Secretary of State Jeffrey Bullock and the Board of Medical Licensure and Discipline has issued a Temporary Order immediately suspending the medical license of Dover physician Dr. Lindsay Brathwaite.

In October 2014, the Board ordered Dr. Brathwaite’s licensed to be placed on probation for a period of 5 years after finding that he performed hundreds of biopsies and surgical procedures without any legitimate medical need, unsterile practices, and writing inappropriate prescriptions.

During the time of probation the Board further ordered that he was to not perform any biopsies or surgical procedures, was to obtain training and education, and pay a $10,000 fine. Despite the Order and the Board’s restrictions to his practice, it was found that Dr. Brathwaite continued performing biopsies on a daily basis and surgical procedures on a weekly basis.

“This behavior had previously demonstrated a real risk to the health and safety of both current and potential patients of this doctor. This blatant disregard for the restrictions placed on his practice by the Board only heightens that risk and the need to take action,” said Secretary Bullock, who can, along with the President of the Board of Medical licensure and Discipline, order the immediate, temporary suspension of a professional license.

This temporary suspension is limited to a 60-day period, during which time a disciplinary hearing will be held to determine what additional action may be necessary.

As a result of this action, Dr. Brathwaite’s status will be updated on the Division of Professional Regulation’s online license verification service. This useful tool lists the status of tens of thousands of Delaware-issued professional and occupational license and can be accessed by visiting dpr.delaware.gov and clicking “Search and Verify a Professional License.” The Temporary Order can also be viewed here.

House Bill 130 would make sexual contact between consenting adults a felony

Wilmington, DE – Governor Markell announced today he has vetoed House Bill 130, expressing concern the bill does not differentiate between the penalties for consensual and non-consensual sexual contact and that current Delaware laws address the behavior targeted by the bill. HB 130 would create a felony level offense for health professionals who, in the course of providing professional health services, intentionally have sexual contact with the patient.

In his veto statement (full text below), the Governor agreed that consensual sexual contact in the context of a professional relationship raises serious questions about the health care professional’s integrity and professional responsibility. However, there is a strong system of laws in Delaware that address illegal behavior by health care professionals and licensing boards that monitor misconduct among members.

“House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender, which results in a mandatory loss of professional license, if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail. The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.  House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist). For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature,” wrote the Governor in a statement delivered to the House of Representatives. 

Governor Markell Statement to House of Representatives Vetoing House Bill 130:

August 17, 2015

TO THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

OF THE 148th GENERAL ASSEMBLY:

Pursuant to Article III, Section 18 of the Delaware Constitution, after careful consideration, I am vetoing House Bill 130 by returning it with my objections to the House of Representatives without my signature.

I am vetoing House Bill 130 because the bill makes sexual contact between consenting adults a felony.  Under Delaware law, it is already illegal for a health care professional, social worker or counselor to have sexual contact with a patient or client under the guise of providing treatment.[1]  Under Delaware law, it is already illegal to have sexual contact with a minor, and there are enhanced penalties for cases involving health professionals and offenses against children and vulnerable adults.[2]  It is already illegal to have sexual contact with a person who is incapable of giving consent due to a cognitive disability or serious mental illness,[3] or because the patient is unconscious or under the influence of medication that impairs the patient’s judgment.[4]

House Bill 130 would make all sexual contact, including consensual sexual contact between two adults, a Class F felony punishable by up to three years in prison and registration for twenty-five years as a Tier II Sex Offender,[5] which results in a mandatory loss of professional license,[6] if one of those adults is a health care professional and the other is a patient being treated by the health care professional. Notably, the same sexual contact, if non-consensual and offensive to the adult victim, is a Class A misdemeanor punishable by a maximum of one year in jail.[7]

While HB 130 only applies in situations where a health care professional intentionally engages in sexual contact with a patient “in the course of providing those professional health services,” the legislation does not offer any definition or other guidance on what is “in the course of providing professional health services.”  Stated differently, this legislation does not define or otherwise limit the meaning of “in the course of treatment,” meaning that the law could be enforced in unpredictable and inconsistent ways.[8] The law as written could apply in a situation where, for example, a general practitioner starts dating a patient who comes in for annual or bi-annual physical exams, perhaps sees a nurse practitioner in between appointments for a flu shot, and may occasionally call for a refill of allergy medication.  If the doctor failed to remove the patient from the patient list the moment the relationship began, that relationship could fall within the “course of treatment” to which this statute applies.

House Bill 130 does not distinguish between situations where there is consent and no consent, or account for the fact that a doctor-patient relationship may be different in one context (e.g. a mental health counselor) than another (e.g. a dental hygienist).   While consensual sexual contact in the context of a professional relationship may raise serious questions about the health care professional’s integrity and professional responsibility, there are already substantial mechanisms in place to deter inappropriate sexual contact between a health care professional and patient. Health professionals are governed by their respective licensing boards, and engaging in inappropriate relationships with patients can trigger sanctions up to and including loss of professional license and referral for criminal prosecution.   These Boards are best equipped to assess the circumstances of each case and the level of harm caused to the patient. We can rely on the current system of professional regulation to address these circumstances, and for more egregious behavior or for offenses against children or vulnerable adults, the criminal code already provides adequate protection.

For these reasons, I veto House Bill 130 and return it to the House of Representatives without my signature.

Sincerely,

Jack A. Markell

Governor

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• [1] See 11 Del. C. § 761(j)(4) (In the criminal sex offense statute, “without consent” includes: “[w]here the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. …”).
• [2]See generally 11 Del. C. §§1100-1112 (crimes against children and vulnerable adults; enhanced penalties); see also, e.g., 11 Del. C. § 761(k) (a minor child is deemed unable to consent to a sexual act with a person more than four years older than the child); 11 Del. C. § 1105(b)(enhanced penalties for crimes committed against vulnerable adults).
• [3] See 11 Del. C. § 761(j)(3) (“without consent” includes when “the defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting”).
• [4] See 11 Del. C. § 761(j)(5) (“without consent” includes when “the defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance”).  See also 11 Del. C. § 761(j)(2) (“without consent” includes when “[t]he defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed”).
• [5] See 11 Del. C. § 4121(d)(2) (a person convicted of  unlawful sexual contact in the second degree is designated as a Tier II sex offender); 11 Del. C. § 4121(e)(1)(b) (a Tier II sex offender must register for 25 years following release or sentence).
• [6] See, e.g., 24 Del. C. § 1731(a) (Since 2010, the Medical Practice Act requires that conviction of a felony sex offense result in license revocation). Similar provisions were passed in 2010 to apply to nurses, chiropractors, dentists, physical therapists, athletic trainers, optometrists, occupational therapists and a number of other health care professionals.
• [7] 11 Del. C. § 767 (A person is guilty of unlawful sexual contact in the third degree, a Class A misdemeanor, when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent); See also 11 Del. C. §§ 4121(d)(2-3) (a person convicted of unlawful sexual contact in the third degree can be designated a Tier II sex offender only upon Motion of the State as set forth therein; otherwise the person is designated a Tier I sex offender).
• [8] There is no universally accepted definition of “course of treatment” or in the course of providing professional health services” in Delaware statute or common law, and the phrase can be interpreted broadly.  See, e.g., Doe v. Bradley, 58 A.3d 429, 468 (Del. Super. 2012) (“[U]nder Delaware law, medical negligence is governed by statute and premised on health care services rendered in an existing doctor-patient relationship. Beyond the definitions of ‘patient’ and ‘healthcare,’ the medical negligence statute offers no further guidance regarding the factors a court should consider when determining whether a doctor-patient relationship exists. The balance of the statutory provisions assume the presence of a doctor-patient relationship. It is generally understood, however, that a doctor-patient relationship is consensual and begins when the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him or her as a patient. That interaction between the patient and doctor is necessary to create the contract for medical services, express or implied.”).

Wilmington, DE – Building on ongoing efforts in the state to address the addiction epidemic, Governor Markell was joined by White House officials today to announce federal funding to support a new initiative that will partner law enforcement officers and public health officials to address heroin and prescription drug abuse. (Full release below) The announcement comes less than one week after Governor Markell detailed the state’s priorities for the $4.45 million in new resources provided by the Fiscal Year 2016 budget.

Through his budget proposals of the past two years, the Governor has successfully led efforts to expand access to treatment, including through the opening of a new withdrawal management clinic to serve the southern part of the state, and better match withdrawal services to individual needs, rather than a one-size-fits-all approach.

Today’s announcement complements that work.

________________________________________
Monday, August 17, 2015 CONTACT:
ONDCP Public Affairs: 202-395-6618
Mediainquiry@ondcp.eop.gov

White House Drug Policy Office Funds Delaware High Intensity Drug Trafficking Area
New HIDTA County in Delaware Will Be Part of 15 State Partnership on Heroin

Wilmington, DE – Today, Michael Botticelli, Director of National Drug Control Policy, announced federal funding for Delaware as part of a new law enforcement and public health initiative to address heroin and prescription drug abuse. The funding comes through the High Intensity Drug Trafficking Areas (HIDTA) program, to which New Castle County was designated last year by the White House Office of National Drug Control Policy.

$2.5 million will fund the Heroin Response Strategy, an unprecedented partnership among five regional HIDTA programs — Appalachia, New England, Philadelphia/Camden (of which New Castle County is now a member), New York/New Jersey, and Washington/Baltimore — to address the severe heroin threat facing those communities through public health-public safety partnerships across 15 states.

“The High Intensity Drug Trafficking Areas program helps Federal, state, and local authorities to coordinate drug enforcement operations, support prevention efforts and improve public health and safety,” said Director Botticelli.  “The new Heroin Response Strategy demonstrates a strong commitment to address the heroin and prescription opioid epidemic as both a public health and a public safety issue. This Administration will continue to expand community-based efforts to prevent drug use, pursue ‘smart on crime’ approaches to drug enforcement, increase access to treatment, work to reduce overdose deaths, and support the millions of Americans in recovery.”

“While we need to do more to stop the flow of drugs into our cities, suburbs and rural areas, we know we cannot arrest our way out of this health crisis,” said Governor Jack Markell. “In order to truly reduce the number of people and families impacted by addiction, we must convince active users that treatment is available, it does work, and they can recover and thrive. This federal funding will support ongoing efforts in Delaware to address the addiction epidemic and we are grateful for the support of Director Botticelli, along with the tireless advocacy of Delaware’s Congressional delegation.”

“New Castle County is not immune to the heroin epidemic, and this program will help law enforcement combat this problem that affects communities all across the country,” said U.S. Sen. Tom Carper. “It will take an all-hands-on-deck effort to seek out the root causes and fix them. It is through partnerships with law enforcement, the community, and other cities across the country that real change can happen and this program will help to make that change a reality.”

“The addition of New Castle County to the High Intensity Drug Trafficking Areas Program strengthens existing efforts in Delaware,” said U.S. Congressman John Carney. “This investment will help provide much-needed resources for us to better address heroin and prescription drug abuse. I appreciate the Administration’s commitment to ending this epidemic, and I look forward to continuing to work together at the local, regional, and federal level to combat drug abuse and strengthen our communities.”

Background on the High Intensity Drug Trafficking Areas Program

Created by Congress in 1988, the HIDTA program serves as a catalyst for coordination among Federal, state, local, and tribal law enforcement agencies operating in areas determined to be critical drug trafficking regions of the United States. Law enforcement organizations working within HIDTAs assess drug-trafficking issues and design specific initiatives to decrease the production, transportation, distribution, and chronic use of drugs and money laundering. There are currently 28 HIDTAs located in 48 states, as well as in Puerto Rico, the U.S. Virgin Islands, and the District of Columbia.

Today, the Office of National Drug Control Policy announced a total of $13.4 million in funding for HIDTA programs across the country.

Background on the 15-State Heroin Response Strategy:

The Heroin Response Strategy will foster a collaborative network of public health-public safety partnerships to address the heroin/opioid epidemic from multiple perspectives. The Strategy will enhance the efficacy and efficiency of the criminal intelligence process in support of cooperative law enforcement operations. The five HIDTAs will create a 15-state network of experienced, connected law enforcement contacts and leverage these connections and information-gathering capabilities with a strong, complementary, analytical capacity.

The five HIDTAs will select two centrally located Regional Coordinators, one with a public health focus and the other with a public safety focus, who will manage and oversee implementation and operation of the Heroin Response Teams. The Public Health Coordinator will oversee regional reporting of fatal and non-fatal overdose information and issuing of relevant alerts regarding dangerous batches of heroin and other heroin-related threats to health authorities. This will mobilize a rapid public health response to distribute naloxone or expand resources in the affected areas, helping to mitigate the number of overdoses and prevent deaths. The Public Safety Coordinator will oversee execution of public safety goals by ensuring case support is provided where needed and intelligence is being disseminated to relevant law enforcement authorities to enable disruption of the heroin supply.

A heroin and prescription opioid training curriculum will be developed and used to prepare rural and municipal officers and first responders who are inexperienced responding to heroin and prescription opioid-related incidents. To assist communities in coping with this escalating problem, the five HIDTAs will develop Education & Training strategies that will increase awareness of heroin and opiate addiction, create linkages to available prevention and treatment resources in the respective regions, and enable first-responders to know how to report all pertinent lead information developed from seizures and overdose responses.

The Heroin Response Strategy builds upon the successes of the 2014 symposium hosted by the Washington/Baltimore HIDTA.  Each year, the five HIDTAs will host two, two-day State of the Region symposia at a jointly nominated HIDTA.  These symposia will build additional structure within each respective HIDTA region for the attendees to maintain regular contact and continue their public health-public safety partnerships between symposia. The aim will be to facilitate collaboration between public health and public safety partners within and across jurisdictions, sharing best practices, innovative pilots, and identifying new opportunities to leverage resources.

Background on the Administration’s National Drug Policy

The Obama Administration’s drug policy treats the national drug challenge as a public health issue, not just a criminal justice issue.  This approach is built upon the latest scientific research demonstrating that addiction is a chronic disease of the brain that can be successfully prevented and treated, and from which one can recover.

The Administration has directed Federal agencies to expand community-based efforts to prevent drug use before it begins, empower healthcare workers to intervene early at the first signs of a substance use disorder, expand access to treatment for those who need it, support the millions of Americans in recovery, and pursue “smart on crime” approaches to drug enforcement.

For more information about the Office of National Drug Control Policy, visit: www.whitehouse.gov/ondcp

For information on the High Intensity Drug Trafficking Areas (HIDTA) program, visit: www.whitehouse.gov/ondcp/high-intensity-drug-trafficking-areas-program

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Delaware Medicaid Program to receive more than $573,000

Attorney General Matt Denn announced that Delaware settled kickback claims against Accredo Health Group, Inc. (“Accredo”). The settlement resolves allegations that Accredo recommended the drug Exjade to Medicaid patients in exchange for kickbacks from Novartis Pharmaceuticals Corporation (“Novartis”), which markets the drug. Under the settlement, Accredo has agreed to pay $60 million to the United States and over forty states. Delaware will receive $573,314.94 under the settlement. The money will be returned to the state’s Medicaid system.

Accredo, a specialty pharmacy headquartered in Memphis, Tennessee and a wholly owned subsidiary of Medco Health Solutions, Inc., ships prescription drugs to Medicaid patients around the country. Exjade was approved by the U.S. Food and Drug Administration in late 2005 for the treatment of chronic iron overload due to blood transfusions. In complaints filed in the case, several states and the federal government have alleged that Novartis developed the scheme because Exjade patients often stopped taking the drug because of side effects. The settlement resolves allegations that Accredo participated in a scheme in which Novartis paid kickbacks to pharmacies by giving more prescription referrals to the pharmacy that kept patients on Exjade the longest.

The settlement stems from a whistleblower lawsuit, U.S. ex rel. Kester, et al. v. Novartis Pharmaceuticals Corporation, et al., No. 11-CIV-8196, which is pending in federal court in New York. The case was filed under the federal False Claims Act and similar state false claims acts.

The state settlements were negotiated by a team of states led by representatives from the Offices of the Attorneys General for California and New York.

In nearly every corner of our state, DelDOT employees, contractors and construction workers are paving streets, upgrading intersections, repairing bridges, adding bike lanes and sidewalks, and increasing accessibility for people with disabilities. They’re working to make our roads safer and less congested, ensuring that we have a first-class transportation system. Last week we celebrated their efforts at the completion of the I-95 / 202 interchange improvement project. It was the latest development in a massive overhaul of our I-95 corridor, which included a new toll plaza with high speed EZ Pass lanes, an extra lane through the busy Route 141 and I-295 interchange, and the creation of fly-over ramps to reduce congestion at Route 1. The progress we’ve seen there is happening throughout Delaware. In Rehoboth Beach we’re installing new sidewalks to improve safety and increase accessibility for people with disabilities. We’re adding a third lane to Route 26 to eliminate tie-ups between Ocean View and Clarksville. And the West Dover Connector will bring businesses and residential communities closer together. The projects don’t pay for themselves. We will see much more needed repairs and construction because of support from members of the General Assembly. Their vote this year shored up our state’s Transportation Trust Fund, addressing a major funding shortfall and setting our state on the right course for the future. Finding new sources of revenue in a tight fiscal environment is not easy. But investing in Delaware’s infrastructure means safer and more efficient roads for our citizens. It also means more jobs both during construction and at the businesses that have opportunities to start and expand operations as a result of a high quality transportation system. And all of that keeps Delaware moving forward.