§ 3001 Objectives.
(a) The primary objective of the Board of Mental Health and Chemical Dependency Professionals, 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.
(b) The secondary objectives of the Board are to maintain minimum standards of licensee competency and to maintain certain standards in the delivery of services to the public. In meeting these objectives, the Board shall develop standards assuring professional competence; monitor complaints brought against licensees regulated by the Board; adjudicate at formal hearings; promulgate rules and regulations; and impose sanctions where necessary.
§ 3002 Definitions.
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" means the Board of Mental Health and Chemical Dependency Professionals.
(2) "Conversion therapy" means any practice or treatment that seeks to change an individual's sexual orientation or gender identity, as "sexual orientation" and "gender identity" are defined in § 710 of Title 19, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender. "Conversion therapy" does not mean any of the following:
a. Counseling that provides assistance to an individual who is seeking to undergo a gender transition or who is in the process of undergoing gender transition.
b. Counseling that provides an individual with acceptance, support, and understanding without seeking to change an individual's sexual orientation or gender identity.
c. Counseling that facilitates an individual's coping, social support, and identity exploration and development, including counseling in the form of sexual orientation-neutral interventions or gender identity-neutral interventions provided for the purpose of preventing or addressing unlawful conduct or unsafe sexual practices, without seeking to change an individual's sexual orientation or gender identity.
(3) "Distant site" means a site at which a health-care provider legally allowed to practice in the State is located while providing health-care services by means of telemedicine or telehealth.
(4) "Division" means the Division of Professional Regulation of the State of Delaware.
(5) "Excessive use or abuse of drugs" means 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 a licensee's ability to perform the work of a licensed mental health or chemical dependency professional.
(6) "Originating site" means a site in Delaware at which a patient is located at the time health-care services are provided to him or her by means of telemedicine or telehealth, unless the term is otherwise defined with respect to the provision in which it is used; provided, however, notwithstanding any other provision of law, insurers and providers may agree to alternative siting arrangements deemed appropriate by the parties.
(7) "Person" means a corporation, company, association and partnership, as well as an individual.
(8) "Store and forward transfer" means the transmission of a patient's medical information either to or from an originating site or to or from the provider at the distant site, but does not require the patient being present nor must it be in real time.
(9) "Substantially related" means the nature of the criminal conduct, for which a person was convicted, has a direct bearing on the fitness or ability of the person to perform 1 or more of the duties or responsibilities of a licensed mental health or chemical dependency professional.
(10) "Telehealth" means the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.
(11) "Telemedicine" means a form of telehealth which is the delivery of clinical health-care services by means of real time 2-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient's health care by a licensee practicing within his or her scope of practice as would be practiced in-person with a patient and with other restrictions as defined in regulation.
66 Del. Laws, c. 128, § 1; 68 Del. Laws, c. 52, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 267, § 1; 74 Del. Laws, c. 262, § 59; 74 Del. Laws, c. 355, §§ 3, 4; 75 Del. Laws, c. 83, § 1; 80 Del. Laws, c. 80, § 14; 81 Del. Laws, c. 340, § 6.;
§ 3003 Board of Mental Health and Chemical Dependency Professionals; appointments; composition; qualifications; terms; vacancies; suspension or removal; unexcused absences; compensation [For application of this section, see 80 Del. Laws, c. 261, § 2]
(a) There is created a Board of Mental Health and Chemical Dependency Professionals, which shall administer and enforce this chapter.
(b) The Board shall consist of 9 members, appointed by the Governor, who are residents of this State. The Board shall be comprised of 6 professional members and 3 public members. The professional members shall consist of at least 2 professional counselors of mental health, at least 2 licensed chemical dependency professionals and when possible at least 1 licensed marriage and family therapist. The public members shall not be, nor ever have been, mental health or chemical dependency professionals, employed by a mental health or chemical dependency professional, nor have been engaged in an activity directly related to the practice of a mental health or chemical dependency professional. The public members shall be accessible to inquiries, comments and suggestions from the public.
(c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years and may succeed himself or herself for 1 additional term. A term of office expires on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor.
(d) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms; but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 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, incompetence 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 association of mental health or chemical dependency professionals, nor serve as head of a professional association's political action committee.
(h) The provisions of Chapter 58 of Title 29 shall apply to members of the Board.
(i) A member who is absent without adequate reason for 3 consecutive meetings or who 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 compensated at an appropriate and reasonable level as determined by the Division of Professional Regulation and may be reimbursed for all expenses involved in each meeting, including travel, according to Division policy.
66 Del. Laws, c. 128, § 1; 67 Del. Laws, c. 366, § 12; 67 Del. Laws, c. 368, § 19; 68 Del. Laws, c. 52, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 267, § 1; 74 Del. Laws, c. 355, §§ 5-7; 75 Del. Laws, c. 83, § 1; 80 Del. Laws, c. 261, § 1.;
§ 3004 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, vice-president and secretary. Each officer shall serve for 1 year and shall not succeed himself or herself for more than 2 consecutive terms. The office of president must rotate among the professions regulated and the public members.
(c) A majority of the members shall constitute a quorum for the purpose of transacting business and no action shall be taken without the affirmative vote of a majority of the quorum. No disciplinary action shall be taken without the affirmative vote of a majority of the members of the Board, at least 1 of whom must be of the same profession as the individual being disciplined.
(d) Minutes of all meetings shall be recorded and the Division 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.
§ 3005 Records.
The Division shall keep a register of all approved applications for licenses under this chapter and complete records relating to meetings of the Board, rosters, changes, and additions to the Board's rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records are prima facie evidence of the proceedings of the Board.
§ 3006 Powers and duties.
(a) The Board shall have the power to:
(1) Adopt rules and regulations, which shall be promulgated in accordance with the requirements of the Administrative Procedures Act, Chapter 101 of Title 29.
(2) Designate an application form to be used by all applicants and process all applications.
(3) Evaluate the credentials of all applicants in order to determine whether the applicants meet the qualifications for licensing set forth in this chapter.
(4) Grant licenses to and renew licenses of applicants who meet the qualifications for licensure.
(5) Establish by rule and regulation continuing education standards required for license renewal.
(6) Evaluate certified records to determine whether an applicant for license 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 the applicant for such acts or offenses.
(7) Refer all complaints from licensees and the public concerning persons licensed under this chapter, or concerning practices of the Board or of a profession regulated by the Board, to the Division for investigation pursuant to § 8735 of Title 29 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.
(8) Conduct hearings and issue orders in accordance with procedures established pursuant to Chapter 101 of Title 29.
(9) Where it has been determined after a hearing that penalties or sanctions should be imposed, designate and impose the appropriate sanction or penalty after time for appeal has lapsed.
(10) Adopt a code of ethics for each profession licensed by the Board, which code may be a code of ethics adopted by a national organization which certifies members of the profession.
(11) Appoint 1 or more credentialed art therapists to advise and assist the Board in adopting rules and regulations setting qualifications and procedures for licensing professional art therapists, evaluating credentials of applicants, adopting a code of ethics for the practice of art therapy, setting continuing education standards required for license renewal, and providing such other assistance as determined by the Board.
(b) The Board shall, by regulation, identify crimes which are substantially related to the practice of a mental health or chemical dependency professional.
§ 3007 Fees.
The amount charged for fees imposed under this chapter shall approximate and reasonably reflect 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 period, the Division, or another state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate fee for the period.
§ 3008 Issuance and renewal of licenses.
(a) The Board shall issue a license to an applicant who meets the requirements of this chapter for licensure and who pays the fee established by the Board.
(b) A license must be renewed biennially, in such manner as is determined by the Division and upon payment of a renewal fee, 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 membership in good standing as of the date of licensure in a national certifying organization acceptable to the Board.
(c) A licensee who fails to renew a license on or before the renewal date shall be granted 1 year to renew the license. The Division shall set a fee for late renewal. An individual who fails to renew a license before the expiration of the 1-year period must reapply as a new applicant, pay a fee set by the Division, and submit proof of fulfillment of continuing education requirements and proof of membership in a national certifying organization acceptable to the Board.
(d) A person licensed pursuant to this chapter, upon written request, may be placed on an inactive register. Provisions for resuming active status shall be established by the Board.
(e) It is the responsibility of a licensee to keep the Division informed of a change of address. Renewal applications will be sent to the last address on file with the Division.
§ 3009 Grounds for discipline.
(a) A person licensed under this chapter is subject to the disciplinary sanctions set forth in § 3011 of this title if, after a hearing, the Board finds that the licensee has:
(1) Employed or knowingly cooperated in a fraud or material deception in order to acquire a license under this chapter; has impersonated another person holding a license or allowed another person to use the licensee's license; or has aided or abetted a person not licensed to represent himself or herself as a person licensed under this chapter.
(2) Been convicted of a crime that is substantially related to the practice of a mental health or chemical dependency professional. A certified copy of the record of conviction shall be conclusive evidence of a conviction.
(3) Excessively used or abused drugs in the past 3 years or currently.
(4) Engaged in an act which involved consumer fraud or deception, restraint of competition, or price fixing.
(5) Violated a provision of this chapter or a regulation promulgated by the Board under this chapter.
(6) Had the licensee's professional license under this chapter suspended or revoked, or has been the subject of disciplinary action taken by the appropriate licensing authority of another jurisdiction; provided, that the grounds for the disciplinary action of the other jurisdiction have been presented to the Board by a certified record and the Board has determined that the facts found by the other jurisdiction constitute an act specified in this section. A person licensed in this State pursuant to this chapter is deemed to have given consent to the release of information by the Board or by a comparable agency in another jurisdiction and to waive all objections to the admissibility of evidence of a previously adjudicated act or offense.
(7) Failed to notify the Board that the licensee's license in another jurisdiction 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 of a license shall be conclusive evidence thereof.
(8) Been convicted of a felony sexual offense.
(9) Failed to report child abuse or neglect as required by § 903 of Title 16, or any successor thereto.
(10) Failed to report to the Division of Professional Regulation as required by § 3018 of this title.
(11) Engaged in conversion therapy with a child.
(12) Referred a child to a provider in another jurisdiction to receive conversion therapy.
(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 an individual licensed under this chapter 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 [Chapter 101 of Title 29].
(c) In the event of a formal or informal complaint concerning the activity of a licensee that presents a clear and immediate danger to the public health, safety or welfare, the Board may temporarily suspend the person's license, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board chair or the Board chair's designee. An order temporarily suspending a license may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney may file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing is convened and a decision is rendered by the Board. A person whose license has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's license.
66 Del. Laws, c. 128, § 1; 68 Del. Laws, c. 52, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 267, § 1; 74 Del. Laws, c. 262, §§ 62, 63; 75 Del. Laws, c. 83, § 1; 78 Del. Laws, c. 31, § 1; 79 Del. Laws, c. 213, § 2; 81 Del. Laws, c. 340, § 7.;
§ 3010 Complaints and investigations.
(a) All complaints shall be received and investigated by the Division in accordance with § 8735 of Title 29 and the Division shall be responsible for issuing a final written report at the conclusion of the investigation.
(b) When it is determined that an individual who is not licensed under this chapter is representing himself or herself as being so licensed, or is holding himself or herself out to the public as being licensed under this chapter, the Board shall apply to the Office of the Attorney General to issue a cease and desist order.
§ 3011 Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that a condition or violation for discipline of a licensee regulated by this chapter has been established under § 3009 of this title:
(1) Issue a letter of reprimand.
(2) Censure a licensee.
(3) Place a licensee on probationary status and require the licensee to:
a. Report regularly to the Board upon the matters which are the basis of the probation; or
b. Limit all professional activities to those areas prescribed by the Board.
(4) Suspend a licensee's license.
(5) Revoke a licensee'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.
(c) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measure as are authorized under this chapter.
(d) The Board shall permanently revoke the license of any person who the Board determines has violated § 3009(a)(8) of this title.
§ 3012 Hearing procedures.
(a) If a complaint is filed with the Board pursuant to § 8735 of Title 29 alleging a violation of § 3009 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.
(b) 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 the decision. The decision shall be mailed immediately to the licensee.
(c) A licensee may appeal the Board's decision to the Superior Court within 30 days of the postmarked date of the copy of the decision mailed to the licensee. The appeal shall be in accordance with the provisions of the Administrative Procedures Act, Chapter 101 of Title 29. A stay may be granted in accordance with that act.
(d) 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, Chapter 100 of Title 29, and shall include a telephone contact number for the Division for further information.
§ 3013 Reinstatement of a suspended license; removal from probationary status.
(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 probation.
(b) Applicants for reinstatement must pay the fees established by the Board and must submit evidence as required by the Board that all conditions of a suspension and/or probation have been met. Proof that the applicant has met any continuing education requirements of this chapter is also required.
§ 3014 Issuance of replacement license.
A new license to replace a lost, destroyed, or mutilated license may be issued, subject to the rules of the Board. The Division shall establish a charge for the issuance of a replacement license.
§ 3015 License required.
No person shall hold himself or herself out to the public as a licensed mental health or chemical dependency professional unless the person is licensed in accordance with this chapter. It shall be unlawful for a person who is not licensed under this chapter, or the person's employer, employees, agents or representatives, to use, in connection with the person's name or business, any words, letters, abbreviations or insignia indicating or implying directly or indirectly that the person is licensed under this chapter.
§ 3016 Penalty.
(a) A person not currently licensed under this chapter who uses, in connection with that person's name or business, or otherwise assumes or uses any title or description conveying or tending to convey the impression that the person is licensed under this chapter, is guilty of a misdemeanor.
(b) For the first offense, the court may impose a fine of not less than $500 nor more than $1,000. For a second or subsequent conviction, the fine shall be not less than $1,000 nor more than $2,000 for each offense.
(c) Justice of the Peace Courts shall have jurisdiction over violations of this chapter.
§ 3017 Privileged communications.
Communications between a mental health or chemical dependency professional licensed under this chapter and a client of the professional shall be considered confidential to the same extent as provided by Rule 503 of the Delaware Rules of Evidence.
§ 3018 Duty to report conduct that constitutes grounds for discipline or inability to practice.
(a) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider has engaged in or is engaging in conduct that would constitute grounds for disciplinary action under this chapter or the other healthcare provider's licensing statute.
(b) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation in writing information that the licensee reasonably believes indicates that any other practitioner licensed under this chapter or any other healthcare provider may be unable to practice with reasonable skill and safety to the public by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive abuse of drugs, including alcohol.
(c) Every person to whom a license to practice has been issued under this chapter has a duty to report to the Division of Professional Regulation any information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of: mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol.
(d) All reports required under subsections (a), (b) and (c) of this section must be filed within 30 days of becoming aware of such information. A person reporting or testifying in any proceeding as a result of making a report pursuant to this section is immune from claim, suit, liability, damages, or any other recourse, civil or criminal, so long as the person acted in good faith and without gross or wanton negligence; good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.
§§ 3019 -3029. [Reserved.]