DEPARTMENT OF ADMINISTRATIVE SERVICES
Division of Professional Regulation
24 DE Admin. Code 700 Statutory Authority: 24 Delaware Code, Section 706(a)(1)) (24 Del.C. 706(a)(1))
ORDER
Summary Of The Evidence
There were no written or verbal comments concerning the proposed Rule and Regulation.
Findings Of Fact
The Board of Chiropractic ("Board") makes the following findings of fact pursuant to 29 Del.C. §10118(b):
1. Pursuant to 24 Del.C. §706(a), the Board proposed to revise its existing Rules and Regulations, in order to set forth provisions and procedures concerning the retention, procurement and disposal of patient records, including when a chiropractor is on inactive status, leaves Delaware, or terminates his or her practice in Delaware, or when a patient changes care to a new chiropractor.
2. Pursuant to 29 Del.C. §10115, notice was given to the public that a hearing would be held on February 20, 2003 at 8:30 a.m. in the Second Floor Conference Room of the Cannon Building, 861 Silver Lake Blvd., Dover, Delaware to consider the proposed revisions. Notice of the public hearing was published in the Delaware Register of Regulations dated January 1, 2003 and two Delaware newspapers of general circulation.
3. The notice invited the public to submit written comments regarding the proposed revisions.
4. A hearing was held on February 20, 2003, at which a quorum of the Board was present to hear public comment, deliberate and render a decision.
5. No written comments were received prior to and at the February 20, 2003 hearing and no person appeared at the hearing concerning the proposed revisions.
6. The Board reviewed and discussed the proposed revisions to Rule 5.0. Rule 5.0 is changed in order to be consistent with other State law, and establishes the requirements and procedures for retention, patient-procurement and disposal of patient records. The proposed revisions also set forth the requirements and procedures concerning patient records as to when a chiropractor is on inactive status, leaves Delaware, or terminates his or her practice in Delaware, and when a patient changes from the care of one chiropractor to a new chiropractor. It further provides that any patient records may be permanently disposed in a manner that ensures confidentiality of the records if: the records have not been procured within 7 years after a chiropractor terminates practice or leaves the State, or the patient has not treated within 7 years from the date of the last treatment. The Board finds the proposed revisions serve to clarify and update 24 Del.C. Ch. 7 and its Rules and Regulations.
Text And Citation
The text of the Rules and Regulations hereby promulgated are as it appeared in the Delaware Register of Regulations, Vol. 6, Issue 7 (January 1, 2003), which is attached hereto and incorporated herein as Exhibit A with the revisions noted.
Decision And Order
NOW THEREFORE, by unanimous vote of the Board, it is the decision and order of the Board that the Rules and Regulations are adopted in the text as it appeared in the Delaware Register of Regulations, attached as Exhibit A with the revisions noted. A copy of the revised Rules and Regulations is attached hereto and incorporated herein as Exhibit B. The effective date of this Order and the Rules and Regulations is ten (10) days after the date the Order is published in its final form in the Delaware Register of Regulations pursuant to 29 Del.C. §10118(g).
IT IS SO ORDERED this 15th day of May, 2003.
State Of Delaware, Board Of Chiropractic:
Michael Kelman, D.C., President
W. Monroe Hearne, Secretary
Bryan Errico, D.C., Professional Member
Gary Morgan, D.C., Professional Member
Tamara Blossic, D.C., Professional Member1
Rebecca Gates, Public Member
Attest:
Judy Letterman, Administrative Assistant to the Board
1.0 Chiropractic Defined; Limitations of Chiropractic
License
2.0 Officers; Meetings; Quorum
3.0 Certification
4.0 Continuing Education
5.0 Issuance of License; Renewal; Inactive Status;
Reinstatements.
6.0 Grounds for Discipline
7.0 License to Practice
8.0 Voluntary Treatment Option (See 4 DE Reg. 1940
(6/1/01)
1.0 Chiropractic Defined; Limitations of Chiropractic License
1.1 An adjunctive procedure not otherwise prohibited by Chapter 7 which aids and or assists the chiropractor in providing chiropractic care and includes by way of example and is not limited to:
• Acupuncture Procedures
• Physiological Therapeutics
• Diet and Nutritional Programs
• Rehabilitation/Exercise Programs
( 4 DE Reg. 1940 (6/1/01)
2.0 Officers; Meetings; Quorum
The Board will hold elections for the offices of President and Secretary at the regularly scheduled meeting in October of each year or as soon thereafter as practical. Vacancies occurring in an office shall be filled for the remainder of the term in the month following the vacancy or as soon thereafter as is practical.
3.0 Certification
Certification in any nationally recognized specialty for a licensee requires a minimum of one hundred (100) or more hours of certified training beyond and in addition to any courses or training received toward a degree of Doctor of Chiropractic. Certification in any nationally recognized chiropractic specialty or technique requires that the licensee shall have completed all requirements for recognition as a practitioner of such chiropractic specialty or technique by the nationally recognized certification body.
4.0 Continuing Education.
4.1 Continuing Education for New Licensees:
4.1.1 At the time of the initial license renewal, some individuals will have been licensed for less than two (2) years. Therefore, for these individuals only, the continuing education hours will be pro-rated as follows:
License Granted During First Year: Credit Hours
Required:
July 1 - December 31 24 hours
January 1 - June 30 18 hours
License Granted During Second Year: Credit
Hours
Required:
July 1 - December 31 12 hours
January 1 - June 30 6 hours
4.2 Continuing Education for Licensees other than new licensees:
4.2.1 Unless otherwise excused by the Board for good cause such as illness, extended absence from the country, or unique personal hardship which is not the result of professional negligence or inadvertence, all Chiropractors seeking renewal more than two (2) years from initial licensure or reinstatement of a lapsed license must provide to the Board adequate proof of the satisfactory completion of twenty four (24) hours of Board approved continuing education within the immediately preceding two (2) year period.
4.2.2 Proof of continuing education shall be received at the Division of Professional Regulation, Dover, Delaware, no later than April 30th of the reporting year and shall be received every 2 years after such date. Continuing education completed before April 30th of the reporting year shall not be carried over to the next renewal period. The Board has the right to conduct an audit of the proof of continuing education submitted by licensees.
( 4 DE Reg. 1940 (6/1/01)
5.0 Issuance of License; Renewal; Inactive Status; Reinstatements; Retention of Patient Records (24 Del. C. § 709)
5.1 The Biennial licenses granted by the Board shall automatically terminate on June 30th of each even numbered year or on such other date as is specified by the Division of Professional Regulation. It is the responsibility of the licensee to file a renewal application with the Board. The failure of the Board to notify a licensee of his/her expiration date does not in any way relieve the licensee of the requirement of filing a renewal application with the Board. A licensee who fails to renew a license before the expiration date may renew on a late basis for a period not to exceed one (1) year.
5.2 Inactive Status and Termination of Practice. Any licensee who seeks to be placed on inactive status or terminates his or her practice who is terminating his or her practice in this State or is leaving this State and is not transferring his or her records to another chiropractor shall notify the Board in writing and notify all patients treated within the last three (3) years by publication in a newspaper of general circulation throughout the State of Delaware and offer to make the patients records available to the patient or his or her duly authorized representative. Except in an emergency situation where as much notice as is reasonably possible shall be given, the notice by publication shall be made at least ninety (90) days prior to termination of the practice or leaving the State and must be published at least 3 times over this ninety (90) day period and must explain how a patient can procure his or her patient records. except in an emergency situation where as much notice as is reasonably possible shall be given. All patients who have not requested their records thirty (30) days prior to the termination of the licensee's practice or the licensee leaving the State from such publication of notice shall, within thirty days of the closing of the business, be notified by first class mail by the licensee to permit patients to procure their records. Any patient records that have not been procured within 7 years after the licensee terminates his or her practice or leaves the State may be permanently disposed of in a manner that ensures confidentiality of the records.
5.3 Retention of Patient Records. Patient records must be retained by the Chiropractor or arrangements made for the maintenance and retention of patient records for seven (7) years from the date of the last treatment.
5.4 Whenever a patient changes from the care of one Chiropractor to another Chiropractor and upon the request of either the new Chiropractor or the patient the previous Chiropractor (a) may charge for the reasonable expenses of copying the patient's records and upon receiving payment for such expenses, shall transfer the patient's records to the new Chiropractor, or (b) if there is no copying charge, shall transfer the records of the patient to the new Chiropractor, within a reasonable time frame. Alternatively, if the patient and new Chiropractor agree, the Chiropractor may forward to the new Chiropractor a summary of the patient's records in lieu of the entire record at no charge to the patient. If a patient changes care from one Chiropractor to another Chiropractor, and fails to notify the previous Chiropractor or leaves the care of the previous Chiropractor for a period of 7 years from the date of the last treatment and fails to notify the previous Chiropractor, or fails to request the transfer of records to the new Chiropractor, then the previous Chiropractor shall maintain said records for a period of 7 years from the date of last treatment, after which time the records may be permanently disposed of in a manner that ensures confidentiality of the records.
5.5 This rule shall not apply to a Chiropractor who has seen or treated a patient on referral from a Chiropractor and who has provided a record of the diagnosis or treatment to another chiropractor, hospital or agency which has provided treatment for the patient.
5.6 A Chiropractor or the personal representative of the estate of a Chiropractor who disposes of patient records in accordance with the provisions of this rule is not liable for any direct or indirect loss suffered as a result of the disposal of a patient's records.
( 4 DE Reg. 1940 (6/1/01)
6.0 Grounds for Discipline
6.1 Unprofessional Conduct in Advertising. Any Licensee who advertises or holds out to the public that he or she is a specialist in any specific chiropractic or adjunctive procedure without having a valid current certification as having special training and/or certification in such procedure or procedures from a recognized certification body is guilty of unprofessional conduct.
6.2 Examples of Unprofessional Conduct in Advertising and Promotional Practices. The following advertising and promotional practices are deemed to be misleading, false, deceptive, dishonorable and/or unethical and shall constitute unprofessional conduct by a licensee:
6.2.1 The use of testimonials without written permission of that doctor's patient.
6.2.2 Offering free or discounted examinations unless all charges associated with such examinations, including all x-ray fees and charges, are conspicuously set out in writing at the time of and in conjunction with such offer and unless such examinations are offered regardless of the availability of insurance coverage of any recommended subsequent treatment.
6.2.3 The use of unjustified or exaggerated claims, promises or statements which guarantee or strongly imply cure or successful treatment or are otherwise false, fraudulent, deceptive, or misleading.
6.2.4 Willful failure to identify licensee as a Doctor of Chiropractic, Chiropractor or Chiropractic Physician.
6.3 Unprofessional conduct with Patient, Employees, or Co-workers. Sexual misconduct in violation of a statute of the State of Delaware or any State or Commonwealth where such conduct takes place, involving a licensee and a patient, employee or co-worker shall be deemed to be unprofessional conduct.
( 4 DE Reg. 1940 (6/1/01)
( 6 DE Reg. 270 (9/1/02)
7.0 License to Practice
A Chiropractor licensed elsewhere but not licensed in the State of Delaware may practice chiropractic within the State of Delaware only in consultation with a duly Delaware licensed Chiropractor for not more than ten (10) consultations in any twelve (12) month period, which consultations shall be limited to examination, recommendation or testimony in litigation.
8.0 Voluntary Treatment Option
Any member of the public or a licensee may make a written report, signed by the complainant, of chemical dependency or impairment affecting any person regulated by the Board pursuant to 29 Del.C. §8807(n).
8.1 If the report is received by the chairperson of the regulatory Board, that chairperson shall immediately notify the Director of Professional Regulation or his/her designate of the report. If the Director of Professional Regulation receives the report, he/she shall immediately notify the chairperson of the regulatory Board, or that chairperson's designate or designates.
8.2 The chairperson of the regulatory Board or that chairperson's designate or designates shall, within 7 days of receipt of the report, contact the individual in question and inform him/her in writing of the report, provide the individual written information describing the Voluntary Treatment Option, and give him/her the opportunity to enter the Voluntary Treatment Option.
8.3 In order for the individual to participate in the Voluntary Treatment Option, he/she shall agree to submit to a voluntary drug and alcohol screening and evaluation at a specified laboratory or health care facility. This initial evaluation and screen shall take place within 30 days following notification to the professional by the participating Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency or impairment due to addiction to drugs or alcohol may enter into the Voluntary Treatment Option and continue to practice, subject to any limitations on practice the participating Board chairperson or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate may, in consultation with the treating professional, deem necessary, only if such action will not endanger the public health, welfare or safety, and the regulated professional enters into an agreement with the Director of Professional Regulation or his/her designate and the chairperson of the participating Board or that chairperson's designate for a treatment plan and progresses satisfactorily in such treatment program and complies with all terms of that agreement. Treatment programs may be operated by professional Committees and Associations or other similar professional groups with the approval of the Director of Professional Regulation and the chairperson of the participating Board.
8.5 Failure to cooperate fully with the participating Board chairperson or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate in regard to the Voluntary Treatment Option or to comply with their requests for evaluations and screens may disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board chairperson or that chairperson's designate or designates shall cause to be activated an immediate investigation and institution of disciplinary proceedings, if appropriate, as outlined in subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a regulated professional to enter into an agreement which includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a treatment program approved by the participating Board. Board approval shall not require that the regulated professional be identified to the Board. Treatment and evaluation functions must be performed by separate agencies to assure an unbiased assessment of the regulated professional's progress.
8.6.2 Consent to the treating professional of the approved treatment program to report on the progress of the regulated professional to the chairperson of the participating Board or to that chairperson's designate or designates or to the Director of the Division of Professional Regulation or his/her designate at such intervals as required by the chairperson of the participating Board or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate, and such person making such report will not be liable when such reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in accordance with applicable law, to the release of any treatment information from anyone within the approved treatment program.
8.6.4 Agreement by the regulated professional to be personally responsible for all costs and charges associated with the Voluntary Treatment Option and treatment program(s). In addition, the Division of Professional Regulation may assess a fee to be paid by the regulated professional to cover administrative costs associated with the Voluntary Treatment Option. The amount of the fee imposed under this subparagraph shall approximate and reasonably reflect the costs necessary to defray the expenses of the participating Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board in addition to the administrative costs associated with the Voluntary Treatment Option.
8.6.5 Agreement by the regulated professional that failure to satisfactorily progress in such treatment program shall be reported to the participating Board's chairperson or his/her designate or designates or to the Director of the Division of Professional Regulation or his/ her designate by the treating professional who shall be immune from any liability for such reporting made in good faith and without malice.
8.6.6 Compliance by the regulated professional with any terms or restrictions placed on professional practice as outlined in the agreement under the Voluntary Treatment Option.
8.7 The regulated professional's records of participation in the Voluntary Treatment Option will not reflect disciplinary action and shall not be considered public records open to public inspection. However, the participating Board may consider such records in setting a disciplinary sanction in any future matter in which the regulated professional's chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her designate or designates or the Director of the Division of Professional Regulation or his/her designate may, in consultation with the treating professional at any time during the Voluntary Treatment Option, restrict the practice of a chemically dependent or impaired professional if such action is deemed necessary to protect the public health, welfare or safety.
8.9 If practice is restricted, the regulated professional may apply for unrestricted licensure upon completion of the program.
8.10 Failure to enter into such agreement or to comply with the terms and make satisfactory progress in the treatment program shall disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board shall be notified and cause to be activated an immediate investigation and disciplinary proceedings as appropriate.
8.11 Any person who reports pursuant to this section in good faith and without malice shall be immune from any civil, criminal or disciplinary liability arising from such reports, and shall have his/her confidentiality protected if the matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all of the terms and completes the Voluntary Treatment Option shall have his/her confidentiality protected unless otherwise specified in a participating Board's rules and regulations. In such an instance, the written agreement with the regulated professional shall include the potential for disclosure and specify those to whom such information may be disclosed.
( 4 DE Reg. 1940 (6/1/01)
( 5 DE Reg. 1959 (5/1/02)
7 DE Reg. 36 (07/01/03) (Final)
1 Dr. Blossic and Ms. Gates, members of the Board, were not present at the February 20, 2003 public hearing and therefore, their signatures are not included in this decision and order.