CHAPTER 303

FORMERLY

HOUSE BILL NO. 314

AN ACT TO AMEND CHAPTER 88, TITLE 29 OF THE DELAWARE CODE RELATING TO THE DEPARTMENT OF ADMINISTRATIVE SERVICES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 8810, Title 29, of the Del. C. by adding a new subsection thereto to read as follows:

"(m) Unless otherwise provided by law, any Board within the Division of Professional Regulation may adopt through its Rules and Regulations the Voluntary Treatment Option for Chemically Dependent or Impaired Professionals for the treatment of chemically dependent or impaired persons regulated by such Board. The Voluntary Treatment Option for Chemically Dependent or Impaired Professionals shall be available to a regulated professional of a participating Board, provided the regulated professional has not committed any offense, other than the status of being chemically dependent or impaired, which otherwise constitutes a ground for discipline under applicable laws governing the regulated professional. The participating Board may defer and ultimately take no disciplinary action with regard to an eligible chemically dependent or impaired regulated professional who voluntarily signs an agreement, in a form satisfactory to the participating Board, agreeing to the terms and conditions specified in the Voluntary Treatment Option. The Board, where it deems appropriate, may proceed with disciplinary action with regard to a disciplinary offense alleged to have occurred prior to the professional's entry into the Voluntary Treatment Option. Any person regulated by a participating Board may refer himself/herself into this Voluntary Treatment Option. Any member of the public, or member of the participating professions regulated by the Division of Professional Regulation may make a written report, signed by the complainant, of chemical dependency or impairment affecting any person regulated by a participating Board within the Division of Professional Regulation to the appropriate Board chairperson, her or his designate, or designates, or directly to the Director of the Division of Professional Regulation or his/her designate. Failure to provide such a report may be considered grounds for disciplinary action against a regulated professional so failing to report, if such grounds for disciplinary action are provided in the participating Board's statutes, rules, or regulations. When a report is received indicating that a regulated professional of a participating Board may be chemically dependent or impaired, the Boards or Commissions subject to this Voluntary Treatment Option for Chemically Dependent or Impaired Professionals shall follow the following procedures:

(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.

(0) The chairperson of the regulatory Board or that chairpersons' designate or designates shall, within seven (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.

(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 thirty (30) days following notification to the professional by the participating Board chairperson or that chairpersons' designate(s).

(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.

(5) Failure to cooperate fully with the participating Board chairperson or that chairperson's designate or designates os the Director of the Division of Professional Regulation or his/her designate in regard to the Voluntary Treatment Option or to comply with their requests for evaluations and screens may disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board chairperson or that chairperson's designate or designates shall cause to be activated an immediate investigation and institution of disciplinary proceedings, if appropriate, as outlined in subsection (h), § 8810 of this title.

(0) The Voluntary Treatment Option may require a regulated professional to enter into an agreement which includes, but is not limited to, the following provisions:

a. 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.

b. 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.

c. Consent of the regulated professional, in accordance with applicable law, to the release of any treatment information from anyone within the approved treatment program.

d. 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 paragraph shall approximate and reasonably reflect the costs necessary to defray the expenses of the participating Board, as well as the proportional expensesincurred 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.

e. 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.

. Compliance by the regulated professional with any terms or restrictions placed on professional practice as outlined in the agreement under the Voluntary Treatment Option.

(7) The regulated professional's records of participation in the Voluntary Treatment Option will not reflect disciplinary action and shall not be considered public records open to public inspection. However, the participating Board may consider such records in setting a disciplinary sanction in any future matter in which the regulated professional's chemical dependency or impairment is an issue.

(8) 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.

(0) If practice is restricted, the regulated professional may apply for unrestricted licensure upon completion of the program.

(1) 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.

(2) 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 non-disciplinary matter.

(3) 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."

Approved June 25, 1998