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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMay 2017


Regulatory Flexibility Act Form

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24 DE Admin. Code 3700
Pursuant to 24 Del.C. §3706(a)(1), the Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers (“Board”) proposes revisions to its rules and regulations.
On October 1, 2015, proposed revisions to the rules and regulations were published in the Delaware Register of Regulations, Vol. 19, Issue 4. Specifically, the Board’s proposed amendments struck the current Section 9.2.1.4, which addresses practice by telecommunications, and added a new Section 10.0, pertaining to telepractice. The new Section 10.0 sets forth standards and requirements in order to allow licensees to engage in telepractice while protecting the public.
A public hearing was held on November 17, 2015. The Board deliberated on January 19, 2016, and based on those deliberations, made substantive revisions to the proposed rules and regulations, which were published in the August 1, 2016 Register of Regulations, Volume 20, Issue 2. A second public hearing took place on February 21, 2017 at 2:00 p.m., and the Board deliberated on March 21, 2017. Once again, the Board made substantive changes to the proposed rules and regulations. Therefore, the Board strikes the rules and regulations as proposed in the August 1, 2016 Register of Regulations and proposes revised rules and regulations attached hereto as Exhibit A.
In accordance with 29 Del.C. §10118(a), the final date to receive written comments will be July 5, 2017, which is 15 days following the public hearing. The Board will deliberate on all of the public comment at its next regularly scheduled meeting, at which time it will determine whether to adopt the rules and regulations as proposed or make additional changes due to the public comment.
A public hearing was held before the Board on February 21, 2017 in the Cannon Building, 861 Silver Lake Boulevard, Dover, Delaware where members of the public were invited to offer comments on the proposed amendments to the rules and regulations. Members of the public were also invited to submit written comments. In accordance with 29 Del.C. §10118(a), the written public comment period was held open until March 8, 2017, which was 15 days following the public hearing. The Board deliberated on the proposed revisions at its regularly scheduled meeting on March 21, 2017.
Exhibit 1: News Journal Affidavit of Publication.
Exhibit 2: Delaware State News Affidavit of Publication.
Exhibit 3: Written comments from Leia Heckman, President of the Delaware Speech Language Hearing Association, objecting to subsection 10.2.1.2, outlining that the client shall be located within the borders of the State of Delaware during the telepractice treatment session. Ms. Heckman requested a change to the language to reflect the client’s legal status as a Delaware resident in order to ensure continuity of care.
Exhibit 4: October 5, 2016 letter from Allison Wils of ERISA Industry Committee. Ms. Wils stated that ERIC is a national association that advocates for large employers on health, retirement and compensation public policies. Ms. Wils noted the benefits of telepractice, including flexibility and accessibility. Ms. Wils requested that the Board strike the proposed requirement that initial evaluations be performed face to face and not through telepractice in favor of permitting licensees to exercise their professional judgment. Ms. Wils also asked that the Board strike the requirement that a patient be located within the boundaries of Delaware during treatment.
Exhibit 5: November 29, 2016 letter from the Federal Trade Commission. The FTC objected to the provision requiring that initial evaluations be performed face to face. The FTC noted the benefits of telepractice in Delaware in terms of increasing competition and access to speech and hearing services and commented that certain health services are unevenly distributed throughout the state, in particular, audiology services. The FTC stated that telepractice can be used for the diagnostic evaluation of infants who failed a newborn hearing screening test at the birth hospital. This use of telepractice could enhance quality of care and yield benefits for children with hearing loss. The FTC noted that the proposed regulations hold licensees to in-person standards of care and, with the exception of the initial evaluation, entrusts the decision whether to use telepractice to the professional judgment of the licensee. The FTC continued that the proposed restriction on telepractice could discourage the use of telepractice and noted that of the 19 states and District of Columbia with laws, regulations or policies on speech/language pathology or audiology telepractice, only three require an in-person initial evaluation. Finally, the FTC noted that Delaware’s Board of Occupational Therapy Practice declined to include an initial in-person evaluation requirement.
Exhibit 6: February 21, 2017 comments to the Board, from Kathryn Tullis, PhD, Delaware Division of Public Health. Dr. Tullis noted the need for infant hearing screening and stated that often families cannot receive the required screening by three months of age due to issues related to access, particularly in Kent and Sussex counties. Dr. Tullis requested that the Board permit audiological testing on infants via telepractice.
Exhibit 7: February 21, 2017 comments from Yell Inverso, AudD, PhD, CCC-A, of Nemours/A.I. duPont Hospital for Children. Dr. Inverso expressed concern with proposed Section 10.2.4.2 stating that initial evaluations must be performed face to face. She continued that because audiologists primarily provide diagnostic services, most evaluations are initial evaluations that may not result in the need to see the patient for further visits. Dr. Inverso stated that initial evaluations are critical, particularly for newborn infants who either did not receive a newborn hearing screening at birth of who failed the newborn screening. Further testing is needed, which is provided at only one location in Kent and Sussex counties. Families are required to travel 2-3 hours to New Castle County for the necessary screening, a trip that may not be feasible given lack of transportation or lost wages with the result of infants lost to follow up. Dr. Inverso further stated that consequences are serious for these infants in terms of potential hearing loss. She concluded that the quality of this screening is comparable to a face to face visit.
Exhibit 8: February 21, 2017 comments from J. Heather Northam, MA, CCC-SLP addressing the shortage of speech and language pathologists in Delaware. She stated that providing services by telehealth provides an excellent method for addressing shortages by “extending the geographic reach” of licensed professionals. Ms. Northam objected to inclusion of the requirement that initial evaluations be performed face to face, stating that in some situations telehealth is not appropriate. However, licensed professionals can exercise professional judgment in deciding whether either initial evaluations or subsequent care can be provided by telehealth.
Pursuant to 24 Del.C. §3706(a)(1), the Board has statutory authority to promulgate rules and regulations.The proposed changes seek to establish standards for the delivery of services by telepractice for the professions regulated by the Board.
As previously stated in the Public Notice published in the August 1, 2016, Register of Regulations, Volume 20, Issue 2, the Board declines to amend Section 10.2.1. Care occurs where the client is physically located. A licensee who is licensed in Delaware only would be engaging in unlicensed practice if permitted to treat a client who has left Delaware and is located in another state. The Board would have no jurisdiction with respect to care provided in another state. Section 10.2.1 serves the interests of public protection by ensuring that clients located in Delaware receive care from practitioners properly licensed by the Board.
2.6.2 An applicant who has ASHA Certification must comply with Ssubsection 2.6.1 and submit a copy of current ASHA certification.
2.6.3 An applicant who is currently licensed 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, must comply with 24 Del.C. §3710. Applicants for reciprocal licensure from states not substantially similar to this state shall provide proof of practice for a minimum of five years after licensure in addition to meeting the other qualifications in 24 Del.C. §3710. Verification of practice shall be by notarized letter from the employer(s).
3.1 Delaware-licensed Audiologists are authorized to dispense hearing aids, pursuant to 24 Del.C. §3702(9), and are not required to obtain a separate Hearing Aid Dispensing license. All other applicants shall meet the following requirements:
3.2.2.2 Training shall be completed under the direct supervision of a Delaware-licensed Hearing Aid Dispenser or Delaware-licensed Audiologist. “Direct supervision” means direct, on-site observations of the applicant by the supervisor. Applicants shall be under direct supervision for 100% of the time during the first two (2) months, 50% of the time during the subsequent two (2) months, and 25% of the time during the final two (2) months of the training period.
3.34 Reciprocal Licensure
An applicant who is currently licensed 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, must comply with 24 Del.C. §3710. Applicants for reciprocal licensure from states not substantially similar to this state shall provide proof of practice for a minimum of five years after licensure in addition to meeting the other qualifications in 24 Del.C. §3710. Verification of practice shall be by notarized letter from the employer(s).
6.2.1 A Speech/Language Pathology Aide assists a licensed Speech/Language Pathologist in professional activities with direct supervision of the Speech/Language Pathologist. Direct supervision requires the presence of the supervising Speech/Language Pathologist at all times where an aide is assisting with testing, and/or treatment.
7.2 Audiologists and Hearing Aid Dispensers shall indicate by attestation in the course of license renewal whether they have complied with regulation subsection 7.1 Audiologists who do not have such equipment shall attest to that fact during the course of renewal.
8.2.2.3 Dual License: Individuals with licenses in two (2) areas of specialty must obtain a minimum of 30 CEs during each two-year license renewal period, with 15 CEs obtained in each specialty area. One course may be split between specialty areas to fulfill multiple CE requirements. Content must be shown to be relevant to those areas.
8.2.2.4 Temporary License: All CE requirements will be waived for temporary licensees; however, individuals are encouraged to participate in continuing education activities during their CFY period.
8.3 Acceptable CE Courses/Activities
8.3.1 CE activities sponsored by accredited professional organizations, such as ASHA or AAA, are acceptable, provided the topics are relevant to the improvement of the licensee’s clinical skills or professional growth as defined in Rule subsection 8.2.3.
9.1 PREAMBLE. The preservation of the highest standards of conduct and integrity is vital to achieving the statutory declaration of objectives in 24 Del.C. §3701. Adopting a code of ethics by regulation puts licensees on notice of the kinds of activity that violate the level of care and protection to which the clients are entitled. The provisions are not intended to be all-inclusive but rather they should serve as examples of obligations that must be satisfied to maintain minimum standards.
9.2.1.4 Licensees shall not evaluate or treat a client with speech, language, or hearing disorders solely by correspondence. Correspondence includes telecommunication.
9.2.1.5 Licensees shall delegate responsibility only to qualified individuals as permitted by law with appropriate supervision.
9.2.1.65 Licensees who have evidence that a practitioner has violated the Code of Ethics or other law or regulation shall present that information by complaint to the Division of Professional Regulation for investigation.
9.3.1.4 Licensees shall inform clients in any matter where there is or may be a conflict of interest. Conflicts of interest may be found when a client is steered to a particular provider by one with an expectation of financial gain (kickbacks) or a provider is involved in double dipping by providing services in a private practice that he or she is obligated to provide though public employment (double-dipping).
9.3.2.2 A licensee who has evidence that an individual is practicing the profession without a license in violation of 24 Del.C. §3707 has a duty to report that information to the Division of Professional Regulation.
1011.0 Voluntary Treatment Option for Chemically Dependent or Impaired Professionals
1011.1 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.
1011.2 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.
1011.3 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).
1011.4 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.
1011.5 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 10.8 of this section 11.8.
1011.6 The Voluntary Treatment Option may require a regulated professional to enter into an agreement which includes, but is not limited to, the following provisions:
1011.6.1 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.
1011.6.2 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.
1011.6.3 Consent of the regulated professional, in accordance with applicable law, to the release of any treatment information from anyone within the approved treatment program.
1011.6.4 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.
1011.6.5 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.
1011.6.6 Compliance by the regulated professional with any terms or restrictions placed on professional practice as outlined in the agreement under the Voluntary Treatment Option.
1011.7 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.
1011.8 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.
1011.9 If practice is restricted, the regulated professional may apply for unrestricted licensure upon completion of the program.
1011.10 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.
1011.11 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.
1011.12 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.
1112.0 Crimes substantially related to the practice of speech/language pathology, audiology, and hearing aid dispensing.
1112.1 Conviction of any of the following crimes, or of the attempt to commit or of a conspiracy to commit or conceal or of the solicitation to commit any of the following crimes, is deemed to be a crime substantially related to the practice of speech/language pathology, audiology, and hearing aid dispensing in the State of Delaware without regard to the place of conviction:
1112.1.1 Assault in the second degree. 11 Del.C. §612.
1112.1.2 Assault in the first degree. 11 Del.C. §613.
1112.1.3 Assault by abuse or neglect. 11 Del.C. §615.
1112.1.4 Terroristic threatening; felony. 11 Del.C. §621
1112.1.5 Murder by abuse or neglect in the second degree. 11 Del.C. §633.
1112.1.6 Murder by abuse or neglect in the first degree. 11 Del.C. §634.
1112.1.7 Murder in the second degree. 11 Del.C. §635.
1112.1.8 Murder in the first degree. 11 Del.C. §636.
1112.1.9 Unlawful Sexual Contact in the first degree. 11 Del.C. 769
1112.1.10 Rape in the fourth degree. 11 Del.C. §770
1112.1.11 Rape in the third degree. 11 Del.C. §771
1112.1.12 Rape in the second degree. 11 Del.C. §772
1112.1.13 Rape in the first degree. 11 Del.C. §773
1112.1.14 Sexual extortion. 11 Del.C. §776
1112.1.15 Continuous sexual abuse of a child. 11 Del.C. §778
1112.1.16 Dangerous crime against a child. 11 Del.C. §777
1112.1.17 Sex offender unlawful sexual conduct against a child. 11 Del.C. §777A
1112.1.18 Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree. 11 Del.C. §778
1112.1.19 Sexual abuse of a child by a person in a position of trust, authority or supervision in the second degree. 11 Del.C. §778A
1112.1.20 Kidnapping in the second degree. 11 Del.C. §783
1112.1.21 Kidnapping in the first degree. 11 Del.C. §783A
1112.1.22 Identity theft. 11 Del.C. §854
1112.1.23 Forgery. 11 Del.C. §861
1112.1.24 Insurance fraud. 11 Del.C. §913
1112.1.25 Health care fraud. 11 Del.C. §913A
1112.1.26 Dealing in children. 11 Del.C. §1100A
1112.1.27 Endangering the welfare of a child. 11 Del.C. §1102
1112.1.28 Crime against vulnerable adult. 11 Del.C. §1105
1112.1.29 Sexual exploitation of a child. 11 Del.C. §1108
1112.1.30 Unlawful dealing in child pornography. 11 Del.C. §1109
1112.1.31 Possession of child pornography. 11 Del.C. §1111
1112.1.32 Sexual offenders; prohibitions from school zones. 11 Del.C. §1112
1112.1.33 Sexual solicitation of a child. 11 Del.C. §1112A
1112.1.34 Perjury in the first degree. 11 Del.C. §1223
1112.1.35 Hate crimes (felony). 11 Del.C. §1304(a)
1112.1.36 Stalking; felony. 11 Del.C. §1312A
1112.1.37 Duty to report child abuse or neglect. 16 Del.C. §903
1112.1.38 Abuse, neglect, mistreatment or financial exploitation of residents or patients. 16 Del.C. §1136.
1112.1.39 Trafficking in marijuana, cocaine, illegal drugs, methamphetamines, L.S.D., or designer drugs. 16 Del.C. §4753A
1112.1.40 Distribution, delivery or possession of a controlled substance within 1,000 feet of school property. Formerly 16 Del.C. §4767
1112.1.41 Distribution, delivery or possession of a controlled substance within 300 feet of park, recreation area, church, synagogue or other place of worship. Formerly 16 Del.C. §4768
1112.1.42 Abuse, neglect, mistreatment or financial exploitation of an infirm adult who is impaired. 31 Del.C. §3913
1112.2 Crimes substantially related to the practice speech/language pathology, audiology, and hearing aid dispensing shall be deemed to include any crimes under any federal law, state law, or valid town, city or county ordinance, that are substantially similar to the crimes identified in this rule.
Last Updated: December 31 1969 19:00:00.
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