Delaware RegisterRegulations ofIssue Date: April 1, 2007 Volume 10 - Issue 10, Pages 1471 - 1638IN THIS ISSUE: Regulations: EmergencyProposedFinalGeneral NoticesCalendar of Events & Hearing NoticesPursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of theRegister contains all documentsrequired to be published, andreceived, on or before March 15,2007. DELAWARE REGISTER OF REGULATIONS The Delaware Register of Regulations is an official State publication established by authority of 69 Del. Laws, c. 107 and is published on the first of each month throughout the year. The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated. The Register will also publish some or all of the following information: •Governor’s Executive Orders •Governor’s Appointments •Agency Hearing and Meeting Notices •Other documents considered to be in the public interest. CITATION TO THE DELAWARE REGISTER The Delaware Register of Regulations is cited by volume, issue, page number and date. An example would be: 9 DE Reg. 1036-1040 (01/01/06) Refers to Volume 9, pages 1036-1040 of the Delaware Register issued on January 1, 2006. SUBSCRIPTION INFORMATION The cost of a yearly subscription (12 issues) for the Delaware Register of Regulations is $135.00. Single copies are available at a cost of $12.00 per issue, including postage. For more information contact the Division of Research at 302-744-4114 or 1-800-282-8545 in Delaware. CITIZEN PARTICIPATION IN THE REGULATORY PROCESS Delaware citizens and other interested parties may participate in the process by which administrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined. Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings. The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is published in the Register of Regulations. At the conclusion of all hearings and after receipt, within the time allowed, of all written materials, upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted, amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members. The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under §10119. Any person aggrieved by and claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief. No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken. When any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action. Except as provided in the preceding section, no judicial review of a regulation is available unless a complaint therefor is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations. CLOSING DATES AND ISSUE DATES FOR THE DELAWARE REGISTER OF REGULATIONS ISSUE DATECLOSING DATECLOSING TIME May 1April 164:30 p.m. June 1May 154:30 p.m. July 1June 154:30 p.m. August 1July 164:30 p.m. September 1August 154:30 p.m. DIVISION OF RESEARCH STAFF Deborah A. Porter, Interim Supervisor; Judi Abbott, Administrative Specialist I; Steve Engebretsen, Assistant Registrar; Jeffrey W. Hague, Registrar of Regulations; Ruth Ann Melson, Legislative Librarian; Deborah J. Messina, Print Shop Supervisor; Kathleen Morris, Administrative Specialist I; Teresa Porter, Printer. Debbie Puzzo, Research Analyst; Georgia Roman, Unit Operations Support Specialist; Victoria Schultes, Administrative Specialist II; Don Sellers, Printer; Alice W. Stark, Senior Legislative Attorney; Rochelle Yerkes, Administrative Specialist II. COUNCIL ON POLICE TRAINING Council on Police Training............................................................................................10 DE Reg. 341 (Final) DELAWARE MANUFACTURED HOME RELOCATION AUTHORITY 201 Delaware Manufactured Home Relocation Trust Fund Regulations .....................10 DE Reg. 928 (Prop.) DELAWARE RIVER BASIN COMMISSION Proposed Amendments to the Comprehensive Plan and Water Code.........................10 DE Reg. 1356 (Prop.) DELAWARE STATE FIRE PREVENTION COMMISSION 2006 Delaware State Fire Prevention Regulations.......................................................10 DE Reg. 342 (Final) DEPARTMENT OF AGRICULTURE Delaware Agriculture Lands Preservation Foundation 1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program ..........................................................................................................10 DE Reg. 9 (Prop.) 10 DE Reg. 825 (Final) Delaware Forest Service 402 State Forest Regulations ................................................................................10 DE Reg. 88 (Final) Harness Racing Commission 501 Harness Racing Rules and Regulations..........................................................10 DE Reg. 217 (Prop.) 10 DE Reg. 393 (Prop.) 10 DE Reg. 980 (Final) Section 3.0, Officials........................................................................................10 DE Reg. 931 (Prop.) 10 DE Reg. 1358 (Prop.) 10 DE Reg. 1421 (Final) Section 5.0, Licenses.......................................................................................10 DE Reg. 931 (Prop.) 10 DE Reg. 1422 (Final) Section 8.0, Veterinary Practices, Equine Health Medication..........................10 DE Reg 931 (Prop.) 10 DE Reg. 1424 (Final) 502 Delaware Standardbred Breeders Fund Regulations .....................................10 DE Reg. 982 (Final) Nutrient Management Commission 1201 Nutrient Management Certification Regulations ............ ...........................10 DE Reg. 411 (Prop.) 10 DE Reg. 1098 (Prop.) 1203 Mandatory Nutrient Management Plan Reporting Implementation Regulation.................................................................................................10 DE Reg. 411 (Prop.) Pesticides Management 601 Pesticide Rules and Regulations.....................................................................10 DE Reg. 236 (Prop.) 10 DE Reg. 833 (Final) 10 DE Reg. 1300 (Final) Thoroughbred Racing Commission 1001 Thoroughbred Racing Rules and Regulations..............................................10 DE Reg. 27 (Prop.) 10 DE Reg. 546 (Final) 10 DE Reg. 1086 (Prop.) DEPARTMENT OF EDUCATION Office of the Secretary 101 Delaware Student Testing Program.................................................................10 DE Reg. 245 (Prop.) 101 Delaware Student Testing Program.................................................................10 DE Reg. 676 (Final) 10 DE Reg. 1103 (Prop.) 10 DE Reg. 1425 (Final) 103 Accountability for Schools, Districts and the State...........................................10 DE Reg. 89 (Final) 201 School Shared Decision Making Transition Planning Grants..........................10 DE Reg. 773 (Prop.) 205 District Shared Decision Making Transition Planning Grants..........................10 DE Reg. 773 (Prop.) 210 Approval of School Improvement Grants.........................................................10 DE Reg. 773 (Prop.) 10 DE Reg. 1140 (Final) 247 Delaware Post Secondary Internship Program at the Washington Center (TWC) for Interships and Academic Seminars.................................................10 DE Reg. 779 (Prop.) 10 DE Reg. 1142 (Final) 10 DE Reg. 1430 (Final) 284 Licensure and Certification of Public Education Employees in the Departmment....................................................................................................10 DE Reg. 600 (Prop.) 10 DE Reg. 983 (Final) 290 Approval of Teacher Education Programs.......................................................10 DE Reg. 835 (Final) 292 Post Secondary Institutions and Degree Granting Institutions of Higher Education.........................................................................................................10 DE Reg. 850 (Final) 314 Certification Administrative Principal or Assistant Principal Administrator of Adult and Adult Alternative Education, Repeal of ..........................................10 DE Reg. 613 (Prop.) 10 DE Reg. 984 (Rep.) 320 Certification Adult Education Teacher , Repeal of...........................................10 DE Reg. 613 (Prop.) 10 DE Reg. 984 (Rep. 371 Certification Teacher of the Hearing Impaired.................................................10 DE Reg. 781 (Prop.) 372 Certification Administrative Support Personnel (Formerly Secretarial Personnel)........................................................................................................10 DE Reg. 785 (Prop.) 10 DE Reg. 1143 (Final) 398 Degree Granting Institutions of Higher Education ..........................................10 DE Reg. 417 (Prop.) 399 Approval of Teacher Education Programs ......................................................10 DE Reg. 428 (Prop.) 502 Alignment of Local School District Curricula to the State Content Standards..10 DE Reg. 344 (Final) 10 DE Reg. 1202 (Prop.) 503 Instructional Program Requirements ..............................................................10 DE Reg. 615 (Prop.) 10 DE Reg. 985 (Final) 505 High School Graduation Requirements and Diplomas....................................10 DE Reg. 30 (Prop.) 10 DE Reg. 547 (Final) 540 Driver Education..............................................................................................10 DE Reg. 1205 (Prop.) 745 Criminal Background Check for Public School Related Employment..............10 DE Reg. 253 (Prop.) 10 DE Reg. 684 (Final) 885 Safe Management and Disposal of Chemicals in the Delaware Public School System ................................................................................................10 DE Reg. 952 (Prop.) 10 DE Reg. 1432 (Final) 910 Delaware General Educational Development (GED) Endorsement ..............10 DE Reg. 442 (Prop.) 10 DE Reg. 862 (Final) 915 James H. Groves High School ........................................................................10 DE Reg. 617 (Prop.) 10 DE Reg. 988 (Final) 925 Children with Disabilities..................................................................................10 DE Reg. 1365 (Prop.) 1001 Participation in Extra Curricular Activities......................................................10 DE Reg. 1112 (Prop.) 10 DE Reg. 1433 (Final) 1103 Standards for School Bus Chassis and Bodies for Buses Placed in Production on or after January 1, 2007............................................................10 DE Reg. 258 (Prop.) 10 DE Reg. 690 (Final) Professional Standards Board 360 Certification Early Childhood Special Education Teacher, Repeal of...............10 DE Reg. 1114 (Prop.) 10 DE Reg. 1434 (Rep.) 1501 Knowledge, Skills and Responsibility Based Salary Supplements for Educators...................................................................................................10 DE Reg. 1208 (Prop.) 1511 Issuance and Renewal of Continuing License...............................................10 DE Reg. 97 (Final) 1516 Standard Certificate.......................................................................................10 DE Reg. 1213 (Prop.) 1521 Standard Certificate Agriculture Teacher.......................................................10 DE Reg. 100 (Final) 1522 Standard Certificate Business Education Teacher.........................................10 DE Reg. 100 (Final) 1525 Standard Certificate English Teacher............................................................10 DE Reg. 100 (Final) 1526 Standard Certificate English to Speakers of Other Languages.....................10 DE Reg. 34 (Prop.) 10 DE Reg. 208 (Errata) 10 DE Reg. 388 (Errata) 10 DE Reg. 995 (Final) 1527 Endorsement English to Speakers of Other Languages (ESOL) Teacher, Repeal of..........................................................................................................10 DE Reg. 38 (Prop.) 10 DE Reg. 999 (Rep.) 1528 Standard Certificate World Language Teacher Comprehensive....................10 DE Reg. 100 (Final) 1534 Standard Certificate Mathematics Teacher Secondary..................................10 DE Reg. 100 (Final) 1537 Standard Certificate Bilingual Teacher K to 12 .............................................10 DE Reg. 39 (Prop.) 10 DE Reg. 693 (Final) 1539 Standard Certificate Social Studies Teacher Secondary...............................10 DE Reg. 100 (Final) 1540 Standard Certificate Science Teacher Secondary.........................................10 DE Reg. 100 (Final) 1541 Standard Certificate Mathematics Teacher Middle Level...............................10 DE Reg. 100 (Final) 1542 Standard Certificate Science Teacher Middle Level......................................10 DE Reg. 100 (Final) 1543 Standard Certificate Art Teacher Comprehensive.........................................10 DE Reg. 100 (Final) 1548 Standard Certificate Music Teacher Comprehensive.....................................10 DE Reg. 100 (Final) 1551 Standard Certificate Physical Education Teacher Comprehensive................10 DE Reg. 100 (Final) 1554 Standard Certificate Reading Specialist........................................................10 DE Reg. 100 (Final) 1556 Standard Certificate Elementary Teacher (Grades K-6)................................10 DE Reg. 100 (Final) 1558 Standard Certificate Bilingual Teacher (Spanish) Primary and Middle..........10 DE Reg. 44 (Prop.) 10 DE Reg. 695 (Final) 1561 Standard Certificate Teacher Exceptional Children Special Education Elementary, Repeal of......................................................................................10 DE Reg. 788 (Prop.) 1562 Standard Certificate Teacher Exceptional Children Special Education Secondary........................................................................................................10 DE Reg. 790 (Prop.) 1570 Standard Certificate Early Childhood Teacher Special Education ................10 DE Reg. 45 (Prop.) 10 DE Reg. 211(Errata) 10 DE Reg. 696 (Final) 1572 Standard Certificate Teacher of Students Who Are Deaf or Hard of Hearing10 DE Reg. 1144 (Final) 1579 Standard Certificate Teacher of the Visually Impaired ..................................10 DE Reg. 623 (Prop.) 10 DE Reg. 1147 (Final) DEPARTMENT OF FINANCE Division of Revenue Abandoned or Unclaimed Property Voluntary Disclosure Agreement and Audit Programs................................................................................................10 DE Reg. 1502 (Prop.) 10 DE Reg. 699 (Final) 301Publication of Tax Information..........................................................................10 DE Reg. 794 (Prop.) 10 DE Reg. 1116 (Prop.) Office of the State Lottery 450 Video Lottery Regulations, Sections 6.0 Agents: Duties, and 14.0 Employee License Procedure..................................................................10 DE Reg. 1367 (Prop.) DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Long Term Care Residents Protection Nursing Home Survey Process..............................................................................10 DE Reg. 6 (Emer.) Division of Medicaid and Medical Assistance Assisted Living Medicaid 1915(c) Waiver ..............................................................10 DE Reg. 56 (Prop.) 10 DE Reg. 1001 (Final) Attendant Services Program .................................................................................10 DE Reg. 954 (Prop.) Section 1515(c)................................................................................................10 DE Reg. 1301 (Final) Diamond State Health Plan 1115 Demonstration Waiver .......................................10 DE Reg. 55 (Prop.) 10 DE Reg. 549 (Final) Title XIX Medicaid State Plan, Supplement 3 to Attachment 2.6-A, Pg. 1, Reasonable Limits on Amounts for Necessary Medical or Remedial Care Not Covered Under Medicaid...........................................................................10 DE Reg. 52 (Prop.) 10 DE Reg. 703 (Final) Title XIX, Transfer of Assets for Less Than Fair Market Value Made on or After February 8, 2006..............................................................................................10 DE Reg. 955 (Prop.) Title XXI Delaware Healthy Children State Program ..............................................10 DE Reg. 444 (Prop.) 10 DE Reg. 865 (Final) DSSM: 20310 Long Term Care Medicaid ....................................................................10 DE Reg. 553 (Final) 20320 Ownership of Real Property by Institutionalized Individuals..................10 DE Reg. 1216 (Prop.) 20320.7 Substantial Home Equity....................................................................10 DE Reg. 1373 (Prop.) 20330.3 Promissory Notes, Loans and Property Agreements.........................10 DE Reg. 1216 (Prop.) 20330.4 Retirement Funds...............................................................................10 DE Reg. 795 (Prop.) 10 DE Reg. 1436 (Final) 20330.4.1 Annuities.........................................................................................10 DE Reg. 798 (Prop.) 20330.7 U.S. Savings Bonds...........................................................................10 DE Reg. 1219 (Prop.) 20350 Transfer of Assets ................................................................................10 DE Reg. 955 (Prop.) 20350.4 Multiple Transfers...............................................................................10 DE Reg. 1117 (Prop.) 10 DE Reg. 1439 (Final) 20350.10 Long Term Care Medicaid, Exceptions to the Transfer of Assets....10 DE Reg. 50 (Prop.) 10 DE Reg. 558 (Final) 20400.5 Irrevocable Trusts ..............................................................................10 DE Reg. 955 (Prop.) 20400.9.1.1 Treatment of Special Needs Trusts .............................................10 DE Reg. 965 (Prop.) 10 DE Reg. 1302 (Final) 20910.1 Long Term Care, Institutionalized Spouse ........................................10 DE Reg. 701 (Final) 10 DE Reg. 1220 (Prop.) 20950 Initial Eligibility Determinations..............................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 702 (Final) 20970 Fair Hearings.........................................................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 702 (Final) 30000 Delaware Prescription Assistance Program .........................................10 DE Reg. 446 (Prop.) 10 DE Reg. 866 (Final) 50100 Services Provided by the Chronic Renal Disease Program..................10 DE Reg. 347 (Final) Division of Public Health 4104 Conrad State 30/J-1 Visa Waiver Program....................................................10 DE Reg. 1221 (Prop.) 4469 Personal Assistance Services Agencies........................................................10 DE Reg. 1376 (Prop.) Division of Social Services DSSM: 2023 Disqualification Hearings.........................................................................10 DE Reg. 1441 (Final) 3000 Temporary Assistance for Needy Families (TANF).................................10 DE Reg. 286 (Prop.) 3001 Definitions...............................................................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 706 (Final) 3006 TANF Employment and Training Program..............................................10 DE Reg. 283 (Prop.) 10 DE Reg. 706 (Final) 3008 Eligibility of Certain Minors......................................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 706 (Final) 3012 School Attendance.................................................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 706 (Final) 3024 Citizens and Aliens..................................................................................10 DE Reg. 1389 (Prop.) 3031 Work for Your Welfare.............................................................................10 DE Reg. 283 (Prop.) 10 DE Reg. 706 (Final) 5302 Exceptions...............................................................................................10 DE Reg. 1396 (Prop.) 5307 Dismissal of Requests.............................................................................10 DE Reg. 1396 (Prop.) 9007.1 Citizenship and Alien Status................................................................10 DE Reg. 1389 (Prop.) 9013.1 Household Definition ...........................................................................10 DE Reg. 626 (Prop.) 10 DE Reg. 1003 (Final) 9082 Reduction in Public Assistance Benefits.................................................10 DE Reg. 1398 (Prop.) 9085 Reporting Changes ................................................................................10 DE Reg. 57 (Prop.) 10 DE Reg. 560 (Final) 9092 Simplified Food Stamp Program.............................................................10 DE Reg. 1398 (Prop.) 10007.3 Supportive Services Reimbursements...............................................10 DE Reg. 1401 (Prop.) 11000 Child Care Subsidy Program.................................................................10 DE Reg. 447 (Prop.) 10 DE Reg. 564 (Final) 10 DE Reg. 1007 (Final) 15120 Financial Eligibility.................................................................................10 DE Reg. 143 (Final) 16230.1.2 Self-Employment Income................................................................10 DE Reg. 143 (Final) 17300.3.2 Self-Employment Income................................................................10 DE Reg. 143 (Final) 20210.16 Self Employment .............................................................................10 DE Reg. 143 (Final) 20400.9.1.1 Treatment of Special Needs Trusts..............................................10 DE Reg. 1302 (Final 20620.2 Necessary Medical Care Expenses...................................................10 DE Reg. 52 (Prop.) 10 DE Reg. 703 (Final) 20995.1 Post-Eligibility Deductions..................................................................10 DE Reg. 52 (Prop.) 10 DE Reg. 703 (Final) DEPARTMENT OF INSURANCE 301 Arbitration of Health Insurance Claims and Internal Review Process of Medical Insurance Carriers .................................................................................................10 DE Reg. 1180 (Emer.) 504 Continuing Education for Insurance Agents, Brokers, Surplus Lines Brokers and Consultants .....................................................................................................10 DE Reg. 60 (Prop.) 10 DE Reg. 734 (Final) 608 Automobile Insurance Coverage............................................................................10 DE Reg. 1232 (Prop.) 610 Automobile Premium Consumer Comparison .......................................................10 DE Reg. 62 (Prop.) 10 DE Reg. 566 (Final) 704 Homeowners Premium Consumer Comparison ...................................................10 DE Reg. 967 (Prop.) 10 DE Reg. 1304 (Final) 1215 Recognition of Preferred Mortality Tables for Use in Determining Minimum Reserve Liabilities..................................................................................................10 DE Reg. 968 (Prop.) 10 DE Reg.1306 (Final) 1301 Arbitration of Health Insurance Claims and Internal Review Process of Medical Insurance Carriers .............................................................................10 DE Reg. 1233 (Prop.) 1403 Health Maintenance Organizations [Formerly Regulation 58] ............................10 DE Reg. 1190 (Emer.) 10 DE Reg. 1249 (Prop.) 1407 Supplemental Health Insurance Coverage For Children Of Insureds..................10 DE Reg. 1403 (Prop.) 1501 Medicare Supplement Insurance Minimum Standards........................................10 DE Reg. 802 (Prop.) 10 DE Reg. 1307 (Final) DEPARTMENT OF JUSTICE Division of Fraud and Consumer Protection Debt Management Services...................................................................................10 DE Reg. 804 (Prop.) 10 DE Reg. 1308 (Final) Identity Theft Passports..........................................................................................10 DE Reg. 811 (Prop.) 10 DE Reg. 1151 (Final) DEPARTMENT OF LABOR Division of Employment and Training 106 Apprenticeship and Training Regulations .......................................................10 DE Reg. 64 (Prop.) (to be transferred to the Division of Industrial Affairs)......................................10 DE Reg. 458 (Prop.) Division of Industrial Affairs 106 Apprenticeship and Training Regulations .......................................................10 DE Reg. 1021 (Final) DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Office of the Secretary 106 Environmental Standards for Eligible Energy Resources................................10 DE Reg. 350 (Final) Division of Air and Waste Management 1113 Open Burning.................................................................................................10 DE Reg. 1118 (Prop.) 1124 Control of Volatile Organic Compound Emissions, Section 46......................10 DE Reg. 813 (Prop.) 10 DE Reg. 867 (Final) 1141 Limiting Emissions of VOC from Consumer and Commercial Products.. ..10 DE Reg. 465 (Prop.) 10 DE Reg. 868 (Final) 1142 Specific Emission Control Requirements, Section 2.0 Control of NOx Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries.........................................................................................................10 DE Reg. 1280 (Prop.) 1146 Electric Generating Unit (EGU) Multi-Pollutant Regulations .........................10 DE Reg. 508 (Prop.) 10 DE Reg. 1022 (Final) 1302 Regulations Governing Hazardous Waste.....................................................10 DE Reg. 353 (Final) Division of Fish and Wildlife 3200 Horseshoe Crabs (3203, 3207, 3210, 3211 and 3214; 3215)........................10 DE Reg. 519 (Prop.) 10 DE Reg. 1029 (Final) 3511 Summer Flounder Size Limits; Season..........................................................10 DE Reg. 1405 (Prop.) 3536 Fish Pot Requirements (Formerly Tidal Finfish Reg. 24)...............................10 DE Reg. 629 (Prop.) 10 DE Reg. 1035 (Final) 3581 Spiny Dogfish; Closure of Fishery (Formerly Tidal Finfish Reg. 27)..............10 DE Reg. 1285 (Prop.) 3700 Shellfish Regulations (3711, 3712 and 3755) ...............................................10 DE Reg. 522 (Prop.) 10 DE Reg. 1034 (Final) Division of Soil and Water Conservation 5101 Sediment and Stormwater Regulations (Exempt from A.P.A.) ......................10 DE Reg. 735 (Final) 5102 Regulation Governing Beach Protection and the Use of Beaches................10 DE Reg. 870 (Final) Division of Water Resources 7402 Shellfish Sanitation Regulations ...................................................................10 DE Reg. 145 (Final) Watershed Assessment Section Total Maximum Daily Loads (TMDLs) 7412 Chester River Watershed........................................................................10 DE Reg. 1041 (Final) 7413 Choptank River Watershed.....................................................................10 DE Reg. 1041 (Final) 7414 Marshyhope Creek Watershed...............................................................10 DE Reg. 1041 (Final) 7415 Pocomoke River Watershed...................................................................10 DE Reg. 1041 (Final) 7416 Army Creek Watershed...........................................................................10 DE Reg. 305 (Prop.) 10 DE Reg. 1042 (Final) 7417 Blackbird Creek Watershed....................................................................10 DE Reg. 1037 (Final) 7418 Broadkill River Watershed.......................................................................10 DE Reg. 1038 (Final) 7419 Cedar Creek Watershed..........................................................................10 DE Reg. 1038 (Final) 7420 Dragon Run Creek Watershed................................................................10 DE Reg. 305 (Prop.) 10 DE Reg. 1042 (Final) 7421 Leipsic River Watershed.........................................................................10 DE Reg. 1037 (Final) 7422 Little Creek Watershed............................................................................10 DE Reg. 1037 (Final) 7423 Mispillion River Watershed......................................................................10 DE Reg. 1038 (Final) 7424 Red Lion Creek Watershed.....................................................................10 DE Reg. 305 (Prop.) 10 DE Reg. 1042 (Final) 7425 Smyrna River Watershed........................................................................10 DE Reg. 1037 (Final) 7426 St. Jones River Watershed.....................................................................10 DE Reg. 1037 (Final) 7427 Appoquinimink River Watershed, Bacteria for, (formerly 7403)..............10 DE Reg. 524 (Prop.) 10 DE Reg. 1039 (Final) 7428 Murderkill River Watershed.....................................................................10 DE Reg. 524 (Prop.) 7428 Murderkill River Watershed.....................................................................10 DE Reg. 1041 (Final) 7429 Inland Bays Drainage Basin ............................................................. ...10 DE Reg. 524 (Prop.) 10 DE Reg. 1041 (Final) 7430 Chesapeake Bay Drainage Basin...........................................................10 DE Reg. 524 (Prop.) 10 DE Reg. 1041 (Final) DEPARTMENT OF SAFETY AND HOMELAND SECURITY Board of Examiners of Private Investigators and Private Security Agencies 1300 Board of Examiners of Private Investigators and Private Security Agencies10 DE Reg. 971 (Prop.) 10 DE Reg. 1445 (Final) DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES Division of Family Services 101 Day Care Centers............................................................................................10 DE Reg. 308 (Prop.) DEPARTMENT OF STATE Division of Professional Regulation 200 Board of Landscape Architects........................................................................10 DE Reg. 1124 (Prop.) 500 Board of Podiatry.............................................................................................10 DE Reg. 309 (Prop.) 10 DE Reg. 1153 (Final) 700 Board of Chiropractic ................................................ ..............................10 DE Reg. 146 (Final) 10 DE Reg. 1126 (Prop.) 1400 Board of Electrical Examiners ......................................................................10 DE Reg. 631 (Prop.) 10 DE Reg. 1329 (Final) 10 DE Reg. 1407 (Prop.) 1770 Respiratory Care Advisory Council................................................................10 DE Reg. 354 (Final) 1800 Board of Plumbing Examiners ......................................................................10 DE Reg. 65 (Prop.) 1900 Board of Nursing...........................................................................................10 DE Reg. 1127 (Prop.) 2000 Delaware Board of Occupational Therapy.....................................................10 DE Reg. 1286 (Prop.) 2100 Board of Examiners in Optometry.................................................................10 DE Reg. 1408 (Prop.) 2500 Board of Pharmacy........................................................................................10 DE Reg. 311 (Prop.) Section 8.0 Requirements for Obtaining a Permit to Distribute Drugs on a Wholesale Basis ...............................................................................10 DE Reg. 972 (Prop.) Section 9.0 Hospital Pharmacy........................................................................10 DE Reg. 821 (Prop.) 2600 Examining Board of Physical Therapists.......................................................10 DE Reg. 318 (Prop.) 10 DE Reg. 741 (Final) 2700 Board of Professional Landy Surveyors........................................................10 DE Reg. 1290 (Prop.) 3000 Board of Professional Counselors of Mental Health and Chemical Dependency Professionals .............................................................................10 DE Reg. 67 (Prop.) Section 6.0 Renewal of Licensure...................................................................10 DE Reg. 871 (Final) Sections 1.0 through 9.0 Reorganized and Renumbered................................10 DE Reg. 872 (Final) 3100 Delaware Board of Funeral Services ............................................................10 DE Reg. 528 (Prop.) 10 DE Reg. 1154 (Final) 3300 Board of Veterinary Medicine .......................................................................10 DE Reg. 531 (Prop.) 10 DE Reg. 884 (Final) 10 DE Reg. 1137 (Prop.) 3500 Board of Examiners of Psychologists, Sections 5.0 and 10.0.......................10 DE Reg. 1295 (Prop.) 3600 Board of Registration of Geologists ..............................................................10 DE Reg. 68 (Prop.) 10 DE Reg. 567 (Final) 3800 Committee on Dietetics/Nutrition...................................................................10 DE Reg. 1412 (Prop.) 3900 Board of Clinical Social Work Examiners......................................................10 DE Reg. 323 (Prop.) 10 DE Reg. 886 (Final) 4400 Delaware Manufactured Home Installation Board.........................................10 DE Reg. 331 (Prop.) 10 DE Reg. 634 (Prop.) 10 DE Reg. 1156 (Final) 5300 State Board of Massage and Bodywork .......................................................10 DE Reg. 71 (Prop.) 10 DE Reg. 575 (Final) Office of the State Bank Commissioner 1101 Election to be Treated for Tax Purposes as a "Subsidiary Corporation" of a DE Chartered Banking Organization or Trust Company, National Bank having its Principle Office in Delaware, or Out-of-State Bank that Operates Resulting Branch in Delaware .........................................................................................10 DE Reg. 643 (Prop.) 10 DE Reg. 1046 (FInal) 1109 Instructions for Calculation of Employment Tax Credits ................................10 DE Reg. 643 (Prop.) 10 DE Reg. 1046 (FInal) 1113 Election by a Subsidiary Corporation of a Banking Organization or Trust Company to be Taxed in Accordance with Chapter 19 of Title 30 ...................10 DE Reg. 643 (Prop.) 10 DE Reg. 1046 (FInal) 1114 Alternative Franchise Tax ..............................................................................10 DE Reg. 643 (Prop.) 10 DE Reg. 1046 (FInal) Public Service Commission Regulation Docket No. 49, Creation of a Competitive Market for Retail Electric Supply Service .........................................................................10 DE Reg. 664 (Prop.) 10 DE Reg. 1160 (Final) Regulation Docket No. 50, Proposed Adoption of “Electric Service Reliability and Quality Standards” ...........................................................................................10 DE Reg. 74 (Prop.) 10 DE Reg. 576 (Final) Regulation Docket No. 56, Proposed Adoption of “Rules to Implement Renewable Energy Portfolio Standards”..........................................................10 DE Reg. 151 (Final) DEPARTMENT OF TRANSPORTATION Division of Planning and Policy Development Related Improvements Requiring New Rights-of-Way.....................10 DE Reg. 892 (Final) Utilities Manual Regulations.............................................................................10 DE Reg. 1139 (Prop.) Division of Transportation Solutions Utilities Manual Regulations...................................................................................10 DE Reg. 1415 (Prop.) Office of Motor Fuel Tax Administration 2401 Regulations for the Office of Retail Gasoline Sales ......................................10 DE Reg. 542 (Prop.) EXECUTIVE DEPARTMENT Delaware Economic Development Office 1151 Matching Grants Program..............................................................................10 DE Reg. 1415 (Prop.) 1152 Direct Grants Program...................................................................................10 DE Reg. 1415 (Prop.) GOVERNOR’S OFFICE Executive Orders: No. 87, Establishing The State Employees’ Charitable Campaign ........................................................................................................10 DE Reg. 158 No. 88, Recognizing and Establishing the Delaware Science and Technology Council...................................................................................10 DE Reg. 366 No. 89,Creating the Governor’s Consortium on Hispanic Issues...........................10 DE Reg. 578 No. 90, Establishing The Recycling Public Advisory Council.................................10 DE Reg. 903 No. 91, Amending Executive Order No. 84.............................................................10 DE Reg. 1067 No. 92, Authorizing The Establishment Of A Special Fund To Assist Any Delaware National Guard Member Or Delaware-Based Reservist Who May Be Ordered To Active Duty...............................................10 DE Reg. 1067 No. 93, Amendment to Executive Order Number Eighty-Eight Regarding the Delaware Science and Technology Council.............................10 DE Reg. 1162 No. 94, Declaring Tuesday, January 2, 2007 A Legal Holiday In Remembrance of Former President Gerald R. Ford ...................................10 DE Reg. 1331 No. 95, Ordering a Cost, Benefit, and Policy Analysis of the Implementation of Toll Facility Bonding for the Completion of a Tolled Highway for US Route 301 by the Department of Transportation....................10 DE Reg. 1447 No. 96, Reallocation Of State Private Activity Bond Volume Cap For Calendar Year 2006 And Initial Suballocation Of State Private Activity Bond Volume Cap For Calendar Year 2007.....................................................10 DE Reg. 1448 Appointments and Nominations:...............................................................................10 DE Reg. 368 10 DE Reg. 905 10 DE Reg. 1332 10 DE Reg. 1450 Cumulative Tables......................................................................................................................................... 1476 EMERGENCY DEPARTMENT OF INSURANCE 1301 Arbitration of Health Insurance Claims and Internal Review Process of Medical Insurance Carriers............................................................................................................................ 1485 1403 Health Maintenance Organizations................................................................................................. 1502 PROPOSED DEPARTMENT OF AGRICULTURE Nutrient Management 1201 Nutrient Management Certification Regulations....................................................................... 1504 DEPARTMENT OF EDUCATION Office of the Secretary 505 High School Graduation Requirements and Diplomas .............................................................. 1508 804 Immunizations; 811 School Health Record Keeping Requirements; 815 Physical Examinations and Screening; 817 Administration of Medications and Treatments ................... 1513 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance DSSM 11006.6 Complaints .............................................................................................................. 1522 DEPARTMENT OF INSURANCE 1301 Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims ...... 1523 1307 Group Coordination Benefits (Formerly Regulation 61) ................................................................. 1539 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Air and Waste Management 1148 Control of Stationary Combustion Turbine Electric Generating Unit Emissions ...................... 1547 DEPARTMENT OF STATE Division of Professional Regulation 1770 Respiratory Care Practice Advisory Council ............................................................................ 1551 2500 Board of Pharmacy, Section 8.0, Requirements for Obtaining a Permit to Distribute Drugs on a Wholesale Basis ...................................................................................................... 1553 2900 Real Estate Commission ......................................................................................................... 1554 3300 Board of Veterinary Medicine .................................................................................................. 1557 3700 Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers ............. 1560 Public Service Commission Reg. Docket No. 51, Amendment of Rules for Granting and Supervising Certificates of Public Convenience and Necessity for Water Utilities................................................................ 1563 FINAL DEPARTMENT OF AGRICULTURE Thoroughbred Racing Commission 1001 Thoroughbred Racing Rules and Regulations, Sections 6.0, 11.0 and 15.0 ........................... 1581 DEPARTMENT OF EDUCATION Office of the Secretary 502 Alignment of Local School District Curricula to the State Content Standards ........................... 1583 540 Driver Education ........................................................................................................................ 1587 Professional Standards Board 1501 Knowledge, Skills and Responsibility Based Salary Supplements for Educators .................... 1589 1516 Standard Certificate ................................................................................................................. 1593 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance DSSM: 20320 Ownership of Real Property by Institutionalized Individuals, and 20330.3 Promissory Notes, Loans and Property Agreements ................................................... 1596 20330.4.1 Long Term Care Medicaid - Annuities ....................................................................... 1601 20330.7 U.S. Savings Bonds ..................................................................................................... 1611 Title XIX, Transfer of Assets for Less Than Fair Market Value Made on or After February 8, 2006 1613 DSSM: 20350 Transfer of Assets ............................................................................................... 1613 20400.5 Irrevocable Trusts ........................................................................................................ 1613 DSSM:20910.1 Institutionalized Spouse ......................................................................................... 1619 Division of Public Health 4104 Conrad State 30/J-1 Visa Waiver Program .............................................................................. 1620 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Air and Waste Management 1113 Open Burning ........................................................................................................................... 1621 DEPARTMENT OF STATE Division of Professional Regulation 2500 Board of Pharmacy, Section 8.0, Requirements for Obtaining a Permit to Distribute Drugs on a Wholesale Basis ...................................................................................................... 1628 2500 Board of Pharmacy, Section 9.0, Hospital Pharmacy .............................................................. 1629 2700 Board of Professional Land Surveyors .................................................................................... 1630 GENERAL NOTICES Circular Letter 01-2007, Regarding Exclusion for Sole Proprietorships .................................................. 1632 CALENDAR OF EVENTS/HEARING NOTICES Dept. of Agriculture, Nutrient Management Commission, Notice of Public Comment Period ..................... 1633 Dept. of Education, Monthly Meeting and Notice of Public Hearing ............................................................ 1633 Dept. of Health and Social Services Div. of Medicaid and Med. Assist., Long Term Care Medicaid ............................................................... 1633 Dept. of Insurance, Notice of Public Comment Period ................................................................................ 1633 Dept. of Insurance, Group Coordination Benefits, Notice of Public Comment Period ................................. 1634 DNREC, Div. of Air and Waste Mgmt., Notice of Public Comment Period..................................................... 1634 Dept. of State, Div. of Professional Regulation, Notices of Public Hearings Respiratory Care Practice Advisory Council ........................................................................................... 1635 Board of Occupational Therapy .............................................................................................................. 1635 Board of Pharmacy ................................................................................................................................ 1636 Real Estate Commission ......................................................................................................................... 1636 Board of Veterinary Medicine .................................................................................................................. 1637 Board of Examiners of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers ....... 1637 PSC, Reg. Docket 51, Notice of Public Hearing...................................................................................... 1637 DEPARTMENT OF INSURANCE Statutory Authority: 18 Delaware Code, Sections 311 and 332 (18 Del.C. §§311, 332 and 6401 et seq.) 18 DE Admin. Code 1301 EMERGENCY ORDER Pursuant to 29 Del.C. §10119, it is necessary to promulgate an amendment to Regulation 1301 relating to Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims. REASONS FOR EMERGENCY ACTION A.On July 6, 2006, Senate Bill 295 was enacted as 75 Del. Laws 362 transferring regulatory oversight of managed care organizations to the Department of Insurance (“Department”) from the Department of Health and Social Services. Sections 3 and 6 of the act provided for full implementation of the act by January 6, 2007. B.The transfer of regulatory authority created the need for substantial revisions to existing regulations currently in force as well as the need to make significant changes to the case handling system for medical insurance claims, reviews and arbitrations within the Department. C.The Department was not able to complete the process of amending the existing regulations, including the requirement to meet the publication and public notice provisions of the Delaware Administrative Procedures Act within the prescribed time limit. D.If an emergency regulation is not adopted, there is the potential that numerous claims will not be able to have the statutory review allowed by Delaware law and that Delaware citizens will be at risk of having benefits delayed or denied because there is no regulatory guidance to fill the gap as a result of the transfer of regulatory authority to the Department. E.The Department has completed the work necessary to submit the proposed amended regulations for public comment and by issuing this emergency order will permit a timely transition for the review of medical claims during the time required for public comment on the proposed regulatory amendments. F.On January 8, 2007, I issued an Emergency Order adopting revisions to Regulation 1301. As a result of public comment received in response to the proposed revisions as published in the February 1, 2007 Register of Regulations, it is necessary to rescind the order of January 8, 2007 and substitute in lieu thereof, a new Emergency Order placing into effect revisions to Regulation 1301 based on the public comment received by the Department of Insurance. DECISION AND ORDER 1.Regulation 1301 as currently promulgated as an emergency regulation is rescinded and the attached revised version of Regulation 1301 is substituted in lieu thereof as a new emergency regulation effective March 15, 2007. 2.This order shall be effective until July 15, 2007 or until the attached amendment to Regulation 1301 is adopted pursuant to the Delaware Administrative Procedures Act whichever shall first occur. The Department will receive, consider and respond to petitions by any interested person for the reconsideration or revision of the emergency regulation. 3.The Department gives public notice of the proposed amendment to Regulation 1301 as required by 29 Del.C. § 10115 as follows: PUBLIC NOTICE OF PROPOSED DEPARTMENT OF INSURANCE REGULATION RELATING TO INTERNAL REVIEW, ARBITRATION AND INDEPENDENT UTILIZATION REVIEW OF HEALTH INSURANCE CLAIMS INSURANCE COMMISSIONER MATTHEW DENN hereby gives notice of proposed amendments to Department of Insurance Regulation 1301 relating to Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims. The docket number for this proposed regulation is 356. The Department of Insurance proposes to amend Regulation 1301 by rescinding the current regulation and substituting in lieu thereof revised provisions for the review and arbitration of health insurance claims. As a result of the enactment of Senate Bill 295 on July 6, 2006, it became necessary to re-promulgate Regulation 1301 to provide for the review of claims from managed care organizations formerly under the regulatory authority of the Department of Health and Social Services. The Delaware Code authority for the change is 18 Del.C. §§311, 332 and 6401 et seq. The text can also be viewed at the Delaware Insurance Commissioner’s website at www.delawareinsurance.gov and clicking on the link for “Proposed Regulations.” Any person can file written comments, suggestions, briefs, and compilations of data or other materials concerning the proposed amendment. Any written submission in response to this notice and relevant to the proposed change must be received by the Department of Insurance no later than 4:30 p.m., Wednesday, May 2, 2007 by delivering said comments to Deputy Attorney General Michael J. Rich, c/o Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.739.5566 or emailed to michael.rich@state.de.us. 4.Since the wording of the attached emergency regulation is identical to the wording the Department intends to adopt as a final regulation, public comment on the emergency regulation shall be deemed to be public comment on the proposed regulation as would otherwise be permitted under 29 Del.C. §10115. IT IS SO ORDERED this 15th day of March, 2007 Matthew Denn Insurance Commissioner 1301 Arbitration of Health Insurance Claims and Internal Review Process of Medical Insurance Carriers 1.0Purpose and Statutory Authority The purpose of this Regulation is to implement 16 Del.C. §9119, 18 Del.C. §§332, 3348, 3559E, and 18 Del.C. Ch. 23 by establishing the procedures for the arbitration of certain claims for benefits available under health insurance policies or agreements, and/or the explicit provisions of the statutes under which this regulation is promulgated. This Regulation is promulgated pursuant to 18 Del.C. §§311, 2312, and 29 Del.C. Ch. 101 and 73 Del. Laws Ch. 96. This Regulation should not be construed to create any cause of action not otherwise existing at law. 2.0Definitions 2.1Except as otherwise noted, the following definitions shall apply: “Commissioner” shall mean the Insurance Commissioner of Delaware. “Department” shall mean the Delaware Insurance Department. “Emergency care service” shall have the same meaning as contained in 18 Del.C. 3348(c) and 3559E and include: • any covered service providing for the transportation of a patient to a hospital emergency facility for an emergency medical condition; including air and sea ambulances so long as medical necessity criteria are met; and • facility and professional providers of emergency medical services in an approved emergency care facility. “Emergency medical condition” shall have the meaning assigned to it by 18 Del.C. §§3348(d) and 3559E(d). “Health insurance policy” shall have the meaning assigned to it by 18 Del.C. §332(a)8. “Insured” shall, in addition to its ordinary meaning, include the participants, subscribers or members of such health plans, health service corporations, medical care organizations or health maintenance organizations. “Insurer” or “carrier,” in addition to its ordinary meaning under 18 Del.C. §3343(a)(1), includes health plans, health service corporations, medical care organizations and health maintenance organizations subject to state insurance regulation. “IRP” shall mean an internal review process established by an insurer under 18 Del.C. §332. “Network insurer” is an insurer who has a written participation agreement with the provider to pay for emergency care services in Delaware on and after January 1, 2002. “Network provider” is a provider who has a written participation agreement with the insurer to provide emergency care services in Delaware as of the date those services were provided. All other providers of emergency care services shall be considered non-network providers. “Provider” means an individual or entity, including without limitation, a licensed physician, a licensed nurse, a licensed physician assistant and a licensed nurse practitioner, a licensed diagnostic facility, a licensed clinical facility, and a licensed hospital, who or which provides an emergency care service in this State after January 1, 2002. 3.0Insurer's Duty to Arbitrate 3.1Except for claims exempt from arbitration by law or regulation, every insurer, carrier, provider, network provider and non-network provider giving or providing health and/or emergency medical services, and/or health insurance coverage or benefits in this State shall be subject to arbitration as follows: 3.1.1For covered claims arising from the provision of emergency services under 18 Del.C. §§3348 and 3559E; and 3.1.2For appeals from decisions of an IRP under 18 Del.C. §332 by the insured. 4.0Exemption from Arbitration 4.1Health claims or appeals which involve issues of medical necessity and/or the appropriateness of services, as defined in 16 Del.C. §9119, shall be exempt from arbitration by the Department. Any claims or appeals arising under 16 Del.C. §9119 and filed with the Department shall be deemed properly filed if actually received by the Department within in the allotted statutory time and such appeals shall, within 7 days from the date the Department determines that such appeals are exempt or excluded from arbitration, be forwarded by the Department through normal state channels to the Department of Health and Social Services, or its appropriate successor agency, for external under 16 Del.C. §9119 and such other laws and regulations as are applicable to said claims or appeals. 4.218 Del.C. §§3348 and 3559E shall not apply to health insurance policies exempt from state regulation under federal law or regulation. On or before July 1, 2002, and quarterly thereafter, each insurer shall provide a list of non-exempt plan numbers, as defined in 18 Del.C. §§3348 and 3559E to the Department. The Department shall maintain a public register of such non-exempt plan numbers. The placement of a non-exempt plan number on the register shall constitute a rebuttable presumption that such non-exempt plan number is subject to the provisions of this regulation. An insurer that clearly identifies whether a plan is either exempt or non-exempt on the face of an identification or membership card shall not be required to comply with the provisions of this sub- section but only with respect to the plans for which such identification or membership cards display the group status. 4.3The provisions of this regulation shall not apply to Medicaid or any other health insurance coverage program where the review of coverage determinations are otherwise regulated by the provisions of other state or federal laws or regulations. 5.0Exclusion from Arbitration 5.1The following claims shall not be subject to arbitration under this regulation: 5.1.1Claims for which there is no jurisdiction under 18 Del.C. §332. 5.1.2Claims that are already pending before any court or other administrative agency; or 5.1.3Claims that have been exempted by the Commissioner under section 4.0 of this regulation. 5.2The Arbitration Secretary or Arbitrator is authorized to dismiss a matter upon receipt of information sufficient to establish that the claim is excluded under section 5.1 and after notice and an opportunity to respond is provided the claimant. 6.0Minimum Requirements for an Internal Review Process (IRP) In addition to the requirements set forth in 18 Del.C. §332, the following provisions shall govern the internal review process of all insurers subject to state jurisdiction offering health coverage in Delaware: 6.1All written procedures and forms utilized by a insurer shall be readable and understandable by a person of average intelligence and education. All such documents shall meet the following criteria: 6.1.1The type size shall not be smaller than 11 point; 6.1.2The type style selection shall be at the discretion of the insurer but shall be of a type that is clear and legible; 6.1.3Captions or headings shall be designed to stand out clearly; 6.1.4White space separating subjects or sections should be distinct; 6.1.5There must be included a table of contents sufficient to guide and assist the insured; 6.1.6Where appropriate definitions shall be included and shall be sufficient to clearly apply to the usage intended. 6.1.7The forms shall be written in everyday, conversational language to the extent possible to preserve the legal meaning. 6.1.8Short familiar words shall be used and sentences shall be kept as short and simple as possible. 6.2All forms relating to grievances, appeals, or other procedures relating to the IRP shall be provided as examples along with the written IRP provided to the insured by the insurer. 6.3The first notice of an IRP shall be given to all participants of an insurer within thirty (30) days of approval by the Commissioner. The annual notice thereafter shall either be upon the policy renewal date, open enrollment date, or a set date for all insureds or participants of the insurer, at the insurer's discretion. For every new policy issued after the approval of the IRP by the Commissioner, the insurer shall provide a copy of the IRP at the time, or prior to the time, the insurer sends identification cards, members handbooks or similar member materials to newly insured participants. When the insured’s dependents reside in the same household as the insured, a single notice to the principal insured shall be sufficient under this section. 6.4Under circumstances where an oral or written grievance may not contain sufficient information and the insurer requests additional information, such request shall not be burdensome or require such information as the insurer might reasonably be expected to obtain through its normal claims process. 7.0Mediation Services 7.1At the time the insurer provides a written notice of an unfavorable disposition of a claim or grievance to an insured, the insurer shall provide the insured with a written notice of mediation services offered by the Delaware Insurance Department. Such notice may be separate from or a part of the written notice of disposition of a claim or grievance. Any notice provided to an insured shall, at a minimum, contain the following information: You have the right to appeal a claim denial for medical reasons to the Delaware Department of Health and Social Services or to appeal a claim denial for non-medical reasons to the Delaware Insurance Department. The Delaware Insurance Department also provides free informal mediation services which are in addition to, but do not replace, your right to appeal this decision. You can contact the Delaware Insurance Department for information about an appeal or mediation by calling the Consumer Services Division at 800-282-8611 or 302-739-4251. You may go to the Delaware Insurance Department at The Rodney Building, 841 Silver Lake Blvd., Dover, DE 19904 between the hours of 8:30 a.m. and 4:00 p.m. to personally discuss the appeal or mediation process. All appeals must be filed within 60 days from the date you receive this notice otherwise this decision will be final. 8.0Payments for Emergencies Based on Date of Service 8.1Under 18 Del.C. §§3348 and 3559E the Commissioner shall be responsible for setting rates and charges in the event of a dispute between an insurer and a provided. In an arbitration pursuant to said statutes, the Arbitrator shall consider the following guidelines as a basis for determining the rate or charge for a disputed service unless the evidence adduced under section 9.5 at arbitration requires a determination on a different basis. 8.2Payments for existing emergency care services as of July 1, 2002. Effective on July 1, 2002, under circumstances where the contract between the provider and insurer was terminated after January 1, 2002, insurers will pay such provider the highest contract rate for the services provided during the term of the contract for services identified in 18 Del.C. §§3348 or 3559E, adjusted annually to reflect changes in payments by that insurer to its network providers and subject to such rate adjustments as may be published in bulletins by the Commissioner from time to time. Effective on July 1, 2002, insurers will pay non-network providers who were not network providers on or after January 1, 2002 the higher of either (1) the highest payment rate paid by the insurer to the non-network provider for performance of the same service; or (2) the highest undisputed amount regularly paid by any network insurer to the non-network provider for performance of the same service. All payments pursuant to this section are subject to reduction based on the insured's obligations for co-payments or deductibles. 8.3Payments for new emergency care services after July 1, 2002. Each insurer shall pay non-network providers for each emergency medical care service after July 1, 2002, an amount equal to the lesser of the non-network provider billed fee for such new service or the highest negotiated rate between the insurer and any network provider for the service based on the appropriate CPT code until such time as the provider becomes a network provider pursuant to a written participation agreement. Thereafter payments will be based on the new negotiated rates. 8.3Payments for new emergency care services that receive CPT codes on or after July 1, 2002. Effective on or after July 1, 2002, for services that do not have a CPT code or other identifiable code number, each insurer shall pay non-network providers the lesser of: the provider billed fee, or the highest negotiated network rate received by the provider from any insurer for the performance of the same service. When and if the provider becomes a network provider with insurer, payments will be based on the negotiated rate. 8.4Subsequent to January 1, 2002, changes in the membership of a provider group will not affect the remaining group member(s) insofar as the application of this section to payments for emergency services. In the absence of a contract provision to the contrary, a physician’s existing network status and payment rights shall not be transferable to that physician’s new group or practice. 9.0General Procedures Applicable to Arbitrations 9.1In arbitration proceedings and practice, the person(s), firm(s) or entity(ies) who initiates the proceeding by filing a petition for arbitration of a disputed claim or issue with the Commissioner shall be known as the “claimant(s),” and the person(s), firm(s) or entity(ies) against whom such claim or claims is asserted shall be known as “respondent(s).” 9.2A petition for arbitration shall be in writing and filed in the office of the Commissioner on or before the sixtieth day following the claimant's receipt of the written adverse determination or denial. 9.3The parties must provide a brief statement certifying the service of all filed papers with the manner, date and address of service. A certification of service using Form C in the appendix to this Regulation shall be satisfactory if mailed to the opposing party as required by this Regulation. 9.4Notice and Manner of Service. 9.4.1Notice and manner of service, except service of the original petition, is sufficient and complete if properly addressed, upon mailing the same with prepaid first class U.S. Postage. 9.4.2Service of an original petition shall be by Certified U.S. Postage and Return receipt requested or hand delivery to the respondent and is complete upon receipt by addressee or an employee in respondent's place of business. 9.5In any arbitration pursuant to 18 Del.C. §§3348 or 3559E, the Arbitrator shall, at a minimum, receive evidence relating to the following items: 9.5.1The highest amount of money paid by the insurer to a provider for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 9.5.2The lowest amount of money paid by the insurer to a provider for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 9.5.3The highest amount of money received by a provider from the insurer for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 9.5.4The lowest amount of money received by a provider from the insurer for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 9.5.5The number of times during the preceding twelve months that the insurer experienced a dispute or disagreement with respect to the payment for the particular service in a comparable medical facility where the service was provided and the outcome of such disputes or disagreements. 9.5.6Such information as may be provided to the Arbitrator pursuant to an arbitration shall presumptively be considered trade secret or confidential financial information under the Delaware Freedom of Information Act and shall not be disclosed to or available at any time to any person, firm or entity not involved in the arbitration. Likewise, any personal health information introduced into evidence as part of the arbitration shall not be disclosed to or available at any time to any person, firm or entity not involved in the arbitration. 9.6In arbitrations commenced under 18 Del.C. §332, the insurer shall pay the costs and fees of arbitration which exceed the non-refundable filing fee of $75.00 required to commence arbitration. 9.7In arbitrations commenced under 18 Del.C. §§3348 or 3559E, the non-prevailing party(ies) shall pay the costs and fees of arbitration which exceed the non-refundable filing fee of $75.00 required to commence arbitration. 10.0Commencement of Arbitration 10.1An arbitration will commence upon the filing of an original and three copies of a petition, in acceptable form with the Commissioner's Arbitration Secretary with the supporting documents or other evidence attached thereto and payment of the non-refundable filing fee of $75.00. The claimant shall, at the same time, send a copy of the petition and supporting documents to the respondent as required in section 9.0 The Arbitration Secretary may refuse to accept any petition which fails to meet the jurisdictional requirements for arbitration. The failure to file a petition which meets the jurisdictional requirements for arbitration shall not toll the time allowed to file for arbitration. 10.2Within 20 days of receipt of the petition, the respondent shall file an original and three copies of a response, in acceptable form, with the Arbitration Secretary with supporting documents or other evidence attached. The respondent shall, at the same time, send a copy of the response and supporting documents to the claimant as required in section 9.0 The Arbitration Secretary may return any non-conforming response. If the Arbitration Secretary or Arbitrator determines at any time that the petition fails to meet the jurisdictional requirements of the statute or this regulation or is meritless on its face, the petition may be summarily dismissed by the Arbitration Secretary or Arbitrator and notice of such dismissal shall be provided to the parties. The non-prevailing party may seek to have the petition re-opened under the provisions of 10.3 of this section. 10.3If the respondent fails to file a response in a timely fashion, the Arbitration Secretary after verifying proper service and notice to the parties may assign the matter to the next scheduled Arbitrator for summary disposition. The Arbitrator may determine the matter in the nature of a default judgment after establishing that the petition is properly supported and was properly served on respondent. The Arbitration Secretary or Arbitrator may allow the re-opening of the matter to prevent a manifest injustice. A request for re-opening must be made no later than 5 business days after notice of the default judgment. 10.4Upon the filing of a proper response, the Arbitration Secretary shall assign and schedule the matter for a hearing before an Arbitrator. 11.0Arbitration The Commissioner shall appoint a single arbitrator of suitable background and experience to hear any case presented for arbitration under this regulation. No arbitrator may be selected where the arbitrator's employer or client is a party. The Arbitrator shall act as the Commissioner's designee and shall issue a written opinion as required by 29 Del.C. §10126. 12.0Arbitration Hearings 12.1The arbitration hearing shall be scheduled and notice of the hearing shall be given the parties at least 10 business days prior to the hearing. Neither party is required to appear and may rely on the filed papers. 12.2The purpose of Arbitration is an attempt to effect a prompt and inexpensive resolution of claims after reasonable attempts by the parties to resolve the matter. In keeping with that goal arbitration hearings shall be conducted in accordance with the provisions of the 29 Del.C. Ch. 101. The arbitration hearing is not a substitute for a civil trial. Accordingly, The Delaware Rules of Evidence will be used for general guidance but will not be strictly applied. Hearings are to be limited, to the maximum extent possible, to each party being given the opportunity to explain their view of the previously submitted evidence in support of the pleading and to answer questions by the Arbitrator. If the Arbitrator allows any brief testimony, the Arbitrator shall allow brief cross examination or other response by the opposing party. Because the testimony may involve evidence relating to personal health information that is confidential and protected by other state or federal laws from public disclosure, the arbitration hearings shall be closed unless otherwise agreed by the parties. 12.3The Arbitrator may contact, with the parties' consent, individuals or entities identified in the papers by telephone in or outside of the parties' presence for information to resolve the matter. 12.4The Arbitrator is to consider the matter based on the submissions of the parties and information otherwise obtained by the Arbitrator in accordance with this regulation. The Arbitrator shall not consider any matter not contained in the original or supplemental submissions of the parties that has not been provided to the opposing party with at least 5 business days notice, except claims of a continuing nature which are set out in the filed papers. 12.5The Arbitrator shall render his/her decision and mail a copy of the decision to the parties within 45 days of the filing of the petition. Upon mailing said decision, the time limits imposed by 29 Del.C. §10126 shall apply for the parties' review and execution of the order by the Commissioner. 13.0Appeals 13.1Appeals from the decision of the Commissioner shall be taken to the Superior Court of the State of Delaware by filing a copy of the Notice of Appeal, as filed in the Superior Court, with the Arbitration Secretary. 13.2The Rules of Civil Procedure of the Superior Court shall govern all appeal procedures. 13.3Any appeal which, as a matter of law, has to be filed in a court other than the Superior Court, shall be subject to the rules of such court and the appellant shall file a copy of the Notice of Appeal to such court with the Arbitration Secretary. 14.0Confidentiality of Health Information Nothing in this Regulation shall supercede any federal or state law or regulation governing the privacy of health information. 15.0Effective Date This regulation shall become effective on the 11 day of March, 2002. Adopted And Signed By The Commissioner, February 15, 2002 Appendix Regulation 1301 (Formerly Regulation 11) Form A PETITION For Health Insurance Arbitration Your Name ________________________________________________ Your Address ________________________________________________ Your Telephone Number ________________________________________________ Were You: _____Patient _____Spouse _____Parent or Guardian _____Power of Attorney _____Other Name Of The Insurance Co. Against Which You Are Making A Claim _______________________________________ Case Number ________________________________________________ Address ________________________________________________ Telephone Number ________________________________________________ Name Of The Policyholder If Other Than You ___________________________________________ Address, If Different From Above ________________________________________________ Date Of Determination Of Independent Review Process ________________________________ Amount Of Your Claim ______________________________________________ Dates Of Service (From) ___________________________ (To) _________________________________ Briefly Describe The Basis For Your Claim___________________________________________ ________________________________________________ Prior To The Hearing, It Is Necessary That You Submit The Appropriate Documents To Support Your Petition To The Delaware Insurance Department And To The Opposing Party. Parties May Present Witnesses In Their Behalf At The Hearing Provided That Due Notice Is Given. Please List The Name, Address And Telephone Number Of All Witnesses You Expect To Appear On Your Behalf On A Separate Sheet And Attach It To This Form. If A settlement Has Been Offered To You, How Much Was It:_____________________________ Who Will Represent You At The Hearing, If Applicable Name ________________________________________________ Address ________________________________________________ Telephone ________________________________________________ Under Delaware Law. Any Person Who Knowingly, And With Intent To Injure, Defraud, Or Deceive Any Insurer Who Files A Statement Or Claim Containing Any False, Incomplete, Or Misleading Information Is Guilty Of A Felony Your Signature _________________________________date______ Return The Original And Three Copies To: Delaware Insurance Department, 841 Silver Lake Boulevard, Dover, Delaware 19904 Regulation 1301 (Formerly Regulation 11) Form B Response To Petition For Health Insurance Arbitration Case Number ________________________________________________ Claimant's Name ________________________________________________ Policyholder'sName (If Different From Claimant) _________________________________________ _ Address (If Different From Claimant) _______________________________________ ________________________________________________ Respondent's Name ________________________________________________ Address ________________________________________________ Telephone ________________________________________________ If The Petition Relates To The Services Of An Individual Physician, Include The Following Information: Physician's Name And Practice Group___________________________________________ Address ________________________________________________ Telephone ________________________________________________ Policy Number__________________________________________ ___________________________________ Claim Number Assigned By Respondent ________________________________________________ Date Of Determination Of Independent Review Process ________________________________ Amount Of Claim Admitted By Respondent ______________________________________________ Dates Of Service (From)______________________________(To) Briefly Describe The Basis For Your Response/objection To The Petition______________ ________________________________________________ _____________________________________________ Prior To The Hearing, It Is Necessary That You Submit The Appropriate Documents To Support Your Petition To The Delaware Insurance Department And To The Opposing Party. Parties May Present Witnesses In Their Behalf At The Hearing Provided That Due Notice Is Given. Please List The Name, Address And Telephone Number Of All Witnesses You Expect To Appear On Your Behalf On A Separate Sheet And Attach It To This Form. If A Settlement Has Been Offered To You, How Much Was It:___________________________ Who Will Represent You At The Hearing Name___________________________________________ Address ________________________________________________ Telephone ________________________________________________ Under Delaware Law. Any Person Who Knowingly, And With Intent To Injure, Defraud, Or Deceive Any Insurer Who Files A Statement Or Claim Containing Any False, Incomplete, Or Misleading Information Is Guilty Of A Felony Your Signature________________________date_____________ Return The Original And Three Copies To: Delaware Insurance Department, 841 Silver Lake Boulevard, Dover, Delaware 19904 Regulation 11-form C Proof Of Service Of Papers Required For Arbitration I Certify That On The ________day Of _____________________. 20______, In Addition To The Filing Provided To The Insurance Commissioner, I Sent A Copy Of The _____ Complaint For Arbitration With Required Attachments _____ Response To The Complaint For Arbitration With Required Attachments Other (Please Describe)______________________________ ________________________________________________ To The Following Person(S) By Certified Mail, Return Receipt Requested: Name ________________________________________________ Address ________________________________________________ Name ________________________________________________ Address ______________________________________________ ________________________________________________ The Following Is Required By The Person Making This Certification Name Of Party______________________________ Signature Of Party___________________________ Address Of Party ___________________________ ________________________________________________ Note: Save All Proofs Of Mailing And Return Receipt(s) For Verification By The Arbitrator. 1301 Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims 1.0Purpose and Statutory Authority 1.1The purpose of this Regulation is to implement 18 Del.C. §§332, 6416 and 6417 which require health insurance carriers to establish a procedure for internal review of a carrier’s adverse coverage determination and which require the Delaware Insurance Department to establish and administer procedures for arbitration and independent utilization review upon completion of the carrier’s internal review process. This Regulation also implements 18 Del.C. §§3349 and 3565, which require the Delaware Insurance Department to establish and administer procedures for arbitration of disputes between health insurance carriers and non-network providers of emergency care services. This Regulation is promulgated pursuant to 18 Del.C. §§311, 332, 3349, 3565 and 6408 and 29 Del.C., Ch. 101. This Regulation should not be construed to create any cause of action not otherwise existing at law. 2.0Definitions 2.1The following words and terms, when used in this regulation, should have the following meaning unless the context clearly indicates otherwise: “Adverse determination” means a decision by a carrier to deny (in whole or in part), reduce, limit or terminate health insurance benefits. “Appeal” means a request for external review of a carrier’s final coverage decision through the Independent Health Care Appeals Program. “Appropriateness of services” means an appeal classification for adverse determinations that are made based on identification of treatment as cosmetic, investigational, experimental or not an appropriate or preferred treatment method or setting for the condition for which treatment is sought. “Authorized representative” means an individual who a covered person willingly acknowledges to represent his interests during the internal review process, arbitration and/or an appeal through the Independent Health Care Appeals Program, including but not limited to a provider to whom a covered person has assigned the right to collect sums due from a carrier for health care services rendered by the provider to the covered person. A carrier may require the covered person to submit written verification of his consent to be represented. If a covered person has been determined by a physician to be incapable of assigning the right of representation, the covered person may be represented by a family member or a legal representative. “Carrier” means any entity that provides health insurance in this State. Carrier includes an insurance company, health service corporation, managed care organization and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. Carrier also includes any third-party administrator or other entity that adjusts, administers or settles claims in connection with health insurance. “Covered person” means an individual and/or family who has entered into a contractual arrangement, or on whose behalf a contractual arrangement has been entered into, with a carrier, pursuant to which the carrier provides health insurance for such person or persons. “Department” means the Delaware Insurance Department. “Emergency care provider” means a provider of emergency care services. “Emergency care services” means those services identified in 18 Del.C. §§3349(c) and 3565(c) including: A.Any covered service providing for the transportation of a patient to a hospital emergency facility for an emergency medical condition including air and sea ambulances so long as medical necessity criteria are met; and B.Facility and professional providers of emergency medical services in an approved emergency care facility. “Emergency medical condition” shall have the meaning assigned to it by 18 Del.C. §§3349(d) and 3565(d). “Final coverage decision” means the decision by a carrier at the conclusion of its internal review process upholding, modifying or reversing its adverse determination. “Grievance” means a request by a covered person or his authorized representative that a carrier review an adverse determination by means of the carrier’s internal review process. “Health care services” means any services or supplies included in the furnishing to any individual of medical or dental care, or hospitalization or incidental to the furnishing of such care or hospitalization, as well as the furnishing to any individual of any and all other services for the purpose of preventing, alleviating, curing or healing human illness, injury, disability or disease. “Health insurance” means a plan or policy issued by a carrier for the payment for, provision of, or reimbursement for health care services. “Independent Health Care Appeals Program (“IHCAP”)” means a program administered by the Department that provides for an external review by an Independent Utilization Review Organization of a carrier’s final coverage decision based on medical necessity or appropriateness of services. “Independent Utilization Review Organization (“IURO”)” means an entity that conducts independent external reviews of a carrier’s final coverage decisions resulting in a denial, termination, or other limitation of covered health care services based on medical necessity or appropriateness of services. “Internal review process (“IRP”)” means a procedure established by a carrier for internal review of an adverse determination.“Medical necessity” means providing of health care services or products that a prudent physician would provide to a patient for the purpose of diagnosing or treating an illness, injury, disease or its symptoms in a manner that is: A.In accordance with generally accepted standards of medical practice; B.Consistent with the symptoms or treatment of the condition; and C.Not solely for anyone’s convenience. “Network carrier” is a carrier that has a written participation agreement with an emergency care provider to pay for emergency care services in Delaware. “Network emergency care provider” is an emergency care provider who has a written participation agreement with the carrier to provide emergency care services or governing payment of emergency care services in Delaware as of the date those services were provided. All other emergency care providers shall be considered non-network emergency care providers. “Provider” means an individual or entity, including without limitation, a licensed physician, a licensed nurse, a licensed physician assistant and a licensed nurse practitioner, a licensed diagnostic facility, a licensed clinical facility, and a licensed hospital, who or which provides health care services in this State. 3.0Minimum Requirements for an Internal Review Process (IRP) In addition to the requirements set forth in 18 Del.C. §332, the following provisions shall govern the internal review process of all carriers offering health insurance in Delaware: 3.1All written procedures and forms utilized by a carrier shall be readable and understandable by a person of average intelligence and education. All such documents shall meet the following criteria: 3.1.1The type size shall not be smaller than 11 point; 3.1.2The type style selection shall be at the discretion of the carrier but shall be of a type that is clear and legible; 3.1.3Captions or headings shall be designed to stand out clearly; 3.1.4White space separating subjects or sections should be distinct; 3.1.5There must be included a table of contents sufficient to guide and assist the covered person or his authorized representative; 3.1.6Where appropriate, definitions shall be included, shall be sufficient to clearly apply to the usage intended, and shall not conflict with the definitions contained in this regulation. 3.1.7The forms shall be written in everyday, conversational language to the extent possible to preserve the legal meaning. 3.1.8Short familiar words shall be used and sentences shall be kept as short and simple as possible. 3.2The carrier shall provide all forms relating to grievances, appeals, arbitration or other procedures relating to IRP as examples along with the written notice of IRP provided to the covered person. 3.3Written notice. 3.3.1For any IRP not previously approved by the Department, the carrier shall provide written notice of the IRP to all covered persons within 30 days of approval by the Department. 3.3.2The carrier shall provide the annual notice required by 18 Del.C. §332(c)(1) to covered persons either upon the policy renewal date, open enrollment date, or a set date for all covered persons, in the carrier’s discretion. 3.3.3For every new policy issued after the Department’s approval of the IRP, the carrier shall provide covered persons with a copy of the IRP at the time, or prior to the time, the carrier sends identification cards, member handbooks or similar member materials to newly covered persons. 3.3.4When a covered person’s dependents reside in the same household as the covered person, a single notice to the principal covered person shall be sufficient under this section. 3.4Under circumstances where an oral or written grievance may not contain sufficient information and the carrier requests additional information, such request shall not be burdensome or require such information as the carrier might reasonably be expected to obtain through its normal claims process. 4.0Mediation Services At the time a carrier provides to a covered person written notice of a carrier’s final coverage decision, if the decision does not authorize payment of the claim in its entirety, the carrier shall provide the covered person with a written notice of mediation services offered by the Department. Such notice may be separate from or a part of the written notice of the carrier’s decision. Any notice provided to a covered person shall, at a minimum, contain the following language: “You have the right to seek review of a claim denial through the Delaware Insurance Department. The Delaware Insurance Department also provides free informal mediation services which are in addition to, but do not replace, your right to review of this decision. You can contact the Delaware Insurance Department for information about claim denial review or mediation by calling the Consumer Services Division at 800-282-8611 or 302-739-4251. You may go to the Delaware Insurance Department at The Rodney Building, 841 Silver Lake Blvd., Dover, DE 19904 between the hours of 8:30 a.m. and 4:00 p.m. to personally discuss the review or mediation process. All requests for review through procedures established by the Delaware Insurance Department must be filed within 60 days from the date you receive this notice; otherwise, this decision will be final.” 5.0Options for External Review of a Carrier's Final Coverage Decision 5.1A covered person or his authorized representative may request review of a carrier’s final coverage decision through the Department by filing either a Petition for Arbitration or filing an appeal through the Independent Health Care Appeals Program, depending on the basis for the carrier’s final coverage decision as set forth herein. 5.2Arbitration (sections 6.0 and 7.0 of this regulation). Except for claims exempt from arbitration by law or regulation, every carrier, provider, network emergency care provider and non-network emergency care provider as defined in this regulation shall submit to arbitration the following: 5.2.1covered claims arising from the provision of emergency care services under 18 Del.C. §§3349 and 3565; and 5.2.2final coverage decisions denying claims based on grounds other than medical necessity or appropriateness of services. 5.3Independent Health Care Appeals Program (sections 8.0 through 11.0 of this regulation). A carrier shall submit all requests for review of final coverage decisions denying claims based, in whole or in part, on medical necessity or appropriateness of services (“appeals”) to the Independent Health Care Appeals Program (“IHCAP”). 5.3.1For cases in which a carrier’s final coverage decision should be reviewed through arbitration and through IHCAP, or where there is an ambiguity as to whether review should be through arbitration or through IHCAP, review shall be conducted through IHCAP. 5.4Exemption from Arbitration. 18 Del.C. §§3349(b) and 3565(b) shall not apply to health insurance policies exempt from state regulation under federal law or regulation. On a quarterly basis, each carrier shall provide a list of non-exempt plan numbers to the Department. The Department shall maintain a public register of such non-exempt plan numbers. The placement of a non-exempt plan number on the register shall constitute a rebuttable presumption that such non-exempt plan number is subject to the provisions of this regulation. A carrier that clearly identifies whether a plan is either exempt or non-exempt on the face of an identification or membership card shall not be required to comply with the provisions of this sub-section but only with respect to the plans for which such identification or membership cards display the group status. 5.5The provisions of this regulation shall not apply to Medicaid or any other health insurance program where the review of coverage determinations is otherwise regulated by the provisions of other state or federal laws or regulations. 6.0Arbitration Procedure 6.1Petition for Arbitration 6.1.1A covered person or his authorized representative may request review of a carrier’s final coverage decision through arbitration by delivering a Petition for Arbitration to the Department so that it is received by the Department no later than 60 days after the covered person’s receipt of written notice of the carrier’s final coverage decision. 6.1.2A covered person or his authorized representative must deliver to the Department an original and three copies of the Petition for Arbitration. 6.1.3At the time of delivering the Petition for Arbitration to the Department, a covered person or his authorized representative must also: 6.1.3.1send a copy of the Petition to the carrier by certified mail, return receipt requested; 6.1.3.2deliver to the Department a Proof of Service confirming that a copy of the Petition has been sent to the carrier by certified mail, return receipt requested; and 6.1.3.3deliver to the Department a non-refundable $75.00 filing fee. 6.1.4The Department may refuse to accept any Petition that is not timely filed or does not otherwise meet the criteria for arbitration. If the subject of the Petition is appropriate for review through IHCAP, the Department shall advise the covered person or his authorized representative of the procedure to obtain IHCAP review. If the subject of the Petition is appropriate for IHCAP review, the Petition for Arbitration will be treated as an IHCAP appeal for purposes of determining whether the IHCAP appeal is timely filed in accordance with section 8.1 of this regulation. 6.2Response to Petition for Arbitration 6.2.1Within 20 days of receipt of the Petition, the carrier must deliver to the Department an original and three copies of a Response with supporting documents or other evidence attached. 6.2.2At the time of delivering the Response to the Department, the carrier must also: 6.2.2.1send a copy of the Response and supporting documentation to the covered person or his authorized representative by first class U.S. mail, postage prepaid; and 6.2.2.2deliver to the Department a Proof of Service confirming that a copy of the Response was mailed to the covered person or his authorized representative. 6.2.3The Department may return any non-conforming Response to the carrier. 6.2.4If the carrier fails to deliver a Response to the Department in a timely fashion, the Department, after verifying proper service, and with written notice to the parties, may assign the matter to the next scheduled Arbitrator for summary disposition. 6.2.4.1The Arbitrator may determine the matter in the nature of a default judgment after establishing that the Petition is properly supported and was properly served on the carrier. 6.2.4.2 The Arbitrator may allow the re-opening of the matter to prevent a manifest injustice. A request for re-opening must be made no later than seven days after notice of the default judgment. 6.3Summary Dismissal of Petition by the Department 6.3.1If the Department determines that the subject of the Petition is not appropriate for arbitration or IHCAP or is meritless on its face, the Department may summarily dismiss the Petition and provide notice of such dismissal to the parties. 6.4Appointment of Arbitrator 6.4.1Upon receipt of a proper Response, the Department shall assign an Arbitrator who shall schedule the matter for a hearing so that the Arbitrator can render a written decision within 45 days of the delivery to the Department of the Petition for Arbitration. 6.4.2The Arbitrator shall be of suitable background and experience to decide the matter in dispute and shall not be affiliated with any of the parties or with the provider whose service is at issue in the dispute. 6.5Arbitration Hearing 6.5.1The Arbitrator shall give notice of the arbitration hearing date to the parties at least 10 days prior to the hearing. The parties are not required to appear and may rely on the papers delivered to the Department. 6.5.2The arbitration hearing is to be limited, to the maximum extent possible, to each party being given the opportunity to explain their view of the previously submitted evidence and to answer questions by the Arbitrator. 6.5.3If the Arbitrator allows any brief testimony, the Arbitrator shall allow brief cross- examination or other response by the opposing party. 6.5.4The Delaware Uniform Rules of Evidence will be used for general guidance but will not be strictly applied. 6.5.5Because the testimony may involve evidence relating to personal health information that is confidential and protected by state or federal laws from public disclosure, the arbitration hearing shall be closed unless otherwise agreed by the parties. 6.5.6The Arbitrator may contact, with the parties' consent, individuals or entities identified in the papers by telephone in or outside of the parties' presence for information to resolve the matter. 6.5.7The Arbitrator is to consider the matter based on the submissions of the parties and information otherwise obtained by the Arbitrator in accordance with this regulation. The Arbitrator shall not consider any matter not contained in the original or supplemental submissions of the parties that has not been provided to the opposing party with at least five days notice, except claims of a continuing nature that are set out in the filed papers. 6.6Arbitrator’s Written Decision. 6.6.1The Arbitrator shall render his decision and mail a copy of the decision to the parties within 45 days of the filing of the Petition. 6.6.2The Arbitrator’s decision is binding upon the carrier except as provided in 18 Del.C. §332(g). 6.7Arbitration Costs. 6.7.1In arbitrations commenced under 18 Del.C. §332, the carrier shall pay the costs and fees of arbitration which exceed the non-refundable filing fee of $75.00 required to commence arbitration. 6.7.2In arbitrations commenced under 18 Del.C. §§3349 or 3565, the non-prevailing party(ies) shall pay the costs and fees of arbitration which exceed the non-refundable filing fee of $75.00 required to commence arbitration. 7.0Special Provisions Applicable to Arbitration Pursuant to 18 Del.C. §§3349 and 3565 7.1In any arbitration pursuant to 18 Del.C. §§3349 or 3565, the Arbitrator shall, at a minimum, receive evidence relating to the following items: 7.1.1The highest amount of money paid by the carrier to any emergency care provider for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 7.1.2The lowest amount of money paid by the carrier to any emergency care provider for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 7.1.3The highest amount of money received by the non-network emergency care provider from any carrier for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 7.1.4The lowest amount of money received by the non-network emergency care provider from any carrier for the particular service in a comparable medical facility where the service was provided during the preceding twelve months; 7.1.5The number of times during the preceding twelve months that the carrier experienced a dispute or disagreement with respect to the payment for the particular service in a comparable medical facility where the service was provided, and the outcome of such disputes or disagreements. 7.2The information specified in section 7.1 of this regulation and provided to the Arbitrator shall presumptively be considered trade secret or confidential financial information under the Delaware Freedom of Information Act and shall not be disclosed to or available at any time to any person, firm or entity not involved in the arbitration. 7.3The Arbitrator shall consider the following guidelines as a basis for determining the rate or charge for a disputed service unless the evidence adduced at arbitration requires a determination on a different basis: 7.3.1Payments for emergency services to a non-network emergency care provider who was a network emergency care provider at any time prior to the date the provider delivered the emergency care services which are the subject of the arbitration. A carrier shall pay such non-network emergency care provider the higher of either (1) the highest contract rate for the services provided during the term of the provider’s contract with the insurer, subject to such rate adjustments as may be published in bulletins by the Commissioner from time to time, or (2) the highest undisputed amount regularly paid by any network insurer to the non-network provider for performance of the same service. All payments pursuant to this section are subject to reduction based on the insured’s obligations for co-payments or deductibles. 7.3.2Other payments for emergency care services with CPT codes. A carrier shall pay non- network emergency care providers who were never network providers with the carrier an amount equal to the lesser of the non-network emergency care provider billed fee for such service or the highest negotiated rate between the carrier and any network provider for the service based on the appropriate CPT code until such time as the non-network provider becomes a network provider pursuant to a written participation agreement. Thereafter payments will be based on the new negotiated rates. 7.3.3Payments for emergency care services without CPT codes. For emergency care services that do not have a CPT code or other identifiable code number, a carrier shall pay non-network emergency care providers the lesser of the non-network emergency care provider billed fee, or the highest negotiated network rate received by the non-network provider from any carrier for the performance of the same service. When and if the non-network provider becomes a network provider, payments will be based on the negotiated rate. 7.3.4Changes in the membership of a provider group will not affect the remaining group member(s) insofar as the application of this section to payments for emergency care services. In the absence of a contract provision to the contrary, a physician’s existing network status and payment rights shall not be transferable to that physician’s new group or practice. 7.4Duty to Arbitrate. Every carrier and provider shall submit to arbitration pursuant to this Section 7.0 all fee disputes arising from the provision of emergency care services under 18 Del.C. §3349 and 3565, except as provided in Section 5.4. 8.0IHCAP Procedure 8.1A covered person or his authorized representative may request review of a final coverage decision based on medical necessity or appropriateness of services by filing an appeal with the carrier within 60 days of receipt of the final coverage decision. 8.2Upon receipt of an appeal, the carrier shall transmit the appeal electronically or by facsimile to the Department as soon as possible, but within no more than three business days, and shall send a hard copy of the request to the Department by mail. 8.3Within five calendar days of receipt of an appeal, the Department shall assign an approved, impartial Independent Utilization Review Organization to review the final coverage decision and shall notify the carrier. 8.4The assigned IURO shall, within five calendar days of assignment, notify the covered person or his authorized representative in writing by certified or registered mail that the appeal has been accepted for external review. 8.4.1The notice shall include a provision stating that the covered person or his authorized representative may submit additional written information and supporting documentation that the IURO shall consider when conducting the external review. 8.4.2The covered person or his authorized representative shall submit such written documentation to the IURO within seven calendar days following the date of receipt of the notice. 8.4.3Upon receipt of any information submitted by the covered person or his authorized representative, the assigned IURO shall as soon as possible, but within no more than two business days, forward the information to the carrier. 8.4.4The IURO must accept additional documentation submitted by the carrier in response to additional written information and supporting documentation from the covered person or his authorized representative. 8.5Within seven calendar days after the receipt of the notification required in section 8.3, the carrier shall provide to the assigned IURO the documents and any information considered in making the final coverage decision. 8.5.1If the carrier fails to submit documentation and information or fails to participate within the time specified, the assigned IURO may terminate the external review and make a decision, with the approval of the Department, to reverse the final coverage decision. 8.6The external review may be terminated if the carrier decides to reverse its final coverage decision and provide coverage or payment for the health care service that is the subject of the appeal. 8.6.1Immediately upon making the decision to reverse its final coverage decision, the carrier shall notify the covered person or his authorized representative, the assigned IURO, and the Department in writing of its decision. The assigned IURO shall terminate the external review upon receipt of the written notice from the carrier. 8.7Within 45 days after the IURO’s receipt of an appeal, the assigned IURO shall provide written notice of its decision to uphold or reverse the final coverage decision to the covered person or his authorized representative, the carrier and the Department, which notice shall include the following information: 8.7.1the qualifications of the members of the review panel; 8.7.2a general description of the reason for the request for external review; 8.7.3the date the IURO received the assignment from the Department to conduct the external review; 8.7.4the date(s) the external review was conducted; 8.7.5the date of its decision; 8.7.6the principal reason(s) for its decision; and 8.7.7references to the evidence or documentation, including practice guidelines and clinical review criteria, considered in reaching its decision. 8.8The decision of the IURO is binding upon the carrier except as provided in 18 Del.C. §6416(b). 9.0Expedited IHCAP Procedure 9.1A covered person or his authorized representative may request an expedited appeal at the time the carrier issues its final coverage decision if the covered person suffers from a condition that poses an imminent, emergent or serious threat or has an emergency medical condition. 9.2At the time the carrier receives request for an expedited appeal, the carrier shall immediately transmit the appeal electronically or by facsimile to the Department and shall send a hard copy to the Department by mail. 9.3If the Department determines that the review meets the criteria for expedited review, the Department shall assign an approved, impartial IURO to conduct the external review and shall notify the carrier. 9.4At the time the carrier receives the notification of the assigned IURO, the carrier shall provide or transmit all necessary documents and information considered in making its final coverage decision to the assigned IURO electronically, by telephone, by facsimile or any other available expeditious method. 9.5As expeditiously as the covered person’s medical condition permits or circumstances require, but in no event more than 72 hours after the IURO’s receipt of the expedited appeal, the IURO shall make a decision to uphold or reverse the final coverage decision and immediately notify the covered person or his authorized representative, the carrier, and the Department of the decision. 9.6Within two calendar days of the immediate notification, the assigned IURO shall provide written confirmation of its decision to the covered person or his authorized representative, the carrier, and the Department. 9.7The decision of the IURO is binding upon the carrier except as provided in 18 Del.C. §6416(b). 10.0Refusal or Dismissal of IHCAP Appeal 10.1 The Department may refuse to accept any appeal that is not timely filed or does not otherwise meet the criteria for IHCAP review. If the subject of the appeal is appropriate for arbitration, the Department shall advise the covered person or his authorized representative of the arbitration procedure. If the subject of the appeal is appropriate for arbitration, the appeal shall be treated as a Petition for Arbitration for purposes of determining whether the Petition is timely filed in accordance with section 6.1.1 of this regulation. 10.2Carrier’s motion to dismiss an IHCAP appeal. 10.2.1A carrier may move to dismiss an IHCAP appeal if the carrier believes: 10.2.1.1the appeal concerns a benefit that is the subject of an express written exclusion from the covered person’s health insurance; 10.2.1.2the appeal is appropriate for arbitration; or 10.2.1.3the appeal should be dismissed because it is inappropriate for IHCAP review as explained in a sworn statement by an officer of the carrier. 10.2.2The carrier’s motion to dismiss must be made in writing at the time the carrier transmits the appeal to the Department and must include any necessary supporting documentation. 10.2.3The Department shall review the appeal and motion for dismissal and may, in its discretion: 10.2.3.1dismiss the appeal and notify the covered person or his authorized representative in writing that the appeal is inappropriate for the IHCAP; or 10.2.3.2appoint an IURO to conduct a full external review. 11.0IHCAP Costs 11.1All costs for IHCAP review by an IURO, whether the review is preliminary, or partially or fully completed, shall be borne by the carrier. 11.2The carrier shall reimburse the Department for the cost of the IHCAP review within 90 calendar days of receipt of the decision by the IURO or within 90 days of termination of review by the IURO by other means. 12.0Approval of Independent Utilization Review Organizations 12.1The Department shall approve IUROs eligible to be assigned to conduct IHCAP reviews as provided in 18 Del.C. §6417(a). 12.2An IURO seeking approval to conduct IHCAP reviews shall submit an application to the Department that includes the information required by 18 Del.C. §§6417(c)(1), 6417(c)(2), 6417(c)(4) and 6417(c)(4)(d). 12.3The Department shall maintain a current list of approved IUROs. 13.0Carrier Recordkeeping and Reporting Requirements 13.1A carrier shall maintain written or electronic records documenting all grievances, Petitions for Arbitration and appeals for IHCAP review including, at a minimum, the following information: 13.1.1For each grievance: 13.1.1.1the date received; 13.1.1.2name and plan identification number of the covered person on whose behalf the grievance was filed; 13.1.1.3a general description of the reason for the grievance; and 13.1.1.4the date and description of the final coverage decision. 13.1.2For each Petition for Arbitration: 13.1.2.1the date the Petition was filed; 13.1.2.2name and plan identification number of the covered person on whose behalf the Petition was filed; 13.1.2.3a general description of the reason for the Petition; and 13.1.2.4date and description of the Arbitrator’s decision or other disposition of the Petition. 13.1.3For each appeal for IHCAP review: 13.1.3.1the date received; 13.1.3.2name and plan identification number of the covered person on whose behalf the appeal was filed; 13.1.3.3a general description of the reason for the appeal; and 13.1.3.4date and description of the IURO’s decision or other disposition of the appeal. 13.2A carrier shall file with its annual report to the Department the following information: 13.2.1The total number grievances filed. 13.2.2The total number of Petitions for Arbitration filed, with a breakdown showing: 13.2.2.1the total number of final coverage decisions upheld through arbitration; and 13.2.2.2the total number of final coverage decisions reversed through arbitration. 13.2.3The total number of IHCAP appeals filed, with a breakdown showing: 13.2.3.1the total number of final coverage decisions upheld through IHCAP; and 13.2.3.2the total number of final coverage decisions reversed through IHCAP. 13.3A carrier shall make available to the Department upon request any of the information specified in the foregoing sections 13.1 and 13.2, and other information regarding its internal review process including but not limited to the written IRP procedures and forms the carrier distributes to covered persons. 14.0Non-Retaliation 14.1A carrier shall not disenroll, terminate or in any way penalize a covered person who exercises his rights to file a grievance, Petition for Arbitration or appeal for IHCAP review solely on the basis of such filing. 14.2A carrier shall not terminate or in any way penalize a provider with whom it has a contractual relationship and who exercises, on behalf of a covered person, the right to file a grievance, Petition for Arbitration or appeal for IHCAP review solely on the basis of such filing. 15.0Confidentiality of Health Information 15.1Nothing in this Regulation shall supersede any federal or state law or regulation governing the privacy of health information. 16.0Effective Date 16.1This regulation shall become effective on June 11, 2007. Pursuant to the orders of the Commissioner dated January 8, 2007 and March 15, 2007, any claim filed for review or arbitration after January 8, shall be governed by this regulation. Any claim filed for review or arbitration prior to January 8, 2007 under the version of this regulation adopted February 15, 2002 and not resolved prior to January 8, 2007 shall be governed by the February 15, 2002 version of this regulation. DEPARTMENT OF INSURANCE Statutory Authority: 18 Delaware Code Sections 311 and 332 (18 Del.C. §§311 and 6401 et seq.) 18 DE Admin. Code 1403 EXTENSION OF EMERGENCY ORDER WHEREAS an emergency order placing into effect proposed changes to Regulation 1403 was published on January 8, 2007; and WHEREAS the said order was set to expire on April 30, 2007; and WHEREAS it is necessary to provide for an extension of the emergency regulation so that revisions to the proposed regulation can be published for comment pursuant to the Delaware Administrative Procedures Act; and WHEREAS it is appropriate for the Department of Insurance to allow for additional public comment on the regulation as proposed and published on January 8, 2007; NOW THEREFORE, pursuant to 29 Del.C. §10119, Emergency Regulation 1403 as it appears in 10 DE Reg. 1190-1201 (2/1/07) shall be and is hereby extended until June 30, 2007 or until the proposed amendments to Regulation 1403 are adopted in final form, whichever shall first occur. Any person can file written comments, suggestions, briefs, and compilations of data or other materials concerning the proposed amendment. Any written submission in response to this notice and relevant to the proposed change must be received by the Department of Insurance no later than 4:30 p.m. Wednesday, May 2, 2007 by delivering said comments to Deputy Attorney General Michael J. Rich, c/o Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.739.5566 or emailed to michael.rich@state.de.us. IT IS SO ORDERED this 14th day of March, 2007. Matthew Denn, Insurance Commissioner DEPARTMENT OF AGRICULTURE NUTRIENT MANAGEMENT COMMISSION Statutory Authority: 3 Delaware Code, Section 2221 (3 Del.C. §2221) 3 DE Admin. Code 1201 PUBLIC NOTICE Nutrient Management Certification Regulation Amendments (Exhibit A): Certification by the Delaware Nutrient Management Program, 2320 S. Dupont Hwy., Dover, DE 19901, is required (3 Del.C. §2201 - 2290) for all who apply fertilizer and/or animal manure greater than 10 acres or who manage animals greater than 8,000 pounds of live animal weight. The proposed changes to the certification regulations establish nutrient handling requirements for certain nutrient handlers. The proposed regulation addresses application timing and placement for commercial inorganic fertilizer and organic fertilizer Comments on the proposed changes will be accepted from April 1, 2007 until April 30, 2007. Any comments should be provided to the Nutrient Management Program office located at 2320 S. Dupont Hwy., Dover, DE 19901, ATTN: William Rohrer. 1201 Nutrient Management Certification Regulations 1.0Authority These regulations are promulgated pursuant to the authority provided by 3 Del.C., Ch. 22, §2221. 2.0Purpose The purpose of these regulations is to establish certification requirements for certain generators or handlers of nutrients, or who engage in advising or consulting with others regarding the formulation, application, or scheduling of nutrients within the State of Delaware. 3.0Definitions For purposes of these regulations, the following words or terms shall have the meanings as indicated: “Animal Feeding Operation” or “AFO” means any area or facility where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period. “Animal Unit” shall be as defined by the United States Department of Agriculture Natural Resources Conservation Service, and is approximately 1,000 lbs. "average" live body weight. “Applicant” means any person seeking a certificate from the Commission. “Apply, Applying”, or any derivation of the word "apply", as it relates to the application of nutrients, means the human controlled mechanical conveyance of nutrients to land for the purpose of applying organic and/or inorganic nutrients. “Certification” means the recognition by the Commission that a person has met the qualification standards established by the Commission and has been issued a written certificate authorizing such person to perform certain functions specified in these regulations. “Commercial Nutrient Handler” means a person who applies organic or inorganic nutrients to lands or waters in the State as a component of a commercial or agricultural business in exchange for a fee or service charge. “Commercial Processor” means any individual, partnership, corporation, association or other business unit that controls, through contracts, vertical integration or other means, several stages of production and marketing of any agricultural commodity. “Commission” or “DNMC” means the Delaware Nutrient Management Commission. “Credit" represents a unit of measuring education for certification as defined by the Commission and is dependent upon such factors as curricula intensity and class time. “Direct Supervision” refers to actions by a person who is certified with the State Nutrient Management Program and directs individuals within the same organization/company in applying nutrients. Direct supervisors hold responsibility for nutrient application actions for those under his/her supervision. “Fertilizer” means any synthetic or carbon based substance that is added to the soil to supply one or more plant nutrients. “Frozen” relates to frozen ground and is the top 2-inches of surface area receiving nutrients where the moisture has changed to ice for a period of 72 consecutive hours or a condition where any ice formation below the 2-inch zone restricts the natural flow of moisture through the soil profile. “Nutrient Consultant” means a person who is engaged in the activities of advising or consulting with another person who is required to have a certificate under these regulations, regarding the formulation, application, or scheduling of organic or inorganic nutrients within the State. Provided, however, any employee of any federal, State or local government agency or the University of Delaware, or other organization duly recognized by the Commission for such purpose, who provides advice or consultation in his/her capacity as such an employee, without compensation, shall not be deemed to be a nutrient consultant unless such advice and consultation constitutes a direct and substantial part of a nutrient management plan developed pursuant to these regulations. “Nutrient Generator” means a person who owns or operates a facility within the State that produces organic or inorganic nutrients. “Nutrient Management Plan” or "plan" means a plan by a certified nutrient consultant to manage the amount, placement, timing, and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turfgrass. “Nutrients” means nitrogen, nitrate, phosphorus, organic matter, and any other elements necessary for or helpful to plant growth. “Person” means any individual, partnership, association, fiduciary, or corporation or any organized group of persons, whether incorporated or not. “Private Nutrient Handler” means a person in the State who applies organic or inorganic nutrients to lands or waters he/she owns, leases, or otherwise controls. “Program Administrator” or "Nutrient Management Program Administrator" means the exempt employee of the Delaware Department of Agriculture who is responsible for the operation of the State Nutrient Management Program. “Secretary” means the Secretary of the Delaware Department of Agriculture or his/her designee. “State Nutrient Management Program” or “SNMP” means all the nutrient management program elements developed by the Commission, whether or not reduced to rules or regulations. 4.0Certification Categories And Activities Requiring Certification 4.1No later than January 1, 2004, any person who engages in any of the following activities must have the applicable certificate or certificates required by and issued pursuant to these regulations, as follows: 4.1.1Nutrient generator certification - A nutrient generator who owns or operates any animal feeding operation in excess of eight animal units must have a nutrient generator certificate. 4.1.2Private nutrient handler certification - A private nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters owned, leased, or otherwise controlled by such handler must have a private nutrient handler certificate. 4.1.3Commercial nutrient handler certification - A commercial nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters of the state must have a commercial nutrient handler certificate. 4.1.4Nutrient consultant certification - A nutrient consultant who is engaged in the provision of nutrient management advice or the formulation of a nutrient management plan or in nutrient management planning as it relates to the application or disposal of nutrients at or from a specific site in the State of Delaware must have a nutrient consultant certificate. 4.2These certification requirements shall not apply to individuals who perform services under the direct supervision of a certified pers