Bill Text: DE HB426 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend Title 24 Of The Delaware Code Relating To The Board Of Medical Licensure And Discipline.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2016-06-15 - Reported Out of Committee (SUNSET COMMITTEE (POLICY ANALYSIS & GOVERNMENT ACCOUNTABILITY)) in House with 3 Favorable, 1 On Its Merits [HB426 Detail]
Download: Delaware-2015-HB426-Draft.html
SPONSOR: |
Rep. Brady & Sen. Poore |
|
Reps. Bennett, Bolden, Dukes, Spiegelman; Sens. Pettyjohn, Richardson, Sokola, Townsend |
HOUSE OF REPRESENTATIVES 148th GENERAL ASSEMBLY |
HOUSE BILL NO. 426 |
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE BOARD OF MEDICAL LICENSURE AND DISCIPLINE. |
Section 1. Amend §1710, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1710. Composition.
(j) A
member of the Board is eligible to be reimbursed for travel to and from each
meeting. However, a member may receive not more than $50 for each meeting
attended, and not more than a total of $500 for meetings attended in any
calendar year. Each member of
the Board shall be compensated at an appropriate and reasonable level as
determined by the Division of Professional Regulation and may be reimbursed for
all expenses involved in each meeting, including travel, according to Division
policy.
Section 2. Amend §1713, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§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:
(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.
(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, or the practice of respiratory care, the practice of acupuncture, the work of a
genetic counselor, the practice of polysomnography, or midwifery.
Section 3. Amend §1720, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1720. Certification requirements to practice medicine.
(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.
Section 4. Amend §1733, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1733. Complaints; notice of hearing.
(a)(1) Any
member of the public or of the Board, or the Executive Director may file with
the Board a complaint concerning any aspect of the practice of medicine against
a person to whom a certificate to practice medicine in this State has been
issued or any other person with a duty imposed by this chapter.
(2) The Executive Director shall advise the
complainant of the progress of the case at least every 90 days until the case
is resolved.
(3) The Executive Director shall communicate
with the Delaware Department of Justice, at least monthly, regarding the status
of complaints filed by law enforcement, and shall report the case status to the
Board only if the case is no longer subject to suspension pursuant to §1732(e)
of this title.
(b) The
Executive Director shall investigate in accord with the procedures set forth in
§1732 of this title each complaint which appears to be valid and well-founded.
(c) The
Executive Director may maintain the confidentiality of the complaining party or
the respondent from the Board. In the absence of an Executive Director or
acting Executive Director, the Secretary of State may exercise that discretion.
(d) After
investigation, if the Executive Director elects to file a formal written
complaint against a respondent, the person must be served personally or by
certified mail, return receipt requested, with a copy of the complaint not less
than 20 days nor more than 60 days prior to a hearing on the complaint. A
formal written complaint under this subsection must describe in detail the
allegations upon which the complaint is based.
(e) A
notice of hearing must inform the person of the date, time, and place of the
hearing; state the statute or regulation allegedly violated and the statutory
or regulatory authority which gives the Board authority to act; state that the
person has a right to be represented by counsel at the hearing and to present
evidence on the person's own behalf; and inform the person that the Board must
base its decision solely upon evidence received at the hearing. The person is
entitled to file with the Board a written response to the complaint within 20
days of service or of receipt by certified mail of the complaint.
(f) A
complaint of the unauthorized practice of medicine must be reported immediately
to the Attorney General. A person who files a complaint with or provides
information to the Board concerning a violation of this chapter is not liable
in any cause of action arising out of the filing of the complaint or the
providing of information, provided that the person does so in good faith and
without gross or wanton negligence.
(g) The
Office of the Attorney General shall provide legal services to the Board, its
committees, and the Executive Director.
Section 5. Amend §1734, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
§1734. Hearings.
(a) Procedure. —
(1) Upon the mailing of a formal complaint by
the Executive Director pursuant to this chapter, the Executive Director shall
appoint an examiner pursuant to §1713 of this title or a hearing panel
composed of 3 unbiased members of the Board, the 3 members being 2 physician
members and 1 public member if practical, who shall hear the evidence
concerning the alleged charges. The hearing panel shall convene to hear the
evidence no more than 90 days after the Board accepts a formal complaint unless
the hearing panel, in its discretion, grants a continuance of the hearing date.
All evidence at the hearing must be taken under oath or affirmation, but
technical rules of evidence do not apply. After the evidence has been heard by
the hearing panel, the panel may convene in executive session for consideration
of the evidence presented at the hearing and for purposes permitted by §10004
of Title 29, and shall make written findings of fact, conclusions of law, and a
recommendation for a proper disciplinary action, if 1 is warranted. Only
evidence presented at the hearing may be considered by the hearing panel in
reaching its findings of fact and conclusions of law. The findings of fact made
by the hearing panel are binding on the parties appearing before it and on the
Board. If the hearing panel finds that the allegations made in the complaint
are not supported by the evidence, it shall so indicate to the Board, together
with its recommendation that no further action be taken and that the person
complained about be exonerated of all charges. If a majority of the members of
the Board who consider the matter, excluding members who participated in the
investigation of the complaint and members on the hearing panel and members who
are otherwise biased, vote to accept the hearing panel's conclusions of law and
recommendation, no further proceedings may be held before the Board. However,
if a majority of the members of the Board who consider the matter, excluding
any members who participated in the investigation of the complaint and members
on the hearing panel and members who are otherwise biased, vote to reject the
hearing panel's conclusions of law and recommendation, a formal hearing must be
held before the Board to enable the Board to make its own conclusions of law
and determine what discipline, if any, should be imposed. In such a case, the
hearing panel's findings of fact are binding upon the Board.
(2) If the hearing panel finds that any of the
factual allegations made in the complaint are supported by the evidence it has
considered, the Board, excluding members who participated in the investigation
of the complaint and members on the hearing panel and members who are otherwise
biased, will consider the findings of fact and conclusions of law made by the
hearing panel at a formal hearing.
(3) A formal hearing must be held within 90
days after the issuance of the written findings of facts and conclusions of law
of the hearing panel pursuant to this subsection; provided, however, that if
the hearing panel finds that the person complained about presents a clear and
imminent danger to the public health by that person's continued practice of
medicine, then the full Board may meet for the formal hearing as soon as
possible, but only upon 3 days' written notice of the formal hearing being
provided to the person or to that person's attorney. No less than 7 affirmative
votes are necessary in order for disciplinary action to be taken by the Board.
Upon reaching its conclusions of law and determining the appropriate
disciplinary action, if any, the Board shall issue a written decision and order
in accordance with §10128 of Title 29. The decision and order must be signed
by the Board's President, or, if the President is not available, by another
officer of the Board.
(c) Transcript
of proceedings. — A stenographic transcript must be made of the formal
hearings of the Board and of the hearings of the Board's hearing panels or
examiner. The person complained about is entitled, upon that person's own
request, to obtain a copy of the transcript at the person's own expense.
(d) Rights
of respondent. — The person complained about is entitled to be
represented by counsel before a hearing panel or examiner and before the Board.
The person complained about also has the right to cross-examine witnesses against
the person, the right to present that person's own witnesses, and the right to
introduce evidence at the hearing. In addition, the person complained about has
the right to compel the issuance of a subpoena for the attendance of witnesses
to appear and testify or for the production of books, records, or other
documents at the hearing.
(e) Conduct
of hearing before the hearing panel. — An attorney from the Office of
the Attorney General shall present evidence in support of the allegations
contained in the formal complaint. The attorney may call witnesses and
cross-examine any witnesses called on behalf of the person complained about. A
member of the Board who participated in the investigation of the complaint
under consideration or a member who is biased may not sit on the hearing panel
or take part in the deliberations or decisions of the hearing panel. To find
that a fact or allegation is supported by evidence, the panel members must
unanimously agree. The hearing panel shall make its findings of fact and
conclusions of law based solely upon the evidence presented to it at the
hearing.
(f) Conduct
of hearing before the examiner. — An attorney from the Office of the
Attorney General shall present evidence in support of the allegations contained
in the formal complaint. The attorney may call witnesses and cross-examine any
witnesses called on behalf of the person complained about. The examiner may
administer oaths, examine witnesses and receive evidence in any locality. The
testimony or evidence so taken or received shall have the same force and effect
as if taken or received by the Board, or by a hearing panel pursuant to §§
1713(a)(15) and 1734 of this title. Upon completion of such hearing or the
taking of such testimony and evidence, the examiner shall submit to the Board
the examiner's findings and recommendations thereon, which findings and
recommendations shall be considered by the Board and such action taken with
respect thereto by the Board as it decides to be proper.
(g) Conduct
of formal hearing before the Board. — The findings of fact made by a
hearing panel on a complaint are binding upon the Board at a formal hearing on
the same complaint. At a formal hearing, the Board may not consider additional
evidence. The Board shall deliberate and reach its own conclusions of law based
upon the findings of fact made by the hearing panel. The Board shall consider
the hearing panel's conclusions of law, but is not bound by them. To adopt
conclusions of law, 7 Board members must vote in favor of them. After adopting
its conclusions of law, the Board shall determine what disciplinary action, if
any, against the person complained about is appropriate, based solely upon the
record before it. To impose disciplinary action, affirmative votes by the
majority of the Board members who considered the matter, but in every case no
less than 7 affirmative votes are necessary. The Executive Director, Board
members who participated in the investigation of the complaint under
consideration, the members of the hearing panel, and any Board members who are
otherwise biased may not participate in the deliberations of the Board
concerning a complaint investigated by the Executive Director.
(h) Written
decision and order. — Upon reaching its conclusion of law and
determining the appropriate disciplinary action, 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 of the hearing panel, but need not summarize
the evidence presented. However, notwithstanding the provisions of §10128(c)
of Title 29, 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 person complained
about, with a copy to the Executive Director.
(i)
Hearings shall be conducted pursuant to the Administrative Procedures Act. Upon
receiving a decision and order pursuant to subsection (h) of this section,
the Executive Director shall file the required disciplinary action reports to
data banks.
Section 6. Amend §1761A, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§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 §§1732-1734 §1732 of this title.
Section 7. Amend §1770, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1770. The Regulatory Council for Physician Assistants.
(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; provided, however, that if a member is initially appointed to
fill a vacancy, that 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 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.
(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.
Section 8. Amend §1773, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1773. Regulation of physician assistants.
(b)(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,
with the approval of the Board, 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,
with the approval of the Board, 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, and unless at least 4 members of the Council and 7
members of the Board vote in favor of the temporary suspension 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.
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 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, pursuant to §
1734(g) of this title, 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.
Section 9. Amend §1774, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1774. Temporary licensing of physician assistants.
(a) Notwithstanding
any provision of this subchapter to the contrary, the Executive Director, with
the approval of a physician Council member of the Board,
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.
Section 10. Amend §1775, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1775. Respiratory Care Advisory Council.
(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; 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 never served on the Council may be
appointed to the Council for 2 consecutive terms, but the person is thereafter
ineligible for appointment to the Council except as hereinafter provided. A
person who has been twice appointed to the Council or who has served on the
Board for 6 years within any 9-year period may not again be appointed to the
Council until an interim period of at least 1 year has expired since the person
last served. A member serving on the Council may not be an elected officer or a
member of the board of directors of any professional association of respiratory
care practitioners.
Section 11. Amend §1777, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1777. Licensure.
(d) Temporary license. — The
Executive Director of the Board, with the approval of a physician member
of the Board 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. —
(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 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,
with the approval of the Board, 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, and unless at least 4
members of the Council and 7 members of the Board vote in favor of the
temporary suspension. An order of temporary suspension pending a hearing may
remain in effect for no longer than 60 days from the date of the issuance of
the order unless the 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.
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 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,
pursuant to §1734(g) of this title, 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.
Section 12. Amend Subchapter VII, Chapter 17, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§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.
Section 13. Amend §1796, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1796. Acupuncture Advisory Council.
(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; 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 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. 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.
Section 14. Amend §1798, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1798. Licensure.
(d) Temporary license. — The
Executive Director of the Board, with the approval of a physician Council
member of the Board, 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.
(e) License suspension, revocation, or nonrenewal. —
(2)a. If the Board or the Acupuncture Advisory
Council receives a formal or informal complaint concerning the activity of an
acupuncture practitioner and the Board or Council members reasonably believe
that the activity presents a clear and immediate danger to the public health,
the Council may recommend that the Board issue an order temporarily
suspending the acupuncture 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 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 acupuncture practitioner or the acupuncture practitioner's
attorney received at least 24 hours' written or oral notice prior to the
temporary suspension so that the acupuncture practitioner or the acupuncture
practitioner's attorney can be heard in opposition to the proposed suspension,
and unless at least 3 members of the Council and 7 members of the Board vote in
favor of the temporary suspension. An order of temporary suspension pending
a hearing may remain in effect for no longer than 60 days from the date of the
issuance of the order unless the temporarily suspended acupuncture practitioner
requests a continuance of the hearing date. If the acupuncture practitioner
requests a continuance, the order of temporary suspension remains in effect
until the hearing panel convenes and a decision is rendered.
d. As soon as possible after the issuance of an order
temporarily suspending an acupuncture practitioner'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 acupuncture
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 an acupuncture 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 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, pursuant to §
1734(g) of this title, 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 acupuncture
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.
Section 15. Amend §1799I, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1799I. Genetic Counselor Advisory Council.
(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; 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 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.
(e) License suspension, revocation, or nonrenewal. —
(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 recommend
that the Board 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, and unless at least 3 members of the Council and 7
members of the Board vote in favor of the temporary suspension. An order of
temporary suspension pending a hearing may remain in effect for no longer than
60 days from the date of the issuance of the order unless the 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.
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 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, pursuant to §
1734(g) of this title, 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.
(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.
Section 16. Amend §1799W, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1799W. Polysomnography Advisory Council.
(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; 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 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 polysomnographers.
(e) License suspension, revocation, or nonrenewal. —
(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 Board 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 Board chair Council 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 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.
SYNOPSIS
This Act is the result of the recommendation made by the Joint Sunset Committee in its review of the Board of Medical Licensure and Discipline ("the Board") that the Division of Professional Regulation amend applicable statutes that are outdated and unnecessary, to provide for consistency with §8735, Title 29 of the Delaware Code, relating to administrative procedures. Specifically, this Act permits the Board to utilize non-board member medical licensees as coinvestigators when specialties are required to opine on disciplinary cases, as long as the co-investigator is licensed in the specialty at issue; creates administrative licensure for medical professionals who do not wish to practice medicine but serve as administrators in the state to applicants who meet all qualifications for licensure except active practice hours; removes antiquated language from Title 17 regarding hearing procedures and instead reiterates hearings are conducted pursuant to the Administrative Procedures Act; and deletes references to the removed language. Finally, this Act makes minor modifications to each of the sub-councils organized under the Board, to standardize procedures across each of the five councils. Specifically, the Act adds a duty to report unprofessional conduct to the Respiratory Care Practitioners, permits the Genetic Counselor Advisory Council and the Regulatory Council for Physician Assistants to waive their quarterly meeting requirement with the approval of the Board; clarifies that temporary licenses may be granted by each of the councils under the signature of the Executive Director and the council chair; and permits council members appointed to fill vacancies to serve out those vacancies, along with two three-year terms. |