been remedied. (d) Upon an application (or petition), in writing, and after notice and a hearing, the Board may issue a new permit to practice or a practice privilege to a person or firm whose certificate or permit or practice privilege has been revoked or suspended or modify the terms of any suspension. (e) In the event of a formal or informal complaint concerning the activity of a certificate or permit holder that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s certificate or permit, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a certificate or permit may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose certificate or permit 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 to temporarily suspend the person’s certificate or permit. (60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 76 Del. Laws, c. 418, §§ 19, 20; 79 Del. Laws, c. 213, § 2; 80 Del. Laws, c. 247, § 1.) § 119 Board hearings; procedures. (a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 117 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with this chapter, § 8735 of Title 29 and the Administrative Procedures Act, Chapter 101 of Title 29. (b) Upon reaching its conclusion of law and determining an appropriate sanction, if any, the Board shall issue a written decision and order in accordance with § 10128 of Title 29. The order must restate the factual findings, but need not summarize the evidence presented. The decision and order may be issued over the signature of only the President or other officer of the Board. The decision and order must be sent by certified mail, return receipt requested, to the subject of the complaint. (c) [Repealed.] (60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 71 Del. Laws, c. 139, § 1; 80 Del. Laws, c. 247, § 1.) § 120 Ownership of working papers. (a) All statements, records, schedules, working papers and memoranda made by a permit holder or a partner, shareholder, officer, director or employee of a permit holder, incident to or in the course of rendering services to a client, except the reports submitted by the permit holder to the client, and except for records that are part of the client’s records, shall be and remain the property of the permit holder in the absence of an express agreement between the permit holder and the client to the contrary. No such statement, record, schedule, working paper or memorandum shall be sold, transferred or bequeathed without the consent of the client or the client’s personal representative or assignee, to anyone other than 1 or more surviving partners or stockholders or new partners or stockholders of the permit holder or any combined or merged firm or successor in interest to the permit holder. Nothing in this section should be construed as prohibiting any temporary transfer of working papers or other material necessary in the course of carrying out quality reviews. (b) A permit holder shall furnish to permit holder’s client or former client, upon request and reasonable notice: (1) A copy of the permit holder’s working papers, to the extent that such working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client; or (2) Any accounting or other records belonging to or obtained from or on behalf of the client that the permit holder removed from the client’s premises or received for the client’s account; the permit holder may make and retain copies of such documents of the client when they form the basis for work done by the permit holder. Page 10 Title 24 - Professions and Occupations (c) Nothing herein shall require a permit holder to keep any working paper beyond the period prescribed in any other applicable statute. (24 Del. C. 1953, § 110; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1.) § 121 Violations; penalties. (a) Where the Board has determined, upon notice and hearing pursuant to Chapter 101 of Title 29, that a person is engaged in the practice of certified public accountancy or public accountancy, or is representing himself or herself to the public as the recipient of a certificate or permit, or is holding himself or herself out as being authorized to practice certified public accountancy or public accountancy, without having lawfully obtained a certificate or permit, or without having a practice privilege under § 109 of this title, or otherwise wrongfully uses such title or any similar title to practice certified public accountancy or public accountancy, or continues to practice certified public accountancy or public accountancy after the revocation or suspension of a practice privilege in this State or after the revocation, suspension or expiration of a certificate or permit from this State or another state, the Board may apply to the Division of Professional Regulation to issue a cease and desist order. (b) Where the Board has determined, upon notice and hearing pursuant to Chapter 101 of Title 29, that a firm is improperly holding itself out as being authorized to practice certified public accountancy or public accountancy, the Board may apply to the Division of Professional Regulation to issue a cease and desist order. (c) [Repealed.] (d) Any person or entity who violates any provisions of this chapter or any rules or regulations promulgated hereunder, shall be liable for a civil penalty as set forth in § 118(a)(6) of this title. Where a partnership or corporation engages in the practice of certified public accountancy or public accountancy in violation of this chapter, or any rules or regulations promulgated hereunder, every partner of such partnership and every officer, director, shareholder or principal of such corporation, shall be deemed to have committed the violation in question. Nothing in this section shall be construed to prevent prosecution under, or be inconsistent with, Chapter 5 of Title 11. (27 Del. Laws, c. 98, § 7; Code 1915, § 986; Code 1935, § 1097; 24 Del. C. 1953, § 114; 55 Del. Laws, c. 193; 60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 139, § 1; 76 Del. Laws, c. 418, § 21; 80 Del. Laws, c. 247, § 1.) § 122 Status of existing certificates preserved. (a) Any person legally authorized to practice as a certified public accountant in this State as of July 1, 1985, shall thereafter possess the same rights and privileges as persons to whom permits to practice certified public accountancy shall be issued pursuant to this chapter, subject, however, to the power of the Board, as provided in this chapter, to suspend or revoke the certificate and/or permit to practice of such person or censure or reprimand such person for any of the causes set forth in this chapter. (b) Any person who holds a valid certificate issued under this chapter and regulations of the Board in effect on or before June 30, 1985, shall be deemed to have sufficient education and experience to satisfy the experience requirement of § 107 (c) of this title. (c) Any firm holding a valid permit to practice as of December 31, 2015, that would otherwise not quality for renewal solely based on § 111(d) of this title shall nevertheless be eligible for renewal. (d) [Repealed.] (60 Del. Laws, c. 198, § 1; 65 Del. Laws, c. 167, § 1; 71 Del. Laws, c. 139, § 1; 75 Del. Laws, c. 128, §§ 7, 10; 80 Del. Laws, c. 247, § 1.) § 123 Status of existing public accountants preserved. Any person legally authorized to practice as a public accountant in this State as of June 30, 1985, or who had a permit to practice public accountancy on that date shall thereafter possess the same rights and privileges as persons to whom permits to practice public accountancy shall be issued pursuant to § 110 of this title, subject, however, to the power of the Board, as provided in this chapter, to suspend or revoke the permit of such person or censure or reprimand such person for any of the causes set forth in this chapter. (65 Del. Laws, c. 167, § 1; 66 Del. Laws, c. 132; 71 Del. Laws, c. 139, § 1.) § 124 Renewals. In the event that a permit holder fails to timely renew a permit, such permit can be reinstated within a period of 1 year from the lapse of the permit to practice, at the discretion of the Board, upon payment of the regular renewal fee plus an additional late renewal processing fee established by the Division of Professional Regulation, and upon the permit holder furnishing proof of compliance with all other permit requirements established by the Board, including proof that the permit holder has met the continuing education requirements established by the Board. §§ 125, 126 [Reserved.] § 127 Permitted titles and safe harbor language. (a) Notwithstanding any provision to the contrary contained herein, an individual who is not a licensee of the Board shall not be prohibited the use of the following titles: the unadorned word “Accountant”; “Enrolled Agent” or initials “E.A.”; “Accredited business Advisor” or the initials “A.B.A.”; “Accredited Tax Preparer” or the initials “A.T.P.”; “Accredited Tax Advisor” or the initials “A.T.A.” Page 11 Title 24 - Professions and Occupations (b) Notwithstanding any provision to the contrary contained herein, an individual who is not a licensee of the Board shall not be prohibited the use of the following language in connection with financial statements: “I (we) have prepared the accompanying (financial statements) of (name of entity) as of (time period) for the (period) then ended. This presentation is limited to preparing in the form of financial statements information that is the representation of management (owners).“I (we) have not audited or reviewed the accompanying financial statements and accordingly do not express an opinion or any other form of assurance on them.” (76 Del. Laws, c. 418, § 23.) Page 12 Title 24 - Professions and Occupations Chapter 2 Landscape Architects § 200 Objectives of board. The primary objective of the Board of Landscape Architecture, to which all other objectives and purposes are secondary, is to protect the general public (specifically those persons who are direct recipients of services regulated by this chapter) from unsafe practices, and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence, shall monitor complaints brought against practitioners regulated by the Board, shall adjudicate at formal complaints hearings, shall promulgate rules and regulations, and shall impose sanctions where necessary against practitioners. (63 Del. Laws, c. 461, § 1; 67 Del. Laws, c. 385, § 1.) § 201 Definitions. The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them except where the context clearly indicates a different meaning: (1) “Board” shall mean the Delaware State Board of Landscape Architecture. (2) “Landscape architect” shall mean a person who, on the basis of demonstrated knowledge acquired by professional education or practical experience, or both, has been granted and holds a current certificate entitling the person to use the designation “landscape architect” and practices landscape architecture in this State under the authority of this chapter. (3) a. “Landscape architecture” shall mean any service or creative work the adequate performance of which requires landscape architectural education, training and experience. It shall mean the performance of professional services such as consultation, investigation, research, planning, design, preparation of drawings, specifications and contract documents, and responsible supervision or construction management in connection with the development of land areas where, and to the extent that the dominant purpose of such services is: The preservation, enhancement or determination of proper land uses, natural land features, wetlands and environmentally sensitive plant and animal communities, naturalistic and aesthetic values; the determination of settings, circulation systems, and hard scaping structures, grounds and approaches for buildings and structures or other improvements; the determination of environmental problems of land relating to erosion, flooding, blight and other hazards; the shaping and contouring of land and water forms; the setting of grades, determination of drainage and providing for storm drainage systems where such systems do not require structural design of system components and determination of landscape irrigation. b. “Landscape architecture” shall include the design of such tangible objects and features as are necessary to the purpose outlined herein but shall not include the design of buildings, structures and utilities with separate and self-contained purposes such as are ordinarily included in the practice of architecture or engineering. (4) “Substantially related” means the nature of criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to landscape architecture. (60 Del. Laws, c. 190, § 1; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 5; 74 Del. Laws, c. 336, § 1.) § 202 License required. No person shall hold oneself out to the public as being a licensed landscape architect, or use in connection with one’s name or otherwise assume, use or advertise any title or description intending to convey the impression that one is a licensed landscape architect, unless such person has been licensed under this chapter. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 2; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1.) § 203 Board of Landscape Architecture — Appointment; composition; qualifications; term of office; suspension or removal; compensation. (a) The Board of Landscape Architecture shall consist of 5 members appointed by the Governor: 3 professional members who shall be licensed landscape architects; and 2 public members. To serve on the Board, a public member shall not be nor ever have been a landscape architect, nor a member of the immediate family of a landscape architect; shall not have been employed by a landscape architect; shall not have had a material financial interest in the providing of goods and services to landscape architect; and shall not have been engaged in an activity directly related to landscape architecture. Such public member shall be accessible to inquiries, comments and suggestions from the general public. (b) Each member shall serve for a term of 3 years, and may successively serve 1 additional term; provided however, that where a member was initially appointed to fill a vacancy, such member may successively serve for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor. Page 13 Title 24 - Professions and Occupations (c) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (d) Any act or vote by a person appointed in violation of subsection (c) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (c) of this section, unless such amendment or revision amends this section to permit such an appointment. (e) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (f) No member of the Board of Landscape Architecture, while serving on the Board, shall be a president, chairperson or other official of a professional association of landscape architects. (g) The provisions set forth for “employees” in Chapter 58 of Title 29 shall apply to all members of the Board, and to all agents appointed by or otherwise employed by the Board. (h) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 3; 67 Del. Laws, c. 368, § 2; 67 Del. Laws, c. 385, § 1; 68 Del. Laws, c. 91, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 309, § 1; 81 Del. Laws, c. 85, § 1.) § 204 Board of Landscape Architecture — Officers; meetings; quorum. (a) In January of each year the members shall elect, from among their Board, a President, a Secretary and a Treasurer. Each officer shall serve for 1 year, and shall not successively serve for more than 2 consecutive terms. (b) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such other times as the President deems necessary; or at the request of a majority of Board members. Special or emergency meetings may be held without notice provided a quorum is present. (c) A majority of members shall constitute a quorum, and no action shall be taken without the affirmative vote of at least 3 members. Any member who fails to attend 3 consecutive meetings, or who fails to attend at least 1/2 of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed. (d) Minutes of all meetings shall be recorded, and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, such hearing shall be recorded and transcribed by the Division. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 4; 64 Del. Laws, c. 117, § 1; 65 Del. Laws, c. 355, § 1; 67 Del. Laws, c. 385, § 1; 68 Del. Laws, c. 91, § 2; 70 Del. Laws, c. 186, § 1.) § 205 Powers and duties. (a) The Board shall have authority to: (1) Formulate rules and regulations relating to official seals and other matters, with appropriate notice to those affected, where such notice can reasonably be given. Each rule or regulation shall implement or clarify a specific section of this chapter; (2) Designate the application form to be used by all applicants for licensure, subject to the approval of the Director of the Division of Professional Regulation, and to process all applications; (3) Designate a written national examination, prepared by either the national professional association or by a recognized legitimate national testing service. The examination shall be prepared for testing on a national basis, and not specifically prepared at the request of the Board for its individual use. The national examination shall be taken by persons applying for licensure, except applicants who qualify for licensure by reciprocity; (4) Provide for the administration of all examinations, including notice and information to applicants; (5) Under such conditions as are permitted by the national testing service, administer the uniform national examination, or another nationally-administered examination for those applicants who have been unable to take it at the school or college of landscape architecture, or elsewhere; (6) Grant licenses to all persons who meet the qualifications for licensure; (7) Refer complaints received from practitioners and from the public, concerning practitioners or practices of the profession, to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29; (8) If an investigation under § 8735 of Title 29 indicates that a disciplinary hearing is appropriate, to conduct such hearing in accordance with this chapter; with the provisions of § 8735(h) of Title 29; and with the applicable provisions of the Administrative Procedures Act [Chapter of 101 of Title 29]; (9) Where it has been determined after a disciplinary hearing that penalties or sanctions should be imposed, to designate and impose the appropriate penalties or sanctions after time for appeal has lapsed; Page 14 Title 24 - Professions and Occupations (10) Bring proceedings in the courts for the enforcement of this chapter; (11) Maintain complete records relating to meetings, applications, examinations, rosters, changes in the Board’s rules and regulations, complaints, hearings and other matters within the Board’s jurisdiction, except for those matters or subjects where the records are maintained by the Division of Professional Regulation; (12) Formulate rules and regulations relating to continuing education requirements for practitioners; and (13) Require, by subpoena, the attendance and testimony of witnesses and the production of papers, records and other documentary evidence. (b) The authority, powers and duties of the Board set forth in this section shall not be construed to include the computation or collection of fees and charges; formulation or administration of examinations; reimbursement of expenses; rules and regulations concerning public meetings; investigation of complaints; or any other powers or duties reserved to the Division of Professional Regulation in accordance with § 8735 of Title 29. (c) The Board of Landscape Architecture shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of landscape architecture. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 5; 67 Del. Laws, c. 385, § 1; 68 Del. Laws, c. 91, § 3; 70 Del. Laws, c. 309, § 2; 74 Del. Laws, c. 262, § 6.) § 206 Qualifications of applicant; report to Attorney General; judicial review. (a) An applicant who is applying for licensure under this chapter shall have 1 of the following qualifications: (1) Graduated from a school or college of landscape architecture approved or accredited by the National Council of Landscape Architectural Registration Boards, the American Society of Landscape Architects Landscape Architectural Accreditation Board, or other legitimate national association of landscape architects and acquired at least 2 years of professional experience in the practice of landscape architecture acceptable to the Board under the direct supervision of a licensed landscape architect. (2) Completed 2 years of courses in landscape architecture acceptable to the Board taken from a school or college of landscape architecture approved or accredited by the National Council of Landscape Architectural Registration Boards, the American Society of Landscape Architects Landscape Architectural Accreditation Board, or other legitimate national association of landscape architects and acquired 4 years of professional experience in the practice of landscape architecture acceptable to the Board under the direct supervision of a licensed landscape architect. (b) An applicant shall be required to pass the uniform national examination, prepared and graded by the National Council of Landscape Architectural Registration Boards. (c) An applicant shall not have been convicted of a crime that is substantially related to the practice of landscape architecture; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this subsection, if it finds all of the following: (1) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (2) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (3) The applicant is capable of practicing landscape architecture in a competent and professional manner. (4) The granting of the waiver will not endanger the public health, safety, or welfare. (d) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board. No application form shall require a picture of the applicant; require information relating to citizenship, place of birth, length of state residency; nor require personal references. (e) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action. (f) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for that person than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 6; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 7; 74 Del. Laws, c. 336, §§ 2-4; 75 Del. Laws, c. 436, § 2; 77 Del. Laws, c. 199, § 2; 78 Del. Laws, c. 44, §§ 3, 4; 80 Del. Laws, c. 205, § 1.) § 207 Examination. (a) The Board shall, in the same month of each year, or at such times as are determined by the testing service, administer the uniform national examination, prepared and graded by the National Council of Landscape Architectural Registration Boards or such portions of Page 15 Title 24 - Professions and Occupations the uniform national examination as it deems necessary. Such written examination shall be obtained from, and corrected by, the National Council of Landscape Architectural Registration Boards, or similar national testing service. Where an applicant has failed to pass the examination, but has successfully completed or passed certain portions or sections which the applicant previously failed, the applicant shall be permitted to retake only those certain portions or sections of the examination the applicant has failed, if the testing service permits such partial examination. In the event the applicant fails the second time to successfully complete or pass the examination, the Board may require that such applicant again take the complete examination. (b) In the event an applicant has already taken and passed the uniform national examination, the certificate from the National Council of Landscape Architectural Registration Boards acknowledging same shall be accepted, and no further state examination shall be necessary. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 7; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1.) § 208 Reciprocity. Where the applicant is already licensed in another state, the Board shall accept a certificate or other evidence of the examination score issued by the National Council of Landscape Architectural Registration Boards that the applicant has successfully completed or passed the uniform national examination, or the certificate or other evidence of successful completion of a similar national testing service for its national examination for landscape architects, in lieu of all other requirements for licensure provided for in this chapter. Upon receipt of an application for reciprocity, the Board shall contact each board which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. An application for licensure by reciprocity shall be accompanied by full payment of the reciprocity fee. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 8; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1.) § 209 [Repealed.] § 210 Renewal; inactive status; reinstatement. (a) [Repealed.] (b) Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation. The Board shall in its rules and regulations, determine the period of time within which a practitioner may still renew a license, notwithstanding the fact that such practitioner has failed to renew on or before the renewal date; provided, however, that such period shall not exceed l year. The Board shall charge for each month or quarter during such “late renewal period” a late fee which, at the end of such “late period” will be twice the sum of the unpaid renewal fee. At the expiration of the period designated by the Board, the license shall be deemed to be lapsed and not renewable unless the former licensee reapplies under the same conditions which govern reciprocity; provided, however, that the former licensee shall also pay a reinstatement fee in an amount which is 3 times the amount of the reciprocity fee. (c) Any licensee may, upon a written request, be placed in an inactive status. The renewal fee of such person shall be prorated in accordance with the amount of time such person was inactive. Such person may reenter practice upon notification to the Board of the intent to do so. (d) A former licensee who has been penalized for the violation of a provision of this chapter, or whose license has been suspended or revoked, and who subsequently is permitted to apply for reinstatement shall apply for a new license, successfully complete the uniform national examination and shall pay all appropriate fees therefor. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 10; 65 Del. Laws, c. 355, § 1; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 336, § 5; 80 Del. Laws, c. 205, § 2.) § 211 Complaints. All filings and investigations of complaints by practitioners or members of the public which concern any aspect of the practice of landscape architecture shall be presented and processed pursuant to § 8735(h) of Title 29. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 11; 65 Del. Laws, c. 355, § 1; 67 Del. Laws, c. 385, § 1.) § 212 Practice by corporations and partnerships. (a) The privilege of engaging in the practice of landscape architecture is personal, based upon the qualifications of the individual evidenced by registration and is not transferable. All final drawings, specifications, plans, reports or other papers or documents involving the practice of landscape architecture, as defined within this chapter, when issued or filed for public record, shall be dated and bear the signature and seal of the landscape architect or landscape architects who prepared or approved same. (b) Nothing in subsection (a) of this section shall be construed as preventing the formation of business entities, provided that such entities are authorized under Delaware law or the laws of another state, as a vehicle for the practice of or offer to practice landscape architecture for others by individual landscape architects licensed under this chapter through a business entity, or the offering or rendering of landscape architectural services by a business entity through landscape architects licensed under this chapter, provided that: (1) One or more of the officers, partners, members, managers, or principals is designated as being responsible for any services in the practice of landscape architecture on behalf of their business entity and is a licensed landscape architect under this chapter; Page 16 Title 24 - Professions and Occupations (2) All personnel of said business entity, who act in its behalf as landscape architects in this State or for clients located in this State are licensed under this chapter; and (3) Said business entity has been issued a certificate of authorization by the Board as herein provided. (c) A business entity desiring a certificate of authorization shall file with the Board an application, on forms provided by the Board, listing relevant information, including the names and addresses of officers, partners, members, managers or principals of the business entity and also of the individual or individuals duly licensed to practice landscape architecture in this State who shall be in responsible charge of the practice of landscape architecture in compliance with paragraph (b)(1) of this section and any other information required by the Board, accompanied by the appropriate fee. A certificate of authorization shall be renewed biennially in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division. In the event there should be a change in the information provided on the application for a certificate of authorization, notification of such change shall be provided to the Board in writing within 30 days of the effective date of such change. (d) No such business entity shall be relieved of responsibility for the conduct or acts of its agents, employees, officers, partners, members or principals by reason of its compliance with this section, nor shall any individual be relieved of responsibility for landscape architectural services performed by reason of employment or relationship with such business entity. All business entities and landscape architects practicing through such entities shall be bound by professional standards no less stringent than those stated in § 608 of Title 8. (e) The Board may revoke, suspend or cancel a certificate of authorization, if after a hearing, the Board determines that any officer, partner, member, manager, principal, or employee has violated any lawful provision of this chapter, or any lawful regulation established thereunder. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 12; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 336, §§ 6-8.) § 213 Grounds for discipline; procedure. (a) Practitioners regulated under this chapter shall be subject to those disciplinary actions set forth in § 214 of this title if, after a hearing, the Board finds: (1) That the practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice landscape architecture; (2) Illegal, incompetent or negligent conduct in the practice of landscape architecture; (3) Excessive use or abuse of drugs (including alcohol, narcotics or chemicals); (4) That the practitioner has been convicted of a crime that is substantially related to the practice of landscape architecture; (5) That the practitioner, as a landscape architect or otherwise in the practice of the profession, knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition or participated in price-fixing activities; (6) That the practitioner has violated a lawful provision of this chapter, or any lawful regulation established thereunder. (b) A practitioner shall be subject to nondisciplinary remedial action if, after a hearing, the Board finds that there is a danger to the health, safety and welfare of the public due to: (1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; (2) Temporary emotional disorder or mental illness; or (3) Permanent emotional disorder or mental illness. (c) If a practitioner’s physical or mental capacity to practice safely is at issue in a nondisciplinary remedial proceeding, the Board may order the practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render a practitioner liable to temporary suspension or revocation of license in accordance with § 214 of this title. (d) Where a practitioner fails to comply with the Board’s request that the practitioner submit to an examination or attending a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order. (e) Subject to subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board; and no practitioner’s right to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard in accordance with the Administrative Procedures Act [29 Del. C. § 10101 et seq.]. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 13; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 8.) § 214 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in § 213 of this title applies to a practitioner regulated by this chapter: (1) Issue a letter of reprimand; (2) Censure a practitioner; Page 17 Title 24 - Professions and Occupations (3) Place a practitioner on probationary status, and require the practitioner to: a. Report regularly to the Board upon the matters which are the basis of the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; and/or c. Continue or renew the practitioner’s professional education until the required degree of skill has been attained in those areas which are the basis of the probation; (4) Suspend any practitioner’s license; (5) Revoke any practitioner’s license. (b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied. (c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (d) Where a license has been suspended due to a disability of the licensee, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety. (e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 14; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 336, § 9; 79 Del. Laws, c. 213, § 2.) § 215 Hearing procedures. (a) Upon the receipt of a complaint, the Board shall determine what action, if any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within 3 months from the date on which the complaint was received. The Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least 30 days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation. (b) All hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board’s decision shall be in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the practitioner. The Board’s decision shall become effective on the thirtieth day after the date it is mailed or served on the practitioner, unless there is an appeal by the practitioner to the Superior Court within that time. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 15; 67 Del. Laws, c. 385, § 1.) § 216 Practicing without a license; penalties. (a) Where the Board has determined that a person is practicing landscape architecture within the State without having lawfully obtained a license therefor, or that a person previously licensed is unlawfully practicing although the person’s license has been suspended or revoked, the Board shall formally warn such person. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board. (b) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner, it may, after a hearing on the matter, suspend or revoke the practitioner’s license. (c) Where a person not currently licensed as a landscape architect is convicted of unlawfully practicing landscape architecture in violation of this chapter such offender shall, upon the first offense, be fined $50, and shall pay all costs; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the applicable provisions of Title 11. Page 18 Title 24 - Professions and Occupations (d) Where a person previously convicted of unlawfully practicing landscape architecture is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by $250 for each subsequent offense thereafter. (60 Del. Laws, c. 190, § 1; 63 Del. Laws, c. 461, § 16; 67 Del. Laws, c. 385, § 1; 70 Del. Laws, c. 186, § 1.) §§ 217-219 [Repealed.] Page 19 Title 24 - Professions and Occupations Chapter 3 Architecture § 301 Objectives and functions. The primary objective of the Board of Architects, to which all other objectives and purposes are secondary, is to protect the general public (including those persons who are direct recipients of services regulated by this chapter) from unsafe practices, and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of architect competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against architects regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against architects. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1.) § 302 Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (1) “Architect” shall mean any person who engages in the practice of architecture as hereinafter defined. (2) The “Board” shall mean the Board of Architects established by § 8735(a)(3) of Title 29 and this chapter. (3) “Certificate of registration” shall mean any document which indicates that a person is currently registered with the Board of Architects. (4) “Direct supervision” shall mean that degree of supervision by a person overseeing the work of another whereby the supervisor has both control over and detailed professional knowledge of the work prepared under the person’s supervision. (5) “Practice of architecture” shall mean the rendering or offering to render those services, hereinafter described, in connection with the design and construction, enlargement or alteration of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures; the services referred to include planning, preparing studies, designs, drawings, specifications and other technical submissions and furnishing administration of construction contracts. (6) “Registered architect” shall mean an architect holding a current certificate of registration. (7) “Substantially related” means the nature of criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of architecture. (8) “Technical submissions” shall mean designs, drawings, specifications, studies and other technical reports prepared in the course of practicing architecture. (62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 65 Del. Laws, c. 355, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 9.) § 303 Registration to practice; construction of chapter. (a) The right to engage in the practice of architecture shall be deemed a personal right, based upon the qualifications of the individual as evidenced by a certificate of registration, which shall not be transferable. No person shall engage in the practice of architecture in this State or otherwise hold oneself out to the public as being an architect, or use in connection with the person’s name, or otherwise assume, use or advertise any title or description intending to convey the impression that the person is an architect, unless such person has a certificate of registration. (b) The provisions of this chapter shall not be construed to prevent, nor to affect: (1) The preparation of technical submissions or the administration of construction contracts by an employee or subordinate of a person or organization lawfully engaged in the practice of architecture, providing such work is done under the direct responsibility and supervision of such person or organization; (2) The practice of architecture by a person licensed in this State as a professional engineer, when such practice is incidental to what may be properly considered an engineering project; (3) The practice of landscape architecture by a landscape architect, regardless of whether the practice of landscape architecture shall continue to be licensed under the Delaware Code; (4) A nonresident, who holds a certificate to practice architecture in the state in which the person resides, and/or in addition holds the certification issued by the National Council of Architectural Registration Boards, from agreeing to perform or holding the person’s self out as able to perform any of the professional services involved in the practice of architecture; provided that the person shall not perform any of the professional services involved in the practice of architecture until registered as provided in subsection (a) of this section; and further provided that the person notifies the Board in writing if the person, prior to registration, engages in any of the activities permitted by this paragraph; Page 20 Title 24 - Professions and Occupations (5) Any of the activities that, apart from this exemption, would constitute the practice of architecture, if performed in connection with any of the following: a. Single and 2-family dwellings, and any sheds, storage buildings and garages incidental to such dwellings; b. Farm buildings, including barns, silos, sheds or housing for farm equipment and livestock, provided such structures are designed to be occupied by no more than 10 persons; or c. Any alteration, renovation or remodeling of a structure when such alteration, renovation or remodeling does not affect structural or other safety features of the structure and when the work contemplated by the design does not require the issuance of a permit under applicable building codes; (6) The preparation of submissions to architects by the manufacturer, supplier, installer, or others of any materials, components, or equipment incidental to the architect’s design of the entire project that describe or illustrate the use of such items; (7) The preparation of any details or shop drawings required of the contractor by the terms of the construction documents; (8) The management of construction contracts by persons engaged in contracting work; (9) The preparation of technical submissions or the administration of construction contracts by persons acting under the responsible control of a registered architect; (10) Officers and employees of the United States of America from engaging in the practice of architecture as employees of said United States of America; (11) A person who holds the certification issued by the National Council of Architectural Registration Boards (NCARB) but who is not currently registered in the jurisdiction, from offering to provide the professional services involved in the practice of architecture, provided that the person shall not perform any of the professional services involved in the practice of architecture until registered as hereinbefore provided, and further provided that he or she notifies the Board in writing that: a. The person holds a NCARB certificate and is not currently registered in the jurisdiction, but will be present in Delaware for the purpose of offering to provide architectural services; b. The person will deliver a copy of the notice referred to in paragraph (b)(11)a. of this section to every potential client to whom the person offers to render architectural services; and c. The person will provide the Board with a statement of intent that the person will apply immediately to the Board for registration, if selected as the architect for a project in Delaware; (12) A person who holds the certification issued by the National Council of Architectural Registration Boards but who is not currently registered in the jurisdiction from seeking an architectural commission by participating in an architectural design competition for a project in Delaware, provided that the person notifies the Board in writing that: a. The person holds an NCARB certificate and is not currently registered in the jurisdiction, but will present in Delaware for the purpose of participating in an architectural design competition; b. The person will deliver a copy of the notice referred to in paragraph (b)(11)a. of this section to every person conducting an architectural design competition in which the person participates; and c. The person will provide the Board with a statement of intent that the person will apply immediately to the Board for registration, if selected as the architect for the project; (13) A person who is not currently registered in Delaware, but who is currently registered in another United States or Canadian jurisdiction, from providing uncompensated (other than reimbursement of expenses) professional services at the scene of an emergency at the request of a public officer, public safety officer, or municipal or county building inspector acting in an official capacity. “Emergency” shall mean earthquake, eruption, flood, storm, hurricane, or other catastrophe that has been designated as a major disaster or emergency by the President of the United States or the Governor or other duly authorized office of the State of Delaware; (14) An individual registered and practicing in a nation other than the United States or Canada (a “foreign architect”) from practicing in this jurisdiction, so long as such practice is in strict accordance with the provisions of this subsection: a. The foreign architect must show that such foreign architect holds a current registration in good standing which allows such foreign architect to use the title “architect” and to engage in the “unlimited practice of architecture” (defined as the ability to provide services on any type building in any state, province, territory, or other political subdivision of the foreign architect’s national jurisdiction). b. The foreign architect must show that a bilateral agreement exists between the NCARB and the national registration authority of the foreign architect’s national jurisdiction. c. An architect registered in this jurisdiction shall take responsible control over all aspects of the architectural services for said project. d. The foreign architect may not seek, solicit, or offer to render architectural services in this jurisdiction, except with the material participation of the architect referred to in paragraph (b)(14)c. of this section above. e. Promptly after the foreign architect has been selected to provide architectural services for a project within this jurisdiction, the architect referred to in paragraph (b)(14)c. of this section above must file a statement with the Board: Page 21 Title 24 - Professions and Occupations 1. Identifying the foreign architect; 2. Describing the project; and 3. Describing the foreign architect’s role. f. In all aspects of offering or providing architectural services within this jurisdiction, the foreign architect must use the title “[x], a foreign architect in consultation with [y], an architect registered in Delaware”; (15) A person currently employed under the responsible control of an architect, and who maintains in good standing a National Council of Architectural Registration Boards record, from using the title “intern architect” or “architectural intern” in conjunctions with the person’s current employment. Such person may not engage in the practice of architecture except to the extent permitted by other provisions of this chapter. (c) The owner of any real property who allows a project to be constructed on such real property shall be engaged in the practice of architecture unless the owner shall have employed or shall have caused others to have employed a registered architect and/or a registered engineer to furnish construction contract administration services with respect to such project. (1) For purposes of this section, the following terms shall have the following meanings: a. “Building official” shall mean the person appointed by the municipality or State subdivision having jurisdiction over the project to have principal responsibility for the safety of the project as finally built. b. “Construction contract administration services” shall comprise at least the following services: 1. Visiting the construction site on a regular basis as is necessary to determine that the work is proceeding generally in accordance with the technical submissions submitted to the building official at the time the building permit was issued; 2. Processing shop drawings, samples, and other submittals required of the contractor by the terms of construction contract documents; and 3. Notifying an owner and the building official of any code violations, changes which affect code compliance, the use of any materials, assemblies, components or equipment prohibited by a code, major or substantial changes between such technical submissions and the work in progress, or any deviation from the technical submissions which he or she identifies as constituting a hazard to the public, which he or she observes in the course of performing his or her duties. c. “Owner” shall mean with respect to any real property any of the following persons: 1. The holder of a mortgage secured by such property; 2. The holder, directly or indirectly, of an equity interest in such real property exceeding 10 percent of the aggregate equity interest in such real property; 3. The record owner of such real property; or 4. The lessee of all or any portion of such real property when the lease covers all of that portion of such real property upon which the project is being constructed, the lessee has significant approval rights with respect to the project, and the lease, at the time the construction of the project begins, has a remaining term of not less than 10 years. d. “Project” shall mean the construction, enlargement, or alteration of a building, other than a building exempted by the provisions of paragraph (b)(5) of this section. (2) If the registered architect who sealed the technical submissions which were submitted to the building official at the time the building permit was issued has not been employed to furnish construction contract administration services at the time such registered architect issues such technical submissions, the registered architect shall note on such technical submissions that the registered architect has not been so employed. If the registered architect is not employed to furnish construction contract administration services when construction of the project begins, the registered architect shall file, not later than 30 days after such construction begins, with the Board and with the building official, on a form prescribed by the Board, a notice setting forth the names of the owner or owners known to the registered architect, the address of the project, and the name, if known to the registered architect, of the registered architect employed to perform construction contract administration services. If the registered architect believes that no registered architect has been so employed, the registered architect shall so state on the form. Any registered architect who fails to place the note on that registered architect’s technical submissions or to file such notice, as required by this paragraph, shall have violated the provisions of this chapter and shall be subject to disciplines as set forth herein. (3) If the Board determines, with respect to a particular project or class of projects, that the public is adequately protected without the necessity of a registered architect performing construction contract administration services, the Board may waive the requirements of this subsection with respect to such project or class of projects. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 261, §§ 1, 2.) § 304 Board of Architects. (a) The Board of Architects shall consist of 9 members appointed by the Governor: 5 professional members who shall be registered architects; and 4 public members. To serve on the Board, a public member shall not be, nor ever have been, employed by a person or firm which provides construction services, nor a member of the immediate family of an architect or engineer; shall not have been employed by a person or firm which provides construction services (which shall include architects and architectural businesses, engineers and engineering Page 22 Title 24 - Professions and Occupations businesses, and any other occupation involved in the design of structures); shall not have had a material financial interest in the providing of goods and services to any person or firm which provides construction services; nor have been engaged in an activity directly related to the design of buildings. No person shall be a public member if a member of such person’s immediate family is an architect, or is an employee of an architect; or if a member of such person’s immediate family has a material or financial interest in the providing of goods or services to architects. Each public member shall be accessible to inquiries, comments and suggestions from the general public. (b) Each member shall serve for a term of 3 years, and may successively serve 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may successively serve only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, and the member shall no longer be eligible to participate in Board proceedings unless lawfully appointed. Current Board members, who will have served as members for 10 years or more at the end of their current terms, will not be eligible for reappointment to the Board. (c) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (d) No member of the Board of Architects, while serving on the Board, shall be a president, chairperson or other official of a professional architect association. (e) The provisions set forth for “employees” in § 5805 of Title 29 shall apply to all members of the Board, and to all agents appointed, or otherwise employed, by the Board. (f) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (38 Del. Laws, c. 60, §§ 1-3, 11; Code 1935, §§ 891-893, 901; 24 Del. C. 1953, §§ 301, 309; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 67 Del. Laws, c. 368, § 3; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 85, § 2.) § 305 Officers; conduct of business. (a) In the same month of each year, the members shall elect, from among their number, a president and a secretary. A member may serve as an officer of the Board for not more than 2 consecutive years. (b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the president may deem necessary, or at the request of a majority of Board members. A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least 5 members. Any member who fails to attend 3 consecutive meetings, or who fails to attend at least 1/2 of all regular business meetings during any calendar year, shall automatically, upon such occurrence, be deemed to have resigned from office and a replacement shall be appointed. (c) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing in which evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it. (d) The Division of Professional Regulation shall annually compute the average expenses incurred in duplicating the following materials: The meeting schedule for the Board, notice of next business meeting and the minutes of Board meetings. Upon initial registration and each registration renewal, each registered architect shall receive a list of materials available from the Division, and the price charged to receive each for 1 year. Each item shall be offered to the registered architect and to members of the public at a cost set by the Division of Professional Regulation. (38 Del. Laws, c. 60, §§ 1, 5-7; Code 1935, §§ 891, 895-897; 24 Del. C. 1953, §§ 303-305; 56 Del. Laws, c. 399, § 1; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 65 Del. Laws, c. 355, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1.) § 306 Powers and duties. (a) The Board of Architects shall have the authority to: (1) Promulgate rules of conduct governing the practice of architects, including rules and regulations concerning continuing education, and/or misrepresentations, conflicts of interest, disability, violations of law or other unprofessional conduct. Each rule or regulation shall implement or clarify a specific section of this chapter; (2) Designate the application form to be used by all applicants for certificates of registration, and to process all applications; (3) Designate a written examination to be taken by persons applying for a certificate of registration. The Board shall adopt the examinations of the National Council of Architectural Registration Boards, or a comparable alternative national or regional examination, if a national examination is not available; (4) Provide for the administration of all examinations, including notice and information to applicants. The Board shall adopt the administration and grading procedures of the National Council of Architectural Registration Boards, or of a comparable alternative national or regional examination if a national examination is not available; (5) Designate the requirements for the issuance of a certificate of registration consistent with the other provisions of this chapter; Page 23 Title 24 - Professions and Occupations (6) Grant certificates of registration to all persons who meet the qualifications for registration and who otherwise satisfy the requirements set forth in this chapter; (7) Refer all complaints from registered architects and from the public concerning architects, or concerning practices of the Board or of the profession, to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29; (8) Hold hearings and take such actions as are permitted under the provisions of the Administrative Procedures Act, Chapter 101 of Title 29. Where such provisions conflict with the provisions of this chapter, this chapter shall govern. The Board shall determine whether or not an architect shall be subject to a disciplinary hearing, and if so, shall conduct such hearing in accordance with this chapter and the Administrative Procedures Act; (9) Where it has been determined after a disciplinary hearing, that penalties or sanction should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed; (10) Bring proceedings in the courts for the enforcement of this chapter; (11) In cooperation with Division of Professional Regulation, to maintain complete records relating to meeting minutes, applications, examinations, rosters, changes and additions to the rules and regulations, complaints, hearings and such other matters as the Board shall determine. The Division of Professional Regulation shall have the power to review, approve and execute all contracts for examination services; (12) The Board may require by subpoena the attendance and testimony of witnesses and the production of papers, records or other documentary evidence. (b) The Board of Architects shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of architecture. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 74 Del. Laws, c. 262, § 10.) § 307 Application procedures. (a) An applicant who is applying for initial registration under this chapter shall have the following qualifications: (1) The applicant shall hold a National Architectural Accrediting Board (NAAB) accredited professional degree in architecture or shall have completed such other education as the Board deems equivalent. The Board shall adopt accreditation decisions of the NAAB and shall adopt regulations governing education or continuing education published from time to time by the National Council of Architectural Registration Boards; (2) The applicant shall have completed practical training in architectural work acceptable to the Board. (b) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board. (c) The Board may refuse or reject an applicant if, after a hearing, the Board finds that the applicant has: (1) Been convicted of committing a crime that is substantially related to the practice of architecture; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (c)(1), if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing architecture in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare; (2) Misstated or misrepresented a fact in connection with an application; (3) Been found guilty of a violation of any of the Requirements for Business and Professional Conduct required of architects and as set forth in statutes or regulations; (4) Practiced architecture without being registered in violation of the registration laws of Delaware. Notwithstanding such a finding, the Board may allow registration of such applicant if the applicant presents to the Board suitable evidence of reform. (d) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action. (e) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, has imposed higher or different standards for the person than for other applicants, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (f) [Repealed.] (38 Del. Laws, c. 60, §§ 13, 15; Code 1935, §§ 903, 905; 24 Del. C. 1953, §§ 311, 313; 56 Del. Laws, c. 399, § 2; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 11; 75 Del. Laws, c. 261, § 3; 75 Del. Laws, c. 436, § 3; 77 Del. Laws, c. 199, § 3; 78 Del. Laws, c. 44, §§ 5, 6; 80 Del. Laws, c. 206, § 1.) Page 24 Title 24 - Professions and Occupations § 308 Examination of applicants. (a) An applicant for initial registration under this chapter shall be required to pass an examination adopted by the Board and graded by a national testing administrator. The Board, or its agent, shall, at least once per year, provide for the administration and grading of such examination. Where an applicant has failed to pass the examination, but has successfully completed and passed certain portions or sections of the examination, the applicant shall in the next subsequent examination be tested only for those portions or section which the applicant has previously failed. (b) The Board may exempt from the written examination requirement an applicant who holds a certification issued by the National Council of Architectural Registration Boards. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 206, § 2.) § 309 Reciprocity. (a) Upon payment of the application fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who: (1) Holds a National Council of Architectural Boards (NCARB) certificate; or (2) Presents proof of current registration in good standing in another jurisdiction whose standards for licensure are substantially similar to those of this State; or (3) Is licensed in a jurisdiction whose standards for licensure are not substantially similar to those of this State but who has held an active license in good standing in that jurisdiction for a minimum of 5 years and holds a National Architectural Accrediting Board (NAAB) accredited professional degree in architecture or such other education as the Board deems equivalent; or (4) Is licensed in a jurisdiction whose standards for licensure are not substantially similar to those of this State but who has held an active license in good standing in that jurisdiction for a minimum of 13 years. (b) An applicant who is applying for licensure by reciprocity must also meet the requirements of § 307(c) of this title. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 206, § 3.) § 310 Fees. The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of Professional Regulation, or any state agency acting in its behalf, shall compute for each separate service or activity the appropriate Board fees for the coming year. (38 Del. Laws, c. 60, § 16; Code 1935, § 906; 24 Del. C. 1953, § 314; 53 Del. Laws, c. 108, § 3; 57 Del. Laws, c. 474; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 65 Del. Laws, c. 355, § 1; 68 Del. Laws, c. 144, § 1.) § 311 Issuance and renewal of certificate of registration. (a) Each applicant who meets the requirements of §§ 307 and 308 of this title, or the requirements of § 309 of this title, and who pays the fee established under § 310 of this title, shall be issued a certificate of registration. (b) Each certificate of registration shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation. The Board shall, in its rules and regulations, determine the period of time within which a registered architect may still renew a license, notwithstanding the fact that such registered architect has failed to renew on or before the renewal date; provided, however, that such period shall not exceed 1 year. The Board shall charge, for each month or quarter during such “late renewal period,” a late fee which at the end of such “late period” shall be twice the sum of the unpaid renewal fee. At the expiration of the period designated by the Board, the certification of registration of the registered architect shall be deemed to be lapsed and not renewable, unless the former Delaware registered architect, without further examination, files an application under the same conditions which govern the application for reciprocity pursuant to § 309 of this title, provided, however, that the former registered Delaware architect shall also pay a reinstatement fee in the amount which is 3 times the amount of the annualized reciprocity fee, as determined by the Division. (38 Del. Laws, c. 60, § 18; Code 1935, § 908; 24 Del. C. 1953, § 316; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 65 Del. Laws, c. 355, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 261, § 4.) § 312 Certificate of registration [Repealed]. (68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; repealed by 82 Del. Laws, c. 8, § 1, effective Apr. 9, 2019.) § 312A Certificate of authorization. (a) The privilege of engaging in the practice of architecture is personal, based upon the qualifications of the individual evidenced by registration and is not transferable. All final drawings, specifications, plans, reports, or other papers or documents involving the practice Page 25 Title 24 - Professions and Occupations of architecture, as defined within this chapter, shall be dated and bear the signature and seal of the architect or architects who prepared or directly supervised the same. (b) Nothing in subsection (a) of this section shall be construed as preventing the formation of business entities, provided that such entities are authorized under Delaware law or the laws of another state, as a vehicle for the practice of or offer to practice architecture for others by individual architects registered under this chapter through a business entity, or the offering or rendering of architectural services by a business entity through architects registered under this chapter, provided that: (1) One or more of the officers (if a corporation), partners (if a partnership), members or managers (if a limited liability company or publicly owned corporation), is designated as being responsible for any services in the practice of architecture on behalf of their respective business entity and is a registered architect under this chapter; (2) All personnel of said business entity, who act in its behalf as architects in this State or for clients located in this State are registered under this chapter; and (3) Said business entity has been issued a certificate of authorization by the Board as herein provided. (c) A business entity desiring a certificate of authorization shall file with the Board an application, on forms provided by the Board, listing relevant information, including the names, addresses, and license or registration numbers of directors, officers, partners, members or managers of the business entity and also of the individual or individuals duly registered to practice architecture in this State who shall be in responsible charge of the practice of architecture through the business entity in compliance with paragraph (b)(3) of this section above, and any other information required by the Board, accompanied by the appropriate fee as determined by the Division of Professional Regulation. A certificate of authorization may be renewed biennially by submission of the required information and fee. In the event that there should be a change in the information provided on the application for a certificate of authorization, notification of such change shall be provided to the Board in writing within 30 days of the effective date of such change. If all the requirements of this section are met, the Board shall issue a certification of authorization to such business entity, and that business entity shall be authorized to contract for and to collect fees for architectural services. (d) An applicant for initial issuance or renewal of a certificate of authorization shall be required to register each office of the business entity within this State with the Board and show that each office is under the charge and supervision of an individual holding a valid certificate of registration under this chapter. (e) No such business entity shall be relieved of responsibility for the conduct or acts of its agents, employees, officers, partners, members or principals by reason of its compliance with this section, nor shall any individual be relieved of responsibility for architectural services performed by reason of employment or relationship with such business entity. All business entities and architects practicing through such entities shall be bound by professional responsibility standards no less stringent than those stated in § 608 of Title 8. (f) The Board may revoke, suspend or cancel a certification of authorization, if after a hearing, the Board determines that any officer, partner, member, manager, principal or employee has violated any lawful provision of this chapter, or any lawful regulation established thereunder. (77 Del. Laws, c. 225, § 1.) § 313 Seal. Every registered architect shall have a seal of a design authorized by the Board by regulation. All technical submissions prepared by such architect, or under the architect’s direct supervision, shall be stamped with the impression of the architect’s seal. No registered architect shall impress the seal on any technical submissions unless they were prepared under the architect’s direct supervision. (68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1.) § 314 Violations; grounds for professional discipline. (a) An architect or holder of a certificate of authorization shall be subject to those disciplinary actions set forth in § 315 of this title, if, after a hearing, the Board finds that the architect or holder of a certificate of authorization has: (1) Employed or knowingly cooperated in fraud or material deception in order to acquire a certificate of registration, or be otherwise authorized to practice architecture; (2) Engaged in illegal, incompetent or negligent conduct in the practice of architecture; (3) As an architect or otherwise in the practice of the profession, knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition or participated in price-fixing activities; or (4) Violated a lawful provision of this chapter, or any lawful regulation established thereunder. (b) An architect shall be subject to nondisciplinary remedial action if, after a hearing, the Board finds that there is a danger to the health, safety and welfare of the public due to: (1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; (2) Temporary emotional disorder or mental illness; or (3) Permanent emotional disorder or mental illness. Page 26 Title 24 - Professions and Occupations (c) If an architect’s physical or mental capacity to practice safely is at issue in a non-disciplinary remedial proceeding, the Board may order the architect to submit to a reasonable physical or mental examination. Failure to comply with such an order shall render a registered architect liable to temporary suspension or revocation of the architect’s certificate of registration in accordance with § 315 of this title, notwithstanding the Board’s power to compel such attendance under subsection (d) of this section. (d) Where an architect fails to comply with the Board’s request that the architect submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said court or any judge assigned thereto shall have jurisdiction to issue such order. (e) No certificate of registration or certificate of authorization shall be restricted, suspended or revoked by the Board, and no registered architect’s right to practice shall be limited by the Board, until such registered architect or holder of a certificate of authorization has been given notice and an opportunity to be heard in accordance with § 316 of this title. (38 Del. Laws, c. 60, § 19; Code 1935, § 909; 24 Del. C. 1953, § 317; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 225, §§ 2-5.) § 315 Remedial actions and disciplinary sanctions. (a) The Board may impose any of the following sanctions or take any of the following actions, singly or in combination, when it finds that 1 of the conditions or violations set forth in § 314 of this title applies to an architect or holder of a certificate of authorization: (1) Issue a letter of reprimand; (2) Censure the architect or holder of a certificate of authorization; (3) Place the architect or holder of a certificate of authorization on probationary status, and require the architect or holder of a certificate of authorization to: a. Report regularly to the Board upon the matters which are the basis of the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; and/or c. Continue or renew the architect’s professional education until the required degree of skill has been attained in those areas which are the basis of the probation; (4) Suspend a registered architect’s certificate of registration or suspend a certificate of authorization; (5) Revoke a registered architect’s certificate of registration or revoke a certificate of authorization; (6) Issue cease and desist orders; (7) Seek injunctions; and/or (8) Seek judicial enforcement of civil fines imposed by the Board. (b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such actions have been remedied. (c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (d) Where a certificate of registration has been suspended due to a disability of the registered architect, the Board may reinstate such certification of registration if, after a hearing, the Board is satisfied that the registered architect is able to practice with reasonable skill and safety. (e) As a condition to reinstatement of a suspended certificate of registration, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter. (38 Del. Laws, c. 60, § 20; Code 1935, § 910; 24 Del. C. 1953, § 318; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 225, §§ 6-11; 79 Del. Laws, c. 213, § 2.) § 316 Board hearings; procedure. (a) Upon the receipt of a formal complaint from the Attorney General’s office, the Board shall fix the time and place of a full hearing of the matter, and it shall be scheduled to be heard as soon as practicable. The Board shall cause a copy of the complaint, together with Page 27 Title 24 - Professions and Occupations a notice of the time and place fixed for the hearing, to be personally delivered or served upon the architect at least 20 days before the date fixed for the hearing. In cases where the architect cannot be located or where personal services cannot be effected, substitute service shall be effected in the same manner as with civil litigation. (b) All hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board’s decision shall be in writing and shall include its reason for such decision. A copy of the decision shall be mailed by registered mail immediately to the complainant, and to the architect. The Board’s decision shall become effective on the thirtieth day after the day it is received by the architect, unless there is an appeal to the Superior Court within that time. (c) Where either the complainant or the architect is in disagreement with the action of the Board, either person may appeal the Board’s decision to the Superior Court within 30 days of the receipt of the Board’s decision. Upon such appeal, the Court shall hear the evidence “de novo.” The filing of an appeal shall act as a stay of the Board’s decision, pending final determination of the appeal. (64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1.) § 317 Penalties. (a) Where the Board has determined, upon notice and hearing pursuant to Chapter 101 of Title 29 that a person is engaged in the practice of architecture regulated by this chapter without having lawfully obtained a license or that a person previously licensed under this chapter is engaged in a practice regulated by this chapter notwithstanding that the person’s license has been suspended or revoked, the Board may issue a cease and desist order. In addition to the power to issue a cease and desist order, the Board may seek an injunctive order prohibiting such unlawful practice and/or seek the imposition of other civil penalties defined by this chapter. (b) Upon notice and hearing pursuant to Chapter 101 of Title 29, the Board may fine any person who violates such cease and desist order not less than $100 or more than $1000. Each day a violation continues may be deemed a separate offense in the Board’s discretion. (c) Where the Board has placed a registered architect on probationary status under certain restrictions or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the registered architect, the Board may, after a hearing on the matter, suspend or revoke the registered architect’s certificate of registration. (d) Any person who violates any provisions of this chapter or any rules or regulations promulgated hereunder shall be liable for a civil penalty of not more than $5,000 for the first offense; and not more than $10,000 for the second and each subsequent offense, which penalty may be sued for, and recovered by, the Board. Nothing in this section shall be construed to prevent prosecution under, or be inconsistent with, Chapter 5 of Title 11. (38 Del. Laws, c. 60, § 14; Code 1935, § 904; 24 Del. C. 1953, § 312; 62 Del. Laws, c. 344, § 1; 64 Del. Laws, c. 1, § 1; 68 Del. Laws, c. 144, § 1; 75 Del. Laws, c. 261, §§ 5, 6; 77 Del. Laws, c. 225, §§ 12, 13.) Page 28 Title 24 - Professions and Occupations Chapter 4 Barbers Subchapter I General Provisions [Repealed] §§ 401-416 Definitions; State Board of Examiners of Barbers; appointment; qualifications; terms of office; vacancies; oaths; organization; meetings; quorum; annual report; receipts; disbursements; rules and regulations; posting; revocation of license; hearing; examination of shops; failure to keep shops sanitary; examination of applicants; notice; registration in lieu of examination; certificates; renewals; fees; examination fee; qualification; certificate; renewal fee; apprentices; limitation on number; qualifications; card; register; open to public; following occupation of barber without certificate unlawful; saving clause; establishing new barbershop; fee; Sunday closing; penalty; penalties; jurisdiction [Repealed]. Repealed by 69 Del. Laws, c. 178, § 1, effective Feb. 4, 1994. Subchapter II Barber Schools [Repealed] §§ 421-432 Qualifications for registration; equipment requirements for barber schools; personal qualifications; student information; student barber sign; general regulations pertaining to schools; rules and regulations governing the operation and conduct of barber schools; examination by Board; licensing of students; curriculum requirements; fees; definitions; barber instruction in public schools [Repealed]. Repealed by 69 Del. Laws, c. 178, § 1, effective Feb. 4, 1994. Page 29 Title 24 - Professions and Occupations Chapter 5 Podiatry Subchapter I Board of Podiatry § 501 Objectives. The primary objective of the Board of Podiatry, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices that tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence, shall monitor complaints brought against practitioners regulated by the Board, shall adjudicate at formal hearings, shall promulgate rules and regulations, and shall impose sanctions where necessary against licensed practitioners. (64 Del. Laws, c. 39, § 1; 72 Del. Laws, c. 213, § 1.) § 502 Definitions [Effective until Jan. 1, 2021]. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning: (1) “Board” shall mean the State Board of Podiatry established in this chapter. (2) “Diagnosis” shall mean the ascertainment of a disease or ailment by its general symptoms. (3) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. (4) “Division” shall mean the State Division of Professional Regulation. (5) “Electrical treatment” shall mean the administration of electricity to the foot and ankle by means of electrodes, machinery, rays and the like. (6) “Excessive use or abuse of drugs” shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed physician or the abuse of alcoholic beverages such that it impairs a person’s ability to perform the work of a podiatrist. (7) “Manipulative treatment” shall mean the use of the hand or machinery in the operation of or working upon the foot and its articulations. (8) “Mechanical treatment” shall mean the application of any mechanical appliance made of steel, leather, felt or any material to the foot or the shoe for the purpose of treating any disease, deformity or ailment. (9) “Medical treatment” shall mean the application to or prescription for the foot and ankle of medicine, pads, adhesives, felt, plasters or any medicinal agency. (10) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (11) “Podiatrist” shall mean a person who is qualified to practice podiatry and is licensed under this chapter. (12) “Practice of podiatry” shall mean the diagnosis and the medical, surgical, mechanical, manipulative and electrical treatment of all ailments of the foot and ankle. As appropriate in regulation, these services may be performed with the use of telemedicine. Podiatry may also include participation in telehealth, as further defined in regulation. Amputation of the foot shall be restricted to statelicensed podiatrists who have completed an American Podiatric Medical Association accredited surgical residency program acceptable to the Board and have current amputation privileges, or have fulfilled the credentialing criteria of the surgical committee of the Joint Committee on Accreditation of Hospitals accredited hospital where the amputation is to be performed. (13) “State” shall mean the State of Delaware. (14) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (15) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to podiatry. (16) “Surgical treatment” shall mean the use of any cutting instrument to treat a disease, ailment or condition. (17) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (18) “Telemedicine” means the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer Page 30 Title 24 - Professions and Occupations technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (33 Del. Laws, c. 66, § 2; 40 Del. Laws, c. 108, § 2; Code 1935, § 5385; 24 Del. C. 1953, § 501; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 12; 80 Del. Laws, c. 80, § 7.) § 502 Definitions [Effective Jan. 1, 2021]. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning: (1) “Board” shall mean the State Board of Podiatry established in this chapter. (2) “Diagnosis” shall mean the ascertainment of a disease or ailment by its general symptoms. (3) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. (4) “Division” shall mean the State Division of Professional Regulation. (5) “Electrical treatment” shall mean the administration of electricity to the foot and ankle by means of electrodes, machinery, rays and the like. (6) “Electronic prescription” means a prescription that is generated on an electronic application and transmitted as an electronic data file. (7) “Excessive use or abuse of drugs” shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed physician or the abuse of alcoholic beverages such that it impairs a person’s ability to perform the work of a podiatrist. (8) “Manipulative treatment” shall mean the use of the hand or machinery in the operation of or working upon the foot and its articulations. (9) “Mechanical treatment” shall mean the application of any mechanical appliance made of steel, leather, felt or any material to the foot or the shoe for the purpose of treating any disease, deformity or ailment. (10) “Medical treatment” shall mean the application to or prescription for the foot and ankle of medicine, pads, adhesives, felt, plasters or any medicinal agency. (11) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (12) “Podiatrist” shall mean a person who is qualified to practice podiatry and is licensed under this chapter. (13) “Practice of podiatry” shall mean the diagnosis and the medical, surgical, mechanical, manipulative and electrical treatment of all ailments of the foot and ankle. As appropriate in regulation, these services may be performed with the use of telemedicine. Podiatry may also include participation in telehealth, as further defined in regulation. Amputation of the foot shall be restricted to statelicensed podiatrists who have completed an American Podiatric Medical Association accredited surgical residency program acceptable to the Board and have current amputation privileges, or have fulfilled the credentialing criteria of the surgical committee of the Joint Committee on Accreditation of Hospitals accredited hospital where the amputation is to be performed. (14) “State” shall mean the State of Delaware. (15) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (16) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to podiatry. (17) “Surgical treatment” shall mean the use of any cutting instrument to treat a disease, ailment or condition. (18) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (19) “Telemedicine” means the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (33 Del. Laws, c. 66, § 2; 40 Del. Laws, c. 108, § 2; Code 1935, § 5385; 24 Del. C. 1953, § 501; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 12; 80 Del. Laws, c. 80, § 7; 82 Del. Laws, c. 75, § 1.) Page 31 Title 24 - Professions and Occupations § 503 Board of Podiatry; appointments; composition; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation. (a) There is created a State Board of Podiatry that shall administer and enforce this chapter. (b) The Board shall consist of 5 members, appointed by the Governor, who are residents of this State: 3 shall be podiatrists licensed under this chapter and 2 shall be public members. The public members shall not be, nor ever have been, podiatrists, nor members of the immediate family of a podiatrist; shall not have been employed by a podiatrist or a company engaged in the practice of podiatry; shall not have a material interest in the providing of goods and services to podiatrists; nor have been engaged in an activity directly related to podiatry. The public members shall be accessible to inquiries, comments and suggestions from the general public. (c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless or until replaced by the Governor. Persons who are members of the Board on July 20, 1999, shall complete their terms. (d) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment. (f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of podiatrists; this includes a prohibition against serving as head of the professional association’s Political Action Committee (PAC). (h) The provisions set forth in Chapter 58 of Title 29 shall apply to all members of the Board. (i) Any member who is absent without adequate reason for 3 consecutive meetings or fails to attend at least 1/2 of all regular business meetings during any calendar year shall be guilty of neglect of duty. (j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition, shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (33 Del. Laws, c. 66, §§ 3, 14; 40 Del. Laws, c. 108, §§ 3, 17; Code 1935, §§ 5386, 5398; 42 Del. Laws, c. 159, § 1; 24 Del. C. 1953, §§ 502, 503; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 67 Del. Laws, c. 368, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 81 Del. Laws, c. 85, § 3.) § 504 Organization; meetings; officers; quorum. (a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year and at such times as the President deems necessary, or at the request of a majority of the Board members. (b) The Board annually shall elect a president and secretary. Each officer shall serve for 1 year, and shall not succeed himself or herself for more than 2 consecutive terms. (c) A majority of the members shall constitute a quorum for the purpose of transacting business, and no disciplinary action shall be taken without the affirmative vote of at least 3 members. (d) Minutes of all meetings shall be recorded, and the Division of Professional Regulation shall maintain copies. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it. (33 Del. Laws, c. 66, § 3; 40 Del. Laws, c. 108, § 3; Code 1935, § 5386; 42 Del. Laws, c. 159, § 1; 24 Del. C. 1953, § 502; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 505 Records. The Division of Professional Regulation shall keep a register of all approved applications for license as a podiatrist and 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 matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board. (72 Del. Laws, c. 213, § 1.) § 506 Powers and duties; immunity. (a) The Board of Podiatry shall have authority to: Page 32 Title 24 - Professions and Occupations (1) Formulate rules and regulations with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act [Chapter 101 of Title 29] of this State. Each rule or regulation shall implement or clarify a specific section of this chapter. (2) Designate the application form to be used by all applicants and to process all applications. (3) Designate the written, standardized examination on podiatry administered by the National Board of Podiatric Medical Examiners (NBPME) and the Podiatric Medical Licensing Examination for States (PMLEXIS), to be taken by all persons applying for licensure. (4) Evaluate the credentials of all persons applying for a license to practice podiatry in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this chapter. (5) Grant licenses to and renew licenses of all persons who meet the qualifications for licensure, including those persons who apply for temporary licensure. (6) Establish by rule and regulation continuing education standards required for license renewal. (7) Evaluate certified records to determine whether an applicant for licensure who previously has been licensed, certified or registered in another jurisdiction has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicant for such acts or offenses. (8) Refer all complaints from licensees and the public concerning licensed podiatrists or concerning practices of the Board or of the profession to the Division for investigation pursuant to § 8735 of Title 29 and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint. (9) Conduct hearings and issue orders in accordance with procedures established pursuant to Chapter 101 of Title 29. (10) Where it has been determined after a hearing that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed. (b) The members of the Board shall not be subject to and shall be immune from claims, suit, liability, damages or any other recourse, civil or criminal, arising from any act, proceeding, decision or determination undertaken or performed, or recommendation made, so long as such member of the Board acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under this chapter, or any other provisions of the Delaware or federal law or rules or regulations or duly adopted rule or regulation of the Board. Good faith is presumed unless otherwise proven, and malice is required to be proven by the complainant. (c) No member of the Board shall in any manner whatsoever discriminate against any applicant or person holding or applying for a certificate to practice podiatric medicine by reason of sex, race, color, creed or national origin. (d) No member shall participate in any action of the Board involving directly or indirectly any person related in any way by blood or marriage to said member. (e) The Board of Podiatry shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of podiatry. (61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 67 Del. Laws, c. 212, §§ 1, 2; 72 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 13.) Subchapter II License § 507 License required. (a) No person shall engage in the practice of podiatry or hold himself or herself out to the public in this State as being qualified to practice podiatry; or use in connection with that person’s name, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice podiatry, unless such person has been duly licensed under this chapter. (b) Whenever a license to practice as a podiatrist in this State has expired or been suspended or revoked, it shall be unlawful for the person to practice podiatry in this State. (64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 508 Qualifications of applicant; report to Attorney General; judicial review. (a) An applicant who is applying for licensure as a podiatrist under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person: (1) Has received a degree of “Doctor of Podiatric Medicine” or its equivalent from a college or school approved by the Council on Podiatric Education of the American Podiatric Medical Association, or the successor of such Council. (2) Has satisfactorily completed a hospital residency program approved by the Council on Podiatric Medical Education. (3) Has satisfactorily completed the Podiatric Medical Licensing Examination for States (PMLEXIS); the minimum passing score shall be that score recommended by the testing service providing the examination. (4) Shall not have been the recipient of any administrative penalties regarding the applicant’s practice of podiatry, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license Page 33 Title 24 - Professions and Occupations renewal fees), probationary limitations, and/or has not entered into any “consent agreements” which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure. (5) Shall not have any impairment related to drugs, alcohol or a finding of mental incompetence by a physician that would limit the applicant’s ability to undertake the practice of podiatry in a manner consistent with the safety of the public. (6) Shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of podiatry. Applicants who have criminal conviction records or pending criminal charges shall request appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of podiatry. After a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(6), if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing podiatry in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare. (7) Has not engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter, and has no disciplinary proceedings or unresolved complaints pending against the applicant in any jurisdiction where the applicant has previously been or currently is licensed. (8) Has not been convicted of a felony sexual offense. (9) Has submitted, at the applicant’s expense, fingerprints and other necessary information in order to obtain the following: a. A report of the applicant’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person. b. A report of the applicant’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Podiatry shall be the screening point for the receipt of said federal criminal history records. c. An applicant may not be licensed to practice podiatric medicine until the applicant’s criminal history reports have been produced. An applicant whose record shows a prior criminal conviction may not be licensed by the Board unless a waiver is granted pursuant to paragraph (a)(6) of this section. (10) Has submitted to the Board a sworn or affirmed statement that the applicant is, at the time of application, physically and mentally capable of engaging in the practice of podiatric medicine according to generally accepted standards, and submit to such examination as the Board may deem necessary to determine the applicant’s capability. (b) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that the applicant has supplied false information, the Board shall report its findings to the Attorney General for further action. (c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for the applicant than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (d) All individuals licensed to practice podiatric medicine in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee’s expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant’s expense, fingerprints and other necessary information in order to obtain a criminal background check. (33 Del. Laws, c. 66, § 9; 40 Del. Laws, c. 108, § 4; Code 1935, § 5387; 42 Del. Laws, c. 160, § 1; 24 Del. C. 1953, § 504; 53 Del. Laws, c. 108, § 4; 53 Del. Laws, c. 315, § 1; 58 Del. Laws, c. 511, § 51; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 67 Del. Laws, c. 212, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 14; 75 Del. Laws, c. 436, § 4; 77 Del. Laws, c. 199, § 4; 78 Del. Laws, c. 44, §§ 7, 8; 79 Del. Laws, c. 277, § 1; 80 Del. Laws, c. 50, § 1.) § 509 Examination. In the event an applicant for licensure has not successfully completed the PMLEXIS examination, or its successor, required by this chapter, the Board shall administer or authorize the administration of such examination provided the applicant has received a degree of “Doctor of Podiatric Medicine” as described in § 508(a)(1) of this title. All examinations shall be graded by the testing service providing the examinations. The passing score shall be established by the testing agency. (33 Del. Laws, c. 66, §§ 4, 6; 40 Del. Laws, c. 108, §§ 5, 6; Code 1935, § 5388; 24 Del. C. 1953, § 505; 53 Del. Laws, c. 108, § 5; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 67 Del. Laws, c. 212, § 6; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) Page 34 Title 24 - Professions and Occupations § 510 Reciprocity. (a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure in “good standing” in another state, the District of Columbia or territory of the United States, whose standards for licensure are substantially similar to those of this State. A license in “good standing” is defined in § 508(a)(4)-(7) of this title. (b) An applicant, who is licensed or registered in a state whose standards are not substantially similar to those of this State, shall have practiced for a minimum of 5 years after licensure, provided however that the applicant meets all other qualifications for reciprocity in this section. (c) An applicant, who has received a degree of “Doctor of Podiatric Medicine” or its equivalent from a foreign school, college or university, shall submit a certified copy of the applicant’s school, college or university record for evaluation by the Board. (d) In the event that a disciplinary proceeding or unresolved complaint is pending, the applicant shall not be licensed in this State until the proceeding or complaint has been resolved. Applicants for licensure in this State shall be deemed to have given consent to the release of such information and to waive all objections to the admissibility of such information as evidence at any hearing or other proceeding to which the applicant may be subject. (e) Each application for licensure shall be accompanied by payment of the application fee. (64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 511 Fees. The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or any other State agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium. (64 Del. Laws, c. 39, § 1; 65 Del. Laws, c. 355, § 1; 72 Del. Laws, c. 213, § 1.) § 512 Issuance and renewal of licenses. (a) The Board shall issue a license to each applicant, who meets the requirements of this chapter for licensure as a podiatrist and who pays the fee established under § 511 of this title. (b) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board. (c) The Board, in its rules and regulations, shall determine the period of time within which a licensed podiatrist may still renew the licensed podiatrist’s license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided however that such period shall not exceed 1 year. (d) A licensee, upon written request, may be placed in an inactive status for no more than 5 years. Such person who desires to reactivate the licensee’s license shall complete a Board-approved application form, submit a renewal fee set by the Division, and submit proof of fulfillment of continuing education requirements in accordance with the Board’s rules and regulations. (Code 1935, § 5398A; 43 Del. Laws, c. 240, § 1; 24 Del. C. 1953, § 509; 53 Del. Laws, c. 108, § 6; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 65 Del. Laws, c. 355, § 1; 67 Del. Laws, c. 212, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 513 Temporary license. (a) The Board, at its discretion, may issue a temporary license to practice podiatry in this State to a podiatrist, who is licensed or otherwise legally qualified to practice podiatry in any state of the United States or other jurisdiction, and who meets the following conditions: (1) The applicant is entering this State for the purpose of taking charge of the practice of a person licensed to practice podiatry in this State during such licensee’s temporary illness or absence from this State; and (2) The applicant shall complete an application, pay the appropriate fee established by the Division, and shall present proof of current licensure in “good standing” in the state or states where the applicant currently is and/or has been licensed. A license in “good standing” is defined in § 508(a)(4)-(7) of this title, and such applicant shall comply with the provisions of § 510(d) of this title. (b) The person licensed to practice medicine in this State shall make the licensee’s request to the Board in writing and shall submit a certified statement that the purpose of the temporary license is to take charge of the licensee’s practice of podiatry in this State during a temporary illness or absence from this State. (c) Such temporary license shall be effective for not less than 2 weeks nor for more than 3 months from date of issuance. (d) The Board may also issue a temporary license to practice as a podiatric physician to an applicant who is participating in a residency program in this State and who is an otherwise qualified applicant for licensure in this State. The temporary license for such residency Page 35 Title 24 - Professions and Occupations program participant will be valid for the period of residency and will expire immediately upon completion of or withdrawal from the residency or 24 months from issuance whichever is earlier. Such temporary license may be renewed once only for an additional 24 months and any such renewed license shall also expire immediately upon completion of or withdrawal from the residency program. (67 Del. Laws, c. 212, § 5; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 75 Del. Laws, c. 231, §§ 1, 2.) § 514 Complaints. (a) All complaints shall be received and investigated by the Division in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation. (b) When it is determined that an individual is engaging, or has engaged, in the practice of podiatry, or is using the title “podiatrist” and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order. (c) The Division shall have the authority to conduct inspections upon receipt of any complaint in connection with § 515(a)(8) of this title or upon the occurrence of an adverse event as defined in § 122(3)y.3.A. of Title 16 and, as applicable, to refer such information to the Department of Health and Social Services pursuant to § 122(3)y. of Title 16. In connection herewith, the Division may share information with the Department of Health and Social Services in accordance with applicable law. (64 Del. Laws, c. 39, § 1; 65 Del. Laws, c. 355, § 1; 72 Del. Laws, c. 213, § 1; 78 Del. Laws, c. 15, § 8.) § 515 Grounds for discipline. (a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 516 of this title, if, after a hearing, the Board finds that the podiatrist: (1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a podiatrist; has impersonated another person holding a license, or allowed another person to use the podiatrist’s license, or aided or abetted a person not licensed as a podiatrist to represent himself or herself as a podiatrist. (2) Has illegally, incompetently or negligently practiced podiatry. (3) Has been convicted of any offense, the circumstances of which substantially relate to the practice of podiatry. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor. (4) Has excessively used or abused drugs either in the past 3 years or currently. (5) Has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities. (6) Has violated a lawful provision of this chapter, or any lawful regulation established thereunder. (7) Has had his or her license as a podiatrist suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter. Every person licensed as a podiatrist in this State shall be deemed to have given consent to the release of this information by the Board of Podiatry, or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses. (8) Has maintained a facility in an unsanitary or unsafe condition. For purposes of this section, “facility” shall have the same meaning as defined in § 122(3)y.3.C. of Title 16. (9) Has failed to notify the Board that the podiatrist’s license as a podiatrist in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof; or, (10) Has a physical condition such that the performance of podiatry is or may be injurious or prejudicial to the public. (b) Subject to the provisions of this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner’s right to practice podiatry shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29]. (c) The Division shall have the authority to conduct inspections upon receipt of any complaint in connection with paragraph (a)(8) of this section or upon the occurrence of an adverse event as defined in § 122(3)y.3.A. of Title 16 and, as applicable, refer such information to the Department of Health and Social Services pursuant to 122(3)y. of Title 16. In connection herewith, the Division may share information with the Department of Health and Social Services in accordance with applicable law. (64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 15; 78 Del. Laws, c. 15, §§ 9, 10.) § 516 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 of the conditions or violations set forth in § 515 of this title applies to a practitioner regulated by this chapter: (1) Issue a letter of reprimand. Page 36 Title 24 - Professions and Occupations (2) Censure a practitioner. (3) Place a practitioner on probationary status, and require the practitioner to: a. Report regularly to the Board upon the matters, which are the basis of the probation. b. Limit all practice and professional activities to those areas prescribed by the Board. (4) Suspend any practitioner’s license. (5) Revoke any practitioner’s license. (6) Impose a monetary penalty not to exceed $500 for each violation. (7) The Board shall permanently revoke the certificate to practice podiatric medicine of a person who is convicted of a felony sexual offense. (b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies, which required such action, have been remedied. (c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (33 Del. Laws, c. 66, §§ 12, 13; 40 Del. Laws, c. 108, §§ 11-13; Code 1935, §§ 5393, 5394; 24 Del. C. 1953, §§ 510, 511; 53 Del. Laws, c. 315, § 1; 61 Del. Laws, c. 356, § 1; 64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1; 79 Del. Laws, c. 213, § 2; 79 Del. Laws, c. 277, § 1.) § 517 Hearing procedures. (a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 515 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter, as it deems necessary. The Board’s decision shall be in writing and shall include its reasons for such decision. The Board’s decision shall be mailed immediately to the practitioner. (c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board’s decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with Chapter 101 of Title 29. (64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 518 Reinstatement of a suspended license; removal from probationary status. (a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation. (b) Where a license or registration has been suspended due to the licensee’s inability to practice pursuant to this chapter, the Board may reinstate such license, if, after a hearing, the Board is satisfied that the licensee is again able to perform the essential functions of a podiatrist, with or without reasonable accommodations; and/or, there is no longer a significant risk of substantial harm to the health and safety of the individual or others. (c) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate. (d) [Repealed.] (72 Del. Laws, c. 213, § 1; 82 Del. Laws, c. 8, § 2.) § 518A Prescription requirements [Effective until Jan. 1, 2021]. No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: Page 37 Title 24 - Professions and Occupations (1) The name, address and phone number of the prescriber; (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (75 Del. Laws, c. 161, § 1.) § 518A Prescription requirements [Effective Jan. 1, 2021]. (a) No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: (1) The name, address and phone number of the prescriber; (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (b) Notwithstanding any other provision of this section or any other law to the contrary, no person licensed under this chapter shall issue any prescription unless such prescription is made by electronic prescription from the person issuing the prescription to a pharmacy in accordance with regulations established by the Board, except for prescriptions issued: (1) By a veterinarian. (2) In circumstances where electronic prescribing is not available due to temporary technological or electrical failure, as set forth in regulation established by the Board. (3) By a practitioner to be dispensed by a pharmacy located outside the State, as set forth in regulations established by the Board. (4) When the prescriber and dispenser are the same entity. (5) That include elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard. (6) By a practitioner for a drug that the Federal Food and Drug Administration requires the prescription to contain certain elements that are not able to be accomplished with electronic prescribing. (7) By a practitioner allowing for the dispensing of a nonpatient specific prescription pursuant to a standing order, approved protocol for drug therapy, collaborative drug management or comprehensive medication management, in response to a public health emergency, or other circumstances where the practitioner may issue a nonpatient specific prescription. (8) By a practitioner prescribing a drug under a research protocol. (9) By practitioners who have received a waiver or a renewal thereof for a specified period determined by the Board, not to exceed 1 year, from the requirement to use electronic prescribing, pursuant to regulations established by the Board, due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner. (10) By a practitioner under circumstances where, notwithstanding the practitioner’s present ability to make an electronic prescription as required by this subsection, such practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient’s medical condition. (c) A pharmacist who receives a written, oral or faxed prescription is not required to verify that the prescription properly falls under 1 of the exceptions under subsection (b) of this section, from the requirement to electronically prescribe. Pharmacists may continue to dispense medications from otherwise valid written, oral or fax prescriptions that are otherwise legal. (75 Del. Laws, c. 161, § 1; 82 Del. Laws, c. 75, § 1.) Subchapter III Other Provisions § 519 Exemptions. (a) Nothing in this chapter shall be construed to prevent: (1) Persons who are licensed to practice podiatry in any other state, district or foreign country from entering this State, as practicing podiatrists, to consult with a podiatrist of this State. Such consultation shall be limited to examination, recommendation and testimony in litigation. (2) Any student of an accredited school or college of podiatry from receiving practical training under the personal supervision of a licensed podiatrist in this State. Page 38 Title 24 - Professions and Occupations (3) Any person from completing a Council on Podiatric Medical Education-approved hospital residency program in this State. (4) Any podiatrist or surgeon, commissioned by any of the armed forces of the United States or by the United States Public Health Service, from practicing podiatry on the podiatrist’s or surgeon’s designated facility in this State. (5) Any physician licensed in this State from practicing podiatry in this State. (b) This chapter shall not prohibit the fitting, recommending or sale of corrective shoes, arch supports or similar mechanical appliances by retail dealers or manufacturers. However, no representative of a dealer or manufacturer shall be permitted to medically diagnose, treat or prescribe for any foot or ankle ailment, disease or deformity, unless such person is licensed to practice podiatry in this State. (72 Del. Laws, c. 213, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 50, § 1.) § 520 Penalty. A person not currently licensed as a podiatrist under this chapter, when engaging in the practice of podiatry, or using in connection with that person’s name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the person is qualified to practice podiatry, shall be guilty of a misdemeanor. Upon the first offense, the person shall be fined not less than $500 dollars nor more than $1,000 dollars for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense. Justice of the Peace Court shall have jurisdiction over all violations of this chapter. (64 Del. Laws, c. 39, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 213, § 1.) § 521 Accreditation of facilities where office-based surgeries are performed. No person licensed under this chapter shall perform any office-based surgery, as defined in § 122(3)y. of Title 16, in a facility unless it is accredited or licensed in accordance with § 122(3)z. of Title 16. For purposes of this section, “facility” and “office-based surgery” mean as defined in § 122(3)y. of Title 16. (78 Del. Laws, c. 80, § 5; 81 Del. Laws, c. 417, § 2.) § 522 Treatment or examination of minors. (a) A parent, guardian or other caretaker, or an adult staff member, shall be present when a person licensed under this chapter provides outpatient treatment to a minor patient who is disrobed or partially disrobed or during an outpatient physical examination regardless of sex of the licensed person and patient, except when rendering care during an emergency. When using an adult staff member to observe the treatment or examination, the adult staff member shall be of the same gender as the patient when practicable. The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the licensee without the presence of a third person after the physical examination. (b) When a minor patient is to be disrobed, or partially disrobed during a physical examination, a person licensed under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which minor patients and their parent, guardian or other caretaker are made aware of the notice. In circumstances in which the posting or the provision of the written notice would not convey the right to have a chaperone present, the person licensed shall use another means to ensure that the person understands the right under this section. (c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, and “adult staff member” is defined as a person 18 years of age or older who is acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter. (d) The person licensed under this chapter that provides outpatient treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child’s medical record the name of each person present when such treatment is being provided. (79 Del. Laws, c. 169, § 1.) Page 39 Title 24 - Professions and Occupations Chapter 6 Cosmetologists §§ 601-626 Definitions; State Board of Cosmetology; appointment; qualifications; term of office; vacancies; powers; meetings; organization; oath; quorum; records of Board; qualifications for admission to examination, licensing and registration; registration of salons and schools; requirements of a school; application for examination; admission to examination; examinations; certificates or licenses; fees; persons called to aid of Board; curriculum committee; reciprocity; exemption of present practitioners from examination; powers and duties of the Board; hearings; hearing may be held by majority of the Board; sanitary rules; temporary licenses; services and activities exempted from chapter; display of certificates or licenses; renewal of certificates or licenses; duration and renewal of certificates; penalty; appeals; cosmetology instruction in public schools [Repealed]. Repealed by 69 Del. Laws, c. 178, § 1, effective Feb. 4, 1994. Page 40 Title 24 - Professions and Occupations Chapter 7 Board of Chiropractic § 700 Purpose of chapter; objectives of board. The primary objective of the Board of Chiropractic, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against licensees or former licensees. Throughout the history of chiropractic, there have been distinct philosophical approaches to chiropractic. No action, rule, standard or requirement shall be imposed or interpreted which would restrict a practitioner from licensure as long as the practitioner complies with this chapter. (64 Del. Laws, c. 413, § 2; 70 Del. Laws, c. 514, § 1.) § 701 Chiropractic defined; limitation of chiropractic license. (a) (1) “Chiropractic” means a drugless system of health care based on the principle that interference with the transmission of nerve impulses may cause disease. (2) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. (3) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (4) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (5) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (6) “Telemedicine” means a form of telehealth which the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (b) The practice of chiropractic includes, but is not limited to, the diagnosing and locating of misaligned or displaced vertebrae (subluxation complex), using x-rays and other diagnostic test procedures. The practice includes the use of telemedicine and may also include the practice of and participation in telehealth, as further defined in regulation. Practice of chiropractic includes the treatment through manipulation/adjustment of the spine and other skeletal structures and the use of adjunctive procedures not otherwise prohibited by this chapter. (c) Except as otherwise provided in this chapter, the practice of chiropractic does not include the use of drugs, surgery or obstetrical or gynecological examinations or treatment. (d) All examinations performed by chiropractors shall be in accordance with the protocol and procedures as taught in the majority of accredited chiropractic colleges. (41 Del. Laws, c. 261, § 8; 24 Del. C. 1953, § 701; 70 Del. Laws, c. 514, § 2; 80 Del. Laws, c. 80, § 8.) § 702 Composition; terms; suspension or removal; qualifications; vacancies; compensation. (a) There is created a State Board of Chiropractic, which shall administer and enforce this chapter, and which shall consist of 7 members appointed by the Governor, who are residents of this State; 4 of whom shall be licensed to practice chiropractic in this State; and 3 public members. A public member shall not be nor ever have been a chiropractor, nor a member of the immediate family of a chiropractor; shall not have been employed by a chiropractor; shall not have had a material financial interest in the providing of goods and services to chiropractors; nor have been engaged in an activity directly related to chiropractic. Such public member shall be accessible to inquiries, comments and suggestions from the general public. (b) Except as provided in subsection (c) of this section, each member shall serve for a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed Page 41 Title 24 - Professions and Occupations himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Persons who are members of the Board on July 17, 1996, shall complete their terms of office. (c) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (d) Any act or vote by a person appointed in violation of subsection (c) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (c) of this section, unless such amendment or revision amends this section to permit such an appointment. (e) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (f) No member of the Board of Chiropractic, while serving on the Board, shall be an officer of a local or state professional chiropractic association or have a financial interest in any chiropractic college or school. (g) Vacancies occurring on the Board by reason of the death of any member or the member’s incapacity, neglect or refusal to act or by removal or in any other way, including those specified in this chapter shall be filled by the Governor. (h) Each Board member shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (i) The provisions set forth for “employees” in Chapter 58 of Title 29 shall apply to all members of the Board and to all agents appointed or otherwise employed by the Board. (41 Del. Laws, c. 261, §§ 1, 2; 24 Del. C. 1953, §§ 702, 703; 64 Del. Laws, c. 413, § 3; 67 Del. Laws, c. 368, § 5; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 3-6; 81 Del. Laws, c. 85, § 4.) § 703 Officers; meetings; quorum. (a) The Board annually shall elect a president and secretary. Each officer shall serve for 1 year and shall not succeed himself or herself in the same office. (b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the President deems necessary, or at the request of a majority of Board members. (c) A majority of the members shall constitute a quorum for the purpose of transacting business. No disciplinary action shall be taken without the affirmative vote of 4 members of the Board. Any member who fails to attend 3 consecutive meetings, or who fails to attend at least 1/2 of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed. (d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, the hearing shall be recorded. Transcripts shall be made at the request and expense of any party. (41 Del. Laws, c. 261, § 3; 24 Del. C. 1953, § 704; 50 Del. Laws, c. 325, § 1; 64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, §§ 1, 2; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 7, 41.) § 704 Complaints. All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29. The Division shall be responsible for issuing a final written report at the conclusion of its investigation. The Board president shall assign a member of the Board to assist the Division of Professional Regulation with the investigation of the technical aspects of the complaint and shall not discuss any matter of fact or law regarding such investigation with any Board member prior to the final decision of the Board. Such member shall recuse himself or herself from the deliberations on the complaint at any hearing regarding the complaint. If it is determined that a practitioner should be subject to a disciplinary hearing, the Board shall conduct such hearing in accordance with this chapter and the Administrative Procedures Act [Chapter 101 of Title 29]. When it is determined that an individual is engaging in the practice of chiropractic or is using the title “chiropractor” and is not licensed under the laws of this State, the Board shall notify the office of the Attorney General for appropriate action. (64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, § 3; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, § 8.) § 705 Hearing; procedures. (a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of this chapter, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) All hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board’s decision shall be Page 42 Title 24 - Professions and Occupations in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the complainant, and to the practitioner. The Board’s decision shall become effective on the thirtieth day after the date it is mailed or served on the practitioner. (c) Where either the complainant or the practitioner is in disagreement with the action of the Board, either person may appeal the Board’s decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the Board’s decision. Upon such appeal, the Court shall hear the evidence on the record, and any stay of the Board’s decision shall be granted according to the Administrative Procedures Act [Chapter 101 of Title 29]. (64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, §§ 4-6; 70 Del. Laws, c. 135, §§ 1, 2; 70 Del. Laws, c. 514, § 9.) § 706 Powers and duties; immunity. (a) The Board shall have the authority and the duty to: (1) Formulate rules and regulations with appropriate notice to those affected where such notice can reasonably be given; (2) Designate the application form to be used by applicants, and to process all applications; (3) Grant licenses to, and renew licenses of, all persons who meet the qualifications for licensure; (4) Designate the national written examination to be taken by all persons applying for licensure, except those applicants who qualify for licensure by reciprocity; (5) Grant licenses to all persons who meet the qualifications for licensure; (6) Refer all complaints from practitioners and the public to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29; and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint; (7) Investigate complaints of unauthorized practice of chiropractic; (8) Determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, to conduct such hearing in accordance with this chapter and the Administrative Procedures Act [Chapter 101 of Title 29]; (9) Where it has been determined after a disciplinary hearing that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed; (10) Provide for the rules for continuing chiropractic education; and (11) Bring proceedings in the courts for the enforcement of this chapter. (b) The Board may require by subpoena the attendance and testimony of witnesses and production of paper, records or other such evidence. (c) The members of the Board shall not be subject to, and shall be immune from, claims, suits, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken or performed, or recommendation made, so long as such member of the Board acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under this chapter or any other provisions of the Delaware or federal law or rules or regulations or duly adopted rule or regulation of the Board. Good faith is presumed unless otherwise proven and malice is required to be proven by the complainant. (d) No member of the Board shall in any manner whatsoever discriminate against any applicant or person holding or applying for a license to practice chiropractic by reason of sex, race, color, creed or national origin. (e) No member shall participate in any action of the Board involving directly or indirectly any person related in any way by blood or marriage to said member. (f) The Board of Chiropractic shall promulgate regulations specifically identifying those crimes, which are substantially related to the practice of chiropractic. (41 Del. Laws, c. 261, § 7; 24 Del. C. 1953, § 706; 64 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 514, §§ 10-14; 72 Del. Laws, c. 125, §§ 1, 2; 74 Del. Laws, c. 262, § 16.) § 707 Qualifications of applicant; report to Attorney General; judicial review. (a) An applicant who is applying for licensure as a doctor of chiropractic under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person: (1) Has received a degree of “Doctor of Chiropractic” from a school or college fully accredited by an accrediting agency recognized by the U.S. Department of Education; (2) Shall provide proof satisfactory to the Board that the applicant has successfully passed Parts I, II, III, IV and the physiotherapy section of the National Board of Chiropractic Examiners’ examination; (3) Shall not have been the recipient of any administrative penalties regarding the applicant’s practice of chiropractic, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any “consent agreements” which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure; Page 43 Title 24 - Professions and Occupations (4) Shall not have any impairment related to drugs, alcohol or a finding of mental incompetence by a physician that would limit the applicant’s ability to undertake the practice of chiropractic in a manner consistent with the safety of the public; (5) Shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially related to the practice of chiropractic. Applicants who have criminal conviction records or pending criminal charges shall require appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of chiropractic. “Substantially related” means the nature of criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of chiropractic. After a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(5), if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing chiropractic in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare; (6) Has not been convicted of a felony sexual offense; (7) Has submitted, at the applicant’s expense, fingerprints and other necessary information in order to obtain the following: a. A report of the applicant’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person; b. A report of the applicant’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Chiropractic shall be the screening point for the receipt of said federal criminal history records; c. An applicant may not be licensed to practice chiropractic until the applicant’s criminal history reports have been produced. An applicant whose record shows a prior criminal conviction may not be licensed by the Board unless a waiver is granted pursuant to paragraph (a)(5) of this section. (b) An applicant, who has received a degree of “Doctor of Chiropractic” or its equivalent from a foreign school, college or university, shall submit a certified copy of the applicant’s school, college or university record for evaluation by the Board. (c) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action. (d) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for the applicant than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (e) All individuals licensed to practice chiropractic in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee’s expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant’s expense, fingerprints and other necessary information in order to obtain a criminal background check. (41 Del. Laws, c. 261, § 3; 24 Del. C. 1953, § 707; 50 Del. Laws, c. 325, § 2; 53 Del. Laws, c. 147, § 1; 64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, § 7; 69 Del. Laws, c. 398, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 15-17; 72 Del. Laws, c. 125, § 3; 74 Del. Laws, c. 262, §§ 17, 18; 75 Del. Laws, c. 436, §§ 5, 6; 77 Del. Laws, c. 199, §§ 5, 6; 78 Del. Laws, c. 44, §§ 9, 10; 79 Del. Laws, c. 277, § 2.) § 708 Fees. The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for an activity not specified in this chapter. The application fee shall not be combined with any other fee or charge, except as specifically set forth herein. At the beginning of each calendar year the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate fee for the coming year. (41 Del. Laws, c. 261, § 4; 24 Del. C. 1953, § 709; 53 Del. Laws, c. 108, § 7; 64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, § 10; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 514, § 21; 72 Del. Laws, c. 125, § 6.) § 709 Issuance of license; renewal; inactive status; reinstatement. (a) Each person, who has been admitted to practice in this State by reciprocity, or who has otherwise qualified for a license shall, prior to practicing in this State, file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Page 44 Title 24 - Professions and Occupations Title 30. The Board shall forthwith issue a license to each person who has qualified for same under this chapter and who has complied with all rules and regulations of the Board. (b) Upon payment of the renewal fee and upon submission of proof of satisfactory completion of continuing education requirements, each license shall be renewed biennially in such manner as is determined by the Division of Professional Regulation. The Board shall, in its rules and regulations, determine the period of time within which a practitioner may still renew the license; provided, however, that such period shall not exceed 1 year. At the expiration of the period designated by the Board, the license shall be deemed to be lapsed and not renewable, unless the former licensee reapplies under the same conditions which govern reciprocity; provided, however, that the former licensee shall also pay a reinstatement fee in an amount which is determined by the Division of Professional Regulation. (c) Any licensee may, upon the licensee’s written request, be placed in an inactive status not to exceed 5 years. The renewal fee of such person shall be prorated in accordance with the amount of time such person was inactive. Such person may reenter practice upon notification to the Board of that person’s intent to do so, provided said person has satisfied all continuing education requirements prescribed by the Board. (d) A former licensee who has been penalized for the violation of a provision of this chapter, or whose license has been suspended or revoked, and who subsequently is permitted to apply for reinstatement shall apply for a new license, successfully complete the examination required by the Board, and shall pay all appropriate fees before the former licensee may be relicensed. (41 Del. Laws, c. 261, § 4; 24 Del. C. 1953, § 710; 53 Del. Laws, c. 108, § 8; 64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, §§ 11, 12; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 22-25; 72 Del. Laws, c. 125, §§ 4, 6.) § 710 Reciprocity. (a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant, who shall present proof of current licensure in good standing in another state, the District of Columbia or territory of the United States, whose standards for licensure are substantially similar to those of this State. (b) An applicant, who is currently licensed in another state, the District of Columbia or territory of the United States, whose standards for licensure are not substantially similar to those of this State, shall present proof of current licensure in good standing in another state, the District of Columbia or territory of the United States, and in addition the applicant shall meet 1 of the following criteria: (1) Shall have graduated from an accredited or Board-approved school of chiropractic after July 1, 1997, and shall provide documentation of successful completion of Parts I, II, II, IV and the physiotherapy section of the National Board of Chiropractic Examiners’ examination; (2) Shall have graduated from an accredited or Board-approved school of chiropractic, prior to July 1, 1997, but after January 31, 1991, and shall provide documentation of successful completion of Parts I, II, III of the National Board of Chiropractic Examiners’ examination; or (3) Shall have graduated from an accredited or Board-approved school of chiropractic, prior to January 31, 1991, and shall provide documentation of successful completion of Parts, I, II, III of the National Board of Chiropractic Examiners’ examination; or Parts I and II of the National Board of Chiropractic Examiners’ examination and the Special Purpose Examination for Chiropractic (SPEC) approved by the National Board of Chiropractic Examiners. (c) Notwithstanding the provisions of paragraph (b)(1), (2), or (3) of this section, if the applicant has successfully passed those examinations that were available at the time of the applicant’s graduation from a board-approved school of chiropractic and application for original licensure, the Board shall accept proof of successful completion of those examinations in lieu of the provisions of paragraph (b)(1), (2), or (3) of this section. If no examinations were available at the time of the applicant’s graduation from a board-approved school of chiropractic, the Board shall accept proof of active practice in another jurisdiction for the past 5 years in lieu of the provisions of paragraph (b)(1), (2), or (3) of this section. (d) For all applicants licensure in good standing is defined in § 707(a)(3), (4), and (5) of this title. The applicant is responsible for providing proof of licensure in good standing in all states in which that applicant is or has been licensed. (41 Del. Laws, c. 261, § 5; 24 Del. C. 1953, § 711; 53 Del. Laws, c. 108, § 9; 64 Del. Laws, c. 413, § 3; 65 Del. Laws, c. 331, § 13; 67 Del. Laws, c. 24, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, § 26; 72 Del. Laws, c. 125, §§ 5, 6; 75 Del. Laws, c. 436, § 7; 79 Del. Laws, c. 169, § 3.) § 711 Grounds for discipline; procedure; sanctions. (a) Practitioners regulated under this chapter shall be subject to those disciplinary actions set forth in this section if, after a hearing, the Board finds the practitioner guilty of unprofessional conduct as defined in subsection (b) of this section. (b) Unprofessional conduct is hereby defined as any of the following acts: (1) Use of any false, fraudulent or forged statement or document or use of any fraudulent, deceitful, dishonest or unethical practice in connection with any licensing requirements of this chapter; (2) Conviction of a crime that is substantially related to the practice of chiropractic. “Substantially related” means the nature of criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to chiropractic; Page 45 Title 24 - Professions and Occupations (3) Any dishonorable or unethical conduct likely to deceive, defraud or harm the public; (4) The wilful violation of the confidential relations and communications of a patient; (5) The practitioner has employed or knowingly cooperated in fraud or materiel deception in order to be licensed, or be otherwise authorized to practice chiropractic; (6) Has excessively used or abused drugs (including alcohol, narcotics or chemicals); (7) Practice of chiropractic under a false or assumed name; (8) Use, distribution or prescription for use of dangerous or narcotic drugs; (9) Solicitation or acceptance of a fee from a patient or other person by fraudulent representation that a manifestly incurable condition can be permanently cured; (10) Knowing or intentional performance of any act which, unless authorized by the Board of Chiropractic, assists an unlicensed and unauthorized person to practice chiropractic; (11) The failure to provide adequate supervision to a person working under the practitioner’s direction; (12) Misconduct, incompetence or gross negligence in the practice of chiropractic; (13) Wilful failure to divulge to the Board or any committee or representative thereof, upon its request, information relevant to authorization or competence to practice chiropractic; (14) The violation of this chapter or the violation of an order or regulation of the Board; (15) Charging a grossly exorbitant fee for professional services rendered; (16) Suspension, revocation or refusal to grant a license to practice chiropractic or other disciplinary action taken by the appropriate licensing authority in another state or territory; provided, however, that the underlying grounds for such action in another state or territory have been presented to the Board by either certified record or live testimony and the Board has determined that the facts found by the appropriate authority in the other state constitute unprofessional conduct as that term is defined in paragraphs (b)(1) through (15) of this section; (17) Engaging directly or indirectly in the division, transferring, signing, rebating or refunding of fees received for professional services or profiting by means of a credit or other valuable consideration such as wages, an unearned commission, discount or gratuity with any person who referred a patient, or with any relative or business associate of the referring person. Nothing in this paragraph shall be construed as prohibiting the members of any regularly or properly organized entity recognized under Delaware law and comprised solely of chiropractors from making any division of their total fees among themselves as they determine by contract necessary to defray their joint operating costs. This paragraph shall not apply to chiropractic positions held by chiropractors employed by or contracted with a Delaware licensed medical doctor or doctor of osteopathy that works in the State a minimum of 10 hours per week. It will also not apply to any Delaware-licensed hospitals. The estate of a licensed chiropractor shall have 1 year to divest of the chiropractic business. (c) Where a practitioner fails to comply with the Board’s request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have the jurisdiction to issue such order. (d) Subject to subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board; and no practitioner’s right to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard in accordance with the Administrative Procedures Act [Chapter 101 of Title 29]. (e) The Board may impose any of the following sanctions, partially, singly or in combination, when it finds that 1 of the conditions or violations set forth in subsection (b) of this section applies to a practitioner regulated under this chapter: (1) Restrict the license of a practitioner; (2) Publicly censure a practitioner; (3) Issue a public letter of reprimand; (4) Place a practitioner on probationary status, and require the practitioner to: a. Report regularly to the Board upon the matters which are the basis for the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; and/or c. Continue or renew the practitioner’s professional education until the required degree of skill has been attained in those areas which are the basis of the probation; (5) Suspend any practitioner’s license; (6) Revoke a practitioner’s license; or (7) The Board shall permanently revoke the license to practice chiropractic of a person who is convicted of a felony sexual offense. (f) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied. (g) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner it may, after a hearing on the matter, suspend or revoke the practitioner’s license. Page 46 Title 24 - Professions and Occupations (h) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (i) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter. (41 Del. Laws, c. 261, § 7A; 42 Del. Laws, c. 199, § 2; 24 Del. C. 1953, § 712; 50 Del. Laws, c. 325, § 3; 64 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 27-34; 72 Del. Laws, c. 125, § 6; 74 Del. Laws, c. 262, § 19; 79 Del. Laws, c. 98, § 1; 79 Del. Laws, c. 213, § 2; 79 Del. Laws, c. 277, § 2.) § 712 License to practice. No person may practice chiropractic in this State who has not been licensed in accordance with this chapter. Under such rules and regulations as the Board may adopt, this chapter shall not be construed to prohibit the practice of chiropractic by persons who are licensed to practice in any other state, district or foreign country who, as practicing chiropractors, enter this State to consult with a chiropractor of this State. Such consultation shall be limited to examination, recommendation or testimony in litigation. (41 Del. Laws, c. 261, § 6; 42 Del. Laws, c. 199, § 1; 24 Del. C. 1953, § 713; 64 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 514, §§ 35, 36; 72 Del. Laws, c. 125, § 6.) § 713 Practicing without license; penalties. (a) No person shall represent himself or herself to the public as a doctor of chiropractic, or display any sign or advertise in any manner as being a doctor of chiropractic or chiropractic physician without first obtaining from the Board the license or licenses required under this chapter. (b) Where the Board has determined that person is practicing chiropractic within this State without having lawfully obtained a license therefor, or that a person previously licensed is unlawful practicing although the person’s license has been suspended or revoked, the Board shall formally warn such person in writing. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board. (c) Where a person not currently licensed as a chiropractic is tried and convicted of unlawfully practicing chiropractic in violation of this chapter such offender shall, upon the first offense, be fined $500 or imprisoned not less than 1 month nor more than 1 year, or both, and upon a second or any subsequent offense, shall be fined not less than $1,000 and imprisoned not less than 6 months nor more than 1 year, or both, and shall pay all cost; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the applicable provisions of Title 11. (d) The Superior Court shall have jurisdiction of violations of this chapter. (41 Del. Laws, c. 261, § 9A; 42 Del. Laws, c. 199, § 3; 24 Del. C. 1953, § 714; 64 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, §§ 37, 38; 72 Del. Laws, c. 125, § 6.) § 714 Chiropractic practitioners subject to regulation. Chiropractic practitioners shall observe and be subject to all state and municipal regulations relating to the control of contagious and infectious diseases and any and all matters pertaining to public health, reporting to the proper health officer the same as other practitioners. (41 Del. Laws, c. 261, § 9; 24 Del. C. 1953, § 715; 72 Del. Laws, c. 125, § 6.) § 715 Filing false documents; penalty. Whoever files or attempts to file as that person’s own the diploma, certificate or license of another or a forged, false affidavit of identification or qualification is guilty of a felony and shall be fined not less than $500 nor more than $2,000 and imprisoned not more than 5 years. (41 Del. Laws, c. 261, § 7A; 42 Del. Laws, c. 199, § 2; 24 Del. C. 1953, § 712; 50 Del. Laws, c. 325, § 3; 64 Del. Laws, c. 413, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, § 39; 72 Del. Laws, c. 125, § 6.) § 716 Chiropractic practitioners eligible for compensation from insurance. (a) For purposes of disability insurance, standard health and accident, sickness, and all other such insurance plans, whether or not they be considered insurance policies, and contracts issued by health service corporations and health maintenance organizations, if the Page 47 Title 24 - Professions and Occupations chiropractor is authorized by law to perform a particular service, the chiropractor is entitled to compensation for that chiropractor’s services under such plans and contracts, and such plans and contracts may not have annual or lifetime numerical limits on chiropractic visits for the treatment of back pain. (b) Nothing in this section shall prevent the operation of reasonable and nondiscriminatory cost containment or managed care provisions, including but not limited to, deductibles, coinsurance, allowable charge limitations, coordination of benefits and utilization review. Any copayment or coinsurance amount shall be equal to or less than 25% of the fee due or to be paid to the doctor of chiropractic under the policy, contract, or certificate for the treatment, therapy, or service provided. (c) The Insurance Commissioner shall issue and administer regulations to aid the administration, effectuation, investigation and enforcement of this section. (24 Del. C. 1953, § 717; 54 Del. Laws, c. 147, § 2; 69 Del. Laws, c. 168, § 1; 69 Del. Laws, c. 393, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 514, § 40; 72 Del. Laws, c. 125, § 6; 77 Del. Laws, c. 462, § 3; 78 Del. Laws, c. 165, § 1; 81 Del. Laws, c. 430, § 2.) § 717 Opinions and testimony. (a) Any chiropractor who is duly licensed as a chiropractic practitioner under this chapter shall be deemed competent to offer opinions in the courts, administrative agencies and other tribunals of this State as to matters of causation, within the scope of chiropractic practice, provided the testimony is offered to a reasonable degree of chiropractic certainty and there is otherwise an adequate foundation for the admission of this testimony. (b) Any chiropractor duly licensed under this chapter shall also be deemed competent to offer opinions in the courts, administrative agencies and other tribunals of this State as to matters of permanent impairment or disability, provided the testimony is within the scope of chiropractic practice, is offered to a reasonable degree of chiropractic certainty and there is otherwise an adequate foundation of the admission of this testimony. (c) No Doctor of Chiropractic shall be permitted to offer chiropractic opinions for the purpose of determining eligibility for health insurance policy benefits relating to chiropractic care in the State unless the Doctor of Chiropractic is duly licensed and actively practicing in the State. For purposes of this subsection, a Doctor of Chiropractic shall be considered “actively practicing” if that Doctor of Chiropractic maintains an office in the State for treatment of patients and is engaged in the practice of chiropractic in the State more than an average of 10 hours per week. For purposes of this section “insurance policy” shall include without limitation all health plans and policies for the payment for, provision of or reimbursement for chiropractic or medical services, supplies or both issued by health insurers, health service corporations or managed care organizations. (74 Del. Laws, c. 5, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 380, § 1.) § 718 Severability. Should any section or provision of this chapter be decided by the court to be unconstitutional or invalid, such decision shall not affect the validity of this chapter as a whole or any other part thereof. (75 Del. Laws, c. 380, § 2.) § 719 Treatment or examination of minors. (a) A parent, guardian or other caretaker, or an adult staff member, shall be present when a person licensed under this chapter provides outpatient treatment to a minor patient who is disrobed or partially disrobed or during an outpatient physical examination involving the breasts, genitalia or rectum, regardless of sex of the licensed person and patient, except when rendering care during an emergency. When using an adult staff member to observe the treatment or examination, the adult staff member shall be of the same gender as the patient when practicable. The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the licensee without the presence of a third person after the physical examination. (b) When a minor patient is to be disrobed, partially disrobed or will undergo a physical examination involving the breasts, genitalia or rectum, a person licensed under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which minor patients and their parent, guardian or other caretaker are made aware of the notice. In circumstances in which the posting or the provision of the written notice would not convey the right to have a chaperone present, the person licensed shall use another means to ensure that the person understands the right under this section. (c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, and “adult staff member” is defined as a person 18 years of age or older who is acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter. (d) The person licensed under this chapter that provides outpatient treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child’s medical record the name of each person present when such treatment is being provided. (79 Del. Laws, c. 169, § 2.) Page 48 Title 24 - Professions and Occupations Chapter 9 Deadly Weapons Dealers § 901 License requirement. No person shall engage in the business of selling any pistol or revolver, or stiletto, steel or brass knuckles, or other deadly weapon made especially for the defense of one’s person without first having obtained a license therefor, which license shall be known as “special license to sell deadly weapons.” No person licensed or unlicensed shall possess, sell or offer for sale any switchblade knife. This section shall not apply to toy pistols, pocket knives or knives used for sporting purposes and in the domestic household, or surgical instruments or tools of any kind. (26 Del. Laws, c. 15, § 1; Code 1915, § 257; Code 1935, § 231; 24 Del. C. 1953, § 901; 49 Del. Laws, c. 77; 66 Del. Laws, c. 184, § 1.) § 902 Application and fee for license; duration; renewal. Whoever desires to engage in the business of selling any of the articles referred to in the first paragraph of § 901 of this title shall apply to the Department of State to obtain a license to conduct such business and shall pay an application fee of $50 to the Department. The license shall entitle the holder thereof to conduct such business until June 1 next succeeding its date. An application for renewal of such license shall be accompanied by a payment of $50 to the Department. (26 Del. Laws, c. 15, § 2; 27 Del. Laws, c. 30; Code 1915, § 258; Code 1935, § 232; 42 Del. Laws, c. 71, § 1; 24 Del. C. 1953, § 902; 49 Del. Laws, c. 346, § 3; 61 Del. Laws, c. 406, § 1; 65 Del. Laws, c. 379; 66 Del. Laws, c. 249, § 1; 75 Del. Laws, c. 88, § 17(2).) § 903 Sale to persons under 21 or intoxicated persons. No person shall sell to a person under the age of 21 or any intoxicated person any of the articles referred to in the first paragraph of § 901 of this title. (26 Del. Laws, c. 15, § 3; Code 1915, § 259; 30 Del. Laws, c. 28, § 1; Code 1935, § 233; 42 Del. Laws, c. 71, § 2; 24 Del. C. 1953, § 903; 66 Del. Laws, c. 184, § 2.) § 904 Records. (a) Any person desiring to engage in the business described in this chapter shall keep and maintain in the place of business at all times a record in accordance with this section and all applicable federal laws and regulations (including, without limitation, 18 U.S.C. § 921 et seq. and 27 C.F.R. 478.121 et seq.). In such record the businessperson shall enter the date of the sale, the name and address of the person purchasing any deadly weapon, the number and kind of deadly weapon so purchased, the age of the purchaser, the mode of identification bearing a picture (except as provided in § 1448B(f) of Title 11) which shall include but it is not limited to a driver’s license, and any other information as shall be required by federal law and regulation. The record shall at all times be open for inspection by any judge, justice of the peace, police officer, constable or other peace officer of this State. (b) Any person engaging in the business described in this chapter shall keep and maintain a list of current employees including their names, former names used, dates of birth, physical descriptions and social security numbers. The required employee list and all attachments thereto shall be considered confidential but shall, nevertheless, be open for inspection by any police officer of this State or of any political subdivision of this State, within their respective jurisdiction, at any time, at the licensee’s primary place of business and during the licensee’s regular business hours. No person licensed under this chapter shall knowingly allow any employee who is a person prohibited from possessing a deadly weapon pursuant to § 1448 of Title 11 to facilitate a sale of a deadly weapon. All employers licensed to do business pursuant to this chapter shall, prior to employment and at least once during each calendar year thereafter, perform a telephonic criminal history record check of each employee utilizing the procedures set forth in § 1448A of Title 11 and shall make and maintain a record thereof using the State Bureau of Identification Criminal History Record Information and Mental Health Information Consent Form (Form 544). A copy of each such form shall be attached to the above required employee list for inspection upon the valid request of a police officer of this State or of any political subdivision of this State, within their respective jurisdiction. (c) Notwithstanding any provision to the contrary, any inspection by a judge, justice of the peace, police officer, constable, or other peace officer of this State shall be reasonable under the circumstances existing at the time and shall only be made pursuant to and in furtherance of an open criminal investigation or during the course of a criminal prosecution. (26 Del. Laws, c. 15, § 4; Code 1915, § 259; 30 Del. Laws, c. 28, § 1; Code 1935, § 233; 42 Del. Laws, c. 71, § 2; 24 Del. C. 1953, § 904; 61 Del. Laws, c. 406, §§ 2-4; 63 Del. Laws, c. 55, § 1; 66 Del. Laws, c. 184, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 149, § 1; 79 Del. Laws, c. 20, §§ 8, 8A.) § 904A Criminal history checks for sales between unlicensed persons. (a) For purposes of this section, “licensed firearm dealer” means any person licensed as a deadly weapons dealer pursuant to Chapter 9 of Title 24 and 18 U.S.C. § 921 et seq. Page 49 Title 24 - Professions and Occupations (b) As a condition of its license, any dealer holding a license pursuant to this chapter shall facilitate the transfer of a firearm, as that term is defined in § 222 of Title 11, from any unlicensed person as that term is defined in § 1448B of Title 11, upon the request of said unlicensed person, pursuant to the following procedure: (1) The prospective buyer and seller shall jointly appear at the place of business of the dealer, during said dealer’s regular hours of business, and shall inform the dealer of their desire to avail themselves of the advantages of the procedure set forth herein. (2) The dealer shall then subject the prospective buyer to a criminal history background check pursuant to the terms of § 1448A of Title 11. (3) In the event that said record check reveals that the prospective buyer is prohibited from possessing, purchasing or owning a firearm pursuant to § 1448 of Title 11, the dealer shall so inform both parties of that fact and the transfer shall not take place. (4) The dealer shall maintain a record of all criminal history background checks under this section in accordance with § 904 of this title. (5) Any dealer who is asked to facilitate the transfer of a firearm pursuant to the terms of this section, may charge a reasonable fee for said service, said fee not to exceed $30 per criminal history check performed pursuant to this procedure. Notwithstanding the foregoing, no fee may be charged for the return of a firearm to its owner in the event that the proposed transaction may not be immediately and legally completed as the result, or lack thereof, of a criminal history background check hereunder. (6) Failure or refusal on the part of the dealer to facilitate the transfer of a firearm pursuant to the procedures set forth herein shall be adequate cause to suspend the license of said dealer for a period not to exceed 30 days per occurrence. (7) Subject to subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked until a license holder has been given notice, and an opportunity to be heard in accordance with the Administrative Procedures Act (Chapter 101 of Title 29). (c) Nothing in this section, or any other section of the Code, shall authorize or permit the State or any agency, department or instrumentality thereof to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited from receiving a firearm as set forth in Chapter 5 of Title 11. Any such system of registration is expressly prohibited. (69 Del. Laws, c. 324, § 1; 79 Del. Laws, c. 20, § 9.) § 905 Penalties. Whoever violates this chapter shall be fined not more than $250 or imprisoned not more than 6 months, or both. (26 Del. Laws, c. 15, § 5; Code 1915, § 260; Code 1935, § 234; 24 Del. C. 1953, § 905; 66 Del. Laws, c. 184, § 4.) Page 50 Title 24 - Professions and Occupations Chapter 11 Dentistry and Dental Hygiene Subchapter I State Board of Dentistry and Dental Hygiene § 1100 Objectives. The primary objective of the State Board of Dentistry and Dental Hygiene, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe and unprofessional practices. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against licensees or former licensees. (71 Del. Laws, c. 31, § 1; 77 Del. Laws, c. 463, § 3.) § 1101 Definitions [Effective until Jan. 1, 2021]. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them under this section except where the context clearly indicates a different meaning: (1) “Academic license” means a license issued under § 1132A of this title to a full-time director, chairperson, or attending faculty member of a hospital based dental, oral and maxillofacial surgery or other specialty dental residency program for the purposes of teaching. (2) “Board” shall mean the State Board of Dentistry and Dental Hygiene established in this chapter. (3) “Dental assistant” shall mean any person not licensed to practice dentistry and/or dental hygiene in this State, who aids a dentist in the performance of generalized tasks, including chair-side aid, clerical work, reception, radiography, dental laboratory work, and any other such tasks delegated by the dentist. (4) “Dental auxiliary personnel” shall mean any person not licensed to practice dentistry in this State, who works in a dental office as either a dental assistant, dental hygienist, dental technician, or otherwise. (5) “Dental hygienist” shall mean a person who is qualified to practice dental hygiene as prescribed in this chapter. (6) “Dental technician” shall mean any person not licensed to practice dentistry in this State, engaged in the business of constructing, altering, repairing or duplicating full dentures (“plates”), partial dentures, splints, orthodontic appliances, fixed bridges or any other prosthetic appliances. (7) “Dentist” shall mean a person who is qualified to practice dentistry as prescribed in the chapter. (8) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. (9) “Division” shall mean the State Division of Professional Regulation. (10) “Excessive use or abuse of drugs” shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed individual with valid prescriptive authority or the abuse of alcoholic beverage or prescription or nonprescription drugs, such that it impairs a person’s ability to perform the work of a dentist or dental hygienist. (11) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (12) “Person” shall mean a corporation, company, association or partnership, as well as an individual. (13) “Practice of dental hygiene” shall mean the removal of calculus deposits, plaque and stains from all surfaces of the teeth, and making instrumental examinations of the oral cavity, and assembling all necessary information for use by the dentist in diagnosis and treatment planning, and the performance of such prophylactic or preventive measures in the case of teeth, including the application of chemicals to the teeth and periodontal tissues, designed and approved for the prevention of dental caries and/or periodontal disease, as the Board may authorize; but the “practice of dental hygiene” shall not include any other operation on the teeth or tissues of the mouth. (14) “Practice of dentistry” is defined as the evaluation, diagnosis, prevention and/or treatment (nonsurgical, surgical or related procedures) of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body provided by a dentist within the scope of the dentist’s education, training and experience, in accordance with the ethics of the profession and applicable law. The practice includes the use of telemedicine and may also include participation in telehealth as further defined in regulation. A person shall be construed to practice dentistry who by verbal claim, sign, advertisement, opening of an office, or in any other way, including use of the words “dentist,” “dental surgeon,” the letters “D.D.S.,” “D.M.D.,” or other letters or titles, represents the person to be a dentist or who holds himself or herself out as able to perform, or who Page 51 Title 24 - Professions and Occupations does perform, dental services or work. A person shall be regarded as practicing dentistry who is a manager, proprietor, operator or conductor of a place for performing dental operations or who for a fee, salary or other reward paid, or to be paid either to himself or herself or to another person, performs or advertises to perform dental operations of any kind. (15) “State” shall mean the State of Delaware. (16) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (17) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of dentistry or dental hygiene. (18) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (19) “Telemedicine” means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (73 Del. Laws, c. 332, § 3; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 20; 75 Del. Laws, c. 436, § 8; 77 Del. Laws, c. 463, §§ 1, 2, 3; 79 Del. Laws, c. 261, § 1; 80 Del. Laws, c. 80, § 9; 81 Del. Laws, c. 79, § 37.) § 1101 Definitions [Effective Jan. 1, 2021]. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them under this section except where the context clearly indicates a different meaning: (1) “Academic license” means a license issued under § 1132A of this title to a full-time director, chairperson, or attending faculty member of a hospital based dental, oral and maxillofacial surgery or other specialty dental residency program for the purposes of teaching. (2) “Board” shall mean the State Board of Dentistry and Dental Hygiene established in this chapter. (3) “Dental assistant” shall mean any person not licensed to practice dentistry and/or dental hygiene in this State, who aids a dentist in the performance of generalized tasks, including chair-side aid, clerical work, reception, radiography, dental laboratory work, and any other such tasks delegated by the dentist. (4) “Dental auxiliary personnel” shall mean any person not licensed to practice dentistry in this State, who works in a dental office as either a dental assistant, dental hygienist, dental technician, or otherwise. (5) “Dental hygienist” shall mean a person who is qualified to practice dental hygiene as prescribed in this chapter. (6) “Dental technician” shall mean any person not licensed to practice dentistry in this State, engaged in the business of constructing, altering, repairing or duplicating full dentures (“plates”), partial dentures, splints, orthodontic appliances, fixed bridges or any other prosthetic appliances. (7) “Dentist” shall mean a person who is qualified to practice dentistry as prescribed in the chapter. (8) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth. (9) “Division” shall mean the State Division of Professional Regulation. (10) “Electronic prescription” means a prescription that is generated on an electronic application and transmitted as an electronic data file. (11) “Excessive use or abuse of drugs” shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed individual with valid prescriptive authority or the abuse of alcoholic beverage or prescription or nonprescription drugs, such that it impairs a person’s ability to perform the work of a dentist or dental hygienist. (12) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (13) “Person” shall mean a corporation, company, association or partnership, as well as an individual. (14) “Practice of dental hygiene” shall mean the removal of calculus deposits, plaque and stains from all surfaces of the teeth, and making instrumental examinations of the oral cavity, and assembling all necessary information for use by the dentist in diagnosis and treatment planning, and the performance of such prophylactic or preventive measures in the case of teeth, including the application of chemicals to the teeth and periodontal tissues, designed and approved for the prevention of dental caries and/or periodontal disease, as the Board may authorize; but the “practice of dental hygiene” shall not include any other operation on the teeth or tissues of the mouth. (15) “Practice of dentistry” is defined as the evaluation, diagnosis, prevention and/or treatment (nonsurgical, surgical or related procedures) of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures Page 52 Title 24 - Professions and Occupations and their impact on the human body provided by a dentist within the scope of the dentist’s education, training and experience, in accordance with the ethics of the profession and applicable law. The practice includes the use of telemedicine and may also include participation in telehealth as further defined in regulation. A person shall be construed to practice dentistry who by verbal claim, sign, advertisement, opening of an office, or in any other way, including use of the words “dentist,” “dental surgeon,” the letters “D.D.S.,” “D.M.D.,” or other letters or titles, represents the person to be a dentist or who holds himself or herself out as able to perform, or who does perform, dental services or work. A person shall be regarded as practicing dentistry who is a manager, proprietor, operator or conductor of a place for performing dental operations or who for a fee, salary or other reward paid, or to be paid either to himself or herself or to another person, performs or advertises to perform dental operations of any kind. (16) “State” shall mean the State of Delaware. (17) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (18) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of dentistry or dental hygiene. (19) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (20) “Telemedicine” means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (73 Del. Laws, c. 332, § 3; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 20; 75 Del. Laws, c. 436, § 8; 77 Del. Laws, c. 463, §§ 1, 2, 3; 79 Del. Laws, c. 261, § 1; 80 Del. Laws, c. 80, § 9; 81 Del. Laws, c. 79, § 37; 82 Del. Laws, c. 75, § 2.) § 1102 State Board of Dentistry and Dental Hygiene; appointments; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation. (a) There is created a State Board of Dentistry and Dental Hygiene which shall administer and enforce this chapter. (b) The Board shall consist of 9 members, appointed by the Governor, who are residents of this State, 5 of whom shall be dentists licensed under this chapter and who have been actively practicing dentistry in this State for a period of 5 years immediately preceding appointment to the Board; 1 member shall be a dental hygienist who has been actively practicing dental hygiene in this State for a period of 5 years immediately preceding appointment to the Board; and 3 public members who shall have been residents of this State for a period of 5 years immediately preceding appointment to the Board. The public members shall not be, nor ever have been, dentists or dental hygienists, nor members of the immediate family of a dentist or dental hygienist; shall not have been employed by a dentist; and shall not have a material interest in the providing of goods and services to dentists or dental hygienists, nor have been engaged in an activity directly related to dentistry or dental hygiene. The public members shall be accessible to inquiries, comments and suggestions from the general public. No public member shall have been licensed in any health related field or be licensed to practice law. No person shall be eligible for appointment to the Board who is in any manner connected with or interested in any dental college or the dental department of any college or university or the dental supply business. (c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor. (d) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms; but, no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period shall again be appointed to the Board until an interim period of at least 1 year has expired since such person last served. (e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment. (f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of dentists or dental hygienists, including the Delaware State Dental Society and the Delaware Dental Hygienists’ Association. Page 53 Title 24 - Professions and Occupations (h) The provisions set forth for “employees” in Chapter 58 of Title 29 shall apply to all members of the Board. (i) Any member who is absent without adequate reason for 3 consecutive meetings or fails to attend at least 1/2 of all regular business meetings during any calendar year shall be guilty of neglect of duty. (j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel; and in addition, shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (k) A dentist and a dental hygienist from the same practice, or 2 dentists from the same practice, or 2 dental hygienists from the same practice, may not serve on the Board or the Dental Hygiene Advisory Committee at the same time. (11 Del. C. 1953, §§ 1101-1103, 1005; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 7; 60 Del. Laws, c. 449, § 2; 61 Del. Laws, c. 179, §§ 1, 2; 61 Del. Laws, c. 334, §§ 4, 6; 63 Del. Laws, c. 290, § 8; 65 Del. Laws, c. 494, § 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 266, §§ 3, 4; 70 Del. Laws, c. 451, §§ 1, 2; 71 Del. Laws, c. 31, § 1; 73 Del. Laws, c. 332, § 3; 77 Del. Laws, c. 463, §§ 3, 4; 81 Del. Laws, c. 85, § 5.) § 1103 Organization; meetings; officers; quorum. (a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year and at such times as the President deems necessary, or at the request of a majority of the Board members. (b) The Board annually shall elect a President and Secretary. Each officer shall serve for 1 year and shall not succeed himself or herself for more than 2 consecutive terms. (c) A majority of the members shall constitute a quorum for the purpose of transacting business. No disciplinary action shall be taken without the affirmative vote of 5 members of the Board. (d) When members of the Dental Hygiene Advisory Committee participate in voting on matters listed in § 1105(c)(1)-(5) of this title, the Board composition shall be 12 voting members, so that 7 members shall constitute a quorum. (e) Minutes of all meetings shall be recorded and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it. (17 Del. Laws, c. 496, § 3; 21 Del. Laws, c. 242, § 2; 26 Del. Laws, c. 133, § 1; Code 1915, § 888; 38 Del. Laws, c. 48, § 2; Code 1935, § 969; 42 Del. Laws, c. 93, § 1; 24 Del. C. 1953, § 1104; 65 Del. Laws, c. 210, §§ 3, 4, 12; 67 Del. Laws, c. 366, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 31, § 1; 73 Del. Laws, c. 332, § 3; 77 Del. Laws, c. 463, § 5.) § 1104 Records. The Division of Professional Regulation shall keep a register of all approved applications for license as a dentist or a dental hygienist and 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 matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board. (Code 1915, § 890; 38 Del. Laws, c. 48, § 2; Code 1935, § 971; 24 Del. C. 1953, § 1106; 65 Del. Laws, c. 210, § 12; 71 Del. Laws, c. 31, § 1; 73 Del. Laws, c. 332, § 3.) § 1105 Dental Hygiene Advisory Committee [Effective until Jan. 1, 2021]. (a) There is created a State Dental Hygiene Advisory Committee which shall serve the Board on matters pertaining to the policy and practice of dental hygiene. (b) The Committee shall consist of 3 licensed dental hygienists, appointed by the Governor, who are residents of this State and who have been actively practicing dental hygiene in this State for 2 years immediately preceding appointment to the Committee. (1) No person shall be eligible for appointment to the Committee who is in any manner connected with or who has an interest in any dental hygiene college or the dental hygiene department of any college or university or any commercial dental enterprise. (2) Each member shall serve a term of 3 years and remain eligible to participate in proceedings unless and until replaced by the Governor. (3) All terms shall be staggered so that 1 new member is added and 1 member is retired each year. (4) A member of the Committee shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. (5) No member of the Committee shall hold elective office in any professional association of dental hygienists. (6) Each member of the Committee shall be reimbursed, according to the policy of the Division of Professional Regulation, for all expenses involved in each meeting, including travel; and in addition, shall receive $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year. (7) No 2 dental hygienists from the same practice may serve on the Advisory Committee at the same time. (c) The Committee shall participate with members of the Board in: Page 54 Title 24 - Professions and Occupations (1) Voting on the qualifications of candidates who apply for licensure to practice dental hygiene; (2) Voting on the composition of the state dental hygiene clinical/practical examination; (3) Voting on the requirements for renewal of dental hygiene licenses; (4) Voting on disciplinary actions involving hygienists; and (5) Voting on other matters involving the policy and practice of dental hygiene as defined in § 1101(13) of this title and further defined in the Board’s rules and regulations. The Committee shall not vote on matters involving changing the scope of practice as defined in § 1101(13) of this title. (65 Del. Laws, c. 210, § 16; 71 Del. Laws, c. 31, § 1; 73 Del. Laws, c. 332, § 3; 77 Del. Laws, c. 463, §§ 6-8; 79 Del. Laws, c. 261, § 1; 80 Del. Laws, c. 80, § 9.) § 1105 Dental Hygiene Advisory Committee [Effective Jan. 1, 2021]. (a) There is created a State Dental Hygiene Advisory Committee which shall serve the Board on matters pertaining to the policy and practice of dental hygiene. (b) The Committee shall consist of 3 licensed dental hygienists, appointed by the Governor, who are residents of this State and who have been actively practicing dental hygiene in this State for 2 years immediately preceding appointment to the Committee. (1) No person shall be eligible for appointment to the Committee who is in any manner connected with or who has an interest in any dental hygiene college or the dental hygiene department of any college or university or any commercial dental enterprise. (2) Each member shall serve a term of 3 years and remain eligible to participate in proceedings unless and until replaced by the Governor. (3) All terms shall be staggered so that 1 new member is added and 1 member is retired each year. (4) A member of the Committee shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. (5) No member of the Committee shall hold elective office in any professional association of dental hygienists. (6) Each member of the Committee shall be reimbursed, according to the policy of the Division of Professional Regulation, for all expenses involved in each meeting, including travel; and in addition, shall receive $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year. (7) No 2 dental hygienists from the same practice may serve on the Advisory Committee at the same time. (c) The Committee shall participate with members of the Board in: (1) Voting on the qualifications of candidates who apply for licensure to practice dental hygiene; (2) Voting on the composition of the state dental hygiene clinical/practical examination; (3) Voting on the requirements for renewal of dental hygiene licenses; (4) Voting on disciplinary actions involving hygienists; and (5) Voting on other matters involving the policy and practice of dental hygiene as defined in § 1101(14) of this title and further defined in the Board’s rules and regulations. The Committee shall not vote on matters involving changing the scope of practice as defined in § 1101(14) of this title. (65 Del. Laws, c. 210, § 16; 71 Del. Laws, c. 31, § 1; 73 Del. Laws, c. 332, § 3; 77 Del. Laws, c. 463, §§ 6-8; 79 Del. Laws, c. 261, § 1; 80 Del. Laws, c. 80, § 9; 82 Del. Laws, c. 75, § 2.) § 1106 Powers and duties of the Board. (a) The State Board of Dentistry and Dental Hygiene shall have authority to: (1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act [Chapter 101 of Title 29] of this State. Each rule or regulation shall implement or clarify a specific section of this chapter; (2) Designate the application form to be used by all applicants, and to process all applications; (3) Examine candidates for licensure subject to § 8735(d)(5) of Title 29; a. Designate the written, standardized examination administered by the National Board of Dental Examiners to be taken by all persons applying for licensure; b. Prepare and administer a practical examination in dentistry and dental hygiene; c. Designate a written jurisprudence examination on the Delaware laws pertaining to dentistry to be taken by all persons applying for licensure; (4) Provide for the administration of all applicable examinations, including notice and information to applicants; (5) Evaluate the credentials of all persons applying for a license to practice dentistry and dental hygiene in order to determine whether such persons meet the qualifications for licensing set forth in this chapter; Page 55 Title 24 - Professions and Occupations (6) Grant licenses to and renew licenses of all persons who meet the qualifications for licensure and/or renewal of licenses; (7) Establish by rule and regulation continuing education standards required for license renewal for dentists and dental hygienists; (8) Evaluate certified records to determine whether an applicant for licensure who has been previously licensed, certified or registered in another jurisdiction to practice dentistry or dental hygiene has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicants for such acts or offenses; (9) Refer all complaints from licensees and the public concerning licensed dentists and dental hygienists or concerning practices of the Board or of the profession to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29 and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint; (10) Conduct hearings and issue orders in accordance with procedures established pursuant to this chapter, Chapter 101 of Title 29 and § 8735 of Title 29. Where such provisions conflict with the provisions of this chapter, this chapter shall govern. The Board shall determine whether or not a dentist or dental hygienist shall be subject to a disciplinary hearing and, if so, shall conduct such hearing in accordance with this chapter and the Administrative Procedures Act [Chapter 101 of Title 29]; (11) Where it has been determined after a disciplinary hearing that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed; (12) Working in conjunction with the Board of Directors of the Delaware Institute of Dental Education and Research, develop programs to encourage and allow dentists to practice in under-served areas of the State, as designated by the Delaware Health Care Commission, in lieu of hospital-based residency training as a condition of licensure; (13) Issue a volunteer license to an individual who is duly licensed as a dentist or dental hygienist in this State or to any individual who has ever been so licensed provided proof of continued competence is provided to the satisfaction of the Board. Such individuals shall certify on the license application that the individual will perform no dental or dental hygiene services for any direct compensation and that the individual volunteers his or her time exclusively in a nonprofit dental clinic or nonprofit dental service designated by the Delaware Health Care Commission and approved by the Delaware State Board of Dentistry and Dental Hygiene. A volunteer license shall be issued at no charge to a qualified individual approved by the Board. All other costs associated with meeting the requirements for such license will remain the responsibility of the applicant. The applicant for a volunteer license shall be responsible for completing the continuing education required for an active Delaware licensee by the Board and shall adhere to all standards of practice and supervision required of a Delaware licensed dentist or dental hygienist. Any dentist or dental hygienist having a volunteer license shall not practice dentistry or dental hygiene in this State in any setting other than in an approved nonprofit dental clinic or nonprofit dental service. (14) Define 3 levels of supervision by rule and regulation. (15) Establish by rule and regulation the requirement to and standards for permits that authorize dentist to administer anesthetic agents. (16) Issue subpoenas requiring the production of and receive information regarding changes in hospital privileges as a result of disciplinary or other adverse action taken by a hospital, or regarding disciplinary or other adverse action taken by a dental society against any person certified under this chapter to practice dentistry or dental hygiene. (b) The State Board of Dentistry and Dental Hygiene shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of dentistry and dental hygiene. (Code 1915, § 891; 38 Del. Laws, c. 48, § 2; Code 1935, § 972; 24 Del. C. 1953, § 1107; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 31, § 1; 72 Del. Laws, c. 481, § 1; 73 Del. Laws, c. 332, § 3; 74 Del. Laws, c. 262, § 21; 75 Del. Laws, c. 104, § 1; 77 Del. Laws, c. 463, §§ 3, 9-13.) §§ 1107-1110 [Reserved.] Subchapter II Dentistry and Dental Hygiene § 1121 License required. (a) No person shall practice dentistry or dental hygiene or hold himself or herself out to the public in this State as being qualified to practice dentistry or dental hygiene or use in connection with the person’s name, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice dentistry or dental hygiene unless such person has been duly licensed under this chapter. (b) A dental hygienist licensed under this chapter shall practice dental hygiene only under the general supervision of a licensed dentist, in the office of the licensed dentist or in any public school or other public institution of this State. (c) A licensed dental hygienist may practice under the general supervision of the State Dental Director, or the State Dental Director’s designee, who shall be a licensed Delaware dentist, in schools and state institutions. A licensed dental hygienist may also practice under the general supervision of the State Dental Director, or the State Dental Director’s designee, who shall be a Delaware licensed dentist, in federally qualified health centers, nonprofit organizations and other locations as designated by the Delaware Health Care Commission in Page 56 Title 24 - Professions and Occupations consultation with DIDER. The protocols under which hygienists practice in these settings will be established by the State Dental Director and shall be subject to the approval of the Delaware State Board of Dentistry and Dental Hygiene. (d) The State Dental Director shall be a Delaware licensed dentist. In the event that the State Dental Director does not have a Delaware dental license when hired, the State Dental Director must obtain a Delaware license within 2 years of assuming the position. The Board may grant a temporary license for a period no longer than 2 years to the State Dental Director, provided the State Dental Director has met all licensure requirements except successful completion of the practical exam. The authority to practice dentistry under such a temporary license will be limited to the performance of the duties as the State Dental Director. (e) Whenever a license to practice as a dentist or dental hygienist in this State has expired or has been suspended or revoked, it shall be unlawful for the person to practice dentistry or dental hygiene in this State. (73 Del. Laws, c. 332, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, § 3.) § 1122 Qualifications of applicant; report to Attorney General; judicial review. (a) An applicant who is applying for licensure as a dentist under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person: (1) Has received a degree in dentistry from an accredited dental college or university accredited by the Commission on Dental Accreditation of the American Dental Association. (2) Before matriculating in a dental college or university, has completed at least 2 years of undergraduate study in an accredited college or university. (3) Has acquired 1 year’s experience as a dental intern within a general practice residency accredited by the Commission on Dental Accreditation of the American Dental Association (CODA) or has completed a CODA approved specialty residency with those specific rotations identified in the Board’s rules and regulations, or if applying by reciprocity has had 3 years of active dental practice in another state or territory of the United States. (4) Has achieved the passing score on all examinations prescribed by the Board. (b) An applicant who is applying for licensure as a dental hygienist under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person has: (1) Graduated from high school or has received a general equivalency diploma (G.E.D.). (2) Graduated from a dental hygiene college or university program accredited by the Commission on Dental Accreditation of the American Dental Association of at least 2 academic years’ duration; or (3) Graduated, prior to 1953, from a dental hygiene program of at least 1 year’s duration, which program had been approved by the Board at the time of the person’s graduation; and (4) Achieved the passing score on all examinations prescribed by the Board. (c) All applicants shall have complied with the following conditions: (1) Shall submit proof of current certification in cardiopulmonary resuscitation (CPR) technique in accordance with regulations adopted by the Board. (2) Shall not have been the recipient of any administrative penalties regarding the applicant’s practice of dentistry or dental hygiene, including but not limited to fines, formal reprimands, license suspension or revocation (except for license revocations for nonpayment of license renewal fees), or probationary limitations, or have entered into any “consent agreements” which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license while under investigation the Board may determine, after a hearing or based on the documentation submitted, whether such administrative penalty is grounds to deny licensure. (3) Shall not have any impairment related to drugs or alcohol that would limit the applicant’s ability to undertake the practice of dentistry or dental hygiene in a manner consistent with the safety of the public. (4) Shall not have a criminal conviction for a crime substantially related to the practice of dentistry or dental hygiene. After a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (c)(4), if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing dentistry or dental hygiene in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare. e. The applicant has not been convicted of a felony sexual offense. Page 57 Title 24 - Professions and Occupations (5) Shall not have engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter, and shall not have been the recipient of any administrative penalties regarding that applicant’s practice as a dentist or dental hygienist, including but not limited to fines, formal reprimands, license suspensions or revocation, (except for license revocations for nonpayment of license renewal fees), probationary limitations, nor entered into any consent agreements which contain conditions placed by a Board on that applicant’s professional conduct and practice, including any voluntary surrender of a license. The Board may determine after a hearing or review of documentation whether such administrative penalty is grounds to deny licensure. (6) Submit, at the applicant’s expense, fingerprints and other necessary information in order to obtain the following: a. A report of the applicant’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person. b. A report of the applicant’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Dentistry and Dental Hygiene shall be the screening point for the receipt of said federal criminal history records. An applicant may not be certified to practice dentistry or dental hygiene until the applicant’s 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 paragraphs (c)(4)a., b. and c. of this section; (7) Shall submit to the Board a sworn or affirmed statement that the applicant is, at the time of application, physically and mentally capable of engaging in the practice of medicine according to generally accepted standards, and submit to such examination as the Board may deem necessary to determine the applicant’s capability. (d) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information has been intentionally supplied, the Board shall deny the application and report its findings to the Attorney General for further action. (e) All individuals licensed to practice dentistry and dental hygiene in this State shall be required to be fingerprinted by the State Bureau of Identification, at the licensee’s expense, for the purposes of performing subsequent criminal background checks. Licensees shall submit by January 1, 2016, at the applicant’s expense, fingerprints and other necessary information in order to obtain a criminal background check. (73 Del. Laws, c. 332, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 22; 75 Del. Laws, c. 436, § 9; 77 Del. Laws, c. 199, § 7; 77 Del. Laws, c. 463, §§ 14-17; 78 Del. Laws, c. 44, §§ 11-13; 78 Del. Laws, c. 147, § 1; 79 Del. Laws, c. 277, § 3; 80 Del. Laws, c. 314, § 1.) § 1123 Examinations. (a) An applicant applying to take the Delaware practical (clinical) examination shall submit evidence, verified by oath satisfactory to the Board, that such person: (1) When applying as a dentist, has received a degree in dentistry from a dental college or university accredited by the Commission on Dental Accreditation of the American Dental Association; (2) When applying as a dental hygienist, has fulfilled the requirements set forth within § 1122 (b)(1)-(3) of this title. (b) An applicant applying for licensure shall: (1) Successfully pass, with a score established by the Board, a validated practical examination prepared and administered by the Board. A practical test in dentistry or dental hygiene prepared by the Board and its method of administration shall be validated as to content and scoring by a member of the faculty of an accredited school of dentistry. Such faculty member shall not be licensed to practice dentistry in Delaware and shall be agreed upon by the Division and the Board. An applicant who has failed the practical examination 3 times may not take the examination again unless the applicant can provide evidence of mitigating circumstances to the satisfaction of the Board. (2) For licensure as a dentist, submit proof satisfactory to the Board that the applicant has successfully completed the National Board of Dental Examiners’ examination in dentistry with a passing score established by the Board; for licensure as a dental hygienist, submit proof satisfactory to the Board that the applicant has successfully passed the National Board of Dental Examiners’ examination in dental hygiene. (3) For licensure as a dentist, successfully pass a written jurisprudence examination on Delaware laws pertaining to dentistry; for licensure as a dental hygienist, successfully pass a written jurisprudence examination on Delaware laws pertaining to dental hygiene. All examinations shall be approved by the Division and the Board. (73 Del. Laws, c. 332, § 1; 74 Del. Laws, c. 61, § 1; 77 Del. Laws, c. 463, § 18.) § 1124 Dentists and dental hygienists licensed in other jurisdictions. (a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to practice dentistry or dental hygiene to each applicant, who shall present proof of current licensure in “good standing” in another state, the District of Columbia, or territory of the United States, who meets the following criteria: (1) Has maintained the applicant’s license in “good standing” and has satisfied all requirements of § 1122(c)(2)-(7) of this title. Page 58 Title 24 - Professions and Occupations (2) Shall, subject to subsection (b) of this section, have passed the examinations required in § 1123(b)(1), (2) and (3) of this title. (3) For licensure as a dentist, has received a degree in dentistry from an accredited dental college or university accredited by the Commission on Dental Accreditation of the American Dental Association. (4) For licensure as a dentist, shall submit proof that the applicant has had 3 years of active dental practice in another state, the District of Columbia or a territory of the United States. (5) Shall submit proof of current certification in cardiopulmonary resuscitation (CPR) technique in accordance with regulations adopted by the Board. (b) An applicant for licensure as a dental hygienist, who shall have practiced for a minimum of 3 of the last 5 years in the state in which the applicant currently is or has been licensed, may be licensed provided that the applicant meets the qualifications of paragraphs (a)(1), (2), and (5) of this section, except for the completion of the practical examination. (c) All applicants for licensure under this section shall have remained academically current through continuing education or otherwise, as determined by the Board. (73 Del. Laws, c. 332, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 436, § 10; 77 Del. Laws, c. 463, §§ 19-21.) § 1125 Fees. The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium. (73 Del. Laws, c. 332, § 1.) § 1126 Issuance and renewal of licenses; replacement of licenses. (a) The Board shall issue a license to each applicant who meets the requirements of this chapter for licensure as a dentist or dental hygienist and who pays the fee established in § 1125 of this title. (b) Each license shall be renewed biennially, in such manner as is determined by the Division, upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board and proof that the licensee has not been convicted of a crime substantially related to the practice of dentistry or dental hygiene unless a waiver is granted pursuant to § 1122(c)(4) of this title. (c) The Board, in its rules and regulations, shall determine the period of time within which a licensed dentist or dental hygienist may still renew his or her license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided however that such period shall not exceed 1 year. Any licensee who fails to renew on or before the renewal date, and any allowable extensions, not to exceed 1 year, will be considered a new applicant. (d) Any person whose license or certificate has expired for failure to make biennial registration over a period of more than 5 years and who has not been in the active full-time practice or dentistry or dental hygiene in another state or territory of the United States during the previous 5 years is required, in addition to applying as a new applicant, to submit to reexamination or other formal assessment of competency as approved by the Board. (e) All individuals licensed under this chapter, upon written request, may be placed in an inactive status in accordance with the Board’s rules and regulations. Such individual may reenter practice upon written notification to the Board of the intent to do so and completion of continuing education as required in the Board’s rules and regulations. The Board may establish by regulation provisions for resuming active status. (f), (g) [Repealed.] (73 Del. Laws, c. 332, § 1; 77 Del. Laws, c. 199, § 8; 77 Del. Laws, c. 463, §§ 22-26; 80 Del. Laws, c. 314, § 2; 82 Del. Laws, c. 8, § 3.) § 1127 Complaints. (a) All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation. (b) When it is determined that an individual is engaging or has engaged in the practice of dentistry or dental hygiene or is using the title “dentist” or “dental hygienist,” and is not licensed under the laws of this State, the Board shall report to the office of the Attorney General for appropriate action. (c) The Division shall have the authority to conduct inspections upon receipt of any complaint in connection with § 1128(12) of this title or upon the occurrence of an adverse event as defined in § 122(3)y.3.A. of Title 16 and, as applicable, refer such information to the Department of Health and Social Services pursuant to § 122(3)y. of Title 16. In connection herewith, the Division may share information with the Department of Health and Social Services in accordance with applicable law. (73 Del. Laws, c. 332, § 1; 78 Del. Laws, c. 15, § 6.) Page 59 Title 24 - Professions and Occupations § 1128 Grounds for discipline. A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 1129 of this title, if, after a hearing, the Board finds that the dentist or dental hygienist: (1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a dentist or dental hygienist, has impersonated another person holding a license or has allowed another person to use the practitioner’s license, or has aided or abetted a person not licensed as a dentist or dental hygienist to represent himself or herself as a dentist or dental hygienist; (2) Has practiced dentistry or dental hygiene in an incompetent or grossly negligent manner or has otherwise been guilty of misconduct or unprofessional conduct. In addition to such acts or omissions as the Board may define as unprofessional conduct by rules and regulations, unprofessional conduct shall include, but shall not be limited to, practicing in a corporation or other business entity which actually limits or restricts the exercise and application of professional judgment by the dentist or dental hygienist to the detriment of the dentist’s or dental hygienist’s patients; (3) [Repealed.] (4) Has been convicted of any offense the circumstances of which substantially relate to the practice of dentistry or dental hygiene. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence thereof; (5) Has engaged in an act of consumer fraud or deception, engaged in the illegal restraint of competition, or participated in illegal price-fixing activities; (6) Has violated a provision of this chapter or any regulation established thereunder; (7) Has had the practitioner’s license as a dentist or dental hygienist suspended or revoked, or has had other disciplinary action taken against the dentist or dental hygienist by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record, and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts prohibited by this chapter. Every person licensed as a dentist or dental hygienist in this State shall be deemed to have given consent to the release of this information by the Board or other comparable agency in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses; (8) Has failed to notify the Board that the practitioner’s license as a dentist or dental hygienist in another state has been subject to discipline or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof; (9) Has a physical condition such that the performance of dentistry or dental hygiene is or may be injurious or prejudicial to the public; (10) Has had the practitioner’s United States Drug Enforcement Administration (DEA) privileges restricted or revoked; (11) Has engaged in the excessive use or abuse of drugs; (12) Has maintained a facility in an unsanitary or unsafe condition. For purposes of this section, “facility” shall have the same meaning as defined in § 122(3)y.3.C. of Title 16; (13) Has been convicted of a felony sexual offense; (14) Has failed to report child abuse or neglect as required by § 903 of Title 16, or any successor thereto; or (15) Has failed to report to the Division of Professional Regulation as required by § 1131A of this title. (73 Del. Laws, c. 332, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 23; 78 Del. Laws, c. 15, § 7; 78 Del. Laws, c. 147, § 2.) § 1129 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 of the conditions or violations set forth in § 1128 of this title applies to a practitioner regulated by this chapter: (1) Issue a letter of reprimand; (2) Censure a practitioner; (3) Place a practitioner on probationary status and require the practitioner to: a. Report regularly to the Board upon the matters which are the basis of the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; (4) Suspend any practitioner’s license; (5) Revoke any practitioner’s license; (6) Impose a monetary penalty not to exceed $1,000 for each violation; (7) Take such other disciplinary action as the Board may deem necessary and appropriate; (8) The Board shall permanently revoke the certificate to practice dentistry or dental hygiene of a person who is convicted of a felony sexual offense. (b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied. Page 60 Title 24 - Professions and Occupations (c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (d) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter. (e) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may reinstate such license if after a hearing the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation and can practice dentistry or dental hygiene with reasonable skill and safety to the public. (f) Applicants for reinstatement shall pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate. (73 Del. Laws, c. 332, § 1; 77 Del. Laws, c. 463, §§ 27-29; 78 Del. Laws, c. 147, § 3; 79 Del. Laws, c. 213, § 2.) § 1130 Hearing procedures. (a) If a complaint is filed with the Board by the office of the Attorney General pursuant to § 8735 of Title 29 alleging violation of § 1128 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) The technical rules of evidence shall not apply to hearings before the Board. If the Board finds, by a majority vote of all members hearing the case, that the complaint has been established by a preponderance of evidence, the Board shall take such action permitted under this chapter as it deems necessary. The Board’s decision shall be in writing and shall include its reasons for such decision. The Board’s decision shall be mailed immediately to the practitioner. (c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board’s decision to the Superior Court. (73 Del. Laws, c. 332, § 1; 70 Del. Laws, c. 186, § 1.) § 1131 Duty to self-report. (a) A licensee shall self-report to the Board: (1) Any arrest or the bringing of an indictment or information charging the licensee with a crime substantially related to the practice of dentistry and dental hygiene as defined in the Board’s rules and regulations. (2) The conviction of the licensee, including any verdict of guilty or plea of guilty or no contest, of any crime substantially related to the practice of dentistry and dental hygiene as defined by the Board in its rules and regulations. (b) The report required by this section shall be made in writing within 30 days of the date of the arrest, bringing of the indictment or information or of the conviction. (c) Failure to make a report required by this section constitutes grounds for discipline under § 1128 of this title. (77 Del. Laws, c. 463, § 31.) § 1131A Duty to report conduct that constitutes grounds for discipline or inability to practice. (a) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other healthcare provider’s licensing statute. (b) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider may be unable to practice with reasonable skill and safety to the public by reason of mental illness or mental incompetence; physical illness; including deterioration through the aging process or loss of motor skill; or excessive abuse of drugs, including alcohol. Page 61 Title 24 - Professions and Occupations (c) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation any information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. (d) All reports required under subsections (a), (b) and (c) of this section must be filed within 30 days of becoming aware of such information. A person reporting 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. (78 Del. Laws, c. 147, § 4.) § 1131B Treatment or examination of minors. (a) A parent, legal guardian or other caretaker, or adult staff member, shall be present when a person licensed or certified to practice dentistry or dental hygiene under this chapter provides services to a minor, regardless of the sex of the licensed or certified person and minor, whenever a door to the treatment room is required to be closed or any time the minor is sedated. (b) When a minor is to receive services, the person licensed or certified to practice dentistry or dental hygiene under this chapter shall provide notice to the parent, legal guardian or other caretaker of the rights under subsection (a) of this section. The notice shall be provided in written form and shall be posted conspicuously in the location where services will be provided. (c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, “adult staff member” is defined as a person 18 years of age or older who is acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter. (d) The person licensed under this chapter that provides treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the patient’s record the name of each person present when such treatment is being provided. (79 Del. Laws, c. 169, § 4.) § 1132 Limited license — Fee. (a) Upon completion of an application approved by the Board and payment of a fee established by the Division, the Board may issue a limited license to an applicant for licensure as a dentist who has fulfilled the requirements of § 1122(a)(1) and (2) of this title, and who furnishes proof satisfactory to the Board that the applicant has been appointed a dental intern in a hospital or other institution maintained by this State, by a county or municipality thereof, or in a hospital or dental infirmary incorporated under the laws of this State. (b) The limited license shall entitle the applicant to practice dentistry only in the hospital or other institution designated on the license and only on bona fide patients of the hospital or institution and under the direction of a licensed dentist employed therein or on the staff thereof. (c) The applicant for limited license shall comply with the provisions of § 1122(c)(1)-(7) of this title. (d) The holder of a limited license shall be bound by all other applicable provision of this chapter. (e) The limited license shall be renewed annually. (73 Del. Laws, c. 332, § 1; 77 Del. Laws, c. 463, § 32.) § 1132A Academic license — Director or chairperson of a hospital dental or hospital oral and maxillofacial surgery residency program. (a) Upon completion of an application approved by the Board and payment of a fee established by the Division, in accordance with § 1125 of this title, the Board may issue an academic license to an applicant for licensure as a dentist who has fulfilled the following requirements: (1) Meets the requirements of § 1122(a)(1), (2), and (3) of this title. (2) Presents proof of current licensure in “good standing” in another state, the District of Columbia, or territory of the United States. (3) The applicant furnishes proof satisfactory to the Board that the applicant is “Board Certified” or is “Board Eligible” in general dentistry or in a specialty of dentistry. (4) The applicant furnishes proof satisfactory to the Board that the applicant has been appointed a full-time director, chairperson or an attending faculty member of a hospital based dental, oral and maxillofacial surgery or other dental specialty residency program of a hospital system that is based in Delaware and that is accredited, is establishing or has received Initial Accreditation by the Commission on Dental Accreditation of the American Dental Association (CODA) for the purposes of teaching. (b) The academic license shall entitle the applicant to practice dentistry or oral and maxillofacial surgery only in the institution designated on the license and on bona fide patients in an academic setting for teaching purposes. (c) The applicant for this academic license shall comply with the provisions of § 1122(a)(1)-(3), (c)(1)-(7) and (d) of this title. Page 62 Title 24 - Professions and Occupations (d) The holder of an academic license shall be bound by all other applicable provisions of this chapter. (e) The academic license shall be renewed biennially. (f) If the applicant was in the process of acquiring a “Board Certification” or “Board Eligible” when the academic license was granted, the applicant must obtain full “Board Certification” in general dentistry or in a specialty of dentistry within 5 years. If this “Board Certification” is not obtained then the Board shall not approve renewal of this academic license. (g) If the applicant is an appointee to a hospital-based dental or specialty residency program undergoing initial CODA accreditation, the program must complete full accreditation within 2 years. If the program does not have CODA accreditation after 2 years, the Board may approve an extension of the academic license after review of program status. (h) Any individual who received an academic license under this section prior to these changes may retain an academic license as long as the license remains in good standing and is renewed consecutively. (i) This academic license will become a full license immediately once the dentist fulfills the requirements of § 1122(a)(4) of this title. (j) The Board shall promulgate rules regarding issuance of these academic licenses to ensure adequate numbers of educational faculty for resident training and to maintain CODA accreditation as interpreted by the Board. (77 Del. Laws, c. 205, § 1; 77 Del. Laws, c. 463, § 33; 79 Del. Laws, c. 261, § 1.) § 1132B Provisional license — Dentists practicing in federally qualified health centers. (a) Upon completion of an application approved by the Board and payment of a fee established by the Division, the Board shall issue a provisional license to an applicant for licensure as a dentist who has fulfilled the requirements of § 1122(a)(1), (2), and (3) of this title, has completed a general practice residency, or holds both a license in another jurisdiction and 3 years of practice experience, and who furnishes proof satisfactory to the Board that the applicant has contracted to be an employee with a federally qualified health center (FQHC). General supervision by a Delaware-licensed dentist must be provided by the FQHC for eligible applicants. Eligible organizations must include the provision of care for medically indigent patient populations in their mission. (b) The provisional license shall entitle the applicant to practice dentistry only in the FQHC designated on the license and only on bona fide patients of the FQHC under the direction of a licensed dentist employed therein or on the staff thereof. If the supervising dentist becomes unable or unavailable to provide direction, the FQHC will then contract with a Delaware-licensed dentist to provide direction for the provisional license holder. (c) The provisional license shall entitle the applicant to practice dentistry for a 2-year period from the date of issuance and shall not be renewed. The applicant must fulfill the requirements of § 1123(b)(1) of this title within the 2-year period, and must take the Delaware practical examination at least once within the first year of the provisional license unless the Board grants an extension to the applicant for good cause. The provisional license shall convert to a full license once the holder passes the practical examination and fulfills the requirements of § 1123(b)(1) of this title. The requirements of §§ 1122(a)(4) and 1123(b)(2) and (3) of this title must be met by the end of the 2-year period. If these requirements are not fulfilled, the Board may deny full licensure. (d) The applicant for provisional license shall comply with the provisions of § 1122(c)(1)-(7) of this title. (e) The holder of a provisional license shall be bound by all other applicable provisions of this chapter. (f) The provisional license shall expire after the second year has been completed in the FQHC. The Board may grant an extension of the provisional license for up to 6 months for good cause demonstrated by the provisional license holder. (79 Del. Laws, c. 160, § 1.) Subchapter III Other Provisions § 1133 Exemptions. Nothing in this chapter shall be construed to prevent: (1) A licensed dentist or dental hygienist serving in any branch of the United States Armed Services, Veterans’ Administration or Public Health Service from discharging the dentist’s or dental hygienist’s official duties; (2) A licensed physician or surgeon from extracting teeth or treating pathological conditions of the mouth, teeth or oral tissues, or from radiographing such tissues, unless such person practices dentistry as a specialty; (3) A lawful practitioner of dentistry in another state, the District of Columbia or a territory of the United States from making a clinical demonstration for educational purposes before a dental society, convention, association of dentists or dental college or performing duties in connection with a specific case on which the practitioner may have been called to this State by a legally qualified practitioner of dentistry of this State. (4) A practitioner of dentistry who maintains a lawful dental license to practice in another state, the District of Columbia or a territory of the United States from making a clinical demonstration in connection with the lawful research and development of dental product or dental products manufactured by a dental manufacturer complying with guidelines set forth by the United States Food and Drug Administration. Page 63 Title 24 - Professions and Occupations (5) A person not currently licensed as a dentist under this chapter from owning or operating a nonprofit, tax-exempt organization as described in §§ 501(c)(3), 509(a)(1) and 170(b)(1)(A)(iii) of the Internal Revenue Code (26 U.S.C. §§ 501(c)(3), 509(a)(1), and 170(b) (1)(A)(iii)) so long as such person is not otherwise practicing dentistry. (73 Del. Laws, c. 332, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, § 34; 80 Del. Laws, c. 259, § 1.) § 1134 Penalty. A person not currently licensed as a dentist or dental hygienist under this chapter who engages in the practice of dentistry or dental hygiene or uses in connection with that person’s name, or otherwise assumes or uses, any title or description conveying, or tending to convey, the impression that the person is qualified to practice dentistry or dental hygiene shall be guilty of a misdemeanor. Upon the first offense, the person shall be fined not less than $500 nor more than $1,000 for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense. Justice of the Peace Courts shall have jurisdiction over all violations of this section. (73 Del. Laws, c. 332, § 2; 70 Del. Laws, c. 186, § 1.) § 1135 Certain unlawful acts; supervision by dentists. (a) No person shall repair, construct, adjust or alter any appliance, denture or dental restoration except under the authorization and responsibility of a licensed practitioner of dentistry as defined by this chapter. (b) Dentists may have direct supervision of dental assistants. (73 Del. Laws, c. 332, § 2; 77 Del. Laws, c. 463, § 35.) § 1136 Prescriptions for dentists. Pharmacists licensed by this State may fill prescriptions of dentists licensed by this State for any drug necessary in the practice of dentistry, dental surgery or oral surgery. (73 Del. Laws, c. 332, § 2.) § 1137 Prescription requirements [Effective until Jan. 1, 2021]. No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: (1) The name, address and phone number of the prescriber; (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (75 Del. Laws, c. 161, § 2.) § 1137 Prescription requirements [Effective Jan. 1, 2021]. (a) No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: (1) The name, address and phone number of the prescriber; (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (b) Notwithstanding any other provision of this section or any other law to the contrary, no person licensed under this chapter shall issue any prescription unless such prescription is made by electronic prescription from the person issuing the prescription to a pharmacy in accordance with regulations established by the Board, except for prescriptions issued: (1) By a veterinarian. (2) In circumstances where electronic prescribing is not available due to temporary technological or electrical failure, as set forth in regulation established by the Board. (3) By a practitioner to be dispensed by a pharmacy located outside the State, as set forth in regulations established by the Board. (4) When the prescriber and dispenser are the same entity. (5) That include elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard. (6) By a practitioner for a drug that the Federal Food and Drug Administration requires the prescription to contain certain elements that are not able to be prescribed with electronic prescribing. Page 64 Title 24 - Professions and Occupations (7) By a practitioner allowing for the dispensing of a nonpatient specific prescription pursuant to a standing order, approved protocol for drug therapy, collaborative drug management or comprehensive medication management, in response to a public health emergency, or other circumstances where the practitioner may issue a nonpatient specific prescription. (8) By a practitioner prescribing a drug under a research protocol. (9) By practitioners who have received a waiver or a renewal thereof for a specified period determined by the Board, not to exceed 1 year, from the requirement to use electronic prescribing, pursuant to regulations established by the Board, due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner. (10) By a practitioner under circumstances where, notwithstanding the practitioner’s present ability to make an electronic prescription as required by this subsection, such practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient’s medical condition. (c) A pharmacist who receives a written, oral or faxed prescription is not required to verify that the prescription properly falls under 1 of the exceptions under subsection (b) of this section, from the requirement to electronically prescribe. Pharmacists may continue to dispense medications from otherwise valid written, oral or fax prescriptions that are otherwise legal. (75 Del. Laws, c. 161, § 2; 82 Del. Laws, c. 75, § 2.) § 1138 Accreditation of facilities where office-based surgeries are performed. No person licensed under this chapter shall perform any office-based surgery, as defined in § 122(3)y. of Title 16, in a facility unless such facility is accredited or licensed in accordance with § 122(3)z. of Title 16. For purposes of this section, “facility” and “office-based surgery” mean as defined in § 122(3)y. of Title 16. (78 Del. Laws, c. 80, § 4; 81 Del. Laws, c. 417, § 3.) §§ 1151-1159 [Reserved.] Subchapter IV Violations and Penalties; Enforcement § 1171 Name used in practice of dentistry. (a) Any dentist who practices or offers to practice dentistry or dental surgery may use a trade name that is not false, misleading or deceptive provided that the proper name of 1 of the owners, all of whom must be dentists, is used in conjunction with the trade name. (b) Advertisements in any medium shall include the name, as it appears on the current biennial renewal certificate, and the degree — D.D.S. or D.M.D. — of at least 1 licensed dentist who is an owner of the dental facility. (c) A directory listing all of the names of the dentists practicing at that location shall be prominently displayed in the entrance or reception area of the dental facility. (d) The names of dentists who have practiced under the trade name shall be maintained in the records of the dental facility for at least 5 years following their departure from the practice. (e) The use of the name of a dentist no longer actively associated with the practice may not be continued for longer than 1 year. (f) A trade name may not include the word “clinic” unless the name designates a public or nonprofit facility. (g) A trade name may not include the word “institute” unless the name designates an educational or research facility. (h) A trade name may not, by the use of plurals or otherwise, misrepresent the number of dentists practicing at a facility. (Code 1915, § 892T; 38 Del. Laws, c. 48, § 2; Code 1935, § 993; 24 Del. C. 1953, § 1171; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, § 36.) § 1172 Unlawful acts; penalty. Whoever employs a person who is not a licensed dentist to perform dental operations as defined in this chapter or permits such persons to practice dentistry in the employer’s office; or whoever practices dentistry under a false name or assumes a title or appends or prefixes to that person’s name letters which falsely represent the person as having a degree from a chartered dental college, or makes use of the words “dental college” or “dental school” or equivalent words when not lawfully authorized so to do, or impersonates another at an examination held by the Board, or knowingly makes a false application or a false representation in connection with such examination; shall be fined not less than $100 nor more than $200. (Code 1915, § 892Y; 38 Del. Laws, c. 48, § 2; Code 1935, § 998; 24 Del. C. 1953, § 1172; 70 Del. Laws, c. 186, § 1.) § 1173 Failure to display dentistry license; penalty [Repealed]. (Code 1915, § 892W; 38 Del. Laws, c. 48, § 2; Code 1935, § 996; 24 Del. C. 1953, § 1173; 70 Del. Laws, c. 186, § 1; repealed by 82 Del. Laws, c. 8, § 3, effective Apr. 9, 2019.) Page 65 Title 24 - Professions and Occupations § 1174 Practice of dentistry after cancellation of registration. Any person whose registration as a practitioner of dentistry has been cancelled under this chapter shall be deemed an unregistered person and subject as such to the penalties prescribed for the practice of dentistry by persons who are not duly registered. (Code 1915, § 892S; 38 Del. Laws, c. 48, § 2; Code 1935, § 992; 24 Del. C. 1953, § 1174.) § 1175 Filing of false documents or forged affidavits; penalty. Whoever files or attempts to file as that person’s own the diploma, certificate or license of another or a forged, false affidavit of identification or qualification is guilty of a felony and shall be fined not less than $1,000 nor more than $5,000 and imprisoned not more than 5 years. (Code 1915, § 892L; 38 Del. Laws, c. 48, § 2; Code 1935, § 985; 24 Del. C. 1953, § 1175; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, § 37.) § 1176 Certain specific offenses; penalty. Repealed by 77 Del. Laws, c. 463, § 46, effective July 30, 2010. § 1177 Sale or offer to sell, procurement, alteration or use of diploma, license or certificate; penalty. Whoever sells or offers to sell a diploma conferring a dental degree or a license or a certificate granted pursuant to this chapter or procures such diploma or license or certificate with intent to use the same as evidence of the right to practice dentistry as defined by law, by a person other than the 1 to whom such diploma was issued or to whom such license was granted or any person who, with fraudulent intent, alters such diploma or license or certificate or attempts to use the same shall be fined not less than $1,000 nor more than $5,000. (Code 1915, § 892X; 38 Del. Laws, c. 48, § 2; Code 1935, § 997; 24 Del. C. 1953, § 1177; 77 Del. Laws, c. 463, § 38.) § 1178 Practice without registration or certificate; separate offenses; penalty. Whoever practices or attempts to practice dentistry or dental hygiene within this State without having been licensed to practice dentistry or dental hygiene or during the period of suspension or revocation of such license previously granted shall be fined not less than $500 nor more than $1,000, or imprisoned not less than 1 month nor more than 1 year, or both, and, upon a second or any subsequent offense, shall be fined not less than $1,000 nor more than $5,000 and imprisoned not less than 6 months nor more than 1 year. Each act of practice or attempt to practice dentistry or dental hygiene in violation of this section shall be a separate offense. (Code 1915, § 892P; 38 Del. Laws, c. 48, § 2; Code 1935, § 989; 24 Del. C. 1953, § 1178; 49 Del. Laws, c. 287; 65 Del. Laws, c. 210, § 12; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, §§ 39-41.) § 1179 Penalty in absence of specific designation. Whoever violates any provision or law relating to the practice of dentistry or dental hygiene or the application for examination and licensing of dentists and registration of dental hygienists, for which no specific penalty has been prescribed, shall be fined not less than $500 nor more than $1,000. (Code 1915, § 892Z; 38 Del. Laws, c. 48, § 2; Code 1935, § 999; 24 Del. C. 1953, § 1179; 65 Del. Laws, c. 210, § 12; 77 Del. Laws, c. 463, § 42.) § 1180 Second or subsequent offenses. Whoever is convicted of a second or subsequent offense under § 1172, § 1173 [repealed], § 1177 or § 1179 of this title shall be punished by the maximum fine prescribed in such section or by imprisonment for not less than 10 nor more than 60 days or by both such fine and imprisonment. (Code 1915, § 892AA; 38 Del. Laws, c. 48, § 2; Code 1935, § 1000; 24 Del. C. 1953, § 1180; 82 Del. Laws, c. 8, § 3.) § 1181 Enforcement of chapter; prosecution for violations. (a) [Repealed.] (b) All violations of the laws relating to the practice of dentistry and dental hygiene shall be prosecuted in courts of this State by the Attorney General or one of the Attorney General’s deputies. (17 Del. Laws, c. 496, § 7; 21 Del. Laws, c. 242, § 4; Code 1915, § 892; 38 Del. Laws, c. 48, § 2; Code 1935, § 973; 24 Del. C. 1953, § 1181; 65 Del. Laws, c. 210, § 12; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, §§ 43, 44.) Subchapter V General Provisions § 1191 Immunity of officials reviewing dental records and dentists’ work; confidentiality of investigative records; liability of informants. (a) The members of the State Board of Dentistry and Dental Hygiene of Delaware, dental ethics committee and dentists who are members of hospital and Delaware State Dental Society committees whose function is the review of dental records and of dentists’ work Page 66 Title 24 - Professions and Occupations with a view to quality of care and utilization of hospital facilities, home visits and office visits shall severally not be subject to, and shall be immune from, claim, suit, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, performed or reached in good faith and without malice by any such member or members acting individually or jointly in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under this chapter, or any other state law, or duly adopted rules and regulations of the aforementioned committees and hospitals, good faith being presumed until proven otherwise, with malice required to be shown by a complainant. (b) The records and proceedings of any such committees or organizations as described in subsection (a) of this section shall be confidential records which shall not constitute public records or be available for general inspection by the public. All hearings on complaints shall be opened to the public only at the request of the respondent. (c) No person who provides information to any such committees or organizations as described in subsection (a) of this section, or who testifies as a witness, shall be held liable in any cause of action arising out of the providing of such information or the giving of such testimony, provided that such person does so in good faith and without malice. (59 Del. Laws, c. 368, § 1; 64 Del. Laws, c. 236, § 1; 77 Del. Laws, c. 463, § 3.) § 1192 Reports of dental malpractice actions. The Prothonotary in each county of the State shall report to the Board the adjudication of any dental malpractice claim against a dentist which was filed in the Prothonotary’s office or the settlement of any dental malpractice claim which was filed in the Prothonotary’s office. (65 Del. Laws, c. 210, § 13; 70 Del. Laws, c. 186, § 1.) § 1193 Limitation of action for dental malpractice. No action for recovery of damages against a dentist, dental hygienist or dental assistant for personal injury, including death, allegedly suffered in the course of dental treatment, shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that: (1) Solely in the event of a personal injury the occurrence of which during such period of 2 years was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter; and (2) A minor under the age of 6 years shall have until the latter time for bringing such an action as provided for in paragraph (1) of this section or until the minor’s sixth birthday to bring an action. (65 Del. Laws, c. 210, § 14.) § 1194 Appeal panel. (a) Prior to the administration of the first practical examination each year by the Board, the Director of the Division of Professional Regulation shall appoint an appeal panel to hear appeals as a result of denial of licensure by the Board for failure of a practical examination. For appeals arising from the failure of the dental practical examination, the appeal panel shall consist of 2 dentists licensed to practice in this State and 1 public member. For appeals arising from the failure of the dental hygiene practical examination, the appeal panel shall consist of 1 dentist licensed to practice in this State, 1 dental hygienist and 1 public member. (b) The licensed professional members of the respective panels shall have at least 3 years of experience practicing in their respective professions. A professional member shall not have served on the State Board of Dentistry and Dental Hygiene nor on the Dental Hygiene Advisory Committee for at least 5 years preceding the professional member’s appointment to the panel; nor shall such professional member be an officer or other elected official in a professional association of dentists or dental hygienists. The public member shall not have been a dentist nor dental hygienist, nor a member of the immediate family of a dentist or dental hygienist, nor have been employed by a dentist, nor have a material interest in the providing of goods and services to dentists, nor have been engaged in an activity directly related to dentistry or dental hygiene. (c) Each member of the appeal panel shall serve for a term of 1 year and shall be eligible for 1 additional reappointment to the appeal panel. (d) In the event an applicant for licensure has failed a practical examination administered by the State Board of Dentistry and Dental Hygiene, the applicant has the right to appeal the decision by the Board. Such appeal shall be filed in writing with the Director of the Division of Professional Regulation within 20 days of the date of notification by the Board. Upon receipt of the applicant’s written appeal of the Board’s decision, the Director shall convene the appeal panel within 30 days. The Director shall notify the appellant by certified mail of the date set for the hearing. (e) The conduct of all hearings and the issuance of orders shall be in accordance with procedures established pursuant to this section, Chapter 101 of Title 29 and § 8735 of Title 29. Where such provisions conflict with the provisions of this section, this section shall govern. (f) The applicant may appeal any denial of licensure by the panel to the Superior Court within 30 days’ notice of denial. Such appeal shall be on the record. (g) In the event that an appeal is remanded from Superior Court, such appeal will be heard by the original appeal panel. (70 Del. Laws, c. 406, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 463, § 3.) Page 67 Title 24 - Professions and Occupations § 1195 Dentist discontinuing practice or leaving state; death of a dentist; change of dentist and transfer of patient records; notification of patients. (a) Every dentist licensed to practice under this chapter who is discontinuing a practice in this State or is leaving this State and who is not transferring patient records to another dentist shall notify that dentist’s own patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the dentist practices. The notice must be published at least 3 times over a 3-month period in advance of discontinuing the practice or leaving the State and must explain how a patient can procure that dentist’s own patient records. All patients of record who have not requested their records 30 days before the closing of the practice shall be notified by first class mail by the dentist to permit the patients to procure their records. Any patient records that have not been procured within 7 years after the dentist discontinues practice or leaves the State may be permanently disposed of in a manner that ensures the confidentiality of the records. (b) When a dentist licensed to practice under this chapter dies and has not transferred patient records to another dentist and has not made provisions for a transfer of patient records to occur upon the dentist’s death, a personal representative of the dentist’s estate shall notify the dentist’s patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the dentist practiced. The notice must be published at least 3 times over a 3-month period after the dentist’s death and must explain how a patient can procure patient records. All patients of record who have not requested their records 30 days after publication shall be notified by first class mail by the personal representative of the estate to permit patients to procure their records. Any patient records that have not been procured within 7 years after the death of the dentist may be permanently disposed of in a manner that ensures confidentiality of the records. (c) Whenever a patient changes from the care of 1 dentist to another dentist, the prior dentist shall transfer the records of the patient to the new dentist upon the written request of either the new dentist or the patient. If a patient changes care from 1 dentist to another dentist and fails to notify the prior dentist, or leaves the care of the prior dentist for a period of 7 years from the last entry date on the patient’s record and fails to notify the prior dentist, or fails to request the transfer of records to the new dentist, then the prior dentist shall maintain said records for a period of 7 years from the last entry date in the patient’s dental record after which time the records may be permanently disposed of in a manner that ensures confidentiality of the records. (d) This section shall not apply to a dentist who has seen or treated a patient on referral from another dentist and who has provided a record of the diagnosis or treatment to another dentist, hospital or agency which has provided treatment for the patient. (e) A dentist or the personal representative of the estate of a dentist 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. (75 Del. Laws, c. 72, § 1; 70 Del. Laws, c. 186, § 1.) Subchapter VI Volunteer License Provisions § 1196 Volunteer license, application procedures [Repealed]. (76 Del. Laws, c. 309, § 1; repealed by 81 Del. Laws, c. 79, § 38, effective July 17, 2017.) § 1197 Restrictions under the volunteer license for practicing dentistry [Repealed]. (76 Del. Laws, c. 309, § 1; repealed by 81 Del. Laws, c. 79, § 38, effective July 17, 2017.) § 1198 Volunteer license; maintenance requirements [Repealed]. (76 Del. Laws, c. 309, § 1; repealed by 81 Del. Laws, c. 79, § 38, effective July 17, 2017.) § 1199 Evaluation of volunteer license [Repealed]. (76 Del. Laws, c. 309, § 1; repealed by 81 Del. Laws, c. 79, § 38, effective July 17, 2017.) § 1199A Penalties, civil violation [Repealed]. (76 Del. Laws, c. 309, § 1; repealed by 81 Del. Laws, c. 79, § 38, effective July 17, 2017.) Page 68 Title 24 - Professions and Occupations Chapter 12 Security Alarm Systems and Protective Services [For application of this chapter, see 81 Del. Laws, c. 73, § 7] Subchapter I Licensure [For application of this subchapter, see 81 Del. Laws, c. 73, § 7] § 1201 Definitions [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) “Compliance agent” means an individual employed by a licensed security alarm business with no physical presence within this State who serves in a management capacity within this State, and who ensures compliance of the security alarm business with the requirements of this chapter. (b) “Department” means the Department of Safety and Homeland Security. (c) “Director” means the officer in charge of the Professional Licensing Section of the Division. (d) “Division” means the Division of the Delaware State Police. (e) “Employee” means any person who performs services for wages or salary. (f) “Licensee” means any person licensed to engage in the business of installing, servicing, selling, repairing, replacing, provision of monitoring or maintaining security alarm systems under this chapter. (g) “Officer” means the president, vice president, secretary, treasurer, comptroller, partner, or owner. (h) “Professional Licensing Section” means the Professional Licensing Section within the Division. (i) “Security alarm business” means a partnership, corporation or other business entity engaged in the sales, installation, service, maintenance, repair, replacement or provision of monitoring services at a customer’s home or customer’s business. This term does not include a partnership, corporation or other business entity that is engaged in sales of security alarm systems in a retail store location, online or by telephone. (j) “Security alarm system” means an assembly of equipment and devices arranged to signal the presence of a hazard requiring urgent attention and to which police are expected to respond. This term does not include an alarm installed in a vehicle or on someone’s person. (k) “Superintendent” means the Superintendent of the Division of the Delaware State Police or the Superintendent's designee. (64 Del. Laws, c. 281, § 1; 64 Del. Laws, c. 377, § 1; 76 Del. Laws, c. 179, §§ 1-3; 81 Del. Laws, c. 73, § 1.) § 1202 License requirement [For application of this section, see 81 Del. Laws, c. 73, § 7]. No person may operate a security alarm business without having obtained a license from the Professional Licensing Section pursuant to the requirements of this chapter. An occupational license issued by the Delaware Division of Revenue, pursuant § 2301 of Title 30 does not grant a security alarm business the right to operate within this State without obtaining a license under this chapter. (64 Del. Laws, c. 281, § 1; 81 Del. Laws, c. 73, § 1.) § 1203 Duties and powers of Professional Licensing Section [For application of this section, see 81 Del. Laws, c. 73, § 7]. The Professional Licensing Section shall have all of the following duties and powers: (1) Adopt and, from time to time, revise such rules, regulations and standards not inconsistent with the law, as may be necessary to enable it to carry into effect this chapter. (2) Deny or withdraw approval from applicants for failure to meet approved application procedures and other criteria. (3) Conduct hearings upon request for denial, suspension or revocation of a security alarm business license or security alarm business employee license. (4) Issue subpoenas and compel the attendance of witnesses, and administer oaths to persons giving testimony at hearings. (5) Perform inspections by entering at all reasonable times upon any security alarm business or location of a compliance agent, whether public or private property, for the purpose of determining compliance with or violations of this chapter and the promulgated rules and regulations. The Professional Licensing Section shall give any security alarm business 48 hours to comply and schedule such an inspection. (6) Have all the duties, powers and authority necessary to the enforcement of this chapter, as well as such other duties, powers and authority as it may be granted from time to time by the Superintendent. (81 Del. Laws, c. 73, § 1.) § 1204 Security alarm business requirements [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) An applicant for a license to operate as a security alarm business in this State shall furnish all of the following information to the Professional Licensing Section: (1) If an applicant for licensure is a sole proprietor, the full name, residential address or address of the place of business, and telephone number. If the sole proprietor will not be personally and actively in charge of the business, the sole proprietor shall provide the same information for the person who will manage the business. The sole proprietor shall subscribe to, verify and swear to the application. Page 69 Title 24 - Professions and Occupations (2) If an applicant for licensure is a partnership, the true names, addresses and phone numbers of all the general partners, the name of the partner to be actively in charge of the business or the individual who the partnership appoints to manage the security alarm business. The designated partners or management appointees shall subscribe to, verify and swear to the application. (3) If an applicant for licensure is a corporation, the true names, addresses and phone numbers of the officers and any other corporate officer or management appointee who will be actively involved in the security alarm business. The designated corporate officer or management appointee shall subscribe to, verify and swear to the application. (4) If an applicant for licensure is an sole proprietor, partnership or corporation with no physical presence within the State, the applicant shall state the true name, address and telephone number of the compliance agent within this State who will maintain active security alarm business records, including personnel and training records, and supply them upon demand from the Professional Licensing Section within a 48-hour period. The compliance agent shall subscribe to, verify and swear to the application. (5) A background statement providing the date of inception of the security alarm business or the intended date of inception, the nature of the security alarm business that is the subject of the application, and prior security alarm system work experience both within and outside of this State. (6) If the applicant for licensure is an individual, the applicant’s place of employment for the past 3 years including length of time at each position. (7) A statement detailing whether an applicant has ever been denied a license or permit, or had a license or permit suspended or revoked, in any jurisdiction to engage in the security alarm business industry. (8) A list of any felony or misdemeanor convictions in any jurisdiction for all applicants, officers, management appointees, or compliance agents listed on the application. (9) The Director may require additional information that may reasonably be deemed necessary to determine whether the applicant or individual signing the application meets the requirements of this chapter. (b) The Professional Licensing Section shall review each applicant, officer, management appointee or compliance agent for evidence of good character and organization illustrating a legitimate purpose. The Professional Licensing Section’s review shall include all of the following: (1) A record of arrests or convictions for crimes involving offenses against the person, dishonesty and fraud in relation to business of security alarm systems. (2) A record of complaints filed with the Fraud and Consumer Protection Division of the Delaware Department of Justice or Better Business Bureau regarding the applicant, officers, management appointees or compliance agents. (3) Evidence of a total lack of training or experience in the installation of security alarm systems by any person named in the application; (4) Failure to obtain a bond as required by § 1211 of this title. (64 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 252, § 11; 81 Del. Laws, c. 73, § 1.) § 1205 Security alarm business employee, licensee, compliance agent requirements [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) No security alarm business will be issued a license unless all officers, management appointees, or compliance agents who will be actively involved in the security alarm business submit to the State Bureau of Identification their name, Social Security number, race, sex, date of birth, height, weight, hair and eye color, address of legal residence and the provision of such other information as may be necessary to obtain a report of the person’s entire criminal history record by the State Bureau of Identification and a report of the person’s entire Federal criminal history pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. (b) Whoever wishes to be licensed under this chapter as an employee of a security alarm business must meet and maintain all of the following requirements: (1) Must not have been convicted of a felony. (2) Must not have been convicted of any misdemeanor involving theft or a theft-related offense, drug offense, or moral turpitude within the last 7 years and must also not have any of the following: a. More than 2 of such misdemeanors during such the person’s lifetime. b. A misdemeanor conviction that occurred during or as a result of employment in a capacity regulated by this chapter. (3) Must not have been adjudicated delinquent for conduct as a juvenile which if committed by an adult would constitute a felony, unless and until that person has reached their twenty-first birthday. (4) If a veteran of any branch of the armed forces, must not have been dishonorably discharged. (5) Must meet and maintain the qualifications in the rules and regulations promulgated by the Professional Licensing Section in carrying out the provisions of this chapter. (64 Del. Laws, c. 281, § 1; 69 Del. Laws, c. 291, § 98(c); 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 252, § 12; 81 Del. Laws, c. 73, § 1.) Page 70 Title 24 - Professions and Occupations § 1206 Renewal of license [For application of this section, see 81 Del. Laws, c. 73, § 7]. Each license shall expire 2 years after the date of issuance. (64 Del. Laws, c. 281, § 1; 81 Del. Laws, c. 73, § 1.) § 1207 Change in ownership or site of business; revocation of license [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) A new license is required whenever there is any change in the ownership, type of organization, or control of the licensed security alarm business that results in the creation of a new legal entity. (b) In the event of any change in the ownership or type of organization or any change in the address of any office or location, the licensee shall notify the Director of such a change in writing within 14 days of the change. A licensee’s failure to give such notification is sufficient cause for suspension or revocation of the security alarm business license. (c) Each license shall be issued to the person named on the application and shall be valid only for the person named on the license. No license shall be assigned or otherwise transferred to another person, with the exception of a sole proprietorship or partnership that incorporates, where the initial licensee remains as a principal in the newly-formed corporation. (d) Each new officer, management appointee, or compliance agent shall provide the Professional Licensing Section with the information required under § 1204(a) of this title. (e) The Professional Licensing Section shall review each new applicant under subsection (d) of this section as provided under § 1204 of this title. If the applicant fails to meet the standards the license shall be revoked. (64 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 138.) § 1208 Posting of license [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) Before any applicant shall exercise any rights under the license issued to the applicant, such license, or a certified copy thereof, shall be posted and at all times thereafter, while the same is in force, be displayed in a conspicuous place in the principal office and in each bureau, agency, subagency, office or branch office for which it is issued. (b) No person holding any license approved by the Professional Licensing Section under this chapter may: (1) Post or permit such license to be posted upon premises other than those described therein or to which it may be transferred pursuant to this chapter; (2) Fail to maintain such license in a conspicuous place in such offices or places of business; or (3) Knowingly alter, deface or destroy any such license or permit the alteration, defacement or destruction thereof. (64 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 73, § 1.) § 1209 Identification cards [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) The Professional Licensing Section shall issue identification cards to all persons licensed under this chapter. (b) Any person operating a security alarm business shall provide the Professional Licensing Section with the name, address, Social Security number and 1 set of classifiable fingerprints recorded in the manner required by the Professional Licensing Section for each employee hired, except persons subject to subsection (g) of this section. (c) No individual shall function as an employee of a security alarm business or perform the duties described in subsection (d) of this section without first obtaining the identification card required by this section. (d) Officers, compliance agents, employees, and licensees of all security alarm businesses shall obtain an identification card if they are directly engaged in selling, installing, altering, servicing, moving, maintaining, repairing, replacing, monitoring, or responding to or causing others to respond to security alarm systems within this State. (e) An identification card must be carried by any cardholder at all times such individual is engaged in the security alarm business and must be exhibited upon request. (f) No identification card issued pursuant to this chapter shall be transferable. (g) Officers, compliance agents, employees, and licensees who do not perform functions at an end-user’s premises are not subject to the requirements of subsections (a) through (f) of this section if their duties are limited to selling security alarm systems at a retail store location, online, or by telephone. (64 Del. Laws, c. 281, § 1; 79 Del. Laws, c. 62, § 1; 81 Del. Laws, c. 73, § 1.) § 1210 Employee identification cards — Renewal; notice of changes [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) Identification cards approved by the Professional Licensing Section shall expire and be renewable on the fifth anniversary of the date of birth of the applicant next following the date of its issuance. If the applicant’s birth date is February 29, the identification card shall expire and be renewable on February 28 every fifth year. (b) The Professional Licensing Section may refuse to renew an identification card for any grounds set forth in § 1213(a) of this title. Page 71 Title 24 - Professions and Occupations (c) A security alarm business shall notify the Professional Licensing Section within 10 days after the termination of employment of, or association of, any identification cardholder of such security alarm business. (64 Del. Laws, c. 281, § 1; 73 Del. Laws, c. 370, § 1; 81 Del. Laws, c. 73, § 1.) § 1211 Issuance of license; bond [For application of this section, see 81 Del. Laws, c. 73, § 7]. Upon notification of approval of an application, the newly-licensed security alarm business shall provide the Professional Licensing Section with all of the following at the time of receiving the license and prior to the license being operative: (1) An occupational license issued by the Division of Revenue as evidence of the ability to conduct business in this State for all offices, bureaus, agencies or branches named in the application. (2) A cash bond or evidence that the newly-licensed security alarm business is covered by a surety bond conditioned for the faithful and honest conduct of such business by the newly-licensed security alarm business, executed by a surety company authorized to do business in this State, in a reasonable amount to be fixed by the Professional Licensing Section for any person aggrieved by the misconduct of any person licensed under this chapter. (64 Del. Laws, c. 281, § 1; 74 Del. Laws, c. 110, § 138; 81 Del. Laws, c. 73, § 1.) § 1212 Injunctions [For application of this section, see 81 Del. Laws, c. 73, § 7]. Upon authority of the Superintendent, any person that has engaged in or is about to engage in any act or practice that constitutes a violation of any provision of this chapter or any promulgated rule or regulation, the Director may request the Attorney General to make an application to the Court of Chancery for an order enjoining such acts or practices or for an order directing compliance and, upon a showing by the Director that such person has engaged in any such act or practice, a permanent or temporary injunction, restraining order, or other order may be granted. (81 Del. Laws, c. 73, § 1.) § 1213 Disciplinary proceedings; appeal [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) Grounds. — Subject to the provisions of this chapter, the Superintendent may impose any of the sanctions listed in subsection (b) of this section, singly or in combination, when it finds an applicant, licensee, officer, compliance agent or employee is guilty of any of the following offenses: (1) Conducting a security alarm business without a license. (2) Working as an employee or licensee without an identification card. (3) Lacking good character and legitimate purpose § 1204(b) of this title. (4) Obtaining criminal charges pursuant to § 1205 of this title. (5) Failing to obtain an identification card under § 1209 of this title. (6) Failing to notify subscribers of a security alarm business of a suspension or revocation of its license. (7) Failing to file a surety bond under § 1211 of this title. (8) Failing to surrender a revoked license or identification card. (9) Submitting false or fraudulent information on an application for a license or identification card. (10) Violating any provision of this chapter or any promulgated rule or regulation. (b) Disciplinary sanctions. — (1) Permanently revoke a license or identification card. (2) Suspend a license or identification card. (3) Issue a letter of reprimand. (4) Refuse to issue a license or identification card. (5) Refuse to renew a license or identification card. (6) Other discipline as considered appropriate and necessary. (c) Procedure. — (1) After receipt of written notice from the Professional Licensing Section of the Director’s denial, suspension, or revocation of a license or identification card, the applicant, licensee, officer, compliance agent or employee shall be afforded a hearing before the Superintendent. (2) The accused may be represented by counsel who shall have the right of examination and cross examination. (3) Testimony before the Superintendent shall be under oath. (4) A record of the hearing shall be made. At the request and expense of any party such record shall be transcribed with a copy to the other party. (5) The Superintendent’s decision shall be based upon sufficient legal evidence. If the charges are supported by such evidence, the Superintendent may sanction such a person as provided by subsection (b) of this section. A suspended license may be reissued upon a further hearing initiated at the request of the suspended licensee, officer, compliance agent or employee by written application to the Director. Page 72 Title 24 - Professions and Occupations (d) All decisions of the Superintendent shall be final and conclusive. Where applicant, licensee, officer, compliance agent or employee is in disagreement with the action of the Superintendent, the practitioner may appeal the Superintendent’s decision to the Secretary of the Department within 30 days of service or the postmarked date of the copy of the decision mailed to the individual. The appeal shall be on the record to the Secretary as provided in the Administrative Procedures Act §§ 10142-10145 of Title 29. (64 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 138; 81 Del. Laws, c. 73, § 1.) § 1214 Penalties [For application of this section, see 81 Del. Laws, c. 73, § 7]. Whoever shall violate any part of § 1213 of this title or any provision of this chapter shall be subject to an administrative penalty not to exceed $500 or imprisonment for a period not to exceed 90 days or both. (1) Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the violation, or violations, ability of the violator to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation and such other matters as justice requires. (2) In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Superintendent in any court of competent jurisdiction, including any Justice of the Peace Court, for collection of the administrative penalty, including interest, attorneys’ fees and costs and the validity and appropriateness of such administrative penalty shall not be subject to review. (64 Del. Laws, c. 281, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 73, § 1.) § 1215 Notification of arrest [For application of this section, see 81 Del. Laws, c. 73, § 7]. Any individual licensed under this chapter shall notify the Director within 5 days, excluding weekends and state holidays, of any arrest which could result in a misdemeanor or felony conviction. Failure to do so may result in the suspension or revocation of a license. (81 Del. Laws, c. 73, § 1.) Subchapter II False Alarms [For application of this subchapter, see 81 Del. Laws, c. 73, § 7] § 1221 Purpose [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) The purpose of this subchapter is to encourage security alarm system users and security alarm businesses to properly use and maintain the operational effectiveness of security alarm systems in order to improve the reliability of security alarm systems and reduce or eliminate false alarms. (b) This subchapter governs security alarm systems intended to summon law-enforcement response, requires registration by security alarm system users, establishes a system of administration, and provides for the enforcement of penalties for violations of this section. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, §§ 5, 6.) § 1222 Definitions [For application of this section, see 81 Del. Laws, c. 73, § 7]. The following words and phrases, when used in this subchapter, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: (1) “Alarm” means a security alarm system signal that is created by the activation of a security alarm system. (2) “Arming station” means a device that allows control of a security alarm system. (3) “Automatic voice dialer” means any electrical, electronic, mechanical, or other device capable of being programmed to send a prerecorded voice message, when activated, over a telephone line, radio or other communication system, to a law-enforcement authority, public safety or emergency services agency requesting dispatch. (4) “Cancellation” means the process where response to a security alarm system dispatch request is terminated when a security alarm business for the security alarm system site notifies the responding law-enforcement agency, prior to arrival at the security alarm system site, that there is not an existing situation at the security alarm system site requiring law-enforcement authority response. (5) “Conversion” means the transaction or process by which a security alarm business begins the servicing and/or monitoring of a previously unmonitored security alarm system or a security alarm system previously serviced and/or monitored by another security alarm business. (6) “Duress alarm” means a silent security alarm system signal generated by the entry of a designated code into an arming station in order to signal that the security alarm system user is being forced to turn off the system and requires law-enforcement response. (7) “False alarm” means a security alarm system dispatch request to a law-enforcement authority, when no emergency of actual or threatened criminal activity requiring immediate response exists. This definition includes signals activated by negligence, accident, and mechanical failure; signals activated intentionally in nonemergency situations; and signals for which the actual cause is unknown. There is a rebuttable presumption that an alarm is false if personnel responding from a law-enforcement authority do not discover any evidence of unauthorized entry, criminal activity, or other emergency after following normal police procedures in investigating the incident. An alarm is not false if the security alarm system user proves that: Page 73 Title 24 - Professions and Occupations a. An individual activated the alarm based on a reasonable belief that an emergency or actual or threatened criminal activity requiring immediate response existed; b. The security alarm system was activated by a violent condition of nature, including but not limited to tornadoes, floods, earthquakes and lightning, or by an electrical surge that caused physical damage to the system, as evidenced by testimony of a licensed security alarm system contractor who has conducted an on-site inspection and personally observed the damage to the system; c. If the security alarm system user experienced a power outage, causing the alarm to activate upon restoration of power, as evidenced by written documentation provided by Delmarva Power or other applicable provider; or, d. Where there has been a cancellation as defined in paragraph (4) of this section. (8) “Holdup alarm” means a silent alarm signal generated by the manual activation of a device intended to signal a robbery in progress. (9) “Law-enforcement authority” means any authorized representative of a law-enforcement agency. (10) “Local security alarm system” means any security alarm system, which is not monitored, that annunciates an alarm only at the security alarm system site. (11) “Monitoring” means the process by which a security alarm business receives signals from a security alarm system and relays a security alarm system dispatch request for the purpose of summoning law enforcement to the security alarm system site. (12) “Monitoring station” means an office or entity whereby a security alarm business conducts monitoring of security alarm systems for purposes of dispatch and notification. A monitoring station shall provide a toll-free, 24-hour telephone number for use by a responding law-enforcement agency. (13) “Panic alarm” means an audible security alarm system signal generated by the manual activation of a device intended to signal a life threatening or emergency situation requiring law-enforcement response. (14) “Person” means an individual, corporation, partnership, association, organization, or similar entity. (15) “Responder” means an individual capable of reaching the security alarm system site within 30 minutes and having access to the security alarm system site, the code to the security alarm system, and the authority to approve repairs to the security alarm system. (16) “Security alarm business” is as defined in § 1201 of this title. (17) “Security alarm system” is as defined in § 1201 of this title. (18) “Security alarm system administrator” means a person designated by the State with authority to administer, control and review false alarm reduction efforts and administer the provisions of this section. (19) “Security alarm system dispatch request” means a notification to a law-enforcement authority that a security alarm system, either manual or automatic, has been activated at a particular security alarm system site. (20) “Security alarm system registration” means authorization granted by the security alarm system administrator to a security alarm system user to operate a security alarm system. (21) “Security alarm system site” means a single fixed premises or location served by a security alarm system or systems. Each unit, if served by a separate security alarm system in a multi-unit building or complex, shall be considered a separate security alarm system site. (22) “Security alarm system user” means any person or entity, which has contracted for monitoring, repair, installation or maintenance services from a security alarm business for a security alarm system, or which owns or operates a security alarm system which is not monitored, maintained or repaired under contract. (23) “Takeover” means the transaction or process by which a security alarm system user takes over control of an existing security alarm system, which was previously controlled by another security alarm system user. (24) “Verify” means at least 2 attempts by a security alarm business, or its representative, to contact the security alarm system site and/or security alarm system user by telephone and/or other electronic means, whether or not actual contact with a person is made, to determine whether a security alarm system signal is valid before requesting law-enforcement dispatch, in an attempt to avoid an unnecessary security alarm system dispatch request. (25) “Zones” means division of devices into which a security alarm system is divided to indicate the general location from which a security alarm system signal is transmitted. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, §§ 2, 5, 6.) § 1223 Registration [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) A security alarm system user shall not operate, or cause to be operated, a security alarm system at its security alarm system site without obtaining a valid security alarm system registration. A separate security alarm system registration is required for each security alarm system site. (b) The security alarm system registration application form must be submitted to the security alarm system administrator within 30 days after the security alarm system at a particular site has been activated or within 30 days after a security alarm system takeover. Failure to submit a timely application will result in a nonregistered security alarm system. Use of a nonregistered security alarm system shall be a violation of this chapter. (c) Each security alarm system application must include the following information: Page 74 Title 24 - Professions and Occupations (1) The name, complete address (including apartment/suite number) and telephone numbers of the person who will be the registration holder and be responsible for the proper maintenance and operation of the security alarm system; (2) The name and complete address of the security alarm system site, the classification of the security alarm system site as either residential (includes apartment, condominium, mobile home, etc.) or commercial, and the name, address and telephone number of the person responsible for that security alarm system site; (3) For each security alarm system located at the security alarm system site, the classification of the security alarm system (i.e. burglary, holdup, duress, panic alarms, etc.) and for each classification whether such alarm is audible or silent; (4) The mailing address, if different from the address of the security alarm system site; (5) Any dangerous or special conditions present at the security alarm system site; (6) The names and addresses of at least 2 individuals who are able to, and have agreed to: a. Receive notification of a security alarm system activation at any time and who can respond to the security alarm system site and, upon request, gain access to the security alarm system site and deactivate the security alarm system if necessary; or, b. Receive notification of a security alarm system activation at any time and who has access to the security alarm system user for purposes of deactivating the security alarm system, if necessary. (7) Type of business conducted at a commercial security alarm system site; (8) Signed certification from the security alarm system user stating the following: a. The date of installation, conversion or takeover of the security alarm system, whichever is applicable; b. The name, address and telephone number of the security alarm system inspection company or companies performing the security alarm system installation; conversion or takeover and of the security alarm system installation company responsible for providing repair service to the security alarm system; c. The name, address and telephone number of the monitoring company if different from the security alarm system installation company; d. That a set of written operating instructions for the security alarm system, including written guidelines on how to avoid false alarms, has been left with the applicant by the security alarm system installation company; and, e. That the alarm installation company has trained the applicant in proper use of the security alarm system, including instructions on how to avoid false alarms. (9) Acknowledgment that any delay in law-enforcement authority response time may be influenced by factors including, but not limited to priority of calls, weather conditions, traffic conditions, emergency conditions, staffing levels, etc. (d) Any false statement of material fact made by an applicant for the purpose of obtaining a security alarm system registration shall be sufficient cause for refusal to issue a registration. (e) A security alarm system registration shall not be transferable to another person or security alarm system site. A security alarm system user shall inform the security alarm system administrator of any change that alters any of the information listed on the security alarm system registration application within 5 days of such change. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, § 6.) § 1224 Duties of the security alarm system user [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) A security alarm system user shall maintain the security alarm system site and the security alarm system in a manner that will minimize or eliminate false alarms. (b) A security alarm system user shall maintain at each security alarm system site a set of written operating instructions for each security alarm system. (c) A security alarm system user that is using a security alarm business for monitoring shall provide that security alarm business at least 2 different telephone numbers to verify an alarm. (d) A security alarm system user shall adjust the mechanism or cause the mechanism to be adjusted so that an alarm signal audible on the exterior of a security alarm system site will sound for no longer than 10 minutes after being activated. (e) A security alarm system user shall not use an automatic voice dialer. (f) Violations of subsections (a), (b), (c) and (d) of this section shall result in an assessment of a civil penalty against the security alarm system user in the amount of $50. A violation of subsection (e) of this section shall result in the assessment of a civil penalty against the security alarm system user in the amount of $100. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, §§ 5, 6.) § 1225 Duties of security alarm businesses [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) A security alarm business shall provide written and oral instructions to each of its security alarm system users for every security alarm system site on the proper use and operation of its security alarm systems. Such instructions shall specifically include all instructions necessary to turn the security alarm system on and off and instructions on the avoidance of false alarms. Page 75 Title 24 - Professions and Occupations (b) A security alarm business shall be responsible for the prevention of false alarms during installations, servicing, repairs and maintenance of security alarm systems. (c) A security alarm business shall ensure that battery backup power is installed during new installations of security alarm systems. (d) A security alarm business shall not use an automatic voice dialer. (e) A security alarm business providing monitoring services shall attempt to verify an activated alarm signal by contacting at least 2 different telephone numbers provided by a security alarm system user who has authority to cancel the dispatch before a security alarm system dispatch request is made, unless the security alarm system administrator has waived the 2-call dispatch requirement. This subsection shall not apply to duress and holdup alarms. (f) A security alarm business that issues security alarm system dispatch requests must maintain for a period of at 1 year from the date of a security alarm system dispatch request, records relating to security alarm system dispatch requests. Records must include name, address and telephone number of the security alarm system user, the security alarm system zone or zones activated, the time of a security alarm system dispatch request and evidence of its efforts to verify. These records shall immediately be made available to the security alarm system administrator or any police officer at any time during normal business hours. (g) A security alarm business providing monitoring services shall provide the relevant police department or departments with a toll-free telephone number for contacting monitoring station dispatchers and for obtaining information as provided in subsection (f) of this section. (h) A security alarm business shall not make a security alarm system dispatch request if monitoring equipment indicates a security alarm system malfunction. (i) After completion of the installation of a security alarm system, an employee of the security alarm business responsible for installing the security alarm system shall review with the security alarm system user a false alarm prevention checklist approved by the security alarm system administrator. (j) A security alarm business responsible for monitoring a security alarm system at a registered security alarm system site shall not make a security alarm system dispatch request to a law-enforcement authority in response to a burglar alarm signal, excluding panic, duress and holdup signals, during the first 7 days following a security alarm system installation. The security alarm system administrator may grant a security alarm system user's request for an exemption from this waiting period based upon a determination that special circumstances substantiate the need for the exemption. (k) A security alarm business responsible for monitoring a security alarm system at a registered security alarm system site shall: (1) Report alarm signals by using telephone numbers designated by the security alarm system administrator; (2) Communicate security alarm system dispatch requests to law-enforcement; (3) Communicate cancellations to the law-enforcement authority; (4) Ensure that all security alarm system users of security alarm systems equipped with a duress, holdup or panic alarm are given adequate training as to the proper use of the duress, holdup or panic alarm; (5) Communicate any available information (north, south, front, back, floor, etc.) about the location on all alarm signals related to the security alarm system dispatch request; (6) Communicate the type of alarm activation (silent or audible, interior or perimeter); (7) Provide a security alarm system user registration number when requesting law-enforcement dispatch; (8) After a security alarm system dispatch request, promptly advise the law-enforcement authority if the monitoring company knows that the security alarm system user or the responder is on the way to the security alarm system site; (9) Attempt to contact the security alarm system user within 24 hours via mail, fax, telephone, or other electronic means when an security alarm system dispatch is made; and, (10) Beginning June 10, 2012, monitoring companies must maintain for a period of at least 1 year from the date of the security alarm system dispatch request, records relating to security alarm system dispatch requests. Records must include the name, address and telephone number of the security alarm system user, the security alarm system zones or zones activated, the time of security alarm system dispatch request and evidence of an attempt to verify. The security alarm system administrator may request copies of such records for individually named security alarm system users. If the request is made within 60 days of an security alarm system dispatch request, the monitoring company shall furnish requested records within 3 business days of receiving the request. If the records are requested between 60 days to 1 year after security alarm system dispatch request, the monitoring company shall furnish the requested records within 30 days of receiving the request. (11) A security alarm system installation company and/or monitoring company that purchases security alarm system accounts from another person shall notify the security alarm system administrator of such purchase and provide details as may be reasonably requested by the security alarm system administrator. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, §§ 3, 5, 6.) § 1226 Duties and authority of the security alarm system administrator [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) The Department of Safety and Homeland Security, or its designee, shall: Page 76 Title 24 - Professions and Occupations (1) Designate a manner, form and telephone number for the communication of security alarm system dispatch requests; and (2) Establish a procedure to accept cancellation of security dispatch requests, which shall be used by the security alarm system administrator to enforce the provisions of this section. (b) The security alarm system administrator shall establish a procedure to record such information on security alarm system dispatch requests necessary to permit the security alarm system administrator to maintain records, including, but not limited to, the information listed below: (1) Identification of the registration number for the security alarm system site; (2) Identification of the security alarm system site; (3) Date and time security alarm system dispatch request was received, including the name of the monitoring company and the monitoring operator name or number; (4) Date and time of law-enforcement authority arrival at the security alarm system site; (5) Zone and zone description, if available; (6) Weather conditions; (7) Name of security alarm system user's representative at the security alarm system site, if any; (8) Identification of the responsible security alarm system installation company or monitoring company; (9) If the law-enforcement authority was unable to locate the address of the security alarm system site; and, (10) Cause of the alarm signal, if known. (c) The security alarm system administrator shall establish a procedure for the notification of a false alarm to the security alarm system user. The notice shall include the following information: (1) The date and time of law-enforcement authority response to the false alarm; (2) A statement urging the security alarm system user to ensure that the security alarm system is properly operated, inspected and serviced in order to avoid false alarms and resulting fines. (d) The security alarm system administrator may require a conference with a security alarm system user and the security alarm system installation company and/or monitoring company responsible for the repair or monitoring of the security alarm system to review the circumstances of each false alarm. (e) The security alarm system administrator may require a security alarm system user to remove a holdup alarm that is a single action, nonrecessed button, if a false holdup alarm has occurred. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, §§ 4, 6.) § 1227 False alarms [For application of this section, see 81 Del. Laws, c. 73, § 7]. No security alarm system user shall cause, allow or permit the security alarm system to give 3 false alarms at a security alarm system site within a calendar year. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, § 6.) § 1228 Penalties [For application of this section, see 81 Del. Laws, c. 73, § 7]. A security alarm system user in violation of § 1227 of this title shall be subject to a civil penalty as follows: (1) Fourth false alarm: $50 civil penalty; (2) Fifth false alarm: $75 civil penalty; (3) Sixth false alarm: $100 civil penalty; (4) Seventh and any false alarm thereafter within a calendar year: $250 civil penalty for each offense. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, § 6.) § 1229 Civil penalties and appeals [For application of this section, see 81 Del. Laws, c. 73, § 7]. (a) Summons and notice of violation. — A summons for payment of a violation of this subchapter may be executed by mailing such summons to the security alarm system user at the address where the security alarm system is located. (b) Payment. — Persons electing to pay a civil penalty shall make payments to the entity designated on the summons for payment. Procedure for payment under this section shall be by regulation of the Department of Safety and Homeland Security, or by regulation, code or ordinance of the applicable municipality or county. (c) Procedure to contest a violation. — A security alarm system user receiving a summons pursuant to this subchapter may request a hearing to contest the violation by notifying, in writing, the entity designated on the summons within 30 days of the date of the mailing of the summons. Upon receipt of a timely request for a hearing, an administrative hearing shall be scheduled pursuant to regulations set forth by the Department of Safety and Homeland Security and the security alarm system user shall be notified of the hearing date by first class mail. The hearing may be informal and shall be held in accordance with the regulations of the Department of Safety and Homeland Security. Costs for such hearing shall not be assessed against the prevailing party. Page 77 Title 24 - Professions and Occupations (d) Appeal of administrative hearing. — Either party may elect to appeal an administrative decision to the Justice of the Peace Court, which shall have exclusive jurisdiction to hear the appeal. An appeal to the Justice of the Peace Court shall be the final right of appeal. (e) Failure to pay and successfully contest the violation. — If the security alarm system user fails to pay the civil penalty, to respond to the summons within the time specified on the summons, and/or to successfully contest the civil penalty, the Department of Safety and Homeland Security, or its designee, may establish procedures for the collection of these civil penalties, and may enforce the civil penalty by civil action in the Justice of the Peace Court, including seeking judgment and execution on a judgment against the security alarm system user. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, § 6.) § 1230 Confidentiality [For application of this section, see 81 Del. Laws, c. 73, § 7]. In the interest of public safety, all information contained in and gathered through the security alarm system registration applications shall be confidential information. (76 Del. Laws, c. 179, § 4; 81 Del. Laws, c. 73, § 6.) Page 78 Title 24 - Professions and Occupations Chapter 13 Private Investigators and Private Security Agencies § 1301 Short title. This chapter may be cited as the “Private Investigators and Private Security Agencies Act.” (69 Del. Laws, c. 285, § 1.) § 1302 Definitions. As used in this chapter, unless the context requires a different definition: (1) “Armed” shall mean any private security guard or armored car guard who carries or has immediate access to a firearm in the performance of his or her duties. (2) “Armored car agency” shall mean any person that provides armed secured transportation and protection from 1 place or point to another place or point of money, currency, coins, bullion, securities, bonds, jewelry, negotiables or other valuables in a speciallyequipped motor vehicle. (3) “Armored car guard” shall mean an individual employed by an armored car agency to perform duties as described under the definition of armored car agency. (4) “Board” shall mean the Delaware Board of Examiners of Private Investigators and Private Security Agencies. (5) “Commissioned security guard” shall mean an individual employed to: a. Safeguard and protect persons or property; or b. Deter theft, loss or concealment of any tangible or intangible personal property on the premises he or she is contracted to protect; and c. Who carries or has access to a firearm in the performance of his or her duties as provided under authority of the Board. (6) “Compliance agent” shall mean any individual employed by a private security agency, private investigative agency, or armored car agency within the State of Delaware who serves within a management capacity within the State, and who ensures compliance of the business with the requirements of this chapter. (7) “Computer forensic specialist” shall mean an individual who interprets, evaluates, tests, or analyzes preexisting data from computers, computer systems, networks, or other electronic media, provided to them by another where that person owns, controls, or possesses said computer, computer systems, networks or electronic media through the use of highly specialized expertise in recovery, authentication and analysis of electronic data or computer usage. A computer forensic specialist shall not be classified or within the definition of a private investigator. (8) “Department” shall mean the Department of Safety and Homeland Security. (9) “Director” shall mean the officer in charge of the Professional Licensing Section of the Division of the Delaware State Police. (10) “Division” shall mean the Division of the Delaware State Police. (11) “Event security staff” shall mean any individual employed by a private security agency to primarily perform crowd management, patron screening and event security at sports or entertainment venues with a minimum spectator capacity of 5,000 people. (12) “Firearm” shall hold the meaning as defined in § 222 of Title 11. (13) “License” shall mean a method of regulation whereby businesses, sole proprietors, partnerships for a private security agency, private investigative agency, or armored car agency are required to be licensed by the Board. (14) “Manager” shall mean in the case of a corporation, an officer or supervisor, or in the case of a partnership, a general or unlimited partner meeting the experience qualifications set forth in this chapter for a private security agency, private investigative agency or armored car agency. (15) “Officer” shall mean the president, vice president, secretary, treasurer, comptroller, partner, owner or any other corporate title. (16) “Person” shall mean an individual (sole proprietorship), firm, association, company, partnership, corporation, nonprofit organization, institution, or similar entity. (17) “Private investigative agency” means any person who engages in the business or accepts employment to obtain or furnish information or to conduct investigations with reference to: a. Crime or civil wrongs; b. The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person; c. The location, disposition or recovery of lost or stolen property; d. The cause or responsibility for fires, libels, losses, accidents, damages or injuries to persons or to property; e. The securing of evidence to be used before any court, board, officer, or investigating committee. Page 79 Title 24 - Professions and Occupations (18) “Private investigator” shall mean an individual employed by a private investigative agency (even as a sole proprietor) to perform 1 or more duties as described under the definition of “private investigative agency.” (19) “Private security agency” shall mean any person engaging in the business of or undertaking to provide a private watchperson, guard or street patrol service on a contractual basis for another person and performing any 1 or more of the following or similar functions: a. Prevention of intrusion, entry, larceny, vandalism, abuse, fire, or trespass on private property; b. Prevention, observation or detection of any unauthorized activity on private property; c. Control, regulation or direction of the flow or movements of the public, whether by vehicle or otherwise, only to extent and for the time directly and specifically required to assure the protection of property; or d. Supervises event security staff. (20) “Private security guard” shall mean an individual employed by a private security agency to perform one or more duties as described under the definition of a private security agency. (21) “Proprietary security” shall mean the in-house security department of any person, if the security department has as its general purpose the protection and security of its own property and grounds, and if it does not offer or provide security services to any other person. (22) “Registration” shall mean a method of regulation whereby an individual employed by a private security agency, private investigative agency, or armored car agency as a security guard, private investigator or armored car guard is licensed and issued an identification card by the Professional Licensing Section. (23) “Section” shall mean the Professional Licensing Section of the Delaware State Police. (24) “Secretary” shall mean the Secretary of the Department of Safety and Homeland Security. (25) “Superintendent” shall mean the Superintendent of the Division of the Delaware State Police or the appointed designee. (69 Del. Laws, c. 285, § 2; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 423, §§ 1-4; 77 Del. Laws, c. 457, § 1; 80 Del. Laws, c. 176, § 1; 81 Del. Laws, c. 99, § 1.) § 1303 Board of Examiners of Private Investigative, Private Security and Armored Car Agencies; composition, qualifications, terms, vacancies; suspension or removal; compensation. (a) The Delaware Board of Examiners of Private Investigative, Private Security and Armored Car Agencies shall administer and enforce this chapter. (b) The Board is composed of the following members: (1) The Superintendent; (2) The Attorney General; (3) Three members of the public who are residents of the State; (4) Two members who are: a. Licensed under this chapter; b. Engaged for a period of 3 consecutive years as the owner or operator of a private investigative agency; (5) Two members who are (i) licensed under this chapter; (ii) engaged for a period of 3 consecutive years as the owner or operator of a private security agency; or the owner or operator of an armored car agency. (c) No person shall be eligible for appointment as a public member if the person or his or her spouse: (1) Holds a license issued by a professional regulatory agency in the field of private security; (2) Serves as an employee or within a management role at a business entity or other organization related to the field of private security, private investigative, or armored car agency; (3) Holds a financial interest in a business entity or other organization related to the field of private security, private investigative, or armored car agency. (d) No member of the Board may be an officer, employee or paid consultant of a trade association in the private security, private investigative or armored car industry. For the purpose of this section, “trade association” shall mean a nonprofit, cooperative, voluntarily joined association of business or professional competitors that is designed to assist its members and its industry or profession in dealing with mutual or professional problems in promoting their common interests. (e) The Governor may suspend or remove a public member of the Board for failure to hold or maintain qualifications for appointment; failure to attend at least half of the regularly scheduled meetings held within a calendar year; and any misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. (f) The provisions of the State Employees’, Officers’ and Officials’ Code of Conduct set forth in Chapter 58 of Title 29 apply to the members of the Board. (g) Members serving by virtue of position may appoint a designee to serve in their stead and at their pleasure. All other members shall be appointed by the Governor for terms up to 3 years in order to continue a staggered basis so that no more than 3 members’ terms shall expire in a year. Page 80 Title 24 - Professions and Occupations (h) Members not serving by virtue of position shall receive compensation at the rate of $50 per meeting attended; provided, however, no member shall receive compensation for the year in excess of $1500. (69 Del. Laws, c. 285, § 3; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 347, § 1; 77 Del. Laws, c. 457, § 2; 81 Del. Laws, c. 99, § 2.) § 1304 Organization; meetings; officers; quorum; Executive Secretary. (a) The Chair of the Board shall be the Superintendent. (b) The Board shall hold regularly scheduled meetings at least 4 times in a calendar year, at other times the Chair considers necessary, or at the request of a majority of the Board. (c) The Director shall designate an Executive Secretary who will be responsible for the performance of the regular administrative functions of the Board and other duties the Board may direct. (d) A majority of the members of the Board constitutes a quorum for the purpose of transacting business; however, no disciplinary action may be taken without the affirmative vote of at least 5 members. (e) The Board shall prepare information of interest to consumers or recipients of services regulated, under this chapter, describing the Board’s procedures by which complaints are filed with and resolved by the Board. The Board shall make the information available to the general public and appropriate state agencies. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 3.) § 1305 Board powers. (a) The Board shall determine the qualifications of security guards, private investigators, armored car guards, private security agencies, private investigative agencies, and armored car agencies. (b) The Board shall promulgate all rules and regulations necessary in carrying out the provisions of this chapter. (c) The Board shall investigate alleged violations of any provision of this chapter or rule or regulation promulgated thereunder. (d) The Board may deny, suspend or revoke any application, registration or license. (e) The Board may conduct a criminal history background check pursuant to the procedures set forth in Chapter 85 of Title 11 for the purposes of licensing any individual pursuant to this chapter. (69 Del. Laws, c. 285, § 3; 73 Del. Laws, c. 252, § 13; 75 Del. Laws, c. 372, § 2; 81 Del. Laws, c. 99, § 4.) § 1306 Records. (a) The Section shall keep a register of all applications for security guards, private investigators, armored car guards, security guard agencies, private investigative agencies and armored car agencies, complete records relating to meetings of the Board, rosters, changes and additions to the Board’s rules and regulations, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board. (b) The Section pursuant to approval of the Board shall: (1) Adopt and, from time to time, revise such rules and regulations and standards not inconsistent with the law as may be necessary to enable it to carry into effect this chapter; (2) Deny or withdraw approval from applicants for failure to meet approved application procedures and other criteria; (3) Oversee renewal applications and appropriate fees; (4) Coordinate hearings upon request for denial, suspension or revocation of a license or identification card; (5) Have the power to issue subpoenas and compel the attendance of witnesses, and administer oaths to persons giving testimony at hearings; (6) Have all the duties, powers and authority necessary to the enforcement of this chapter, as well as such other duties, powers and authority as it may be granted from time to time by the Board. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 5.) § 1307 Investigations, subpoenas and injunctions. (a) (1) The Director shall have the authority to investigate any violations of this chapter or any rules or regulations adopted by the Board. The Section shall be responsible for issuing a final written report at the conclusion of its investigation. (2) The Board may issue subpoenas to compel the production of pertinent books, accounts, records and documents. (b) The Director shall have the power to enter at all reasonable times upon any private or public property for the purposes of determining whether or not there is compliance with, or violations of this chapter, or rules and regulations adopted by the Board. (c) Upon a finding of a violation pursuant to the investigation, the Board shall cause a copy of the complaint, together with a notice of the time and place fixed for a hearing, to be served upon the practitioner at least 30 days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation. (d) (1) The Board may administer oaths and require testimony and evidence be given under oath. Page 81 Title 24 - Professions and Occupations (2) No witness shall refuse to obey a subpoena issued by the Board. Upon refusal, the Board may petition Superior Court to schedule a hearing to compel the witness to comply with the subpoena. (e) During the investigation or upon a finding of violation of the provisions of this chapter or rule or regulation, the Board may request the Attorney General to make application to the Court of Chancery for an order enjoining such acts or practices or for an order directing compliance, and upon a showing by the Board of such a violation, a permanent or temporary injunction, restraining order or other order may be granted. (69 Del. Laws, c. 285, § 3; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 6.) § 1308 Emergency suspension. (a) The Director may, without notice or hearing, issue a suspension of a license or registration upon a finding that an emergency exists that requires immediate action to protect the health and safety of the public. Such suspension shall be effective immediately. (b) Any person whose license has been suspended on an emergency basis, upon application to the Board, shall be afford a hearing within 30 days, but not more than 90 days. Upon the conclusion of the hearing, the suspension shall be continued, modified or revoked within 30 days of the hearing. (69 Del. Laws, c. 285, § 3; 76 Del. Laws, c. 245, §§ 4, 5; 76 Del. Laws, c. 246, §§ 1, 2; 81 Del. Laws, c. 99, § 7.) § 1309 Change in membership or address or location of business; authorization of new location. (a) In the event of any change in the membership of the firm, or in the officers or directors of any association or corporation, or any change in the address of any office or location of such business, the Director shall be notified in writing of such change within 14 days thereafter. Failure to give such notification shall be sufficient cause for suspension or revocation of the license. (b) Upon written application to the Director setting forth a proposed change in the location of any office or place of business of the licensee as set forth in the license, the Director may authorize a new location for any such office or place of business. In such case, the licensee shall produce to the Director the license and all copies thereof to the end that the Director may either endorse thereon such change of location or issue a new license as of the same date as the original license in lieu of the license so surrendered. (24 Del. C. 1953, § 1306; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 4; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 8.) § 1310 Notifications. (a) Notification shall be made to the Section within 14 days after the change of address of any person licensed under this chapter. (b) Any person licensed or issued an identification card under this chapter shall, excluding weekends and holidays, notify the Board within 5 days of any arrest which could result in a misdemeanor or felony conviction. Failure to report may result in the suspension or revocation of a license. (c) Any person licensed under §§ 1318, 1319 and 1320 of this title shall report to the Board within 5 days of any instance of violation of this chapter or any rule or regulation by their employees licensed under this chapter. (d) Any person licensed under §§ 1318, 1319 and 1320 of this title shall report to the Section a current address, telephone number and name of the employee managing the office. In the event there is not an office within the State, then the address, telephone number and name of the compliance agent for the business shall be reported. The compliance agent shall maintain all records including personnel for all agency business within the State and make them available to the Section upon demand within 48 hours. (69 Del. Laws, c. 285, §§ 3, 4; 81 Del. Laws, c. 99, § 9.) § 1311 Insurance Any person who applies for a license to own or operate a private investigations company, private security agency or armored car agency shall file with the Section a surety bond and certificate of liability insurance in the amount set forth by the Board. (69 Del. Laws, c. 285, § 4; 81 Del. Laws, c. 99, § 10.) § 1312 License fee. Any person may be charged an application fee as set forth by the Board. The fee shall not exceed $600 per year. (69 Del. Laws, c. 285, § 4; 70 Del. Laws, c. 591, § 1; 81 Del. Laws, c. 99, § 11.) § 1313 License and identification card requirements and submission of fingerprints. (a) No person shall act as a private investigator, private security guard or armored car guard or engage in the business of a private investigative agency, private security agency, or armored car agency without first obtaining a license or identification card from the Professional Licensing Section. (b) No person shall be issued an identification card or license unless the individual and all officers submit to the State Bureau of Investigation their name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence and the other such information as may be necessary to obtain a report of the person’s entire state criminal record history and entire federal criminal history pursuant the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. (69 Del. Laws, c. 285, § 4; 77 Del. Laws, c. 457, § 3; 80 Del. Laws, c. 176, § 2; 81 Del. Laws, c. 99, § 12.) Page 82 Title 24 - Professions and Occupations § 1314 Security guard registration requirements. Anyone who wishes to be licensed, under this chapter, as a noncommissioned security guard, must meet and maintain the following requirements: (1) Must be at least 18 years of age; (2) Must not have been convicted of any felony; (3) Must not have been convicted of any misdemeanor involving a theft-related offense, drug offense, or moral turpitude, within the last 7 years, and: a. There are no more than 2 of such misdemeanors during such person’s lifetime; and b. No misdemeanor conviction occurred during or as a result of employment in a capacity regulated by this chapter. (4) Must not have been, as a juvenile, adjudicated delinquent for conduct which, if committed by an adult would constitute a felony, unless and until that person has reached his or her twenty-first birthday; (5) If served in the armed forces, must not have been dishonorably discharged; (6) Must not be a member or employee of any law-enforcement organization, as defined by the Council of Police Training; (7) Must meet and maintain the qualifications set and approved by the Board of Examiners. (69 Del. Laws, c. 285, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 13.) § 1315 Commissioned security guard registration requirements. Anyone who wishes to be licensed as an armed security guard, under this chapter, must meet and maintain the same qualifications as a security guard and must be at least 21 years of age. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 14.) § 1316 Private investigator registration requirements. Anyone who wishes to be licensed as a private investigator, under this chapter, must meet and maintain the same qualifications as a security guard under § 1314 of this title, and must also be at least 21 years of age. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 15.) § 1317 Armored car guard registration requirements. Anyone who wishes to be licensed as an armored car guard, under this chapter, must meet and maintain the same qualifications as a commissioned security guard under § 1315 of this title. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 16.) § 1318 Private security agency license requirements. An applicant applying for a license, to own and operate a private security agency, shall have the following qualifications: (1) Must be at least 25 years of age; (2) Must have at least 4 years of experience as a manager in a bona fide licensed security agency or must have at least 5 years’ investigative experience or must have been a police officer for any local, state or federal agency or the equivalent thereof who has graduated from a certified law-enforcement academy; (3) Must not have been convicted of any felony; (4) Must not have been convicted of any misdemeanor involving a theft-related offense, drug offense, or moral turpitude within the last 7 years, and: a. There are no more than 2 of such misdemeanors during such person’s lifetime; and b. No misdemeanor conviction occurred during or as a result of employment in a capacity regulated by this chapter; (5) Meet and maintain the qualifications set and approved by the Board of Examiners. (69 Del. Laws, c. 285, § 3; 70 Del. Laws, c. 591, § 1; 81 Del. Laws, c. 99, § 17.) § 1319 Private investigative agency license requirements. An applicant applying for a license to own and operate a private investigative business, shall have the same qualifications as a private security agency license and must also have at least 5 years' investigative experience or must have been a police officer for any local, state or federal agency or the equivalent thereof who has graduated from a certified law-enforcement academy. (69 Del. Laws, c. 285, § 3; 70 Del. Laws, c. 591, § 1; 81 Del. Laws, c. 99, § 18.) § 1320 Armored car agency license requirements. An applicant applying for a license, to own and operate an armored car guard agency, shall have the same qualifications of the private security agency license and must also: Page 83 Title 24 - Professions and Occupations (1) Have at least 4 years of experience as a manager in a bona fide armored car agency or 5 years as a police officer for any local, state or federal agency or the equivalent thereof who has graduated from a certified law-enforcement academy; (2) Have been issued a license by the Banking Commissioner pursuant to § 3203 of Title 5. (69 Del. Laws, c. 285, § 3; 81 Del. Laws, c. 99, § 19.) § 1321 Firearms. (a) It shall be unlawful for anyone licensed, under this chapter, to carry a concealed deadly weapon as defined in § 1442 of Title 11, unless they have been issued a concealed deadly weapons permit. (b) It shall be unlawful for anyone licensed, under this chapter, to carry any type of weapon unless the Board has approved the use of such weapon and, if approved, the person has been trained in the use of such weapon, by a board-approved instructor. (1) Private investigative, private security and armored car agencies shall be held responsible for monitoring all firearm certification or recertification for their employees for compliance with promulgated rules and regulations. (2) Private investigative, private security and armored car agencies must provide the Professional Licensing Section with documentation that employees are compliant with firearm certification and recertification requirements of the Board. (3) The Board may revoke the ability to carry a weapon if a registration holder or agency fails to comply with promulgated rules and regulations. (c) It shall be unlawful for an individual, employed as a security guard, to carry a firearm during the course of performing their duties as a security guard, if they have not been issued a commissioned security guard license. (d) It shall be unlawful for any person to hire or employ an individual or for any individual to accept employment, in the capacity of a security guard, to carry a firearm in the course and scope of employment duties unless the security guard has been issued a commissioned security guard license. (e) It shall be unlawful for a commissioned security guard to carry a firearm unless: (1) The security guard is engaged in the performance of duties as a security officer or is engaged in traveling directly to or from a place of assignment; (2) The security guard is wearing a distinctive uniform indicating that the person is a security guard; (3) Such uniform has a distinctive patch that indicates the company by whom the person is employed; (4) The firearm is in plain view; and (5) The firearm is the type of weapon that the commissioned security guard qualified with pursuant to this chapter. (24 Del. C. 1953, § 1318; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, §§ 3, 7; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 20.) § 1322 Posting of license. (a) Before any applicant shall exercise any rights under the license issued to the applicant, such license, or a certified copy thereof, shall be posted and at all times thereafter while the same is in force be displayed in a conspicuous place in the principal office and in each bureau, agency, subagency, office or branch office for which it is issued. (b) No person holding any license issued by the Board under this chapter shall: (1) Post or permit such license to be posted upon premises other than those described therein or to which it may be transferred pursuant to this chapter; (2) Fail to maintain such license in a conspicuous place in such offices or places of business; or (3) Knowingly alter, deface or destroy any such license or permit the alteration, defacement or destruction thereof. (24 Del. C. 1953, § 1309; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 5; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 21.) § 1323 Surrender of expired, revoked or suspended license; loss or destruction of license. (a) Any person to whom the Board issued a registration or license under this chapter shall surrender such registration or license and all duplicate copies which have expired, or been revoked, suspended or surrendered. (b) Any person issued a registration or license by the Board that is lost or destroyed must inform the Section and at the discretion of the Director, a duplicate may be issued. (24 Del. C. 1953, § 1310; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 5; 81 Del. Laws, c. 99, § 22.) § 1324 Identification card. Anyone required to be licensed under this chapter shall be issued, by the Board of Examiners, an identification card which shall expire and be renewable on the fifth anniversary date of the birth of the applicant next following the date of its issuance, unless the birth date is February 29, in which event the license shall expire and be renewable on February 28 every fifth year. (69 Del. Laws, c. 285, § 4; 73 Del. Laws, c. 369, § 1.) Page 84 Title 24 - Professions and Occupations § 1325 Possession of identification card. Any person who has been issued an identification card by the Board of Examiners shall be required to have such card in their possession while in the performance of the person’s duties. (69 Del. Laws, c. 285, § 4; 70 Del. Laws, c. 186, § 1.) § 1326 Identification card; offenses. (a) For the purpose of identification of persons engaged in the conduct of a security guard or armored car guard, each such person shall carry and show when requested an identification card, which shall be issued by the Section. For the purpose of identification of employees of a private security agency or armored car agency, upon examination of employee’s statement and fingerprint cards, the Section shall furnish an identification card. (b) No person licensed under this chapter or the officers shall wear, carry or accept any badge or shield purporting to indicate that such person is a security guard, armored car guard or that such person performs any such service, or may, while in uniform and while on the premises of the employer of the licensee where the security guard or armored car guard is so acting, wear a badge or shield inscribed by the specifications set forth in the rules and regulations of the Board. (c) No person licensed under this chapter shall issue identification cards to any person other than a bona fide employee or shall sell, issue, rent, loan or distribute badges or membership cards indicating that the holder thereof is a security guard, armored car guard or is engaged in the private security or armored car business to any person or persons other than those lawfully entitled to such identification cards. (d) Any person to whom an identification card has been issued in accordance with this chapter, shall surrender the identification card to the Section: (1) Upon termination of employment, unless for a security guard who transfers employment to another private security agency; or (2) Upon suspension or revocation by the Board; or (3) Upon emergency suspension by the Director. (e) Identification cards approved by the Section shall expire and be renewable on the fifth anniversary of the date of birth of the applicant, next following the date of its issuance. If the date of birth is February 29, the identification card shall expire and be renewed on February 28 every fifth year, with the exception of the armored car identification cards which shall expire and be renewed every 2 years. (f) The Section may refuse to renew an identification card for any grounds set forth in this chapter. (g) A private investigative agency shall notify the Section within 10 days after the termination of employment or association of any identification card holder employed by the agency. (h) Whoever violates this section shall be fined not more than $50. (24 Del. C. 1953, § 1314; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, §§ 10, 11; 65 Del. Laws, c. 376, § 4; 69 Del. Laws, c. 285, § 6; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 23.) § 1327 Regulation of advertising. (a) The Board shall promulgate such rules and regulations, upon notice to the public in general, as the Board deems necessary to avoid advertising techniques, cards or other forms of publication which will mislead the public as to any matter that relates to law enforcement. The Board shall further have the authority to order any business to comply with these rules and regulations. (b) Failure to comply with any order of the Board pursuant to subsection (a) of this section shall be cause for suspension or revocation of the license. (24 Del. C. 1953, § 1316; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, § 12; 69 Del. Laws, c. 285, § 6; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 99, § 24.) § 1328 Enforcement of chapter; jurisdiction. All police agencies and law-enforcement officers of this State may carry out this chapter and enforce compliance therewith. Justices of the Peace Courts shall have jurisdiction over violations under this chapter. (24 Del. C. 1953, § 1319; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, § 14; 69 Del. Laws, c. 285, § 7; 81 Del. Laws, c. 99, § 25.) § 1329 Disciplinary proceedings; appeal. (a) Grounds. — Subject to the provisions of this chapter, the Director pursuant to the authority of the Board may impose any of the following sanctions (subsection (b) of this section) singly or in combination when it finds a licensee or identification card holder is guilty of any offense described herein: (1) Acting as a security guard, armored car guard or private investigator without an identification card; or (2) Operating a private security agency, private investigative agency, or armored car agency without a license; or (3) Failure to comply with firearms requirements pursuant to § 1321 of this title; or (4) Obtaining criminal charges or convictions pursuant to § 1314, § 1315, § 1316, § 1317, § 1318, § 1319, or § 1320 of this title; or Page 85 Title 24 - Professions and Occupations (5) Failure to comply with inspection and subpoena requests pursuant to § 1307 of this title; or (6) Failure to notify the Professional Licensing Section of any arrests; or (7) Failure to keep identification card, badge or shield on your person while in the performance of your specific duties; or (8) Failing to surrender a suspended or revoked license, or identification card; or (9) Submitting false or fraudulent information material to any application for a license or identification card; or (10) Failure to abide by the Board’s firearms certification and recertification training requirements; or (11) Using a firearms instructor that has not been approved by the Board; or (12) Violating any provision of this chapter or any rule or regulation promulgated by the Board. (b) Disciplinary sanctions. — (1) Permanently revoke a license, or identification card; (2) Suspend a license or identification card; (3) Issue a letter of reprimand; (4) Refuse to issue a license, or identification card; (5) Refuse to renew a license, or identification card; (6) Issue an emergency suspension; (7) Or otherwise discipline. (c) Procedure. — (1) After receipt of written notice from the Section of the Director’s denial, suspension, emergency suspension, or revocation of a license or identification card, the applicant or licensee shall be afforded a hearing before the Board. (2) The accused may be represented by counsel who shall have the right of examination and cross examination. (3) Testimony before the Board shall be under oath. (4) A record of the hearing shall be made. At the request and expense of any party such record shall be transcribed with a copy to the other party. (5) The decision of the Board shall be based upon sufficient legal evidence. If the charges are supported by such evidence, the Board may refuse to issue, or revoke or suspend a license or identification card, or otherwise discipline an individual. A suspended license or identification card may be reissued by Professional Licensing Section at the direction of the Board. (d) All decisions of the Board shall be final and conclusive. Where the applicant, licensee or identification card holder is in disagreement with the action of the Board, the individual may appeal the Board’s decision to the Secretary within 30 days of service or the postmarked date of the copy of the decision mailed to the individual. The appeal shall be on the record to the Secretary as provided in the Administrative Procedures Act, subchapter V of Chapter 101 of Title 29 (§ 10141 et seq. of Title 29). (24 Del. C. 1953, § 1302; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 2; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 372, § 1; 81 Del. Laws, c. 99, § 26; 81 Del. Laws, c. 425, §§ 11, 12.) § 1330 Penalties. Whoever violates this chapter, except where another penalty is provided, shall be guilty of a misdemeanor and, if convicted, may be fined a civil or administrative penalty of not more than $10,000. (1) Assessment of a civil or administrative penalty shall be determined by the nature, circumstances, extent and gravity of the violation, or violations, ability of the violator to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation and such other matters as justice requires. (2) In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Board in any court of competent jurisdiction, including any Justice of the Peace Court, for collection of the administrative penalty, including interest, attorneys’ fees and costs and the validity and appropriateness of such administrative penalty shall not be subject to review. (69 Del. Laws, c. 285, § 3; 73 Del. Laws, c. 252, § 13; 75 Del. Laws, c. 372, § 2; 81 Del. Laws, c. 99, § 27.) § 1331 Surrender of expired, revoked or suspended licenses; penalty [Repealed]. (24 Del. C. 1953, § 1310; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 5; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1332 Loss or destruction of license [Repealed]. (24 Del. C. 1953, § 1311; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 5; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1333 Identification card; wearing of badges or shields; offenses; surrender of card; penalty [Repealed]. (24 Del. C. 1953, § 1314; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, §§ 10, 11; 65 Del. Laws, c. 376, § 4; 69 Del. Laws, c. 285, § 6; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) Page 86 Title 24 - Professions and Occupations § 1334 Disclosure of information by employees prohibited; false report or statement to employer; penalty [Repealed]. (24 Del. C. 1953, § 1315; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 6; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1335 Regulation of advertising [Repealed]. (24 Del. C. 1953, § 1316; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, § 12; 69 Del. Laws, c. 285, § 6; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1336 Reciprocity; licenses under prior laws [Repealed]. (24 Del. C. 1953, § 1317; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 6; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1337 Carrying of concealed weapons by licensees [Repealed]. (24 Del. C. 1953, § 1318; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 7; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1338 Enforcement of chapter; jurisdiction [Repealed]. (24 Del. C. 1953, § 1319; 50 Del. Laws, c. 301, § 1; 63 Del. Laws, c. 47, § 14; 69 Del. Laws, c. 285, § 7; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1339 Violation of chapter as ground for revocation of license [Repealed]. (24 Del. C. 1953, § 1320; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 7; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1340 Reports of convictions for violations of this chapter [Repealed]. (24 Del. C. 1953, § 1321; 50 Del. Laws, c. 301, § 1; 69 Del. Laws, c. 285, § 8; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) § 1341 Maintenance of office in state; manager; telephone listing [Repealed]. (63 Del. Laws, c. 47, § 13; 69 Del. Laws, c. 285, § 9; 72 Del. Laws, c. 427, § 1; repealed by 81 Del. Laws, c. 99, § 28, effective July 21, 2017.) Page 87 Title 24 - Professions and Occupations Chapter 14 Board of Electrical Examiners Subchapter I Board of Electrical Examiners § 1401 Objectives. The primary objective of the Board of Electrical Examiners, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency; and, to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against licensed practitioners. (64 Del. Laws, c. 476, § 1; 72 Del. Laws, c. 210, § 1.) § 1402 Definitions. The following words, terms and phrases, when used in this chapter shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning: (1) “Apprentice electrician” shall mean a person who is licensed by the Board and whose principal occupation is the learning and assisting in the performance of electrical services. (2) “Board” shall mean the State Board of Electrical Examiners established in this chapter. (3) “Cut-in-card” shall mean the approval certificate sent to the power company by the inspection agency after an inspection has been completed, which authorizes the power company to turn on the electricity at the property. (4) “Division” shall mean the State Division of Professional Regulation. (5) “Dwelling” shall mean, for purposes of this chapter, any enclosure that affords habitable living space for a human being or human beings. (6) “Electrical inspection agency” shall mean the agency responsible for the oversight and the issuing of certificates of inspection for all electrical work performed in this State. (7) “Excessive use or abuse of drugs” shall mean any use of narcotics, controlled substances or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs that person’s ability to perform the work of an electrician. (8) “Full-time employee” shall mean an individual, who is added to the company payroll and who has on file with the employer a W-4 form authorizing the employer to withhold taxes and who receives a wage or salary and who is under the supervision of a licensed electrician. (9) “Homeowner” shall mean, for purposes of this chapter, an individual who both owns and lives in that person’s home or dwelling. (10) “Journeyperson electrician” shall mean a person who is qualified and skilled to perform electrical work and who has met the requirements of § 1408 of this title to be licensed as a journeyperson electrician. (11) “License” shall mean the certificate issued by the Board that is evidence that the holder has met the requirements of this chapter. (12) “Limited electrician” shall mean a person licensed by the Board to plan, estimate, layout, perform or supervise the installation, erection or repair of any electrical conductor, molding, duct, raceway, conduit, machinery, apparatus, device or fixture, for the purpose of lighting, heating or power, in any structure which contains 4 or fewer dwelling units, as determined by the applicable building code. (13) “Limited electrician special” shall mean a person licensed by the Board to plan, estimate, layout, perform or supervise the installation, erection or repair of any electrical conductor, molding, duct, raceway, conduit, machinery, apparatus, device or fixture, for any of the following purposes: elevators, swimming pools, air conditioning, heating and oil burners, in any structure which contains 4 or fewer dwelling units, as determined by the applicable building code. (14) “Master electrician” shall mean a person, licensed by the Board, to plan, estimate, layout, perform or supervise the installation, erection or repair of any electrical conductor, molding, duct, raceway, conduit, machinery, apparatus, device or fixture for the purpose of lighting, heating or power in any structure. (15) “Master electrician special” shall mean a person, licensed by the Board, to plan, estimate, layout, perform or supervise the installation, erection or repair of any electrical conductor, molding, duct, raceway, conduit, machinery, apparatus, device or fixture for any 1 of the following purposes: elevators, swimming pools, electric signs, air conditioning, heating, refrigeration and oil burners, and overhead and underground primary distribution systems. (16) “Person” shall mean an individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company and any other legal entity and includes a legal successor of those entities. Page 88 Title 24 - Professions and Occupations (17) “Residential electrician” means a person who is qualified and skilled to perform residential electric work and who has met the requirements of § 1408 of this title to be licensed as a residential electrician and who is subject to the restrictions imposed by § 1422A of this title. (18) “Service” shall mean, for purposes of this chapter, to repair or replace in kind. (19) “State” shall mean the State of Delaware. (20) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the work of an electrician. (21) “Supervision” shall mean that a licensed electrician shall be fully responsible for all electrical work performed under that licensed electrician’s license. (22) “Unlicensed practitioner” shall mean any person, who engages in the occupational practices as defined in paragraph (12), (13), (14) or (15) of this section, and who has not been granted a license or a homeowner’s permit by the Board. (24 Del. C. 1953, § 1401; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 74 Del. Laws, c. 262, § 24; 78 Del. Laws, c. 191, §§ 1, 2; 81 Del. Laws, c. 290, § 1.) § 1403 Board of Electrical Examiners; appointments; composition; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation. (a) There is created a State Board of Electrical Examiners, which shall administer and enforce this chapter. (b) The Board shall consist of 9 members, appointed by the Governor, who are residents of this state: Five shall be electricians licensed under this chapter, 1 of whom may be a registered professional engineer with at least 6 years’ experience in electrical planning and design, and 4 public members. The public members shall not be, nor ever have been, licensed electricians, nor members of the immediate family of a licensed electrician; shall not have been employed by an electrician or electrical contractor; shall not have a material interest in the providing of goods and services to electricians; nor have been engaged in an activity directly related to the electrical business. The public members shall be accessible to inquiries, comments and suggestions from the general public. (c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor. (d) A person, who has never served on the Board, may be appointed to the Board for 2 consecutive terms; but no such person shall thereafter be eligible for 2 consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment. (f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of electricians; this includes a prohibition against serving as head of the professional association’s Political Action Committee (PAC). (h) The provisions set forth in Chapter 58 of Title 29 shall apply to all members of the Board. (i) Any member, who is absent without adequate reason for 3 consecutive meetings, or who fails to attend at least 1/2 of all regular business meetings during any calendar year, shall be guilty of neglect of duty. (j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (24 Del. C. 1953, §§ 1402, 1403, 1404; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, §§ 3, 4; 65 Del. Laws, c. 231, § 1; 67 Del. Laws, c. 366, § 3; 69 Del. Laws, c. 376, § 1; 70 Del Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 81 Del. Laws, c. 85, § 6.) § 1404 Organization; meetings; officers; quorum. (a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times as the president deems necessary, or, at the request of a majority of Board members. (b) The Board annually shall elect a president, vice-president, secretary, a complaint officer and an education officer. Each officer shall serve for 1 year and shall not succeed himself or herself for more than 2 consecutive terms. (c) A majority of the members shall constitute a quorum for the purpose of transacting business. No disciplinary action shall be taken without the affirmative vote of at least 5 members of the Board. Page 89 Title 24 - Professions and Occupations (d) Minutes of all meetings shall be recorded and the Division shall maintain copies of the minutes. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The person requesting the transcript shall incur the cost of preparing any transcript. (24 Del. C. 1953, § 1405; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 5; 65 Del. Laws, c. 231, § 2; 67 Del. Laws, c. 366, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1405 Records. The Division shall keep a register of all approved applications for license as a limited electrician, limited electrician special, master electrician and master electrician special, and 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 matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board. (24 Del. C. 1953, § 1408; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 6; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1406 Powers and duties. (a) The Board of Electrical Examiners shall have authority to: (1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act [Chapter 101 of Title 29] of this State. Each rule or regulation shall implement or clarify a specific section of this chapter. (2) Designate the application form to be used by all applicants and process all applications; (3) Designate the written, standardized examination, approved by the Division, and administered and graded by the testing service, to be taken by all persons applying for licensure; except applicants who qualify for licensure by reciprocity; (4) Evaluate the credentials of all persons applying for a license as limited electrician, limited electrician special, master electrician, master electrician special, journeyperson electrician and apprentice electrician, in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this chapter. (5) Grant licenses to and renew licenses of all persons who meet the qualifications for licensure; (6) Delegate authority to the Division to grant homeowners’ permits to persons who qualify for such permits; (7) Establish by rule and regulation continuing education standards required for license renewal; (8) Evaluate certified records to determine whether an applicant for licensure, who previously has been licensed, certified or registered in another jurisdiction as an electrician, has engaged in any act or offense that would be grounds for disciplinary action under this chapter, and whether there are disciplinary proceedings or unresolved complaints pending against such applicant for such acts or offenses; (9) Refer all complaints from licensees and the public concerning licensed electricians, or concerning practices of the Board, or of the profession, to the Division for investigation pursuant to § 8735 of Title 29; and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint; (10) Conduct hearings and issue orders in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (11) Grant a license to, and renew the license of, a nonpracticing licensee, as defined in the Board’s rules and regulations, provided the individual does not use the license to perform electrical installations or file inspections, and who in addition, submits proof of completion of biennial continuing education requirements. (12) Require, if necessary, that a licensed electrician take over the work done by an unlicensed practitioner, or if the work is completed, that the work be inspected by a Board-licensed inspection agency; such work shall be inspected by the inspection agency within 5 working days after receipt of the Board’s request. (13) Designate and impose the appropriate sanction or penalty, after time for appeal has lapsed, when the Board determined after a hearing, that penalties or sanctions should be imposed. (b) The Board shall require that all persons receiving a master electrician, master electrician special, limited electrician or limited electrician special license, display on the vehicles used in the performance of their work, the words “Licensed Electrician,” and the number assigned to them, in not less than 3-inch letters and numbers. (c) The Board of Electrical Examiners shall promulgate regulations specifically identifying those crimes which are substantially related to the work of an electrician. (24 Del. C. 1953, § 1406; 55 Del. Laws, c. 423, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 74 Del. Laws, c. 257, § 1; 74 Del. Laws, c. 262, § 25; 78 Del. Laws, c. 191, §§ 3, 4.) Subchapter II License § 1407 License required. (a) No person shall engage in the practice of providing electrical services or hold himself or herself out to the public in this State as being qualified to act as a licensed electrician; or use in connection with that person’s name, or otherwise assume or use, any title or Page 90 Title 24 - Professions and Occupations description conveying or tending to convey the impression that the person is qualified to act as a licensed electrician, unless such person has been duly licensed under this chapter. (b) Whenever a license to practice as an electrician in this State has expired or been suspended or revoked, it shall be unlawful for the person to act as an electrician in this State. (24 Del. C. 1953, § 1421; 55 Del. Laws, c. 423, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1408 Qualifications of applicant [For application of this section, see 81 Del. Laws, c. 290, § 5]. (a) An applicant, who is applying for licensure as an electrician under this chapter, shall submit evidence, verified by oath and satisfactory to the Board, that such person: (1) For licensure as a master electrician shall have knowledge of electricity in the residential, commercial and industrial areas, and in addition shall have: a. Six years’ full-time experience under the supervision of a licensed master electrician; or b. Eight thousand hours of full-time experience under the supervision of a licensed master electrician, plus 576 hours of related instruction, or other approved training verified by a certificate of completion of apprenticeship from any bona fide, registered apprenticeship program of any state; or c. Four years’ full-time experience under the supervision of a licensed master electrician and 2 years’ of technical training. (2) For licensure as limited electrician shall have knowledge of electricity in the residential area, and in addition shall have: a. Three years’ full-time experience under the supervision of a licensed electrician, master or limited; or b. Four thousand hours of full-time experience under the supervision of a licensed electrician, master or limited, plus 288 hours of related instruction, or other approved training verified by a certificate of completion of apprenticeship from any bona fide, registered apprenticeship program of any state. (3) For licensure as master electrician special shall have knowledge of electricity as it relates to the particular type or types of specialty, and in addition shall have: a. Six years’ full-time experience under the supervision of a licensed master electrician, or master electrician special in the applicable specialty; or b. Eight thousand hours of full-time experience under the supervision of a licensed master electrician or master electrician special, plus 576 hours of related instruction, or other approved training in the applicable specialty, verified by a certificate of completion of apprenticeship from any bonafide, registered apprenticeship program of any state. (4) For licensure as limited electrician special shall have knowledge of electricity as it relates to the particular type or types of specialty, and in addition shall have: a. Three years’ full-time experience under the supervision of a licensed master electrician, master electrician special or limited electrician special in the applicable specialty; or b. Four thousand hours of full-time experience under the supervision of a licensed master electrician, master electrician special or limited electrician special, in the applicable specialty, plus successful completion of 288 hours of related instruction, or other approved training in a specialty verified by a certificate of completion of apprenticeship from any bonafide, registered apprenticeship program of any state. (5) For licensure as a journeyperson electrician shall: a. Be at least 20 years of age. b. Shall either: 1. Successfully complete an apprenticeship program approved by the Board that includes passing a final exam for successful completion of such program; or 2. Have over 8,000 hours of full-time experience performing electrical work under the supervision of a licensed master electrician, master electrician special, limited electrician or limited electrician special. c. The exam required for a journeyperson license in paragraph (a)(8) of this section shall not be required for any person that has successfully met the requirement of paragraph (a)(5)b.1. of this section. (6) For licensure as a residential electrician shall: a. Pass a residential electrician exam as determined by the Board, and which is approved by the Division; and b. Have over 4,000 hours of full-time experience performing electrical work or have successfully completed a residential apprenticeship program approved by the Board. Work experience is applicable if acquired under the supervision of a licensed master electrician or limited electrician or while the applicant was individually licensed. (7) For licensure as an apprentice electrician shall: a. Be at least 18 years of age unless enrolled in a Board approved vocational program at a vocational school. b. Be enrolled in or have successfully completed an apprentice program approved by the Board. c. Be enrolled in or have successfully completed a residential apprentice program approved by the Board. Page 91 Title 24 - Professions and Occupations d. Residential apprenticeship licensees shall be limited to the scope of work as defined in § 1422A of this title. (8) After fulfilling the applicable experience and/or training requirements of this section, a person applying for licensure as a master electrician, master electrician special, journeyperson electrician, limited electrician, and limited electrician special shall have achieved the passing score on the written, standardized examination for licensure, with a passing score as determined by the Board in rules and regulations, and which is approved by the Division. (9) Shall not have been the recipient of any administrative penalties regarding that person’s practice as an electrician, including, but not limited, to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has not entered into any “consent agreements” which contain conditions placed by a Board on that person’s professional conduct and practice, including any voluntary surrender of a license. The Board may determine after a hearing whether such administrative penalty is grounds to deny licensure. (10) Shall not have any impairment related to drugs or alcohol that would limit the applicant’s ability to act as an electrician in a manner consistent with the safety of the public. (11) Does not have a criminal conviction record, relating to an offense, the circumstances of which substantially relate to providing electrical services. Applicants who have criminal conviction records shall request appropriate authorities to provide information about the record directly to the Board in sufficient specificity to enable the Board to make a determination whether the charge is substantially related to providing electrical services. In determining whether a crime is substantially related to the professions regulated by this chapter, the Board may not consider a conviction where more than 10 years have elapsed since the date of the conviction, if there have been no other criminal convictions in the intervening time. After a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, or, during the time between meetings, the Board President or the President’s designee, may waive this paragraph (a)(11), if it finds all of the following: a. For waiver of a felony conviction, where the crime was committed against a person, more than 3 years have elapsed since the date of the conviction and, for all other felonies, more than 2 years have elapsed since the date of conviction. At the time of the application the applicant may not be incarcerated, on work release, or on probation or parole at Level III supervision or higher and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, or on probation or parole at Level III supervision or higher and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. c. The applicant is capable of practicing electrical services in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety, or welfare. (12) Shall have no disciplinary proceedings or unresolved complaints pending against the person in any jurisdiction where the applicant has previously been or currently is licensed or registered. (13) Has not been convicted of a felony sexual offense. (b) All evidence of experience shall be submitted on written affidavit forms provided by the Board. (c) All evidence of education shall be submitted by written certification from the educational institution attended. (d) Where the Board has found to its satisfaction that an applicant has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action. (e) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for the applicant than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (f) An applicant may elect to postpone submitting the applicant’s licensure fee and proof of general liability insurance after successfully completing the examination for licensure; but such postponement shall not exceed 12 months. If the applicant fails to activate that applicant’s license within 12 months of passing the examination, the Board shall require that the applicant retake the examination. (24 Del. C. 1953, § 1422; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 48, § 5; 59 Del. Laws, c. 202, § 7; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 73 Del. Laws, c. 128, §§ 1-6; 74 Del. Laws, c. 262, § 26; 75 Del. Laws, c. 436, § 11; 77 Del. Laws, c. 199, § 9; 78 Del. Laws, c. 44, §§ 14, 15; 78 Del. Laws, c. 191, §§ 5, 6; 79 Del. Laws, c. 86, §§ 1, 2; 81 Del. Laws, c. 290, § 2; 82 Del. Laws, c. 198, § 1.) § 1409 Reciprocity. (a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant, who shall present proof of current licensure in “good standing” in another state, the District of Columbia or territory of the United States, whose standards for licensure are substantially similar to those of this State. A license in “good standing” is defined in § 1408(a)(9)-(12) of this title. (b) An applicant, who is licensed in a state whose standards are not substantially similar to those of this State, shall have practiced for a minimum of 5 years after licensure; provided however, that the applicant meets all other qualifications for reciprocity in this section. (24 Del. C. 1953, § 1426; 55 Del. Laws, c. 423, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 78 Del. Laws, c. 191, § 5; 81 Del. Laws, c. 290, § 2.) Page 92 Title 24 - Professions and Occupations § 1410 Fees. The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure or biennium. (24 Del. C. 1953, § 1424; 55 Del. Laws, c. 423, § 1; 57 Del. Laws, c. 607; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1411 Issuance and renewal of licenses. (a) The Board shall issue a license to each applicant, who meets all of the requirements of this chapter for licensure as an electrician, in the category applied for, and who pays the fee established under § 1410 of this title, and submits proof of general liability insurance as required by the Board. (b) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, proof of general liability insurance as required by the Board, and proof that the licensee has met the continuing education requirements established by the Board. (c) The Board, in its rules and regulations, shall determine the period of time within which a licensed electrician may still renew that licensed electrician’s license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date. (d) A licensee, upon written request, may be placed in an inactive status in accordance with the Board’s rules and regulations. The renewal fee of such person shall be prorated according to the amount of time such person was inactive. Such person may reenter practice upon written request to the Board of the intent to do so, and completion of continuing education, as required in the Board’s rules and regulations. (24 Del. C. 1953, §§ 1425, 1427; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, §§ 8, 10; 64 Del. Laws, c. 476, § 7; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1412 Grounds for discipline. (a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 1414 of this title, if, after a hearing, the Board finds that the practitioner has: (1) Employed, or knowingly cooperated in, fraud or material deception in order to acquire a license as an electrician; has impersonated another person holding a license, or allowed another person to use the practitioner’s license, or aided or abetted a person not licensed as an electrician to represent himself or herself as a licensed electrician; (2) Illegally, incompetently or negligently provided electrical services; (3) Performed electrical work in a category for which the practitioner is not licensed; (4) Been convicted of any offense, the circumstances of which substantially relate to the performance of electrical work. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor; (5) Excessively used or abused drugs; (6) Engaged in an act of consumer fraud or deception of the public; (7) Violated a lawful provision of this chapter, or any lawful rule or regulation established thereunder; (8) Had the practitioner’s license as an electrician suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter. Every person licensed as an electrician in this State shall be deemed to have given consent to the release of this information by the Board, or other comparable agencies in another jurisdiction, and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses; (9) Failed to notify the Board that the practitioner’s license as an electrician in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof; or (b) Subject to the provisions of subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner’s right to practice as an electrician shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29]. (72 Del. Laws, c. 210, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 436, § 12.) § 1413 Complaints. (a) All complaints shall be received and investigated by the Division in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation. (b) When it is determined that an individual, not currently licensed by the Board, is engaging, or has engaged, in providing electrical services to the public, or is using the title “master electrician”, “master electrician special”, “limited electrician”, “limited electrician Page 93 Title 24 - Professions and Occupations special”, or other title implying that the individual is competent to provide electrical services, the Board shall apply to the Office of the Attorney General to issue a cease and desist order. (64 Del. Laws, c. 476, § 6; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1414 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 of the conditions or violations set forth in § 1412 of this title applies to a practitioner or licensee regulated by this chapter: (1) Issue a letter of reprimand; (2) Censure a practitioner; (3) Place a practitioner on probationary status, and require the practitioner to: a. Report regularly to the Board upon the matters, which are the basis of the probation; b. Limit all practice and professional activities to those areas prescribed by the Board; (4) Suspend any practitioner’s license; (5) Revoke any practitioner’s license; (6) Impose a monetary penalty not to exceed $1,500 for each violation. (b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies, which required such action have been remedied. (c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (24 Del. C. 1953, § 1428; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 11; 64 Del. Laws, c. 476, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 79 Del. Laws, c. 213, § 2; 81 Del. Laws, c. 290, § 3.) § 1415 Hearing procedures. (a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 1412 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter, as it deems necessary. The Board’s decision shall be in writing and shall include its reasons for such decision. The Board’s decision shall be mailed immediately to the practitioner. (c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board’s decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29. (24 Del. C. 1953, § 1431; 55 Del. Laws, c. 423, § 1; 64 Del. Laws, c. 476, § 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1416 Reinstatement of a suspended license; removal from probationary status. (a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation. (b) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate. (c) [Repealed.] (24 Del. C. 1953, § 1429; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, §§ 12, 13; 64 Del. Laws, c. 476, § 4; 65 Del. Laws, c. 462, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 82 Del. Laws, c. 8, § 4.) Page 94 Title 24 - Professions and Occupations Subchapter III Other Provisions § 1417 Homeowner’s Permits. (a) Any person, who plans to install that person’s own internal wiring, electrical work or equipment, including the main breaker or fuse, in or about that person’s own home, that is not for sale nor any part for rent, excluding swimming pools and hot tubs, shall obtain a homeowner’s permit. Permits shall be valid for 1 year. Failure of the homeowner to obtain a final inspection of the homeowner’s work shall be cause for the Board to cancel the homeowner’s permit. (b) Persons applying for a homeowner’s permit shall submit a photo identification, copy of the deed to the home and title or contract of sale for the mobile home (if applicable). (c) Application for a homeowner’s permit shall be available at the Board office in Dover, or by mail. The Division shall issue the permit only to those persons who fulfill the requirements of this section. (72 Del. Laws, c. 210, § 1; 70 Del. Laws, c. 186, § 1.) § 1418 Partnership, firm or corporation; loss of license holder. (a) If a partnership, firm or corporation suffers a loss of a license holder, the partnership, firm or corporation shall notify the Board in writing with supporting documentation within 7 days of the loss of a license holder. (b) The Board shall schedule an emergency meeting within 10 days during which time the partnership, firm or corporation may continue to operate without a license holder provided the partnership, firm or corporation continues to employ the same personnel with the exception of the license holder. (c) A person associated with the partnership, firm or corporation shall submit an application for a license to the Board, before the emergency meeting, for consideration by the Board at such meeting. At the emergency meeting the Board may issue a temporary license valid for 100 days dated from the date of notification by the partnership, firm or corporation. (d) If approved at the emergency meeting, the applicant shall be scheduled for the next available examination. (e) Regardless of the provisions of subsection (c) of this section, a temporary license shall expire when the Board receives notification of the results of the examination. (f) If the partnership, firm or corporation allows the 100-day temporary license to expire without having a person obtain a license or having in their employ a person with a license, then said partnership, firm or corporation shall cease and desist immediately from all electrical work for which a license is required under this chapter. (72 Del. Laws, c. 210, § 1.) § 1419 Exceptions. (a) Nothing in this title shall be construed to prevent the performing of electrical work by: (1) Any of the following individuals working in a manufacturing or industrial facility: a. An electrical engineer who is recognized by their company as the person responsible for facility repairs, maintenance, or electrical additions, and who is registered with the Board, or a professional electrical engineer who is registered with the Board and who is licensed and listed on the Delaware Association of Professional Engineers; b. An electrical engineer or electrical engineering technician, recognized by the manufacturing or industrial company as qualified, working in a laboratory environment conducting basic research and development; c. An “in-house” electrical engineer, electrical engineering technician, or other person conducting research and development building and testing a custom panel designed by the company and not commercially available, provided that such exception shall not extend to the permanent installation of the equipment; (2) The Department of Transportation, its agencies, offices and divisions, for all work performed by the Department, or under its supervision, and which is approved by the Department, for the installation, erection, construction, reconstruction and/or maintenance of drawbridges and traffic-control devices, including traffic signals, traffic signs and highway lighting; (3) Persons working beyond the main breaker or fuse of 200 amps or less on structures used exclusively for agricultural purposes, except that the provisions of § 1420 of this title regarding certificates of inspection shall apply where new installations are involved; (4) Any electric light or power company, electric railway company, steam railway company, diesel railway company, telegraph or telephone company, water or wastewater utility whose rates and services are regulated by the Delaware Public Service Commission, or any person performing the electrical work of such company or utility, when such work is a part of the plant or services used by the company in rendering its authorized service to the public, as further defined in rules and regulations of the Board; (5) Any homeowner or homeowners who comply with the mandates of § 1417 of this title. (b) Nothing in this chapter shall restrict any person from servicing equipment in the fields of heating, air conditioning, refrigeration or appliances. (24 Del. C. 1953, § 1432; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 16; 62 Del. Laws, c. 342, § 1; 64 Del Laws, c. 476, § 5; 65 Del. Laws, c. 355, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 78 Del. Laws, c. 191, § 7; 79 Del. Laws, c. 86, § 3; 79 Del. Laws, c. 407, § 1.) Page 95 Title 24 - Professions and Occupations § 1420 Certificate of Inspection required; “cut-in-card”. (a) All electrical work performed in this State, unless specifically exempt, shall receive a certificate of inspection issued by a Boardlicensed inspection agency. (b) All applications for inspections shall be filed with the inspection agency within 5 working days of the commencement of electrical work. (c) Inspection agencies shall make all inspections within 5 working days of receipt of the application for inspection. (d) No power company shall connect any current, light or power to any property without first obtaining from an inspection agency a permanent or temporary “cut-in-card,” except in case of emergency when service may be restored by a licensed electrician prior to obtaining a “cut-in-card.” The inspection agency shall issue a “cut-in-card” only for electrical work performed by a licensed electrician, except for work being done or which has been done by persons who are not required to obtain licenses under this chapter. (24 Del. C. 1953, § 1433; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 17; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1.) § 1421 Electrical Inspection Agencies. (a) All agencies, who intend to conduct electrical inspections in this State, shall apply for a license as an approved electrical inspection agency, complete a Board-approved application and submit to the Board proof of the following: (1) Name or names, address or addresses, and telephone number or numbers for all office facilities located in this State, at least 1 office of which shall service all 3 counties; (2) For all electrical inspectors employed by the inspection agency, proof of at least 7 years of experience in residential, commercial or industrial wiring; (3) The passing grade obtained by each inspector on the following examinations, administered by a nationally recognized testing agency and approved by the Division: Electrical 1- and 2-family dwelling; electrical general, administered within 18 months of employment as an inspector; and electrical plan review, administered within 24 months of such employment. (b) The Board may grant conditional approval of the inspection agency, not to exceed 6 months, after reviewing the credentials of the agency, evidence of general liability insurance and errors and omission insurance, as required by the Board’s rules and regulations, and payment of the fee established by the Division. No electrical inspection agency shall conduct any electrical inspection in this State until it has at least 1 full-time, nationally-certified inspector on its payroll, who will conduct electrical inspections in this State. (c) The Board may deny an application for licensure as an inspection agency; such denial shall be in writing and state the reason or reasons for such denial; and shall be provided by the Board to the inspection agency within 10 days of the decision. The inspection agency may appeal all denials of licensure to the Superior Court. (d) After the Board has granted a conditional approval for the inspection agency and such approval has been in effect for at least 3 months, the Board may grant a license to the inspection agency, upon submission of certified proof of the following: (1) All employees, officers or stockholders of the inspection agency shall not have any proprietary or pecuniary interest in any electrical contracting business located in this State; (2) All employees, officers or stockholders of the inspection agency shall not have any proprietary or pecuniary interest in any manufacturer or seller of electrical appliances, machinery, wiring, electrical hardware or other electrical apparatus. (3) All employees, officers or stockholders of the inspection agency shall not have any proprietary or pecuniary interest in any electric utility or company, municipal electrical department or other utility or company, which supplies electrical energy for industrial, residential or commercial use. (e) All licensed electrical inspection agencies in this State shall file, and keep up to date, with the Board and keep open to public inspection at all times during normal business hours, and in each office, the addresses and telephone numbers of all offices, time of regular business hours for all offices, and a schedule with all rates and charges for services rendered by the agency. (f) All licensed electrical inspection agencies in this State shall make inspections within 5 days of receipt of an application for inspection and shall issue a certificate of approval within 15 days after final inspection. All applications for inspection must be filed by a statelicensed electrician or by a person or persons specifically excepted by this chapter. (g) All violations noted during an inspection shall be corrected within 15 days and reinspected by the same inspection agency. If not corrected, the inspection agency shall notify the utility concerned and the Board of such violations. The utility shall not provide service to the premises until the violation is corrected. (h) All records of the licensed electrical inspection agencies shall be available for examination by the Division’s investigators; the agency shall inform the Division of the location of all records. (i) All licensed electrical inspection agencies in this State shall carry general liability insurance and errors and omission insurance of at least $1,000,000 each for claims of property damage or personal injury arising from faulty electrical work approved by the agency, or any of its employees, or other acts or omissions performed by the agency or any of its employees. (j) All employees of all licensed electrical inspection agencies in this State shall be remunerated on a salary basis only and shall not be given commissions or other bonus incentives for volume of work performed. Page 96 Title 24 - Professions and Occupations (k) Each license shall be renewed annually upon payment of the appropriate fee, in such a manner as is determined by the Division. (l) The Board may impose any of the sanctions available under § 1414 of this title on an electrical inspection agency if the agency is determined to be guilty of: (1) Fraud or deceit in obtaining a license; (2) An act of consumer fraud or deception of the public; (3) Negligence, incompetency or misconduct in providing electrical inspection services; or (4) Violation of any lawful provision of this chapter or any lawful rule or regulation established thereunder. (24 Del. C. 1953, § 1434; 59 Del. Laws, c. 202, § 18; 59 Del. Laws, c. 396, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 73 Del. Laws, c. 128, §§ 7, 8.) § 1422 Apprentice electricians. (a) An apprentice electrician must work under the direct onsite supervision of a licensed master electrician, master electrician special, limited electrician, limited electrician special, residential electrician or journeyperson electrician. (b) A licensed electrician supervising an apprentice electrician pursuant to subsection (a) of this section shall be responsible for the activities of the apprentice electrician performing work in the State. (78 Del. Laws, c. 191, § 8; 81 Del. Laws, c. 290, § 4.) § 1422A Residential electricians (a) A residential electrician license allows for a person to conduct residential electrical work without having to be under the direct onsite supervision of a licensed master electrician, master electrician special, limited electrician, limited electrician special or journeyperson electrician. (b) Electricians with a residential electrician license are prohibited from performing any electrical work other than: (1) Electrical work performed on or within a residential dwelling or building prior to the dwelling or building being connected to the electric grid, or (2) Work to or beyond the breaker panel or fuse box in a residential dwelling or building. (81 Del. Laws, c. 290, § 4.) § 1423 Duty to report. (a) An owner, operator, manager, or supervisor of a business performing electrical services shall have a duty to report to the Board, if such owner, operator, manager, or supervisor has knowledge that a person working for or under his or her supervision is: (1) Performing electrical work; and (2) Does not have the proper license under subchapter II of this chapter. (b) The report required pursuant to this section must be made in writing to the Board within 10 days of such owner, operator, manager, or supervisor having the required knowledge and shall contain the name of the person performing the electrical work without a license. (c) An owner, operator, manager, or supervisor of a business performing electrical services must check to see if an employee or independent contractor has the proper license under subchapter II of this chapter before allowing such employee or independent contractor to perform electrical work for such owner, operator, manager or supervisor. (79 Del. Laws, c. 86, § 4; 70 Del. Laws, c. 186, § 1.) § 1424 Penalty. A person, not currently licensed as an electrician or exempt from licensure under this chapter, when guilty of performing electrical work, or using in connection with that person’s name, or otherwise assuming or using any title or description conveying, or tending to convey, the impression that the person is qualified to perform electrical work, such offender shall be guilty of a misdemeanor. Upon the first offense, the person shall be fined not less than $500 nor more than $1,500 for each offense. For a second or subsequent conviction, the fine shall be not less than $1,500 nor more than $2,300 for each offense. Justice of the Peace Courts shall have jurisdiction over all violations of this chapter. (24 Del. C. 1953, § 1440; 55 Del. Laws, c. 423, § 1; 59 Del. Laws, c. 202, § 19; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 210, § 1; 78 Del. Laws, c. 191, § 8; 79 Del. Laws, c. 86, § 4; 81 Del. Laws, c. 290, § 4.) § 1425 Inspections. An agent of the Division may inspect during business hours, without prior notice any person providing electrical services at any business or location to determine if such person has a proper license as required by this chapter. (80 Del. Laws, c. 318, § 1.) Page 97 Title 24 - Professions and Occupations Chapter 15 Hotels, Restaurants and Places of Entertainment § 1501 Exclusion of customers. No keeper of an inn, tavern, hotel or restaurant or other place of public entertainment or refreshment of travelers, guests or customers shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by the proprietor would be offensive to the major part of the proprietor’s customers and would injure business. As used in this section, “customers” includes all who have occasion for entertainment or refreshment. (15 Del. Laws, c. 194, § 1; Code 1915, § 3575; Code 1935, § 4066; 24 Del. C. 1953, § 1501; 70 Del. Laws, c. 186, § 1.) § 1502 Safekeeping of valuables. Whenever the proprietor of any hotel, inn or boardinghouse provides a good, sufficient and secure safe or vault in the office or other convenient place in such hotel, inn or boardinghouse for the safe keeping of any money, goods, jewelry and valuables belonging to the guests and boarders of such hotel, inn or boardinghouse, and notifies the guests and boarders thereof, by placing in every lodging room and other conspicuous places printed cards or notices stating the fact that such safe or vault is provided in which such goods, jewelry and valuables may be deposited and that the proprietor or proprietors thereof will not be responsible for such money, goods, jewelry and valuables unless deposited in such safe or vault, and if such guest or boarder neglects to deposit such money, goods, jewelry or valuables in such safe or vault, the proprietor shall not be liable for any loss of such money, goods, jewelry or valuables sustained by such guest, by theft or otherwise. (Code 1915, § 3575a; 32 Del. Laws, c. 192; Code 1935, § 4067; 24 Del. C. 1953, § 1502.) § 1503 Inspection of food preparation areas. The food preparation area of any hotel, restaurant, place of business, institution or business which prepares or serves food for human consumption shall be subject to a state health inspection, without advance notice. For purposes of this section, a “food preparation area” shall include any kitchen, food storage area, locker or other area where food is prepared or kept prior to being served. For purposes of this section, the term “advance notice” shall mean any form of communication of a plan or schedule for inspection by any representative of the Department of Health and Social Services, prior to the inspection. (62 Del. Laws, c. 149, § 1; 70 Del. Laws, c. 149, § 209.) Page 98 Title 24 - Professions and Occupations Chapter 16 Adult Entertainment Establishments Subchapter I Adult Book Stores and Other Adult Entertainment Establishments § 1601 Purpose. (a) It is the finding of the General Assembly that the health, safety and welfare of the people of the State are imperiled by the increasing incidence of the crimes of obscenity, prostitution and of offenses related thereto. The General Assembly finds that the foregoing crimes are principally facilitated by the widespread abuse of legitimate occupations and establishments, to wit, adult entertainment establishments. It is the further finding of the General Assembly that existing criminal penalties for the foregoing offenses have been rendered ineffective by the active concealment of the identities of the individuals who create, control and promote such businesses; by the failure of these individuals and businesses to exercise adequate control and supervision over the activities of their employees; and by the active promotion of prostitution and obscenity by these individuals and businesses for their own financial gain. It is the additional finding of the General Assembly that the health, safety and welfare of the people of the State are imperiled by the widespread operation of adult-oriented retail businesses without reasonable time, place and manner limitations on such businesses. (b) To the end of furthering the substantial and compelling interest of the people of this State in being free of the crimes of obscenity, prostitution and its companion offenses, and in order to promote the health, safety and welfare, the General Assembly does hereby act. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 2; 77 Del. Laws, c. 168, § 1.) § 1602 Definitions. As used in this chapter: (1) “Adult” shall mean a person who has attained the age of 18. (2) “Adult entertainment establishment” shall mean any commercial establishment, business or service, or portion thereof, which offers sexually-oriented material, devices, paraphernalia or specific sexual activities, services, performances or any combination thereof, or in any other form, whether printed, filmed, recorded or live. The term “adult entertainment establishment” shall include but not be limited to such activities as: a. “Adult book stores” which shall mean any corporation, partnership or business of any kind which has as part of its stock books, magazines or other periodicals and which offers, sells, provides or rents for a fee: 1. Any sexually-oriented material, and which business restricts or purports to restrict admission to adults, within the meaning of this chapter, or to any class of adults; 2. Any sexually-oriented material which is available for viewing by patrons on the premises by means of the operation of movie machines or slide projectors; or 3. Any sexually-oriented material which has a substantial portion of its contents devoted to the pictorial depiction of sadism, masochism or bestiality. 4. [Repealed.] b. “Adult motion picture theatres” which shall mean an enclosed building used for presenting film presentations which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specific sexual activities for observation by patrons therein; c. “Adult shows” or “adult peep shows” which shall include all adult shows, exhibitions, performances or presentations which contain acts or depictions of specific sexual activities; d. “Conversation parlors,” “relaxation studios,” “health salons” or “call services” which shall mean any commercial business, enterprise or service which offers or which holds itself out as offering conversations or relaxation or any other services whereby any employee, attendant or patron is involved in specific sexual activities or representations thereof. e. [Repealed.] (3) “Adult-oriented retail establishment” shall mean any commercial establishment, business or service, or portion thereof, which offers as a substantial portion of their business sexually-oriented material, devices, or paraphernalia, but does not allow on-site displays of sexually-oriented materials or sexual activities. (4) “Applicant” shall mean the person in whose name or on whose behalf a license under this chapter is requested. (5) “Beastiality” shall mean sexual activity, actual or simulated, between a human being and an animal. (6) “Commission” shall mean the Commission on Adult Entertainment Establishments. (7) “Conviction” means a verdict of guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere accepted by the court. (8) “Licensee” shall mean the person to whom and in whose name a license is issued under this chapter. Page 99 Title 24 - Professions and Occupations (9) “Masochism” shall mean sexual gratification achieved by a person through, or the association of sexual activity with, submission or subjection to physical pain, suffering, humiliation, torture or death. (10), (11) [Repealed.] (12) “Partner” shall include both a general and a limited partner. (13) “Partnership” shall include both a general and a limited partnership. (14) “Peace officer” shall include police officers, the Attorney General and the Attorney General’s deputies and assistants. (15) “Person” means a human being who has been born and is alive, and, where appropriate, a public or private corporation, an unincorporated association, a government or a governmental instrumentality. (16) “Principal stockholder” shall mean a person who owns equity securities of the licensee, whether voting or nonvoting, preferred or common, in any amount equal to or greater than 10 percent of the total amount of equity securities of the licensee issued and outstanding. (17) “Sadism” shall mean sexual gratification achieved through, or the association of sexual activity with, the infliction of physical pain, suffering, humiliation, torture or death upon another person or animal. (18) “Sexually-oriented material” shall mean any book, article, magazine, publication or written matter of any kind, drawing, etching, painting, photograph, motion picture film or sound recording, which depicts sexual activity, actual or simulated, involving human beings or human beings and animals, or which exhibits uncovered human genitals or pubic region in a lewd or lascivious manner or which exhibits human male genitals in a discernibly turgid state, even if completely covered. (19) “Specific sexual activities” shall be defined as including the following sexual activities and/or the exhibition of the following anatomical areas: a. Human genitals in the state of sexual stimulation or arousal; or b. Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio or any excretory function, or representation thereof; c. The fondling or erotic touching of human genitals, pubic region, buttocks or the female breasts; or d. Less than completely opaquely covered: 1. Human genitals, pubic region; 2. Buttocks; 3. Female breasts below the top of the areola; or 4. Human male genitals in a discernable turgid state, even if completely and opaquely covered. (20) [Repealed.] (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 3, 4; 63 Del. Laws, c. 13, § 1; 68 Del. Laws, c. 236, § 3; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 168, § 2.) § 1603 Commission on Adult Entertainment Establishments. (a) The Commission on Adult Entertainment Establishments is hereby established. The Commission shall consist of 5 members who shall be appointed by the Governor and who shall be residents of this State. No person shall be a member if a member of such person’s immediate family is licensed by the Commission, or is an employee of a licensee of the Commission; or if a member of such person’s immediate family has a material or financial interest in the providing of goods or services to a licensee of the Commission. (b) Members shall serve for terms of 3 years. The Chairperson shall be elected annually by vote of the members. In the event that a member of the Commission for any reason cannot complete a term of office, the Governor shall appoint another person to serve for the remainder of the term. (c) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (d) Any act or vote by a person appointed in violation of subsection (c) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (c) of this section, unless such amendment or revision amends this section to permit such an appointment. (e) Each member of the Commission shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (f) Three members of the Commission shall constitute a quorum to conduct business. In the absence of the Chairperson, an acting Chairperson shall be designated by the quorum of Commissioners present. (g) A member of the Commission shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Commission business until the charge is adjudicated or the matter is otherwise concluded. A Commission member may appeal any suspension or removal to the Superior Court. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 5; 67 Del. Laws, c. 368, § 8; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 320, § 1; 77 Del. Laws, c. 168, § 3; 81 Del. Laws, c. 85, § 7.) Page 100 Title 24 - Professions and Occupations § 1604 Duties and powers of Commission. (a) The Commission shall issue, revoke and suspend licenses for operation of adult entertainment establishments, and for the operation of adult-oriented retail businesses in accordance with this chapter. (b) The Commission shall meet regularly as determined by the Commission or within 30 days, whichever comes sooner, after receipt of a completed application for a license, and shall conduct such special meetings and hearings as shall be necessary to implement this chapter. (c) Each member of the Commission shall have the power to administer oaths, and to compel the attendance of witnesses and the production of documents and other tangible objects material to its proceedings by the issuance of subpoenas to carry out the purposes of this chapter. (d) No findings of fact shall be made by the Commission except upon a hearing before at least 3 members, 3 of which shall concur in said finding. All findings of fact shall be written or recorded. (e) The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Commission as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Commission. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of Professional Regulation, or any state agency acting in its behalf, shall compute for each separate service or activity the appropriate Commission fees for the coming year. (f) All documents filed with the Commission and all records maintained shall become public, official and business records of the State and shall be admissible in evidence in any judicial proceeding in this State in accordance with the laws of Delaware applicable to the admissibility of such records. (g) The Commission shall have the power to make such rules and regulations not inconsistent with the law as are necessary for their performance of its duties. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 6; 77 Del. Laws, c. 168, § 4.) § 1605 Records. (a) The Commission shall maintain separate indexes relating to the licensing of adult entertainment establishments and adult-oriented retail businesses. (b) The Commission shall maintain an alphabetized or a computerized index containing the full name or names, including nicknames or aliases, residential address or addresses, business address or addresses, social security number, driver’s license number, a picture and the identity of any banks within or without the State wherein accounts are maintained, of every applicant and licensee under this chapter. The same information shall be provided for any other person whose signature appears upon any document comprising an application for license submitted under this chapter. Said index shall be kept current and shall indicate the eligibility of such persons as licensees under this chapter, and whether the signatures of such persons on an application for license preclude the issuance of a license based thereon. (c) In carrying out its responsibilities, the Commission may submit names of applicants and those appearing in applications to the Department of Justice, State Police or Department of Homeland Security for the purpose of a record check. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 7; 77 Del. Laws, c. 168, § 5.) § 1606 Adult entertainment license requirement. (a) No person shall engage in, carry on or participate in the operation of an adult entertainment establishment or adult-oriented retail business without first having been issued a license therefor by the Commission. Any adult entertainment establishment being operated without a license therefore is hereby declared to be a nuisance for purposes of Chapter 71 of Title 10. (b) Whoever engages in the operation of an adult-oriented retail business in violation of this section shall be fined not more than $500 or imprisoned not more than 6 months, or both. (c) Any person, and in the case of corporation this shall include its principal stockholders, board of directors, officers and persons engaged in the management of such establishment, who shall engage in, carry on or participate in the operation of an adult entertainment establishment in violation of this section shall be fined not more than $10,000 and imprisoned not more than 6 months, or both. (d) A certificate, certified by a member of the Commission, that a diligent search of the Commission’s records, those pertaining to licenses kept in conformity with this chapter, has failed to disclose the existence of a valid license for an adult entertainment establishment or adult-oriented retail establishment in question shall be prima facie evidence of a violation of this section. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 8-10; 77 Del. Laws, c. 168, § 6.) § 1607 License fee; term. (a) No license for the operation of an adult-oriented retail business under this chapter, or renewal thereof, shall be issued unless the applicant shall have paid the nonrefundable application fee as provided in § 1613 of this title. (b) No license for the operation of any adult entertainment establishment under this chapter, nor renewal thereof, shall be issued unless the applicant shall have paid the nonrefundable application fee as provided in § 1613 of this title. (c) Nothing in this chapter, however, shall be construed to affect or impair in any manner the requirements of Title 30. Page 101 Title 24 - Professions and Occupations (d) Each license granted pursuant to this chapter shall be for a period of 1 year and may only be renewed by making a new application in the manner provided in this chapter. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 11; 63 Del. Laws, c. 284, § 1; 77 Del. Laws, c. 168, § 7.) § 1608 Transferability of license. (a) Each license issued under this chapter shall be for the sole use and benefit of the licensee to whom it is issued and shall not be transferable. (b) Whoever intentionally uses or permits the use, or attempts to use or permit the use of a license issued under this chapter by or on behalf of a person other than the licensee to whom said license shall be issued shall be fined not more than $500, or imprisoned for not more than 6 months, or both. (61 Del. Laws, c. 122, § 1.) § 1609 Form and content of license. (a) Every license issued under this chapter shall be signed by the signature or by the facsimile signature of the Chairperson of the Commission, shall bear in bold letters the date of issuance and termination and shall state the name and address of the licensee. (b) Every license for the operation of an adult entertainment establishment shall describe the nature of the business or enterprise as appropriate within the meaning of § 1602(2) of this title, and the location of the premises at which such business is authorized. Where the licensee is a corporation, the license shall state the name and address of said corporation’s registered agent in this State, and the name of its registered agent at such address. (c) Every license for the operation of an adult-oriented retail establishment shall describe the location of the premises at which such business is authorized. Where the licensee is a corporation, the license shall state the name and address of said corporation’s registered agent in this State, and the name of its registered agent at such address. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 12; 77 Del. Laws, c. 168, § 8.) § 1610 License tied to physical location; prohibited activities. (a) No license issued under this chapter shall authorize the licensee to engage in or carry on the business of operating an adult entertainment establishment or adult-oriented retail establishment in any place other than the premises set forth in said license. In addition, each applicant or licensee seeking a license or renewal must affirmatively establish within their application that the location or proposed location of the place of business is in compliance with all applicable laws and ordinances. If a licensee changes the location of the licensee’s place of business during the period for which the license was issued, the license shall be amended by making application in accordance with this chapter in making a new application, to authorize business at the new location, provided that said business is otherwise permitted at the new location by applicable law and ordinance. (b) Any person, and in the case of a corporation this shall include its principal stockholders, board of directors, officers and persons engaged in the management of such establishment, who is the holder of a license issued under this chapter and who engages in, carries on or participates in the operation of the business of operating an adult entertainment establishment or adult-oriented retail establishment at a place other than that authorized by said license shall be fined not more than $500, or imprisoned for not more than 6 months, or both. (c) (1) A new adult entertainment establishment may not operate in any of the following locations: a. The same building as or in a separate building less than 1,500 feet from another adult entertainment establishment. b. Within 500 feet of a residence, regardless of how the new adult entertainment establishment’s property is zoned. c. Within 2,800 feet of a church or school. (2) A violation of this subsection is punishable by a fine in the amount of $5,000. (3) Distances are to be measured from property line to property line. (d) (1) A new adult-oriented retail establishment may not operate in any of the following locations: a. The same building as or in a separate building less than 500 feet from another adult-oriented retail establishment. b. Within 200 feet of a school bus stop or a residence, regardless of how the new adult-oriented retail establishment’s property is zoned. c. Within 500 feet of a church or school. (2) Distances are to be measured from property line to property line. (3) An adult-oriented retail establishment may not operate in a manner that allows sexually-oriented material, devices, or paraphernalia to be visible from outside of the establishment at any time, including during times any door to the business is open. (4) A violation of this subsection is punishable by a fine in an amount not to exceed $5,000. (e) Notwithstanding any provision of law to the contrary, no municipal corporation or county may adopt any ordinance or charter amendment with distance restrictions less than those provided in this section. (f) (1) After July 23, 2019, a new adult entertainment establishment or a new adult-oriented retail establishment may not operate in a building in which an adult entertainment establishment or adult-oriented retail establishment has previously operated. Page 102 Title 24 - Professions and Occupations (2) A violation of this subsection is punishable by a fine in an amount not to exceed $5,000. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 13; 63 Del. Laws, c. 284, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 452, § 1; 77 Del. Laws, c. 168, § 9; 82 Del. Laws, c. 149, § 1.) § 1611 Display of license [Repealed]. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 14; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 168, § 10; repealed by 82 Del. Laws, c. 8, § 5, effective Apr. 9, 2019.) § 1612 Massagist license application. Repealed by 77 Del. Laws, c. 168, § 11, effective July 16, 2009. § 1613 Adult entertainment establishment or adult-oriented retail establishment license application. (a) No license for the operation of an adult entertainment establishment or adult-oriented retail establishment shall be issued under this chapter unless the applicant has executed and filed with the Commission an application for license under oath on a form prepared by the Commission which is in compliance with this chapter. (b) Every application for license for the operation of an adult entertainment establishment or adult-oriented retail establishment shall state the full name(s) of the applicant appearing pursuant to § 1615 of this title, including nickname(s) or alias(es), residential address(es), place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver’s license number, a photograph of the applicant taken within 30 days of the application, federal employer’s identification number and an address of the premises for which the application for license is made. Each application shall further provide the full name(s), including nickname(s) and alias(es), residential address(es), place of employment(s) including address(es) and phone number(s), date of birth, social security number and a recent photograph taken within 30 days of providing this information to the Commission of those persons employed by the adult entertainment establishment or adult-oriented retail establishment, and to specifically identify who is to be responsible for the dayto-day management of the adult entertainment establishment or adult-oriented retail establishment. (c) Where the applicant is a corporation, no license shall be issued unless there first be filed with the Commission, as part of the application of license: (1) A copy of the certificate of incorporation certified by the Secretary of State of the state of incorporation; (2) Where the applicant is a foreign corporation within the meaning of § 371 of Title 8, a copy of the certificate of the Secretary of State prescribed by subsection (c) of that section; (3) A certificate which shall bear the full name(s), including nicknames or aliases, place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver’s license number and a photograph taken within 30 days of application of every director, officer and principal stockholder of the applicant; and (4) The names and addresses of all holders of stock of the applicant as of a date 30 days or less prior to the date of application, which shall be certified as true and correct by an authorized director or officer of said corporation. (d) Where the applicant is a partnership or other unincorporated association, no license shall be issued unless there is first filed with the Commission, as part of the application for license, a certificate which shall bear the full name(s), including nicknames or aliases, signature(s), place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver’s license number and a photograph taken within 30 days of application of every partner or member. (e) An application for license for the operation of an adult entertainment establishment shall include a certificate stating the full name(s), including nicknames or aliases, signature(s), residential address(es), place(s) of employment, including address(es) and phone number(s), date of birth, social security number, driver’s license number and a photograph taken within 30 days of application of the person or persons who shall be responsible for the selection or procurement of all sexually-oriented material for each such establishment. This subsection shall not be construed to preclude the responsibility of any other person or persons for the procurement of sexually-oriented materials. (f) Every application for a license for the operation of an adult entertainment establishment or adult-oriented retail establishment, or for renewal thereof, shall be accompanied by a nonrefundable fee in the amount as determined by the Division of Professional Regulation. (g) No application for a license to operate an adult entertainment establishment or adult-oriented retail establishment shall be received by the Commission within 6 months following the date upon which an application to operate an adult entertainment establishment or adult-oriented retail establishment at the same location has been denied. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 15-17; 63 Del. Laws, c. 284, § 5; 71 Del. Laws, c. 469, § 1; 77 Del. Laws, c. 168, § 12; 82 Del. Laws, c. 9, § 1.) § 1614 Form of signature. No signature of an applicant or licensee, or of any director, officer, principal stockholder or employee of an applicant or licensee, or of any partner associated with an applicant or licensee, which is required to be affixed to any document filed under this chapter, shall be a facsimile signature. (61 Del. Laws, c. 122, § 1.) Page 103 Title 24 - Professions and Occupations § 1615 Personal appearance required. (a) No license shall be issued under this chapter except upon personal appearance of the applicant before a member of the Commission. The applicant shall affix the applicant’s signature and Social Security number to the application for license in said member’s presence and shall acknowledge under oath that said application for license is the applicant’s act and deed and that the facts stated therein are true. (b) Where the applicant is a corporation, subsection (a) of this section shall be satisfied by the appearance, signature and Social Security number of a director on behalf of the corporation in the same manner. Where the applicant is a partnership or other unincorporated association, subsection (a) of this section shall be satisfied by the appearance, signature and Social Security number of a general partner or member on behalf of the applicant. (61 Del. Laws, c. 122, § 1; 70 Del. Laws, c. 186, § 1.) § 1616 Grounds for denial of license. The Commission after a hearing shall issue a license for the operation of an adult entertainment establishment or adult-oriented retail establishment for every applicant who shall have satisfactorily completed and filed an application for license as required by this chapter and shall have paid the required fee, provided that the Commission may refuse to license an applicant if the Commission has substantial evidence that would reasonably support a belief that a substantial objection to the granting of the license has been presented by the community within which the license is to operate, or that the granting of such license is otherwise not in the public interest. For the purposes of this subsection, the term “substantial objection” shall include: (1) Any objection, or group of objections, presented to the Commission either individually or as a group, by persons who reside within the election district where the license is to operate and all contiguous election districts, sufficient to give the Commission reason to believe that a majority of the residents of the community within which the license is to operate oppose the issuance of the license; or (2) Any objection, or group of objections, presented to the Commission either individually or as a group, the content of which gives the Commission reason to believe the quality of life of the community within which the license is to operate will be adversely affected by the granting of the license. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 18; 77 Del. Laws, c. 168, § 13.) § 1617 Grounds for refusal to issue a license; suspension; revocation. (a) The Commission shall refuse to issue a license to any applicant, and shall revoke any license for the operation of an adult entertainment establishment or adult-oriented retail establishment, for any of the following reasons: (1) An intentional misrepresentation or omission of any material fact required to be filed pursuant to this chapter; (2) A transfer of a license in violation of § 1608(a) or § 1610(a) of this title; or the failure to comply with § 1622 or § 1623 of this title; (3) A conviction of the licensee for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction; (4) A conviction of any director, officer, principal stockholder, manager, procurer, employee or independent contractor of the licensee or of a partner associated with the licensee for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction, occurring on the licensed premises; or (5) A conviction of any director, officer, principal stockholder, manager, procurer, employee or independent contractor of the licensee, or of a partner associated with the licensee, for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other jurisdiction, not occurring on licensed premises, where said director, officer, principal stockholder, manager, procurer, employee or independent contractor, at the time of the conduct constituting the offense, was off the premises at the request or direction or pursuant to the authority of the licensee for the purpose of furthering the business of the licensee. (b) The person or persons responsible for any intentional misrepresentation or omission of any material fact required to be filed pursuant to this chapter shall be fined $1,000, imprisoned for 30 days, or both. For the purpose of this subsection, a fact is deemed “material” when it could have affected the decision as to whether to grant or deny an application for license. (c) The license for the operation of an adult entertainment establishment or adult-oriented retail establishment may be suspended by the Commission, for a period not to exceed 6 months, for any violation of this chapter not otherwise punishable by subsection (a) of this section, or § 1616 of this title. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 19; 63 Del. Laws, c. 285, §§ 1, 2; 68 Del. Laws, c. 133, §§ 3, 4; 68 Del. Laws, c. 158, §§ 1, 2; 72 Del. Laws, c. 452, § 2; 77 Del. Laws, c. 168, § 14.) § 1618 Suspension of license to operate massage establishment or act as massagist; regulations imposing sanctions. Repealed by 77 Del. Laws, c. 168, § 15, effective July 16, 2009. Page 104 Title 24 - Professions and Occupations § 1619 Hearings. (a) The Commission shall not suspend or revoke any license under this chapter except after a hearing where the licensee has been given at least 20 days’ notice in writing, specifying the reason or reasons for such suspension or revocation and a date of the hearing. (b) Any hearing pursuant to this section shall be at such time and place as the Commission shall prescribe, but no later than 20 days after the Commission is in receipt of a completed application or 20 days after a licensee has received notice of a proposed suspension or revocation action. Failure of the person or persons to appear after receiving notice shall constitute a waiver of the right to appear in such hearing. (c) Hearings shall be before a panel of no less than 3 Commissioners and the applicant or licensee shall be permitted the assistance of counsel at the applicant’s or licensee’s own expense, to present witnesses in the applicant’s or licensee’s own behalf and to crossexamine witnesses against the applicant or licensee. The proceedings shall be recorded either electronically or stenographically. The Commission shall make specific findings of fact based upon a preponderance of the evidence upon the concurring vote of no fewer than 3 Commissioners. The Commission shall give written notice, accompanied by its findings of fact and conclusions of law, of its action within 10 days of said hearing. (d) The applicant or licensee shall have the right of appeal to the Superior Court upon filing notice of appeal within 20 days of the decision of the Commission. Such review shall be on the record and shall not be de novo, and the cost of transportation shall be borne by the appellant. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 20; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 168, § 16.) § 1620 Criminal background checks of applicants and employees. An applicant for licensure as an adult entertainment establishment or adult-oriented retail establishment and all persons employed by the adult entertainment establishment or adult-oriented retail establishment shall submit, at the applicant’s expense, fingerprints and other necessary information in order to obtain the following: (1) A report of the individual’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person. (2) A report of the individual’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Commission on Adult Entertainment Establishments shall be the screening point for the receipt of said federal criminal history records. (78 Del. Laws, c. 44, § 80.) § 1621 Records; inspection of records. (a) Every adult entertainment establishment which is licensed under this chapter shall maintain on the premises a record which shall state the name and address of every person, distributor, wholesaler or publisher from whom said establishment has received any sexuallyoriented material, and the date such material was received, for purposes of sale, exhibition or dissemination on the premises after the effective date of this chapter. (b) All records which are required to be maintained pursuant to this section shall be subject to inspection on demand by any peace officer or by the Commission or any member thereof. (c) Violation of this section shall be punished by a fine of not more than $200 or by imprisonment for not more than 6 months, or both. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 21; 77 Del. Laws, c. 168, § 18.) § 1622 Change of management of adult entertainment establishment or adult-oriented retail establishment. (a) An adult entertainment establishment or adult-oriented retail establishment shall notify the Commission in writing within 10 days of any change, containing the full name(s), including nicknames or aliases, residential address(es), place(s) of employment, including address(es) and phone number(s), Social Security number, date of birth, driver’s license number and a photograph taken within 30 days of notification, of any change in the identity of the persons identified pursuant to § 1613(b) and (e) of this title. (b) A violation of this section shall be punishable by a fine in the amount of $1,000. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 22; 77 Del. Laws, c. 168, § 19.) § 1623 Applicability of chapter. This chapter shall apply with equal force and effect to businesses and enterprises in existence prior to the effective date of this chapter and to those undertaken thereafter. The information required of all applicants hereunder shall be supplied to the Commission by any business subject to this chapter previously licensed pursuant to § 2905 of Title 30 within 20 days after the effective date of this chapter if such business has more than 90 days remaining on its then existing license. (61 Del. Laws, c. 122, § 1; 77 Del. Laws, c. 168, § 20.) § 1624 Inspections of massage establishments. Repealed by 77 Del. Laws, c. 168, § 21, effective July 16, 2009. Page 105 Title 24 - Professions and Occupations § 1625 Rules and prohibitions relating to adult entertainment establishments. (a) No adult entertainment establishment shall be established in a shopping area containing 1 or more parcels of land owned by a common owner or owners and having in such area 4 or more retail stores. (b) No adult entertainment establishment shall open to do business before 10:00 a.m., Monday through Saturday; and no adult entertainment establishment shall remain open after 10:00 p.m., Monday through Saturday. No adult entertainment establishment shall be open for business on any Sunday or a legal holiday as designated in § 501 of Title 1. This subsection shall not apply to any business which, on or before January 1, 1997, was regulated under both this chapter and Title 4, and which is not an adult book store, conversation parlor or adult motion picture theater as the same are defined in this chapter. (62 Del. Laws, c. 270, § 2; 63 Del. Laws, c. 69, § 1; 68 Del. Laws, c. 133, §§ 1, 2; 69 Del. Laws, c. 19, § 1; 71 Del. Laws, c. 160, § 1.) § 1626 Offenses. Unless otherwise provided, all violations of this chapter are misdemeanors. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.) § 1627 Jurisdiction. Exclusive jurisdiction for all criminal violations of this chapter shall be in the Superior Court. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.) § 1628 Words of gender or number. Unless the context otherwise requires, words denoting the singular number may, and where necessary, shall be construed as denoting the plural number, and words denoting the plural number may, and where necessary, shall be construed as denoting the singular number, and words denoting the masculine gender may, and where necessary, shall be construed as denoting the feminine gender or the neuter gender. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.) § 1629 Presence of minors prohibited; penalties. (a) It shall be unlawful for an owner, manager, operator, procurer, employee or independent contractor of an adult entertainment establishment to knowingly admit or allow to remain on the premises of such establishment an individual under the age of 18 years. (b) Any person who violates this section shall be fined in the amount of $1,000 for the first conviction, and in the amount of $5,000 for each subsequent conviction. (c) It shall be an affirmative defense to a prosecution under this section that the minor presented to the accused identification, with a photograph of such minor affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was 18 years of age or older. (63 Del. Laws, c. 284, § 6; 77 Del. Laws, c. 168, § 22.) Subchapter II Adult Entertainment Establishments; Public Nuisances § 1631 Statement of purpose; findings. (a) It is hereby found that there are certain commercial premises, buildings, structures or parts thereof which, by reason of the design and use of such premises, buildings or structures are conducive to the spread of communicable disease to persons frequenting such premises, buildings and structures; and also to the public health, safety and welfare. The General Assembly declares that the health, safety and welfare of all persons in this State should be protected through the application and enforcement of standards regulating such premises, buildings and structures, in order to eliminate the possibility of the spread of, or infection by, communicable diseases. (b) The sexually transmittable disease of Acquired Immune Deficiency Syndrome, currently found to be irreversible and uniformly fatal, is found to be of particular danger to persons who frequent adult entertainment establishments or other premises, when they are in violation of state law. A high incidence of this and other communicable diseases is found to occur in discernable population groups. The risk factors for obtaining or spreading A.I.D.S. are associated with high-risk sexual conduct. The commercial premises, buildings and structures where persons might place themselves at risk of infection from this disease, or from any other communicable disease facilitated by high-risk sexual conduct, should as public policy be regulated and standards for the prevention of the spread of these communicable diseases should be established for the protection of the public health, safety and welfare. (68 Del. Laws, c. 134, § 1.) § 1632 Definitions. The following words, terms and phrases, when used in this subchapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Page 106 Title 24 - Professions and Occupations (1) “Booths, stalls or partitioned portions of a room or individual rooms” shall mean: a. Enclosures specifically offered to persons for a fee, or as an incident to performing high-risk sexual conduct; or b. Enclosures which are part of a business operated on the premises, which offers movies or other entertainment to be viewed within such enclosure, including enclosures wherein movies or other entertainment is dispensed for a fee. The words “booths, stalls or partitioned portions of a room or individual rooms” shall not mean enclosures which are private offices used by an owner, manager or other person employed on the premises for attending to the tasks of such person’s employment, and which office or enclosure is not held out for use or hire to the public for the purpose of viewing movies or other entertainment for a fee, and which are not open to any persons other than employees. (2) “Doors, curtains or portal partitions” shall mean full, complete, nontransparent closure devices constructed so that one outside cannot see or view activity taking place within the enclosure. (3) “Hazardous site” shall mean any commercial premises, building, structure or any part thereof, which is a site of high-risk sexual conduct. (4) “High-risk sexual conduct” shall mean: a. Fellatio; b. Anal intercourse; and/or c. Vaginal intercourse with persons who engage in sexual acts for exchange of money. (5) “Open to an adjacent public room so that the area inside is visible to persons in such adjacent room” shall mean either: a. The absence of any door, curtain or portal partition; or b. A door or other device which is made of clear, transparent material such as glass, plexiglass or other similar material meeting building code and safety standards, which permits the activity inside the enclosure to be viewed or seen by persons outside the enclosure. (6) “Secretary” shall mean the Secretary of the Department of Health and Social Services. (68 Del. Laws, c. 134, § 1.) § 1633 Building standards. (a) No commercial building, structure, premises, part thereof or facilities therein, shall be so constructed, used, designed or operated for the purpose of engaging in, or permitting persons to engage in, sexual activities which include high-risk sexual conduct. (b) No person shall own, operate, manage, rent, lease or exercise control over any commercial building, structure, premises or portion or part thereof, which contains: (1) Partitions between subdivisions of a room, portion or part of a building, structure or premises having an aperture which is designed or constructed to facilitate sexual activity between persons on either side of the partition; or (2) Booths, stalls, or partitioned portions of a room or individual rooms, used for the viewing of motion pictures or other forms of entertainment, having doors, curtains or portal partitions, unless such booths, stalls, partitioned portions of a room or individual rooms so used shall have at least one side open to an adjacent public room so that the area inside is visible to persons in adjacent public rooms. Such areas shall be lighted in a manner that the persons in the areas used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall not be of such intensity as to prevent the viewing of the motion pictures or other offered entertainment. (c) The standards set forth in this section shall not apply to buildings, structures and premises which are lawfully operating as hotels, motels, apartment complexes, condominiums or rooming houses. (68 Del. Laws, c. 134, § 1.) § 1634 Department of Health and Social Services. (a) The Department of Health and Social Services shall administer this subchapter and may adopt rules and regulations to facilitate its administration of this subchapter. In exercising the powers conferred by this or any other section of the Delaware Code or of this chapter relating to sexually related communicable diseases, the Department shall be guided by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services as the same relate to the spread of infectious diseases. Any rules or regulations which are adopted by the Department which relate to controlling the spread of sexually related communicable diseases shall also apply in the exercising of its powers authorized under this subchapter. (b) In order to ascertain the source of certain infections, and reduce the spread of infection, the Secretary and all persons so authorized by the Secretary shall have full power and authority to inspect or cause to be inspected, and to issue orders regarding any commercial building, structure, premises or any part thereof, which may be a site of high-risk sexual conduct. If the Secretary determines that a hazardous site exists, the Secretary may: (1) Notify the management, owner or tenant of the premises that the Secretary has reasonable belief that such premises, building or structure is a hazardous site; and Page 107 Title 24 - Professions and Occupations (2) Issue warnings to the management, owner or tenant of the premises to remedy those items cited or listed by the Secretary’s notice; and (3) Once such notice and warnings have been issued, the Secretary, or any person designated by the Secretary, shall have the right to proceed in accordance with § 1635 of this title. (68 Del. Laws, c. 134, § 1.) § 1635 Closure of certain public nuisances. (a) After the Secretary has issued the notice and warning described in § 1634 of this title, the management, owner or tenant shall have 10 days to request a hearing before the Secretary or a hearing officer appointed by the Secretary, for a final determination as to whether or not the site is a hazardous site. If the management, owner or tenant of the premises does not, within 10 days of the notice, request a hearing, the Secretary shall then cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site. The Secretary shall then issue an order to the management, owner or tenant of such premises to take measures to bring the premises into compliance with § 1633 of this title. (b) If the management, owner or tenant of the premises requests a hearing, the hearing shall be held before the Secretary or a hearing officer approved by the Secretary at a date not more than 30 days after such request for a hearing. After considering all evidence, the Secretary or the hearing officer, as the case may be, shall make a determination as to whether or not the premises constitute a hazardous site. If the Secretary or hearing officer makes a determination that the premises constitute a hazardous site, the Secretary shall then issue an order and cause the premises, building or structure to be posted with a warning advising the public that the premises have been declared a hazardous site. (c) If, after 30 days from issuance of the Secretary’s order to the management, owner or tenant of the hazardous site, the Secretary determines that the measures to bring the premises into compliance, and to prevent high-risk sexual conduct have not been undertaken, the Secretary may declare the site to be a public nuisance, and: (1) Order the abatement of the hazardous site as a public nuisance, which order shall be enforced by mandatory or prohibitory injunction in a court of competent jurisdiction; and/or (2) May secure a court order for the closure of the premises constituting a hazardous site until the premises, building or structure is in compliance with the standards set forth in § 1633 of this title; or (3) May, in compliance, with § 310 of Title 16, take such steps as are set forth therein for the abatement of a nuisance. (d) The management, owner or tenant may, within 30 days of the Secretary’s order, apply to the Superior Court for a civil trial de novo of any finding or findings made by the Secretary or hearing officer, and of any charges brought against said management, owner or tenant. (68 Del. Laws, c. 134, § 1.) Page 108 Title 24 - Professions and Occupations Chapter 17 Medical Practice Act Subchapter I General Provisions § 1701 Statement of purpose. Recognizing that the practice of medicine and the practices of certain other healthcare professions are privileges and not natural rights, it is hereby considered a matter of policy in the interests of public health, safety, and welfare to provide laws covering the granting of those privileges and their 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 from the unprofessional, improper, unauthorized, or unqualified practice of medicine and practice of certain other healthcare professions and from unprofessional conduct by persons authorized to practice medicine or to practice certain other healthcare professions. (60 Del. Laws, c. 462, § 1; 75 Del. Laws, c. 141, § 1.) § 1702 Definitions [Effective until Jan. 1, 2021]. The following definitions apply to this chapter unless otherwise expressly stated or implied by the context: (1) “Board” means the Board of Medical Licensure and Discipline. (2) “Certificate to practice medicine” means the authorization awarded by the Board to a person who has been qualified to practice medicine in this State by meeting the requirements of this chapter. (3) “Conversion therapy” means any practice or treatment that seeks to change an individual’s sexual orientation or gender identity, as “sexual orientation” and “gender identity” are defined in § 710 of Title 19, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. “Conversion therapy” does not mean any of the following: a. Counseling that provides assistance to an individual who is seeking to undergo a gender transition or who is in the process of undergoing gender transition. b. Counseling that provides an individual with acceptance, support, and understanding without seeking to change an individual’s sexual orientation or gender identity. c. Counseling that facilitates an individual’s coping, social support, and identity exploration and development, including counseling in the form of sexual orientation-neutral interventions or gender identity-neutral interventions provided for the purpose of preventing or addressing unlawful conduct or unsafe sexual practices, without seeking to change an individual’s sexual orientation or gender identity. (4) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine. (5) “Division” means the Division of Professional Regulation. (6) “Executive Director” means the Executive Director of the Board of Medical Licensure and Discipline. (7) “Healthcare institution” means a facility or agency licensed, certified, or otherwise authorized by law to provide, in the ordinary course of business, treatments, services, or procedures to maintain, diagnose, or otherwise affect a person’s physical or mental condition. (8) “Medical group” means 1 or more physicians or other health-care practitioners who work together under the name of a professional corporation, a limited liability partnership, or other legal entity. (9) “Medicine” means the science of restoring or preserving health and includes allopathic medicine and surgery, osteopathic medicine and surgery, and all the respective branches of the foregoing. (10) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (11) “Physician” means an allopathic doctor of medicine and surgery or a doctor of osteopathic medicine and surgery who is registered and certified to practice medicine pursuant to this chapter. (12) “Practice of medicine” or “practice medicine” includes: 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; Page 109 Title 24 - Professions and Occupations 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 person or the actual rendering of treatment to a person within the State by a physician located outside the State as a result of transmission of the person’s medical 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 or modifying the diagnosis and/or treatment of a person; g. Using the designation Doctor, Doctor of Medicine, Doctor of Osteopathy, physician, surgeon, physician and surgeon, Dr., M.D., or D.O., or a similar designation, 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 persons using the services of physicians, the act of the practice of medicine occurs where a person is located at the time a physician practices medicine upon the person. (13) “Registration” means the entry of a certificate to practice medicine into the records of the Board of Medical Licensure and Discipline pursuant to the regulations of the Board. (14) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (15) “Substantially related” means the nature of criminal conduct for which a person was convicted has a direct bearing on the person’s fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of medicine, the work of a physician assistant, of the practice of respiratory care. (16) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (17) “Telemedicine” means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a health-care provider practicing within his or her scope of practice as would be practiced in-person with a patient, legally allowed to practice in the State, while such patient is at an originating site and the health-care provider is at a distant site. (18) “Unauthorized practice of medicine” means the practice of medicine as defined in paragraph (12) of this section by a person not authorized under this chapter to perform an act set forth in that subsection, unless excepted by § 1703 of this title. (19) “Viability” means the point in a pregnancy when, in a physician’s good faith medical judgment based on the factors of a patient’s case, there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures. (60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, §§ 2, 3; 62 Del. Laws, c. 90, § 1; 62 Del. Laws, c. 112, § 1; 63 Del. Laws, c. 62, § 1; 65 Del. Laws, c. 490, § 1; 67 Del. Laws, c. 5, § 1; 67 Del. Laws, c. 434, § 1; 68 Del. Laws, c. 147, § 1; 68 Del. Laws, c. 152, § 1; 69 Del. Laws, c. 355, §§ 1, 2, 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 283, § 1; 74 Del. Laws, c. 262, § 27; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 2; 81 Del. Laws, c. 35, § 1; 81 Del. Laws, c. 340, § 2.) § 1702 Definitions [Effective Jan. 1, 2021]. The following definitions apply to this chapter unless otherwise expressly stated or implied by the context: (1) “Board” means the Board of Medical Licensure and Discipline. (2) “Certificate to practice medicine” means the authorization awarded by the Board to a person who has been qualified to practice medicine in this State by meeting the requirements of this chapter. (3) “Conversion therapy” means any practice or treatment that seeks to change an individual’s sexual orientation or gender identity, as “sexual orientation” and “gender identity” are defined in § 710 of Title 19, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. “Conversion therapy” does not mean any of the following: a. Counseling that provides assistance to an individual who is seeking to undergo a gender transition or who is in the process of undergoing gender transition. b. Counseling that provides an individual with acceptance, support, and understanding without seeking to change an individual’s sexual orientation or gender identity. c. Counseling that facilitates an individual’s coping, social support, and identity exploration and development, including counseling in the form of sexual orientation-neutral interventions or gender identity-neutral interventions provided for the purpose of preventing or addressing unlawful conduct or unsafe sexual practices, without seeking to change an individual’s sexual orientation or gender identity. Page 110 Title 24 - Professions and Occupations (4) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine. (5) “Division” means the Division of Professional Regulation. (6) “Electronic prescription” means a prescription that is generated on an electronic application and transmitted as an electronic data file. (7) “Executive Director” means the Executive Director of the Board of Medical Licensure and Discipline. (8) “Healthcare institution” means a facility or agency licensed, certified, or otherwise authorized by law to provide, in the ordinary course of business, treatments, services, or procedures to maintain, diagnose, or otherwise affect a person’s physical or mental condition. (9) “Medical group” means 1 or more physicians or other health-care practitioners who work together under the name of a professional corporation, a limited liability partnership, or other legal entity. (10) “Medicine” means the science of restoring or preserving health and includes allopathic medicine and surgery, osteopathic medicine and surgery, and all the respective branches of the foregoing. (11) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (12) “Physician” means an allopathic doctor of medicine and surgery or a doctor of osteopathic medicine and surgery who is registered and certified to practice medicine pursuant to this chapter. (13) “Practice of medicine” or “practice medicine” includes: 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 person or the actual rendering of treatment to a person within the State by a physician located outside the State as a result of transmission of the person’s medical 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 or modifying the diagnosis and/or treatment of a person; g. Using the designation Doctor, Doctor of Medicine, Doctor of Osteopathy, physician, surgeon, physician and surgeon, Dr., M.D., or D.O., or a similar designation, 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 persons using the services of physicians, the act of the practice of medicine occurs where a person is located at the time a physician practices medicine upon the person. (14) “Registration” means the entry of a certificate to practice medicine into the records of the Board of Medical Licensure and Discipline pursuant to the regulations of the Board. (15) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (16) “Substantially related” means the nature of criminal conduct for which a person was convicted has a direct bearing on the person’s fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of medicine, the work of a physician assistant, of the practice of respiratory care. (17) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (18) “Telemedicine” means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a health-care provider practicing within his or her scope of practice as would be practiced in-person with a patient, legally allowed to practice in the State, while such patient is at an originating site and the health-care provider is at a distant site. (19) “Unauthorized practice of medicine” means the practice of medicine as defined in paragraph (12) of this section by a person not authorized under this chapter to perform an act set forth in that subsection, unless excepted by § 1703 of this title Page 111 Title 24 - Professions and Occupations (20) “Viability” means the point in a pregnancy when, in a physician’s good faith medical judgment based on the factors of a patient’s case, there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures. (60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, §§ 2, 3; 62 Del. Laws, c. 90, § 1; 62 Del. Laws, c. 112, § 1; 63 Del. Laws, c. 62, § 1; 65 Del. Laws, c. 490, § 1; 67 Del. Laws, c. 5, § 1; 67 Del. Laws, c. 434, § 1; 68 Del. Laws, c. 147, § 1; 68 Del. Laws, c. 152, § 1; 69 Del. Laws, c. 355, §§ 1, 2, 6; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 283, § 1; 74 Del. Laws, c. 262, § 27; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 2; 81 Del. Laws, c. 35, § 1; 81 Del. Laws, c. 340, § 2; 82 Del. Laws, c. 75, § 3.) § 1703 Nonapplicability of certain provisions [Effective until Jan. 1, 2021]. Provisions of this chapter pertaining to the practice of medicine do not apply to: (1) A person providing service in an emergency, where no fee or other consideration is contemplated, charged, or received; (2) Physicians of any civilian or military branch of the United States government in the discharge of their official duties; (3) Advanced practice nurses, chiropodists, chiropractors, dental hygienists, dentists, emergency medical technicians, optometrists, pharmacists, physical therapists, physician assistants, podiatrists, practical nurses, professional nurses, psychologists, respiratory care practitioners, veterinarians, 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; (4) A person administering a lawful domestic or family remedy to a member of that person’s family; (5) 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; (6) A person who has earned a doctorate degree from a recognized college or university and who uses the designation of “Dr.” in connection with that person’s 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; (7) The mechanical application of glasses; (8) The practice of massage; (9) The business of barbering, cosmetology, and manicuring; (10) 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; (11) 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; (12) A physician from another state or jurisdiction who is in this State to testify in a judicial or quasi judicial proceeding; (13) The performing of delegated medical acts pursuant to subchapter VI of this chapter by a person who is licensed by the Board as a physician assistant; (14) 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 Licensure and Discipline; 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; (15) 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: a. In the patient’s home or place of residence as part of a hospice program or a certified home healthcare agency program; b. In a skilled nursing facility; c. In a residential community associated with a skilled nursing facility; d. In an extended care facility; or e. 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; (16) The provisions of subchapter II, Chapter 27 of Title 16, the Uniform Anatomical Gift Act; (17) A medical student who is engaged in training; Page 112 Title 24 - Professions and Occupations (18) A person performing health care acts pursuant to Chapter 94 of Title 16 and § 1921(a) of this title; (19) Notwithstanding the provisions of § 1702(12)e of this title, a physician licensed in another state or the District of Columbia may render a written or otherwise documented medical opinion to a person covered by the State Group Health Insurance Program pursuant to any second opinion or diagnosis evaluation program offered by the State Group Health Insurance Program without obtaining a certificate to practice medicine in this State. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 378, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 2; 81 Del. Laws, c. 340, § 2.) § 1703 Nonapplicability of certain provisions [Effective Jan. 1, 2021]. Provisions of this chapter pertaining to the practice of medicine do not apply to: (1) A person providing service in an emergency, where no fee or other consideration is contemplated, charged, or received; (2) Physicians of any civilian or military branch of the United States government in the discharge of their official duties; (3) Advanced practice nurses, chiropodists, chiropractors, dental hygienists, dentists, emergency medical technicians, optometrists, pharmacists, physical therapists, physician assistants, podiatrists, practical nurses, professional nurses, psychologists, respiratory care practitioners, veterinarians, 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; (4) A person administering a lawful domestic or family remedy to a member of that person’s family; (5) 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; (6) A person who has earned a doctorate degree from a recognized college or university and who uses the designation of “Dr.” in connection with that person’s 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; (7) The mechanical application of glasses; (8) The practice of massage; (9) The business of barbering, cosmetology, and manicuring; (10) 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; (11) 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; (12) A physician from another state or jurisdiction who is in this State to testify in a judicial or quasi judicial proceeding; (13) The performing of delegated medical acts pursuant to subchapter VI of this chapter by a person who is licensed by the Board as a physician assistant; (14) 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 Licensure and Discipline; 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; (15) 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: a. In the patient’s home or place of residence as part of a hospice program or a certified home healthcare agency program; b. In a skilled nursing facility; c. In a residential community associated with a skilled nursing facility; d. In an extended care facility; or e. 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; (16) The provisions of subchapter II, Chapter 27 of Title 16, the Uniform Anatomical Gift Act; (17) A medical student who is engaged in training; (18) A person performing health care acts pursuant to Chapter 94 of Title 16 and § 1921(a) of this title; Page 113 Title 24 - Professions and Occupations (19) Notwithstanding the provisions of § 1702(13)e. of this title, a physician licensed in another state or the District of Columbia may render a written or otherwise documented medical opinion to a person covered by the State Group Health Insurance Program pursuant to any second opinion or diagnosis evaluation program offered by the State Group Health Insurance Program without obtaining a certificate to practice medicine in this State. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 378, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 2; 81 Del. Laws, c. 340, § 2; 82 Del. Laws, c. 75, § 3.) § 1704 State requirement for services of a physician or surgeon. 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 registered and certified to practice medicine under this chapter. (60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 417, § 1; 75 Del. Laws, c. 141, § 2.) § 1705 Accreditation of facilities where office-based surgeries are performed. No person licensed under this chapter shall perform any office-based surgery, as defined in § 122(3)y. of Title 16, in a facility unless such facility is accredited or licensed in accordance with § 122(3)z. of Title 16. For purposes of this section, “facility” and “office-based surgery” mean as defined in § 122(3)y. of Title 16. (78 Del. Laws, c. 80, § 3; 81 Del. Laws, c. 417, § 4.) Subchapter II The Board of Medical Licensure and Discipline § 1710 Composition. (a) The Board of Medical Licensure and Discipline 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. The Board also has the sole authority in this State to issue authorizing documents to practice other specified professions or occupations regulated by this chapter, and to supervise, regulate, and discipline members of those professions and occupations. (b) The Board consists of 16 voting members appointed by the Governor, 8 of whom are persons certified and registered to practice medicine in this State and of whom at least 1 is an osteopathic physician; 4 of whom are persons certified and registered to practice medicine in this State 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 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 and have their primary place of practicing medicine in Sussex County; and 7 of whom are public members. The Director of the Division of Public Health shall serve as a voting member of the Board. A public member may not be nor may ever have been certified, licensed, or registered pursuant to this chapter; may not be the spouse of someone certified, licensed, or registered pursuant to this chapter; at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered pursuant to this chapter. (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) An appointment to the Board to succeed a member whose term has expired shall be for a 3-year term. Vacancies occurring for any cause other than expiration of term shall be filled by the Governor for the unexpired term as provided in this subsection. (e) 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 the physician-appointee’s appointment to the Board. (f) 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 on the recommendation of the Board, after a hearing, due to the member’s unprofessional or dishonorable conduct. (g) A member of the Board may not serve more than 3 full, consecutive 3-year terms, which is not diminished by serving an unexpired term. Upon serving 3 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. (h) (1) While serving on the Board, a member may not be an officer of any state or local allopathic or osteopathic medical society. (2) 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. (i) Each member of the Board shall be compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation not more than $100 for each meeting attended, and not more than a total of $1,500 for meetings attended in a calendar year, and may be reimbursed for all expenses involved in each meeting, including travel, according to Division policy. (60 Del. Laws, c. 462, § 1; 63 Del. Laws, c. 270, § 1; 64 Del. Laws, c. 327, § 5; 64 Del. Laws, c. 477, § 1; 67 Del. Laws, c. 226, §§ 1-4; 67 Del. Laws, c. 368, § 9; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 1; 71 Del. Laws, c. 105, § 1; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 1; 77 Del. Laws, c. 319, §§ 1-4, 12, 13; 81 Del. Laws, c. 97, § 1.) Page 114 Title 24 - Professions and Occupations § 1711 Organization. (a) The Board annually shall elect from among its members a president, a vice-president, and a secretary, and such other officers as it considers necessary, 2 of whom may be the same person. (b) The Board may, with the concurrence of the Director of the Division, set job duties for the Board’s Executive Director and other necessary staff. The Executive Director may not be a Board member. The Executive Director and other necessary staff are employees of the Division. (c) The Board, with the approval of the Division, 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. (60 Del. Laws, c. 462, § 1; 60 Del. Laws, c. 686, § 1; 67 Del. Laws, c. 226, § 5; 75 Del. Laws, c. 141, § 1.) § 1712 Quorum. (a) A quorum for the transaction of business consists of 9 members of the Board entitled to vote. An affirmative vote of at least 5 members of the quorum is required to take any action that the Board has the power to take, unless otherwise expressly provided in this chapter, including the express provisions in subsection (b) of this section. (b) An affirmative vote of at least 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 physician to disciplinary action. (60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 1; 67 Del. Laws, c. 226, § 6; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1.) § 1713 Powers and duties of the Board. (a) The Board has the following powers and duties, in addition to other powers and duties set forth elsewhere in this chapter: (1) To investigate, through the Executive Director, the character of each applicant for a certificate to practice medicine, or for a certificate, license, or other authorizing document to practice any other profession or occupation regulated by this chapter, to determine if the applicant has previously engaged in unprofessional conduct pursuant to § 1731(b) of this title, and to investigate the physical and mental capability of physicians to engage in the practice of medicine, or of members of other professions or occupations regulated by this chapter to engage in the practice of their professions or occupations, with reasonable skill and safety to patients pursuant to § 1731(c) of this title; (2) To conduct or approve of professional or occupational examinations as it deems necessary and proper to determine the professional or occupational qualifications of each person who applies for a certificate to practice medicine in this State, or who applies for a certificate, license, or other authorizing document to practice any other profession or occupation regulated under this chapter; (3) To investigate, through the Executive Director, complaints or charges of unprofessional conduct against the holder of a certificate to practice medicine, or such complaints or charges against the holder of any certificate, license, or other authorizing document issued under this chapter; (4) To investigate, through the Executive Director, complaints and charges of the inability of a person to practice medicine, or to practice any other profession or occupation regulated under this chapter, 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 or the unauthorized practice of any other profession or occupation regulated under this chapter; (6) To levy fines not to exceed $50,000, and to grant, deny, restrict, revoke, suspend, reinstate, or reissue a certificate to practice medicine or a certificate, license, or other authorizing document to practice any profession or occupation regulated under this chapter; (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 or other adverse action taken by a hospital, or regarding disciplinary or other adverse action taken by a medical society against any person certified under this chapter to practice medicine; (9) To reprimand, censure, take other appropriate disciplinary action, or restrict professional or occupational activities with respect to any person certified to practice medicine in this State or any other person certified, licensed, or otherwise authorized to practice a profession or occupation regulated under this chapter; (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 or beyond the scope of this chapter or other laws of this State for carrying out the powers and duties required by this chapter; Page 115 Title 24 - Professions and Occupations (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; provided, however, that a committee may not levy a fine, or grant or refuse to grant, restrict, revoke, suspend, reinstate, or reissue a certificate to practice medicine or a certificate, license, or other authorizing document to practice another profession or occupation issued under this chapter; (14) To designate records of the Board confidential and exempt from public disclosure, in accordance with § 10002 of Title 29; (15) To designate 3 members of the Board, through the Executive Director, 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, or for necessary purposes relating to disciplinary or other action against the holder of a certificate, license, or other authorizing document issued under this chapter; (16) To designate, through the Executive Director, any person qualified by relevant experience as an examiner for the purpose of hearing any alleged 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, or for necessary purposes relating to disciplinary or other action against the holder of a certificate, license, or other authorizing document issued under this chapter; (17) To perform duties regarding emergency medical services systems and paramedic services set forth in Chapters 97 and 98 of Title 16; (18) To utilize licensed medical professionals who are not Board members as co-investigators when a complaint’s allegations implicate unique subject matters. The co-investigator who is not a Board member must possess particular expertise in the unique subject matter that is at issue when a co-investigator is needed under this paragraph. (b) A member of the Board or a member of any committee designated by the Board pursuant to paragraph (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 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, by reason of gender, race, color, creed, religion, age, disability, or national origin, against a person holding or applying for a certificate to practice medicine, or for an authorizing document to practice another occupation or profession pursuant to this chapter. (d) The Board shall provide by rule or regulation for continuing education for persons certified to practice medicine or other professions or occupations pursuant to this chapter. (e) The Board shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of medicine, the work of a physician assistant, the practice of respiratory care, the practice of acupuncture, the work of a genetic counselor, the practice of polysomnography, or midwifery. (f) The Board shall promulgate rules and regulations establishing guidelines for the imposition of disciplinary sanctions against persons certified or licensed to practice medicine or other professions or occupations regulated by this chapter. (75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 321, § 1; 77 Del. Laws, c. 325, § 14; 77 Del. Laws, c. 370, § 1; 81 Del. Laws, c. 97, § 2.) § 1714 Fees. The amount of a fee imposed under this chapter by the Division of Professional Regulation must approximate and reasonably reflect the reasonable projected costs of services or activities provided by the Board, as well as the proportional expenses incurred by the Division 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, or for a certificate, license, or other authorizing document to practice any other profession or occupation regulated by this chapter, may not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or another State agency acting in its behalf, shall compute and set the fee for each separate service or activity that the Board or the Division expects to provide during that licensure biennium. (60 Del. Laws, c. 462, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 2; 75 Del. Laws, c. 141, § 1.) § 1715 Records. The Division of Professional Regulation shall keep a register of all approved applications for certificates to practice medicine, approved applications for authorization to practice any profession or occupation regulated under this chapter, for registrations and renewal of registrations of certificates to practice medicine, for licenses and renewals of licenses to practice as physician assistants, for licenses and renewals of licenses to practice respiratory therapy, and for all other certificates, licenses, registrations, or other authorizing documents to practice any profession or occupation regulated under this chapter and their 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 of Board proceedings kept by the Division are prima facie evidence of the proceedings of the Board. An applicant, certificate holder, registrant, or licensee must notify the Division Page 116 Title 24 - Professions and Occupations of Professional Regulation of a change in his or her address or in any other information on his or her application, registration, or renewal form within 15 days of the change. (71 Del. Laws, c. 102, § 3; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 2.) Subchapter III Certificate to Practice Medicine; Registration of Certificate; Renewal of Registration § 1720 Certification requirements to practice medicine. (a) A person may not practice medicine in this State unless the person: (1) Has a certificate to practice medicine issued by the Board of Medical Licensure and Discipline; (2) Registers the certificate to practice medicine and renews it biennially; and (3) If required, has an occupational license pursuant to Part III of Title 30. (b) To receive a certificate to practice medicine in this State, an applicant for a certificate 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, medical college or school which is listed in the International Medical Education Directory (IMED), along with documentary proof that the applicant successfully passed the examination administered by the Educational Commission for Foreign Medical Graduates and the Federation of State Medical Boards; 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 is not listed in the International Medical Education Directory (IMED), 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 Commission for Foreign Medical Graduates and the Federation of State Medical Boards; 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 equivalent training and institution are approved by the Board; (4) Submit to the Board a sworn or affirmed statement that the applicant: a. Has not been convicted of or has not admitted under oath to having committed a crime substantially related to the practice of medicine; b. Has not been professionally penalized for or convicted of drug addiction; c. Has not had the applicant’s license or certificate or other authorizing document to practice allopathic medicine or osteopathic medicine in any other state, territory, or foreign nation revoked, suspended, restricted, limited, or subjected to disciplinary or other action by the certifying or licensing authority thereof, or an application to practice denied; d. Has not been removed, suspended, expelled, or disciplined by any professional medical association or society when the removal, suspension, expulsion, or discipline was based upon what the association or society found to be unprofessional conduct, professional incompetence, or professional malpractice; e. 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 of investigation or other disciplinary action, if the discipline was based upon what the hospital or medical staff found to be unprofessional conduct, professional incompetence, or professional malpractice; f. Has not engaged in the practice of medicine without a certificate or license or other authorization to practice medicine; g. Has not unlawfully prescribed narcotic drugs; h. Has not wilfully violated the confidence of a patient, except under legal requirement; i. Has not been professionally penalized or convicted of fraud; j. Has reviewed and acknowledges the applicant’s own duties to report unprofessional conduct under the Medical Practice Act and to report child abuse or neglect under § 903 of Title 16, or any successors thereto. Page 117 Title 24 - Professions and Occupations (5) Submit to the Board a sworn or affirmed statement that the applicant is, at the time of application, physically and mentally capable of engaging in the practice of medicine according to generally accepted standards, and submit to such examination as the Board may deem necessary to determine the applicant’s capability; (6) Submit, at the applicant’s expense, fingerprints and other necessary information in order to obtain the following: a. A report of the applicant’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Central Repository contains no such information relating to that person. b. A report of the applicant’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C. § 534). The State Bureau of Identification shall be the intermediary for purposes of this section and the Board of Medical Licensure and Discipline shall be the screening point for the receipt of said federal criminal history records. An applicant may not be certified to practice medicine until the applicant’s 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. The State Bureau of Identification may release any subsequent criminal history to the Board. (7) Pass the professional examination pursuant to § 1721 of this title, unless excepted under § 1722 of this title or waived as provided in subsection (e) of this section. (8) [Repealed.] (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. The applicant must also pay the application fee set by the Division, and, unless an exception in § 1722 of this title applies, the applicant must pass a professional examination pursuant to § 1721 of this title. (e) The Board, by the affirmative vote of 9 of its members, may waive any of the requirements of this section if it finds all of the following by clear and convincing evidence: (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; (3) The granting of the waiver will not endanger the public health, safety, or welfare; (4) For waiver of a felony conviction other than a conviction of a felony sexual offense, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service, although waiver shall not be granted to any person who is convicted of a felony sexual offense; and (5) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (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. (g) Notwithstanding any language to the contrary, the Board shall not issue a license to an applicant until first verifying that an applicant is not listed on either the Adult Abuse Registry or the Child Protection Registry as being substantiated for abuse or neglect. (h) An applicant for initial or renewal certification to practice medicine in this State must disclose whether the applicant has ever been the subject of an investigation by any licensing authority, medical association, hospital or other healthcare institution. The Board may require an applicant to provide sufficient documentation to enable the Board to determine whether investigation or a diagnostic mental or physical examination is necessary to determine the applicant’s qualifications for certification to practice medicine in this State. Any such investigation or diagnostic mental or physical examination shall be conducted pursuant to § 1732 of this title. (i) All individuals licensed to practice under this chapter shall be required to be fingerprinted by the State Bureau of Identification, at the licensee’s expense, for the purposes of performing subsequent criminal background checks. Licensees who received their initial license to practice on or before July 1, 2007, shall submit by January 1, 2012, at the applicant’s expense, fingerprints and other necessary information in order to obtain a criminal background check. (j) The Board may issue an administrative medicine license to a physician who meets all qualifications for licensure, including payment of a fee set by the Division of Professional Regulation, except that an applicant for an administrative medicine license shall not be required to show that the applicant has been engaged in the active practice of medicine, as defined in the Board’s regulations. Administrative medicine licensees may not provide medical or clinical services to or for patients and shall attest to understanding this on the application. (20 Del. Laws, c. 40, § 13; 24 Del. Laws, c. 139, § 1; Code 1915, § 846; 33 Del. Laws, c. 58, § 1; Code 1935, § 925; 41 Del. Laws, c. 86, § 1; 24 Del. C. 1953, §§ 1732, 1733; 50 Del. Laws, c. 369, § 1; 52 Del. Laws, c. 323, §§ 1, 2; 58 Del. Laws, c. 511, § 53; 59 Del. Laws, c. 55, §§ 1-3; 60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 477, § 3; 67 Del. Laws, c. 226, § 7; 70 Del. Laws, Page 118 Title 24 - Professions and Occupations c. 186, § 1; 71 Del. Laws, c. 102, § 4; 74 Del. Laws, c. 262, § 28; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 399, § 1; 75 Del. Laws, c. 436, § 13; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 323, § 1; 77 Del. Laws, c. 324, §§ 1, 2; 77 Del. Laws, c. 460, § 4; 78 Del. Laws, c. 44, §§ 16, 17; 79 Del. Laws, c. 194, § 1; 79 Del. Laws, c. 277, § 4; 80 Del. Laws, c. 86, § 1; 81 Del. Laws, c. 97, § 3.) § 1721 Professional examination. (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) A professional examination issued pursuant to this section must be in the English language, must be comprehensive in character, and must be 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) 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. (20 Del. Laws, c. 40, § 11; Code 1915, § 844; Code 1935, § 923; 24 Del. C. 1953, § 1735; 50 Del. Laws, c. 369, § 1; 60 Del. Laws, c. 462, § 1; 75 Del. Laws, c. 141, § 1.) § 1722 Waiver of professional examination for temporary certification, for hospital or institution staff, for physicians licensed in another jurisdiction, and for physicians passing an alternative exam. (a) The Board may adopt rules and regulations that waive the professional examination required pursuant to § 1721 of this title 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 pursuant to this paragraph 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 a 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: a. 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 b. 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 authorized to practice medicine by competent authority in any other of the United States or in any other jurisdiction approved by the Board. (b) When a certificate to practice medicine is issued to an applicant pursuant to this section and the applicant registers with the Board and obtains an occupational license pursuant to Chapter 23 of Title 30, the applicant may practice medicine in this State, but only for the time and only under the conditions, if any, specified in the certificate. (60 Del. Laws, c. 462, § 1; 71 Del. Laws, c. 102, § 6; 75 Del. Laws, c. 141, § 1.) § 1723 Issuance of certificate to practice; registration and registration renewal; reactivating inactive status. (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. Each such person shall inform the Division of any change of current address and telephone number within 15 days of the change. (c) The registration of a certificate to practice medicine must be renewed biennially, through a procedure determined by the Division. The procedure must include payment of an appropriate registration renewal fee; submission of a renewal form provided by the Division; submission of the materials required by § 1720(b)(4), (b)(5), and (g), of this title unless waived pursuant to § 1720(e) of this title; proof that the certified person has met the continuing medical education requirements established by the Board; and the period of time within which a person certified to practice medicine in this State may renew the certified person’s registration without penalty, notwithstanding the fact that the person failed to renew the person’s registration on or before the renewal date; and the penalty for failure to renew Page 119 Title 24 - Professions and Occupations registration in a timely manner. The procedure must also include evidence of completion of training on the recognition of child sexual and physical abuse, exploitation and domestic violence, and the reporting obligations under the Medical Practice Act and § 903 of Title 16, and any successors thereto, and any other mandatory reporting obligations required by the Board. Such trainings shall be coordinated under §§ 911 and 931(b)(4) of Title 16 to ensure consistent trainings across disciplines. (d) The Board may establish, by class and not by individual, requirements for continuing education or reexamination, or both, for a person issued a certificate to practice medicine, or issued any authorized document to practice another profession or occupation regulated under this chapter, who is on inactive status and wishes to reactivate that person’s status. (e) The Division shall review the criminal history of all individuals licensed to practice medicine on a periodic basis, at a minimum, once every 6 months. (20 Del. Laws, c. 40, § 12; Code 1915, § 845; 33 Del. Laws, c. 58, § 1; Code 1935, § 924; 41 Del. Laws, c. 86, § 1; 42 Del. Laws, c. 89, § 2; 45 Del. Laws, c. 89, § 1; 24 Del. C. 1953, § 1737; 53 Del. Laws, c. 108, § 17; 60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 417, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 5; 74 Del. Laws, c. 349, § 1; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 323, § 2; 77 Del. Laws, c. 324, §§ 3, 4; 80 Del. Laws, c. 187, § 8.) § 1724 Temporary emergency certificate during a public emergency. 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 or the Governor of the State. When an occupational license is issued by the Director of Revenue pursuant to Chapter 23 of Title 30, if such license is required, and the temporary emergency certificate is registered by the Board, the holder of the temporary emergency certificate may, during the term specified on 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. (24 Del. C. 1953, § 1744; 49 Del. Laws, c. 158, § 1; 50 Del. Laws, c. 369, § 1; 52 Del. Laws, c. 323, § 9; 60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, §§ 4, 5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 7; 75 Del. Laws, c. 141, § 1.) § 1725 Temporary certificate pending certification. The Executive Director of the Board, with the approval of a physician member of the Board, may issue a temporary certificate pending certification 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. When an occupational license is issued by the Director of Revenue pursuant to Chapter 23 of Title 30, if such license is required, and the temporary certificate pending certification is registered by the Board, the holder of the temporary certificate pending certification may, during the time specified on 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. (24 Del. C. 1953, § 1744; 49 Del. Laws, c. 158, § 1; 50 Del. Laws, c. 369, § 1; 52 Del. Laws, c. 323, § 9; 60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, §§ 4, 5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 7; 75 Del. Laws, c. 141, § 1.) § 1726 Notice of certification required. The Executive Director of the Board shall, immediately upon issuing a certificate to practice medicine pursuant to § 1722, § 1723, or § 1724 of this title, make available to the director of the Division of Public Health of the Department of Health and Social Services 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 certificate pursuant to § 1722 or § 1724 of this title, the length of time for which the certificate authorizes the practice of medicine and the limitation on the authorization, if any. (30 Del. Laws, c. 58; Code 1915, § 847A; Code 1935, § 927; 24 Del. C. 1953, § 1738; 50 Del. Laws, c. 369, § 1; 52 Del. Laws, c. 323, § 3; 60 Del. Laws, c. 462, § 1; 75 Del. Laws, c. 141, § 1.) § 1727 Consulting physicians from other states. 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. (20 Del. Laws, c. 40, § 16; Code 1915, § 851; Code 1935, § 932; 24 Del. C. 1953, § 1743; 50 Del. Laws, c. 369, § 1; 60Del. Laws, c. 462, § 1; 63 Del. Laws, c. 9, § 1; 75 Del. Laws, c. 141, § 1.) § 1728 Medical personnel for visiting sports teams. (a) Notwithstanding any other provision of this chapter or other law, a physician who is certified, licensed, or otherwise authorized to practice medicine in another state or country shall be exempt from the certification and registration requirements of this chapter while practicing medicine in this State if all of the following conditions are met: (1) The physician has a written or oral agreement with a sports team to provide general or emergency care to the team members, coaching staff, and families traveling with the team for a specific sporting event to take place in this State; and Page 120 Title 24 - Professions and Occupations (2) The physician may not practice medicine with respect to any person residing or present in this State other that a person described in paragraph (a)(1) of this section, unless providing medical care pursuant to § 6801 of Title 16; (b) The exemption shall remain in force while the physician is traveling with the team, but shall be no longer than 10 days per individual sporting event. The Executive Director of the Board may grant a physician additional time for exemption, up to 20 additional days per sporting event, upon prior request by the physician. The total number of days a physician may be exempt, including additional time granted upon request, may not exceed 30 days per sporting event. (c) A physician exempt from the certification and licensure requirements under this section is not authorized to practice medicine at any health care facility, as defined in Chapter 93 of Title 16, in the State. (79 Del. Laws, c. 137, § 1.) § 1729 Home health-care orders from out-of-state physicians. (a) Notwithstanding any other provision of this chapter or other law, a physician who is certified, licensed, or otherwise authorized to practice medicine in another state shall be exempt from the certification and registration requirements of this chapter in order to prescribe home health-care services provided by a home health-care agency licensed pursuant to Title 16 to a patient who resides in this State. (b) The prescription of home health-care services under this section must first be made pursuant to an in-person physical examination of the patient performed within the jurisdictional boundaries of the state in which the prescribing physician is certified, licensed or otherwise authorized to practice medicine. (79 Del. Laws, c. 338, § 1.) Subchapter IV Disciplinary Regulation; Proceedings of the Board § 1730 Duty to report unprofessional conduct and inability to practice medicine. (a) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board if that person is treating professionally another person who possesses a certificate to practice medicine for a condition defined in § 1731(c) of this title, 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 title. 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) (1) Every person to whom a certificate to practice medicine is issued and health care facility as defined in § 1740 of this title has a duty to report to the Board within 30 days: a. Any partial or full removal of hospital privileges based on adverse events, unprofessional conduct or competency issues; and b. Any disciplinary action taken by a medical society against that person; and c. Any reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect by a person toward any other person. (2) Every person certified to practice medicine in this State shall report to the Board within 30 days any civil or criminal investigation in any jurisdiction which concerns that person’s certification or license or other authorization to practice medicine. The Board may require an applicant to provide sufficient documentation to enable the Board to determine whether to investigate, pursuant to § 1732 of this title, or whether there are grounds for discipline under § 1731(b) of this title. (c) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board, within 60 days, all information concerning medical malpractice claims settled or adjudicated to final judgment, as provided in Chapter 68 of Title 18, and, within 30 days, all information required to be reported under § 1731A(f) of this title. (d) Every person to whom a certificate to practice medicine is issued has a duty to report, within 30 days of the day each such person becomes aware, of the existence of a report to the Department of Services for Children, Youth and Their Families under Chapter 9 of Title 16 against that person concerning child abuse or neglect or a report to the Division of Health Care Quality under Chapter 85 of Title 11 against that person concerning adult abuse, neglect, mistreatment, or financial exploitation. (60 Del. Laws, c. 462, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 8, 9; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 320, § 9; 77 Del. Laws, c. 325, § 1; 77 Del. Laws, c. 460, § 2; 78 Del. Laws, c. 101, § 1; 81 Del. Laws, c. 209, § 9.) § 1731 Unprofessional conduct and inability to practice medicine. (a) A person to whom a certificate to practice medicine in this State has been issued may be disciplined by the Board for unprofessional conduct, as defined in subsection (b) of this section, by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of that person’s certificate to practice medicine, or by other appropriate action, which may include a requirement that a person who is disciplined must complete specified continuing education courses. The Board shall permanently revoke the certificate to practice medicine in this State of a person who is convicted of a felony sexual offense. Page 121 Title 24 - Professions and Occupations (b) “Unprofessional conduct” includes 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 unethical practice in connection with a certification, registration, or licensing requirement of this chapter, or in connection with the practice of medicine or other profession or occupation regulated under this chapter; (2) Conduct that would constitute a crime substantially related to the practice of medicine; (3) Any dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public; (4) The practice of medicine or other profession or occupation regulated under this chapter under a false or assumed name; (5) The practice of medicine or other profession or occupation regulated under this chapter without a certificate or other authorizing document or renewal of such document, unless otherwise authorized by this chapter; (6) The use, distribution, or issuance of a prescription for a dangerous or narcotic drug, other than for therapeutic or diagnostic purposes; (7) Advertising of the practice of medicine or other profession or occupation regulated under this chapter 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 unauthorized person to practice medicine or other profession or occupation regulated under this chapter; (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, including but not limited to sexual misconduct, incompetence, or gross negligence or pattern of negligence in the practice of medicine or other profession or occupation regulated under this chapter; (12) Wilful violation of the confidential relationship with or confidential communications of a patient; (13) Wilful failure to report to the Board as required by § 1730(a) of this title; (14) Wilful failure to report to the Board as required by § 1730(b) of this title; (15) Wilful 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 or other profession or occupation regulated under this chapter to the Board, to any committee thereof, to the Executive Director, or to anyone designated by the Executive Director 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 or to the procedures of other professions or occupations regulated under this chapter, 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 or occupational services rendered; (19) Suspension or revocation of a certificate to practice medicine or of the authorizing document to practice another profession or occupation regulated under this chapter, or other disciplinary action taken by the regulatory authority in another state or territory. 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; (20) Signing the death certificate of a person prior to the actual time of death of the person; (21) A violation of §1764A of this title; (22) Wilful failure to report to the Board when required by §1731A of this title; (23) Wilful failure to comply with §1769B of this title; (24) Engaging in conversion therapy with a child; and (25) Referring a child to a provider in another jurisdiction to receive conversion therapy. (c) A certificate to practice medicine or an authorizing document to practice another profession or occupation regulated under this chapter is subject to restriction, suspension, or revocation, either temporarily or permanently, in case of the inability of the holder to practice medicine or other profession or occupation 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 or other profession or occupation regulated under this chapter, or as a condition to continue to practice medicine or other profession or occupation regulated under this chapter after disciplinary sanctions are imposed or after inability to practice with reasonable skill or safety to patients has been determined. (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 Page 122 Title 24 - Professions and Occupations 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 or other profession or occupation regulated under this chapter in this State or concerning the inability of a person certified to practice medicine or other profession or occupation regulated under this chapter 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. (f) The provisions of this section apply to any person to whom a certificate, license, or other authorizing document to practice a profession or occupation has been issued pursuant to this chapter. (60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 90, § 3; 63 Del. Laws, c. 252, § 1; 64 Del. Laws, c. 477, § 4; 67 Del. Laws, c. 226, §§ 10, 11; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 12-14; 74 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 30; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 3; 77 Del. Laws, c. 322, § 1; 77 Del. Laws, c. 325, §§ 3-6; 81 Del. Laws, c. 340, § 3.) § 1731A Duty to report. (a) Any person may report to the Board information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. 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 Medical Society of Delaware; (4) All healthcare institutions in the State; (5) All state agencies other than law-enforcement agencies; (6) All law-enforcement agencies in the State, except that such agencies are required to report only new or pending investigations of alleged criminal conduct specified in § 1731(b)(2) of this title, and are further required to report within 30 days of the close of a criminal investigation or the arrest of a person licensed under this chapter. (b) If a person certified to practice medicine in this State voluntarily resigns from the staff of a healthcare institution, or voluntarily limits that person’s own 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 unprofessional conduct or possible inability to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness; or excessive use or abuse of drugs, pursuant to § 1731 of this title. (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 guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness; or excessive use or abuse of drugs, pursuant to § 1731 of this title. (d) When an investigation is necessary pursuant to subsection (c) of this section, 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. 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 relevant medical records. 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, an assisting physician Board member and an assisting public Board member consider it necessary, the Executive Director may, by subpoena, compel the production of the patient’s name. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board’s ability to protect the public interest. 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 solely 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 also Page 123 Title 24 - Professions and Occupations 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) The Executive Director shall initially review every report made to the Board under this subchapter. The Executive Director may defer the investigation of a report pending a reported licensee’s evaluation and treatment for substance abuse or for physical or mental illness, provided sufficient safeguards exist to protect the licensee’s patients and the public. Safeguards may include a verifiable, voluntary cessation of the practice of medicine or a limited or monitored practice. Upon completion of the reported licensee’s evaluation and treatment, the Executive Director may resume investigation of the report pursuant to the requirements of this chapter. If the Executive Director determines that a deferral is warranted, the case shall be summarized and placed before the Board for its information. (i) Pursuant to the authority conferred herein and by § 1713 of this title, the Board shall have the authority to impose a fine, not to exceed $10,000 for the first violation, and not to exceed $50,000 for any subsequent violation, on any person, any healthcare provider, any healthcare institution, and the Medical Society of Delaware for violation of any duty imposed by this chapter, and said fine shall be imposed pursuant to the procedures of this chapter. (j) Upon receiving a complaint involving potential criminal conduct, the Board shall promptly report the complaint to appropriate lawenforcement agencies, including the Delaware Department of Justice. (67 Del. Laws, c. 159, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 15; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 2; 77 Del. Laws, c. 319, §§ 7, 8; 77 Del. Laws, c. 321, § 2; 77 Del. Laws, c. 325, §§ 7-9.) § 1731B Counseling; letter of concern. (a) If the Executive Director and the President of the Board, or a member of the Board designated by the President 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 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 nondisciplinary, confidential letter of concern regarding the person’s act or omission. (b) If a person certified to practice medicine receives a total of 3 letters of concern and/or letters of counseling pursuant to this section, the Executive Director may reasonably require a formal assessment of professional competency pursuant to § 1732(d) of this title to assess the person’s continued ability to protect the health and safety of the person’s present or prospective patients. (70 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 3; 77 Del. Laws, c. 325, § 11.) § 1732 Investigations of complaints; Executive Director authority. (a) All complaints of unprofessional conduct, unauthorized practice of medicine, or medical malpractice shall be referred to the Division of Professional Regulation to be investigated. Complaints alleging potential sexual misconduct by a licensee should be afforded priority by the Division. The Division of Professional Regulation shall formulate charges, if circumstances warrant, by bringing a formal complaint against a person to whom a certificate to practice medicine or otherwise licensed or registered in this State has been issued. (b) The Executive Director shall initiate investigations concerning inability to practice medicine with reasonable skill or safety to patients. The Executive Director with the Board president or the president’s designee, shall, after reviewing the results of the investigation, 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, the Executive Director shall order the person to submit to an examination at the person’s expense to be conducted by a physician or agency designated by the Executive Director. Every person to whom a certificate to practice medicine has been issued is deemed to have given that person’s own 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. 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. (c) To assist in an investigation of alleged unprofessional conduct, or medical malpractice, or of 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 Medical Society of Delaware and its committees. A subpoena issued under this subsection is subject to the subpoena restrictions in § 1731A(d) of this title. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board’s ability to protect the public interest. (d) In addition to or in lieu of a diagnostic evaluation, the Executive Director may require an applicant for or the holder of a certificate to practice medicine, at the applicant 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 1 other physician member of the Board, determines Page 124 Title 24 - Professions and Occupations 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 1 other physician member of the Board that the assessment is warranted pursuant to this subsection. (e) When a complaint is made by a law-enforcement agency or employee thereof and involves allegations of criminal activity, the Division of Professional Regulation and the Executive Director shall suspend any new or pending investigation upon a written request to do so by the Delaware Department of Justice or a federal law-enforcement authority. Such written request shall suspend the duty to investigate pursuant to this section, duty to regularly advise the complainant under § 8735 of Title 29, and any other duties that would interfere with the ability of law enforcement to investigate the allegations successfully. The suspension shall remain in effect until the Delaware Department of Justice or federal law enforcement informs the Executive Director in writing that action by the Division of Professional Regulation will not interfere with a pending law-enforcement investigation. (60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 2; 67 Del. Laws, c. 226, § 12; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 16-19; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 325, §§ 10, 11; 81 Del. Laws, c. 97, § 4; 81 Del. Laws, c. 425, § 13.) § 1733 Complaints; notice of hearing [Repealed]. (60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 3; 67 Del. Laws, c. 226, § 13; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 20; 75 Del. Laws, c. 88, § 17(2); 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 10; 77 Del. Laws, c. 321, §§ 3-5; 77 Del. Laws, c. 325, §§ 12, 13; repealed by 81 Del. Laws, c. 97, § 4, effective July 21, 2017.) § 1734 Hearings. (a) [Repealed.] (b) Open hearings. — A hearing on a complaint conducted by a hearing panel or examiner is open to the public, except the Board may conduct executive session for deliberations and purposes permitted by § 10004 of Title 29. 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)-(h) [Repealed.] (i) Hearings shall be conducted pursuant to the Administrative Procedures Act [Chapter 101 of Title 29]. Upon receiving a decision and order the Executive Director shall file the required disciplinary action reports to data banks. (60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 7; 64 Del. Laws, c. 327, § 4; 64 Del. Laws, c. 477, § 6; 65 Del. Laws, c. 66, § 1; 67 Del. Laws, c. 226, § 14; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 21; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 321, § 6; 77 Del. Laws, c. 325, §§ 15-19; 81 Del. Laws, c. 97, § 5.) § 1735 Revocation or suspension of certificate. (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 or other action is warranted, an order describing the Board’s action must be served personally or sent by certified mail, return receipt requested, to the certificate holder. In addition, copies of the order must be filed in the office of the Board, in the Division of Professional Regulation, 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. (60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 6; 67 Del. Laws, c. 226, § 15; 71 Del. Laws, c. 102, §§ 22, 23; 75 Del. Laws, c. 141, § 1.) § 1736 Appeal procedures. (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 offense occurred. (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 is not stayed upon appeal unless so ordered by the Superior Court. (e) A person whose certificate to practice medicine has been 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. (60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 16; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1.) Page 125 Title 24 - Professions and Occupations § 1737 Confidentiality of records. Release of records of the Board is governed by the provisions of the Freedom of Information Act, Chapter 100 of Title 29. (60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 17; 75 Del. Laws, c. 141, § 1.) § 1738 Temporary suspension pending hearing. (a) In the event of a formal or informal complaint concerning the activity of a person certified to practice medicine that presents a clear and immediate danger to the public health, the Board may temporarily suspend the person’s certificate to practice medicine, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board President or the Board President’s designee. An order temporarily suspending a certificate to practice medicine may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney can file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily 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 to temporarily suspend the person’s 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 consisting of 2 physician members and 1 public member of the Board if practicable. 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 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 title 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 Board, under § 8735 of Title 29, 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. (66 Del. Laws, c. 2, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 24; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, §§ 5, 6; 77 Del. Laws, c. 325, § 19; 81 Del. Laws, c. 97, § 5; 81 Del. Laws, c. 425, § 14.) § 1739 Protection from liability. Pursuant to the State Early Opt-in provision of 42 U.S.C. § 11111(c)(2), the protection from liability set forth in 42 U.S.C. § 11111(a) applies to professional review actions, as defined in 42 U.S.C. § 11151, commenced on or after Sept. 10, 1988. (66 Del. Laws, c. 357, § 1; 75 Del. Laws, c. 141, § 1.) § 1740 Health care facilities reporting requirements. (a) Definitions. — (1) “Direct access” means the opportunity to have personal contact with persons receiving care during the course of one’s assigned or professional duties. (2) “Health care facility” means any custodial or residential facility or other facility where health, nutritional or personal care is provided for persons including nursing homes, assisted living facilities, long-term care facilities, hospitals, health care agencies, birth centers, emergency centers, surgical centers, and adult and child day care facilities. This term also includes any business, professional association, or other business entity where 2 or more physicians practice together. (3) “Person seeking certification” means any person seeking an initial certificate to practice medicine from the Board of Medical Licensure and Discipline. (b) Service letter. — (1) The Board of Medical Licensure and Discipline shall not issue a certificate to practice medicine without first obtaining 1 or more service letters regarding the applicant, provided that person has previously practiced medicine. The service letter obtained must include a service letter from all health care facilities where that person currently has direct access to patients, and where that person has admitting or staff privileges. In addition, if a person seeking certification had direct access to patients or staff or admitting Page 126 Title 24 - Professions and Occupations privileges at a health care facility within the past 3 years, the Board of Medical Licensure and Discipline shall also obtain a service letter from each such facility. If a person seeking certification has not previously had direct access to patients or was self-employed or 1 or more of the health-care facilities where that person had direct access to patients no longer exists, then the Board must require the person to provide letters of reference from 2 physicians who are familiar with the person, but who are not relatives of the person. (2) For purposes of this subsection, the required service letter shall be in a form provided by the Board of Medical Licensure and Discipline. Notwithstanding any law or provision to the contrary, the form shall be signed by a responsible physician at the current or previous health care facility and shall contain information about the scope of that persons practice and relationship to the facility, the duration of that relationship, and any reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect by the person seeking certification toward any other person, including any disciplinary action taken as a result of such conduct. (3) Any health care facility that is required to provide a service letter for the purpose stated above shall obtain a statement signed by the person seeking certification wherein the person authorizes a full release permitting the Board of Medical Licensure and Discipline to obtain any and all information pertaining to the facts of the person’s current or previous relationship with the facility. (4) In addition to the requirements of § 1720 of this title, the Board shall obtain a statement signed by the person seeking certification wherein the person attests that the information provided regarding current and past relationships to health care facilities represent a full and complete disclosure of the person’s current and previous contacts with health care facilities. Any person seeking certification who fails to make a full and complete disclosure of such information shall be subject to a civil penalty of $5,000. Any person who wilfully fails to make a full and complete disclosure shall not be issued a certificate to practice medicine. (5) Any health care facility receiving the Board’s written request for a service letter shall provide the service letter within 10 business days from the day the request is received. Any health care facility that fails to make a full and complete disclosure of information, pursuant to this section and § 1730(b)(1)c. of this title, as required, shall be subject to a civil penalty of $10,000 for each such violation. (6) Any health care facility providing information about a person seeking licensure as required by this section shall be immune from claims, suits, 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. (7) The requirements of this section shall be in addition to any requirements of § 708 of Title 19. (8) The Division of Professional Regulation shall investigate and seek civil penalties against persons seeking certification and health care facilities that violate the provision of this section. (9) Notwithstanding the foregoing, the Board may issue a certificate to practice medicine to an applicant who was employed out of State or country within the past 5 years, where completed service letters have not been received from all health care facilities, provided all other requirements of this chapter are met and provided requests were made to such facilities and the Board determines that all possible efforts were made to obtain the required service letter. Applicants to which this paragraph applies shall obtain letters of reference from 2 qualified physicians who are familiar with the person, who are not relatives of the person. (77 Del. Laws, c. 460, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 194, § 2.) § 1741 Complaints of unsanitary or unsafe conditions. (a) A person certified or licensed under this chapter may be disciplined by the Board for maintaining a facility in an unsanitary or unsafe condition, by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of that person’s certificate or license, or by other appropriate action, which may include a requirement that a person who is disciplined must complete specified continuing education courses. For purposes of this section, “facility” shall have the same meaning as defined in § 122(3)y.3.C. of Title 16. (b) The Division shall have the authority to conduct inspections upon receipt of any complaint in connection with subsection (a) of this section or upon the occurrence of an adverse event as defined in § 122(3)y.3.A. of Title 16 and, as applicable, to refer such information to the Department of Health and Social Services pursuant to § 122(3)y. of Title 16. In connection herewith, the Division may share information with the Department of Health and Social Services in accordance with applicable law. (78 Del. Laws, c. 15, § 2.) Subchapter V Miscellaneous Provisions § 1760 Determination of death. (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 Page 127 Title 24 - Professions and Occupations (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 Licensure and Discipline, 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 uniform the law with respect to the determination of death among states enacting it. (d) This section may be cited as the “Uniform Determination of Death Act”. (65 Del. Laws, c. 237, § 1; 67 Del. Laws, c. 156, § 1; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1.) § 1761 Physician discontinuing business or leaving the State; death of a physician; change of physician and transfer of patient records; patient access to records. (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 that person’s 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 1 time per month over a 3-month period in advance of discontinuing the business or leaving the State and must explain how a patient can procure that patient’s 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 that person’s 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 1 time per month over a 3-month period after the person’s death and must explain how a former patient can procure the patient’s patient records. All former patients 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 1 person certified to practice medicine to another person certified to practice medicine, the former person shall transfer a copy of 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, according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed. 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 1 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) Patients, on their own behalf, shall have the right to obtain a copy of their medical records from any person certified to practice medicine according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed. (e) 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 copy of the 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. (f) 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. (g) Any person certified to practice medicine in this State who violates this section may be found by the Board to have committed unprofessional conduct, and any aggrieved patient or the patient’s personal representative may bring a civil action for damages or injunctive relief, or both, against the violator. (h) Charges for copies of such records not susceptible to photostatic reproduction, such as radiology films, models, photographs or fetal monitoring strips shall be the full cost of such reproduction. (i) Payment of all costs may be required by the provider or its third-party release-of-information service prior to the copies of the records being furnished. This subsection shall not apply to copies of the records requested in order to make or complete an application for a disability benefits program. (j) The Board of Medical Licensure and Discipline shall review fees yearly. (k) The actual cost of shipping may also be charged if the copies of the records are mailed or shipped to the requester. Page 128 Title 24 - Professions and Occupations (l) A person certified to practice medicine shall have 45 days from the closure of the record or the assembly of a complete record to fulfill a request for medical records unless a faster response is medically necessary. (64 Del. Laws, c. 372, § 1; 68 Del. Laws, c. 197, §§ 1, 2; 68 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 308, §§ 1, 2, 3; 73 Del. Laws, c. 59, §§ 1, 2; 75 Del. Laws, c. 141, § 1; 76 Del. Laws, c. 353, § 1; 77 Del. Laws, c. 319, § 1.) § 1761A Appointment of a custodian of patient records. (a) If the Board receives a formal or informal complaint concerning access to patient records as a result of a physician’s physical or mental incapacity, or abandonment or involuntary discontinuation of a medical-practice business in this State, the Board may temporarily or permanently appoint a person or entity as custodian of the physician’s patient records, in accordance with the procedures set forth in § 1732 of this title. (b) The custodian of patient records appointed under this section shall notify the physician’s patients of record to that effect by publishing notice in a newspaper of daily circulation in the area where the physician practiced. The notice must be published at least 1 time per month over a 3-month period after the appointment of the custodian and must explain how a patient can procure that patient’s records. All patients who have not requested their records 30 days after such publication must be notified by first-class mail by the custodian to permit the patients to procure their records. Any patient records that have not been procured within 7 years after the appointment of the custodian may be permanently disposed of in a manner that ensures confidentiality of the records. (c) A custodian of patient records appointed under this section 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. (d) The Board shall establish a registry of physicians and healthcare entities who are willing to serve as records custodians. (77 Del. Laws, c. 325, § 22; 81 Del. Laws, c. 97, § 6.) § 1762 Reports of treatment of certain wounds, injuries, poisonings, or other conditions; failure to report; penalty. (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 attending or treating person was located at the time of treatment or where the 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 $100 nor more than $2,500. (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. (24 Del. C. 1953, § 1762; 50 Del. Laws, c. 369, § 1; 65 Del. Laws, c. 123, § 1; 75 Del. Laws, c. 141, § 1.) § 1763 Reports of persons who are subject to losses of consciousness; limitation on use; failure; penalty. Every physician attending or treating persons who are subject to losses of consciousness due to disease of the central nervous system shall report within 1 week to the Division of Motor Vehicles the names, ages and addresses of all such persons unless such person’s infirmity is under sufficient control to permit the person to operate a motor vehicle with safety to person and property. The reports shall be for the information of the Division of Motor Vehicles in enforcing the Motor Vehicle Law. Said reports shall be kept confidential and used solely for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this State. A physician failing to make such a report shall be fined not less than $5.00 nor more than $50 and costs for each such report the physician fails to make. (24 Del. C. 1953, § 1763; 50 Del. Laws, c. 369, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 451, §§ 1, 2; 75 Del. Laws, c. 141, § 1.) § 1764 State revenue. 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. (20 Del. Laws, c. 40, § 19; Code 1915, § 853; Code 1935, § 934; 24 Del. C. 1953, § 1765; 49 Del. Laws, c. 235; 50 Del. Laws, c. 369, § 1; 75 Del. Laws, c. 141, § 1.) § 1764A Prescription requirements [Effective until Jan. 1, 2021]. No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: (1) The name, address and phone number of the prescriber; Page 129 Title 24 - Professions and Occupations (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (75 Del. Laws, c. 161, § 4.) § 1764A Prescription requirements [Effective Jan. 1, 2021]. (a) No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed: (1) The name, address and phone number of the prescriber; (2) The name and strength of the drug prescribed; (3) The quantity of the drug prescribed; (4) The directions for use of the drug; (5) Date of issue. (b) Notwithstanding any other provision of this section or any other law to the contrary, no person licensed under this chapter shall issue any prescription unless such prescription is made by electronic prescription from the person issuing the prescription to a pharmacy in accordance with regulations established by the Board, except for prescriptions issued: (1) By a veterinarian. (2) In circumstances where electronic prescribing is not available due to temporary technological or electrical failure, as set forth in regulation established by the Board. (3) By a practitioner to be dispensed by a pharmacy located outside the State, as set forth in regulations established by the Board. (4) When the prescriber and dispenser are the same entity. (5) That include elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard. (6) By a practitioner for a drug that the Federal Food and Drug Administration requires the prescription to contain certain elements that are not able to be prescribed with electronic prescribing. (7) By a practitioner allowing for the dispensing of a nonpatient specific prescription pursuant to a standing order, approved protocol for drug therapy, collaborative drug management or comprehensive medication management, in response to a public health emergency, or other circumstances where the practitioner may issue a nonpatient specific prescription. (8) By a practitioner prescribing a drug under a research protocol. (9) By practitioners who have received a waiver or a renewal thereof for a specified period determined by the Board, not to exceed 1 year, from the requirement to use electronic prescribing, pursuant to regulations established by the Board, due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner. (10) By a practitioner under circumstances where, notwithstanding the practitioner’s present ability to make an electronic prescription as required by this subsection, such practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient’s medical condition. (c) A pharmacist who receives a written, oral or faxed prescription is not required to verify that the prescription properly falls under 1 of the exceptions under subsection (b) of this section, from the requirement to electronically prescribe. Pharmacists may continue to dispense medications from otherwise valid written, oral or fax prescriptions that are otherwise legal. (75 Del. Laws, c. 161, § 4; 82 Del. Laws, c. 75, § 3.) § 1765 Construction of chapter relating to the ADA. This chapter may not be construed to conflict with, replace, restrict, or supersede applicable provisions of the Americans with Disabilities Act (ADA) [42 U.S.C. § 12101 et seq.. If a provision of this chapter is in conflict with an applicable provision of the ADA, the applicable provision of the ADA controls the interpretation of the chapter. (75 Del. Laws, c. 141, § 1.) § 1766 Penalties [See conflicting amendment, unable to be implemented, in 75 Del. Laws, c. 161, § 5.] (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 IX 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) A person who violates a provision of this chapter for which a penalty is not specified is guilty of a class B misdemeanor. (d) The Attorney General of this State or a deputy attorney general shall enforce the provisions of this chapter. Page 130 Title 24 - Professions and Occupations (e) The Superior Court has exclusive original jurisdiction over violations of the criminal provisions of this chapter. (20 Del. Laws, c. 40, § 17; Code 1915, § 854; Code 1935, § 935; 24 Del. C. 1953, § 1766; 49 Del. Laws, c. 234; 50 Del. Laws, c. 369, § 1; 57 Del. Laws, c. 145, § 3; 57 Del. Laws, c. 344; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 5.) § 1767 Emergency care at the scene of an emergency. 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. (24 Del. C. 1953, § 1767; 54 Del. Laws, c. 225; 75 Del. Laws, c. 141, § 1.) § 1768 Immunity of boards of review; confidentiality of review board record. (a) The Board of Medical Licensure and Discipline 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, 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, osteopathic, or other 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 otherwise regulated by this chapter, or who has been certified under this chapter or who has attempted to be certified under this chapter. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board’s ability to protect the public interest. 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 Licensure and Discipline pursuant to § 1731A(d) of this title, or issued by the Attorney General pursuant to § 2504(4) of Title 29, nor may it be construed to limit access to records by rights-protection agencies whose access is authorized by federal law. Notwithstanding the foregoing, in cases in which any disciplinary action by the Board was issued, the formal complaints prepared by the Delaware Department of Justice and the results of the hearings are not confidential and are public records except insofar as they contain confidential patient information or are otherwise subject to an exception under Chapter 100 of Title 29. (24 Del. C. 1953, § 1768; 57 Del. Laws, c. 492; 58 Del. Laws, c. 50; 58 Del. Laws, c. 226; 60 Del. Laws, c. 462, § 3; 62 Del. Laws, c. 90, § 2; 66 Del. Laws, c. 358, § 1; 67 Del. Laws, c. 226, § 18; 69 Del. Laws, c. 129, § 1; 71 Del. Laws, c. 102, § 25; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, §§ 20, 21.) § 1769 Disclosure of laboratory costs. 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. (59 Del. Laws, c. 326, § 1; 75 Del. Laws, c. 141, § 1.) § 1769A Required warning to pregnant women of possible effects of using alcohol, cocaine, or other narcotics. (a) A person certified to practice medicine who treats, advises, or counsels pregnant women for matters relating to the pregnancy 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. Page 131 Title 24 - Professions and Occupations (b) A person who treats, advises, or counsels pregnant women pursuant to subsection (a) of this section and who is 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. (68 Del. Laws, c. 78, § 2; 70 Del. Laws, c. 147, § 28; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1.) § 1769B Treatment or examination of minors. (a) A parent, guardian or other caretaker, or an adult staff member, shall be present when a person licensed to practice medicine under this chapter provides outpatient treatment to a minor patient who is disrobed or partially disrobed or during an outpatient physical examination involving the breasts, genitalia or rectum, regardless of sex of the licensed person and patient, except when rendering care during an emergency. When using an adult staff member to observe the treatment or examination, the adult staff member shall be of the same gender as the patient when practicable. The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the person licensed to practice medicine without the presence of a third person after the physical examination. Every hospital and long-term care facility that provides treatment to minors shall develop and implement policies regarding the treatment of minor patients that are consistent with the purposes of this section and will submit those policies for approval by the Department of Health and Social Services. Violations of approved policies will be treated as a violation of this section. (b) When a minor patient is to be disrobed, partially disrobed or will undergo a physical examination involving the breasts, genitalia or rectum, a person licensed to practice medicine under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which minor patients and their parent, guardian or other caretaker are made aware of the notice. In circumstances in which the posting or the provision to the patient of the written notice would not convey the right to have a chaperone present, the person licensed to practice medicine shall use another means to ensure that the patient or person understands the right under this section. (c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, “adult staff member” is defined as a person 18 years of age or older who acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter, “hospital” has the meaning prescribed by Chapter 10 of Title 16, and “long-term care facility” has the meaning prescribed by Chapter 11 of Title 16. (d) The person licensed under this chapter that provides outpatient treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child’s medical record the name of each person present when such treatment is being provided. (77 Del. Laws, c. 322, § 2; 81 Del. Laws, c. 207, § 7.) § 1769C Physician practices with multiple offices. If a physician practice has multiple offices, a physician member of that practice shall visit each office periodically, as frequently as needed but at least once per month, for purposes of ensuring that the office is managed properly and patient care is appropriate. (78 Del. Laws, c. 387, § 1.) § 1769D Telemedicine and telehealth. (a) Physicians may practice telemedicine and telehealth. Provided that telemedicine shall not be utilized by a physician with respect to any patient in the absence of a physician-patient relationship, except for the instances in subsection (k) of this section. (b) Physicians who utilize telemedicine shall, if such action would otherwise be required in the provision of the same service not delivered via telemedicine, ensure that a proper physician-patient relationship is established either in-person or through telehealth which includes but is not limited to: (1) Fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient; (2) Disclosing and validating the provider’s identity and applicable credential or credentials; (3) Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies as indicated in paragraph (b)(5) of this section; (4) Establishing a diagnosis through the use of acceptable medical practices, such as patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided; (5) Discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; (6) Ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care; and (7) Providing a written visit summary to the patient. (c) Treatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (encounter in person) settings. (d) The physician treating a patient through telemedicine must maintain a complete record of the patient’s care which must follow all applicable state and federal statutes and regulations for recordkeeping, confidentiality, and disclosure to the patient. (e) Telemedicine shall include, at such time as feasible and when appropriate, utilizing the Delaware Health Information Network (DHIN) in connection with the practice. Page 132 Title 24 - Professions and Occupations (f) Without a prior and proper patient-provider relationship, as provided in subsection (b) of this section, providers are prohibited from issuing prescriptions solely in response to an Internet questionnaire, an Internet consult, or a telephone consult. (g) Prescriptions made through telemedicine and under a physician-patient relationship may include controlled substances, subject to limitations as set by the Board. (h) Physicians using telemedicine technologies to provide medical care to patients located in Delaware must, prior to a diagnosis and treatment, either provide: (1) An appropriate examination in-person; (2) Have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis; (3) The diagnosis must be based using both audio and visual communication; or (4) The service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies. (i) After a physician-patient relationship is properly established in accordance with this section, subsequent treatment of the same patient with the same physician need not satisfy the limitations of this section. (j) Nothing in this section shall be construed to limit the practice of radiology or pathology. (k) Telemedicine may be practiced without a physician-patient relationship during: (1) Informal consultation performed by a physician outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation; (2) Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance; or (3) Episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a licensed health-care professional. (80 Del. Laws, c. 80, § 3; 81 Del. Laws, c. 65, § 1.) Subchapter VI Physician Assistants § 1770 The Regulatory Council for Physician Assistants. (a) The Regulatory Council for Physician Assistants (Council) shall consist of 7 voting members, 1 of whom is a physician member appointed by the Board, 1 of whom is a physician who regularly supervises physician assistants appointed by the Board, and 1 of whom is a pharmacist appointed by the Board of Pharmacy. The remaining 4 members, appointed by the Board, must be practicing physician assistants, subject to the same causes for removal as a physician member of the Board except that the requirement for certification and registration to practice medicine is replaced by licensure as a physician assistant. The Council may elect officers as necessary. (b) Each Council member shall be appointed for a term of 3 years and may succeed himself or herself for 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, a member whose term of office has expired remains eligible to serve until replaced by the Board. A person who has never served on the Council may be appointed for 2 consecutive terms, but that person is thereafter ineligible for appointment to the Council except as hereinafter provided. A person who has twice been appointed to the Council or who has served on the Council for 6 years within any 9-year period may not again be appointed until an interim period of at least 1 year has expired since the person last served. The members of the Council are to be compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation and may be reimbursed for meeting-related travel expenses at the State’s approved rate. 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 physician assistants. (c) The Council, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29], shall promulgate rules and regulations governing the practice of physician assistants, subject to approval of the Board. The Board must approve or disapprove any proposed rule or regulation within 60 days of submission by the Council. If the Board fails to approve or disapprove the proposed rules or regulations within 60 days, the proposed rule or regulation is deemed approved by the Board. (d) The Council shall meet at least on a quarterly basis and at other such times as license applications are pending. The Council shall evaluate the credentials of all applications for licensure as a physician assistant in this State, in order to determine whether the applicant meets the qualifications for licensure set forth in this chapter. The Council shall present to the Board the names of individuals qualified for licensing, shall review and consider disciplinary complaints and recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations. (e) The Regulatory Council for Physicians Assistants, by the affirmative vote of 4 of its members and with the approval of the Board within 30 days of the vote, may waive the quarterly meeting requirements of this subchapter. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 319, § 1; 78 Del. Laws, c. 387, § 2; 81 Del. Laws, c. 97, § 7.) Page 133 Title 24 - Professions and Occupations § 1770A Physician assistants; definitions. As used in this subchapter: (1) “Delegated medical acts” means healthcare activities and duties delegated to a physician assistant by a supervising physician. (2) “Physician assistant” or “PA” means an individual who: a. Has graduated from a physician assistant or surgeon assistant program which is accredited by the Accreditation Review Commission on Education for the Physician Assistant (ARC-PA) or, prior to 2001, 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, or has passed the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants prior to 1986; b. Has a baccalaureate degree or the equivalent education to a baccalaureate degree, as determined by the Council and the Board; c. Has passed a national certifying examination acceptable to the Regulatory Council for Physician Assistants and approved by the Board; d. Is licensed under this chapter to practice as a physician assistant; and e. Has completed any continuing education credits required by rules and regulations developed under this chapter. (3) “Supervision of physician assistants” means the ability of the supervising physician to provide or exercise control and direction over the services, activities, and duties of a physician assistant and to be available for consultation with the physician assistant during the time of the patient encounter with the physician assistant, if necessary to provide advice on the ongoing care of the patient. 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. (68 Del. Laws, c. 147, § 2; 68 Del. Laws, c. 345, § 1; 69 Del. Laws, c. 355, §§ 3-5; 71 Del. Laws, c. 102, § 26; 74 Del. Laws, c. 262, § 30A; 75 Del. Laws, c. 141, § 1; 78 Del. Laws, c. 387, § 2.) § 1771 Physician’s duties in supervision of a physician assistant. (a) A physician who delegates medical acts to a physician assistant is responsible for the physician assistant’s medical acts and must provide adequate supervision. Adequate supervision will depend on the nature of the practice setting and the experience of the physician assistant. It is the obligation of each team of physician(s) and physician assistant(s) to ensure that the physician assistant’s scope of practice is identified, that delegation of medical tasks is appropriate to the physician assistant’s level of competence, that the relationship of, and access to, the supervising physician is defined, and that a process for evaluation of the physician assistant’s performance is established. (b) Each physician-physician assistant team, hospital, clinic, medical group, or other healthcare facility shall be responsible for creating a written agreement, which shall be kept on file at the primary location where the physician assistant provides care, describing the information required by subsection (a) of this section. The written agreement shall be made available to the Board or the Council upon request. (c) A supervising physician may not delegate a medical act to a physician assistant who, by statute or professional regulation, is prohibited from performing the act. (d) A supervising physician may not be involved in patient care in name only. (e) A supervising physician may not delegate medical acts to a physician assistant that exceed the physician’s scope of practice. (f) A supervising physician may not at any given time supervise more than 4 physician assistants, unless a regulation of the Board increases or decreases the number. (g) 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 Licensure and Discipline for permitting the unauthorized practice of medicine. (h) Hospitals, clinics, medical groups and other healthcare facilities may employ physician assistants; however, no more than 4 physician assistants may at any given time be employed and supervised for each physician practicing in the same facility unless a regulation of the Board increases or decreases the number. (i) If the supervising physician delegates the authority to a physician assistant to treat patients in a setting where the supervising physician is not routinely present the physician must assure that the means and methods of supervision are adequate to assure appropriate patient care. This may include telecommunication, chart review, or other methods of communication and oversight that are appropriate to the care setting and the education and experience of the physician assistant. The supervision plan must be detailed in the practice agreement and made available to the Board or Council upon request. Failure to have a supervision plan or failure to provide quality patient care due to lack of adequate supervision constitutes grounds for discipline. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 319, § 1; 78 Del. Laws, c. 387, § 2.) § 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 the physician assistant’s supervising physician. Page 134 Title 24 - Professions and Occupations (b) A physician assistant may not engage in diagnosis, prescribe or dispense legend drugs or therapeutics, or practice medicine or surgery or perform refractions in any setting independent of the supervision of a physician who is certified to practice medicine. (c) A physician assistant may not assign a delegated medical act to another individual without the supervising physician’s authorization. (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 code unless the physician assistant is certified, licensed, registered, or otherwise authorized to practice the other profession. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 387, § 2.) § 1773 Regulation of physician assistants. (a) The Council shall adopt rules and regulations which address the following: (1) The licensing of physician assistants to allow: a. The performance of delegated medical acts within the education, training, and experience of physician assistants; and b. The performance of services customary to the practice of the supervising physician; (2) Delegated medical acts provided by physician assistants to include, but not be limited to: a. The performance of complete patient histories and physical examinations; b. The recording of patient progress notes in an outpatient setting; c. The relaying, transcribing, or executing of specific diagnostic or therapeutic orders; d. Medical acts of diagnosis and prescription of therapeutic drugs and treatments which have been delegated by the supervising physician; e. Prescriptive authority for therapeutic drugs and treatments within the scope of physician assistant practice, as delegated by the supervising physician. The physician assistant’s prescriptive authority and authority to practice as a physician assistant are subject to biennial renewal upon application to the Physician Assistant Regulatory Council; and f. The use of telemedicine as defined in this chapter and, as further described in regulation, the use of and participation in telehealth. (b) (1) The Board, in conjunction with the Regulatory Council for Physician Assistants, shall suspend, revoke, or restrict the license of a physician assistant or take disciplinary action or other action against a physician assistant for engaging in unprofessional conduct as defined in § 1731(b) of this title; or for the inability to render delegated medical acts with reasonable skill or safety to patients because of the physician assistant’s physical, mental, or emotional illness or incompetence, including but not limited to: deterioration through the aging process, or loss of motor skills, 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; for failing to report in writing to the Board within 30 days of becoming aware of any physician, physician assistant, or healthcare provider who the licensee reasonably believes has engaged in unprofessional conduct as defined in § 1731(b) of this title or is unable to act with reasonable skill or safety to patients because of the physician’s, physician assistant’s, or other healthcare provider’s physical, mental, or emotional illness or incompetence, including but not limited to deterioration through the aging process, or loss of motor skills, or excessive use of drugs, including alcohol for failing to report child abuse and neglect as required by § 903 of Title 16. The license of any physician assistant who is convicted of a felony sexual offense shall be revoked. Disciplinary action or other 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 IV of this chapter, except that a hearing panel for a complaint against a physician assistant consists of 3 unbiased members of the Regulatory Council, the 3 members being 2 physician assistant members and 1 physician or pharmacist member if practicable. A person reporting 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. (2) a. If the Board or the Regulatory Council for Physician Assistants receives a formal or informal complaint concerning the activity of a physician assistant and the Regulatory Council members reasonably believe that the activity presents a clear and immediate danger to the public health, the Regulatory Council may issue an order temporarily suspending the physician assistant’s license to practice pending a hearing upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Council Chair or the Chair’s designee. An order temporarily suspending a license to practice may not be issued by the Council unless the physician assistant or the physician assistant’s attorney received at least 24 hours’ written or oral notice prior to the temporary suspension so that the physician assistant or the physician assistant’s attorney can be heard in opposition to the proposed 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 temporarily suspended physician assistant requests a continuance of the hearing date. If the physician assistant requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered. Page 135 Title 24 - Professions and Occupations b. A physician assistant whose license to practice 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 physician assistant or sent by certified mail, return receipt requested, to the physician assistant’s last known address. c. A physician assistant whose license to practice has been temporarily suspended pursuant to this section may request an expedited hearing. The Council shall schedule the hearing on an expedited basis, provided that the Council receives the request within 5 calendar days from the date on which the physician assistant received notification of the decision of the Council, with the approval of the Board, to temporarily suspend the physician assistant’s license to practice. d. As soon as possible after the issuance of an order temporarily suspending a physician assistant’s license to practice pending a hearing, the Executive Director shall appoint a 3-member hearing panel. After notice to the physician assistant 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 to consider the evidence regarding the matters alleged in the complaint. If the physician assistant requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Council. The 3-member panel shall proceed to a hearing 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 Board 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 physician assistant 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. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, § 19; 78 Del. Laws, c. 149; 78 Del. Laws, c. 387, § 2; 80 Del. Laws, c. 80, § 4; 81 Del. Laws, c. 97, § 8.) § 1773A Participation in disaster or emergency care. (a) A physician assistant licensed in this State or licensed or authorized to practice in any other U.S. jurisdiction or credentialed as a physician assistant by a federal employer who is responding to a need for medical care created by an emergency or a state or local disaster (excluding an emergency which occurs in that person’s place of employment or practice) may render such care that he or she is able to provide without supervision pursuant to § 1770A of this title or with such supervision as is available. (b) Any physician who supervises a physician assistant providing medical care in response to such an emergency or state or local disaster shall not be required to meet the requirements set forth in this subchapter for a supervising physician. (c) A person licensed as a physician assistant under this chapter who, in good faith and without gross or wanton negligence, renders emergency care at the scene of an emergency, excluding an emergency which occurs in that person’s place of employment or practice, shall not be liable for civil damages as a result of any acts or omissions in rendering the emergency care. (78 Del. Laws, c. 387, § 2; 70 Del. Laws, c. 186, § 1.) § 1774 Temporary licensing of physician assistants. (a) Notwithstanding any provision of this subchapter to the contrary, the Executive Director, with the approval of a Council member, may grant a temporary license to an individual who has graduated from a physician or surgeon assistant program which has been accredited by the Accreditation Review Commission on Education for the Physician Assistant (ARC-PA) or, prior to 2001, by the Committee on Allied Health Education and Accreditation (CAHEA) of the American Medical Association (AMA) or a successor agency and who otherwise meets the qualifications for licensure 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 license granted 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 license granted pursuant to this subsection must be immediately rescinded until the individual successfully qualifies for licensure pursuant to this subchapter. (b) An individual who is temporarily licensed pursuant to this section may not have a prescriptive practice and may not perform delegated medical acts except in the physical presence of the individual’s supervising physician. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 387, § 2; 81 Del. Laws, c. 97, § 9.) § 1774A Fees set by Board. The Division of Professional Regulation shall establish fees for licensing physician assistants, for renewing licenses on a biennial basis, and for other regulatory purposes. The fees must approximate the costs reasonably necessary to defray the actual expenses of the Board and the regulatory council, as well as the proportional expenses incurred by the Division in administering the issuance and renewal of licenses, and other regulation of physician assistants. (75 Del. Laws, c. 141, § 1; 78 Del. Laws, c. 387, § 2.) Page 136 Title 24 - Professions and Occupations § 1774B Prohibited acts; penalties; enforcement. (a) A person may not practice as a physician assistant in this State or represent that the person is a physician assistant or knowingly allow himself or herself to be represented as a physician assistant unless the person is licensed under this subchapter, except as otherwise provided in this chapter. (b) A person who, contrary to the provisions of this subchapter, practices or attempts to practice as a physician assistant within the State or represents that the person is a physician assistant or knowingly allows himself or herself to be represented as a physician assistant shall be fined not less than $500 nor more than $2,000 or imprisoned not more than 1 year, or both. (c) The Attorney General of this State or a deputy attorney general shall enforce the provisions of this subchapter. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 387, § 2.) § 1774C Procedure or action not prescribed. This subchapter governs the practice of physician assistants. If a procedure or action is not specifically prescribed in this subchapter, but is prescribed in the subchapters relating to the practice of medicine, and the procedure or action would be useful or necessary for the regulation of physician assistants, the Board or Council may, in its discretion, proceed in a manner prescribed for physicians in the practice of medicine. (75 Del. Laws, c. 141, § 1; 78 Del. Laws, c. 387, § 2.) § 1774D Inactive license; return to clinical practice. (a) Any physician assistant who notifies the Board in writing on forms prescribed by the Board may elect to place his or her license on inactive status. A physician assistant whose license is inactive shall be excused from payment of renewal fees and shall not practice as a physician assistant. Any licensee who engages in practice while his or her license is inactive shall be considered to be practicing without a license, which shall be grounds for discipline under § 1774B of this title. A physician assistant whose license has been inactive for 3 years or less may reactivate the license by paying the renewal fee pursuant to § 1774A of this title and meeting the requirements for ordinary license renewal as determined by the Board. (b) If a physician assistant whose license has been on inactive status for in excess of 3 years and who has not practiced as a physician assistant in any jurisdiction of the United States for over 3 years requests to reactivate his or her license, the Board may grant a re-entry license and may, after consultation with the Council, impose additional practice and supervision requirements for the re-entry license. A re-entry license granted under this subsection shall be valid for no longer than 6 months and may be renewed only once at the Board’s discretion. In the month immediately preceding the month during which the re-entry license will expire, a physician assistant may apply to the Board for a full license as a physician assistant. The Board shall grant a full license to a physician assistant who meets all qualifications for licensure and whom the Board determines is qualified to practice. If the Board determines that a physician assistant is still not qualified to receive a full license at the conclusion of the re-entry license period, the Board may only once renew the re-entry license. If the Board elects to renew a re-entry license instead of issuing a full license, the Board shall provide to the physician assistant a written explanation for that decision when issuing the renewed re-entry license. Additional practice requirements that the Board may choose to impose as a condition of a re-entry license may include: (1) Requiring the supervising physician to be physically on-site while the physician assistant is practicing; (2) Requiring the supervising physician to review and countersign a portion of patient charts for patients seen by the physician assistant; (3) Requiring the physician assistant to possess current certification from the NCCPA; (4) Requiring the physician assistant to take a review course or to complete a specified amount of Category 1 CME, as determined by the Council and agreed upon by the Board as appropriate; and (5) Requiring documentation of a specific minimum number of clinical practice hours performed under the re-entry license. (c) The above subsection (b) of this section shall also apply to a physician assistant who has not placed his or her license on inactive status in this State but who has previously practiced as a physician assistant in another jurisdiction of the United States and has not actively engaged in clinical practice for a period in excess of 3 years immediately prior to applying for a license under this subchapter. (78 Del. Laws, c. 387, § 2; 70 Del. Laws, c. 186, § 1.) Subchapter VII Respiratory Care Practitioners § 1775 Respiratory Care Advisory Council. (a) The Respiratory Care Advisory Council (Council) consists of 7 members, 1 of whom is a physician member of the Board of Medical Licensure and Discipline. The remaining 6 council members are individuals trained in respiratory care who have been licensed and primarily employed in the practice of respiratory care in this State for at least 2 of the 3 years immediately prior to appointment. The Council may elect officers as necessary. Page 137 Title 24 - Professions and Occupations (b) 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. 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, a Council member whose term of office has expired 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 9year 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. (c) 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 Licensure and Discipline. 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. (d) 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. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 319, § 1; 81 Del. Laws, c. 97, § 10.) § 1776 Respiratory care practitioners. (a) As used in this subchapter: (1) “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. (2) “Respiratory care practitioner” or “RCP” means an individual who practices respiratory care in accord with the requirements of this subchapter; (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 a person certified to practice medicine, or by orders written or verbally given by a person certified to practice medicine. A respiratory care practitioner may evaluate patients and make decisions within parameters defined by a person certified to practice medicine and by the Board of Medical Licensure and Discipline. 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 via the respiratory route; (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 and developing protocols in respiratory disorders; (9) Performing pulmonary function studies; and (10) The use of telemedicine as defined in this chapter and, as further described in regulation, the use of and participation in telehealth. (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 is licensed pursuant to this subchapter, who is not being investigated or sanctioned in relation to unprofessional conduct or physical, mental, emotional, or other impairment, and 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. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 203, § 1; 72 Del. Laws, c. 171, § 1; 74 Del. Laws, c. 262, § 30B; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 5.) § 1777 Licensure. (a) The requirements for licensure by the Board 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 Page 138 Title 24 - Professions and Occupations (2) The applicant must possess a current license in a state which has licensing requirements equal to or exceeding the requirements of this subchapter, and there may not be any outstanding or unresolved complaints pending against the applicant; (3) The applicant: a. May not have been assessed any administrative penalties regarding the applicant’s 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 b. May not have entered into a consent agreement which contains conditions placed by a Board or other authority on the applicant’s professional conduct or practice, including the voluntary surrender of the applicant’s license while under investigation for misconduct. However, the Board may, after a hearing, waive the requirement of paragraph (a)(3)a. of this section if the administrative 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 with reasonable skill and safety; (5) The applicant may not have been convicted of or may not have admitted under oath to having committed a crime substantially related to the practice of respiratory care. “Substantially related” means that the nature of the criminal conduct for which the person was convicted or to which the person admitted under oath has a direct bearing on the person’s fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of respiratory care. The Board shall promulgate regulations specifically identifying the crimes which are substantially related to the practice of respiratory care; (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. (b) Waiver of requirements. — The Respiratory Care Advisory Council, by the affirmative vote of 5 of its members and with the approval of the Board within 30 days of the vote, may waive any of the requirements of subsection (a) of this section if its finds all of the following by clear and convincing evidence: (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 respiratory care in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; (4) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service; and (5) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (c) 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. (d) Temporary license. — The Executive Director of the Board, with the approval of a member of the 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. (e) License suspension, revocation, or nonrenewal. — (1) The Council, after appropriate notice and hearing, may recommend to the Board of Medical Licensure and Discipline that the Board revoke, suspend, or refuse to issue a license, or place the licensee on probation, or otherwise discipline a licensee found guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, fraud, deceit, incompetence, gross negligence, dishonesty, or other behavior in the licensee’s professional activity which is likely to endanger the public health, safety, or welfare. The Council and Board may take necessary action against a respiratory care practitioner who is unable 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 or other action taken against a respiratory care practitioner must be in accordance with the procedures for disciplinary and other actions against physicians, including appeals as set forth in subchapter IV of this chapter, except that a hearing panel for a complaint against a respiratory care practitioner consists of 3 unbiased members of the Regulatory Council, the 3 members being the chair of Council and 2 other members, if practicable. (2) a. If the Board or the Respiratory Care Advisory Council receives a formal or informal complaint concerning the activity of a respiratory care practitioner and the Council members reasonably believe that the activity presents a clear and immediate danger to Page 139 Title 24 - Professions and Occupations the public health, the Council may issue an order temporarily suspending the respiratory care practitioner’s license to practice pending a hearing upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of this Council Chair or the Chair’s designee. An order temporarily suspending a license to practice may not be issued by the Council unless the respiratory care practitioner or the respiratory care practitioner’s attorney received at least 24 hours’ written or oral notice prior to the temporary suspension so that the respiratory care practitioner or the respiratory care practitioner’s attorney can be heard in opposition to the proposed 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 temporarily suspended respiratory care practitioner requests a continuance of the hearing date. If the respiratory care practitioner requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered. b. A respiratory care practitioner whose license to practice 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 respiratory care practitioner or sent by certified mail, return receipt requested, to the respiratory care practitioner’s last known address. c. A respiratory care practitioner whose license to practice has been temporarily suspended pursuant to this section may request an expedited hearing. The Council shall schedule the hearing on an expedited basis, provided that the Council receives the request within 5 calendar days from the date on which the respiratory care practitioner received notification of the decision of the Council, with the approval of the Board, to temporarily suspend the respiratory care practitioner’s license to practice. d. As soon as possible after the issuance of an order temporarily suspending a respiratory care practitioner’s license to practice pending a hearing, the Council President shall appoint a 3-member hearing panel. After notice to the respiratory care practitioner pursuant to paragraph (e)(2)b. of this section, the hearing panel shall convene within 60 days of the date of the issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If the respiratory care practitioner requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Council. The 3-member panel shall proceed to a hearing 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 Board 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 respiratory care practitioner 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. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 436, § 14; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, § 19; 78 Del. Laws, c. 44, §§ 18, 19; 81 Del. Laws, c. 97, § 11.) § 1777A Procedure or action not prescribed. This subchapter governs the practice of respiratory care practitioners. If a procedure or action is not specifically prescribed in this subchapter, but is prescribed in the subchapters relating to the practice of medicine, and the procedure or action would be useful or necessary for the regulation of respiratory care practitioners, the Board may, in its discretion, proceed in a manner prescribed for physicians in the practice of medicine. (75 Del. Laws, c. 141, § 1.) § 1778 Fees; license renewal. 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. (75 Del. Laws, c. 141, § 1.) § 1779 Prohibited acts; penalties; enforcement. (a) A person may not practice respiratory care in this State or represent that the person is a respiratory care practitioner or knowingly allow himself or herself to be represented as a respiratory care practitioner unless the person is licensed under this subchapter, except as otherwise provided in this chapter. (b) A person who, contrary to the provisions of this subchapter, practices or attempts to practice respiratory care within the State or represents that the person is a respiratory care practitioner or knowingly allows himself or herself to be represented as 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. (c) The Office of the Attorney General is charged with the enforcement of this subchapter. (d) Notwithstanding the provisions of subsection (a) of this section, a respiratory therapist having a current license issued in another state or the District of Columbia may provide respiratory care within their scope of practice in connection with the interstate transport of a patient without obtaining a license to practice respiratory care in this State. This exemption is limited to the immediate transport need. (75 Del. Laws, c. 141, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 130, § 1.) Page 140 Title 24 - Professions and Occupations § 1779A Duty to report conduct that constitutes grounds for discipline or inability to practice. (a) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other health-care provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other health-care provider’s licensing statute. (b) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other health-care provider may be unable to practice with reasonable skill and safety to the public by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive abuse of drugs, including alcohol. (c) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation any information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to clients by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. (d) All reports required under subsections (a), (b) and (c) of this section must be filed within 30 days of becoming aware of such information. A person reporting 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. (81 Del. Laws, c. 97, § 12.) Subchapter VIII Parental Notice of Abortion Act § 1780 Short title. This subchapter shall be known and may be cited as the “Parental Notice of Abortion Act.” (70 Del. Laws, c. 238, § 1.) § 1781 Legislative purpose and findings. (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. (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1782 Definitions. For purposes of this subchapter, the following definitions will apply. Page 141 Title 24 - Professions and Occupations (1) “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. (2) “Coercion” means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter. (3) “Emancipated minor” means any 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. (4) “Licensed mental health professional” means a person licensed under the Division of Professional Regulation of the State as a: (a) Psychiatrist; (b) Psychologist; or (c) Licensed professional counselor of mental health. (5) “Medical emergency” means that condition which, on the basis of the physician or other medically authorized person’s good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion 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. (6) “Minor” means a female person under the age of 16. (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1783 Notice required. No physician or other medically authorized person shall perform an abortion upon an unemancipated minor until complying with the following notification provisions: (1) No physician or other medically authorized person shall perform an abortion upon an unemancipated minor unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has given at least 24 hours actual notice to one or both parents (either custodial or noncustodial), a grandparent, a licensed mental health professional (who shall 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, medically authorized person, or an agent of the physician or of the medically authorized person has received a written statement or oral communication from another physician or 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 guardian, the person so contacted must explain to the minor the options available to her include 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 minor subject to the evaluation 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. a. No physician or other abortion provider shall charge a referral fee to a person authorized under this section to receive notice; nor shall a person authorized under this section to receive notice charge a referral fee to a physician or other abortion provider. b. Nothing in this section shall affect the obligations of a person pursuant to other provisions of this Code to report instances of child abuse to the appropriate government agencies. (2) A 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 title. A physician who has received a copy of a court order granting a waiver application under § 1784 of this title shall not, at any time, give notice of the minor’s abortion to any person without the minor’s written permission. (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1784 Application for waiver of parental notice requirement; grounds; timeliness of decision; notice of decision; appeals; costs. (a) The Court shall consider waiving the notice requirement of § 1783 of this title upon the proper application of a minor. The application shall be in writing, signed by the minor, and verified by her oath or affirmation before a person authorized to perform notarial acts. It shall designate: (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) That the minor is pregnant; (4) That the minor desires to obtain an abortion; (5) 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 § 1783 of this title be waived. Page 142 Title 24 - Professions and Occupations (b) The Court, by a judge, shall grant the written application for a waiver if the facts recited in the application establish that the minor is mature and well-informed enough to make the abortion decision on her own or that it is in the best interest of the minor that notification pursuant to § 1783 of this title be waived. The Court shall presume that married parents not separated and grandparents 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 grandparent shall 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 shall be deemed granted; in which case, on the sixth day, the Court shall issue an order stating that the application is deemed granted. (d) The Court shall mail 3 copies of any order to the mailing address identified in the application on the day the order issues, shall attempt to notify the minor by telephone on the day the order issues, and if so requested, shall make copies of the order available at Court chambers for the minor. (e) An expedited appeal to the Supreme Court shall be available to any minor whose petition is denied by a judge of the Family Court. Notice of intent to appeal shall be given within 2 days of the receipt of actual notice of the denial of the petition. 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 subsection (d) of this section. (f) No court shall 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. (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1785 Short form of affidavit and application for waiver of parental notice requirement. The following shall be sufficient form of affidavit and application for waiver of parental notice requirement under this subchapter: IN THE FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR (NAME OF COUNTY) COUNTY IN THE MATTER (NAME OF MINOR APPLICANT), STATE OF DELAWARE __________ COUNTY, SS: ) ) ) ) ) ) ) ) AFFIDAVIT AND APPLICATION FOR WAIVER OF NOTICE OF ABORTION 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, 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 applicant minor) and leave telephone messages for the applicant minor at (phone number designated by applicant minor); (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 § 1783 of Title 24; (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 mature and well-informed enough and/or waiver of notice is in best interest based upon the applicant’s age and family circumstances and the long-term and short-term consequences to the applicant of termination or continuation of the pregnancy). WHEREFORE, this minor applicant intends to submit this affidavit and application for waiver of notice of abortion to the Family Court, and 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 Page 143 Title 24 - Professions and Occupations SWORN TO or affirmed and subscribed before me by the minor applicant/affiant this day of , A.D. . (Notary) (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1786 Coercion prohibited. No parent, guardian, or other person shall coerce a minor to undergo an abortion or to continue a pregnancy. Any 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. Should a minor be denied the financial support of her parents or legal guardian by reason of her refusal to undergo abortion or to continue a pregnancy, she shall be considered emancipated for purposes of eligibility for assistance benefits. (70 Del. Laws, c. 238, § 1; 70 Del. Laws, c. 186, § 1.) § 1787 Medical emergency exception. The requirements of § 1783, § 1784 and § 1786 of this title shall 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 an immediate abortion. (70 Del. Laws, c. 238, § 1.) § 1788 Counseling to affected persons. The Division of Prevention and Behavioral Health Services, 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 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 shall be provided to any person, nor shall the consent of any person thereto be required. (70 Del. Laws, c. 238, § 1; 77 Del. Laws, c. 327, § 210(a).) § 1789 Penalty and criminal jurisdiction. (a) Any 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 fails to conform to any requirement of this subchapter, shall be guilty of a class A misdemeanor. (b) The Superior Court shall have exclusive jurisdiction of violations of this section. (70 Del. Laws, c. 238, § 1.) § 1789A Notice and avoidance of liability. In any prosecution pursuant to § 1789 of this title, 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 on that physician’s part that actual notice was given by such physician (or other medically authorized person), that physician’s agent, or the referring physician or another medically authorized person to a person listed in § 1783(1) of this title as qualified to receive notice. In any civil case, the plaintiff must prove the absence of such a good faith belief by clear and convincing evidence. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 238, § 1.) § 1789B Civil damages available. Failure to give notice pursuant to the requirements of this subchapter is prima facie evidence of interference with family relations in appropriate civil actions. The law of this State shall not be construed to preclude the award of punitive damages in any civil action relevant to violations of this subchapter. Nothing in this subchapter shall be construed to limit the common law rights of parents. (70 Del. Laws, c. 238, § 1.) Subchapter IX Termination of Human Pregnancy § 1790 Termination of pregnancy before viability not prohibited; termination of pregnancy after viability limited. (a) A physician may terminate, assist in the termination of, or attempt the termination of a human pregnancy before viability. (b) A physician may not terminate, attempt to terminate, or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth after viability, unless, in the good faith medical judgment of the physician, the termination is necessary for the Page 144 Title 24 - Professions and Occupations protection of the woman’s life or health or in the event of a fetal anomaly for which there is not a reasonable likelihood of the fetus’s sustained survival outside the uterus without extraordinary medical measures. (24 Del. C. 1953, § 1790; 57 Del. Laws, c. 145, § 2; 57 Del. Laws, c. 235, §§ 1, 2; 58 Del. Laws, c. 511, § 55; 66 Del. Laws, c. 269, § 16; 70 Del. Laws, c. 149, § 211; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 35, § 2.) § 1791 Refusal to perform or submit to medical procedures. (a) No person shall be required to perform or participate in medical procedures which result in the termination of pregnancy; and the refusal of any person to perform or participate in these medical procedures shall not be a basis for civil liability to any person, nor a basis for any disciplinary or other recriminatory action against the person. (b) No hospital, hospital director or governing board shall be required to permit the termination of human pregnancies within its institution, and the refusal to permit such procedures shall not be grounds for civil liability to any person, nor a basis for any disciplinary or other recriminatory action against it by the State or any person. (c) The refusal of any person to submit to an abortion or to give consent shall not be grounds for loss of any privileges or immunities to which such person would otherwise be entitled, nor shall submission to an abortion or the granting of consent be a condition precedent to the receipt of any public benefits. (24 Del. C. 1953, § 1791; 57 Del. Laws, c. 145, § 2; 70 Del. Laws, c. 186, § 1.) § 1792 Assistance or participation in an unlawful termination of human pregnancy. No person shall, unless the termination of a human pregnancy has been authorized pursuant to § 1790 of this title: (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. (24 Del. C. 1953, § 1792; 57 Del. Laws, c. 145, § 2.) § 1793 Residency requirements; exceptions [Repealed]. (24 Del. C. 1953, § 1793; 57 Del. Laws, c. 145, § 3(A); 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 35, § 3, effective June 8, 2017.) § 1794 Consent prior to termination of human pregnancy [Repealed]. (62 Del. Laws, c. 171, § 1; 70 Del. Laws, c. 186, § 1; repealed by 81 Del. Laws, c. 35, § 4, eff. June 8, 2017 [Informed consent for a procedure under this subchapter is required by § 4408-1.0 through 10.0, Title 16 of the Delaware Administrative Code.]) § 1795 Live birth following abortion. (a) In the event an abortion or an attempted abortion results in the live birth of a child, the person performing or inducing such 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. (b) Nothing found in this section shall be deemed to preclude 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. Anyone who knowingly violates this section shall be guilty of a class A misdemeanor. (63 Del. Laws, c. 353, § 1.) Subchapter X Acupuncture and Eastern Medicine Practitioners § 1796 Acupuncture Advisory Council. (a) The Acupuncture Advisory Council (Council) consists of 5 voting members, and 1 ex officio member. The 5 voting members shall consist of 1 physician member of the Board of Medical Licensure and Discipline who possesses knowledge of acupuncture and 4 Council members licensed and trained in acupuncture or acupuncture and eastern medicine who have been primarily employed in the practice of acupuncture or acupuncture and eastern medicine in this State for at least 3 years immediately prior to appointment. The ex officio member shall be a Delaware physician who has expertise in acupuncture or acupuncture and eastern medicine. The Council may elect officers as necessary. (b) Each Council member is appointed by the Board of Medical Licensure and Discipline for a term of 3 years, and may succeed himself or herself for 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, a Council member whose term of office has expired 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 Page 145 Title 24 - Professions and Occupations appointment to the Council except as hereinafter provided. A person who has been twice appointed to the Council or who has served on the Council 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, other than the ex officio member, serving on the Council may not be an elected officer or a member of the board of directors of any professional association of acupuncture practitioners. The members of the Council are compensated at an appropriate and reasonable level as determined by the Division and may be reimbursed for meeting-related travel expenses at the State’s current approved rate. (c) The Council shall promulgate rules and regulations governing the practice of acupuncture and eastern medicine, after public hearing and subject to the approval of the Board of Medical Licensure and Discipline. The Board must approve or reject within a reasonable amount of time proposed rules or regulations submitted to it by the Council. (d) The Council shall meet quarterly, and at such other times as license applications are pending. The Council shall present to the Board the names of individuals qualified to be licensed and shall recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations. The Board shall approve or reject these recommendations within a reasonable time period. (76 Del. Laws, c. 261, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 101, § 1; 77 Del. Laws, c. 319, § 1; 78 Del. Laws, c. 139, § 1; 80 Del. Laws, c. 316, § 2; 81 Del. Laws, c. 97, § 13.) § 1797 Acupuncture practitioners. (a) As used in this subchapter: (1) “Acupuncture” is the stimulation of points on the body by the insertion and manipulation of acupuncture needles using both traditional and modern scientific methods of evaluation and point selection. It also refers to a form of health care, based on a theory of energetic physiology that describes and explains the interrelationship of the body organs or functions with an associated acupuncture point or combination of points located on “channels” or “meridians”. Acupuncture points shall include the classical points defined in authoritative acupuncture texts and special groupings of acupuncture points elicited using generally accepted diagnostic techniques of eastern medicine and selected for stimulation in accord with its principles and practices. Acupuncture points are stimulated in order to restore the normal function of the aforementioned organs or sets of functions. Acupuncture shall also include the ancillary techniques of eastern medicine including moxibustion, acupressure or other forms of manual meridian therapy and recommendations that include eastern dietary therapy, supplements and lifestyle modifications. (2) “Board” means the Board of Medical Licensure and Discipline. (3) “Council” means the Acupuncture Advisory Council. (4) “Eastern medicine” means the practice of acupuncture, Chinese herbology and Asian bodywork therapy as part of a comprehensive health-care system encompassing a variety of traditional health-care therapies that have been used for more than 3,000 years to diagnose and treat illness, prevent disease and improve well-being. (5) “License” means, unless the context requires otherwise, a license issued by the Board to practice acupuncture. (6) a. “Practice of acupuncture” means the use of needles with or without electrical stimulation for the purpose of normalizing energetic physiological functions including pain control, and for the promotion, maintenance, and restoration of health. b. Needles used in the practice of acupuncture shall only be pre-packaged, single use, sterile acupuncture needles. These needles shall only be used on an individual patient in a single treatment session and disposed of according to federal standards for biohazard waste. (7) “Practice of eastern medicine” includes the practice of acupuncture and further means making recommendations or prescriptions based in eastern dietary therapy, supplements and lifestyle modifications according to the principles of eastern medicine. Eastern dietary therapy shall be defined as recommending, advising or furnishing nonfraudulent information about herbs, vitamins, minerals, amino acids, carbohydrates, sugars, enzymes, food concentrates, foods, other food supplements, or dietary supplements. For purposes of this paragraph, “fraud” shall be defined as an intentional misrepresentation for financial gain. Legitimate disagreement about the role of the above-listed nutrients and foods as they apply to human nutrition shall not, in and of itself, constitute fraud. These supplemental techniques may be used within the public domain or by another licensed or registered healthcare or bodywork professional, according to state law or regulation. (b) Nothing in this subchapter shall limit, preclude, or otherwise interfere with the professional activities of other individuals and healthcare providers who are allowed to perform acupuncture. This includes chiropractic, medical and osteopathic physicians. (c) An individual who is licensed pursuant to this subchapter, who is not being investigated or sanctioned in relation to unprofessional conduct or physical, mental, emotional, or other impairment, may not be prohibited from performing those professional activities included in this section. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 449, §§ 1, 2; 80 Del. Laws, c. 316, § 3.) § 1798 Licensure. (a) All applicants must meet the following requirements for licensure by the Board as an acupuncture and eastern medicine practitioner: Page 146 Title 24 - Professions and Occupations (1) Achievement of a Diplomate in Oriental Medicine from the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) or its equivalent as recognized by the Council and approved by the Board, or an organization that is recognized as equivalent to the NCCAOM by the Council and approved by the Board; and (2) Completion of a course or evidence of passing an examination in clean needle technique; (3) An applicant for whom English is a second language shall demonstrate the ability to communicate in the English language as determined by regulations as recommended by the Council and approved by the Board; (4) The applicant: a. May not have been assessed any administrative penalties regarding the applicant’s practice of acupuncture, 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 b. May not have entered into a consent agreement which contains conditions placed by a board or other authority on the applicant’s professional conduct or practice, including the voluntary surrender of the applicant’s license while under investigation for misconduct. However, the Board may, after a hearing, waive the requirement of paragraph (a)(4)a. of this section if the administrative penalty prevents the issuance of a license; (5) The applicant may not have an impairment related to the current use of drugs or alcohol which substantially impairs the practice of acupuncture with reasonable skill and safety; (6) The applicant may not have been convicted of or may not have admitted under oath to having committed a crime substantially related to the practice of acupuncture. “Substantially related” means that the nature of the criminal conduct for which the person was convicted or to which the person admitted under oath has a direct bearing on the person’s fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of acupuncture. The Board shall promulgate regulations specifically identifying the crimes which are substantially related to the practice of acupuncture; (7) Meet any other qualifications that the Board establishes in regulations. (b) All applicants must meet the following requirements for licensure by the Board as an acupuncture practitioner: (1) Achievement of a Diplomate in Acupuncture from the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) or its equivalent as recognized by the Council and approved by the Board, or an organization that is recognized as equivalent to the NCCAOM by the Council and approved by the Board; and (2) Completion of a course or evidence of passing an examination in clean needle technique; (3) An applicant for whom English is a second language shall demonstrate the ability to communicate in the English language as determined by regulations as recommended by the Council and approved by the Board; (4) The applicant: a. May not have been assessed any administrative penalties regarding the applicant’s practice of acupuncture, 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 b. May not have entered into a consent agreement which contains conditions placed by a board or other authority on the applicant’s professional conduct or practice, including the voluntary surrender of the applicant’s license while under investigation for misconduct. However, the Board may, after a hearing, waive the requirement of paragraph (a)(4)a. of this section if the administrative penalty prevents the issuance of a license; (5) The applicant may not have an impairment related to the current use of drugs or alcohol which substantially impairs the practice of acupuncture with reasonable skill and safety; (6) The applicant may not have been convicted of or may not have admitted under oath to having committed a crime substantially related to the practice of acupuncture. “Substantially related” means that the nature of the criminal conduct for which the person was convicted or to which the person admitted under oath has a direct bearing on the person’s fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of acupuncture. The Board shall promulgate regulations specifically identifying the crimes which are substantially related to the practice of acupuncture; (7) Meet any other qualifications that the Board establishes in regulations. (8) An acupuncturist who obtains licensure pursuant to this section may go on to become a licensed acupuncture and eastern medicine practitioner by achieving a Diplomate in Oriental Medicine from the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) or its equivalent as recognized by the Council and approved by the Board, or an organization that is recognized as equivalent to the NCCAOM by the Council and approved by the Board. (c) Waiver of requirements. — The Acupuncture Advisory Council, by the affirmative vote of 3 of its members and with the approval of the Board within a reasonable period of time from the vote, may waive any of the requirements of subsection (a) of this section if it finds all of the following by clear and convincing evidence: Page 147 Title 24 - Professions and Occupations (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 acupuncture in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; (4) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service; and (5) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (d) 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. (e) Temporary license. — The Executive Director of the Board, with the approval of a Council member, 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 subsection 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 subsection. (f) License suspension, revocation, or nonrenewal. — (1) The Council, after appropriate notice and hearing, may recommend to the Board of Medical Licensure and Discipline that the Board revoke, suspend, or refuse to issue a license, or place the licensee on probation, or otherwise discipline a licensee found guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, fraud, deceit, incompetence, gross negligence, dishonesty, or other behavior in the licensee’s professional activity which is likely to endanger the public health, safety, or welfare. The Council may recommend and Board may take necessary action against a licensee who is unable to render acupuncture or eastern medicine 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 or other action taken against a licensee must be in accordance with the procedures for disciplinary and other actions against physicians, including appeals as set forth in subchapter IV of this chapter except that a hearing panel for a complaint against a licensee consists of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Acupuncture Advisory Council; and if no conflict exists, 1 of the 2 Acupuncture Advisory Council members shall be the Chair of the Acupuncture Advisory Council. The Chair of the hearing panel shall be 1 of the Council panel members. (2) a. If the Board or the Acupuncture Advisory Council receives a formal or informal complaint concerning the activity of a licensee and the Board or Council members reasonably believe that the activity presents a clear and immediate danger to the public health, the Council may issue an order temporarily suspending the licensee’s license to practice pending a hearing upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Council Chair or the Chair’s designee. An order temporarily suspending a license to practice may not be issued by the Board, unless the licensee or the licensee’s attorney received at least 24 hours’ written or oral notice prior to the temporary suspension so that the licensee or the licensee’s attorney can be heard in opposition to the proposed 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 temporarily suspended licensee requests a continuance of the hearing date. If the licensee requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered. b. A licensee whose license to practice 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 licensee or sent by certified mail, return receipt requested, to the licensee’s last known address. c. A licensee whose license to practice has been temporarily suspended pursuant to this section may request an expedited hearing. The Council shall schedule the hearing on an expedited basis, provided that the Council receives the request within 5 calendar days from the date on which the licensee received notification of the decision of the Board, to temporarily suspend the licensee’s license to practice. d. As soon as possible after the issuance of an order temporarily suspending a licensee’s license to practice pending a hearing, the Council Chair shall appoint a 3-member hearing panel consisting of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Acupuncture Advisory Council; and if no conflict exists, 1 of the 2 Acupuncture Advisory Council members shall be the Chair of the Acupuncture Advisory Council. The Chair of the hearing panel shall be 1 of the Council panel members. After notice to the licensee pursuant to paragraph (f)(2)b. of this section, the hearing panel shall convene within 60 days of the date of the issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If a licensee requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Council. The 3-member panel shall proceed to a hearing 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 Page 148 Title 24 - Professions and Occupations public health, the order of temporary suspension must remain in effect until the Board, 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 licensee 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. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, § 19; 78 Del. Laws, c. 44, §§ 20, 21; 80 Del. Laws, c. 316, §§ 4-6; 81 Del. Laws, c. 97, § 14.) § 1798A Procedure or action not described. This subchapter governs the practice of acupuncture and eastern medicine practitioners. If a procedure or action is not specifically prescribed in this subchapter, but is prescribed in the subchapters relating to the practice of medicine, and the procedure or action would be useful or necessary for the regulation of acupuncture and eastern medicine practitioners, the Board may, in its discretion, proceed in a manner prescribed for physicians in the practice of medicine. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1; 80 Del. Laws, c. 316, § 7.) § 1799 Fees; license renewal. The Division of Professional Regulation shall establish reasonable fees for licensing and for biennial license renewal. A licensee, when renewing a license, shall provide documentation of continuing education related to acupuncture pursuant to the continuing education requirements for acupuncture practitioners established by the Acupuncture Advisory Council. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1; 80 Del. Laws, c. 316, § 8.) § 1799A Current practitioners [Repealed]. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1; repealed by 80 Del. Laws, c. 316, § 9, effective Oct. 17, 2016.) § 1799B Exemptions. (a) Acupuncture or supplemental or eastern medicine techniques may be performed by a student, trainee or visiting teacher who is designated as a student, trainee or visiting teacher while participating in a course of study or training under supervision of a licensed acupuncturist or acupuncture and eastern medicine practitioner in a program that the Council has recommended to the Board for approval. This includes continuing education programs and any acupuncture or eastern medicine programs that are a recognized route to certification as an acupuncturist by the NCCAOM or any Board-approved agency. (b) Any herbalist, retailer or other person who does not hold himself or herself out to be a licensed acupuncturist shall not be limited by this subchapter. (76 Del. Laws, c. 261, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 101, § 1; 80 Del. Laws, c. 316, § 10.) § 1799C Renewal. Licenses must be renewed biennially and every licensee for renewal shall be required to complete continuing education credits as determined by regulation. The Board shall determine acceptable sources of continuing education credits as recommended by the Council. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1.) § 1799D Reciprocal licensing. All applicants for reciprocal licensing must possess a current license in another state which has licensing requirements equal to or exceeding the requirements of this subchapter, and there may not be any outstanding or unresolved complaints against the applicant. (76 Del. Laws, c. 261, § 1; 77 Del. Laws, c. 101, § 1.) § 1799E Prohibited acts; penalties; enforcement. (a) No person in this State shall use the title “licensed acupuncturist” or “L. Ac.,” or use in connection with that person’s name any letters, words or symbols indicating or implying that the person is a licensed acupuncturist, or advertise services under the description of “licensed acupuncturist”, unless that person holds a license as an acupuncturist issued pursuant to this subchapter. Nothing in this subsection shall be construed to prevent a person from providing care or performing or advertising services within the scope of that person’s license. (b) No person in this State shall use the title “eastern medicine practitioner” or use in connection with that person’s name any letters, words, or symbols indicating or implying that the person is a licensed eastern medicine practitioner, or advertise services under the description of “licensed eastern medicine practitioner,” unless that person holds a license issued pursuant to this subchapter. Nothing in this subsection shall be construed to prevent a person from providing care or performing or advertising services within the scope of that person’s license. (c) A person who, contrary to the provisions of this subchapter, practices or attempts to practice acupuncture within the State or represents that the person is an acupuncture practitioner or knowingly allows himself or herself to be represented as an acupuncture practitioner shall be fined not less than $500 nor more than $2,000 or imprisoned not more than 1 year, or both. Page 149 Title 24 - Professions and Occupations (d) The Office of the Attorney General is charged with the enforcement of this subchapter. (76 Del. Laws, c. 261, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 101, § 1; 80 Del. Laws, c. 316, § 11.) § 1799F Acupuncture detoxification specialist (ADS); license required. (a) An individual who is not licensed as an acupuncturist under this subchapter shall not practice as an acupuncture detoxification specialist using the National Acupuncture Detoxification Association (NADA) or equivalent organization’s auricular point protocol for the purpose of preventing and treating alcoholism, nicotine dependency, substance abuse, or chemical dependency in the State without first obtaining a license issued by the Board upon the recommendation of the Council. Applications for licensure shall be upon written forms provided by the Council and Board and upon payment of a fee established by the Division of Professional Regulation. An applicant for a license to practice as an acupuncture detoxification specialist pursuant to the NADA or equivalent organization auricular point protocol in Delaware must meet the following criteria: (1) Has successfully completed the NADA auricular point protocol training program or an equivalent training program satisfactory to the Council and Board for the treatment of alcoholism, nicotine dependency, substance abuse, or chemical dependency that meets or exceeds the standards of training set by the NADA including instruction in clean needle technique; (2) Must provide evidence of a current license or certificate in good standing in a health-care related profession as approved by the Council and the Board; and (3) Is in good standing as defined in § 1798(a)(4)-(7) of this title. (b) Waiver of requirements. — The Acupuncture Advisory Council, by the affirmative vote of 3 of its members and with the approval of the Board, may waive the requirements of subsection (a) of this section if it finds all of the following by clear and convincing evidence: (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 as an acupuncture detoxification specialist in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; and (4) For waiver of a crime substantially related to the practice of acupuncture, 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. (c) ADS are prohibited from needling any body acupuncture points and may not advertise themselves as acupuncturists. (d) ADS shall be subject to the disciplinary provisions of § 1798(f) of this title. (e) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division and proof of continued competency as established in the Board’s regulations. (77 Del. Laws, c. 449, § 3; 80 Del. Laws, c. 316, § 12; 81 Del. Laws, c. 78, § 10.) Subchapter XI Genetic Counselors § 1799G Statement of purpose. The intent of the General Assembly in enacting this subchapter is to establish minimum standards of education, experience and examination for professional genetic counselors so that the public can readily identify those who meet these minimum standards. In enacting this subchapter the General Assembly intends to provide a licensure process for professional genetic counselors, a scope of practice for genetic counselor services, and to establish “licensed genetic counselor” as the state-recognized legal title for professional genetic counselors. It is also the intent of the General Assembly in enacting this subchapter to assure consumers the right to choose from whom they receive information and advice. Recognition of these goals will protect the health of the public by broadening access to appropriate genetic counseling. (77 Del. Laws, c. 317, § 1.) § 1799H Definitions. As used in this subchapter: (1) “ABGC” shall mean the American Board of Genetic Counseling or an organization that is recognized as equivalent. (2) “ABMG” shall mean the American Board of Medical Genetics or an organization that is recognized as equivalent. (3) “Active candidate status” or “ACS” shall be conveyed by the ABGC. (4) “Board” shall mean the Board of Medical Licensure and Discipline. (5) “Genetic counselor” means an individual who engages in the competent practice of genetic counseling. (6) “L.G.C.” shall be the abbreviation for the title “licensed genetic counselor”. Page 150 Title 24 - Professions and Occupations (7) “License” shall mean any document which indicates that a person is currently licensed by the Board of Medical Licensure and Discipline to practice genetic counseling. (8) “NSGC” means the National Society of Genetic Counselors or an organization that is recognized as equivalent (9) The “practice of genetic counseling” shall include any or all of the following activities: a. Obtaining and interpreting individual, family and medical development histories; b. Determining the mode of inheritance and risk of transmission of genetic conditions; c. Discussing the inheritance, features, natural history, means of diagnosis; d. Identifying, coordinating and explaining genetic laboratory tests and other diagnostic studies; provided however, that if in the course of providing a genetic counseling service to any client, a genetic counselor finds any indication of disease or condition that requires medical assessment, the genetic counselor shall refer a client to a physician licensed to practice medicine; e. Assessing psychosocial factors, recognizing social, educational, and cultural issues; f. Evaluating the client’s or family’s responses to the condition or risk of recurrence and provide client-centered counseling and anticipatory guidance; g. Communicating genetic information to clients in an understandable manner; h. Facilitating informed decision making about testing and management alternatives; i. Identifying and effectively utilizing community resources that provide medical, educational, financial, and psychosocial support and advocacy; j. Providing accurate written documentation of medical, genetic, and counseling information for families and health care professionals; and k. The use of telemedicine as defined in this chapter and, as further described in regulation, the use of and participation in telehealth. (77 Del. Laws, c. 317, § 1; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 80, § 6.) § 1799I Genetic Counselor Advisory Council. (a) The Genetic Counselor Advisory Council (Council) consists of 5 voting members, and 1 ex officio member. The 5 voting members shall consist of 1 physician member of the Board of Medical Licensure and Discipline and 4 Council members licensed and trained as genetic counselors who have been primarily employed in the practice of genetic counseling in this State for at least 3 years immediately prior to appointment. The ex officio member shall be a Delaware physician who has expertise in genetic counseling. The Council may elect officers as necessary. (b) Each Council member is appointed by the Board of Medical Licensure and Discipline for a term of 3 years, and may succeed himself or herself for 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, a Council member whose term of office has expired 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 Council 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. The members of the Council are to be compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation and may be reimbursed for meeting-related travel expenses at the State’s current approved rate. 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 genetic counselors. (c) The Council shall promulgate rules and regulations governing the practice of genetic counseling, after public hearing and subject to the approval of the Board of Medical Licensure and Discipline. The Board must approve or reject proposed rules or regulations submitted to it by the Council within 60 days. 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. (d) The Council shall meet quarterly, and at such other times as license applications are pending and evaluate the credentials of all persons applying for a license as a licensed genetic counselor in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this chapter. The Council shall present to the Board the names of individuals qualified to be licensed and shall recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations. The Board shall approve or reject these recommendations within a reasonable time period. (e) License suspension, revocation, or nonrenewal. — (1) The Council, after appropriate notice and hearing, may recommend to the Board of Medical Licensure and Discipline that the Board revoke, suspend, or refuse to issue a license, or place the licensee on probation, or otherwise discipline a licensee found guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, fraud, deceit, incompetence, negligence, dishonesty, or other behavior in the licensee’s professional activity which is likely to endanger the public health, safety, or welfare. The Council may recommend and Board may take necessary action against a genetic counselor who is unable to render services with reasonable skill or safety to patients because of mental illness or mental incompetence, physical illness, Page 151 Title 24 - Professions and Occupations or the excessive use of drugs including alcohol. Disciplinary action or other action taken against a genetic counselor must be accordance with the procedures for disciplinary and other actions against physicians, including appeals as set forth in subchapter IV of this chapter except that a hearing panel for a complaint against a genetic counselor consists of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Council; and if no conflict exists, 1 of the 2 Council members shall be the Chair of the Council. The Chair of the hearing panel shall be 1 of the Council panel members. (2) a. If the Board or the Council receives a formal or informal complaint concerning the activity of a genetic counselor and the Board or Council members reasonably believe that the activity presents a clear and immediate danger to the public health, the Council may issue an order temporarily suspending the genetic counselor’s license to practice, pending a hearing upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Council Chair or the Chair’s designee. An order temporarily suspending a license to practice may not be issued by the Board, unless the genetic counselor or the genetic counselor’s attorney received at least 24 hours’ written or oral notice prior to the temporary suspension so that the genetic counselor or the genetic counselor’s attorney can be heard in opposition to the proposed 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 temporarily suspended genetic counselor requests a continuance of the hearing date. If the genetic counselor requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered. b. A genetic counselor whose license to practice 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 genetic counselor or sent by certified mail, return receipt requested, to the genetic counselor’s last known address. c. A genetic counselor whose license to practice has been temporarily suspended pursuant to this section may request an expedited hearing. The Council shall schedule the hearing on an expedited basis, provided that the Council receives the request within 5 calendar days from the date on which the genetic counselor received notification of the decision of the Board, to temporarily suspend the genetic counselor’s license to practice. d. As soon as possible after the issuance of an order temporarily suspending a genetic counselor’s license to practice pending a hearing, the Council Chair shall appoint a 3-member hearing panel consisting of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Council; and if no conflict exists, 1 of the 2 Council members shall be the Chair of the Council. The Chair of the hearing panel shall be 1 of the Council panel members. After notice to the genetic counselor pursuant to paragraph (e)(2)b. of this section, the hearing panel shall convene within 60 days of the date of issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If a genetic counselor requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Council. The 3-member panel shall proceed to a hearing 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 Board 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 genetic counselor 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. (f) The Council shall refer all complaints from practitioners and from the public to the Board. (g) The Genetic Counselor Advisory Council, by the affirmative vote of 3 of its members and with the approval of the Board within 30 days of the vote, may waive the quarterly meeting requirements of this title. (77 Del. Laws, c. 317, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, § 19; 78 Del. Laws, c. 139, § 2; 81 Del. Laws, c. 97, § 15.) § 1799J Licensure. (a) An applicant who is applying for licensure under this subchapter shall: (1) Provide satisfactory evidence of having certification as a: a. Genetic counselor by the ABGC or ABMG; or b. Medical geneticist by the ABMG (2) Submit an application prescribed by the Council. (3) Submit a certified criminal background check pursuant to § 1720(b)(6) of this title. (4) The applicant may not have an impairment related to the current use of drugs or alcohol which substantially impairs the practice of genetic counseling with reasonable skill and safety. (b) The Board may refuse or reject an applicant, if after hearing, the Board finds that: (1) The applicant has engaged in activities that are grounds for discipline under § 1799P of this title. Page 152 Title 24 - Professions and Occupations (2) The applicant has been convicted of a crime substantially related to the practice of genetic counseling as determined by the Board of Medical Licensure and Discipline in its rules and regulations. (3) The applicant has been the recipient of any administrative penalties from any other jurisdiction or jurisdictions regarding the applicant’s practice of genetic counseling, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has entered into any “consent agreements” which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license in lieu of discipline. (c) Waiver of requirements. — The Council, by the affirmative vote of 3 of its members and with the approval of the Board within a reasonable period of time from the vote, may waive any of the requirements of subsection (b) of this section if it finds all of the following by clear and convincing evidence: (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 as a genetic counselor in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; (4) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service; and (5) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (d) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, and imposed higher or different standards for the person than for other applicants or licensees, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (77 Del. Laws, c. 317, § 1; 77 Del. Laws, c. 319, § 1; 78 Del. Laws, c. 44, §§ 22, 23.) § 1799K Provisional license. (a) The Board may issue a provisional license to practice genetic counseling to a candidate for licensure who has been granted active candidate status by the ABGC, provided the candidate meets the other qualifications for licensure listed in § 1799J of this title. (b) The provisional license shall be valid for up to 1 year from the date it was issued, and may be renewed for 1 additional year if the applicant fails the certification examination. The provisional license automatically expires: (1) When the applicant is issued a license; or (2) On the expiration date printed on the provisional license; or (3) Upon notice of the second failure of the certification examination. (c) An application for extension of a provisional license must be signed by the applicant’s supervisor. A genetic counselor working under a provisional license must be under the general supervision of a licensed genetic counselor or a licensed physician. If a candidate fails to pass the exam 2 times within this provision, they may reapply for provisional licensure after regaining active candidate status by the ABGC or another organization acceptable to the Board. The Board may establish in its rules additional requirements relating to provisional licensure. (77 Del. Laws, c. 317, § 1.) § 1799L Reciprocity. An applicant for licensure by reciprocity must possess a current license in a state which has licensing requirements equal to or exceeding the requirements of this subchapter, and there may not be any outstanding or unresolved complaints against the applicant. (77 Del. Laws, c. 317, § 1.) § 1799M Continuing education. The Council, with the approval of the Board, is authorized to adopt regulations specifying continuing education requirements which must be met by a licensee before a licensee will be eligible for renewal of their license. (77 Del. Laws, c. 317, § 1.) § 1799N Issuance and renewal of licenses; fees. (a) The Division of Professional Regulation shall establish reasonable fees for licensing genetic counselors and for biennial license renewal. (b) The Board shall issue a license to each applicant who meets the requirements of this chapter for licensure as a genetic counselor and who pays the established fees. Page 153 Title 24 - Professions and Occupations (c) Each license shall be renewed biennially, in such manner as is determined by the Division and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by § 1799M of this title. (d) The Council, in its rules and regulation, shall determine the period of time within which a licensee may still renew the licensee’s license and determine late fees associated with the license renewal, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided, however that such period shall not exceed 1 year. (e) A licensee, upon written request, may be placed in an inactive status for no more than 5 years. Such person, who desires to reactivate that person’s license, shall complete a Board-approved application form, obtain an updated certified criminal background check, submit a renewal fee, and proof of fulfillment of continuing education requirements in accordance with the rules and regulation of the Council. (77 Del. Laws, c. 317, § 1.) § 1799O Licensure required. (a) No person shall represent oneself or engage in the practice of genetic counseling as a licensed genetic counselor in this State or use the title “genetic counselor”, “licensed genetic counselor”, “L.G.C.”, “gene counselor”, “genetic consultant”, “genetic associate” or any combination of above terms and/or abbreviations unless such a person is licensed under this subchapter. (b) This subchapter does not prohibit or restrict: (1) Any person licensed in this State under any chapter of this title who are physicians or other healthcare professionals from engaging in the practice for which that person is licensed. (2) The practice of genetic counseling by a person who is employed by the United States or state government or any of its bureaus, divisions, or agencies while in the discharge of the employee’s official duties. (3) The supervised practice of genetic counseling of a person pursuing a course of study leading to a degree in genetic counseling or an equivalent major, as authorized by the Board, from a ABGC accredited school or program, if the activities and services constitute a part of a supervised course of study and if the person is designated by a title that clearly indicates the person’s status as a student. This period is not to exceed 2 years unless written approval is provided by the Board. The individual will be supervised by an individual licensed under this subchapter or a physician. (77 Del. Laws, c. 317, § 1.) § 1799P Grounds for discipline, sanctions, or penalties. (a) The following conditions and actions of an L.G.C. may result in disciplinary action as set forth in subsection (b) of this section if, after a hearing, the Board finds that an applicant or L.G.C: (1) Has employed or knowingly cooperated in fraud or material deception in order to be licensed: or (2) Has engaged in illegal, incompetent or negligent conduct in the provision of genetic counseling; or (3) Has, in the practice of the profession, knowingly engaged in an act of consumer fraud or deception; or (4) Has violated the code of ethics as established by the NSGC; or (5) Has violated a lawful provision of this subchapter or any lawful rule or regulation established hereunder; or (6) Has been convicted of a crime substantially related to the practice of genetic counseling as determined by the Board of Medical Licensure and Discipline in its rules and regulations. (b) Persons licensed under this subchapter who have been determined to be in violation of this subchapter shall be subject to the following disciplinary actions: (1) Issuance of a letter of reprimand. (2) Censure. (3) Placement on probationary status. (4) Denial of license. (5) Suspension of license. (6) Revocation of license. (7) Impose a monetary penalty not to exceed $500 for each violation. (c) As a condition of reinstatement of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this subchapter. (77 Del. Laws, c. 317, § 1; 77 Del. Laws, c. 319, § 1.) § 1799Q Unauthorized practice of genetic counseling. Whoever engages in the practice of genetic counseling or attempts to engage in the practice of genetic counseling contrary to the provisions of this subchapter shall be guilty of a Class G felony and shall be fined not less than $500 and not more than $1,500, or imprisoned not more than 2 years, or both. (77 Del. Laws, c. 317, § 1.) Page 154 Title 24 - Professions and Occupations § 1799R Administrative procedures. All procedures under this chapter shall be governed by the Delaware Administrative Procedures Act, Chapter 101 of Title 29. (77 Del. Laws, c. 317, § 1.) § 1799S Procedure or action not described. This subchapter governs the practice of genetic counseling practitioners. If a procedure or action is not specifically prescribed in the subchapter, but is prescribed in the subchapters relating to the practice of medicine, and the procedure or action would be useful or necessary for the regulation of genetics counseling practitioners, the Board may, in its discretion, proceed in a manner prescribed for physicians in the practice of medicine. (77 Del. Laws, c. 317, § 1.) Subchapter XII Professional Polysomnographers § 1799T Statement of purpose. The intent of the General Assembly in enacting this subchapter is to establish minimum standards of education, experience and examination for professional polysomnographers so that the public can readily identify those who meet these minimum standards. In enacting this subchapter the General Assembly intends to provide a licensure process for professional polysomnographers, a scope of practice for polysomnographer services, and to establish “licensed polysomnographer” as the state-recognized legal title for professional polysomnographers. It is also the intent of the General Assembly in enacting this subchapter to assure consumers the right to choose from whom they receive information and advice. Recognition of these goals will protect the health of the public by broadening access to appropriate polysomnography services. (78 Del. Laws, c. 407, § 1.) § 1799U Definitions. As used in this subchapter: (1) “AASM” shall mean the American Academy of Sleep Medicine or an organization that is recognized as equivalent. (2) “Board” shall mean the Board of Medical Licensure and Discipline. (3) “BRPT” shall mean the Board of Registered Polysomnographic Technologists or its successor organization. (4) “Council” means the Polysomnography Advisory Council. (5) “Direct supervision” means that the licensed polysomnographer providing supervision must be present in the area where the polysomnographic procedure is being performed and immediately available to furnish assistance and direction throughout the performance of the procedure. (6) “General supervision” means that the licensed polysomnographer works under the supervision of a person licensed to practice medicine, whether by direct observation and monitoring, by protocols approved by a person licensed to practice medicine, or by orders written or verbally given by a person licensed to practice medicine. A licensed polysomnographer may evaluate patients and make decisions within parameters defined by a person certified to practice medicine and by the Board. The licensed polysomnographer works under a physician’s overall direction and control, but the physician’s presence is not required during the performance of the procedure. (7) “License” shall mean any document which indicates that a person is currently licensed by the Board to practice polysomnography. (8) “LPSGT” shall be the abbreviation for the title “licensed polysomnographer”. (9) “NBRC SDS exam” means the National Board for Respiratory Care Sleep Disorders and Therapeutic Intervention Respiratory Care Specialist exam. (10) “Polysomnographer” means an allied health professional, practicing polysomnography under the direction of a person licensed to practice medicine, who 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 human sleep wake cycle. (11) “Polysomnographic student” means a person who is enrolled in an accredited educational program described in § 1799V of this title and who may provide sleep-related services under the direct supervision of a licensed polysomnographer as a part of the person’s educational program and is therefore, exempt from the licensure requirement. (12) “Polysomnographic trainee” means a person who has completed an accredited educational program described in § 1799V of this title and who may provide sleep-related services under the direct supervision of a licensed polysomnographer as part of the person’s clinical program and is therefore exempt from the licensure requirement. (13) “Practice of polysomnography” means the performance of any of the following tasks as directly related to the diagnosis and treatment of sleep-related disorders, under the general supervision of a licensed physician: a. Monitoring and recording physiologic data during the evaluation of sleep-related disorders, including sleep-related respiratory disturbances, by applying the following techniques, equipment, and procedures: Page 155 Title 24 - Professions and Occupations 1. Titration using approved airway pressure devices and/or other technologies on spontaneously breathing patients using a mask or oral appliance, provided the mask or oral appliance does not extend into the trachea or attach to an artificial airway; 2. Supplemental low flow oxygen therapy (less than or equal to 6 liters per minute) during a polysomnogram utilizing a nasal cannula or approved airway pressure devices and technologies on spontaneously breathing patients, provided the devices or technologies do not extend into the trachea or attach to an artificial airway; 3. Capnography during a polysomnogram; 4. Cardiopulmonary resuscitation; 5. Pulse oximetry; 6. Gastroesophageal pH monitoring; 7. Esophageal pressure monitoring; 8. Sleep staging (including surface electroencephalography, surface electrooculography, and surface submental electromyography); 9. Surface electromyography; 10. Electrocardiography; 11. Respiratory effort monitoring, including thoracic and abdominal movement; 12. Plethysmography blood flow monitoring; 13. Snore monitoring; 14. Audio and video monitoring; 15. Body movement and body position monitoring; 16. Nocturnal penile tumescence monitoring; 17. Nasal and oral airflow monitoring; 18. Body temperature monitoring; 19. Monitoring the effects that a mask or oral appliance used to treat sleep disorders has on sleep patterns; provided, however, the mask or oral appliance shall not extend into the trachea or attach to an artificial airway; 20. Actigraphy; b. Observing and monitoring physical signs and symptoms, general behavior, and general physical response to polysomnographic evaluation and recommending whether initiation, modification, or discontinuation of a treatment regimen is warranted; c. Analyzing and scoring data collected during the monitoring described in paragraphs (13)a.1. and 2. of this section for the purpose of assisting a licensed physician in the diagnosis and treatment of sleep and wake disorders; d. Implementation of a written or verbal order from a licensed physician which requires the practice of polysomnography; e. Education of a patient regarding sleep disorders and the treatment regimen which assists that patient in improving the patient’s sleep. (78 Del. Laws, c. 407, § 1.) § 1799V Education. The following qualify as approved educational programs: (1) A polysomnographic educational program that is accredited by the Commission on Accreditation of Allied Health Education Programs; (2) A respiratory care educational program that is accredited by the Commission on Accreditation for Respiratory Care and completion of the curriculum for a polysomnography certificate established and accredited by the Commission on Accreditation for Respiratory Care; (3) An electroneurodiagnostic technologist educational program with a polysomnographic technology track that is accredited by the Commission on Accreditation of Allied Health Education Programs; (4) An Accredited Sleep Technologist Educational Program (A-STEP) that is accredited by the American Academy of Sleep Medicine; or (5) Any other educational program incorporating both formal instruction and supervised clinical practice as recommended by the Council and approved by the Board. (78 Del. Laws, c. 407, § 1.) § 1799W Polysomnography Advisory Council. (a) The Council consists of 5 voting members. The 5 voting members shall consist of 1 physician member certified in the field of sleep medicine and 4 council members who are credentialed registered polysomnographic technologists and have been primarily employed in the practice of polysomnography in this State for at least 3 years immediately prior to appointment. The 4 polysomnography practicing Page 156 Title 24 - Professions and Occupations members shall be licensed pursuant to this subchapter no later than July 1, 2014, and all polysomnography practicing members thereafter shall be licensed pursuant to this subchapter. The Council may elect officers as necessary. (b) 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. 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, a council member whose term of office has expired 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 Council for 6 years within any 9year 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. The members of the Council are to be compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation and may be reimbursed for meeting-related travel expenses at the State’s current approved rate. 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 polysomnographers. (c) The Council shall promulgate rules and regulations governing the practice of polysomnography, after public hearing and subject to the approval of the Board. The Board must approve or reject proposed rules or regulations submitted to it by the Council within 60 days. 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. (d) The Council shall meet quarterly, and at such other times as license applications are pending and evaluate the credentials of all persons applying for a license as a licensed polysomnographer in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this chapter. The Council shall present to the Board the names of individuals qualified to be licensed and shall recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations. The Board shall approve or reject these recommendations within a reasonable time period. (e) License suspension, revocation, or nonrenewal. — (1) The Council, after appropriate notice and hearing, may recommend to the Board that the Board revoke, suspend, or refuse to issue a license, or place the licensee on probation, or otherwise discipline a licensee found guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, fraud, deceit, incompetence, negligence, dishonesty, or other behavior in the licensee’s professional activity which is likely to endanger the public health, safety, or welfare. The Council may recommend and the Board may take necessary action against a licensed polysomnographer, who is unable to render 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 or other action taken against a licensed polysomnographer must be accordance with the procedures for disciplinary and other actions against physicians, including appeals as set forth in subchapter IV of this chapter except that a hearing panel for a complaint against a licensed polysomnographer consists of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Council; and if no conflict exists, 1 of the 2 council members shall be the Chair of the Council. The Chair of the hearing panel shall be 1 of the council panel members. (2) a. In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, the Council may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Council Chair or the Chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporary suspended person requests a continuance of the hearing date. If the temporary suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. b. As soon as possible after the issuance of an order temporarily suspending a polysomnographer’s license to practice pending a hearing, the Council Chair shall appoint a 3-member hearing panel consisting of 3 members; 1 of the 3 shall be a physician member of the Board; 2 of the 3 shall be unbiased members of the Council; and if no conflict exists, 1 of the 2 Council members shall be the Chair of the Council. The Chair of the hearing panel shall be 1 of the Council panel members; or the complaint may be scheduled before a hearing officer pursuant to § 8735(v)(1)d. of Title 29. The hearing shall be convened within 60 days of the date of issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If a polysomnographer requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Council. A decision shall be rendered within 30 days of the hearing. c. In addition to making findings of fact, the hearing panel or hearing officer shall also determine whether the facts found by it constitute a clear and immediate danger to public health. If the hearing panel or hearing officer 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 Board deliberates and reaches conclusions of law based upon the findings of fact. An order of temporary suspension may not remain in Page 157 Title 24 - Professions and Occupations effect for longer than 60 days from the date of the decision rendered unless the suspended polysomnographer 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. (78 Del. Laws, c. 407, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 223, § 1; 81 Del. Laws, c. 97, § 16.) § 1799X Licensure. (a) On and after July 1, 2014, any person who is engaged in the practice of polysomnography must be licensed as provided in this chapter. It shall be unlawful for any person to engage in the practice of polysomnography on or after July 1, 2014, unless such person is practicing polysomnography under the provisions of this chapter. (b) Polysomnographic license. — (1) A licensed polysomnographer may provide sleep-related services under the general supervision of a licensed physician; (2) A person seeking licensure as a licensed polysomnographer must present proof that the person meets the following requirements: a. Must be at least 18 years of age, and must pay the fees established by the Division of Professional Regulation; b. The licensed polysomnographer applicant must have successfully completed 1 of the educational requirements in § 1799V of this title and passed an exam which is accredited by an independent outside agency and recommended by the Council and approved by the Board unless otherwise exempt pursuant to paragraph (b)(3) of this section; c. The licensed polysomnographer applicant must meet any additional educational or clinical requirements established by the Board. (3) Any individual who is engaged in the practice of polysomnography as of July 1, 2011, shall be eligible for licensure under this chapter without meeting the educational requirement in § 1799V of this title, if the individual has: a. Passed the national certifying examination given by the BRPT; b. Been credentialed by the BRPT; and c. Met any additional educational or clinical requirements established by the Council and approved by the Board. (4) Before practicing polysomnography, an individual must obtain a polysomnographic license from the Board. (5) To be eligible for renewal of a license to engage in the practice of polysomnography, a licensed polysomnographer must continue to be credentialed by BRPT, or other organization approved by the Council. (6) Licensure. — a. No person shall represent oneself or engage in the practice of polysomnography as a licensed polysomnographer in this State or use the title “polysomnographer,” “licensed polysomnographer,” “LPSGT,” or any combination of above terms and/or abbreviations unless such a person is licensed under this subchapter. b. This subchapter does not prohibit or restrict: 1. Any person licensed in this State under any chapter of this title who are physicians or other healthcare professionals from engaging in the practice for which that person is licensed; 2. The practice of polysomnography by a person who is employed by the United States or state government or any of its bureaus, divisions, or agencies while in the discharge of the employee’s official duties; 3. The supervised practice of polysomnography of a person pursuing a course of study leading to a certificate or degree in polysomnography or an equivalent major, as authorized by the Board, from an accredited school or program approved by the Council, if the activities and services constitute a part of a supervised course of study and if the person is designated by a title that clearly indicates the person’s status as a student. This period is not to exceed 2 years unless written approval is provided by the Board. The individual will be supervised by an individual licensed under this subchapter or a physician; or 4. The provision of diagnostic electroencephalograms conducted in accordance with the guidelines of the American Clinical Neurophysiology Society. c. The provisions of this subchapter shall not apply to licensed respiratory care practitioners. (c) Waiver of requirements. — The Polysomnography Advisory Council, by the affirmative vote of 5 of its members and with the approval of the Board within 30 days of the vote, may waive the quarterly meeting requirements of § 1799W(d) of this title. (d) 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. (e) An applicant who is applying for licensure under this subchapter shall: (1) Submit an application prescribed by the Council. (2) Submit a certified criminal background check pursuant to § 1720(b)(6) of this title. (3) The applicant may not have an impairment related to the current use of drugs or alcohol which substantially impairs the practice of polysomnography with reasonable skill and safety. (f) The Board may refuse or reject an applicant, if after hearing, the Board finds that: (1) The applicant has engaged in activities that are grounds for discipline under § 1799BB of this title. Page 158 Title 24 - Professions and Occupations (2) The applicant has been convicted of a crime substantially related to the practice of polysomnography as determined by the Board in its rules and regulations. (3) The applicant has been the recipient of any administrative penalties from any other jurisdiction or jurisdictions regarding the applicant’s practice of polysomnography, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has entered into any “consent agreements” which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license in lieu of discipline. (g) Waiver of requirements. — The Council, by the affirmative vote of 3 of its members and with the approval of the Board within a reasonable period of time from the vote, may waive the requirements of paragraph (f)(2) of this section if it finds all of the following by clear and convincing evidence: (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 as a polysomnographer in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; and (4) For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service; (5) For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (h) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, and imposed higher or different standards for the person than for other applicants or licensees, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. (78 Del. Laws, c. 407, § 1.) § 1799Y Endorsement. An applicant for licensure by endorsement must possess a current license in a state which has licensing requirements substantially similar to or exceeding the requirements of this subchapter, and there may not be any outstanding or unresolved complaints against the applicant. (78 Del. Laws, c. 407, § 1.) § 1799Z Continuing education. The Council, with the approval of the Board, is authorized to adopt regulations specifying continuing education requirements which must be met by a licensee before a licensee will be eligible for renewal of his or her license. (78 Del. Laws, c. 407, § 1; 70 Del. Laws, c. 186, § 1.) § 1799AA Issuance and renewal of licenses; fees. (a) The Division of Professional Regulation shall establish reasonable fees for licensing polysomnographers and for biennial license renewal. (b) The Board shall issue a license to each applicant who meets the requirements of this subchapter for licensure as a polysomnographer and who pays the established fees. (c) Each license shall be renewed biennially, in such manner as is determined by the Division and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by § 1799Z of this title. (d) The Council, in its rules and regulation, shall determine the period of time within which a licensee may still renew the licensee’s license and determine late fees associated with the license renewal, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided, however that such period shall not exceed 1 year. (e) A licensee, upon written request, may be placed in an inactive status for no more than 5 years. Such person, who desires to reactivate that person’s license, shall complete a board-approved application form, obtain an updated certified criminal background check, submit a renewal fee, and proof of fulfillment of continuing education requirements in accordance with the rules and regulation of the Council. (78 Del. Laws, c. 407, § 1.) § 1799BB Grounds for discipline, sanctions, or penalties. (a) The following conditions and actions of a polysomnographer may result in disciplinary action as set forth in subsection (b) of this section if, after a hearing, the Board finds that an applicant or polysomnographer: Page 159 Title 24 - Professions and Occupations (1) Has employed or knowingly cooperated in fraud or material deception in order to be licensed: or (2) Has engaged in illegal, incompetent or negligent conduct in the provision of polysomnography; or (3) Has, in the practice of the profession, knowingly engaged in an act of consumer fraud or deception; or (4) Has violated the code of ethics as established by the AASM, BRPT or and other organization approved by the Council; or (5) Has violated a lawful provision of this subchapter or any lawful rule or regulation established hereunder; or (6) Has been convicted of a crime substantially related to the practice of polysomnography as determined by the Board in its rules and regulations; or (7) Has been convicted of a sexual felony offense. (b) Persons licensed under this subchapter who have been determined to be in violation of this subchapter shall be subject to the following disciplinary actions: (1) Issuance of a letter of reprimand. (2) Censure. (3) Placement on probationary status. (4) Denial of license. (5) Suspension of license. (6) Revocation of license. (7) Impose a monetary penalty not to exceed $500 for each violation. (c) As a condition of reinstatement of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this subchapter. (78 Del. Laws, c. 407, § 1.) § 1799CC Unauthorized practice of polysomnography. Whoever engages in the practice of polysomnography or attempts to engage in the practice of polysomnography contrary to the provisions of this subchapter shall be guilty of a class G felony and shall be fined not less than $500 and not more than $1,500, or imprisoned not more than 2 years, or both. (78 Del. Laws, c. 407, § 1.) § 1799DD Procedure or action not described. This subchapter governs the practice of polysomnography. If a procedure or action is not specifically prescribed in the subchapter, but is prescribed in the subchapters relating to the practice of medicine, and the procedure or action would be useful or necessary for the regulation of polysomnographic practitioners, the Board may, in its discretion, proceed in a manner prescribed for physicians in the practice of medicine. (78 Del. Laws, c. 407, § 1.) § 1799EE Duty to report conduct that constitutes grounds for discipline or inability to practice. (a) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other healthcare provider’s licensing statute. (b) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider may be unable to practice with reasonable skill and safety to the public by reason of mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive abuse of drugs, including alcohol. (c) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation any information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. (d) All reports required under subsections (a), (b) and (c) of this section must be filed within 30 days of becoming aware of such information. A person reporting 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. (78 Del. Laws, c. 407, § 1.) Page 160 Title 24 - Professions and Occupations Subchapter XIII Midwifery Practitioners § 1799FF Definitions. As used in this subchapter: (1) “Board” means the Board of Medical Licensure and Discipline. (2) “Certified midwife” or “CM” means a practitioner who has received certification by the American Midwifery Certification Board or its equivalent or successor. (3) “Certified professional midwife” or “CPM” means a practitioner who has received certification by the North American Registry of Midwives (NARM) or its equivalent or successor. (4) “Client” means a woman under the care of a midwife and, when applicable in the context of care, the newborn. (5) “Council” means the Midwifery Advisory Council. (6) “Home birth” means a birth outside of a hospital or an otherwise accredited or licensed hospital or medical facility. (7) “License” means, unless the context requires otherwise, a license issued by the Board to practice midwifery. (8) “Midwife” means a person who practices midwifery. (9) “Midwifery” means the practice of providing supervision, care, and advice to a client during prepartum, pregnancy, labor, and the postpartum periods, and conducting deliveries on the midwife’s own responsibility or in collaboration with a licensed physician, or licensed Delaware health-care delivery system. The licensed practice of midwifery includes taking certain safety measures and identifying the physical, social and emotional needs of the client. The practice of midwifery requires that level of education, experience, knowledge, and skill ordinarily expected of an individual who meets the requirements for licensure pursuant to this chapter. In order to practice midwifery in the State, a midwife must be licensed pursuant to this chapter. For the purposes of this chapter, “midwifery” does not include the practice of certified nurse midwives, as defined in Chapter 19 of this title, nor does it include the practice of a person licensed to practice medicine pursuant to this chapter. (10) “Midwifery student” means a person who is enrolled in an accredited educational program and who may provide midwifery services as a part of that person’s educational program. (11) “Practice of a certified midwife” means the management of women’s health care, pregnancy, childbirth, postpartum care for newborns, family planning, and gynecological services consistent with the Standards of Practice of the American College of NurseMidwives and the education, training, and experience of the certified midwife. (12) “Practice of a certified professional midwife” means the provision of continuous care for women throughout the childbearing cycle which CPMs are qualified to provide. The CPM credential requires knowledge about and experience in out-of-hospital settings. The scope of practice of the licensed CPM is further derived from the North American Registry of Midwives Job Analysis, state laws and regulations, and individual practice guidelines developed according to acquired professional skills and knowledge. (80 Del. Laws, c. 33, § 1; 80 Del. Laws, c. 258, § 1.) § 1799GG Subchapter exemptions and limitations. (a) Nothing in this subchapter shall limit, preclude, or otherwise interfere with the professional activities of other individuals and health-care providers who are allowed to practice obstetrics and gynecology, nor shall this subchapter apply to certified nurse midwives as defined by Chapter 19 of this title. (b) Nothing in this subchapter shall prohibit or restrict the directly supervised practice of midwifery by a midwifery student pursuing a course of study leading to a credential in midwifery or an equivalent major, as recommended by the Council and approved by the Board, from an accredited school or program recommended by the Council and approved by the Board, if the activities and services constitute a part of a supervised course of study and if the midwifery student is under the direct supervision of a midwife licensed under this subchapter and is designated by a title that clearly indicates the person’s status as a student, provided this course of study shall not exceed 5 years unless the Council recommends and the Board provides written approval for an extension. (80 Del. Laws, c. 33, § 1; 80 Del. Laws, c. 258, § 2.) § 1799HH Midwifery Advisory Council. (a) The Board of Medical Licensure and Discipline shall form the Midwifery Advisory Council (Council) which consists of 7 voting members. The members shall consist of: 4 midwives, 2 CMs and 2 CPMs, whenever possible; 1 certified nurse midwife (CNM) as described in Chapter 19 of this title; 1 practicing obstetrician with hospital admitting privileges who is a member of the American Congress of Obstetricians and Gynecologists and certified by the American Board of Obstetrics and Gynecology; and 1 practicing pediatrician with hospital admitting privileges and certification from the American Board of Pediatrics. The inaugural midwife members shall be licensed pursuant to this subchapter no later than October 1, 2016, and all midwife members thereafter shall be licensed pursuant to this subchapter. The Council may elect officers as necessary. The Chair of the Council shall be a midwife in good standing. The members of Page 161 Title 24 - Professions and Occupations the Council shall be compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation and may be reimbursed for meeting-related travel expenses at the State’s current approved rate. (b) Members shall be appointed so that the terms of 4 members, including no more than 2 midwives, shall expire 2 years after the initial appointment and that the terms of the remaining 3 members shall expire 3 years after the initial appointment. Thereafter, members are each appointed by the Board of Medical Licensure and Discipline for a term of 3 years, subject to removal by the Governor for neglect of duty, malfeasance, or misfeasance in office, 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, a council member whose term of office has expired remains eligible to participate in council proceedings until replaced by the Board. A person who has been twice appointed to the Council or who has served on the Council for 6 years within any 9-year period may not again serve until an interim period of at least 1 year has expired since the person last served. (c) The Council shall promulgate rules and regulations governing the practice of midwifery, the scope of practice of CMs and the scope of practice of CPMs, after public hearing and subject to the approval of the Board of Medical Licensure and Discipline. The Board must approve or reject proposed rules or regulations submitted to it by the Council within 60 days. 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. Such rules and regulations shall include, but not be limited to: (1) Procedures for the examination of applicants and issuance of licenses to those applicants it finds qualified; (2) Licensing and licensing renewal requirements; (3) Standards for education, and training programs and the procedures for denial, revocation, or suspension of such program for failure to meet or maintain the standards; (4) Continuing education requirements for licensed midwives; (5) Description of the responsibilities of the midwife toward the client and her newborn in the antepartum, intrapartum, and the postpartum periods, including newborn assessment and screening consistent with existing statute. (6) Practice standards for licensed midwives that shall include, but shall not be limited to: a. Adoption of ethical standards for licensed midwives; b. Maintenance of records of care, including client charts and birth statistics; c. Participation in peer review and continuing education with midwives, physicians and nurses; d. Requirement to have a second attendant certified in neonatal resuscitation at birth; e. Description of the tools and equipment a midwife may and may not use during delivery; and f. Medications and tests the midwife is authorized to obtain and administer in various settings as delineated in regulation. (d) License suspension, revocation, and nonrenewal. — (1) The Council, after appropriate notice and hearing, may recommend to the Board of Medical Licensure and Discipline that the Board revoke, suspend, or refuse to issue a license, or place a licensee on probation, or otherwise discipline a licensee found guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, fraud, deceit, incompetence, gross negligence, dishonesty, failure to adhere to the procedures of § 1799JJ of this title below, or other behavior in the licensee’s professional activity which is likely to endanger the public health, safety, or welfare. The Council shall recommend that the Board permanently revoke the license of a person who is convicted of a felony sexual offense. The Council may recommend and Board may take necessary action against a midwife who is unable to practice midwifery with reasonable skill or safety to clients because of physical or mental illness, impairment or incompetence; including illness, impairment, or incompetence caused by or related to substance abuse. Disciplinary action or other action taken against a midwife must be in accordance with the procedures for disciplinary and other actions against licensed health professionals, including appeals as set forth in subchapter IV of this chapter except that a hearing panel for a complaint against a midwife shall be convened as described below. (2) In the event of a formal or informal complaint concerning the activity of a licensee that the Board determines, exercising its reasonable discretion, presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Council Chair or the Council Chair’s designee. a. An order temporarily suspending a license to practice may not be issued by the Board, unless the midwife or the midwife’s attorney received at least 24 hours’ written or oral notice prior to the temporary suspension and unless the Secretary of State or the Secretary’s designee, and the Council Chair or the Council Chair’s designee concur. At a minimum, the initial oral or written notice will inform the midwife or the midwife’s attorney of: 1. The essential terms of the suspension; 2. The reason for the suspension; 3. The midwife’s right to a hearing; and 4. The midwife’s right to an expedited hearing. Page 162 Title 24 - Professions and Occupations b. Within 48 hours of receiving the initial oral or written notice, a midwife whose license has been temporarily suspended pursuant to this section must be formally notified of the temporary suspension in writing. Formal notification consists of, at minimum: 1. A copy of the complaint; 2. The order of temporary suspension pending a hearing; and 3. A description of the hearing including the midwife’s right to request an expedited hearing, personally served upon the midwife or sent by certified mail, return receipt requested, to the midwife’s last known address. c. A midwife whose license to practice has been temporarily suspended pursuant to this section may request, and has a right to, 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 formal notification of the decision to temporarily suspend the person’s license. d. As soon as possible after the issuance of an order temporarily suspending a midwife’s license to practice pending a hearing, the Council Chair shall appoint a 3-member hearing panel consisting of 3 members; 1 of the 3 shall be an unbiased physician member of the Council or Board; 2 of the 3 shall be unbiased midwife members of the Council; and if possible and no conflict exists, at least 1 of the 2 Council midwife members shall be of the same licensure type as the midwife under complaint. The Chair of the hearing panel shall be 1 of the Council midwife members. After notice to the midwife pursuant this section, the hearing panel shall convene within 60 calendar days of the date of the issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If a midwife requests an expedited hearing, the hearing panel shall convene within 15 calendar days of the receipt by the Council of the request. The 3-member panel shall conduct a hearing in accordance with the procedures set forth in § 1734 of this title and shall render a decision within 15 calendar days of the hearing. 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 temporarily suspended midwife requests a continuance of the hearing date. If the midwife requests a continuance, the order of temporary suspension will remain in effect until the hearing panel convenes and a decision is rendered by the Board. 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 Board, under § 8735 of Title 29, 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 midwife 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. (e) The Council shall meet at least quarterly and at such other times as license applications are pending. The Council shall present to the Board the names of individuals qualified to be licensed, shall recommend disciplinary action against licensees as necessary, and shall suggest changes in operations or regulations pursuant to this section. The Council shall keep minutes of its meetings which shall be available to the public upon FOIA request, except that information discussed by the Council concerning a mother or child which is private in nature or which would tend to reveal the identity of a client of a midwife shall be discussed in executive session pursuant to Chapter 100 of Title 29. (f) The Board shall grant limited prescriptive authority upon the issuance of a certified professional midwife license or certified midwife license. The Council shall recommend and the Board shall approve the parameters of the limited prescriptive authority in its regulations. (80 Del. Laws, c. 33, § 1; 80 Del. Laws, c. 258, §§ 3, 4; 81 Del. Laws, c. 97, § 5; 81 Del. Laws, c. 424, § 15.) § 1799II Licensure. (a) To be eligible for licensure by the Board as a certified professional midwife, an applicant shall: (1) Possess a valid CPM credential or another valid credential from an accrediting organization as recommended by the Council and approved by the Board; however; applicants who obtain the CPM credential after December 31, 2019, are required to also have obtained an education accredited by the Midwifery Education and Accreditation Council (MEAC), or another midwifery education accreditation organization as recommended by the Council and approved by the Board, and training and education which meet the International Confederation of Midwives (ICM) standards and guidelines as applicable to the scope of midwives licensed under this subchapter; (2) Be at least 21 years of age; (3) Shall not have been assessed any administrative penalties regarding the applicant’s practice of midwifery, including but not limited to fines, formal reprimands, license suspension or revocation — except for license suspension or revocation for nonpayment of license renewal fee or unlicensed practice penalties assessed prior to the establishment of the Council — and/or probationary limitations; (4) Shall not have been convicted of or may not have admitted under oath to having committed a crime substantially related to the practice of midwifery or any felony or violent misdemeanor or crime involving dishonesty; (5) Be a graduate of a high school or its equivalent; (6) Meet minimum educational requirements as required for attainment of the CPM credential, including prepartum, prenatal, intrapartum, and postpartum care of the mother and baby, and risk assessment for the mother and baby during this period; Page 163 Title 24 - Professions and Occupations (7) Shall not have been convicted of a felony sexual offense; and (8) Shall have completed a course in pharmacology and intravenous therapy recommended by the Council and approved by the Board. (b) To be eligible for licensure by the Board as a certified midwife, an applicant shall: (1) Possess a valid CM credential, or another valid credential from an accrediting organization as recommended by the Council and approved by the Board; (2) Be at least 21 years of age; (3) Shall not have been assessed any administrative penalties regarding the applicant’s practice of midwifery, including but not limited to fines, formal reprimands, license suspension or revocation — except for license suspension or revocation for nonpayment of license renewal fee or unlicensed practice penalties assessed prior to the establishment of the Council — and probationary limitations; (4) Shall not have been convicted of or shall not have admitted under oath to having committed a crime substantially related to the practice of midwifery or any felony or violent misdemeanor or crime involving dishonesty; (5) Be a graduate of a high school or its equivalent; (6) Meet the minimum educational requirements as required for attainment of the CM credential including successful completion of a midwifery education program accredited by the Accreditation Commission for Midwifery Education (ACME) or meet the education standards approved by the International Confederation of Midwives (ICM); (7) Shall not have been convicted of a felony sexual offense; and (8) Shall have completed a course in pharmacology and intravenous therapy recommended by the Council and approved by the Board. (c) The Council may waive the requirements of paragraphs (a)(3), (a)(4), (b)(3), and (b)(4) of this section if its finds all of the following by clear and convincing evidence: (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 midwifery in a competent and professional manner; (3) The granting of the waiver will not endanger the public health, safety, or welfare; (4) For waiver of a misdemeanor conviction or violation, and for waiver of a felony for the practice of unlicensed midwifery after June 30, 2016, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. (5) For waiver of any other felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service; and (d) Any termination, revocation, or suspension of a certification from NARM, AMCB, or other midwifery certifying organization, or discipline from the same must be promptly reported to the Council. (e) Licensure must be renewed every 2 years. (f) An applicant for licensure to practice midwifery shall submit a certified criminal background check pursuant to § 1720(b)(6) of this title. An applicant may not be certified until the applicant’s criminal history reports have been produced. An applicant whose record shows a disqualifying prior criminal conviction pursuant to paragraphs (a)(4) or (7) of this section or paragraphs (b)(4) or (7) of this section may not be certified by the Board unless a waiver is granted pursuant to subsection (c) of this section. The State Bureau of Identification may release any subsequent criminal history to the Board and Council. (g) Except for unlicensed practice of midwifery established prior to June 30, 2016, the information obtained thereby may be used by the Board and Council to determine the applicant’s eligibility for licensing under this chapter. (h) It shall be unlawful for any person to engage in the practice of midwifery after June 30, 2016, unless such person is licensed under the provisions of this chapter. (80 Del. Laws, c. 33, § 1; 80 Del. Laws, c. 258, §§ 5, 6.) § 1799JJ Client screening for homebirth delivery services. The provisions of this section shall apply only to a midwife while providing home birth delivery services. For the purposes of obtaining informed consent as governed by this section, the mother that is part of the client shall give informed consent on behalf of herself and the newborn. (1) When accepting a client for care, a midwife shall obtain the client’s informed consent, which shall be evidenced by a written statement signed by both the midwife and the client which shall contain the following elements, in a form drafted by the Council and adopted by the Board, if the midwife offers home birth services: a. An acknowledgement that home birth can include increased risk of death and disability for mother and child; b. A clear statement that the risks have been explained and understood by the client; Page 164 Title 24 - Professions and Occupations c. A clear statement that the client is aware that the midwife is not a licensed physician or nurse, nor are they seeking the services of one for their home birth; d. A newborn checklist describing the services and care of the newborn; and e. Information regarding procedures in the event a transfer becomes necessary and that a transfer may be required to protect the safety of the client if signs or symptoms are observed by the midwife that necessitate such transfer that includes: 1. Estimated distance between the planned birth site and the receiving facility; and 2. Information regarding concurrent care policies at the receiving facility. The statement on concurrent care will be repeated orally to the client or, if the client is incapacitated, the client’s designated agent, in the event of a transfer. (2) When accepting a client for care, a midwife shall obtain in addition to the client’s informed consent, a written statement in a form proposed by the Council and adopted by the Board, and signed by both the midwife and the client. The form shall certify that full disclosure has been made and acknowledged by the client as to each of the following items, with the client’s acknowledgement evidenced by a separate signature adjacent to each item in addition to the client’s signature and the date at the end of the form: a. The name, address, telephone number, and license number of the licensed midwife; b. A description of the midwife’s education, training, and experience in midwifery in relation to both the mother and the newborn; c. The nature and scope of the care to be given, including a description of the ante partum, intrapartum, and postpartum conditions requiring consultation, transfer of care, or transport to a hospital; d. A copy of the written plan described in paragraph (3) of this section below which is particular to each client; e. An explanation that in the event of an emergency or voluntary transfer that no liability from the actions of the midwife are assignable to the receiving facility or medical professional; f. An explanation of the right of the client to file a complaint with the Council and instructions on how to file a complaint with the Council; g. A statement indicating that the client’s records and any transaction with the midwife are confidential pursuant to the federal Health Insurance Portability and Accountability Act [P.L. 104-191]; h. A disclosure of whether the midwife carries malpractice or liability insurance; and i. Any further information as required by the Council. (3) A midwife shall prepare, in a form proposed by the Council and adopted by the Board, a written plan for the appropriate delivery of emergency care and provide the client with a copy of the plan as provided in paragraph (2) of this section. The plan shall address the following: a. Consultation with other health-care providers; b. Emergency transfer; c. Access to neonatal intensive care units and obstetrical units or other patient care areas; (4) A midwife shall provide an initial screening to ensure that each client receives safe and appropriate care and to determine whether any contraindications are present. A midwife will also perform ongoing screening and maintain, beginning at the time of the initial screening, a detailed health history in a form prescribed by the Council and adopted by the Board. (5) Upon transfer of a client, emergency or otherwise, a midwife shall provide all records described in this section to the receiving care provider or facility and remain available to speak with the receiving health-care provider at the point of transfer about the course of care provided to the client. (6) A midwife offering home birth services shall only accept and provide care to those women who are classified as eligible for a home birth or midwife-assisted birth in accordance with evidence based standards proposed by the Council and adopted by the Board as being low risk pregnancy, labor, and delivery, which includes but is not limited to: a. There is no preexisting maternal disease or condition likely to affect the pregnancy, such as uterine surgeries including Caesarean procedures and others, as recommended by the Council and approved by the Board; b. There is no significant disease arising from the pregnancy; c. There is a singleton fetus; d. There appears to be a cephalic presentation prior to delivery; e. The onset of labor occurs when the fetus has a gestational age greater than 37 weeks and less than 42 weeks, which period can be expanded or contracted if the Council and Board determine that it would be in the best interests of clients to do so; and f. Labor is most likely to be spontaneous. (7) The midwife must be able at all times to recognize the warning signs of conditions that render the woman ineligible for a midwifeassisted home birth. If a midwife determines at any time during the course of the pregnancy that a woman’s condition may preclude attendance by the midwife, the client shall be informed that she should transfer to an appropriate, licensed, health-care provider. A midwife may and shall, at any time, terminate a relationship with a client if that midwife deems the woman is or has become ineligible for a midwife-assisted birth or home birth. The cause for termination must be documented and included in the health history described Page 165 Title 24 - Professions and Occupations in paragraph (4) of this section. Such midwife shall inform the client of such termination in writing and recommend transfer to an appropriate licensed health-care provider. (8) If a midwife identifies that the client demonstrates a high risk condition as defined by the Council and approved by the Board, the midwife shall refer the client to a physician with obstetrical hospital privileges for client assessment and/or screening, at the time the condition is noted by the midwife. In the event of an emergency, if the midwife determines that immediate termination of the relationship pursuant to paragraph (7) of this section would increase or create risk of death or injury to the mother or her infant, the midwife will immediately engage emergency medical services, and may continue to assist in the emergency. (80 Del. Laws, c. 33, § 1.) § 1799KK Physician-midwife relationship. (a) No health-care provider or facility shall be vicariously liable for an injury resulting from an act or omission by a midwife unless an employment and/or agency relationship has been established between the midwife and the health-care provider or facility. (b) Upon the successful transfer of care of a client from a midwife to a licensed physician in accordance with § 1799JJ(1) of this title, if authorized by the client, physician, and facility the licensed midwife may provide concurrent care with a physician and surgeon and, be present during the labor and childbirth, and resume postpartum care, if appropriate. (80 Del. Laws, c. 33, § 1.) § 1799LL Treatment or examination of minors. (a) A parent, guardian or other caregiver, or an adult staff member, shall be present when a person licensed to practice midwifery under this chapter provides outpatient treatment to a minor client who is disrobed or partially disrobed or during an outpatient physical examination involving the breasts, genitalia or rectum, regardless of sex of the licensed person and client, except when rendering care during an emergency. When using an adult staff member to observe the treatment or examination, the adult staff member shall be of the same gender as the client when practicable. The minor client may decline the presence of a third person only with consent of a parent, guardian or other caregiver. The minor client may request private consultation with the person licensed to practice midwifery without the presence of a third person after the physical examination. Every hospital and nursing facility and similar facility that provides treatment to minors shall develop and implement policies regarding the treatment of minor clients that are consistent with the purposes of this section and will submit those policies for approval by the Department of Health and Social Services. Violations of approved policies will be treated as a violation of this section. (b) When a minor client is to be disrobed, partially disrobed or will undergo a physical examination involving the breasts, genitalia or rectum, a person licensed to practice midwifery under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which a minor client and the minor client’s parent, guardian or other caregiver are made aware of the notice. In circumstances in which the posting or the provision to the client of the written notice would not convey the right to have a chaperone present, the person licensed to practice midwifery shall use another means to ensure that the client or person understands the right under this section. (c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, “adult staff member” is defined as a person 18 years of age or older who acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter, “hospital” has the meaning prescribed by Chapter 10 of Title 16, and “nursing facility and similar facility” has the meaning prescribed by Chapter 11 of Title 16. (d) The person licensed under this chapter that provides outpatient treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child’s medical record the name of each person present when such treatment is being provided. (80 Del. Laws, c. 33, § 1.) § 1799MM Recordkeeping. (a) A person licensed under this chapter who is discontinuing practice in this State or who is leaving this State and who is not transferring client records to another person licensed to practice midwifery or medicine shall notify that person’s clients 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 1 time per month over a 3-month period in advance of discontinuing the business or leaving the State and must explain how a client can procure that client’s records. All clients of record who have not requested their records 30 days before the person discontinues the practice or leaves the State must be notified by first-class mail by the person to permit that person’s clients to procure their records. Any client records that have not been procured within 7 years after the person discontinues practice or leaves the State may be permanently disposed of in a manner that ensures confidentiality of the records. (b) If a person licensed under this chapter dies and has not transferred client records to another person licensed to practice midwifery or medicine and has not made provisions for a transfer of client records to occur upon the person’s death, a personal representative of the person’s estate shall notify the person’s clients 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 1 time per month over a 3-month period after the person’s death and must explain how a former client can procure the client’s records. All former clients who have not requested their records 30 days Page 166 Title 24 - Professions and Occupations after such publication must be notified by first class mail by the personal representative of the estate to permit the clients to procure their records. Any client 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 client changes from the care of 1 person licensed to practice midwifery or medicine to another person certified to practice midwifery or medicine, the former person shall transfer a copy of the records of the client to the current person upon the request of either the current person or the client. The former person may charge for the reasonable expenses of copying the client’s records, according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed. Alternatively, if the client and current person agree, the former person may forward to the current person a summary of the client’s record, in lieu of transferring the entire record, at no charge to the client. If a client changes care from 1 person certified to practice midwifery or 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 client’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 client’s records for a period of 7 years from the last entry date in the client’s medical record, after which time the records may be permanently disposed of in a manner that insures confidentiality of the records. (d) Clients, on their own behalf, shall have the right to obtain a copy of their records from any person certified to practice midwifery or medicine according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed. (80 Del. Laws, c. 33, § 1.) § 1799NN Duty to report conduct that constitutes grounds for discipline or inability to practice. (a) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other health-care provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other health-care provider’s licensing statute. (b) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other health-care provider may be unable to practice with reasonable skill and safety to the public by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive abuse of drugs, including alcohol. (c) Every person to whom a license to practice has been issued under this subchapter has a duty to report to the Division of Professional Regulation any information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to clients by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. (d) All reports required under subsections (a), (b) and (c) of this section must be filed within 30 days of becoming aware of such information. A person reporting 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. (80 Del. Laws, c. 33, § 1.) Page 167 Title 24 - Professions and Occupations Chapter 18 Board of Plumbing, Heating, Ventilation, Air Conditioning, and Refrigeration Examiners Subchapter I Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners § 1801 Objectives. The primary objective of the Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners, to which all other objectives are secondary, is to protect the general public, specifically those persons who are direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaint hearings; shall promulgate rules and regulations; and shall impose sanctions, where necessary, against licensees. (71 Del. Laws, c. 185, § 1; 75 Del. Laws, c. 296, § 1.) § 1802 Definitions. The following words, terms, and phrases, when used in this chapter, have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (1) “Board” means the State Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners. (2) “Commercial hood system” means a system or ventilation for an exhaust in commercial establishments. (3) “Cooling system” means a system in which heat is removed from air, surrounding surfaces, or both. A cooling system includes an air conditioning system. (4) “Division” means the Division of Professional Regulation. (5) “Gas piping” means any arrangement of piping used to convey fuel gas, supplied by 1 meter, and each arrangement of gas piping serving a building, structure, or premises, whether individually metered or not. “Gas piping” does not include the installation of gas appliances where existing service connections are already installed, nor does the term include the installations, alterations, or maintenance of gas utilities owned by a public utility. (6) “HVACR” means heating, ventilation, air conditioning, and refrigeration. (7) “HVACR restricted services” means HVACR services that are limited to 1 of the following specialties: a. Heating — forced air systems; ventilation; and gas piping; or b. Heating — hydronic systems and gas piping; or c. Commercial hood systems; or d. Refrigeration; or e. Air-conditioning; or f. Gas piping. (8) “HVACR services” means the design, installation, construction, maintenance, service, repair, alteration, or modification of a product or of equipment including gas piping in heating and air conditioning, refrigeration, ventilation, or process cooling or heating systems. (9) “Hydronic system” means a heating and cooling system using liquids or steam to transmit or remove heat. (10) “License” means a document issued by the Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners certifying that the holder has met the requirements of this chapter and is a master plumber, master HVACR licensee, or master HVACR restricted licensee. (11) “Master HVACR licensee” means an individual holding a current license pursuant to this chapter to provide heating, ventilation, air conditioning, commercial hood systems, hydronic systems, refrigeration, and gas piping services pursuant to this chapter. (12) “Master HVACR licensee restricted” means an individual holding a current license pursuant to this chapter to provide services pursuant to this chapter in 1 of the following areas: a. Heating — forced air systems; ventilation; and gas piping; or b. Heating — hydronic systems and gas piping; or c. Commercial hood systems; or d. Refrigeration; or e. Air-conditioning; or f. Gas piping. Page 168 Title 24 - Professions and Occupations (13) “Master plumber”, “licensed plumber”, or “licensed master plumber” means an individual holding a current license to provide plumbing services issued pursuant to this chapter. (14) “Plumber” is an individual who provides plumbing services. (15) “Plumbing services” means the design, installation, construction, replacement, service, repair, alteration, or modification of the pipes, fixtures, and other apparatus used for bringing the water supply into a building and removing liquid and water-carried wastes from a building. Plumbing services also includes the installation and connection of gas piping. (16) “Refrigeration system” means a system used to cool a surface or area below 55 degrees Fahrenheit or 12.9 degrees Celsius. (17) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the work of a master plumber, master HVACR licensee, or master HVACR licensee restricted. (18) “Supervision” means control and oversight by a master licensee who is an owner or full-time employee of the entity providing services. A supervising master licensee is responsible and accountable for the work performed under the supervising master licensee’s license. (19) “Ventilation system” means the natural or mechanical process of supplying air to, or removing air from, any space, whether the air is conditioned or not conditioned and at a rate of airflow of more than 250 cubic feet per minute. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 31; 75 Del. Laws, c. 296, § 1; 76 Del. Laws, c. 192, §§ 1-6.) § 1803 Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners; appointment; composition; qualification; term; vacancies; suspension or removal; unexcused absences; compensation. (a) The State Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners shall administer and enforce this chapter. (b) The Board shall consist of 9 members who are appointed by the Governor and who are residents of this State. Three members, 1 from each county, are master plumbers who have been engaged in the plumbing services for at least 5 years. Three members, 1 from each county, are master HVACR licensees or master HVACR restricted licensees who have been engaged in HVACR or HVACR restricted services for at least 5 years. Three members, 1 from each county, are public members. A public member may not be nor ever have been a master plumber, master HVACR licensee, or master HVACR restricted licensee; may not be a member of the immediate family of a master plumber, master HVACR licensee, or master HVACR restricted licensee; may not be nor ever have been employed by a master plumber, master HVACR licensee, master HVACR restricted licensee, plumbing contractor, HVACR contractor, or HVACR restricted contractor; may not have a material interest in the providing of goods or services to master plumbers, master HVACR licensees, master HVACR restricted licensees, plumbing contractors, HVACR contractors, or HVACR restricted contractors; and may not be nor ever have been engaged in an activity directly related to providing plumbing, HVACR, or HVACR services. A public member must be accessible to inquiries, comments, and suggestions from the general public. (c) Except as provided in subsection (d) of this section, each Board member serves a term of 3 years and may succeed himself or herself for 2 additional terms; provided, however, that if a member is initially appointed to fill a vacancy, the member may succeed himself or herself for only 2 additional full terms. A person appointed to fill a vacancy on the Board holds office for the remainder of the unexpired term of the vacating member. A term of office expires on the date specified in the appointment; however, a Board member whose appointment has expired remains eligible to participate in Board proceedings until replaced by the Governor. A person who is a member of the Board on June 27, 2006, may complete that member’s term. (d) A person who has never served on the Board may be appointed to the Board for 3 consecutive terms; but the person is thereafter ineligible to serve for 3 consecutive terms. A person who has been appointed 3 times to the Board or who has served on the Board for 9 years within any 12-year period may not again be appointed to the Board until an interim period of at least 1 term has expired since the person last served. (e) An act or vote on Board business by a person appointed to the Board in violation of this section is invalid. (f) The Governor shall suspend or remove a member of the Board for the member’s misfeasance, nonfeasance, malfeasance, misconduct, incompetence, neglect of duty, or for other good cause. “Neglect of duty” means the failure to attend, without adequate reason, 3 consecutive regular business meetings, or at least half of all regular business meetings during any calendar year. A member subject to a disciplinary hearing may not participate in Board meetings until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal to the Superior Court a suspension or removal initiated pursuant to this subsection. (g) A member of the Board, while serving on the Board, may not hold elective office in any occupational association of master plumbers, master HVACR licensees, or master HVACR restricted licensees or serve as an officer of an occupational association’s political action committee (PAC). (h) The provisions of the State Employees’, Officers’ and Officials’ Code of Conduct set forth in Chapter 58 of Title 29 apply to the members of the Board. Page 169 Title 24 - Professions and Occupations (i) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1; 81 Del. Laws, c. 85, § 8.) § 1804 Organization; meetings; officers; quorum. (a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, at other times as the president of the Board considers necessary, and at the request of a majority of the Board members. (b) The Board shall elect annually a president, vice president, and secretary. Each term of office is for 1 year. An officer may not serve for more than 3 consecutive years in the same office. (c) A majority of the members of the Board constitutes a quorum for the purpose of transacting business. However, at least 5 Board members must vote affirmatively to find that grounds for discipline exist and to impose a sanction for a disciplinary violation. (d) Minutes of all meetings of the Board must be recorded. The Division shall maintain copies of the recorded minutes. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. A person requesting a transcript incurs the expense of preparing the transcript. (71 Del. Laws, c. 185, § 1; 75 Del. Laws, c. 296, § 1.) § 1805 Records. The Division shall keep a register of all approved applications for licensure as a master plumber, master HVACR licensee, and master HVACR licensee restricted, and shall keep complete records relating to meetings of the Board, examinations, rosters of licensees, changes to the Board’s rules and regulations, complaints, hearings, and other matters as the Board determines. Records kept in accord with this section are prima facie evidence of the proceedings of the Board. (71 Del. Laws, c. 185, § 1; 74 Del. Laws, c. 262, § 32; 75 Del. Laws, c. 296, § 1.) § 1806 Authority of the Board. (a) The Board of Plumbing, Heating, Ventilation, and Air Conditioning Examiners shall have the authority to: (1) Administer and enforce the provisions of this chapter and of rules and regulations promulgated under this chapter; (2) Promulgate rules and regulations necessary or desirable to carry out the objectives of this chapter, including rules and regulations to carry out the objectives governing licensure and the requirements for continuing education; (3) Designate the application form to be used by all applicants and process all applications; (4) Designate the written, standardized examination, approved by the Division and administered and graded by a testing service, to be taken by applicants except those who qualify for licensure by reciprocity; (5) Evaluate certified records to determine whether an applicant for licensure, who is or has been licensed, registered, or otherwise authorized to provide services in another jurisdiction, has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against the applicant for such act or offense; (6) Grant licenses to and renew licenses of, all applicants who meet the qualifications set forth in this chapter; (7) Refer all complaints concerning master plumbers, master HVACR licensees, or master HVACR restricted licensees, or concerning the practices of the Board, or of the profession to the Division of Professional Regulation for investigation pursuant to § 8735(h) of Title 29. The Division of Public Health shall, upon request, assist the Division of Professional Regulation in the investigation of complaints requiring field inspections; (8) Hold hearings and take such actions as are permitted under the Administrative Procedures Act, Chapter 101 of Title 29; (9) Designate and impose appropriate sanction or penalty after time for appeal has lapsed, if the Board determines after a disciplinary hearing that the sanction or penalty should be imposed; (10) Adopt, and revise as necessary, a detailed statewide HVACR and fuel gas code; (11) Coordinate an effort with each county and municipality in the State, which effort will result in consistency in local plumbing, HVACR, and fuel gas codes and the statewide plumbing, HVRAC, and fuel gas code; (12) The Board shall require that all persons licensed in plumbing and HVACR services display the words “Licensed Plumber” and/ or “Licensed HVACR” and the license number assigned to them in not less than 3-inch letters and numbers on the vehicles used in the performance of their work. (b) The Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners shall promulgate regulations specifically identifying those crimes which are substantially related to the work of a master plumber, master HVACR licensee, or master HVACR licensee restricted. (c) Heating, Ventilation, Air Conditioning and Refrigeration Code; International Fuel Gas Code adoption and enforcement. — The State Board of Plumbing, Heating, Air Conditioning, Ventilation and Refrigeration Examiners shall adopt the most recent version of the International Mechanical Code (IMC) and the International Fuel Gas Code (IFC) within 1 calendar year of their issuance with whatever Page 170 Title 24 - Professions and Occupations modifications the Board deems appropriate. The State Board of Plumbing, Heating, Air Conditioning, Ventilation and Refrigeration Examiners may adopt and enforce additional heating, ventilation, air conditioning, and refrigeration, and fuel gas regulations which shall not be in conflict with the IMC or the IFC. (d) Local regulations. — Every political subdivision within the State of Delaware, including county, city and municipal governments, shall enforce the International Mechanical Code (IMC) and the International Fuel Gas Code (IFC), as adopted or modified by the State Board of Plumbing, Heating, Air Conditioning, Ventilation and Refrigeration Examiners. Every political subdivision retains the right to propose additional or modified heating, ventilation, air conditioning, and refrigeration (HVACR), and fuel gas regulations, which must be submitted in writing to the State Board Plumbing, Heating, Air Conditioning, Ventilation and Refrigeration Examiners for review and approval, and which may not be in conflict with the IMC or the IFC. The State Board of Plumbing, Heating, Air Conditioning, Ventilation and Refrigeration Examiners within 60 days of receiving such proposed changes or additions may thereafter adopt, modify or reject the proposed changes or additions. Upon issuance of the statewide HVACR and/or fuel gas regulations every political subdivision shall have the option of adopting and enforcing said regulations, or adopting and enforcing the minimum standards set forth in the most recently adopted version of the IMC and the IFC. (71 Del. Laws, c. 185, § 1; 74 Del. Laws, c. 262, § 32; 75 Del. Laws, c. 296, § 1; 77 Del. Laws, c. 398, § 1; 79 Del. Laws, c. 115, § 1.) Subchapter II License — Plumbing § 1807 License required; exemptions. (a) A person shall not provide plumbing services in this State nor hold himself or herself out to the public as being a licensed master plumber, nor use “licensed plumber,” “master plumber,” or “licensed master plumber” in connection with that person’s name, nor otherwise assume or use any title or description conveying or tending to convey the impression that the person is qualified to provide plumbing services, unless the person has been licensed as a master plumber under this chapter, or exempted from the provisions of this chapter pursuant to subsection (c) of this section. (b) If the license of a master plumber has expired or been suspended or revoked, it is unlawful for the holder of the expired, suspended, or revoked license to perform plumbing services in this State. (c) An individual may provide plumbing services without being licensed under this chapter if: (1) The individual is an apprentice, journeyman, mechanic, or other person providing such services under the supervision of a master plumber who is the individual’s employer or who is employed full time by the same business entity as the individual; (2) The individual is a homeowner who is performing plumbing services other than gas piping in or about that individual’s own home that is not for sale or any part for rent or lease, provided that the individual has filed an application for a permit with the authorized inspection authority; (3) The individual is providing such services on property used exclusively for agricultural purposes and the individual has filed an application for a permit with the authorized inspection authority; or (4) The individual is providing such services pursuant to the provisions in § 1832 of this title. (5) The individual is providing services authorized under subchapter III of this chapter. (d) The penalty for a violation of this section is, for a first offense, a fine of not less than $500 nor more than $1000, and, for a second or subsequent offense, a fine of not less than $1000 nor more than $2000. Justice of the Peace Courts shall have jurisdiction over violations of this section. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1.) § 1808 Qualifications of applicant. (a) An applicant for licensure as a master plumber shall submit evidence, satisfactory to the Board, and verified by oath or affirmation, that the applicant: (1) Has received a journeyman’s certificate issued in any state following completion of a plumbing apprenticeship program that meets or exceeds the Federal Bureau of Apprenticeship and Training Standards and, thereafter, performed plumbing services for 2 years under the supervision of a master plumber or an individual holding a similar level of licensure in another state; or has performed plumbing services for 7 years under the supervision of a master plumber or a plumber holding a similar level of licensure in another state and, thereafter, successfully completed the apprenticeship equivalency test approved by the Board and administered by a Delaware vocational-technical school; (2) Has achieved the passing score on a written, standardized examination, designated by the Board and approved by the Division, for licensure as a Delaware master plumber after fulfilling the experience and/or training requirements of this section; (3) Has not received any administrative penalties regarding the applicant’s practice, including, but not limited to, fines, formal reprimands, license suspension or revocation (except for license revocation for nonpayment of license renewal fees), probationary Page 171 Title 24 - Professions and Occupations limitations, and consent agreements which contain conditions placed by a Board on the applicant’s occupational conduct or practice, including the voluntary surrender of a license, certificate, registration, or other authorization to provide plumbing services. The Board may determine after a hearing whether the imposition of a particular administrative penalty is grounds to deny licensure. (4) Does not have an impairment related to drug or alcohol use that would limit the applicant’s ability to provide plumbing services in a manner that is not detrimental to the health, safety, or welfare of the public; (5) Does not have any disciplinary proceedings or unresolved complaints pending against the applicant in any jurisdiction where the applicant has previously been or is currently authorized to provide plumbing services; or have a criminal conviction record relating to an incident, the circumstances of which substantially relate to providing plumbing services. An applicant who has such a criminal conviction record must request appropriate authorities provide information about the record directly to the Board in sufficient specificity to enable the Board to make a determination of whether the record is substantially related to providing plumbing services. In determining whether a crime is substantially related to the professions regulated by this chapter, the Board may not consider a conviction where more than 10 years have elapsed since the date of the conviction, if there have been no other criminal convictions in the intervening time. After a hearing or review of documentation that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, or during the time between meetings, the Board President or the President’s designee, may waive this paragraph (a)(5) herein if it finds all of the following: a. For waiver of a felony conviction, where the crime was committed against a person, more than 3 years have passed since the date of the conviction and for all other felonies, more than 2 years have elapsed since the date of conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, or on parole at Level III Supervision or higher, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing plumbing services in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare. (6) Has not been convicted of a felony sexual offense. (b) The Board may waive the requirements of paragraph (a)(3) or (5) of this section for good cause. (c) Each applicant shall provide the information requested on the application form approved by the Board. All evidence of experience must be submitted by affidavit on forms approved by the Board. An application form may not require an applicant to submit a photograph of himself or herself, or information related to citizenship, place of birth, length of state residency, or personal references. (d) If the Board finds that false information has been intentionally provided to the Board, it shall report its finding to the Attorney General’s Office for further action. (e) If the Board refuses to accept, or rejects, an application and the applicant believes that the Board acted without justification, or imposed a higher or different standard to the applicant than to other applicants, or in some other unlawful manner contributed to or caused the refusal or rejection of the application, the applicant may appeal to the Superior Court. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1; 75 Del. Laws, c. 436, § 15; 77 Del. Laws, c. 199, §§ 10-12; 78 Del. Laws, c. 44, §§ 24, 25; 82 Del. Laws, c. 197, § 1.) § 1809 Examination. (a) The written, standardized examination required in § 1808(a)(2) of this title must be offered at least quarterly. The Board will determine the passing score in its rules and regulations. (b) An applicant who fails to receive a passing score on an examination administered pursuant to this chapter may apply to retake the examination on the next available date. If an applicant fails to pass the examination after 3 attempts, the Board, in its rules and regulations, may specify the conditions under which an applicant may retake the examination. (71 Del. Laws, c. 185, § 1; 74 Del. Laws, c. 262, § 32; 75 Del. Laws, c. 296, § 1.) § 1810 Reciprocity. (a) Upon submission and acceptance of a written application on forms provided by the Board, along with payment of the required fee, the Board shall grant a license to each applicant who presents proof of current licensure in good standing in another state, the District of Columbia, or a territory of the United States whose standards for licensure are substantially similar to those of this State and who submits the verified evidence described in § 1808(a)(3) through (5) of this title. (b) An applicant who is licensed by another state, the District of Columbia, or a territory of the United States whose standards for licensure are not substantially similar to those of this State must have practiced for a minimum of 7 years after licensure, in addition to meeting the other qualifications for reciprocity in this section. (71 Del. Laws, c. 185, § 1; 75 Del. Laws, c. 296, § 1.) Page 172 Title 24 - Professions and Occupations § 1811 Fees. The amount set by the Division for each fee imposed under this chapter shall approximate and reasonably reflect the costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its services on behalf of the Board. A separate fee may be charged for each service or activity, but a fee shall not be charged unless the service or activity is specified in this chapter. The application fee may not be combined with any other fee. At the beginning of each licensure biennium, the Division, or another state agency acting in its behalf, shall compute the fees for each separate service or activity for the licensure biennium. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1.) § 1812 Issuance and renewal of licenses. (a) The Board shall issue a license to each applicant who meets the requirements of this chapter for licensure as a master plumber and who pays the appropriate fees established under § 1811 of this title. (b) A license is renewable biennially in a manner determined by the Division, upon payment of the appropriate fee, submission of a renewal form provided by the Division, and proof that the licensee has met any continuing education requirements established by the Board. (c) The Board, in its rules and regulations, shall determine the period of time within which a licensee may renew that licensee’s license, notwithstanding the fact that the licensee failed to renew that licensee’s license on or before the designated renewal date; provided, however, that the period of time may not exceed 1 year beyond the designated renewal date. (d) A licensee, upon the licensee’s written request, may be placed on inactive status for no more than 5 years. A licensee on inactive status who desires to reactivate that licensee’s license must complete and submit an application form approved by the Board, submit the reactivation fee set by the Division, and submit proof of fulfillment of any continuing education requirements established by the Board. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1.) § 1813 Complaints. (a) All complaints received by the Division shall be investigated in accordance with § 8735 of Title 29. The Division shall issue a final written report at the conclusion of its investigation. (b) If the Board determines that a person has provided or is providing plumbing services or has used or is using the title “master plumber”, “licensed plumber,” or a similar designation contrary to the requirements of this chapter, the Board shall request that the Office of the Attorney General issue a cease and desist order and/or prosecute the person. (71 Del. Laws, c. 185, § 1; 74 Del. Laws, c. 262, § 32; 75 Del. Laws, c. 296, § 1.) § 1814 Grounds for discipline or other remediation. (a) An individual licensed under this chapter is subject to disciplinary sanctions set forth in § 1815 of this title or other appropriate remediation, if, after a hearing, the Board finds that the licensee has: (1) Engaged or knowingly cooperated in fraud or material deception in order to acquire a license, has allowed another person to use that individual’s license, or has aided or abetted an unlicensed to represent himself or herself as an individual licensed pursuant to this chapter; (2) Illegally, incompetently, or negligently provided plumbing services; (3) Been convicted of an offense, the circumstances of which substantially relate to providing plumbing services. A copy of the record of conviction certified by the clerk of the court entering the conviction is conclusive evidence of conviction; (4) In the last 2 years used illegal drugs; used prescription drugs without a prescription; excessively used legally prescribed drugs; or abused alcoholic beverages or drugs to the extent that it impaired that individual’s ability to provide services authorized under this chapter with reasonable skill, competence, and safety to the public; (5) Engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities; (6) Violated a provision of this chapter or any lawful regulation established hereunder; (7) Had that individual’s license as a master plumber restricted, suspended or revoked, or been subjected to other adverse action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for the suspension, revocation, or other adverse action in another jurisdiction have been presented to the Board by certified record and the Board has determined that the facts found by the appropriate licensing authority in the other jurisdiction constitute 1 or more of the acts listed in this section. A person licensed in this State is deemed to have given consent to the release of information regarding license suspension or revocation or other adverse action taken by the Board or by comparable agencies in other jurisdictions and to have waived all objections to the admissibility of previously adjudicated evidence of the acts or offenses which underlie license suspension or revocation or other adverse action; (8) Failed to notify the Board that the individual’s license to provide services authorized under this chapter in another jurisdiction has been subject to discipline, or has been surrendered, suspended, or revoked. A certified copy of the record of disciplinary action, or of the surrender, suspension, or revocation of the license shall be conclusive evidence thereof; Page 173 Title 24 - Professions and Occupations (9) A physical or mental impairment that prevents that individual from providing services authorized under this chapter with reasonable skill, competence, and safety to the public. (b) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 262, § 33; 75 Del. Laws, c. 296, § 1; 79 Del. Laws, c. 213, § 2.) § 1815 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it determines that a licensee has violated a ground for discipline set forth in § 1814 of this title: (1) Issue a letter of reprimand to the licensee; (2) Censure the licensee; (3) Place the licensee on probationary status and require that licensee to: a. Report regularly to the Board upon the matters that are the basis of the probation; and/or b. Limit all practice and professional activities to those areas prescribed by the Board; (4) Suspend the license of the licensee; (5) Revoke the license of the licensee; (6) Prescribe an administrative penalty, not to exceed $500 for each violation. (b) The Board may withdraw or reduce conditions of probation imposed pursuant to paragraph (a)(3) of this section, if it finds that the deficiencies that required the conditions of probation to be imposed have been remedied. (c) If the Board suspends a licensee due to an impairment pursuant to § 1814(a)(9) of this title, the Board may reinstate the license if, after a hearing, the Board is satisfied that the licensee is able to provide professional services with reasonable skill, competence, and safety to the public. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1; 79 Del. Laws, c. 213, § 2.) § 1816 Hearing procedures. (a) If a complaint alleging that a licensee has violated § 1814 of this title is filed with the Division pursuant to § 8735(h) of this title, the Board shall set a time and place to conduct a hearing on the complaint. The Division shall give notice of the hearing and the Board shall conduct the hearing in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) A hearing conducted pursuant to this section is informal, without the use of the Delaware Rules of Evidence. If the Board decides by the affirmative votes of 5 or more members that a licensee has violated § 1814 of this title, the Board may take any action permitted under this chapter that the Board considers reasonable. The Board’s decision must be in writing and must include the reasons for the decision. The Board shall immediately mail its decision to the licensee or personally serve the licensee with the decision. (c) If a licensee disagrees with the decision of the Board, the licensee may appeal the Board’s decision to the Superior Court within 30 days of the postmarked date of the copy of the decision mailed to that licensee, or within 30 days of personal service. Upon appeal, the Court shall review the evidence on the record. A stay pending review may be granted by the Court in accordance with § 10144 of Title 29. (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1.) § 1817 Reinstatement of a suspended license; removal from probationary status. (a) The Board may reinstate a suspended license if, after a hearing, the Board is satisfied that the licensee has taken the required corrective actions and has otherwise satisfied all of the conditions imposed pursuant to the license suspension and/or probation period. (b) An individual seeking license reinstatement and/or removal from probationary status must pay the appropriate fees and submit the documentation required by the Board to show that all the conditions imposed pursuant to the license suspension and/or the probation period have been met. Proof that the individual has met the continuing education requirements of this chapter may also be required. (c) [Repealed.] (71 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 296, § 1; 82 Del. Laws, c. 8, § 6.) Page 174 Title 24 - Professions and Occupations §§ 1818, 1819 Subchapter III License — Heating, Ventilation, Air Conditioning, and Refrigeration § 1820 License required; exemptions. (a) A person shall not provide HVACR or HVACR restricted services in this State nor hold himself or herself out to the public as being a master HVACR licensee or master HVACR restricted licensee, nor use “master HVACR licensee”, “master HVACR restricted licensee” in connection with that person’s name nor otherwise assume or use any title or description conveying or tending to convey the impression that that person is qualified to provide HVACR or HVACR restricted services, unless that person has been licensed as a master HVACR licensee or a master HVACR restricted licensee under this chapter or exempted from the provisions of this chapter pursuant to subsection (c) of this section. (b) If the license of a master HVACR licensee or master HVACR restricted licensee has expired or been suspended or revoked, it is unlawful for the holder of the expired, suspended, or revoked license to act as a master HVACR licensee, or master HVACR restricted licensee in this State. (c) An individual may provide HVACR or HVACR restricted services without being licensed under this chapter if: (1) The individual is an apprentice, journeyman, mechanic or other person providing such services under the supervision of a master HVACR licensee or master HVACR restricted licensee, who is the individual’s employer or who is employed full time by the same business entity as the individual; (2) The individual is a homeowner who is performing HVACR services other than gas piping in or about that individual’s own home that is not for sale or any part for rent or lease; (3) The individual is providing such services on property used exclusively for agricultural purposes and the individual has filed an application for a permit with the authorized inspection authority; (4) The individual is providing such services pursuant to the provisions in § 1831 of this title. (d) The penalty for a violation of this section is, for a first offense, a fine of not less than $500 nor more than $1000, and, for a second or subsequent offense, a fine of not less than $1000 nor more than $2000. Justice of the Peace Courts have jurisdiction over violations of this section. (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1.) § 1821 Qualifications of applicant — Heating, ventilation, air conditioning, and refrigeration. (a) An applicant for licensure as a master HVACR licensee, or master HVACR restricted licensee, must submit evidence, satisfactory to the Board and verified by oath or affirmation, that the applicant: (1) Has received a journeyman’s certificate issued in any state following completion of an HVACR, or HVACR restricted apprenticeship program that meets or exceeds the Federal Bureau of Apprenticeship and Training Standards and, thereafter, performed HVACR, or HVACR restricted services for 2 years under the supervision of a master HVACR licensee, or master HVACR restricted licensee, or an individual holding a similar level of licensure in another state; or has performed HVACR or HVACR restricted services for 7 years under the supervision of a master HVACR licensee or master HVACR restricted licensee or an individual holding a similar level of licensure in another state and, thereafter, successfully completed the apprenticeship equivalency test approved by the Board and administered by a Delaware vocational-technical school; (2) Has achieved the passing score on a written, standardized examination, designated by the Board and approved by the Division, for licensure as a Delaware master HVACR licensee or master HVACR restricted licensee after fulfilling the experience and/or training requirements of this section; (3) Has been certified at the appropriate level for handling chlorofluorocarbons (CFC’s) by a testing organization approved by the Environmental Protection Agency; (4) Has not received any administrative penalties regarding that applicant’s practice, including, but not limited to, fines, formal reprimands, license suspension or revocation (except for license revocation for nonpayment of license renewal fees), probationary limitations, and consent agreements which contain conditions placed by a Board on the applicant’s occupational conduct or practice, including the voluntary surrender of a license, certificate, registration, or other authorization to provide HVACR services. The Board may determine after a hearing whether the imposition of a particular administrative penalty is grounds to deny licensure; (5) Does not have an impairment related to drug or alcohol use that would limit that applicant’s ability to provide HVACR or HVACR restricted services in a manner that is not detrimental to the health, safety, or welfare of the public; (6) Does not have any disciplinary proceedings or unresolved complaints pending against that applicant in any jurisdiction where that applicant has previously been or is currently authorized to provide HVACR or HVACR restricted services; and (7) Does not have a criminal conviction record relating to an incident, the circumstances of which substantially relate to providing HVACR or HVACR restricted services. An applicant who has such a criminal conviction record must request appropriate authorities Page 175 Title 24 - Professions and Occupations provide information about the record directly to the Board in sufficient specificity to enable the Board to make a determination of whether the record is substantially related to providing HVACR or HVACR services. In determining whether a crime is substantially related to the professions regulated by this chapter, the Board may not consider a conviction where more than 10 years have elapsed since the date of the conviction, if there have been no other criminal convictions in the intervening time. After a hearing or review of documentation that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, or during the time between meetings, the Board President or the President’s designee, may waive this paragraph (a)(7) herein if it finds all of the following: a. For waiver of a felony conviction, where the crime was committed against a person, more than 3 years have passed since the date of the conviction and for all other felonies, more than 2 years have elapsed since the date of conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, or on parole at Level III Supervision or higher, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service. c. The applicant is capable of practicing plumbing services in a competent and professional manner. d. The granting of the waiver will not endanger the public health, safety or welfare. (8) Has not been convicted of a felony sexual offense. (b) The Board may waive the requirements of paragraph (a)(4) or (7) of this section for good cause. (c) Each applicant shall provide the information requested on the application form approved by the Board. All evidence of experience must be submitted by affidavit on forms approved by the Board. An application form may not require an applicant to submit a photograph of himself or herself, or information related to citizenship, place of birth, length of state residency, or personal references. (d) If the Board finds that false information has been intentionally provided to the Board, it shall report its finding to the Attorney General’s Office for further action. (e) If the Board refuses to accept, or rejects, an application and the applicant believes that the Board acted without justification, or imposed a higher or different standard to the applicant than to other applicants, or in some other unlawful manner contributed to or caused the refusal or rejection of the application, the applicant may appeal to the Superior Court. (f) [Repealed.] (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 192, §§ 8-10; 77 Del. Laws, c. 199, § 13; 78 Del. Laws, c. 44, §§ 26, 27; 82 Del. Laws, c. 197, § 2.) § 1822 Examination. (a) The written, standardized examination required in § 1821(a)(2) of this title must be offered at least quarterly. The Board will determine the passing score in its rules and regulations. (b) An applicant who fails to receive a passing score on an examination administered pursuant to this chapter may apply to retake the examination on the next available date. If an applicant fails to pass the examination after 3 attempts, the Board, in its rules and regulations, may specify the conditions under which an applicant may retake the examination. (75 Del. Laws, c. 296, § 1.) § 1823 Reciprocity. (a) Upon submission and acceptance of a written application on forms provided by the Board, along with payment of the required fee, the Board shall grant a license to each applicant who presents proof of current licensure in good standing in another state, the District of Columbia, or a territory of the United States whose standards for licensure are substantially similar to those of this State and who submits the verified evidence described in § 1821(a)(3) through (7) of this of this title. (b) An applicant who is licensed by another state, the District of Columbia, or a territory of the United States whose standards for licensure are not substantially similar to those of this State must have practiced for a minimum of 7 years after licensure, in addition to meeting the other qualifications for reciprocity in this section. (75 Del. Laws, c. 296, § 1.) § 1824 Fees. The amount set by the Division for each fee imposed under this chapter must approximate and reasonably reflect the costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its services on behalf of the Board. A separate fee may be charged for each service or activity, but a fee may not be charged unless the service or activity is specified in this chapter. The application fee may not be combined with any other fee. At the beginning of each licensure biennium, the Division, or another State agency acting in its behalf, shall compute the fees for each separate service or activity for the licensure biennium. (75 Del. Laws, c. 296, § 1.) Page 176 Title 24 - Professions and Occupations § 1825 Issuance and renewal of licenses. (a) The Board shall issue a license to each applicant who meets the requirements of this chapter for licensure as a master HVACR licensee or master HVACR restricted licensee and who pays the appropriate fees established under § 1824 of this title. (b) A license is renewable biennially in a manner determined by the Division, upon payment of the appropriate fee, submission of a renewal form provided by the Division, and proof that the licensee has met any continuing education requirements established by the Board. (c) The Board, in its rules and regulations, shall determine the period of time within which a licensee may renew that licensee’s license, notwithstanding the fact that the licensee failed to renew that licensee’s license on or before the designated renewal date; provided, however, that the period of time may not exceed 1 year beyond the designated renewal date. (d) A licensee, upon the licensee’s written request, may be placed on inactive status for no more than 5 years. A licensee on inactive status who desires to reactivate that licensee’s license must complete and submit an application form approved by the Board, submit the reactivation fee set by the Division, and submit proof of fulfillment of any continuing education requirements established by the Board. (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1.) § 1826 Complaints. (a) All complaints received by the Division must be investigated in accordance with § 8735 of Title 29. The Division must issue a final written report at the conclusion of its investigation. (b) If the Board determines that a person has provided or is providing HVACR or HVACR restricted services or has used or is using the title “master HVACR licensee”, “master HVACR restricted licensee”, or a similar designation contrary to the requirements of this chapter, the Board shall request that the Office of the Attorney General issue a cease and desist order and/or prosecute the person. (75 Del. Laws, c. 296, § 1.) § 1827 Grounds for discipline or other remediation. (a) An individual licensed under this chapter is subject to disciplinary sanctions set forth in § 1828 of this title or other appropriate remediation, if, after a hearing, the Board finds that the licensee has: (1) Employed or knowingly cooperated in fraud or material deception in order to acquire a license, has allowed another person to use that licensee’s license, or has aided or abetted an unlicensed to represent himself or herself as an individual licensed pursuant to this chapter; (2) Illegally, incompetently, or negligently provided HVACR or HVACR restricted services; (3) Been convicted of an offense, the circumstances of which substantially relate to providing HVACR or HVACR restricted services. A copy of the record of conviction certified by the clerk of the court entering the conviction is conclusive evidence of conviction; (4) In the last 2 years used illegal drugs; used prescription drugs without a prescription; excessively used legally prescribed drugs; or abused alcoholic beverages or drugs to the extent that it impaired that licensee’s ability to provide services authorized under this chapter with reasonable skill, competence, and safety to the public; (5) Engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities; (6) Violated a provision of this chapter or any lawful regulation established hereunder; (7) Had that licensee’s license as a master HVACR licensee or master HVACR restricted licensee suspended or revoked, or been subjected to other adverse action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for the suspension, revocation, or other adverse action in another jurisdiction have been presented to the Board by certified record and the Board has determined that the facts found by the appropriate licensing authority in the other jurisdiction constitute 1 or more of the acts listed in this section. A person licensed in this State is deemed to have given consent to the release of information regarding license suspension or revocation or other adverse action taken by the Board or by comparable agencies in other jurisdictions and to have waived all objections to the admissibility of previously adjudicated evidence of the acts or offenses which underlie license suspension or revocation or other adverse action; (8) Failed to notify the Board that the licensee’s license to provide services authorized under this chapter in another jurisdiction has been subject to discipline, or has been surrendered, suspended, or revoked. A certified copy of the record of disciplinary action, or of the surrender, suspension, or revocation of the license shall be conclusive evidence thereof; and (9) A physical or mental impairment that prevents that licensee from providing services authorized under this chapter with reasonable skill, competence, and safety to the public. (b) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person’s license, pending a hearing, upon the written order of the Secretary of State or the Secretary’s designee, with the concurrence of the Board chair or the Board chair’s designee. An order temporarily suspending a license may not be issued unless the person or the person’s attorney received at least 24 hours’ written or oral notice before the temporary suspension so that the person or the person’s attorney may file a written response to the proposed suspension. Page 177 Title 24 - Professions and Occupations The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. 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 temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license 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 to temporarily suspend the person’s license. (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 213, § 2.) § 1828 Disciplinary sanctions. (a) The Board may impose any of the following sanctions, singly or in combination, when it determines that a licensee has violated a ground for discipline set forth in § 1827 of this title: (1) Issue a letter of reprimand to the licensee; (2) Censure the licensee; (3) Place the licensee on probationary status and require that licensee to: a. Report regularly to the Board upon the matters that are the basis of the probation; and/or b. Limit all practice and professional activities to those areas prescribed by the Board; (4) Suspend the license of the licensee; (5) Revoke the license of the licensee; (6) Prescribe an administrative penalty, not to exceed $500 for each violation. (b) The Board may withdraw or reduce conditions of probation imposed pursuant to paragraph (a)(3) of this section, if it finds that the deficiencies that required the conditions of probation to be imposed have been remedied. (c) If the Board suspends a licensee due to an impairment pursuant to § 1827(9) of this title, the Board may reinstate the license if, after a hearing, the Board is satisfied that the licensee is able to provide professional services with reasonable skill, competence, and safety to the public. (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1.) § 1829 Hearing procedures. (a) If a complaint alleging that a licensee has violated § 1827 of this title is filed with the Division pursuant to § 8735(h) of Title 29, the Board shall set a time and place to conduct a hearing on the complaint. The Division shall give notice of the hearing and the Board shall conduct the hearing in accordance with the Administrative Procedures Act, Chapter 101 of Title 29. (b) A hearing conducted pursuant to this section is informal, without the use of the Delaware Rules of Evidence. If the Board decides by the affirmative votes of 5 or more members that a licensee has violated § 1827 of this title, the Board may take any action permitted under this chapter that the Board considers reasonable. The Board’s decision must be in writing and must include the reasons for the decision. The Board shall immediately mail its decision to the licensee or personally serve the licensee with the decision. (c) If a licensee disagrees with the decision of the Board, the licensee may appeal the Board’s decision to the Superior Court within 30 days of the postmarked date of the copy of the decision mailed to that licensee, or within 30 days of personal service. Upon appeal, the Court shall review the evidence on the record. A stay pending review may be granted by the Court in accordance with § 10144 of Title 29. (75 Del. Laws, c. 296, § 1; 70 Del. Laws, c. 186, § 1.) § 1830 Reinstatement of a suspended license; removal from probationary status. (a) The Board may reinstate a suspended license if, after a hearing, the Board is satisfied that the licensee has taken the required corrective actions and has otherwise satisfied all of the conditions imposed pursuant to the license suspension and/or probation period. (b) An individual seeking license reinstatement and/or removal from probationary status must pay the appropriate fees and submit the documentation required by the Board to show that all the conditions imposed pursuant to the license suspension and/or the probation period have been met. Proof that the individual has met the continuing education requirements of this chapter may also be required. (c) [Repealed.] (75 Del. Laws, c. 296, § 1; 82 Del. Laws, c. 8, § 7.) Subchapter IV Miscellaneous Provisions § 1831 Artificial entity’s loss of license holder. (a) If a partnership, firm, corporation, or other artificial entity that provides services regulated under this chapter suffers the loss of its sole license holder, the entity shall notify the Board in writing with supporting documentation within 7 days of the loss of its license holder. Page 178 Title 24 - Professions and Occupations (b) The Board shall schedule an emergency meeting within 10 days of notification pursuant to subsection (a) of this section. From the date of loss of the sole license holder through the date of the emergency meeting, the entity may continue to operate without a license holder, provided that the entity continues to employ the same personnel with the exception of the license holder. (c) An owner or employee of an entity that desires to continue providing services despite the loss of the sole license holder must submit an application for licensure to the Board before the emergency meeting scheduled pursuant to subsection (b) of this section, for consideration by the Board at the meeting. At the meeting the Board may issue a temporary license to the applicant, valid for 100 days, dated from the date of notification to the Board by the entity, pursuant to subsection (a) of this section. (d) If the Board issues a temporary license to the applicant at the emergency meeting pursuant to subsection (c) of this section, the applicant must take the next available examination. (e) Notwithstanding the provisions of subsections (c) and (f) of this section, a temporary license expires immediately upon an applicant’s failure to take the next available examination; or, if the applicant takes the examination, upon the Board’s receipt of notification that the applicant failed the examination taken pursuant to subsection (d) of this section. (f) If a 100-day temporary license issued pursuant to this section expires and the entity has no license holder in its employ, the entity must cease and desist immediately from providing plumbing services for which a license is required under this chapter. (75 Del. Laws, c. 296, § 1.) § 1832 Local regulation. Nothing in this chapter shall be construed to limit the ability of any county, municipality, or other governmental entity to adopt and enforce plumbing, HVACR, or fuel gas codes and regulations that are not in conflict with this chapter. (75 Del. Laws, c. 296, § 1.) Page 179 Title 24 - Professions and Occupations Chapter 19 Nursing § 1901 Declaration of legislative intent. The General Assembly hereby declares the practice of nursing by competent persons is necessary for the protection of the public health, safety and welfare and further finds that the levels of practice within the profession of nursing should be regulated and controlled in the public interest. In order to safeguard life and health, the general administration and supervision of the education, examination, licensing and regulation of professional and practical nursing is declared essential, and such general administration and supervision is vested in the Board of Nursing. (24 Del. C. 1953, § 1901; 54 Del. Laws, c. 153, § 1; 64 Del. Laws, c. 26, § 1; 69 Del. Laws, c. 319, § 2.) § 1902 Definitions [Effective until Jan. 1, 2021]. (a) “Administration of medications” means a process whereby a single dose of a prescribed drug or biological is given to a patient by an authorized licensed person by 1 of several routes, oral, inhalation, topical, or parenteral. The person verifies the properly prescribed drug order, removes the individual dose from a previously dispensed, properly labeled container (including a unit dose container), assesses the patient’s status to assure that the drug is given as prescribed to the patient for whom it is prescribed and that there are no known contraindications to the use of the drug or the dosage that has been prescribed, gives the individual dose to the proper patient, records the time and dose given, and assesses the patient following the administration of medication for possible untoward side effects. (b) [Repealed.] (c) “Advanced practice registered nurse” (“APRN”) means an individual with knowledge and skills acquired in basic nursing education; licensure as a registered nurse (“RN”); and graduation from or completion of a graduate-level APRN program accredited by a national accrediting body and current certification by a national certifying body in the appropriate APRN role and at least 1 population focus. “Advanced practice registered nurse” includes certified nurse practitioners, certified registered nurse anesthetists, certified nurse midwives, or clinical nurse specialists. Advanced practice nursing means an expanded scope of nursing in a role and population focus approved by the Board of Nursing, with or without compensation or personal profit, and includes the RN scope of practice. The scope of an APRN includes performing acts of advanced assessment, diagnosing, prescribing, and ordering. Advanced practice nursing is the application of nursing principles, including those described in subsection (y) of this section. (d) “Collaborative agreement” means a written document expressing an arrangement between a licensed physician, podiatrist, or licensed Delaware health-care delivery system and an advanced practice registered nurse. (e) “Compact Administrator” means the Executive Director of the Delaware Board of Nursing who is designated as the Compact Administrator under Chapter 19A of this title by the President of the Board. (f) “Consultation” means the communication and decision-making process among health-care professionals related to the treatment and care of a patient, including the exchange of clinical observations and assessments; accessing and assessment of appropriate additional resources or expertise; arrangement of appropriate referrals, testing, or studies; and development of an appropriate plan of care that includes decisions regarding the health care provided. (g) “Conversion therapy” means any practice or treatment that seeks to change an individual’s sexual orientation or gender identity, as “sexual orientation” and “gender identity” are defined in § 710 of Title 19, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. “Conversion therapy” does not mean any of the following: (1) Counseling that provides assistance to an individual who is seeking to undergo a gender transition or who is in the process of undergoing gender transition. (2) Counseling that provides an individual with acceptance, support, and understanding without seeking to change an individual’s sexual orientation or gender identity. (3) Counseling that facilitates an individual’s coping, social support, and identity exploration and development, including counseling in the form of sexual orientation-neutral interventions or gender identity-neutral interventions provided for the purpose of preventing or addressing unlawful conduct or unsafe sexual practices, without seeking to change an individual’s sexual orientation or gender identity. (h) “Dispensing” means providing medication according to an order of a practitioner duly licensed to prescribe medication. The term includes both the repackaging and labeling of medications from bulk to individual dosages. (i) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing healthcare services by means of telemedicine or telehealth. (j) “Full-practice authority,” as granted to an advanced practice registered nurse, means all of the following: (1) Practicing within standards established or recognized by the Board of Nursing. (2) Being accountable to patients, the nursing profession, and the Board of Nursing for complying with the requirements of this chapter and the quality of advanced nursing care rendered. (3) Recognizing limits of knowledge and experience. Page 180 Title 24 - Professions and Occupations (4) Planning for the management of situations beyond the APRN’s expertise. (5) Consultation with or referring patients to other health-care providers as appropriate. (k) “Head of the Nursing Licensing Board” means the President of the Delaware Board of Nursing. (l) “Independent practice” means practice and prescribing by an advanced practice registered nurse who is not subject to a collaborative agreement and works outside the employment of an established health-care organization, health-care delivery system, physician, podiatrist, or practice group owned by a physician or podiatrist. Independent practice shall be in an area substantially related to the population focus of the APRN’s education and certification. (m) “Licensure” means the authorization to practice nursing within this State granted by the Delaware Board of Nursing and includes the authorization to practice in Delaware under the Interstate Nurse Licensure Compact [Chapter 19A of this title]. (n) “Limited lay administration of medications (LLAM)” means a process by which LLAM trained unlicensed assistive personnel, functioning in a setting authorized by § 1932 of this title, give a prescribed medication to clients, patients, residents, or students as ordered by a licensed practitioner authorized to prescribe medications or gives a nonprescription medication pursuant to the Delacare regulations. (o) “LLAM trained unlicensed assistive personnel (UAP)” means an individual who has successfully completed the Board of Nursing approved LLAM course, including the core course and any program specific specialized training modules required. (p) “Nurse educator” means a registered nurse who is a faculty member or director of a Delaware board-approved nursing education program preparing individuals at the registered nurse entry level. (q) “Nursing diagnosis” means the description of the individual’s actual or potential health needs which are identified through a nursing assessment and are amenable to nursing intervention. The focus of the nursing diagnosis is on the individual’s response to illness or other factors that may adversely affect the attainment or maintenance of wellness. These diagnostic acts are distinct from medical, osteopathic, and dental diagnosis. (r) “Nursing education program” means a course of instruction offered and conducted to prepare persons for licensure as a registered or licensed practical nurse, or a course of instruction offered and conducted to increase the knowledge and skills of the nurse and leads to an academic degree in nursing, or refresher courses in nursing. (s) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to the patient by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. (t) “Standards of nursing practice” means those standards of practice adopted by the Board that interpret the legal definitions of nursing, as well as provide criteria against which violations of the law can be determined. Such standards of nursing practice may not be used to directly or indirectly affect the employment practices and deployment of personnel by duly licensed or accredited hospitals and other duly licensed or accredited health-care facilities and organizations. In addition, such standards may not be assumed the only evidence in civil malpractice litigation, nor may they be given a different weight than any other evidence. (u) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (v) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of nursing. (w) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices, or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (x) “Telemedicine” means the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (y) “The practice of practical nursing” as a licensed practical nurse means the performance for compensation of nursing services by a person who holds a valid license pursuant to the terms of this chapter and who bears accountability for nursing practices which require basic knowledge of physical, social, and nursing sciences. These services, at the direction of a registered nurse or a person licensed to practice medicine, surgery, or dentistry, include: (1) Observation; (2) Assessment; (3) Planning and giving of nursing care to the ill, injured and infirm; (4) The maintenance of health and well-being; (5) The administration of medications and treatments prescribed by a licensed physician, dentist, podiatrist, or advanced practice registered nurse; and Page 181 Title 24 - Professions and Occupations (6) Additional nursing services and supervision commensurate with the licensed practical nurse’s continuing education and demonstrated competencies; (7) Dispensing activities only as permitted in the Board’s Rules and Regulations. Nothing contained in this chapter shall be deemed to permit acts of surgery or medical diagnosis; nor shall it be deemed to permit dispensing of drugs, medications, or therapeutics independent of the supervision of a physician who is licensed to practice medicine and surgery, or those licensed to practice dentistry or podiatry; and (8) The use of telemedicine, as defined in this chapter, and practice of and participation in telehealth as further defined in regulation. (z) “The practice of professional nursing” as a registered nurse means the performance of professional nursing services by a person who holds a valid license pursuant to the terms of this chapter, and who bears primary responsibility and accountability for nursing practices based on specialized knowledge, judgment, and skill derived from the principles of biological, physical, and behavioral sciences. The registered nurse practices in the profession of nursing by the performance of activities, among which are: (1) Assessing human responses to actual or potential health conditions; (2) Identifying the needs of the individual or family by developing a nursing diagnosis; (3) Implementing nursing interventions based on the nursing diagnosis; (4) Teaching health-care practices. Nothing contained in this subsection limits other qualified persons or agencies from teaching health-care practices without being licensed under this chapter; (5) Advocating the provision of health-care services through collaboration with other health service personnel; (6) Executing regimens, as prescribed by a licensed physician, dentist, podiatrist, or advanced practice registered nurse, including the dispensing or administration of medications and treatments; (7) Administering, supervising, delegating, and evaluating nursing activities; (8) The use of telemedicine, as defined in this chapter, and participation in telehealth, as further defined in regulation. (9) Nothing contained in this chapter shall be deemed to permit acts of surgery or medical diagnosis; nor shall it be deemed to permit dispensing of drugs, medications, or therapeutics independent of the supervision of a physician who is licensed to practice medicine and surgery, or those licensed to practice dentistry or podiatry. A registered nurse shall have the authority, as part of the practice of professional nursing, to make a pronouncement of death; provided, however, that this provision shall only apply to attending nurses caring for terminally ill patients or patients who have “do not resuscitate” orders in the home or place of residence of the deceased as a part of a hospice program or a certified home health-care agency program; in a skilled nursing facility; in a residential community associated with a skilled nursing facility; any licensed assisted living community; in an extended care facility; or in a hospice; and provided that the attending physician of record has agreed in writing to permit the attending registered nurse to make a pronouncement of death in that case. (aa) “The profession of nursing” is an art and process based on a scientific body of knowledge. The practitioner of nursing assists patients in the maintenance of health; the management of illness, injury, or infirmity; or the achievement of a dignified death. (24 Del. C. 1953, § 1902; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 67 Del. Laws, c. 5, § 2; 67 Del. Laws, c. 434, § 2; 68 Del. Laws, c. 152, § 2; 68 Del. Laws, c. 161, § 2; 69 Del. Laws, c. 319, §§ 3-7, 13; 71 Del. Laws, c. 283, § 2; 71 Del. Laws, c. 478, § 1; 72 Del. Laws, c. 334, § 2; 73 Del. Laws, c. 285, §§ 1, 2; 73 Del. Laws, c. 316, §§ 1, 2; 74 Del. Laws, c. 262, § 34; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 420, § 2; 80 Del. Laws, c. 80, § 10; 80 Del. Laws, c. 171; 80 Del. Laws, c. 172, § 1; 81 Del. Laws, c. 80, § 1; 81 Del. Laws, c. 340, § 4.) § 1902 Definitions [Effective Jan. 1, 2021]. (a) “Administration of medications” means a process whereby a single dose of a prescribed drug or biological is given to a patient by an authorized licensed person by 1 of several routes, oral, inhalation, topical, or parenteral. The person verifies the properly prescribed drug order, removes the individual dose from a previously dispensed, properly labeled container (including a unit dose container), assesses the patient’s status to assure that the drug is given as prescribed to the patient for whom it is prescribed and that there are no known contraindications to the use of the drug or the dosage that has been prescribed, gives the individual dose to the proper patient, records the time and dose given, and assesses the patient following the administration of medication for possible untoward side effects. (b) [Repealed.] (c) “Advanced practice registered nurse” (“APRN”) means an individual with knowledge and skills acquired in basic nursing education; licensure as a registered nurse (“RN”); and graduation from or completion of a graduate-level APRN program accredited by a national accrediting body and current certification by a national certifying body in the appropriate APRN role and at least 1 population focus. “Advanced practice registered nurse” includes certified nurse practitioners, certified registered nurse anesthetists, certified nurse midwives, or clinical nurse specialists. Advanced practice nursing means an expanded scope of nursing in a role and population focus approved by the Board of Nursing, with or without compensation or personal profit, and includes the RN scope of practice. The scope of an APRN includes performing acts of advanced assessment, diagnosing, prescribing, and ordering. Advanced practice nursing is the application of nursing principles, including those described in subsection (y) of this section. (d) “Collaborative agreement” means a written document expressing an arrangement between a licensed physician, podiatrist, or licensed Delaware health-care delivery system and an advanced practice registered nurse. Page 182 Title 24 - Professions and Occupations (e) “Compact Administrator” means the Executive Director of the Delaware Board of Nursing who is designated as the Compact Administrator under Chapter 19A of this title by the President of the Board. (f) “Consultation” means the communication and decision-making process among health-care professionals related to the treatment and care of a patient, including the exchange of clinical observations and assessments; accessing and assessment of appropriate additional resources or expertise; arrangement of appropriate referrals, testing, or studies; and development of an appropriate plan of care that includes decisions regarding the health care provided. (g) “Conversion therapy” means any practice or treatment that seeks to change an individual’s sexual orientation or gender identity, as “sexual orientation” and “gender identity” are defined in § 710 of Title 19, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. “Conversion therapy” does not mean any of the following: (1) Counseling that provides assistance to an individual who is seeking to undergo a gender transition or who is in the process of undergoing gender transition. (2) Counseling that provides an individual with acceptance, support, and understanding without seeking to change an individual’s sexual orientation or gender identity. (3) Counseling that facilitates an individual’s coping, social support, and identity exploration and development, including counseling in the form of sexual orientation-neutral interventions or gender identity-neutral interventions provided for the purpose of preventing or addressing unlawful conduct or unsafe sexual practices, without seeking to change an individual’s sexual orientation or gender identity. (h) “Dispensing” means providing medication according to an order of a practitioner duly licensed to prescribe medication. The term includes both the repackaging and labeling of medications from bulk to individual dosages. (i) “Distant site” means a site at which a health-care provider legally allowed to practice in the State is located while providing healthcare services by means of telemedicine or telehealth. (j) “Electronic prescription” means a prescription that is generated on an electronic application and transmitted as an electronic data file. (k) “Full-practice authority,” as granted to an advanced practice registered nurse, means all of the following: (1) Practicing within standards established or recognized by the Board of Nursing. (2) Being accountable to patients, the nursing profession, and the Board of Nursing for complying with the requirements of this chapter and the quality of advanced nursing care rendered. (3) Recognizing limits of knowledge and experience. (4) Planning for the management of situations beyond the APRN’s expertise. (5) Consultation with or referring patients to other health-care providers as appropriate. (l) “Head of the Nursing Licensing Board” means the President of the Delaware Board of Nursing. (m) “Independent practice” means practice and prescribing by an advanced practice registered nurse who is not subject to a collaborative agreement and works outside the employment of an established health-care organization, health-care delivery system, physician, podiatrist, or practice group owned by a physician or podiatrist. Independent practice shall be in an area substantially related to the population focus of the APRN’s education and certification. (n) “Licensure” means the authorization to practice nursing within this State granted by the Delaware Board of Nursing and includes the authorization to practice in Delaware under the Interstate Nurse Licensure Compact [Chapter 19A of this title]. (o) “Limited lay administration of medications (LLAM)” means a process by which LLAM trained unlicensed assistive personnel, functioning in a setting authorized by § 1932 of this title, give a prescribed medication to clients, patients, residents, or students as ordered by a licensed practitioner authorized to prescribe medications or gives a nonprescription medication pursuant to the Delacare regulations. (p) “LLAM trained unlicensed assistive personnel (UAP)” means an individual who has successfully completed the Board of Nursing approved LLAM course, including the core course and any program specific specialized training modules required. (q) “Nurse educator” means a registered nurse who is a faculty member or director of a Delaware board-approved nursing education program preparing individuals at the registered nurse entry level. (r) “Nursing diagnosis” means the description of the individual’s actual or potential health needs which are identified through a nursing assessment and are amenable to nursing intervention. The focus of the nursing diagnosis is on the individual’s response to illness or other factors that may adversely affect the attainment or maintenance of wellness. These diagnostic acts are distinct from medical, osteopathic, and dental diagnosis. (s) “Nursing education program” means a course of instruction offered and conducted to prepare persons for licensure as a registered or licensed practical nurse, or a course of instruction offered and conducted to increase the knowledge and skills of the nurse and leads to an academic degree in nursing, or refresher courses in nursing. (t) “Originating site” means a site in Delaware at which a patient is located at the time health-care services are provided to the patient by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties. Page 183 Title 24 - Professions and Occupations (u) “Standards of nursing practice” means those standards of practice adopted by the Board that interpret the legal definitions of nursing, as well as provide criteria against which violations of the law can be determined. Such standards of nursing practice may not be used to directly or indirectly affect the employment practices and deployment of personnel by duly licensed or accredited hospitals and other duly licensed or accredited health-care facilities and organizations. In addition, such standards may not be assumed the only evidence in civil malpractice litigation, nor may they be given a different weight than any other evidence. (v) “Store and forward transfer” means the transmission of a patient’s medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time. (w) “Substantially related” means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of nursing. (x) “Telehealth” means the use of information and communications technologies consisting of telephones, remote patient monitoring devices, or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation. (y) “Telemedicine” means the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation. (z) “The practice of practical nursing” as a licensed practical nurse means the performance for compensation of nursing services by a person who holds a valid license pursuant to the terms of this chapter and who bears accountability for nursing practices which require basic knowledge of physical, social, and nursing sciences. These services, at the direction of a registered nurse or a person licensed to practice medicine, surgery, or dentistry, include: (1) Observation; (2) Assessment; (3) Planning and giving of nursing care to the ill, injured and infirm; (4) The maintenance of health and well-being; (5) The administration of medications and treatments prescribed by a licensed physician, dentist, podiatrist, or advanced practice registered nurse; and (6) Additional nursing services and supervision commensurate with the licensed practical nurse’s continuing education and demonstrated competencies; (7) Dispensing activities only as permitted in the Board’s Rules and Regulations. Nothing contained in this chapter shall be deemed to permit acts of surgery or medical diagnosis; nor shall it be deemed to permit dispensing of drugs, medications, or therapeutics independent of the supervision of a physician who is licensed to practice medicine and surgery, or those licensed to practice dentistry or podiatry; and (8) The use of telemedicine, as defined in this chapter, and practice of and participation in telehealth as further defined in regulation. (aa) “The practice of professional nursing” as a registered nurse means the performance of professional nursing services by a person who holds a valid license pursuant to the terms of this chapter, and who bears primary responsibility and accountability for nursing practices based on specialized knowledge, judgment, and skill derived from the principles of biological, physical, and behavioral sciences. The registered nurse practices in the profession of nursing by the performance of activities, among which are: (1) Assessing human responses to actual or potential health conditions; (2) Identifying the needs of the individual or family by developing a nursing diagnosis; (3) Implementing nursing interventions based on the nursing diagnosis; (4) Teaching health-care practices. Nothing contained in this subsection limits other qualified persons or agencies from teaching health-care practices without being licensed under this chapter; (5) Advocating the provision of health-care services through collaboration with other health service personnel; (6) Executing regimens, as prescribed by a licensed physician, dentist, podiatrist, or advanced practice registered nurse, including the dispensing or administration of medications and treatments; (7) Administering, supervising, delegating, and evaluating nursing activities; (8) The use of telemedicine, as defined in this chapter, and participation in telehealth, as further defined in regulation. (9) Nothing contained in this chapter shall be deemed to permit acts of surgery or medical diagnosis; nor shall it be deemed to permit dispensing of drugs, medications, or therapeutics independent of the supervision of a physician who is licensed to practice medicine and surgery, or those licensed to practice dentistry or podiatry. A registered nurse shall have the authority, as part of the practice of professional nursing, to make a pronouncement of death; provided, however, that this provision shall only apply to attending nurses caring for terminally ill patients or patients who have “do not resuscitate” Page 184 Title 24 - Professions and Occupations orders in the home or place of residence of the deceased as a part of a hospice program or a certified home health-care agency program; in a skilled nursing facility; in a residential community associated with a skilled nursing facility; any licensed assisted living community; in an extended care facility; or in a hospice; and provided that the attending physician of record has agreed in writing to permit the attending registered nurse to make a pronouncement of death in that case. (bb) “The profession of nursing” is an art and process based on a scientific body of knowledge. The practitioner of nursing assists patients in the maintenance of health; the management of illness, injury, or infirmity; or the achievement of a dignified death. (24 Del. C. 1953, § 1902; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 67 Del. Laws, c. 5, § 2; 67 Del. Laws, c. 434, § 2; 68 Del. Laws, c. 152, § 2; 68 Del. Laws, c. 161, § 2; 69 Del. Laws, c. 319, §§ 3-7, 13; 71 Del. Laws, c. 283, § 2; 71 Del. Laws, c. 478, § 1; 72 Del. Laws, c. 334, § 2; 73 Del. Laws, c. 285, §§ 1, 2; 73 Del. Laws, c. 316, §§ 1, 2; 74 Del. Laws, c. 262, § 34; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 420, § 2; 80 Del. Laws, c. 80, § 10; 80 Del. Laws, c. 171; 80 Del. Laws, c. 172, § 1; 81 Del. Laws, c. 80, § 1; 81 Del. Laws, c. 340, § 4; 82 Del. Laws, c. 75, § 4.) § 1903 Delaware Board of Nursing — Appointments; qualifications; terms of office; vacancies; suspension or removal. (a) The Delaware Board of Nursing (hereafter referred to as the Board) shall consist of 15 members. The term of office of every member appointed to the Board, except those appointed to fill vacancies occurring during any term of office, is 3 years. The Board shall be composed of 5 registered nurses, 1 licensed practical nurse, 1 nurse at-large which shall be either a registered nurse or licensed practical nurse, 2 advanced practice registered nurses representing different practice roles, 1 registered nurse educator, and 5 public members. Registered nurse appointees shall have a diploma or an earned degree in nursing, nursing education or education, and at least 3 years’ active practice as a registered nurse in nursing service, administration or teaching. Each practical nurse appointee shall be a licensed practical nurse, who is a graduate of an approved school of practical nursing, with at least 3 years’ active practice as a practical nurse. The public members shall be residents of Delaware for a minimum of 3 years, shall be knowledgeable about the health needs of Delaware, but shall not be licensees of any health occupation board, employees of a health-care occupational board, employees of a health-care facility or agency, or engaged in governance or administration of a health-care facility or agency. (b) The nursing experience referred to in this section shall have been within the last 5 years preceding appointment and said appointee must be currently licensed in Delaware. (c) The Governor shall appoint all members to the Board of Nursing. (d) Sixty days prior to the expiration of the term of any member of the Board, a successor shall be appointed by the Governor. A list of at least 3 nominees for each registered nurse vacancy may be furnished to the Governor by the Delaware Nurses’ Association and other professional organizations in order to aid the Governor in the appointment of new members of the Board. A list of at least 3 nominees for each licensed practical nurse vacancy may be furnished to the Governor by the Delaware Licensed Practical Nurses’ Association and others in the practical nursing community in order to aid the Governor in the appointment of new members of the Board. The Governor shall not be limited to the recommendations of the professional organizations in making appointments of registered or practical nurses to the Board. The Governor shall seek nominees from the consumer population for the public members appointees. Vacancies occurring for any cause other than expiration of term shall be filled by the Governor for the unexpired term as provided in this subsection. (e) At least 1 of the professional nurse members of the Board shall be a resident of New Castle County, 1 a resident of Kent County and 1 a resident of Sussex County. Licensed practical nurse members shall be representatives of at least 2 counties simultaneously. If there is no qualified person available in the geographical subdivision, then appointments shall be made from qualified persons available in any of the other geographical subdivisions. (f) Each member shall serve for a term of 3 years, and may successively serve for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may successively serve for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. (g) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served. (h) Any act or vote by a person appointed in violation of subsection (g) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (g) of this section, unless such amendment or revision amends this section to permit such an appointment. (i) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court. (j) No member of the Board shall hold any elective office in, nor be a representative of, any local, state, regional or national nursing association. Page 185 Title 24 - Professions and Occupations (k) The provisions set forth for “employees” in Chapter 58 of Title 29 shall apply to all members of the Board, and to all agents appointed or otherwise employed by the Board. (24 Del. C. 1953, § 1903; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, §§ 1, 12, 13; 64 Del. Laws, c. 26, § 1; 67 Del. Laws, c. 366, § 5; 67 Del. Laws, c. 368, § 10; 68 Del. Laws, c. 162, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 482, §§ 1, 2; 72 Del. Laws, c. 121, § 1; 77 Del. Laws, c. 420, § 1; 79 Del. Laws, c. 368, § 1; 81 Del. Laws, c. 80, § 2.) § 1904 Delaware Board of Nursing — Election of officers; quorum; rules and regulations; special meetings; compensation; seal. (a) The Board shall elect, annually, from its members a President and Vice-President. In the event of a vacancy in 1 of the offices, a replacement shall be elected at the next Board meeting or at a meeting called for that purpose. (b) Eight members of the Board, including 1 officer, shall constitute a quorum. (c) The Board may adopt and promulgate such rules and regulations as may be necessary to govern its proceedings, to define the duties of its officers and to effectuate the intent and purpose of this chapter. (d) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9. (e) The Board shall adopt a seal and may use that seal on official documents. (24 Del. C. 1953, § 1904; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, § 2; 64 Del. Laws, c. 26, § 1; 67 Del. Laws, c. 366, § 6; 70 Del. Laws, c. 482, §§ 3, 25; 81 Del. Laws, c. 85, § 9.) § 1905 Delaware Board of Nursing — Executive Director. The Executive Director shall be a registered nurse with at least 5 years’ experience in an administrative or teaching position, have earned a master’s degree in nursing, nursing education, education or a related health field. (24 Del. C. 1953, § 1905; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 67 Del. Laws, c. 144, § 2.) § 1906 Delaware Board of Nursing — Powers and duties. (a) The Board shall: (1) Adopt and, from time to time, revise such rules and regulations and standards not inconsistent with the law as may be necessary to enable it to carry into effect this chapter; (2) Approve curricula and develop criteria and standards for evaluating educational programs preparing persons for license under this chapter; (3) Provide for surveys of such programs at such times as it may deem necessary; (4) Approve such programs as meet the requirements of this chapter and of the Board; (5) Deny or withdraw approval from educational programs for failure to meet approved curricula or other criteria; (6) Examine, license and renew licenses of duly qualified applicants, including applicants for conducting nursing educational programs and shall also prescribe the procedures for subsequent examinations of applicants who fail an examination; (7) Establish categories of advanced practice registered nurses in the roles of certified nurse practitioner (CNP), certified registered nurse anesthetist (CRNA), certified nurse midwife (CNM), and clinical nurse specialist (CNS) and in the population foci of family/ individual across the lifespan, adult-gerontology, neonatal, pediatrics, women’s health/gender-related or psychiatric/mental health. Each APRN shall use the designation “APRN” plus role title as a minimum for purposes of identification and documentation. When providing nursing care, the APRN shall provide clear identification that indicates his or her APRN designation; (8) Issue a temporary permit to practice nursing to applicants who apply for licensure by endorsement and to new graduates awaiting results of the first licensing examination; (9) Conduct hearings upon charges calling for discipline of a licensee or revocation of a license; (10) Have the power to issue subpoenas and compel the attendance of witnesses, and administer oaths to persons giving testimony at hearings; (11) Cause the prosecution of all persons violating this chapter and have the power to incur such necessary expenses therefor; (12) Keep a record of all its proceedings; (13) Make an annual report to the Governor; (14) Have all of the duties, powers and authority necessary to the enforcement of this chapter, as well as such other duties, powers and authority as it may be granted from time to time by appropriate statute; (15) Appoint advisory committees as the Board deems desirable; (16) Maintain a system of statistics related to nursing education programs and registered nurse and licensed practical nurse licensure in the State; (17) Participate in and pay fees to the national organization of state boards of nursing, the National Council of State Boards of Nursing, Inc.; Page 186 Title 24 - Professions and Occupations (18) By regulation, establish requirements for mandatory continuing education; (19) Administer the Advanced Practice Registered Nurse Committee; (20) Have the authority to grant, restrict, suspend or revoke practice or prescriptive authority and be responsible for promulgating rules and regulations to implement the provisions of this chapter regarding advanced practice registered nurses who have been granted authority for independent practice or prescriptive authority; (21) Have the authority to limit the ability of APRNs to prescribe and order nonpharmacological interventions. (b) The Board of Nursing shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of nursing. (24 Del. C. 1953, § 1906; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 65 Del. Laws, c. 380, § 2; 67 Del. Laws, c. 10, § 1; 67 Del. Laws, c. 144, § 3; 69 Del. Laws, c. 319, §§ 8, 9; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 482, §§ 4, 26; 74 Del. Laws, c. 262, § 35; 77 Del. Laws, c. 319, § 1; 80 Del. Laws, c. 171; 80 Del. Laws, c. 172, § 2.) § 1907 Delaware Board of Nursing — Revenue and expenses. (a) All fees and other money received by the Board shall be paid over to the State Treasurer, in accordance with Chapter 61 of Title 29. (b) Expenses of the Board, within the limits of appropriations made to it, shall be paid by the State Treasurer upon warrants signed by the proper officers of the Board. (24 Del. C. 1953, § 1907; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1.) § 1908 Delaware Board of Nursing — Meetings; examinations for licensing; nursing education programs; fees. (a) The Board shall meet as often as necessary to carry out its responsibilities as defined in this chapter. (b) Special meetings of the Board may be called by the Executive Director upon the request of the President or any 2 members. (c) The Board shall consider and act upon applications to conduct a nursing education program. (d) The amount charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board and the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting on its behalf, shall compute for each separate service or activity the appropriate Board fees for the coming year. (24 Del. C. 1953, § 1908; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, § 3; 63 Del. Laws, c. 84, § 1; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, §§ 5, 6.) § 1909 License requirement. No unlicensed person, except those persons issued a temporary permit by the Board, shall practice advanced practice, professional or practical nursing. Upon request, any person engaged in the practice of advanced practice, professional or practical nursing shall exhibit a license authorizing such practice. (24 Del. C. 1953, § 1909; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 69 Del. Laws, c. 319, § 10.) § 1910 Qualifications for registered nurse. An applicant for a license to practice as a registered nurse shall submit to the Board written evidence, verified by oath, that the applicant: (1) Is a graduate of and holds a certificate from a State Board of Nursing approved nursing education program that is authorized to prepare persons for licensure as a registered nurse; (2) Demonstrates competence in English related to nursing; (3) Has earned a high school diploma or its equivalent; (4) Is of such satisfactory physical and mental health as is consistent with the Americans with Disabilities Act [42 U.S.C. § 12101 et seq.]; (5) Has committed no acts which are grounds for disciplinary action as set forth in § 1922(a) of this title; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum may waive § 1922(a)(2) of this title if it finds all of the following: a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. c. The applicant is capable of practicing nursing in a competent and professional manner. Page 187 Title 24 - Professions and Occupations d. The granting of a waiver will not endanger the public health, safety, or welfare. e. The applicant has not been convicted of a felony sexual offense; (6) If seeking licensure by endorsement, demonstrates active employment in professional nursing in the past 5 years, or satisfactory completion of a professional nursing refresher program with an approved agency within 2 years prior to filing an application. In the event no refresher course is available the Board may consider alternate methods of evaluating current knowledge in professional nursing; and (7) Has passed the standard national examination for registered nursing. The National Council of State Boards of Nursing shall establish the passing score. (24 Del. C. 1953, § 1910; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, §§ 4, 5; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, §§ 7-9; 75 Del. Laws, c. 436, § 16; 77 Del. Laws, c. 199, § 14; 78 Del. Laws, c. 35, §§ 1, 2; 78 Del. Laws, c. 44, §§ 28, 29; 81 Del. Laws, c. 80, § 3.) § 1911 Licensure by examination for registered nurse [Repealed]. (24 Del. C. 1953, § 1911; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, § 10; repealed by 81 Del. Laws, c. 80, § 4, effective July 17, 2017.) § 1912 Reciprocity for registered nurse. (a) The Board may, by endorsement, without written examination, license as a registered nurse an applicant who, on or after July 1, 1983, is duly licensed as a registered nurse or is entitled to perform similar services under a different title under the laws of another state or territory of the United States or a foreign country if, in the opinion of the Board, the applicant meets the qualifications specified by this chapter for registered nurses in this State. (b) In the event the applicant has not been actively employed in professional nursing in the past 5 years, the applicant will be required to give evidence of satisfactory completion of a professional nursing refresher program with an approved agency within 2 years prior to endorsement before licensure by endorsement will be granted. In the event no refresher course is available the Board may consider alternate methods of evaluating current knowledge in professional nursing. (c) Verification of current Delaware license is provided upon request to other state boards of nursing. (24 Del. C. 1953, § 1912; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, § 11; 81 Del. Laws, c. 80, § 5.) § 1913 Registered nurses licensed under previous law. (a) Any person holding a license to practice nursing as a registered nurse that is valid on July 1, 1983, shall be deemed to be licensed as a registered nurse under this chapter and shall be eligible for renewal of such license under the conditions and standards prescribed by § 1918 of this title. (b) Any person eligible for reactivation or reinstatement of a license to practice nursing as a registered nurse in this state on or after July 1, 1983, shall be deemed to be eligible to be licensed as a registered nurse under this chapter and shall be eligible for renewal of such license under the conditions and standards prescribed by § 1918 of this title. (c) Any person whose license to practice nursing as a registered nurse has lapsed in this State on or after July 1, 1983, because of failure to renew may become licensed as a registered nurse under this chapter by applying for reinstatement according to the rules and regulations established by the Board of Nursing. (d) Any person who was licensed to practice nursing as a registered nurse and who had requested to be placed on inactive status in this State on or after July 1, 1983, may become licensed as a registered nurse under this chapter by applying for reactivation according to the rules and regulations established by the Board of Nursing. (24 Del. C. 1953, § 1916; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1.) § 1914 Qualifications for licensed practical nurse. An applicant for a license to practice as a licensed practical nurse shall submit to the Board written evidence, verified by oath, that such applicant: (1) Is a graduate of and holds a certificate from a State Board of Nursing approved practical nursing education program. The Board may, by an affirmative vote of a majority of a quorum of the Board, waive this requirement for application for licensure by endorsement if it finds clear and convincing evidence that the applicant’s education, training, experience, and conduct have been sufficient to overcome the deficiency in meeting this requirement; (2) Demonstrates competence in English related to nursing; (3) Has earned a high school diploma or its equivalent; (4) Is of such satisfactory physical and mental health as is consistent with the Americans with Disabilities Act [42 U.S.C. § 12101 et seq.]; (5) Has committed no acts which are grounds for disciplinary action as set forth in § 1922(a) of this title; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum may waive § 1922(a) of this title if it finds all of the following: Page 188 Title 24 - Professions and Occupations a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole, or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution, and community service. c. The applicant is capable of practicing nursing in a competent and professional manner. d. The granting of a waiver will not endanger the public health, safety, or welfare. e. The applicant has not been convicted of a felony sexual offense; (6) If seeking licensure by endorsement, demonstrates active employment in practical nursing in the past 5 years, or satisfactory completion of a practical nursing refresher program with an approved agency within 2 years prior to filing an application. In the event no refresher course is available the Board may consider alternate methods of evaluating current knowledge in practical nursing; and (7) Has passed the standard national examination for practical nursing. The National Council of State Boards of Nursing shall establish the passing score. (24 Del. C. 1953, § 1913; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, §§ 6, 7; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, §§ 12-14; 75 Del. Laws, c. 436, § 17; 77 Del. Laws, c. 199, § 15; 77 Del. Laws, c. 420, § 4; 78 Del. Laws, c. 35, §§ 3, 4; 78 Del. Laws, c. 44, §§ 30, 31; 81 Del. Laws, c. 80, § 6; 81 Del. Laws, c. 425, § 16.) § 1915 Licensure by examination for licensed practical nurse [Repealed]. (24 Del. C. 1953, § 1914; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, § 15; repealed by 81 Del. Laws, c. 80, § 7, effective July 17, 2017.) § 1916 Reciprocity for licensed practical nurse. (a) The Board may, by endorsement, without written examination, license as a practical nurse an applicant who, on or after July 1, 1983, is duly licensed as a practical nurse or is entitled to perform similar services under a different title under the laws of another state or a territory of the United States or a foreign country, if in the opinion of the Board, the applicant meets the qualifications specified by this chapter for licensed practical nurses in this State. (b) In the event the applicant has not been actively employed in practical nursing in the past 5 years, the applicant will be required to give evidence of satisfactory completion of a practical nursing refresher program within an approved agency within 2 years prior to endorsement before licensure by endorsement will be granted. In the event no refresher course is available the Board may consider alternate methods of evaluating current knowledge in practical nursing. (c) Verification of current Delaware license is provided upon request to other state boards of nursing. (24 Del. C. 1953, § 1915; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 70 Del. Laws, c. 482, § 16; 81 Del. Laws, c. 80, § 8.) § 1917 Licensed practical nurses licensed under previous law. (a) Any person holding a license to practice nursing as a licensed practical nurse that is valid on July 1, 1983, shall be deemed to be licensed as a licensed practical nurse under this chapter and shall be eligible for renewal of such license under the conditions and standards prescribed by § 1918 of this title. (b) Any person eligible for reactivation or reinstatement of a license to practice nursing as a licensed practical nurse in this State on or after July 1, 1983, shall be deemed to be eligible to be licensed as a licensed practical nurse under this chapter and shall be eligible for renewal of such license under the conditions and standards prescribed by § 1918 of this title. (c) Any person whose license to practice nursing as a licensed practical nurse has lapsed in this State on or after July 1, 1983, because of failure to renew may become licensed as a licensed practical nurse under this chapter by applying for reinstatement according to the rules and regulations established by the Board of Nursing. (d) Any person who was licensed to practice nursing as a licensed practical nurse and who had requested to be placed on inactive status in this State on July 1, 1983, may become licensed as a licensed practical nurse under this chapter by applying for reactivation according to the rules and regulations established by the Board of Nursing. (24 Del. C. 1953, § 1916; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1.) § 1918 Renewal of license; lapse of license; late renewal; penalties; retirement from practice; temporary permit to practice; inactive status. (a) Every advanced practice registered nurse or registered or licensed practical nurse licensed under this chapter shall reregister biennially by filing an application; provided however, that the license of any licensee who is on active military duty with the armed forces of the United States and serving in a theater of hostilities on the date such application or reregistration is due shall be deemed to be current and in full compliance with this chapter until the expiration of 60 days after such licensee is no longer on active military duty in a theater of hostilities. The advanced practice registered nurses’ licensure or prescriptive authority is subject to biennial renewal coinciding with RN license renewal. In the event the applicant has not been actively employed in professional, practical, or advanced practice registered Page 189 Title 24 - Professions and Occupations nursing in the past 5 years, the applicant must provide evidence of satisfactory completion of an appropriate board-approved nursing advanced practice refresher program within 1 year before licensure by reinstatement. APRNs who have been out of active clinical practice more than 2 years but less than 5 years must submit 24 hours of CE with 12 hours in pharmacotherapeutics and 12 hours in the clinical management of patients taken within 1 year before application. APRNs who have been out of active clinical practice more than 5 years must submit 45 hours of pharmacotherapeutics CE taken within 1 year before application and the advanced practice refresher program. In the event no advanced practice refresher program is available, the applicant must complete 600 hours of supervised clinical experience in the appropriate advanced practice role and population focus, with a qualified preceptor within 1 year before licensure by reinstatement. A qualified APRN preceptor must hold an active unencumbered license or privilege to practice as an APRN or be a physician who has an active unencumbered license and practices in a comparable practice focus in the clinical setting. (b) Upon receipt of the application and fee, the Board shall verify the accuracy of the information set forth in the application and issue to the applicant a certificate of renewal of license for 2 years, provided that the applicant has successfully completed continuing education requirements as may be established by the Board. Such certificate shall entitle the holder to engage in the practice of professional, practical, or advanced practice registered nursing for the period stated therein. Any licensee whose license lapses for failure to renew the license may be reinstated by the Board upon satisfactory evidence of active employment in professional, practical, or advanced practice registered nursing within the past 5 years or satisfactory completion of a refresher program within an approved agency within a 1-year period prior to renewal and upon satisfactory explanation for the failure to renew the license and payment of a penalty fee to be determined. (c) A license may be renewed up to 60 days past the license’s expiration date, by submitting to the Division of Professional Regulation payment of the penalty fee referred to in subsection (b) of this section and proof of completion of continuing education requirements. The license of a nurse who fails to renew on time is considered lapsed and the nurse is not permitted to work until the license is renewed. Licensees who fail to renew during the renewal period or during the 60-day late renewal period must apply for reinstatement. (d) After a license has lapsed or been inactive for 5 or more years and the applicant has not been in active practice in professional or practical nursing in the past 5 years, the applicant will be required to give evidence of satisfactory completion of a professional or practical nursing refresher program within an approved agency within 1 year prior to reinstatement before licensure by reinstatement will be granted. In the event no refresher course is available the Board may consider alternate methods of evaluating current knowledge in professional or practical nursing. (e) Any person practicing nursing during the time that person’s license has lapsed shall be considered an illegal practitioner and shall be subject to the penalties provided for violations of this chapter. (f) Any person licensed under this chapter who desires to retire from practice in this State shall so notify the Board. Upon receipt of such notice, the Board shall place the name of such person on a nonpracticing list. While on this list, such person shall not be required to pay any license fee, and shall not practice nursing in this State. When such person desires to resume practice, application for renewal shall be made under subsection (a) of this section and the license shall be reactivated if the requirements of the Board are met. (g) Temporary permits to practice nursing may be issued by the Board to persons who have requested reinstatement of their license, if they have practiced nursing within the past 5 years. (h) Every registered or licensed practical nurse licensed under this chapter primarily engaged in the practice of electrolysis shall be exempt from the requirement in subsection (a) of this section that states in the event the applicant has not been actively employed in professional practical nursing in the past 5 years, the applicant will be required to give evidence of satisfactory completion of a professional or practical nursing refresher program within 2 years prior to renewal before licensure by renewal will be granted. (i) An individual licensed under this chapter may, upon written request to the Board, be placed in an inactive status in accordance with the Board’s rules and regulations. An individual may reenter practice from inactive status if the individual provides written notification to the Board of the individual’s intent and complies with any relevant provisions of this chapter and the Board’s regulations. (24 Del. C. 1953, § 1917; 54 Del. Laws, c. 153; 57 Del. Laws, c. 668, § 8; 64 Del. Laws, c. 26, § 1; 65 Del. Laws, c. 221, § 2; 65 Del. Laws, c. 466, § 2; 69 Del. Laws, c. 319, § 11; 69 Del. Laws, c. 372, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 482, §§ 17-20, 27, 28; 78 Del. Laws, c. 122, §§ 1, 2; 80 Del. Laws, c. 171; 81 Del. Laws, c. 80, § 9.) § 1919 Nursing educational programs. (a) An institution desiring to conduct a nursing education program shall apply to the Board and submit satisfactory evidence that it is ready and qualified to instruct students in the prescribed basic curriculum for educating nurses and that it is prepared to meet other standards which may be established by the Board. The Board may authorize the temporary operation of a nursing education program pending evaluation for approval. The Board shall grant approval in writing. The Board may visit and survey any nursing education program at any reasonable time. (b) If the Board determines that any approved nursing education program is not maintaining the standards required by this chapter and by the Board, written notice thereof, specifying the deficiency and the time within which the same shall be corrected, shall immediately be given to the program. The Board shall withdraw such program’s approval if it fails to correct the specified deficiency, and such nursing education program shall discontinue its operation; provided, however, that the Board shall grant a hearing to such program upon written application and extend the period for correcting specified deficiency upon good cause being shown. Page 190 Title 24 - Professions and Occupations (c) An approved nursing education program which plans substantive changes, as defined in the Board’s rules and regulations, shall obtain the written approval of the Board prior to the date of the change. (d) Any nursing education program in the State that is recognized as an approved program by the Board of Nursing on or after July 1, 1983, shall be deemed to be an approved education program for the purpose of this chapter. (24 Del. C. 1953, § 1918; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1.) § 1920 License requirements; use of abbreviations. (a) No person shall engage in the practice of professional nursing in Delaware without being licensed by the Board, except those persons issued a temporary permit by the Board. (b) No person shall engage in practice as an advanced practice registered nurse without a board-issued license as an advanced practice registered nurse. Notwithstanding any provision to the contrary, the use of title and abbreviation for advanced practice registered nurses is authorized in accordance with the following: (1) Only certified registered nurse anesthetists may use that title, the abbreviation “CRNA” or any other words, letters, signs or figures indicating that the person using the same is a certified registered nurse anesthetist. (2) Only certified nurse practitioners may use that title, the abbreviation “CNP” or any other words, letters, signs or figures indicating that the person using the same is a certified nurse practitioner. (3) Only certified nurse midwives may use that title, the abbreviation “CNM” or any other words, letters, signs or figures indicating that the person using the same is a certified nurse midwife. (4) Only clinical nurse specialists may use that title, the abbreviation “CNS” or any other words, letters, signs or figures indicating that the person using the same is a clinical nurse specialist. (5) The abbreviation for the “APRN” designation for a certified nurse practitioner, a certified registered nurse anesthetist, a certified nurse midwife, and for a clinical nurse specialist will be “APRN,” plus the role title, i.e., “CNP,” “CRNA,” “CNM,” or “CNS.” It shall be unlawful for any person to use the title “APRN” or “APRN” plus their respective role titles, authorized abbreviations or any other title that would lead a person to believe the individual is an APRN, unless permitted by this chapter. (c) No person shall knowingly employ a graduate of a professional nursing program or a registered nurse to engage in the practice of professional nursing without a temporary permit or license from the Board. (d) Only registered nurses shall use that title, the title “nurse”, the abbreviation of “R.N.” or any other words, letters, signs or figures indicating that the person using the same is a registered nurse. (e) No person shall practice practical nursing in Delaware without being licensed by the Board, except those persons issued a temporary permit by the Board. (f) No person shall knowingly employ a graduate of a practical nursing program or a licensed practical nurse to engage in the practice of practical nursing without a temporary permit or license from the Board. (g) Only licensed practical nurses shall use that title, the title “nurse”, the abbreviation “L.P.N.” or any other words, letters, signs or figures indicating that the person using the same is a licensed practical nurse. (24 Del. C. 1953, § 1919; 54 Del. Laws, c. 153; 64 Del. Laws, c. 26, § 1; 69 Del. Laws, c. 319, § 12; 77 Del. Laws, c. 234, §§ 1, 2; 80 Del. Laws, c. 171.) § 1921 Applicability of chapter [For (a)(17) implementation date, see 82 Del. Laws, c. 42, § 3] [Effective until July 1, 2020]. (a) This chapter does not apply to the following situations: (1) Nursing services rendered during an epidemic or a state or national disaster; (2) The rendering of assistance by anyone in the case of an emergency; (3) Emergency services rendered by ambulance personnel trained in advanced life support under a licensed physician’s supervision as defined in Chapter 97 of Title 16. “Advanced life support” is defined in Chapter 97 of Title 16; (4) The incidental care of the sick in private homes by members of the family, friends, domestic servants or persons primarily employed as housekeepers; (5) Nursing services rendered by a student enrolled in a State Board of Nursing approved school of professional or practical nursing when these services are incidental to the course of study; or those nursing services rendered by a professional nurse or practical nurse enrolled in a State Board of Nursing ap