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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJune 2017

Regulatory Flexibility Act Form

Authenticated PDF Version

1700 Board of Medical Licensure and Discipline
24 DE Admin. Code 1700
The Delaware Board of Medical Licensure and Discipline, pursuant to 24 Del.C. §§1713(a)(12) & 1769D, proposes to revise its regulations adding a new regulation clarifying the language in the Medical Practice Act pertaining to telemedicine and telehealth. Written comments should be sent to Devashree Brittingham, Executive Director of the Delaware Board of Medical Licensure and Discipline, Cannon Building, 861 Silver Lake Blvd., Dover, DE 19904. Written comments will be accepted until July 3, 2017 pursuant to 29 Del.C. §10118(a).
The Delaware Board of Medical Licensure and Discipline pursuant to 24 Del.C. §§1713(a)(12) & 1769D, proposed to revise its regulations adding a new regulation clarifying the language in the Medical Practice Act pertaining to telemedicine and telehealth.
Following publication in the Delaware Register of Regulations on November 1, 2016 a public hearing was held on January 3, 2017. Written comment periods were held open for thirty days, and an additional fifteen days following the public hearing. At the hearing, the Board accepted as evidence and marked as the Board's Exhibit 1 documentation of publication of the notice of the public hearing in the News Journal and the Delaware State News. During the written public comment period, comments were received from both local and national interest groups.
A comment was received from Ted Thompson, J.D., Senior Vice President of Public Policy at the Michael J. Fox Foundation for Parkinson's Research. Mr. Thompson requests the removal of language in 19.1 and 19.2 of Regulation 356 that prohibits audio- only telemedicine visits for both examination and establishment of the patient-physician relationship. His concern is that this represents a barrier to accessing healthcare via telemedicine for Parkinson's patients. The Foundation believes physicians should be able to use their training and professional judgment to make the determination about whether or not an audio-visual connection lends itself well to treatment of their Parkinson' s that Nemours strongly supports 19.1 and 19.2. citing information from major medical specialty societies whose clinical practical guidelines on telemedicine indicate that both audio and visual contact are necessary to ensure quality treatment, Nemours believes that an audio-only interaction runs the risk of not providing all the necessary information to meet clinical standards of care. Nemours has conducted research studies comparing the use of real-time audio and video to audio only. One particular study led by critical care intensivist, Dr. Nicholas Slamon, reviewed more than 250 charts of transported children who had a real-time audio and video consult and found that the ED disposition fell to 26% (p<0.001). When providers were able to see and hear their patients rather than relying on the description of their condition over the phone, the level of care was significantly raised. Treatment recommendations could begin hours before the transport team arrived, direct admission to the intensive care unit happened more efficiently, and in some cases children seen by real-time audio and video were able to stay in their local community and avoid unnecessary transport altogether. Nemours also supports a ban on opioid prescribing via telehealth technology, with the exception of buprenorphine and naloxone prescribed for the purposes of treating drug addiction. Nemours feels both the prohibition against prescribing opioid generally and an exception for addiction treatment purposes are strategies to combat the current Delaware addiction crisis.
Pursuant to discussions held at open public Board meetings, the Board proposed to adopt telemedicine and telehealth regulations to clarify Section 1769D of Title 24 after the Board became aware that, despite the clear language of the statute, certain interest groups were opining that the requirement that a physician using telemedicine technologies to provide medical care to patients located in Delaware must first provide one of four options, including "an appropriate examination in-person," as that term is used in 24 Del.C. §1769D(h)(1) did not actually require an in-person examination as an option. The Board finds compelling the comments of Nemours, indicating that better health care performance flows from audio and visual examination. The Board is also mindful of the large amount of comments it received regarding the ban on opioid prescribing, and the limitations this will place on substance abuse treatment. Therefore, the Board is republishing the regulations, now with the added exception for treatment of substance abuse as suggested by the Delaware Department of Substance Abuse and Mental Health. As suggested by the Medical Society of Delaware, the Board is open to revisiting the regulations periodically as telemedicine become more pervasive in medical practice.
IT IS SO ORDERED this 4th day of April, 201 7 by the Delaware Board of Medical Licensure and Discipline.
Accredited Hospital” means a medical facility accredited by the Joint Commission on Accreditation of Healthcare Organizations or the American Osteopathic Hospital Association.
"Board" means the Board of Medical Licensure and Discipline.
"ECFMG" means the Educational Council for Foreign Medical Graduates.
"Emergency Care" means an unplanned and unstructured medical intervention by any individual, whether or not licensed to practice medicine and surgery in the State of Delaware, which, if not immediately provided, would likely result in either loss of life or subsequent permanent impairment.
"FLEX Examination" means the Federation Licensing Examination as promulgated by the Federation of State Medical Boards of the United States, Inc.
"Foreign Medical School" means any medical school located outside of the United States or Canada.
"Institutional License" means a certificate to practice medicine as outlined under 24 Del.C. §1722(a)(2).
LCME” means the examination given by the Medical Council of Canada.
National Boards” means the examination administered by the National Board of Medical Examiners.
"NBME" means National Board of Medical Examiners.
"NBOME" means National Board of Osteopathic Medical Examiners.
"SPEX" is the Special Proficiency Examination.
United States” means the 50 States and its territories or possessions.
"USMLE" means United States Medical Licensing Examination.
"VQE" means Visa Qualifying Examination as mandated by Public Law 94-484. He or she meets all the requirements for licensure specified in 24 Del.C. §1720(b)(1) through (b)(6) excluding (b)(3); and
7.5 The former licensee may re-apply under the same conditions that govern applicants for new licensure under 24 Del.C. Ch. 17 and meeting any requirements for re-entry to practice established under Board Rule 8.7.
8.1 The phrase "dishonorable or unethical conduct likely to deceive, defraud, or harm the public" as used in 24 Del.C. 1731(b)(3) shall include, but not be limited to, the following specific acts:
10.1.43 The Medical Society of Delaware.
10.1.54 Delaware Osteopathic Medical Society.
10.1.65 Director of the Division of Revenue.
10.1.76 Director of the Division of Public Health.
10.1.87 National Practitioner Data Bank.
10.1.98 All Hospitals and Managed Care Entities in Delaware.
12.1 Pursuant to the provisions of 24 Del.C. §1713(d) the Board adopts the following regulation regarding requirements for continuing medical education as a prerequisite for renewal of registrations to practice medicine in the State of Delaware. Prior to renewal of registrations to practice medicine in this State a physician must be prepared to supply the Board with proof that he has completed forty (40) hours per registration period of continuing medical education in Category I courses approved by the American Medical Association (AMA) or equivalent courses approved by the American Osteopathic Association (AOA) since the time of the physician's last renewal of his registration. Individuals enrolled in approved medical or osteopathic resident or fellowship training programs may be requested to submit proof of satisfactory participation in lieu of approved continuing medical education credits. Certification by the Medical Society of Delaware that a physician has completed such continuing medical education since the time of his last renewal of his registration shall be acceptable proof of completion of these requirements. No supervising physician may supervise more than 4 physician assistants at any given time unless granted an exemption by the Board. As provided in 24 Del.C. §1771(f) and (h) the Board may increase or decrease the number of physician assistants being supervised. The Board may issue an exemption to increase the number of physician assistants supervised by a physician upon written application filed by the supervising physician demonstrating good cause for the request. Requests for exemption will be considered on a case-by-case basis. The requesting physician has the burden of demonstrating that the granting of an exemption will not endanger the public health, safety, or welfare.
Conviction” means a verdict of guilty by whether entered by a judge or jury, or a plea of guilty or a plea of nolo contendere or other similar plea such as a “Robinson” or “Alford” plea unless the individual has been discharged under §4218 of Title 11 of the Delaware Code (probation before judgment) or under §1024 of Title 10 (domestic violence diversion program) or by §4764 of Title 16 (first offenders controlled substances diversion program).
Jurisdiction” Substantially similar crimes in another State or Jurisdiction including all crimes prohibited by or punishable under Title 18 of the United Stated Code Annotated (U.S.C.A.) such as, but not limited to, Federal Health Care offenses.
15.6 Any crime which involves offenses against a public health order and decency which may tend to bring discredit upon the profession, specifically including the below listed crimes from Title 11 of the Delaware Code Annotated which evidence a lack of appropriate concern for the safety and well being of another person or persons in general or sufficiently flawed judgment to call into question the individual’s ability to make health care decisions or advise upon health care related matters for other individuals.
15.10 The Board reserves the jurisdiction and authority to modify this regulation as and if it becomes necessary to either add or delete crimes including such additions as may be required on an emergency basis under 29 Del.C. §10119 to address imminent peril to the public health, safety or welfare. The Board also specifically reserves the jurisdiction to review any crime committed by an applicant for licensure as a physician and to determine whether to waive the disqualification under 24 Del.C. §1720(d).
17.1 Purpose: The Legislature has created the Board of Medical Licensure and Discipline to assure the protection of the public from persons who do not meet the minimum requirements for safe practice or who pose a danger to the public. Pursuant to 24 Del.C. §1713(f), the Board provides the disciplinary guidelines it will apply to licensees regulated under 24 Delaware Code, Chapter 17, after a full investigation and at the conclusion of a hearing after finding violations of the Board’s statute and/or regulations. The purpose of this rule is to notify applicants of the ranges of penalties which may be imposed unless the Board finds grounds to deviate from the guidelines due to aggravating or mitigating circumstances (Rules 31.12 and 31.13). The practice of medicine is already subject to both civil and criminal penalties. Recognizing its role as protector of the public’s health, safety, and welfare, the Board offers these guidelines as a means to improve the quality of medical care and not to enforce the penal code, a responsibility left to law enforcement and to the courts. The purpose of imposing discipline is to sanction licensees for violation; deter them from future violations; to offer opportunities for rehabilitation when appropriate; and to dissuade other applicants and licensees from committing disciplinable offenses.
19.3 No opioid prescribing is permitted via telemedicine with the exception of addiction treatment programs offering medication assisted treatment that have received a Division of Substance Abuse and Mental Health (DSAMH) waiver to use telemedicine through DSAMH’s licensure or renewal process as outlined in 16 DE Admin. Code 6001 Substance Abuse Facility Licensing Standards Sec. 4.15. All other controlled substance prescribing utilizing telemedicine is held to the same standards of care and requisite practice as prescribing for in-person visits.
Last Updated: December 31 1969 19:00:00.
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