CHAPTER 413

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 486

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2, 4, 5, 6

AN ACT TO AMEND TITLE 24 CHAPTER 7 OF THE DELAWARE CODE RELATING TO CHIROPRACTIC, AND PROVIDING FOR A BOARD OF CHIROPRACTIC, AND AMENDING TITLE 29. CHAPTER 101 ADDING THE BOARD OF CHIROPRACTIC TO THE ADMINISTRATIVE PROCEDURES ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each House there of concurrring therein:

Section 1. Amend Chapter 7, Title 24 of the Delaware Code by repealing the title, and substituting a new title in lieu thereof to read as follows:

"CHAPTER 7. BOARD OF CHIROPRACTIC"

Section 2. Amend Chapter 7, title 24 of the Delaware Code by adding a new §700 to read as follows:

§700. Purpose of Chapter; Objective of Board

Recognizing that the practice of chiropractic 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 chiropractic and from unethical conduct by persons licensed to practice chiropractic. Accomplishment of that purpose shall be the primary objective of the Board of Chiropractic. 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.

Throughout the history of chiropractic there have been distinct philosophical approaches to chiropractic. No action, rule, standard, or requirement shall be imposed or interpreted which would restrict a practitioner from licensure as tong as the practitioner complies with all provisions of this Chapter."

Section 3. Amend Chapter 7, Title 24 of the Delaware code by striking §702, §703, §104, §705, §706. §707, §708, §709, §710, §711, §712, §713, §714 and §716 in their entirety and substituting in lieu thereof new §702, §703, §704, §705, §706. §707, §708, §709, §710, §711, §712, §713, §714 and §716 to read as follows:

"§702. Board of Chiropractic

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

Each member shall serve for a term of three (3) 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 (1) 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.

A member of the Board shall be suspended or removed by the Governor for misfeasance, non-feasance 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.

No member of the Board of Chiropractic, while serving on the Board, shall be an officer of a local or state professional chiropractic association or have a financial interest in any chiropractic college or school.

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.

Each Board member shall receive not more than fifty dollars ($50) for each meeting attended, and 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.

§703. Officers; Conduct of Business

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 (I) year, and shall not succeed himself in the same office.

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. A notice of the meetings of the Board shall be advertised in at least one newspaper in each county of the State one (1) week prior to said meeting. Special or emergency meetings may be held without notice, but a copy of the minutes of such meeting shall be sent to practitioners before the next following business meeting.

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 fails to attend three consecutive meetings, or who fails 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.

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.

§704. Complaints

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

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.

§705. 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 (3) 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 copy 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 (30) 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. after it is received by 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. Such appeal to the Court shall be a de novo review.

§706. Powers and Duties; Immunity

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

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

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

Upon proper application, provide for the licensing to practice chiropractic in the State of Delaware of all persons who satisfactorily meet the requirements of §707 and §708 of this Chapter.

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

Administer such national examinations for those who cannot be examined at a chiropractic school, and administer the examination under such conditions as are permitted by the national testing service.

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

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.

Investigate complaints and charges that physical and mental disability renders the practice of chiropractic by any person contrary to commonly accepted standards.

Investigate complaints of unauthorized practice of chiropractic.

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.

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 lapsed.

Provide for the rules for continuing chiropractic education.

Bring proceedings in the courts for the enforcement of this Chapter.

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.

The Board may require by subpoena the attendance and testimony of witnesses and production of paper, records or other such evidence.

The members of the Board shalt not be subject to, and shall be immune from, claims, sults, 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.

No member of the Board shall in any manner whatsoever discriminate against any applicant or person holding or applying for a license to practice chiropractic by reason of sex, race, color, creed or national origin.

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.

§707. Application Procedure

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

He shall have received a degree of 'Doctor of Chiropractic' from a school or college fully accredited by an accrediting agency recognized by the U. S. Department of Education. The Board shall promulgate rules and regulations governing applicants graduated from schools or colleges holding status with such recognized accrediting agency until 1990. After 1990, only applicants from fully accredited school and colleges of chiropractic may be accepted.

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

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, except where required for verification of identity for testing purposes, information relating to citizenship, place of birth, or length of state residency; nor require personal references.

(b) Where an applicant feels the Board has refused or rejected his application without justification; has imposed higher or different conditions for him than 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 applicant has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

§708. Examination of Applicants

All applicants must satisfactorily complete and examination administered on a national basis with a grade of not less that 75 in each subject:

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.

Upon completion and passing of the examination administered on a national basis, the Board shall then administer a clinical examination on the subjects usually taught by fully accredited chiropractic schools and colleges, designed to ascertain whether the applicant is qualified to practice chiropractic, to wit: Upon the subject of X-ray, anatomy, nutrition, physicology, symptomatology, chiropractic orthopedy, principles of chiropractic and adjusting, nerve tracing, chemistry, hygiene, bacteriology, chiropractic analysis and drugless therapy as taught by fully accredited chiropractic schools and colleges.

The Board shall administer and authorize the giving of two (2) clinical examinations each year.

Where an applicant fails to pass the clinical 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 sections of portions which he failed. In the event the applicant falls the second time to successfully complete or pass the examination, the Board may require that such applicant again take the complete examination.

This Board administer clinical examination shall terminate upon the development and promulgation of a national clinical examination.

The applicant may request, in writing to the Board, to in lieu of the clinical examination be allowed to satisfactorily complete a six (6) months clerkship in which the clinical abilities of the applicant can be observed. The Board shall establish rules and regulations for the clinical observation, receiving written evaluations of applicants by clinical observers and approving a program to correct any clinical deficiency of applicants. In order for the applicant to be eligible to participate in this clerkship he must have successfully completed the examination administered on a national basis in Paragraph (a).

Chiropractors acting as clinical observers are required to disclose to patients the presence and functioning of a clerk. A patient shall retain the right to refuse to be evaluated or treated by such clerk.

§709. Fees

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 separate service or activity, the appropriate fee for the coming year.

§710. Licensure; Renewal of License

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.

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, provided however, that such period shall not exceed one (1) 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; 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.

Any licensee may. upon his written request, be placed in an inactive status not to exceed five years. The renewal fee of such person shall be pro-rated in accordance with the amount of time such person was active. Such person may re-enter practice upon notification to the Board of his intent to do so, provided said person has satisfied all continuing education requirements prescribed by the Board.

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 subsequently 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 relicensed.

§711. Reciprocity

An applicant for a license to practice chiropractic in the State of Delaware based upon reciprocity must produce evidence that the person has graduated from an accredited or Board approved school of chiropractic and has practiced chiropractic in another state for a period of five (5) years and successfully completed clinical sections of the national examination or a clinical competency test administered by the Board. 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 those applicants who have been licensed in other states whose requirements for licensure are equal to or exceed those of the State of Delaware.

§712. Violations; Grounds for Professional Discipline; Remedial Actions and Sanctions

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

The willful violation of any privileged communication by the practitioner;

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

Illegal, incompetent or negligent conduct in the practice of chiropractic;

Excessive use or abuse of drugs (including alcohol, narcotics or chemicals);

The practitioner has been convicted of a felony;

The practitioner has engaged in any dishonorable, unethical or unprofessional conduct likely to deceive, defraud or harm the public; advertised the practice of chiropractic in any false or misleading manner; knowingly performed any act which in any way assists unlicensed or unregistered person to practice chiropractic;

(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:

Physical illness or loss of motor skill, including, but not limited to deterioration through the aging process; or

Temporary emotional disorder or mental illness; or

Permanent emotional disorder or mental illness.

(c) If a practitioner's physical or mental capacity to practice safely is at issue in a non-disciplinary 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 Paragraph (f).

(d) Where a practitioner fails 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.

(f) 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 Paragraphs (a) through (e) applies to a practitioner regulated under this Chapter:

Privately censure a practitioner;

Publicly censure a practitioner;

Issue a public letter of reprimand;

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

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

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

(iii) Continue or renew his professional education until the required degree of skill has been attained in those areas which are the basis of the probation;

Suspend any practitioner's license; or

Revoke a practitioner's license.

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

(h) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, 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.

(i) 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.

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.

(k) 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.

§713. License to Practice

No person may practice chiropractic 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 chiropractic:

Persons who are licensed to practice in any other state, district, or foreign country who, as practicing chiropractors, enter this State to consult with a chiropractor of this State. Such consultation shall be limited to examination, recommendation, or testimony in litigation;

Any student of a fully accredited school or college of chiropractic who is receiving practical training, or clerk receiving clinical evaluation under the personal supervision of a licensed Doctor of Chiropractic In Delaware.

§714. Practicing Chiropractic Without a License and Penalties

No person shall represent himself to the public as a Doctor of Chiropractic, or display any sign or advertise In any manner as being a Doctor of Chiropractic or Chiropractic Physician without first obtaining from the Board the license or licenses required under the provision of this Chapter.

Where the Board has determined that person is practicing chiropractic 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 in writing. 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.

Where a person not currently licensed as a chiropractor is tried and convicted of unlawfully practicing chiropractic in violation of this Chapter such offender shall, upon the first offense, be fined five hundred dollars ($500) or imprisoned not less than one (1) month nor more than one (1) year. or both, and upon a second or any subsequent offense, shall be fined not less than one thousand dollars (31.000) and imprisoned not less than six (6) months nor more than one (1) year, or both and shall pay all cost; 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 11.

The Superior Court shall have Jurisdiction of violations of this Chapter.
§716. 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 five hundred dollars ($500) nor more than two thousand dollars ($2,000), and imprisoned not more than five (5) years."

Section 4. Amend §10161. Chapter 101. Title 29 of the Delaware Code by striking the period "." at the end of subsection (19); and substituting In lieu thereof a semi-colon ";"; and by adding thereto the following new subsection to read as follows:

"(20) Board of Chiropractic"

Section 5. The licenses of all persons licensed In Delaware as Chiropractors 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 6. Of the Initial Board of Chiropractic established under this Act. one (1) professional member shall be appointed for a term of three (3) years. one (1) professional member and one (1) public member shall be appointed for a term of two (2) years, and one (1) professional member and one (1) public member shall be appointed for a term of one (1) year.

Section 7. The provisions of this Act shall become effective thirty (30) days after its enactment Into law.

Approved July 20, 1984.