CHAPTER 355

FORMERLY

SENATE SUBSTITUTE NO. 2

FOR

SENATE BILL NO. 86

AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO PROFESSIONS AND OCCUPATIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 30, Title 24, Subchapter I by changing “Subchapter I. Board of Professional Counselors of Mental Health” to “Subchapter I. Board of Professional Counselors of Mental Health and Chemical Dependency Professionals”.

Section 2. Amend §3001, Chapter 30, Title 24, of the Delaware Code by inserting the words “and Chemical Dependency Professionals” after the words “Mental Health”.

Section 3. Amend §3002 (1), Chapter 30, Title 24, of the Delaware Code by inserting the words “and Chemical Dependency Professionals” after the words “Mental Health”.

Section 4. Amend §3002 (4), Chapter 30, Title 24, of the Delaware Code by inserting the words “or chemical dependency professional” after the words “associate counselor of mental health” and by inserting a new subsection (9) to read as follows:

“(9) ‘Substantially related’ means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform one or more of the duties or responsibilities necessarily related to the practice of professional counseling of mental health and chemical dependency counseling.”

Section 5. Amend §3003, Chapter 30, Title 24, of the Delaware Code by inserting the words “and Chemical Dependency Professionals” after the words “Mental Health”.

Section 6. Amend §3003 (a), Chapter 30, Title 24, of the Delaware Code by inserting the words “and Chemical Dependency Professionals” after the words “Mental Health”.

Section 7. Amend §3003 (b), Chapter 30, Title 24 of the Delaware Code by striking said subsection in its entirety and by substituting in lieu thereof the following:

“(b) The Board shall consist of 10 members, appointed by the Governor, who are residents of this State: 4 shall be licensed professional counselors of mental health, 1 of whom may be a licensed associate counselor of mental health, 3 shall be licensed chemical dependency professionals and 3 public members. The public members shall not be, nor ever have been, licensed professional counselors of mental health or chemical dependency professionals, nor members of the immediate family of a licensed professional counselor of mental health or a chemical dependency professional; shall not have been employed by a licensed professional counselor of mental health or a chemical dependency professional; nor have been engaged in an activity directly related to licensed professional counseling of mental health or chemical dependency counseling. The public members shall be accessible to inquiries, comments and suggestions from the general public.”

Section 8. Amend §3004 (c), Chapter 30, Title 24, of the Delaware Code by striking the number four “4” as it appears therein, and by substituting in lieu thereof the number six “6”.

Section 9. Amend §3006 (a), Chapter 30, Title 24, of the Delaware Code by inserting the words “and Chemical Dependency Professionals” after the words “Mental Health”.

Section 10. Amend §3006 (a)(3), Chapter 30, Title 24, of the Delaware Code by inserting “and as a chemical dependency professional” after the words “mental health”.

Section 11. Amend §3006 (a)(7), Chapter 30, Title 24, of the Delaware Code by inserting “or chemical dependency professionals” after the words “mental health” and by inserting a new paragraph (c) to read as follows:

“(c) The Board of Professional Counselors of Mental Health and Chemical Dependency Professionals shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of professional counseling of mental health and chemical dependency counseling.”

Section 12. Amend Chapter 30, Title 24, of the Delaware Code by adding a new Subchapter III to read as follows:

“Subchapter III. Chemical Dependency Professionals.

§3020. License required.

No person shall hold himself or herself out to the public as a licensed chemical dependency professional unless the person is licensed in accordance with this chapter. It shall be unlawful for any person or any business entity, its employees, agents or representatives to use in connection with the person’s or business entity’s name or business activity, the words ‘licensed chemical dependency professional’ or any other words, letters, abbreviations or insignia indicating or implying directly or indirectly that such person is licensed under this chapter. (66 Del. Laws, c. 128, §1; 68 Del. Laws, c. 52, §1; 70 Del. Laws, c. 186, §1; 72 Del. Laws, c. 267, §1.)

§3021. Definitions.

For the purposes of this chapter, definitions of the following terms and phrases shall be as follows:

1. ‘Chemical Dependency Professional’ is a person who uses addiction counseling methods to assist an individual or group to develop an understanding of alcohol and drug dependency problems, define goals, and plan action reflecting the individual’s or group’s interest, abilities and needs as affected by addiction problems.

2. ‘Division’ means the Division of Professional Regulation.

3. ‘Licensed Chemical Dependency Professional’ means a person who holds a current, valid license issued pursuant to this chapter.

4. ‘Board’ means the State Board of Professional Counselors and Chemical Dependency Professionals established pursuant to Section 3002 of this chapter.

5. ‘Uncompensated addictions services’ means services offered to chemical dependent individuals free of charge.

6. ‘Counseling Experience’ shall be defined as a formal, systematic process that focuses on skill development and integration of knowledge related to addiction counseling. Counseling experience shall be the accumulation of hours spent providing substance abuse counseling services while under the supervision of an approved clinical supervisor. The experiences shall consist of 3,200 hours, post-master’s degree of counseling experience, 1,600 of which is to be under supervision of a Licensed Chemical Dependency Professional. Where supervision by a Licensed Chemical Dependency Professional is not available, a licensed clinical social worker, licensed psychologist, licensed professional counselor of mental health or licensed physician specializing in chemical dependency treatment may supervise the applicant.

7. ‘Supervised Counseling Experience’ for purposes related to this chapter, shall mean supervision overseeing the supervisee’s application of chemical dependency counseling principles, methods or procedures to assist clients in achieving more effective personal and social adjustment. At least 100 of the required 1,600 hours of supervised counseling experience shall consist of face-to-face consultation between the supervisor and the supervisee. Face-to-face supervision may take place in individual and/or group settings, defined as follows:

(a) Individual Supervision – Individual supervision shall consist of one-to-one, face-to-face meetings between supervisor and supervisee.

(b) Group Supervision – Group supervision shall consist of face-to-face meetings between supervisor and no more than six (6) supervisees.

(c) Supervisory Setting – No more than forty (40) hours of group supervision shall be acceptable toward the 100-hour requirement. The entire 100-hour requirement may be fulfilled by individual supervision.

8. ‘Official Graduate Transcript’ shall be defined as the official academic record of an individual provided by a regionally accredited educational institution of higher learning.

9. ‘Professional Counseling Experience’ shall be defined as the accumulation of hours spent providing chemical dependency counseling services in a substance abuse counseling setting, including face-to-face interaction with clients and other services directly related to the treatment of clients.

§3022. License requirements; professional designation.

1. No person shall hold himself or herself out to the public as a Licensed Chemical Dependency Professional or present, call or represent himself or herself as a Licensed Chemical Dependency Professional unless licensed under this act.

2. No person shall assume, represent himself or herself as or use the title of Licensed Chemical Dependency Professional, or any of the abbreviations for the above title unless licensed under this act and unless the title of designation corresponds to the license held by the person pursuant to this act.

3. A Licensed Chemical Dependency Professional pursuant to the provisions of this act, or his or her employee, shall not disclose any confidential information that the counselor, or his or her employee, may have acquired while performing alcohol and drug counseling services for a patient unless in accordance with the federal regulation regarding the Confidentiality of Alcohol and Drug Patient Record pursuant to 42 C.F.R. 2.1. et seq.

§3023. Applicability of subchapter.

1. Nothing in this chapter shall be construed to prevent a person from engaging in or offering any addiction services such as self-help, sponsorship through Alcoholics Anonymous, Narcotics Anonymous or other uncompensated addictions services.

2. Nothing in this act shall be construed to apply to a designated employee or other agency of a private employer who has been designated to provide chemical dependency counseling under the jurisdiction of that company, or an employee or other agent of a recognized academic institution, a federal, state, county or local government institution, agency or facility, or school district if the individual is performing solely with the company or agency, as the case may be, or under the jurisdiction of that company or agency and if a license granted under this chapter is not a requirement for employment.

3. Nothing in this act shall be construed to apply to a rabbi, priest, minister, or clergy of any religious denomination or sect, when performing within the scope of the person’s regular or specialized ministerial duties and for which no separate charge is made, for or under the auspices or sponsorship, individually or in conjunction with others, of an established and legal cognizable church, denomination, or sect, and when the person rendering services remains accountable to the established authority thereof.

4. Nothing in this act shall be construed to apply to a student, intern or trainee in chemical dependency counseling pursuing a course of study in counseling in a regionally accredited institution, if performed under supervision and constituting a part of the supervised course of study.

5. Nothing in this act shall be construed to apply to a person licensed in the state to practice medicine and surgery, psychology, social work, clinical social work, licensed professional counselor of mental health or any other person’s profession or occupation and doing work of a nature consistent with a person’s training, if the person doesn’t hold himself or herself out to the public as possessing a license issued pursuant to this act.

6. Nothing in this subchapter shall prevent the practice of healing by spiritual means in accordance with the tenets and practice of any church or religious denomination by a duly accredited practitioner thereof. In the practice of healing by spiritual means, no individual shall hold himself or herself out to the public as possessing a license issued pursuant to this subchapter.

§3024. Qualifications of applicant.

Applicants for Chemical Dependency Professional licensure by certification shall fulfill the following requirements:

1. Received a master’s degree from a regionally accredited institution of higher education with a minimum of 30 graduate semester hours in counseling or counseling closely related subjects.

2. Successfully completed all the requirements to be a Certified Alcohol and Drug Counselor or other nationally recognized credentials in chemical dependency counseling pursuant to §3024(3) of this chapter. This includes Counseling Experience and Supervised Counseling Experience as defined in §3021.

3. Certification – The applicant shall be certified by the National Association for Addictions Professionals (NAADAC) as a National Certified Addictions Counselor (NCAC or MAC), by the Delaware Certification Board (DCB Inc.) as a Certified Alcohol and Drug Counselor, or by a certifying organization acceptable to the Board.

§3025. 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 Professional Regulation 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 of Professional Regulation, 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.

§3026. Issuance and renewal of license.

1. The Board shall issue a license to each applicant who meets the requirements of this chapter for licensure as a licensed chemical dependency professional and who pays the fee established pursuant to §3025 of this chapter.

2. Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, 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. In addition each licensee shall submit proof of the following:

(a) Current certification in good standing as of the date of licensure renewal in NAADAC, DCB Inc. or other certifying organizations acceptable to the Board. This certification shall be verified by the appropriate ‘Verification of Certification Form’, submitted directly to the Board by the certifying organization.

(b) It shall be the responsibility of all licensees to keep the Division informed of any change of address. Renewal applications will be sent to the last address on file with the Division.

§3027. Grounds for discipline.

(a) A person licensed under this chapter shall be subject to disciplinary sanctions set forth in §3032 of this title, if after a hearing, the Board finds that the licensee:

(1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a professional counselor of mental health or associate counselor of mental health or chemical dependency professional; has impersonated another person holding a license, or allowed another person to use his or her license, or aided and abetted a person not licensed as a professional counselor of mental health or associate counselor of mental health or chemical dependency professional to represent himself or herself as a licensed professional counselor of mental health or associate counselor of mental health, or chemical dependency professional.

(2) Has been convicted of a crime that is substantially related to the practice of professional counseling of mental health or chemical dependency counseling. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence thereof.

(3) Has excessively used or abused drugs either in the past 3 years or currently.

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

(5) Has violated a lawful provision of this chapter, or any lawful regulation established thereunder.

(6) Has had his or her license as a professional counselor of mental health, associate counselor of mental health, or chemical dependency professional 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 (1) or more of the acts defined in this chapter. Every person licensed as a professional counselor of mental health, associate counselor of mental health, or chemical dependency professional in this State shall be deemed to have given consent to the release of this information by the Board of Professional Counselors or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses; or,

(7) Has failed to notify the Board that his or her license as a professional counselor of mental health, associate counselor of mental health, or chemical dependency professional 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.

(b) Subject to the provisions of Subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board and no licensee’s right to hold himself or herself out as a licensed professional counselor of mental health, licensed associate counselor of mental health, or licensed chemical dependency professional shall be limited by the Board until such licensee has been given notice and an opportunity to be heard, in accordance with the Administrative Procedures Act.

§3028. Failure to renew License.

Notwithstanding the fact that a licensee has failed to renew his or her license on or before the renewal date, such licensee shall be granted a 60-day period to renew his or her license. The Division shall set the fee for late renewal. A person who fails to renew his or her license before the expiration of the 60-day grace period, shall be required to reapply as new a applicant, pay a fee set by the Division, and submit proof of fulfillment of continuing education requirements and the membership requirements of the National Association for Addictions professionals (NAADAC), the Delaware Certification Board (DCB) or other certifying organizations acceptable to the Board, in accordance with the Board's rules and regulations.

§3029. Reinstatement of a suspended license, removal from probationary status, replacement of license.

1. 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.

2. 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 shall also be required, as appropriate.

3. A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. The Division shall establish a charge for such issuance.

§3030. Reciprocity.

1. 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 and shall present proof that his or her license is in good standing as defined in this chapter.

2. An applicant who is licensed in a jurisdiction whose standards are not substantially similar to those of this State shall have had a license in good standing for a minimum of five (5) years after licensure in the jurisdiction from which he or she is applying for reciprocal licensure and is certified by the National Association for Addictions Professionals (NAADAC), or the Delaware Certification Board (DCB), or other national certifying organization acceptable to the Board; provided, however, that he or she meets all other qualifications for reciprocity in this section.

§3031. Complaints.

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

2. When it is determined that an individual is using the title ‘licensed chemical dependency professional’ or holding himself or herself out to the public as a ‘licensed chemical dependency professional’ 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.

§3032. Disciplinary sanctions.

1. 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 §3027 of this title applies to a person regulated by this chapter:

(a) Issue a letter of reprimand.

(b) Censure a licensee.

(c) Place a licensee on probationary status, and require the licensee to:

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

ii. Limit all professional activities to those areas prescribed by the Board.

(d) Suspend any licensee's license.

(e) Revoke any licensee's license.

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

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

ii. 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.

§3033. Hearing procedures.

1. If a complaint is filed with the Board pursuant to §8807 of Title 29, alleging violation of §3027 of this title, 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.

2. All hearings shall be informal, without use of rules of evidence. If the Board finds, by a majority vote of all Board 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 licensee.

3. Where the licensee 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 §10144 of Title 29.

4. All decisions of the Board regarding suspension or revocation of a license shall be made public by the Division in a news release to major media outlets in this State. The release may include any information deemed public under the Delaware Freedom of Information Act and shall include a telephone contact number for the Division for further information.

§3034. Penalty.

A person not currently licensed as chemical dependency professional under this chapter, when guilty of 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 as a licensed chemical dependency professional shall be guilty of a misdemeanor. Upon the first offense, he or she shall be fined not less than $500 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 nor more than $2,000 for each offense. Justice of the Peace Courts shall have jurisdiction over all violations of this chapter.

§3035. Privileged communications.

Communications between a chemical dependency professional and his or her client shall be considered confidential to the same extent as provided by Delaware Rule of Evidence 503.”

Approved July 12, 2004