CHAPTER 213

FORMERLY

SENATE BILL NO. 195

AN ACT TO AMEND CHAPTER 5, TITLE 24 OF THE DELAWARE CODE RELATING TO PODIATRY.

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

Section 1. Amend Chapter 5, Title 24 of the Delaware Code by striking said Chapter in its entirety and by substituting the following in lieu thereof:

“CHAPTER 5. PODIATRY

Subchapter I. Board of Podiatry.

§501. Objectives.

The primary objective of the Board of Podiatry, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this Chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.

The secondary objectives of the Board are to maintain minimum standards of practitioner competency; and, to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against licensed practitioners.

§502. Definitions.

(a) The following words, terms and phrases, when used in this Chapter shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning:

(1) ‘Board’ shall mean the State Board of Podiatry established in this Chapter.

(2) ‘Diagnosis’ shall mean the ascertainment of a disease or ailment by its general symptoms.

(3) ‘Division’ shall mean the State of Delaware Division of Professional Regulation.

(4) ‘Electrical treatment’ shall mean the administration of electricity to the foot and ankle by means of electrodes, machinery, rays and the like.

(5) ‘Excessive use or abuse of drugs’ shall mean any use of narcotics, controlled substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs his or her ability to perform the work of a podiatrist.

(6) ‘Manipulative treatment’ shall mean the use of the hand or machinery in the operation or working upon the foot and its articulations.

(7) ‘Mechanical treatment’ shall mean 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.

(8) ‘Medical treatment’ shall mean the application to or prescription for the foot and ankle of medicine, pads, adhesives, felt, plasters or any medicinal agency.

(9) ‘Podiatrist’ shall mean a person who is qualified to practice podiatry and is licensed under this Chapter.

(10) ‘Practice of podiatry’ shall mean the diagnosis and the medical, surgical, mechanical, manipulative and electrical treatment of all ailments of the foot and ankle. Amputation of the foot shall be restricted to the State licensed podiatrist, who has completed an American Podiatric Medical Association accredited surgical residency program acceptable to the Board and has current amputation privileges, or has fulfilled the credentialing criteria of the surgical committee of the Joint Committee on Accreditation of Hospitals accredited hospital where the amputation is to be performed.

(11) ‘State’ shall mean the state of Delaware.

(12) ‘Surgical treatment’ shall mean the use of any cutting instrument to treat a disease, ailment or condition.

§503. Board of Podiatry; appointments; composition; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation.

(a) There is created a State Board of Podiatry that shall administer and enforce this Chapter.

(b) The Board shall consist of five members, appointed by the Governor, who are residents of this State: Three shall be podiatrists licensed under this Chapter and two public members. The public members shall not be, nor ever have been, podiatrists, nor members of the immediate family of a podiatrist; shall not have been employed by a podiatrist or a company engaged in the practice of podiatry; shall not have a material interest in the providing of goods and services to podiatrists; nor have been engaged in an activity directly related to podiatry. The public members shall be accessible to inquiries, comments and suggestions from the general public.

(c) Except as provided in subsection (d) of this section, each member shall serve a term of three years, and may succeed himself or herself for one additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself 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; however, the Board member shall remain eligible to participate in Board proceedings unless or until replaced by the Governor. Persons who are members of the Board on the effective date of this Act shall complete their terms.

(d) A person, who has never served on the Board, may be appointed to the Board for two consecutive terms; but no such person shall thereafter be eligible for two consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for six years within any nine-year period, shall again be appointed to the Board until an interim period of at least one term has expired since such person last served.

(e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this Chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment.

(f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency, or neglect of duty. A member subject to disciplinary hearing 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.

(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of podiatrists; this includes a prohibition against serving as head of the professional association’s Political Action Committee (PAC).

(h) The provisions set forth in Chapter 58 of Title 29 of the Delaware Code shall apply to all members of the Board.

(i) Any member, who is absent without adequate reason for three consecutive meetings, or fails to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty.

(j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, according to Division of Professional Regulation policy; and, in addition shall receive not more than $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§504. Organization; meetings; officers; quorum.

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

(b) The Board annually shall elect a President and Secretary. Each officer shall serve for one year, and shall not succeed himself or herself for more than two consecutive terms.

(c) A majority of the members shall constitute a quorum for the purpose of transacting business; and, no disciplinary action shall be taken without the affirmative vote of at least three members.

(d) Minutes of all meetings shall be recorded, and the Division of Professional Regulation shall maintain copies. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it.

§505. Records.

The Division of Professional Regulation shall keep a register of all approved applications for license as a podiatrist, and complete records relating to meetings of the Board, examinations, rosters, changes and additions to the Board’s rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board.

§506. Powers and duties; immunity.

(a) The Board of Podiatry shall have authority to:

(1) Formulate rules and regulations with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State. Each rule or regulation shall implement or clarify a specific section of this Chapter.

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

(3) Designate the written, standardized examination on podiatry, administered by the National Board of Podiatric Medical Examiners (NBPME) and the Podiatric Medical Licensing Examination for States (PMLEXIS), to be taken by all persons applying for licensure.

(4) Evaluate the credentials of all persons applying for a license to practice podiatry in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this Chapter.

(6) Grant licenses to, and renew licenses of, all persons who meet the qualifications for licensure, including those persons who apply for temporary licensure.

(7) Establish by rule and regulation continuing education standards required for license renewal.

(8) Evaluate certified records to determine whether an applicant for licensure, who previously has been licensed, certified, or registered in another jurisdiction, has engaged in any act or offense that would be grounds for disciplinary action under this Chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicant for such acts or offenses.

(9) Refer all complaints from licensees and the public concerning licensed podiatrists, or concerning practices of the Board or of the profession, to the Division for investigation pursuant to §8807 of Title 29 of the Delaware Code; and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint.

(10) Conduct hearings and issue orders in accordance with procedures established pursuant to Chapter 101 of Title 29 of the Delaware Code.

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

(b) 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.

(c) 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.

(d) 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.

Subchapter II. License.

§507. License required.

(a) No person shall engage in the practice of podiatry or hold himself or herself out to the public in this State as being qualified to practice podiatry; or use in connection with his or her name, or otherwise assume or use, any title or description conveying or tending to convey the impression that he or she is qualified to practice podiatry, unless such person has been duly licensed under this Chapter.

(b) Whenever a license to practice as a podiatrist in this State has expired or been suspended or revoked, it shall be unlawful for the person to practice podiatry in this State.

§508. Qualifications of applicant; report to Attorney General; judicial review.

(a) An applicant who is applying for licensure as a podiatrist under this Chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:

(1) has received a degree of ‘Doctor of Podiatric Medicine’ or its equivalent from a college or school approved by the Council on Podiatric Education of the American Podiatric Medical Association, or the successor of such Council.

(2) has satisfactorily completed a hospital residency program approved by the American Podiatric Medical Association (APMA) or a preceptorship in the office of a licensed podiatrist in this State, for a period of one year.

(3) has satisfactorily completed the Podiatric Medical Licensing Examination for States (PMLEXIS); the minimum passing score shall be that score recommended by the testing service providing the examination.

(4) shall not have been the recipient of any administrative penalties regarding his or her practice of podiatry, including but not limited to fines, formal reprimands, license suspensions or revocation, (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has not entered into any ‘consent agreements’ which contain conditions placed by a Board on his or her professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure.

(5) shall not have any impairment related to drugs, alcohol, or a finding of mental incompetence by a physician that would limit the applicant’s ability to undertake the practice of podiatry in a manner consistent with the safety of the public.

(6) shall not have been convicted of a felony.

(7) shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of podiatry. Applicants who have criminal conviction records or pending criminal charges shall request appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of podiatry.

(8) has not engaged in any of the acts or offenses that would be grounds for disciplinary action under this Chapter, and has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has previously been or currently is licensed.

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

(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for him or her than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

§509. Examination.

In the event an applicant for licensure has not successfully completed the PMLEXIS examination, or its successor, required by this Chapter, the Board shall administer or authorize the administration of such examination provided the applicant has received a degree of ‘Doctor of Podiatric Medicine’ as described in §508(a)(1) of this title. All examinations shall be graded by the testing service providing the examinations. The passing score shall be established by the testing agency.

§510. Reciprocity.

(a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure in ‘good standing’ 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. A license in ‘good standing’ is defined in §508(a)(4), (5), (6), (7) and (8), of this Chapter.

(b) An applicant, who is licensed or registered in a state whose standards are not substantially similar to those of this State, shall have practiced for a minimum of five years after licensure, provided however that he or she meets all other qualifications for reciprocity in this section.

(c) An applicant, who has received a degree of ‘Doctor of Podiatric Medicine’ or its equivalent from a foreign school, college or university, shall submit a certified copy of his or her school, college or university record for evaluation by the Board.

(d) In the event that a disciplinary proceeding or unresolved complaint is pending, the applicant shall not be licensed in this State until the proceeding or complaint has been resolved. Applicants for licensure in this State shall be deemed to have given consent to the release of such information and to waive all objections to the admissibility of such information as evidence at any hearing or other proceeding to which the applicant may be subject.

(e) Each application for licensure shall be accompanied by payment of the application fee.

§511. 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 in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or any other State agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium.

§512. Issuance and renewal of licenses.

(a) The Board shall issue a license to each applicant, who meets the requirements of this Chapter for licensure as a podiatrist and who pays the fee established under §511 of this Chapter.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board.

(c) The Board, in its rules and regulations, shall determine the period of time within which a licensed podiatrist may still renew his or her license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided however that such period shall not exceed one year.

(d) A licensee, upon written request, may be placed in an inactive status for no more than five years. Such person who desires to reactivate his or her license shall complete a Board-approved application form, submit a renewal fee set by the Division, and submit proof of fulfillment of continuing education requirements in accordance with the Board’s rules and regulations.

§513. Temporary license.

(a) The Board, at its discretion, may issue a temporary license to practice podiatry in this State to a podiatrist, who is licensed or otherwise legally qualified to practice podiatry in any state of the United States or other jurisdiction, and who meets the following conditions:

(1). The applicant is entering this State for the purpose of taking charge of the practice of a person licensed to practice podiatry in this State during such licensee’s temporary illness or absence from this State; and

(2) the applicant shall complete an application, pay the appropriate fee established by the Division, and shall present proof of current licensure in ‘good standing’ in the state or states where he or she currently is and/or has been licensed. A license in ‘good standing’ is defined in §508(a)(4), (5), (6), (7) and (8), of this Chapter, and such applicant shall comply with the provisions of §510(d) of this Chapter.

(b) The person licensed to practice medicine in this State shall make his or her request to the Board in writing and shall submit a certified statement that the purpose of the temporary license is to take charge of his or her practice of podiatry in this State during a temporary illness or absence from this State.

(c) Such temporary license shall be effective for not less than two weeks nor for more than three months from date of issuance.

(d) The Board may issue a temporary license to practice podiatry to an applicant, who is a qualified applicant for licensure in this State, who is completing a residency or preceptorship in this State, and who will take the next scheduled Podiatric Medical Licensing Examination for States (PMLEXIS). If the applicant has received notification that he or she has passed the PMLEXIS, the temporary license will not expire until the Board next meets and grants licensure to the applicant. If the applicant has received notification that he or she has not passed the PMLEXIS, the temporary license will expire immediately.

(e) A temporary license issued to an applicant, who is waiting to take the PMLEXIS, may be renewed only once.

§514. Complaints.

(a) All complaints shall be received and investigated by the Division in accordance with §8807, Title 29 of the Delaware Code, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.

(b) When it is determined that an individual is engaging, or has engaged, in the practice of podiatry, or is using the title ‘podiatrist’ and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order.

§515. Grounds for discipline.

(a) A practitioner licensed under this Chapter shall be subject to disciplinary actions set forth in §516 of this Chapter, if, after a hearing, the Board finds that the podiatrist:

(1) has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a podiatrist; has impersonated another person holding a license, or allowed another person to use his or her license, or aided or abetted a person not licensed as a podiatrist to represent himself or herself as a podiatrist.

(2) has illegally, incompetently or negligently practiced podiatry.

(3) has been convicted of a felony.

(4) has been convicted of any offense, the circumstances of which substantially relate to the practice of podiatry. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor.

(5) has excessively used or abused drugs either in the past three years or currently.

(6) has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities.

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

(8) has had his or her license as a podiatrist suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this Chapter. Every person licensed as a podiatrist in this State shall be deemed to have given consent to the release of this information by the Board of Podiatry, or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses.

(9) has failed to notify the Board that his or her license as a podiatrist in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof; or,

(10) has a physical condition such that the performance of podiatry is or may be injurious or prejudicial to the public.

(b) Subject to the provisions of this Chapter and Subchapter IV of Chapter 101 of Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no practitioner’s right to practice podiatry 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.

§516. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in §515 of this Chapter applies to a practitioner regulated by this Chapter:

(1) Issue a letter of reprimand.

(2) Censure a practitioner.

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

a. report regularly to the Board upon the matters, which are the basis of the probation.

b. limit all practice and professional activities to those areas prescribed by the Board.

(4) Suspend any practitioner’s license.

(5) Revoke any practitioner’s license.

(6) Impose a monetary penalty not to exceed $500 for each violation.

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

§517. Hearing procedures.

(a) If a complaint is filed with the Board pursuant to §8807 of Title 29 of the Delaware Code, alleging violation of §515 of this Chapter, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29 of the Delaware Code.

(b) All hearings shall be informal without use of 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 its reasons for such decision. The Board’s decision shall be mailed immediately to the practitioner.

(c) Where the practitioner is in disagreement with the action of the Board, he or she may appeal the Board’s decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to him or her. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with Chapter 101 of Title 29 of the Delaware Code.

§518. Reinstatement of a suspended license; removal from probationary status; replacement of license.

(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.

(b) Where a license or registration has been suspended due to the licensee’s inability to practice pursuant to this Chapter, the Board may reinstate such license, if, after a hearing, the Board is satisfied that the licensee is again able to perform the essential functions of a podiatrist, with or without reasonable accommodations; and/or, there is no longer a significant risk of substantial harm to the health and safety of the individual or others.

(c) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this Chapter may also be required, as appropriate.

(d) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge set by the Division shall be made for such issuance.

Subchapter III. Other Provisions

§519. Exemptions.

(a) Nothing in this Chapter shall be construed to prevent:

(1) persons who are licensed to practice podiatry in any other state, district or foreign country from entering this State, as practicing podiatrists, 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 from receiving practical training under the personal supervision of a licensed podiatrist in this State.

(3) any person completing an American Podiatric Medical Association-approved hospital residency program in this State or any person serving a preceptorship in the office of a licensed podiatrist in this State for the purpose of fulfilling the licensure requirement.

(4) any podiatrist or surgeon, commissioned by any of the armed forces of the United States or by the United States Public Health Service, from practicing podiatry on his or her designated facility in this State.

(5) any physician licensed in this State from practicing podiatry in this State.

(b) 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.

§520. Penalty.

A person not currently licensed as a podiatrist under this Chapter, when engaging in the practice of podiatry, or using in connection with his or her name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that he or she is qualified to practice podiatry, shall be guilty of a misdemeanor. Upon the first offense, he or she shall be fined not less than $500.00 dollars nor more than $1,000 dollars for each offense. For a second or subsequent conviction, the fine shall be not less than $1,000.00 nor more than $2,000.00 for each offense. Justice of the Peace Court shall have jurisdiction over all violations of this Chapter.

Section 2. Terms of office.

Persons who are members of the Board on the effective date of this Act shall complete their terms of office unless replaced by the Governor.

Section 3. Rules and Regulations.

Rules and regulations in effect on the date of enactment of this Act shall remain valid to the extent they are not inconsistent with this Act.

Approved July 20,1999