CHAPTER 39

FORMERLY

HOUSE BILL NO. 207

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2, 3, 4 AND 5

AN ACT TO AMEND TITLE 24 AND TITLE 29 OF THE DELAWARE CODE RELATING TO PODIATRY; AND PROVIDING FOR A BOARD OF PODIATRY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OP THE STATE OF DELAWARE (Three-fifths of all members elected to each Howe thereof concurring therein),

Section 1. Amend Chapter 5, Title 24 of the Delaware Code by repealing all of said Chapter 5 and by substituting in lieu of said Chapter 5 a new Chapter 5 as follows:

'CHAPTER 5. PODIATRY
§500. Statement of Purpose and Objective

Recognizing that the practice of podiatry is a privilege and not a natural right of individuals, it is hereby deemed necessary as a matter of policy that it is in the interest of public health, safety and welfare to provide laws and provisions covering the granting of that privilege and its subsequent use and control, and to provide rules and regulations to the end that the public health shall be promoted; and the public shall be properly protected against the unprofessional, improper, unauthorized and unqualified practice of podiatry and from unprofessional conduct by persons licensed to practice podiatry. Accomplishment of that purpose shall be the primary objective of the Board of Podiatry. In meeting said objective, the Board shall develop standards assuring professional competence; monitor complaints brought against practitioners regulated by the Board; adjudicate formal complaint hearings; promulgate rules and regulations; and impose sanctions when necessary against practitioners.

§501. Definitions

(a) As used in this Chapter, podiatry means the diagnosis and the medical, surgical, mechanical, manipulative and electrical treatment of all ailments of the foot and ankle. An exception shall be the amputation of the foot. Anesthetic administration shall be limited to local.

(b) As used in the definition of podiatry in subsection (a) of this Section: (I) 'Diagnosis' means the ascertainment of a disease or ailment by its general symptoms;

(2) 'Medical treatment' means the application to or prescription for the toot and ankle of medicine, pads, adhesives, felt, plasters or any medicinal agency;

(3) 'Surgical treatment' means the use of any cutting instrument to treat a disease, ailment or condition;

(4) 'Mechanical treatment' means the application of any mechanical appliance made of steel, leather, felt or any material to the foot or in the shoe for the purpose of treating any disease, deformity or ailment;

(5) 'Manipulative treatment' means the use of the hand or machinery in the operation or working upon the toot and its articulations;

(6) 'Electrical treatment' means the administration of electricity to the foot and ankle by means of electrodes, machinery, rays and the like.

§502. License to Practice

(a) No person may practice podiatry in this State who has not been licensed in accordance with this Chapter. Under such rules and regulations as the Board may adopt, the provisions of this Chapter shall not be construed to prohibit the practice of podiatry by:

(I) Persons who are licensed to practice podiatry in any other State, district or foreign country who, as practicing podiatrists, enter this State to consult with a podiatrist of this State. Such consultation shall be limited to examination, recommendation, and testimony in litigation;

(2) Any student of an accredited school or college of podiatry who is receiving practical training under the personal supervision of a licensed podiatrist in Delaware;

(3) Any podiatrist or surgeon commissioned by any of the Armed Forces of the United States, or by the United States Public Health Service;

(4) Any physician licensed in this State.

(b) The provisions of this Chapter shall not prohibit the fitting, recommending, or sale of corrective shoes, arch supports or similar mechanical appliances by retail dealers or manufacturers. However, no representative of a dealer or manufacturer shall be permitted to medically diagnose, treat or prescribe for any foot or ankle ailment, disease or deformity, unless such person is licensed to practice podiatry in this State.

§503. Board of Podiatry

(a) The Board of Podiatry shall consist of five (5) members appointed by the Governor: three (3) professional members who shall be licensed podiatrists; and two (2) public members. To serve on the Board, the public members shall not be nor ever have been a podiatrist, nor a member of the immediate family of a podiatrist; shall not have been employed by a podiatrist; shall not have had material financial interest in the providing of goods and services to podiatrists; nor have been engaged in an activity directly related to podiatry. Such public member shall be accessible to inquiries, comments and suggestions from the general public.

(b) Each member shall serve for a term of five (5) years, and may succeed himself for one additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, and the member shall no longer be eligible to participate in Board proceedings unless lawfully appointed.

(e) A member of the Board shall be suspended or removed by the Governor for misfeasance, non-feasanee or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.

(d) No member of the Board of Podiatry, while serving on the Board, shall be an officer of a local or state professional podiatry association.

(e) Vacancies occurring on the Board by reason of the death of any member or his incapacity, neglect or refusal to act or by removal or in any other way, including those specified in this Chapter shall be filled by the Governor.

(f) Each Board member shall be reimbursed for all expenses involved in each meeting, including travel; and in addition shall receive not more than fifty dollars ($50) for each meeting attended, but not more than five hundred dollars ($500) in any calendar year. After ten meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§504. Officers; Conduct of Business

(a) In the same month of each year the members shall elect, from among their number, a President, and a Secretary-Treasurer. Each officer shall serve for one year, and shall not succeed himself in the same office.

(b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the President deems necessary, or at the request of a majority of Board members.

Further, a public notice of all meetings shall appear in the major newspapers no less than one week prior to the meeting date. Special or emergency meetings may be held without notice, but a copy of the minutes of such meeting shall be included with the notice sent to practitioners for the next following business meeting.

(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least three members. Any member who falls to attend three consecutive meetings, or who falls to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.

(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Business and Occupational Regulation. At any hearing where evidence is presented, the hearing shall be recorded. Transcripts shall be made at the request and expense of any party.

§505. Powers and Duties; Immunity

(a) The Board shall have the authority and the duty to:

(1) Formulate rules and regulations with appropriate notice to those affected where such notice can reasonably be given.

(2) Designate the application form to be used by all applicants, and to process all applications.

(3) Upon proper application, provide for the licensing to practice podiatry in the State of Delaware to all persons who:

(I) Satisfactorily complete an examination administered on a national basis with a grade of not less than 80; and

(ii) Satisfactorily complete a hospital residency program approved by the American Podiatry Association, or a preceptorship in the office of a licensed podiatrist in the State of Delaware for a period of one year, and

(iii) Satisfactorily complete a six month clerkship in which the clinical abilities of an applicant can be observed. The Board shall establish rules and regulations for clinical observation, receiving written evaluations of applicants by clinical observers and approving programs to correct clinical deficiencies of applicants.

(4) Provide for the administration of all examinations, including notice and information to applicants.

(5) Administer national examinations for those who cannot be examined at a podiatry school under such conditions as permitted by the national testing service which has produced such an examination.

(6) Grant licenses to all persons who meet the qualifications for licensure.

(7) Receive complaints from practitioners and from the public concerning practitioners, or concerning practices of the profession; evaluate such complaints; and take such action within its powers as the Board deems appropriate.

(8) Investigate complaints and charges of unprofessional conduct respecting any holder of a certificate to practice podiatric medicine.

(9) Investigate complaints and charges that physical and mental disability renders the practice of podiatric medicine by any person contrary to commonly accepted standards.

(10) Investigate complaints of unauthorized practice of podiatric medicine.

(II) Determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, to conduct such hearing in accordance with this Chapter and the provisions of the Administrative Procedures Act.

(12) Where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lamed.

(13) Provide by rule for continuing medical education.

(14) Provide by rule for the administration of anaesthetics within the limits of S501 hereof.

(15) Bring proceedings in the courts for the enforcement of this Chapter.

(16) Maintain complete records, relating to meeting minutes, applications, examinations, rosters, changes and additions to the rules and regulations, complaints, hearings and such other matters as the Board shall determine.

(b) The Board may require by subpoena the attendance and testimony of witnesses and production of papers, records or other evidence.

(c) The members of the Board shall not be subject to, and shall be Immune from, claims, suit, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, or performed, or recommendation made, so long as such member of the Board acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under this Chapter or any other provisions of the Delaware or federal law or rules or regulations or duly adopted rule or regulation of the Board. Good faith is presumed unless otherwise proven and malice Is required to be proven by the complainant.

(d) No member of the Board shall in any manner whatsoever discriminate against any applicant or person holding or applying for a certificate to practice podiatric medicine by reason of sex, race, color, creed or national origin.

(e) No member shall participate in any action of the Board involving directly or indirectly any person related in any way by blood or marriage to said member.

§506. Application Procedure

(a) An applicant who is applying for examination and licensure shall have the following qualifications:

(I) He shall have received a degree of 'Doctor of Podiatric Medicine' or its equivalent from a legally incorporated college or school approved by the Council on Podiatric Education of the American Podiatry Association, or the successor of such Council;

(2) He shall not have been convicted of a felony, nor have been professionally penalized or convicted of drug addiction, convicted of unlawfully prescribing narcotic drugs, convicted of willfully violating the confidence of a patient, nor have been professionally penalized or convicted for fraud;

(3) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board. No application form shall require a picture of the applicant; require information relating to citizenship, place of birth, or length of state residency; nor require personal references.

(b) Where a person who feels the Board has refused or rejected his application without justification; has imposed higher or different conditions for him than for other applicants; or has in some other manner contributed to or caused the failure of such person's application, the applicant may appeal to the Superior Court.

(c) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

§507. Examination of Applicants

(a) The Board shall, at least once in each year, preferably in the same month each year, admnister or authorize the administration of examinations as described in §505 hereof.

(b) Where an applicant fails to pass the examination, but has successfully completed and passed certain sections or portions of the examination, the applicant shall in the next subsequent examination be tested only for those portions or sections which he failed, if the testing service permits such partial examination. In the event the applicant fails the second time to successfully complete or pass the examination, the Board may require that such applicant again take the complete examination.

(c) In the event there is no national examination or testing service, as described in this Chapter, the Board may devise or have devised a test for its own use and the Board may administer and correct such tests. The Board may, by rule, determine passing grades for all tests given by or for it.

§508. Reciprocity

An applicant for a license to practice podiatry in the State of Delaware based upon reciprocity must produce evidence that the person has graduated from an approved school of podiatric medicine and has practiced podiatry in another state for a period of five years. The Board shall grant to such applicant a conditional license for a period not to exceed 6 months. Thirty days prior to the expiration of a conditional license the Board shall consider the application again to ascertain whether any violations of §513 of this Act have taken place. Any such violations shall be subject to review as set forth in this Act. A finding of a §513 violation the Board may use sanctions as set forth in §514 or refuse the issue of a permanent license. If no violations of §513 are cited, the Board shall grant a permanent license to the applicant. Upon receipt of an application for reciprocity, the Board shall contact each State which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. An application for licensure by reciprocity shall be accompanied by full payment of the reciprocity fee. The Board shall approve

only these applicants who have been registered or certified in other states whose requirements for registration and certification are substantially equal to those of the State of Delaware. Reciprocity shall not be extended to applicants from those states which have denied similar reciprocity privileges to persons certified and registered to practice in this State.

§509. Fees

(a) The amount to be charged for each fee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Business and Occupational Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for an activity not specified in this Chapter. The application fee shall not be combined with any other fee or charge, except as specifically set forth herein. At the beginning of each calendar year the Division of Business and Occupational Regulation, or any other state agency acting in its behalf, shall compute for each spearate service or activity, the appropriate fee for the coming year.

(b) In those instances where the National Board examination is to be taken in Delaware, applicants shall nevertheless pay all fees charged by the testing service directly to the testing service. Where the testing service refuses to accept direct payment, the applicant may pay the Board. In the event there are other expenses directly incurred by the Board in connection with the administration of this Chapter in particular cases, the respective applicants in those cases shall pay additional fees to the Board necessary to defray such expenses.

§510. Licensure; Renewal of License

(a) Each person who has passed the written examination, who has been admitted to practice in this State by reciprocity, or who has otherwise qualified for a license shall, prior to practicing in this State, file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Title 30. The Board shall forthwith issue a license to each person who has qualified for same under the provisions of this Chapter and who has complied with all rules and regulations of the Board.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division of Business and Occupational Regulation. The Board shall, in its rules and regulations, determine the period of time within which a practitioner may still renew his license, notwithstanding the fact that such petitioner has failed to renew on or before the renewal date; provided however, that such period shall not exceed one year. At the expiration of the period designated by the Board, the license shall be deemed to be lapsed and not renewable, unless the former licensee re-applies under the same conditions which govern reciprocity except for the clerkship requirement; provided, however, that the former licensee shall also pay a reinstatement fee in an amount which is three times the amount of the reciprocity fee. Applicants for license renewal shall comply with all rules and regulations of the Board.

(c) Any licensee may, upon his written request, be placed in an inactive status for no more than five years. The renewal fee of such person shall be pro-rated in accordance with the amount of time such person was inactive. Such person may not re-enter practice until he has completed appropriate courses prescribed by the Board.

(d) A former licensee who has been penalized for the violation of a provision of this Chapter, or whose license has been suspended or revoked, and who subsequenUy is permitted to apply for reinstatement shall apply for a new license, successfully complete the examination required by the Board, and shall pay all appropriate fees before he may be licensed.

§511. Third Party Compensation

For purposes of disability, workers' compensation, standard health and accident, sickness and all other such insurance plans, whether or not they be considered Insurance policies, if the podiatrist is authorized by law to perform a particular service, he shall be entitled to compensation for his services under such plans.

§512. Complaints

(a) Any practitioner or member of the public who has a question or a complaint concerning any aspect of the practice of podiatry may, during the regular business hours of a business day, contact the Board or the Division of Business and Occupational Regulation; or voice such question or complaint at a business meeting of the Board.

(b) The Board shall investigate any complaint, including oral and anonymous complaints; and shall follow through on those informal complaints which, upon investigation, appear to be valid and well-founded. In cases where the complainant is known to the Board, the Board shall, within one week after receipt of the complaint, notify the complainant as to what action (if any) the Board intends to take in the matter. A complete record shall be kept of each complaint, formal or informal; provided however, that the complaint records may be purged after five years.

§513. Violations; Grounds for Professional Discipline

(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth in 5514 if, after a hearing, the Board finds:

(1) The willful violation of any privileged communication by the practitioner;

(2) The practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice podiatry;

(3) Illegal, incompetent or negligent conduct In the practice of podiatry;

(4) Excessive we or abase of drugs (including alcohol, narcotics or chemicals);

(5) The practitioner has been convicted of a felony or crime involving moral turpitude;

(6) The practitioner has engaged in any dishonorable, unethical or unprofessional conduct likely to deceive, defraud or harm the public; advertised the practice of podiatry in any unethical or unprofessional matter; knowingly performed any act which in any way assists un unlicensed or unregistered person to practice podiatry;

(7) The practitioner has violated a lawful provision of this Chapter, or any lawful regulation established hereunder.

(b) A practitioner shall be subject to non-disciplinary remedial action if, after a hearing, the Board finds that there Is a danger to the practitioner's patient or to the public due to

(I) Physical illness or toss of motor skill, including, but not limited to deterioration through the aging process; or

(2) Temporary emotional disorder or mental illness; or

(3) Permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity to practice safely is at issue in a non-cesciplinary remedial proceeding, the Board may order a practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render the practitioner liable to temporary suspension or revocation of license in accordance with 5514.

(d) Where a practitioner falls to comply with the Board's request that he submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

(e) Subject to the provisions of Subchapter IV, Chapter 101, Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board; and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard in accordance with the Administrative Procedures Act.

§514. Remedial Actions and Disciplinary Sanctions

(a) The Board may impose any of the following sanctions, partially, singly or In combination, when it finds that one of the conditions or violations set forth in 5513 applies to a practitioner regulated by this Chapter:

(1) Issue a public letter or reprimand;

(1) Publicly censure a practitioner;

(1) Place a practitioner on probationary status, and require the practitioner to:

(i) Report regularly to the Board upon the matters which are the basis of the probation;

(i) Limit all practice and professional activities to those areas prescribed by the Board, and/or

(4) Suspend any practitioner's license; or

(5) Revoke a practitioner's license.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.

(c) Where the Board has placed a practitioner on probationary status under certain restrictions or concitions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner it may, after a hearing on the matter, suspend or revoke the practitioner's license.

(d) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, or during the appeals process; but only in cases where there Is a clear and immediate danger to the health and safety of a patient or to the public if the licensee is allowed to continue to practice. Such suspension may be appealed to the Superior Court.

(e) Where a license has been suspended due to a disability of the license, the Board may reinstate such licensure, if, after a hearing, the Board Is satisfied that the licensee is able to practice with reasonable skill and safety to his patients.

(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§515. Board Hearings; Procedure

(a) Upon the receipt of a complaint, the Board shall determine what action, if any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within three months from the date on which the complaint was received. The Board shall fix the time and place for a full hearing of the matter, and shall cause a oboy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least thirty days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected In the same manner as with civil litigation.

(b) All hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include it reasons for such decision. A copy of the decision shall be mailed immediately to the practitioner. The Board's decision shall be come effective on the thirtieth day after the date it is malted or served on the practitioner, unless there is an appeal by the practitioner to the Superior Court within that time.

(c) Where the practitioner is in disagreement with the action of the Board, he may appeal the Board's decision to the Superior Court within thirty days of service, or of the postmarked date or the copy of the decision mailed to him. Such review shall be a review de novo.

§516. Penalties

(a) Where the Board has determined that a person is practicing podiatry within this State without having lawfully obtained a license therefor, or that a person previously licensed is unlawfully practicing although his license has been suspended or revoked, the Board shall formally warn such person. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.

(b) Where a person not currently licensed as a podiatrist is tried and convicted of unlawfully practicing podiatry in violation of this Chapter such offender shall, upon the first offense, be fined $50, and shall pay all costs; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the applicable provisions of Title II.

(c) Where a person previously tried and convicted of unlawfully practicing podiatry is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by two hundred and fifty dollars ($250) for each subsequent offense thereafter.

§517. Corporations, other than colleges, not to practice

Except for professional associations authorized by the laws of this State, no person shall Incorporate under the laws of this State for the purpose of practicing podiatry within this State, and

no foreign corporation organized for such purposes shall attempt to practice podiatry within this State. Such restrictions shall not apply to accredited podiatry colleges, whose students are receiving their practical training under personal supervision of any licensed podiatrist of this State.

§518. Practice withoutregistation or certificate; separate offenses; penalty

Whoever practices or attempts to practice within this State without having been registerd or without having obtained a certificate to practice podiatry or during the period of suspension or revocation of such certificate previously granted shall be fined not less than $100 nor more than $200, or imprisoned not less than 1 month nor more than 1 year, or both, and upon a second or any subsequent offense, shall be fined not less than $200 nor more than $500 and imprisoned not less than 6 months nor more than 1 year.

Each act of practice or attempt to practice podiatry under the disabilities described in this section shall be a separate of tense.

§519. Filing of false documents; penalty

Whoever files or attempts to file as his own the diploma, certificate or license of another or a forged, false affidavit of identification or qualification is guilty of a felony and shall be fined not less than $500 nor more than $2,000 and imprisoned not more than 5 years.

§520. Sunset Provisions

The provisions of §505 (a)(3)(iii) of this Chapter shall be applicable for a period of not more than three years from the enactment of this Act. At the end of three years said §505 (a)(3)(iii) shall be subject to review by the Sunset Committee or its' designee in order to ascertain its effectiveness as a professional licensing requirement."

Section 21 Amend §10161, Chapter 101, Title 29 of the Delaware Code by striking the word "and" as the same appears in subsection (15); by substituting a semi-colon (;) in lieu of the period (.) at the end of sbusection (16); and by adding thereto the following new subsection:

"(17) Board of Podiatry" '

Wherever this statute is in conflict with the said Chapter 101, this statute shall govern.

Section 3. The licenses of all persons licensed in Delaware as podiatrists on the effective date of this Act shall continue to be valid, and shall not in any way be invalidated or otherwise affected by this Act.

Section 4. Of the initial Board of Podiatry established under this Act, one professional member shall be appointed for a term of three years; one professional member and one public member shall each be appointed for a term of two years; and one professional member and one public member shall be appointed for a term of one year.

Section 5. The provisions of this Act shall become effective thirty days after its enactment into law.

Approved June 1, 1983.