Delaware Register
of
Regulations
Issue Date: November 1, 2001
Volume 5 5
IN THIS ISSUE:
Regulations:
Errata
Emergency
Proposed
Final
Governor
Appointments
General Notices
Calendar of Events &
Hearing Notices
Pages 989 - 117 Issue 5 -
Pursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of the Register contains
all documents required to be published, and received, on or before October 15, 2001.
INFORMATION ABOUT THE DELAWARE
990 REGISTER OF REGULATIONS
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amended or repealed and any emergency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
• Attorney General's Opinions in full text
• 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:
4 DE Reg. 769 - 775 (11/1/00)
Refers to Volume 4, pages 769 - 775 of the
Delaware Register issued on November 1, 2000.
SUBSCRIPTION INFORMATION
The cost of a yearly subscription (12 issues)
for the Delaware Register of Regulations is
$120.00. 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or repealed, and may initiate the process by which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repealed, with the Registrar for publication in the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
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
INFORMATION ABOUT THE DELAWARE 991
REGISTER OF REGULATIONS
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 CLOSING CLOSING
DATE DATE TIME
DECEMBER 1 NOVEMBER 15 4:30 P.M.
JANUARY 1 DECEMBER 15 4:30 P.M.
FEBRUARY 1 JANUARY 15 4:30 P.M.
MARCH 1 FEBRUARY 15 4:30 P.M.
APRIL 1 MARCH 15 4:30 P.M.
DIVISION OF RESEARCH STAFF:
Walter G. Feindt, Deputy Director; Judi
Abbott, Secretary; Sandra F. Clark,
Administrative Assistant; Jeffrey W. Hague,
Registrar of Regulations; Maryanne McGonegal,
Research Analyst; Ruth Ann Melson, Legislative
Librarian; Deborah J. Messina, Print Shop
Supervisor; Alex W. Mull, Assistant Registrar;
Deborah A. Porter, Administrative Assistant;
Barbara Ryan, Public Information Clerk; Ted
Segletes, Paralegal; Don Sellers, Printer; Thom
Shiels, Legislative Attorney; Alice W. Stark,
Legislative Attorney; Mary Jane Starkey, Senior
Secretary; Marvin L. Stayton, Printer; Rochelle
Yerkes, Senior Secretary.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
992 TABLE OF CONTENTS
Cumulative Tables................................................. ....... 994
ERRATA
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
3300 Board of Veterinary Medicine...................... ....... 999
DEPARTMENT OF EDUCATION
319 Certification Supervisor Of School Food
Service Programs........................................... ....... 1000
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
DSSM 7004.3, Collection and Management of
Food Stamp Claims........................................ ....... 1001
EMERGENCY
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
DSSM 9060, Income Deductions.......................... ....... 1002
DSSM 20620.1, Personal Needs........................... ....... 1004
PROPOSED
DELAWARE STATE FIRE PREVENTION
COMMISSION
Criminal History Records Check Policy............... ....... 1006
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
Board of Nursing, Joint Practice Committee, Advanced
Practice Nurses............................................... ....... 1009
DEPARTMENT OF EDUCATION
201 School Shared Decision-making Transition
Planning Grants.............................................. ....... 1017
205 School Shared Decision-making Transition
Planning Grants.............................................. ....... 1017
210 Approval Of School Improvement Grants.... ....... 1017
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
Delaware State Lottery Office
Video Lottery Regulation 5.0 Technology Providers:
Contracts; Requirements; Duties.................... ...... 1019
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF PUBLIC HEALTH
Non-Nurse Midwife Regulations........................... ...... 1021
Managed Care Organizations, Application &
Operation of.................................................... ...... 1025
DIVISION OF SOCIAL SERVICES
DSSM 9060, Income Deductions......................... ...... 1046
DSSM 20620.1, Personal Needs........................... ...... 1049
DEPARTMENT OF INSURANCE
Regulation 85, Valuation of Life Insurance Policies ... 1049
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF WATER RESOURCES
Total Maximum Daily Load (TMDL) for Nutrients
in the Appoquinimink Watershed................... ...... 1056
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF MOTOR VEHICLES AND THE
DIVISION OF HIGHWAY SAFETY
Policy Regulation Number 91, Ignition Interlock Device
Installation, Removal, and Monthly Monitoring
and Calibration Fees....................................... ...... 1058
DIVISION OF STATE POLICE
Bounty Hunter/Bail Enforcement Agents.............. ...... 1059
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Energy Alternatives Program................................. ...... 1062
FINAL
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
2900 Real Estate Commission............................... ...... 1070
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
TABLE OF CONTENTS 993
2925 Real Estate Commission, Education Guidelines . 1071
3900 Board of Clinical Social Work Examiners... ....... 1072
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
LONGTERM PROTECTION
Delaware Adult Abuse Registry............................ ....... 1073
Group Home Facilities for Persons with Aids...... ....... 1079
DIVISION OF SOCIAL SERVICES
DSSM 9089, DABC and/or GA Food Stamp
Households..................................................... ....... 1094
DSSM 17170, Sec. 4913 Disabled Children......... ....... 1096
DSSM 17200, Disabled Children, New DSSM
25000, Children's Community Alternative
Disability Program (CCADP)........................ ....... 1097
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Regulation 24, Sec. 11, Mobile Equipment Repair
and Refinishing ,............................................ ....... 1101
Regulation 24, Sec. 33, Solvent Cleaning & Drying ... 1106
Regulation 38, Subpart T, Emission Standard for
Halogenated Solvent Cleaning,..................... ....... 1118
Regulation 41, Sec. 3, Portable Fuel Containers... ....... 1125
DIVISION OF WATER RESOURCES
Shellfish Reg. No. S-55-A, Horseshoe Crab
Dredge Permit Lottery................................... ....... 1128
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF BOILER SAFETY
Boiler Safety, Rules & Regulations...................... ....... 1128
DEPARTMENT OF TRANSPORTATION
DIVISION OF PLANNING & POLICY
State Scenic and Historic Highways Program....... ....... 1129
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Reg. No. 5, Procedures Governing the Delaware
Strategic Fund................................................ ....... 1141
GOVERNOR
Appointments........................................................ ...... 1156
GENERAL NOTICES
DEPARTMENT OF INSURANCE
Agents Bulletin No. 8, Executive Order Blocking
Property And Prohibiting Transactions With
Persons Who Permit, Threaten To Commit,
Or Support Terrorism..................................... ...... 1159
Domestic/foreign Insurers Bulletin No. 9, Executive
Order Blocking Property And Prohibiting
Transactions With Persons Who Permit,
Threaten To Commit, Or Support Terrorism.. ...... 1159
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Measures for Meeting the EPA-Identified Shortfalls
for the Delaware Phase II Attainment
Demonstration................................................ ...... 1160
State Implementation Plan Development: Evaluation
of Applicability of Reasonably Available Control
Measures to Assist in Attaining the Ozone
Air Quality Standard....................................... ...... 1166
CALENDAR OF EVENTS/HEARING
NOTICES
State Fire Prevention Commission, Criminal History
Records Check Policy, Notice of Public Hearing. 1171
Board of Nursing, Notice of Public Hearing......... ...... 1171
State Board of Education, Notice of Monthly Meeting 1171
Video Lottery Regs., Notice of Public Hearing..... ...... 1171
Health & Social Services, Div. of Public Health,
Non-Nurse Midwifery, Notice of Public Hearing 1171
MCO, Notice of Public Hearing.................... ...... 1172
Div. of Social Services, Food Stamp Program,
Notice of Public Comment Period................. ...... 1172
Personal Needs Allowance, Notice of Public
Comment Period............................................ ...... 1173
Dept. of Insurance, Notice of Public Hearing........ ...... 1173
DNREC, Total Maximum Daily Load (TMDL) for
Nutrients in the Appoquinimink Watershed,
Notice of Public Hearing................................ ...... 1174
Dept. of Public Safety, Reg. 91, Notice of Public
Comment Period............................................. ...... 1174
Div. of State Police, Notice of Public Hearing ..... 1175
DEDO, Notice of Public Comment Period............ ...... 1175
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
994 CUMULATIVE TABLES
The table printed below lists the regulations that have been proposed, adopted, amended or repealed
in the preceding issues of the current volume of the Delaware Register of Regulations.
The regulations are listed alphabetically by the promulgating agency, followed by a citation to that
issue of the Register in which the regulation was published. Proposed regulations are designated with
(Prop.); Final regulations are designated with (Final); Emergency regulations are designated with
(Emer.); and regulations that have been repealed are designated with (Rep.).
DELAWARE SOLID WASTE AUTHORITY
Regulations of the Delaware Solid Waste Authority............................................................. .......5 DE Reg. 100 (Final)
Differential Disposal Fee Program......................................................................................... .......5 DE Reg. 115 (Final)
Statewide Solid Waste Management...................................................................................... .......5 DE Reg. 117 (Final)
DEPARTMENT OF ADMINISTRATIVE SERVICES
Division of Professional Regulation (TITLE 24 DELAWARE ADMINISTRATIVE CODE)
100 Board of Accountancy......................................................................................... .......5 DE Reg. 6 (Prop.)
5 DE Reg. 119 (Final)
5 DE Reg. 687 (Prop.)
200 Board of Landscape Architecture........................................................................ .......5 DE Reg. 446 (Final)
5 DE Reg. 821 (Final)
2900 Real Estate Commission...................................................................................... .......5 DE Reg. 231 (Prop.)
5 DE Reg. 697 (Prop.)
2925 Real Estate Commission, Education Guidelines................................................. .......5 DE Reg. 238 (Prop.)
5 DE Reg. 705 (Prop.)
3000 Board of Professional Counselors of Mental Health........................................... .......5 DE Reg. 452 (Final)
3100 Board of Funeral Services................................................................................... .......5 DE Reg. 606 (Final)
3300 Board ofVeterinary Medicine............................................................................. .......5 DE Reg. 709 (Prop.)
3500 Board of Examiners of Psychologists.................................................................. .......5 DE Reg. 612 (Final)
5100 Board of Cosmetology and Barbering................................................................. .......5 DE Reg. 243 (Prop.)
5300 Board of Massage and Bodywork....................................................................... .......5 DE Reg. 16 (Prop.)
5 DE Reg. 717 (Prop.)
5 DE Reg. 827 (Final)
Public Service Commission
Delaware PSC's Rules for the Provision of Telecommunications Services, Docket
Nos. 10 & 45, Proposed Amendments..................................................................... .......5 DE Reg. 435 (Prop.)
Reg. Docket No. 13, Rules & Regulations Governing Minimum Standards for
Service Provided by Public Water Companies........................................................ .......5 DE Reg. 722 (Prop.)
Water Utilities, Proposed Regulations Governing, Including the Commission's Jurisdiction to
Grant and Revoke Certificates of Public Convenience & Necessity Subject to the
Jurisdiction of the PSC............................................................................................ .......5 DE Reg. 212 (Final)
DEPARTMENT OF AGRICULTURE
Harness Racing Commission
Rule 1, Required Days Off.............................................................................................. .......5 DE Reg. 247 (Prop.)
5 DE Reg. 832 (Final)
Rule 3.0, State Steward/Judges....................................................................................... .......5 DE Reg. 250 (Prop.)
5 DE Reg. 835 (Final)
Rule 4.0, Associations.................................................................................................... .......5 DE Reg. 252 (Prop.)
5 DE Reg. 837 (Final)
Rule 5, Owners... ...................................................................................................... .......5 DE Reg. 253 (Prop.)
5 DE Reg. 838 (Final)
Rule 7, Rules of the Race................................................................................................ .......5 DE Reg. 255 (Prop.)
5 DE Reg. 841 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
CUMULATIVE TABLES 995
Rule 8, Medications and Foreign Substances................................................................. .......5 DE Reg. 258 (Prop.)
5 DE Reg. 843 (Final)
Plant Industries Section
Grain Inspection and Certification Regulations.............................................................. .......5 DE Reg. 458 (Final)
Thoroughbed Racing Commission
Rule 13.01, Owners Entitled........................................................................................... .......5 DE Reg. 21 (Prop.)
5 DE Reg. 849 (Final)
DEPARTMENT OF EDUCATION
101 Delaware Student Testing Program......................................................................... .......5 DE Reg. 23 (Prop.)
5 DE Reg. 620 (Final)
103 School Accountability for Academic Performance................................................. .......5 DE Reg. 724 (Prop.)
260 General Appeal Procedures for the Child and Adult Care Food Programs
of the United States Department of Agriculture.................................................. .......5 DE Reg. 461 (Final)
303 Certification Administrative - Assistant Superintendent for Business.................... .......5 DE Reg. 263 (Rep.)
5 DE Reg. 851 (Final)
315 Certification Manager Of School Bus Transportation............................................. .......5 DE Reg. 264 (Rep.)
5 DE Reg. 853 (Final)
316 Certification Supervisor Of School Bus Transportation.......................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 853 (Final)
317 Certification School Business Manager................................................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 853 (Final)
318 Certification Manager Of School Food Service Programs...................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 854 (Final)
319 Certification Supervisor Of School Food Service Programs................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 854 (Final)
359 Certification Audiology........................................................................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 855 (Final)
366 Certification School Occupational Therapis.t.......................................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 855 (Final)
367 Certification School Physical Therapist.................................................................. .......5 DE Reg. 267 (Rep.)
5 DE Reg. 855 (Final)
369 Certification Speech Language Pathologist 5 DE Reg. 855 (Final)
398 Degree Granting Institutions of Higher Education.................................................. .......5 DE Reg. 270 (Prop.)
5 DE Reg. 859 (Final)
501 State Content Standards........................................................................................... .......5 DE Reg. 276 (Prop.)
5 DE Reg. 865 (Final)
515 High School Diplomas and Record of Performance................................................ .......5 DE Reg. 28 (Prop.)
5 DE Reg. 625 (Final)
701 Unit Count... ...................................................................................................... .......5 DE Reg. 29 (Prop.)
5 DE Reg. 627 (Final)
745 Criminal Background Checks for Public Education Employees............................. .......5 DE Reg. 280 (Prop.)
5 DE Reg. 869 (Final)
828 Assistance with Medications on Field Trips............................................................ .......5 DE Reg. 284 (Prop.)
5 DE Reg. 873 (Final)
925 Children with Disabilities........................................................................................ .......5 DE Reg. 286 (Prop.)
5 DE Reg. 874 (Final)
1102 Standards for School Bus Chassis and Bodies Placed in Production
on or after March 1, 2002.................................................................................... .......5 DE Reg. 290 (Prop.)
5 DE Reg. 879 (Final)
1535 (formerly 305) Certification Administrative - Administrative Assistant................ .......5 DE Reg. 268 (Prop.)
5 DE Reg. 856 (Final)
1536 (formerly 306) Certification Administrative - Director........................................... .......5 DE Reg. 268 (Prop.)
5 DE Reg. 857 (Final)
1538 (formerly 308) Certification Administrative - Supervisor....................................... .......5 DE Reg. 269 (Prop.)
5 DE Reg. 858 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
996 CUMULATIVE TABLES
1584 (formerly 384) Permits - School, Classroom Aides and Autistic Residential
Child Care Specialists.......................................................................................... .......5 DE Reg. 270 (Prop.)
5 DE Reg. 859 (Final)
State Board of Education Procedures Manual....................................................................... .......5 DE Reg. 880 (Final)
DEPARTMENT OF FINANCE
Division of Revenue
Delaware State Lottery Office
Video Lottery Regulations 5.0, 7.0 and 14.0........................................................... .......5 DE Reg. 728 (Prop.)
DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Divison of Long Term Care
Delaware Adult Abuse Registry..................................................................................... .......5 DE Reg. 515 (Prop.)
Group Home Facilities for Persons with Aids................................................................ .......5 DE Reg. 520 (Prop.)
Training & Qualifications for Nursing Assistants & Certified Nursing Assistants........ .......5 DE Reg. 733 (Prop.)
Division of Public Health
Body Art Establishments, Regulations Governing......................................................... .......5 DE Reg. 319 (Prop.)
Control of Communicable and Other Disease Conditions.............................................. .......5 DE Reg. 156 (Final)
Cosmetology and Barbering Establishments, Regulations Governing........................... .......5 DE Reg. 311 (Prop.)
Managed Care Organizations (MCO)............................................................................. .......5 DE Reg. 130 (Final)
Public Drinking Water Systems, Rules and Regulations Governing.............................. .......5 DE Reg. 630 (Final)
Trauma System Rules & Regulations............................................................................. .......5 DE Reg. 32 (Prop.)
5 DE Reg. 632 (Final)
Uniform Controlled Substances Act, Rescheduling of Dronabinol................................ .......5 DE Reg. 747 (Prop.)
Uniform Controlled Substance Regulation No. 4........................................................... .......5 DE Reg. 750 (Prop.)
Division of Social Services
2002 Case Closures and Address Changes................................................................... .......5 DE Reg. 327 (Prop.)
5 DE Reg. 893 (Final)
2015-2019 A Better Chance & General Assistance Program........................................ .......5 DE Reg. 181 (Final)
4005.3Step-Parent Income in the ABC Program............................................................ .......5 DE Reg. 644 (Final)
7002 Food Stamp Claims............................................................................................. .......5 DE Reg. 174 (Final)
7004 Collection & Management of Food Stamp Claims............................................. .......5 DE Reg. 177 (Final)
7004.3Collection and Management of Food Stamp Claims........................................... .......5 DE Reg. 359 (Prop.)
5 DE Reg. 929 (Final)
7005 Terminating and Writing Off Claims................................................................... .......5 DE Reg. 181 (Final)
9089 DABC and/or GA Food Stamp Households........................................................ .......5 DE Reg. 535 (Prop.)
13402 A Better Chance Welfare Reform Program......................................................... .......5 DE Reg. 183 (Final)
13403 AFDC Applicants With a Budgeted Need of Less Than $10.............................. .......5 DE Reg. 184 (Final)
11004.7 Child Care Fee................................................................................................. .......5 DE Reg. 755 (Prop.)
14110.8.1Prohibitions .................................................................................................... .......5 DE Reg. 184 (Final)
14300 Citizenship and Alienage..................................................................................... .......5 DE Reg. 184 (Final)
14900 Enrollment in Managed Care............................................................................... .......5 DE Reg. 185 (Final)
15110.1Medicaid Eligibility........................................................................................... .......5 DE Reg. 185 (Final)
15200 Transitional Medicaid.......................................................................................... .......5 DE Reg. 185 (Final)
16100.1.2Initial Eligibility Determination...................................................................... .......5 DE Reg. 186 (Final)
16230.1.4Deducations from Earned Income.................................................................. .......5 DE Reg. 187 (Final)
16500.1Eligibility Requirements.................................................................................... .......5 DE Reg. 187 (Final)
17200 Disabled Children, New 25000 Children's Community Alternative
Disability Program (CCADP).............................................................................. .......5 DE Reg. 536 (Prop.)
18100.2Alien Status ...................................................................................................... .......5 DE Reg. 187 (Final)
Eligibility of Inmates & Eligibility of the Breast & Cervical Cancer Group................. .......5 DE Reg. 359 (Prop.)
5 DE Reg. 925 (Final)
Food Stamp Program, Noncitizen Eligibility & Certification Provisions of
PL-104-193.. ...................................................................................................... .......5 DE Reg. 328 (Prop.)
5 DE Reg. 894 (Final)
Reimbursement Methodology for Federally Qualified Health Centers (FQHCs).......... .......5 DE Reg. 173 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
CUMULATIVE TABLES 997
DEPARTMENT OF INSURANCE
Reg. No. 81, Prompt Payment of Settled Claims................................................................... .......5 DE Reg. 645 (Final)
Reg. No. 84, Privacy of Consumer Financial & Health Information..................................... .......5 DE Reg. 188 (Final)
DEPARTMENT OF LABOR
Division of Employment & Training
Council on Apprenticeship and Training
Delaware Apprenticeship and Training Law, Section 106.5................................... .......5 DE Reg. 204 (Final)
Office of Labor Law Enforcement
Prevailing Wage Regulations................................................................................... .......5 DE Reg. 205 (Final)
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Regulations Governing Delaware's Coastal Zone................................................................. .......5 DE Reg. 930 (Final)
Division of Air & Waste Management
Regulation 24, Section 2, Definitions............................................................................. .......5 DE Reg. 541 (Prop.)
Regulation 24, Section 11, Mobile Equipment Repair & Refinishing............................ .......5 DE Reg. 363 (Prop.)
Regulation 24, Section 33, Solvent Metal Cleaning....................................................... .......5 DE Reg. 367 (Prop.)
Regulation 24, Section 46, Lightering Operations......................................................... .......5 DE Reg. 379 (Prop.)
Regulation 24, Section 26, Stage IVapor Recovery....................................................... .......5 DE Reg. 545 (Prop.)
Regulation 24, Section 36, Stage IIVapor Recovery ..................................................... .......5 DE Reg. 547 (Prop.)
Regulation 31, Low Enhanced Inspection and Maintenance Program........................... .......5 DE Reg. 44 (Prop.)
5 DE Reg. 940 (Final)
Regulation 38, Subpart T, Emission Standards for Halogenated Solvent Cleaning....... .......5 DE Reg. 383 (Prop.)
Regulation 41, Section 1, Architectural and Industrial Maintenance Coatings.............. .......5 DE Reg. 389 (Prop.)
Regulation 41, Section 2, Consumer Products............................................................... .......5 DE Reg. 560 (Prop.)
Regulation 41, Section 3, Portable Fuel Containers....................................................... .......5 DE Reg. 398 (Prop.)
Regulation 42, Section 1, Control of NOx Emissions from Industrial Boilers.............. .......5 DE Reg. 400 (Prop.)
Regulation 43, Not To Exceed California Heavy Duty Diesel Engine Standards.......... .......5 DE Reg. 756 (Prop.)
Division of Fish & Wildlife
Shellfish Regulation Nos. S-7(b), S-9, S-11, S-13 and S-37, Repeal of........................ .......5 DE Reg. 403 (Prop.)
5 DE Reg. 496 (Errata)
5 DE Reg. 972 (Final)
Shellfish Regulation Nos. S-63, S-65, S-67, S-69, S-71, S-73 and S-75 (Proposed)..... .......5 DE Reg. 496 (Errata)
5 DE Reg. 972 (Final)
Tidal Finfish Regulation No. 4, Summer Flounder Size Limits; Possession
Limits; Seasons ...................................................................................................... .......5 DE Reg. 462 (Final)
Division of Water Resources
Regulations Governing the Design, Installation and Operation of On-Site
Wastewater Treatment and Disposal Systems......................................................... .......5 DE Reg. 760 (Prop.)
Total Maximum Daily Load (TMDL) for the Murderkill River Watershed, Delaware.. .......5 DE Reg. 404 (Prop.)
DEPARTMENT OF PUBLIC SAFETY
Divison of Boiler Safety
Boiler Safety, Rules & Regulations................................................................................ .......5 DE Reg. 584 (Prop.)
DEPARTMENT OF STATE
Division of Historical & Cultural Affairs
Historic Preservation Tax Credit, Regulations Governing............................................. .......5 DE Reg. 405 (Prop.)
Office of the State Banking Commissioner
Reg. No. 5.1101(f).0001 Election to Be Treated for Tax Purposes as a Subsidiary
Corporation of a Delaware Chartered Banking Organization or Trust Company,
National Bank Having its Principal Office in Delaware, or Out-of-state Bank
That Operates a Resulting Branch in Delaware....................................................... .......5 DE Reg. 77 (Prop.)
5 DE Reg. 647 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
998 CUMULATIVE TABLES
Reg. No. 5.1101etal.0002, Instructions for Preparation of FranchiseTax...................... .......5 DE Reg. 79 (Prop.)
5 DE Reg. 649 (Final)
Reg. No. 5.1101etal.0003, Estimated Franchise Tax Report.......................................... .......5 DE Reg. 82 (Prop.)
5 DE Reg. 652 (Final)
Reg. No. 5.1101etal.0004, Final Franchise Tax Report ................................................. .......5 DE Reg. 83 (Prop.)
5 DE Reg. 654 (Final)
Reg. No. 5.1101etal.0005, Instructions for Preparation of FranchiseTax for Federal
Savings Banks Not Headquartered in this State but Maintaining Branches
in this State.. ...................................................................................................... .......5 DE Reg. 85 (Prop.)
5 DE Reg. 656 (Final)
Reg. No. 5.1101etal.0006, Estimated Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 88 (Prop.)
5 DE Reg. 659 (Final)
Reg. No. 5.1101etal.0007, Final Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 89 (Prop.)
5 DE Reg. 660 (Final)
Reg. No. 5.1101etal.0009, Instructions for Preparation of FranchiseTax for Resulting
Branches in this State of Out-of-State Banks.......................................................... .......5 DE Reg. 90 (Prop.)
5 DE Reg. 661 (Final)
Reg. No. 5.1101etal.0010, Estimated Franchise Tax Report for Resulting Branches in
this State of Out-of-State Banks.............................................................................. .......5 DE Reg. 94 (Prop.)
5 DE Reg. 665 (Final)
Reg. No. 5.1101etal.0011, Final Franchise Tax Report for Resulting Branches in this
State of Out-of-State Banks..................................................................................... .......5 DE Reg. 96 (Prop.)
5 DE Reg. 667 (Final)
Reg. No. 5.1105.0008, Instructions for Calculation of Employment Tax Credits.......... .......5 DE Reg. 98 (Prop.)
5 DE Reg. 669 (Final)
DEPARTMENT OF TRANSPORTATION
Outdoor Advertising, Rules & Regulations........................................................................... .......5 DE Reg. 410 (Prop.)
State Scenic and Historic Highways Program....................................................................... .......5 DE Reg. 595 (Prop.)
EXECUTIVE DEPARTMENT
Governor's Office
Appointments and Nominations..................................................................................... .......5 DE Reg. 218
5 DE Reg. 465
Executive Order No. 18, Delaware Spatial Data I-Team 5 DE Reg. 671
Executive Order No. 19, Delaware State Police 5 DE Reg. 976
Executive Order No. 20, State Employees' Charitable Campaign 5 DE Reg. 976
Declaration Of Limited State Of Emergency In New Castle County, Delaware 5 DE Reg. 672
Termination Of Limited State Of Emergency in New Castle County, Delaware 5 DE Reg. 672
Delaware Economic Development Office
Regulation No. 5, Procedures Governing the Delaware Strategic Fund......................... .......5 DE Reg. 499 (Prop.)
Direct Grants Program.................................................................................................... .......5 DE Reg. 512 (Prop.)
5 DE Reg. 817 (Prop.)
Matching Funds Program................................................................................................ .......5 DE Reg. 514 (Prop.)
5 DE Reg. 818 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
ERRATA 999
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF VETERINARY MEDICINE
24 DE Admin. Code 3300
Statutory Authority: 24 Delaware Code,
Section 3306(a)(1) (24 Del.C. 3306(a)(1))
* NOTE: THE TIME PUBLISHED FOR THE PUBLIC HEARING
WAS INCORRECT IN THE OCTOBER ISSUE. THE CORRECT
TIME OF 1:00 P.M. IS REPRODUCED HERE. FOR A
COMPLETE SET OF THE PROPOSED CHANGES PLEASE SEE
THE OCTOBER ISSUE OF THE REGISTER, PAGE 709.
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 3306 (a)(1), the
Delaware State Board of Veterinary Medicine proposes to
revise its rules and regulations. The proposed changes
would be comprehensive revision of the current rules and
regulations. The proposed revisions seek to redefine the role
of support personnel, unprofessional conduct by a
veterinarian, standards for veterinary premises and
equipment, privileged communications between a
veterinarian and a client, and requirements for continuing
education. The proposed changes also affect other aspects of
licensure including renewal and reinstatement of licenses.
The proposed regulations serve to implement or clarify
specific sections of 24 Del.C. Chapter 33.
A public hearing will be held on the proposed Rules and
Regulations on Tuesday, November 13, 2001 at 1:00 p.m.
in the second floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Board will receive and consider input in writing
from any person on the proposed Rules and Regulations.
Any written comments should be submitted to the Board in
care of Susan Miccio at the above address. The final date to
submit written comments shall be at the above scheduled
public hearing. Anyone wishing to obtain a copy of the
proposed Rules and Regulations or to make comments at the
public hearing should notify Susan Miccio at the above
address or by calling (302) 744-4506.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DEPARTMENT OF EDUCATION
Title 14, DE Admin. Code
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
* NOTE: THE FINAL ORDER PUBLISHED IN THE OCTOBER
REGISTER DID NOT INCLUDE REGULATION 319 AS BEING
REPEALED. THE CORRECTED ORDER IS PUBLISHED
BELOW WITH THE REGULATION BEING REPEALED.
Repeal of Certification Regulations 303, 315, 316, 317,
318, 319, 359, 366, 367, 369
Order Repealing Rules and Regulations
I. Summary of the Evidence and Information Submitted
The Professional Standards Board, acting in cooperation
and consultation with the Department of Education, seeks
the consent of the State Board of Education to repeal
regulations 303, 315, 316, 317, 318, 319, 359, 366, 367, and
369 from the Regulations of the Department of Education.
All regulations listed concern the requirements for
certification of educational personnel. The Professional
Standards Board voted, on the recommendation of its
Licensure and Certification Criteria Standing Committee, to
eliminate certification requirements for non-instructional
positions and for individuals who are duly certified or
licensed by other Delaware agencies.
Notice of the proposed repeal of regulations was
published in the News Journal and the Delaware State News
on July 19, 2001, in the form hereto attached as Exhibit A.
The notice invited written comments. Correspondence was
received from the President of the Delaware Speech and
Hearing Association indicating no objection to the repeal of
regulations 359 and 369.
II. Findings of Facts
The Professional Standards Board and the State Board
of Education find that it is appropriate to repeal these
regulations because elimination of certification requirements
for non-instructional positions will provide local boards of
education more flexibility in hiring the individuals best
suited for the positions and will alleviate the need for the
Department of Education to review and process applications
for certification for non-instructional positions. This will
permit the Department to focus its energies on and allocate
its resources to the licensure and certification of instructional
personnel in schools. Elimination of certification
requirements for individuals who are duly certified or
licensed by other Delaware agencies will eliminate
redundancy and possible conflict between certification or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1000 ERRATA
licensure requirements among agencies.
III. Decision to Repeal the Regulations
For the foregoing reasons, the Professional Standards
Board and the State Board of Education conclude the
identified regulations should be repealed. Therefore,
pursuant to 14 Del. C. Sections 1203 and 1205(b). the
regulations attached hereto as Exhibit "B" are hereby
repealed.
IV. Text and Citation
The text of the regulations 303, 315, 316, 317, 318, 319,
359, 366, 367, and 369, attached hereto as Exhibit "B" are
repealed, and said regulations shall be deleted from the
Regulations of the Department of Education.
V. Effective Date of Order
The effective date of this Order shall be ten (10) days
from the date this Order is published in the Delaware
Register of Regulations.
Approved by the Professional Standards Board the 13th
Day of September, 2001:
Charles Michels, Chair, Mary Ellen Kotz, Vice Chair
Patricia Clements Barbara Grogg Ross
Michθle Hazeur-Porter Sherie Hudson
Tony Marchio Mary Mirabeau
John Pallace Joanne Reihm
Harold Roberts Karen Schilling
Teresa Schooley Carol Vukelich
Jacquelyn Wilson
For Implementation by the Department of Education:
Valerie A Woodruff, Secretary of Education
It Is So Ordered this 20th Day of September, 2001.
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert Gilsdorf
Mary B. Graham, Esquire
Valerie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
319 Certification Supervisor Of School Food Service
Programs
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for all full-time supervisors of a school food service
program.
1.1 Degree required
1.1.1 Bachelor's degree from a regionally
accredited college and,
1.2 Experience
1.2.1 Two years of professional experience or
teaching experience in the areas of food, nutrition, or
institutional management or,
1.2.2 Successful completion of a Dietetic
Internship as approved by the American Dietetic Association
or,
1.2.3 Two years of experience in the supervision of
quantity food production and service, or related business
experience in the area of food, nutrition or institutional
management or,
1.2.4 Two years of experience as a manager of a
school food service unit or as the assistant manager, if the
experience as the assistant occurs after the employee has
been working in the school food service unit for at least two
years prior to being assigned as Assistant Manager and,
1.3 Specialized Professional Preparation
1.3.1 Completion of the requirements for the
Bachelor's degree as stated above to include a major that is at
least 30 semester hours, and in one of the following area
1.3.1.1 Business
1.3.1.2 Nutrition
1.3.1.3 Education
1.3.1.4 Institutional Management
1.3.1.5 Child Development
1.3.1.6 Quantity Food Preparation or,
1.3.2 Completion of the requirements of any
Bachelor's degree and 30 semester hours in one of the areas
listed above, whether or not the coursework is part of the
degree program.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed as a School Food
Service Supervisor to allow for the completion of the
requirements for the Standard License in 1.0.
2.2 May be issued to a public school district employee
who has met the requirements of 1.1 and 1.2 and,
2.3 Meets the requirements for Limited Standard as
stated in the General Regulations in regard to 1.3.1. or 1.3.2.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
ERRATA 1001
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
* NOTE: THE INCORRECT TEXT FOR REGULATION DSSM
7004.3 WAS PUBLISHED IN THE OCTOBER REGISTER AT
PAGE 929. THE CORRECT TEXT OF THE REGULATION IS
PUBLISHED BELOW.
ORDER
Nature Of The Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services / Food
Stamp Program initiated proceedings to amend policies to
implement policy changes to the following section of the
Division of Social Services Manual: Section 7004.3. This
change sets criteria for determining when a claim of $125 or
less is not established. The Department's proceedings to
amend its regulations were initiated pursuant to 29 Delaware
Code Section 10114 and its authority as prescribed by 31
Delaware Code Section 512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the August, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the August, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations related to the Food Stamp Program Collection
and Management of Food Stamp Claims are adopted and
shall be final effective October 10, 2001.
September 14, 2001
Vincent P. Meconi, Secretary, DHSS
REVISION
7004.3 Collection and Management of Food Stamp
Claims
We shall collect any overissuances of food stamps
issued to a household by:
a) reducing the allotment of the household;
b) withholding amounts from unemployment
compensation from a member of
the household;
c) recovering from Federal pay or a Federal income
tax refund;
d) any other means;
unless ARMS determines that all of the means listed
above are not cost effective.
Cost effective determination:
DSS/ARMS can opt to not establish any claim if the
claim referral is $125 or less; unless the household is
currently participating or the claim has already been
established or discovered in a Quality Control review.
We will not establish any claim if the claim referral is
$125 or less unless:
1) the household is currently participating,
2) the claim has already been established,
3) there is already an existing Food Stamp claim,
4) there are other program(s) claims,
5) the claim referral is for multiple programs, or
6) the claim was discovered in a Quality Control
review.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1002 EMERGENCY REGULATIONS
Symbol Key
Roman type indicates the text existing prior to the emergency regulation being promulgated. Italic type indicates new
text. Language which is striken through indicates text being deleted.
Emergency Regulations
Under 29 Del.C. §10119, if an agency determines that an imminent peril to the public health, safety or welfare requires
the adoption, amendment or repeal of a regulation with less than the notice required by 29 Del.C. §10115, then the following
rules shall apply: (1) The agency may proceed to act without prior notice or hearing or upon any abbreviated notice and
hearing that it finds practicable; (2) The order adopting, amending or repealing a regulation shall state in writing the reasons
for the agency's determination that such emergency action is necessary; (3) the order effecting such action may be effective
for a period of not longer than 120 days and may be renewed once for a period not exceeding 60 days; (4) When such an order
is issued without any of the public procedures otherwise required or authorized by Chapter 101 of Title 29, the agency shall
state as part of the order that it will receive, consider and respond to petitions by any interested person for the reconsideration
or revision thereof; and (5) The agency shall submit a copy of the emergency order to the Registrar for publication in the next
issue of the Register of Regulations.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature Of The Proceedings
The Delaware Department of Health and Social
Services ("Department") has determined that a threat to the
public welfare exists if revision of the regulation contained
in DSSM Section 9060 is not implemented without prior
notice or hearing. Failure to implement will result in a delay
in immediately implementing the maximum Standard Utility
Allowance (SUA).
Nature Of Proposed Revisions
(revisions underlined):
Findings Of Fact
The Department finds that these changes should be
made in the best interest of the general public of the State of
Delaware. The Department will receive, consider, and
respond to petitions by any interested person for the
reconsideration or revision thereof.
THEREFORE, IT IS ORDERED, that the proposed
revision to the regulation be adopted on an emergency basis
without prior notice or hearing, and shall become effective
immediately.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
REVISION
DSSM 9060 Income Deductions
F. Shelter Costs - Monthly shelter costs in excess of 50% of
the household's income after all other deductions in A, B,
and C above have been allowed. The shelter deduction must
not exceed the maximum excess shelter deduction limit.
(Refer to the current October Cost-of-Living Adjustment
Administrative Notice for the maximum excess shelter
deduction.) This is applicable unless the household contains
a member who is age sixty (60) or over, or disabled per
DSSM 9013.1. Such households will receive an excess
shelter deduction for the monthly costs that exceeds 50% of
the household's monthly income after all other applicable
deductions.
Shelter costs will include only the following:
1) Continuing charges for the shelter occupied by the
household, including rent, mortgages, condo and association
fees, or other continuing charges leading to the ownership of
the shelter such as loan repayments for the purchase of a
mobile home, including interest on such payments. A
mortgage is defined as any loan that uses the house as
collateral.
Households required to pay the "last month's rent" along
with the first month's rent before they can move into the
dwelling can claim both amounts in the month that the
household is billed.
For example, a client rents an apartment in January and
must pay January's and the next December's rent in January.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
EMERGENCY REGULATIONS 1003
Both rental amounts can be used for January's food stamp
budget. A rent deduction would not be allowed in December
since it was paid in January.
Households required to pay a security deposit before
they move into a dwelling cannot claim the deposit as a
shelter cost.
For example, a client rents a home and must pay a $450
security deposit and the first month's rent before she moves
in. The security deposit will be refunded when she moves
out if the home is in good condition. She cannot claim the
deposit as a shelter cost for food stamp purposes.
2) Property taxes, State and local assessments and
insurance on the structure itself, but not separate costs for
insuring furniture or personal belongings. If separate
insurance costs for furniture or personal belongings are not
identified, use the total.
3) The costs of:
• fuel for heating or air conditioning costs for
cooling;
• electricity or fuel used for purposes other than
heating or cooling;
• water;
• sewerage;
• well installation and maintenance;
• septic tank system installation and maintenance;
• garbage and trash collection;
• all service fees for one telephone, including, but not
limited to basic service fees, subscriber line
charges, relay center surcharges, 911 fees, and
taxes; and
• fees charged by the utility provider for initial
installation of the utility.
One time deposits cannot be included.
4) There are two standard utility allowances. The
standard heating allowance will be available only to
households which incur heating costs separately and apart
from their rent or mortgage including residents of rental
housing who are billed on a monthly basis by their landlords
for actual usage as determined through individual metering.
The standard heat allowance is available to households
receiving indirect energy assistance payments.
A household living in a public housing unit or other
rental housing unit which has central utility meters and
charges the household only for excess utility costs is not
permitted to use either standard allowance. Such households
may claim the actual verified utility expenses, which it does
pay separately. Households should be advised of this option
at each (re) certification.
The two annualized utility allowances are offered
available:
The limited utility basic allowance (LUA) is
available to households that do not pay for heat or air
conditioning cooling, but incur costs that include electricity
and fuel for purposes other than heating or cooling, water,
sewerage, well and septic tank installation and maintenance,
telephone, and garbage or trash collection. To get the LUA,
the household must incur expenses for at least two utilities,
like phone and electric, phone and water, gas cooking and
non-heat or cooling electric, or water and trash collection. A
household living in a public housing unit or other rental
housing unit which has central utility meters and charges the
household only for excess heating or cooling costs can
receive the LUA provided the household has another utility
like a phone or gas cooking.
The heating and cooling utility allowance
(HCSUA) is available to households with heating or air
conditioning cooling costs separate from their rent or
mortgage. Other households eligible for the HCSUA
include:
• Residents of private rental housing who are billed
on a monthly basis by their landlords for actual
usage as determined through individual usage or
who are charged a flat rate;
• Households receiving energy payments under the
Low Income Home Energy Assistance (LIHEA);
• Households receiving direct or indirect energy
assistance payments, other than LIHEA, that is
excluded as income and who continue to incur any
out-of-pocket heating or cooling expenses during
any month in the certification period.
Heating costs must be verified to use the HCSUA. For
cooling costs, you must verify the utility, like electricity, that
provides the air conditioning. Accept the household's
statement that they pay for cooling unless it is questionable.
(Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the standard utility
allowances.)
Households may choose between a standard or verified
actual utility costs at initial certification, recertification, or
when a household moves.
Permit households to switch between their actual utility
costs and the appropriate utility standard at the time of
recertification. Qualifying households not opting to itemize
actual utility costs will be assigned the appropriate standard
utility allowance.
If the household is billed separately for only telephone,
water, sewer, or garbage collection fees (any one or more of
these), the household is not entitled to claim either standard
utility allowance. If one of these households is billed for a
telephone, The standard telephone allowance will be used
(for these households billed only for a telephone, and
regardless of their actual cost). In addition, these households
may claim the actual utility expenses (water, sewer, or
garbage) for which they are billed separately from rent or
mortgage payments. (Refer to the current October Cost-of-
Living Adjustment Administrative Notice for the telephone
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1004 EMERGENCY REGULATIONS
allowance.)
If a household is billed only for one utility, not heating/
cooling or telephone, the household is allowed the actual
cost for that utility.
Prorating the SUA
When households live with and share utility expenses
with other individuals or households, whether they are
participating in the Food Stamp Program or not, the agency
will prorate the standard utility allowances based on the
number of households sharing the utility costs.
The following are examples of prorating the SUA:
Two (2) households share a residence. They both
contribute towards the utility costs. The food stamp
household pays $50 towards the costs each month. The food
stamp household is entitled to one-half of the SUA.
A food stamp household shares an apartment and
utilities with another individual. The food stamp household
pays two-thirds of the utility costs. The household is entitled
to one-half of the SUA.
Three (3) households share a residence and utility
expenses. The food stamp household pays a different amount
each month based on the amount of the costs. The food
stamp household is entitled to a one-third proration of the
SUA.
4) The shelter costs of the home if not occupied by the
household because of employment or training away from
home, illness or abandonment caused by a natural disaster or
casualty loss. For costs of a home vacated by the household
to be included in the household's shelter costs, the household
must intend to return to the home; the current occupants of
the home, if any must not be claiming the shelter costs for
food stamp purposes; and the home must not be leased or
rented during the absence of the household.
A household that has both an occupied home and an
unoccupied home is only entitled to one standard utility
allowance.
5) Charges for the repair of the home that was
substantially damaged or destroyed due to a natural disaster
such as a fire or flood. Shelter costs will not include charges
for repair of the home that have been or will be reimbursed
by private or public relief agencies, insurance companies, or
from any other source. Repairs, other than those due to
natural disasters, do not count as a deduction, even when
tenants must pay for them or be evicted.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature Of The Proceedings:
The Delaware Department of Health and Social
Services ("Department") has determined that a threat to the
public welfare exists if revision of the regulation contained
in DSSM Section 20620.1 is not implemented without prior
notice or hearing. Failure to implement will result in a delay
in an increase in the amount of funds that can be protected
monthly in a personal needs account for Medicaid clients
residing in nursing facilities. An increase from $42.00 to
$44.00 was approved and funded by the Delaware
Legislature effective October 1, 2001.
Nature Of Proposed Revisions:
(revisions underlined):
Findings Of Fact:
The Department finds that these changes should be
made in the best interest of the general public of the State of
Delaware. The Department will receive, consider, and
respond to petitions by any interested person for the
reconsideration or revision thereof.
THEREFORE, IT IS ORDERED, that the proposed
revision to the regulation be adopted on an emergency basis
without prior notice or hearing, and shall become effective
immediately.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
REVISION
20620.1 Personal Needs
$42.00 $44.00 per month of available income is to be
protected for the recipients direct personal needs.
If the recipient receives a reduced VA Improved
Pension (not to exceed $90) the personal needs amount will
be $90 or the amount of personal needs allowance in the
state plan, whichever is greater.
If the recipient regularly attends a rehab/educational
program off the grounds of his nursing facility, including
employment for the purpose of rehabilitation in a sheltered
workshop off the grounds of the facility, $50.00 per month
(rather than $42 $44) will be protected.
For nursing home residents who are participating in
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
EMERGENCY REGULATIONS 1005
substantial gainful activity (SGA) (20 CFR 416.971), the
following amounts, not to exceed the Adult Foster Care rate
will be deducted from gross earned income:
• Mandatory payroll deductions that are a condition
of employment including, but not limited to:
Federal, State and Local Taxes
FICA
Union Dues
Insurance premiums
Pension contributions
Transportation costs as paid to & from work
Clothing and personal needs allowance of $75/
month.
If earnings average more than $700 a month in a
calendar year, this is considered SGA and DSS can allow a
personal needs allowance of up to the AFC rate. If earnings
average less than $300 a month in a calendar year, this is not
ordinarily considered SGA and DSS can allow the $42 $44
or $50 personal needs allowance. If average earnings are
between $300 and $700, DSS must consider other factors to
determine whether or not the work constitutes SGA. Other
factors include considering if the work is comparable to
unimpaired people in the community performing similar
jobs.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1006 PROPOSED REGULATIONS
Symbol Key
Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text.
Language which is stricken through indicates text being deleted.
Proposed Regulations
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 nat ure
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.
DELAWARE STATE FIRE
PREVENTION COMMISSION
Statutory Authority: 16 Delaware Code,
Section 6603 (16 Del.C. §6603)
Notice Of Public Hearing
The Delaware State Fire Prevention Commission will
hold a hearing pursuant to 16 Del. C. §6603 and 29 Del. C.
Ch. 101, to receive public comment regarding a proposed
change to the State Fire Prevention Regulations. The
Commission is proposing to add a Criminal History Records
Check Policy, to the Ambulance Service Regulations as
follows:
Add Section 3 - 1. Criminal History Records Check
Policy
Date, Time And Place Of Public Hearing
DATE: Tuesday, November 20, 2001
TIME: 9:00 AM and 1:00 PM
PLACE:Commission Chamber
Delaware State Fire School
Delaware Fire Service Center
1463 Chestnut Grove Road
Dover, Delaware 19904
Persons may view the proposed addition to the
Regulations between the hours of 8:00 a.m. to 4:30 p.m.,
Monday through Friday, at the Delaware State Fire
Prevention Commission Office, Delaware Fire Service
Center, 1463 Chestnut Grove Road, Dover, Delaware,
19904.
Persons may present their views in writing by mailing
their views to the Commission at the above address prior to
the hearing or by offering testimony at the public hearing. If
the number of persons desiring to testify at the public
hearing is large, the amount of time allotted to each speaker
will be limited.
Criminal History Records Check Policy
I. Authorized Governmental Designee for the
Commission
A. The Delaware State Fire Prevention Commission
authorizes the Director of the Delaware State Fire School to
be its governmental designee to acquire and review State and
Federal criminal history records submitted by the State
Bureau of Identification for an applicant applying to become
an Ambulance Attendant or a Delaware Emergency Medical
Technician and to interview the applicant, if necessary.
II. Evaluation Procedure for Background Checks
A. The Director of the Fire School shall evaluate the
criminal history records checks using the criteria established
in 16 Del. C. § 6712(b). All criminal history records will be
forwarded by the State Bureau of Identification to the
Director of the Delaware State Fire School.
B. Should the Director of the Delaware State Fire
School as a result of the criminal history records check find
cause to recommend to the Commission that it deny the
application of the person seeking certification as an
Ambulance Attendant or as an Emergency Medical
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Technician, the Director shall notify the Commission of this
decision.
C. The Commission shall advise the applicant that it
intends to deny the application and state the reason therefor.
The Commission will also advise the applicant of the right to
review all information reviewed by the Director and the right
to appeal the Commission's decision by requesting a hearing
before the Commission.
III. Appeal Process for Denial of Certification or
Decertification because of Criminal Conviction
A. Any Delaware EMT-B applicant or certificate holder
notified by the Commission that the Commission intends to
deny the application or decertify the certificate holder
because of criminal history records check information may
appeal the denial to the State Fire Prevention Commission.
The process is:
1. Within 10 days after the postmark on the
notification of the intent to deny certification or decertify a
certificate holder, the applicant shall submit a written request
for a hearing to the State Fire Prevention Commission stating
the reason(s) supporting the appeal.
2. Notice of the hearing shall be given at least 20
days before the day of the hearing and comply with the
provisions of 29 Del. C. § 10122.
3. he grievance hearing before the State Fire
Prevention Commission will be conducted in accordance
with the Delaware Administrative Procedures Act 29 Del. C.
ch 101.
4. The hearing will be closed to the public unless
the applicant requests an open hearing. After the hearing,
the Commission will inform the applicant of its decision.
IV. Requirements for Certification
A. Persons seeking certification as an Ambulance
Attendant or as an Emergency Medical Technician must be
eighteen (18) years of age at the time of application.
1. Individuals entering an EMT-B course must be
eighteen (18) years of age at the start of the course.
B. An individual applying for certification must meet
the requirement of Part X, Section V, Eligibility of
Certification of the State Fire Prevention Commission
Addendum to the Ambulance Service Regulations, BLS
Ambulance Provider/First Responder.
C. Persons seeking certification must meet the criminal
history record check as mandated in 16 Del C. § 6712(b),
effective July 12, 2001 and follow the procedures outlined in
this policy.
V. Administrative Policy Pertaining to Background
Checks
A. All training announcements for EMT-B courses will
include the statement "Criminal History Records checks will
be required on or before the first night of class".
B. All Chiefs of Departments, Presidents or Ambulance
Captains of volunteer rescue or ambulance squads or
Operating Officers of private corporations which have
students pre-registered for the class will be sent a notice to
inform the student that a criminal history records check will
be done on the first night of class and fingerprinting will be
required.
C. Any student not pre-registered for the class will not
be accepted as a walk-in.
D. All EMT-B students will sign a release provided by
the State Bureau of Identification authorizing the criminal
history records check. Any student failing to sign the
designated form will not be allowed to participate in the
course.
E. All students of new courses who are members of a
volunteer fire, rescue or ambulance organization will sign
the authorization of payment allowing the State Fire
Prevention Commission to reimburse the State Bureau of
Identification on their behalf for the cost of the criminal
history records check.
F. Students who are members of a private ambulance
service are required to pay the course tuition prior to the first
night of class. The tuition is non-refundable unless the
student drops out prior to the first night of class. The tuition
includes the cost of the criminal history records check which
will be paid to the State Bureau of Identification on the
student's behalf by the State Fire School.
G. Any volunteer fire, rescue or ambulance company
which registering a student who is denied certification
pursuant to the provision of 16 Del. C. § 6712(b), shall be
responsible to reimburse the Commission for the cost of the
criminal history records check.
H. Any student accepted into the course who does not
complete same will be required to reimburse the commission
the cost of the criminal history records check and course
textbook.
VI. Condition and Duration of Certification/Decertification
A. The State Fire Prevention Commission shall issue
initial certification as an Ambulance Attendant and
Delaware Emergency Medical Technician - Basic as
prescribed in Part X, Section VI, Certification, of the State
Fire Prevention Commission Regulations provided that:
1. The applicant passes the mandated criminal
history record check.
2. Obtain all necessary immunizations.
3. Meet the course attendance requirement policy
as prescribed by the Delaware State Fire School, if
applicable.
4. Pass the National Registry of Emergency
Medical Technician's Examination.
B. De-certification
1. The State Fire Prevention Commission shall
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decertify an Ambulance Attendant or Delaware EMT-B if:
a. The individual does not meet the recertification
requirements established in the State Fire
Prevention Commission Regulation, Part X, section IX. Or
b. The individual is convicted of an offense as
specified in 16 Del. C. § 6712(b) while currently certified
and the procedures in section VII of this policy are followed.
VII. Procedure for De-certification for Criminal Offense
A. The State Fire Prevention Commission may
decertify any currently certified Ambulance Attendant or
EMT when it has reason to believe that the person has been
convicted of a crime within the scope of §6712 of Title 16.
B. Upon receiving a written notice that an Ambulance
Attendant or EMT was convicted of a crime within the
provisions of §6712, Title 16 the Commission shall:
1. Immediately suspend the individual's
certification pending an investigation into the allegations.
2. Notify the individual in writing of the
allegations and suspensions and allow the certificate holder
an informal opportunity to contest the allegations of a
conviction.
3. Require the individual to obtain a current
background check at their expense.
a. Background check information will be
reviewed by the Director of the State Fire School, who will
make determination if cause for de-certification exists. The
Director will notify the Commission of the findings.
4. Based on the information provided by the
Director the Commission will either inform the certificate
holder of the intent to de-certify the individual or lift the
individual's suspension.
C. The individuals may appeal the de-certification
using the procedure under section III, Appeal Process
specified in this Policy.
VIII. Reciprocity Applicants for Certification as
Ambulance Attendant or EMT
A. Applicants applying for reciprocity for Ambulance
Attendant and Delaware EMT-B from another state shall
meet the requirements of Part X, Section XII of the
Delaware State Fire Prevention Commission Regulations
B. Applicants applying for reciprocity from another
state must comply with the background check requirements
as specified in 16 Del. C. § 6712.
IX. Reciprocity Applicants - Criminal History Records
Check Procedures
A. Applicants seeking reciprocity to become Delaware
Ambulance Attendant or EMT's must submit to a criminal
history records check prior to applying for reciprocity
certification.
1. Applicants will go to a Delaware State Police
Troop and apply for a State and Federal criminal history
records check. All reciprocity applicants will pay at the time
of request. The criminal history records check must be done
within 30 days of the reciprocity request.
2. Applicant will authorize the release of the
criminal history records check information directly to the
Director of the Delaware State Fire School.
3. Applicant will notify the Delaware State Fire
School on the prescribed form they are seeking reciprocity
and have applied for a criminal history records check.
4. Upon receipt by the Delaware State Fire School
and evaluation of the criminal history records check the
individual will be notified by the Fire School as to how to
proceed with required testing and certification procedures.
5. Should the applicant be denied reciprocity
because of criminal history records check information they
will be advised of the appeal process in section III of this
policy.
X. Funding of Reciprocity Background Checks
A. All applicants will pay for the criminal history
records check at the time of their request.
1. It is the responsibility of the private providers,
private individuals or City of Wilmington to pay all costs -
they are not eligible for reimbursement.
2. Upon successful completion of the reciprocity
process the State Fire Prevention Commission will
reimburse the individual or the individual's volunteer fire,
rescue or ambulance organization for the cost of the criminal
history records check.
XI. Reciprocity for University of Delaware Students
A. The Delaware State Fire Prevention Commission
will waive the criminal history records check requirements
for all University of Delaware Students applying for
certification as an Ambulance Attendant or as an Emergency
Medical Technician.
1. The University Police Department will provide
the Director of the Delaware State Fire School with a written
document listing all eligible students and a statement that
they have passed an internal background check at least equal
to the requirement of 16 Del. C. § 6712.
XII. Confidentiality of Background Check Information
A. Information obtained pursuant to the background
check is confidential and except as provided in Section C
below, shall not be released from the Fire School under any
circumstances to anyone.
B. All background check information that is reviewed
by the Director of the Delaware State Fire School shall be
retained in a locked file cabinet in the custody of the
Director.
C. When a denial for certification is made, the
information will be turned over to the State Fire Prevention
Commission where it will be secured for at least 60 days or
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PROPOSED REGULATIONS 1009
until the appeal process is completed.
1. If an appeal is not filed, at the end of 60 days, the
information is to be returned to the Director.
D. Per 16 Del. C. § 6712 the individual may meet with
the Director and after providing proof of identification
including a photo identification, review their information.
Copies will not be provided to anyone.
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF NURSING
24 DE Admin. Code 1900
Statutory Authority: 24 Delaware Code,
Section 1906(19) (24 Del.C. §1906(19))
The Delaware Joint Practice Committee in accordance
with 24 Del. Code, Subsection 1906(19) has proposed to
revise the Rules and Regulations governing Independent
Practice/Prescriptive Authority for Advanced Practice
Nurses (APN).
The proposed changes detail the complaint process
related to APN's Independent Practice/Prescriptive
Authority and define the Joint Practice Committee's process
of APN members, officers, and meetings.
A public hearing will be held on Tuesday, December 18,
2001 at 5:30 p.m. in the second floor conference room C-216
at Delaware Technical and Community College, Stanton
Campus, 400 Christiana-Stanton Road, Newark, Delaware.
Anyone desiring a copy of the proposed revised section
of the Rules and Regulations may obtain a copy from the
Delaware Board of Nursing, 861 Silver Lake Blvd., Cannon
Building, Suite 203, Dover, DE 19904, (302) 744-4516.
Persons desiring to submit written comments on the revised
rules and regulations may forward these comments to the
above address. The final date to receive written comments
will December 18, 2001.
8.0 Rules and Regulations for Advanced Practice Nurse
Prescriptive Authority/Independent Practice for the
State of Delaware
8.1 Authority
These rules and regulations are adopted by the
Delaware Board of Nursing under the authority of the
Delaware Nurse Practice Act, 24 Del.C. §§1902(d),
1906(1), 1906(7).
8.2 Purpose
8.2.1 The general purpose of these rules and
regulations is to assist in protecting and safeguarding the
public by regulating the practice of the Advanced Practice
Nurse.
8.3 Scope
8.3.1 These rules and regulations govern the
educational and experience requirements and standards of
practice for the Advanced Practice Nurse. Prescribing
medications and treatments independently is pursuant to the
Rules and Regulations promulgated by the Joint Practice
Committee as defined in 24 Del.C. §1906(20). The
Advanced Practice Nurse is responsible and accountable for
her or his practice. Nothing herein is deemed to limit the
scope of practice or prohibit a Registered Nurse from
engaging in those activities that constitute the practice of
professional nursing and/or professional nursing in a
specialty area.
8.4 Definitions
"Advanced Practice Nurse"as defined in 24
Del.C. §1902(d)(1). Such a nurse will be given the title
Advanced Practice Nurse by state licensure, and may use the
title Advanced Practice Nurse within his/her specific
specialty area.
"Certified Nurse Midwife (C.N.M.)" A
Registered Nurse who is a provider for normal maternity,
newborn and well-woman gynecological care. The CNM
designation is received after completing an accredited postbasic
nursing program in midwifery at schools of medicine,
nursing or public health, and passing a certification
examination administered by the ACNM Certification
Council, Inc. or other nationally recognized, Board of
Nursing approved certifying organization.
"Certified Registered Nurse Anesthetist
(C.R.N.A.)" A Registered Nurse who has graduated from a
nurse anesthesia educational program accredited by the
American Association of Nurse Anesthetists' Council on
Accreditation of Nurse Anesthesia Educational programs,
and who is certified by the American Association of Nurse
Anesthetists' Council on Certification of Nurse Anesthetists
or other nationally recognized, Board of Nursing approved
certifying organization.
"Clinical Nurse Specialist (C.N.S.)" A Registered
Nurse with advanced nursing educational preparation who
functions in primary, secondary, and tertiary settings with
individuals, families, groups, or communities. The CNS
designation is received after graduation from a Master's
degree program in a clinical nurse specialty or post Master's
certificate, such as gerontology, maternal-child, pediatrics,
psych/mental health, etc. The CNS must have national
certification in the area of specialization at the advanced
level if such a certification exists or as specified in 8.9.4.1 of
these Rules and Regulations. The certifying agency must
meet the established criteria approved by the Delaware
Board of Nursing.
"Nurse Practitioner (N.P.)" A Registered Nurse
with advanced nursing educational preparation who is a
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provider of primary healthcare in a variety of settings with a
focus on a specific area of practice. The NP designation is
received after graduation from a Master's program or from
an accredited post-basic NP certificate program of at least
one academic year in length in a nurse practitioner specialty
such as acute care, adult, family, geriatric, pediatric, or
women's health, etc. The NP must have national
certification in the area of specialization at the advanced
level by a certifying agency which meets the established
criteria approved by the Delaware Board of Nursing.
"Audit" The verification of existence of a
collaborative agreement for a minimum of 10% of the total
number of licenses issued during a specified time period.
"Board" The Delaware Board of Nursing
"Clinical Nursing Specialty" a delimited focus of
advanced nursing practice. Specialty areas can be identified
in terms of population, setting, disease/pathology, type of
care or type of problem. Nursing administration does not
qualify as a clinical nursing specialty.
See 3 DE Reg. 1373 (4/1/00)
"Collaborative Agreement" Written verification
of health care facility approved clinical privileges; or health
care facility approved job description; or a written document
that outlines the process for consultation and referral
between an Advanced Practice Nurse and a licensed
physician, dentist, podiatrist, or licensed Delaware health
care delivery system.
"Guidelines/ Protocols" Suggested pathways to be
followed by an Advanced Practice Nurse for managing a
particular medical problem. These guidelines/protocols may
be developed collaboratively by an Advanced Practice Nurse
and a licensed physician, dentist or a podiatrist, or licensed
Delaware health care delivery system.
"National Certification" That credential earned by
a nurse who has met requirements of a Board approved
certifying agency.
The agencies so approved include but are not
limited to:
American Academy of Nurse Practitioners
American Nurses Credentialing Center
American Association of Nurse
Anesthetists Council on Certification of Nurse Anesthetists
American Association of Nurse
Anesthetists Council on Recertification of Nurse
Anesthetists
National Certification Corporation for the
Obstetric, Gynecologic and Neonatal Nursing Specialties
National Certification Board of Pediatric
Nurse Practitioners and Nurses.
ACNM Certification Council, Inc.
"Post Basic Program"
A combined didactic and clinical/preceptored
program of at least one academic year of full time study in
the area of advanced nursing practice with a minimum of
400 clinical/preceptored hours.
The program must be one offered and
administered by an approved health agency and/or institution
of higher learning,
Post basic means a program taken after
licensure is achieved.
"Scope of Specialized Practice" That area of
practice in which an Advanced Practice Nurse has a Master's
degree or a post-basic program certificate in a clinical
nursing specialty with national certification.
"Supervision" Direction given by a licensed
physician or Advanced Practice Nurse to an Advanced
Practice Nurse practicing pursuant to a temporary permit.
The supervising physician or Advanced Practice Nurse must
be periodically available at the site where care is provided,
or available for immediate guidance.
8.5 Grandfathering Period
8.5.1 Any person holding a certificate of state
licensure as an Advanced Practice Nurse that is valid on July
8, 1994 shall be eligible for renewal of such licensure under
the conditions and standards prescribed herein for renewal of
licensure.
8.6 Standards for the Advanced Practice Nurse
8.6.1 Advanced Practice Nurses view clients and
their health concerns from an integrated multi-system
perspective.
8.6.2 Standards provide the practitioner with a
framework within which to operate and with the means to
evaluate his/her practice. In meeting the standards of
practice of nursing in the advanced role, each practitioner,
including but not limited to those listed in 8.6.2 of these
Rules and Regulations:
8.6.2.1 Performs comprehensive assessments
using appropriate physical and psychosocial parameters;
8.6.2.2 Develops comprehensive nursing care
plans based on current theories and advanced clinical
knowledge and expertise;
8.6.2.3 Initiates and applies clinical treatments
based on expert knowledge and technical competency to
client populations with problems ranging from health
promotion to complex illness and for whom the Advanced
Practice Nurse assumes primary care responsibilities. These
treatments include, but are not limited to psychotherapy,
administration of anesthesia, and vaginal deliveries;
8.6.2.4 Functions under established
guidelines/protocols and/or accepted standards of care;
8.6.2.5 Uses the results of scientifically sound
empirical research as a basis for nursing practice decisions;
8.6.2.6 Uses appropriate teaching/learning
strategies to diagnose learning impediments;
8.6.2.7 Evaluates the quality of individual
client care in accordance with quality assurance and other
standards;
8.6.2.8 Reviews and revises guidelines/
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PROPOSED REGULATIONS 1011
protocols, as necessary;
8.6.2.9 Maintains an accurate written account
of the progress of clients for whom primary care
responsibilities are assumed;
8.6.2.10 Collaborates with members of a
multi-disciplinary team toward the accomplishment of
mutually established goals;
8.6.2.11 Pursues strategies to enhance access
to and use of adequate health care services;
8.6.2.12 Maintains optimal advanced practice
based on a continual process of review and evaluation of
scientific theory, research findings and current practice;
8.6.2.13 Performs consultative services for
clients referred by other members of the multi-disciplinary
team; and
8.6.2.14 Establishes a collaborative agreement
with a licensed physician, dentist, podiatrist, or licensed
Delaware health care delivery system to facilitate
consultation and/or referral as appropriate in the delivery of
health care to clients.
8.6.3 In addition to these standards, each nurse
certified in an area of specialization and recognized by the
Board to practice as an Advanced Practice Nurse is
responsible for practice at the level and scope defined for
that specialty certification by the agency which certified the
nurse.
8.7 Generic Functions of the Advanced Practice Nurse
Within the Specialized Scope of Practice include but are not
limited to:
8.7. Eliciting detailed health history(s)
8.7. Defining nursing problem(s)
8.7. Performing physical examination(s)
8.7. Collecting and performing laboratory tests
8.7. Interpreting laboratory data
8.7. Initiating requests for essential laboratory
procedures
8.7.7 Initiating requests for essential x-rays
8.7.8 Screening patients to identify abnormal
problems
8.7.9 Initiating referrals to appropriate resources
and services as necessary
8.7.10 Initiating or modifying treatment and
medications within established guidelines
8.7.11 Assessing and reporting changes in the
health of individuals, families and communities
8.7.12 Providing health education through teaching
and counseling
8.7.13 Planning and/or instituting health care
programs in the community with other health care
professionals and the public
8.7.14 Delegating tasks appropriately
8.7.15 Prescribing medications and treatments
independently pursuant to Rules and Regulations
promulgated by the Joint Practice Committee as defined in
24 Del.C. §1906(20).
8.8 Criteria for Approval of Certification Agencies
8.8.1 A national certifying body which meets the
following criteria shall be recognized by the Board to satisfy
24 Del.C. §1902(d)(1).
8.8.2 The national certifying body:
8.8.2.1 Is national in the scope of its
credentialing.
8.8.2.2 Has no requirement for an applicant to
be a member of any organization.
8.8.2.3 Has educational requirements which
are consistent with the requirements of these rules.
8.8.2.4 Has an application process and
credential review which includes documentation that the
applicant's education is in the advanced nursing practice
category being certified, and that the applicant's clinical
practice is in the certification category.
8.8.2.5 Uses an examination as a basis for
certification in the advanced nursing practice category which
meets the following criteria:
8.8.2.5.1 The examination is based upon
job analysis studies conducted using standard methodologies
acceptable to the testing community;
8.8.2.5.2 The examination represents the
knowledge, skills and abilities essential for the delivery of
safe and effective advanced nursing care to the clients;
8.8.2.5.3 The examination content and its
distribution are specified in a test plan (blueprint), based on
the job analysis study, that is available to examinees;
8.8.2.5.4 Examination items are reviewed
for content validity, cultural sensitivity and correct scoring
using an established mechanism, both before use and
periodically;
8.8.2.5.5 Examinations are evaluated for
psychometric performance;
8.8.2.5.6 The passing standard is
established using acceptable psychometric methods, and is
reevaluated periodically; and
8.8.2.5.7 Examination security is
maintained through established procedures
8.8.2.6 Issues certification based upon passing
the examination and meeting all other certification
requirements.
8.8.2.7 Provides for periodic recertification
which includes review of qualifications and continued
competency.
8.8.2.8 Has mechanisms in place for
communication to Boards of Nursing for timely verification
of an individual's certification status, changes in
certification status, and changes in the certification program,
including qualifications, test plan and scope of practice.
8. 8.2.9 Has an evaluation process to provide
quality assurance in its certification program.
8.9 Application for Licensure to Practice as an
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Advanced Practice Nurse
8.9.1 Application for licensure as a Registered
Nurse shall be made on forms supplied by the Board.
8.9.2 In addition, an application for licensure to
practice as an Advanced Practice Nurse shall be made on
forms supplied by the Board.
8.9.2.1 The APN applicant shall be required to
furnish the name(s) of the licensed physician, dentist,
podiatrist, or licensed Delaware health care delivery system
with whom a current collaborative agreement exists.
8.9.2.2 Notification of changes in the name of
the licensed physician, dentist, podiatrist, or licensed
Delaware health care delivery system shall be forwarded to
the Board office.
8.9.3 Each application shall be returned to the
Board office together with appropriate documentation and
non-refundable fees.
8.9.4 A Registered Nurse meeting the practice
requirement as listed in 8.11 and all other requirements set
forth in these Rules and Regulations may be issued a license
as an Advanced Practice Nurse in the specific area of
specialization in which the nurse has been nationally
certified at the advanced level and/or has earned a Master's
degree in a clinical nursing specialty.
8.9.4.1 Clinical nurse specialists, whose
subspecialty area can be categorized under a broad scope of
nursing practice for which a Board-approved national
certification examination exists, are required to pass this
certification examination to qualify for permanent licensure
as an Advanced Practice Nurse. This would include, but not
be limited to medical-surgical and psychiatric-mental health
nursing. If a more specific post-graduate level certification
examination that has Board of Nursing approval is available
within the clinical nursing specialist's subspecialty area at
the time of licensure application, the applicant may
substitute this examination for the broad-based clinical
nursing specialist certification examination.
8.9.4.2 Faculty members teaching in nursing
education programs are not required to be licensed as
Advanced Practice Nurses. Those faculty members teaching
in graduate level clinical courses may apply for licensure as
Advanced Practice Nurses and utilize graduate level clinical
teaching hours to fulfill the practice requirement as stated in
8.11.2.1.
8.9.5 Renewal of licensure shall be on a date
consistent with the current Registered Nurse renewal period.
A renewal fee shall be paid.
8.9.6 The Board may refuse to issue, revoke,
suspend or refuse to renew the license as an Advanced
Practice Nurse or otherwise discipline an applicant or a
practitioner who fails to meet the requirements for licensure
as an Advanced Practice Nurse or as a registered nurse, or
who commits any disciplinary offense under the Nurse
Practice Act, 24 Del.C. Ch. 19, or the Rules and Regulations
promulgated pursuant thereto. All decisions regarding
independent practice and/or independent prescriptive
authority are made by the Joint Practice Committee as
provided in 24 Del.C. §1906(20) - (22).
8.10 Temporary Permit for Advanced Practice Nurse
Licensure
8.10.1 A temporary permit to practice, pending
Board approval for permanent licensure, may be issued
provided that:
8.10.1.1 The individual applying has also
applied for licensure to practice as a Registered Nurse in
Delaware, or
8.10.1.2 The individual applying holds a
current license in Delaware, and
8.10.1.3 The individual submits proof of
graduation from a nationally accredited or Board approved
Master's or certificate advanced practice nursing program,
and has passed the certification examination, or
8.10.1.4 The individual is a graduate of a
Master's program in a clinical nursing specialty for which
there is no certifying examination, and can show evidence of
at least 1000 hours of clinical nursing practice within the
past 24 months.
8.10.1.5 Application(s) and fee(s) are on file in
the Board office.
8.10.2 A temporary permit to practice, under
supervision only, may be issued at the discretion of the
Executive Director provided that:
8.10.2.1 The individual meets the
requirements in 8.10.1.1 or 8.10.1.2, and 8.10.1.5 and;
8.10.2.2 The individual submits proof of
graduation from a nationally accredited or Board approved
Master's or certificate advanced practice nurse program,
and;
8.10.2.3 The individual submits proof of
admission into the approved certifying agency's examination
or is seeking a temporary permit to practice under
supervision to accrue the practice hours required to sit for the
certifying examination or has accrued the required practice
hours and is scheduled to take the first advanced certifying
examination upon eligibility or is accruing the practice hours
referred to in 8.10.2.4; or,
8.10.2.4 The individual meets 8.10.2.1 and
8.10.2.2 hereinabove and is awaiting review by the
certifying agency for eligibility to sit for the certifying
examination.
8.10.3 If the certifying examination has been
passed, the appropriate form must accompany the
application.
8.10.4 A temporary permit may be issued:
8.10.4.1 For up to two years in three month
periods.
8.10.4.2 At the discretion of the Executive
Director.
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8.10.5 A temporary permit will be withdrawn:
8.10.5.1 Upon failure to pass the first
certifying examination
8.10.5.1.1 The applicant may petition the
Board of Nursing to extend a temporary permit under
supervision until results of the next available certification
exam are available by furnishing the following information:
8.10.5.1.1.1 current employer
reference,
8.10.5.1.1.2 supervision available,
8.10.5.1.1.3 job description,
8.10.5.1.1.4 letter outlining any
extenuating circumstances,
8.10.5.1.1.5 any other information
the Board of Nursing deems necessary.
8.10.5.2 For other reasons stipulated under
temporary permits elsewhere in these Rules and Regulations.
3 DE Reg. 1373 (4/1/00)
8.10.6 A lapsed temporary permit for designation
is equivalent to a lapsed license and the same rules apply.
8.10.7 Failure of the certifying examination does
not impact on the retention of the basic professional
Registered Nurse licensure.
8.10.8 Any person practicing or holding oneself
out as an Advanced Practice Nurse in any category without a
Board authorized license in such category shall be
considered an illegal practitioner and shall be subject to the
penalties provided for violations of the Law regulating the
Practice of Nursing in Delaware, (24 Del.C. Ch. 19).
8.10.9 Endorsement of Advanced Practice Nurse
designation from another state is processed the same as for
licensure by endorsement, provided that the applicant meets
the criteria for an Advanced Practice Nurse license in
Delaware.
8.11 Maintenance of Licensure Status: Reinstatement
8.11.1 To maintain licensure, the Advanced
Practice Nurse must meet the requirements for recertification
as established by the certifying agency.
8.11.2 The Advanced Practice Nurse must have
practiced a minimum of 1500 hours in the past five years or
no less than 600 hours in the past two years in the area of
specialization in which licensure has been granted.
8.11.2.1 Faculty members teaching in graduate
level clinical courses may count a maximum of 500 didactic
course contact hours in the past five years or 200 in the past
two years and all hours of direct on-site clinical supervision
of students to meet the practice requirement.
8.11.2.2 An Advanced Practice Nurse who
does not meet the practice requirement may be issued a
temporary permit to practice under the supervision of a
person licensed to practice medicine, surgery, dentistry, or
advanced practice nursing, as determined on an individual
basis by the Board.
8.11.3 The Advanced Practice Nurse will be
required to furnish the name(s) of the licensed physician,
dentist, podiatrist, or licensed Delaware health care delivery
system with whom a current collaborative agreement exists.
8.11.4 Advanced Practice Nurses who fail to renew
their licenses by February 28, May 31, or September 30 of
the renewal period shall be considered to have lapsed
licenses. After February 28, May 31, or September 30 of the
current licensing period, any requests for reinstatement of a
lapsed license shall be presented to the Board for action.
8.11.5 To reinstate licensure status as an Advanced
Practice Nurse, the requirements for recertification and 1500
hours of practice in the past five years or no less than 600
hours in the past two years in the specialty area must be met
or the process described in 8.11.4 followed.
8.11.6 An application for reinstatement of
licensure must be filed and the appropriate fee paid.
8.12 Audit of Licensees
8.12.1 The Board may select licensees for audit
two months prior to renewal in any biennium. The Board
shall notify the licensees that they are to be audited for
compliance of having a collaborative agreement.
8.12.1.1 Upon receipt of such notice, the
licensee must submit a copy of a current collaborative
agreement(s) within three weeks of receipt of the notice.
8.12.1.2 The Board shall notify the licensee of
the results of the audit immediately following the Board
meeting at which the audits are reviewed.
8.12.1.3 An unsatisfactory audit shall result in
Board action.
8.12.1.4 Failure to notify the Board of a
change in mailing address will not absolve the licensee from
audit requirements.
8.12.2 The Board may select licensees for audit
throughout the biennium.
8.13 Exceptions to the Requirements to Practice
8.13.1 The requirements set forth in 8.9 shall not
apply to a Registered Nurse who is duly enrolled as a bona
fide student in an approved educational program for
Advanced Practice Nurses as long as the practice is confined
to the educational requirements of the program and is under
the direct supervision of a qualified instructor.
8.14 Definitions
8.14.1 Collaborative Agreement - Includes
8.14.1.1 A true collegial agreement between
two parties where mutual goal setting, access, authority, and
responsibility for actions belong to individual parties and
there is a conviction to the belief that this collaborative
agreement will continue to enhance patient outcomes and
8.14.1.2 a written document that outlines the
process for consultation and referral between an Advanced
Practice Nurse and a duly licensed Delaware physician,
dentist, podiatrist or licensed Delaware health care delivery
system. This document can include, but not be limited to,
written verification of health care facility approved clinical
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1014 PROPOSED REGULATIONS
privileges or a health care facility approved job description
of the A.P.N. If the agreement is with a licensed Delaware
health care delivery system, the individual will have to show
that the system will supply appropriate medical back-up for
purposes of consultation and referral.
8.14.2 National Certification - That credential
earned by an Advanced Practice Nurse who has met
requirements of a Boardof Nursing approved certifying
agency.
8.14.3 Pharmacology/Pharmacotherapeutics -
refers to any course, program, or offering that would include,
butnot be limited to, the identification of individual and
classes of drugs, their indications and contraindications, their
likelihood of success, their dosages, their side-effects and
their interactions. It also encompasses clinical judgement
skills and decision making. These skills may be based on
thorough interviewing, history taking, physical assessment,
test selection and interpretation, patho-physiology,
epidemiology, diagnostic reasoning, differentiation of
conditions, treatment decisions, case evaluation and nonpharmacologic
interventions.
8.14.4 Prescription Order - includes the
prescription date, the name of the patient, the name, address,
area of specialization and business telephone number of the
advanced practice nurse prescriber, the name, strength,
quantity, directions for use, and number of refills of the drug
product or device prescribed, and must bear the name and
prescriber ID number of the advanced practice nurse
prescriber, and when applicable, prescriber's D.E.A. number
and signature. There must be lines provided to show
whether the prescription must be dispensed as written or
substitution is permitted.
8.15 Requirements for Initial Independent Practice/
prescriptive Authority
An APN who has not had independent prescriptive
authority within the past two years in Delaware or any other
jurisdiction who is applying for independent practice and/or
independent prescriptive authority shall:
8.15.1 Be an Advanced Practice Nurse
(APN)holding a current permanent license issued by the
Board of Nursing (BON). If the individual does not hold
national certification, eligibility will be determined on a case
by case basis.
8.15.2 Have completed a post basic advanced
practice nursing program that meets the criteria as
established in Section 4.7 of Article 7 of the Rules and
Regulations of the Delaware Board of Nursing with
documentation of academic courses in advanced health
assessment, diagnosis and management of problems within
the clinical specialty, advanced patho-physiology and
advanced pharmacology/pharmacotherapeutics. In the
absence of transcript verification of the aforementioned
courses, applicants shall show evidence of content
integration through course descriptions, course syllabi, or
correspondence from school officials. If the applicant cannot
produce the required documentation, such applicant may
petition the Joint Practice Committee for consideration of
documented equivalent independent prescriptive authority
experience.
8.15.3 Submit a copy of the current collaborative
agreement to the Joint Practice Committee (JPC). The
collaborative agreement(s) shall include arrangements for
consultation, referral and/or hospitalization complementary
to the area of the nurse's independent practice.
8.15.4 Show evidence of the equivalent of at least
thirty hours of advanced pharmacology and
pharmacotherapeutics related continuing education within
the two years prior to application for independent practice
and/or independent prescriptive authority. This may be
continuing education programs or a three credit, semester
long graduate level course. The thirty hours may also occur
during the generic APN program as integrated content as
long as this can be documented to the JPC. All offerings will
be reviewed and approved by the JPC.
8.15.5 Demonstrate how submitted continuing
education offerings relate to pharmacology and therapeutics
within their area of specialty. This can be done by
submitting the program titles to show content and dates
attended. If the JPC questions the relevance of the offerings,
the applicant must have available program descriptions, and/
or learner objectives, and/or program outlines for submission
to the JPC for their review and approval.
8.16 Requirements for Independent Practice/
prescriptive Authority by Endorsement
An APN who has had prescriptive authority in
another jurisdiction who is applying for independent practice
and/or independent prescriptive authority shall:
8.16.1 Show evidence of meeting 8.15.1 and
8.15.3.
8.16.2 Show evidence of having current
prescriptive authority in another jurisdiction.
8.16.3 Have no encumbered APN designation(s)
in any jurisdiction.
8.16.4 Show evidence of completion of a minimum
of ten hours of JPC approved pharmacology/
pharmacotherapeutics related continuing education within
the area of specialization and licensure within the past two
years.
8.17 Application
8.17.1 Names and credentials of qualified
applicants will be forwarded to the Joint Practice Committee
for approval and then forwarded to the Board of Medical
Practice for review and final approval.
8.18 Prescriptive Authority
8.18.1 APNs may prescribe, administer, and
dispense legend medications including Schedule II - V
controlled substances, (as defined in the Controlled
Substance Act and labeled in compliance with 24 Del.C.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1015
Section 2536(C), parenteral medications, medical
therapeutics, devices and diagnostics.
8.18.2 APNs will be assigned a provider identifier
number as outlined by the Division of Professional
Regulation.
8.18.3 Controlled Substances registration will be as
follows:
8.18.3.1 APNs must register with the Drug
Enforcement Agency and use such DEA number for
controlled substance prescriptions.
8.18.3.2 APNs must register biennially with
the Office of Narcotics and Dangerous Drugs in accordance
with 16 Del.C., Section 4732(a).
8.18.4 APNs may request and issue professional
samples of legend, including schedule II-V controlled
substances, and over-the-counter medications that must be
labeled in compliance with 24 Del.C., Section 2536(C).
8.18.5 APNs may give verbal prescription orders.
8.19 Prescriptive Writing
8.19.1 All prescription orders will be written as
defined by the Delaware Board of Pharmacy as defined in
8.14.4.
8.20 Renewal
8.20.1 Maintain current APN licensure.
8.20.2 Maintain competency through a minimum of
ten hours of JPC approved pharmacology/
pharmacotherapeutics related continuing education within
the area of specialization and licensure per biennium. The
pharmacology/ pharmacotherapeutics content may be a
separate course or integrated within other offerings.
8.21 Disciplinary Proceedings
8.21.1 Complaints against an APN will be
forwarded to the Division of Professional Regulation.
Acomplaint related to independent practice/prescriptive
authority will be referred to the Joint Practice Committee for
review and disposition and then forwarded to the Board of
Medical Practice for review and final approval in an
expeditious manner.
8.21.2 All other complaints regarding APNs will
continue to be under the sole jurisdiction of the Board of
Nursing.
See 4 DE Reg. 296 (8/1/00)
8.21.1 Pursuant to 24 Del. C., §1906(19)(c), the
Joint Practice Committee is statutorily empowered, with the
approval of the Board of Medical Practice, to grant
independent practice and/or prescriptive authority to nurses
who qualify for such authority. The Joint Practice
Committee is also empowered to restrict, suspend or revoke
such authority also with the approval of the Board of
Medical Practice.
8.21.2 Independent practice or prescriptive
authority may be restricted, suspended or revoked where the
nurse has been found to have committed unprofessional
conduct in his or her independent practice or prescriptive
authority or if his or her mental or physical faculties have
changed or deteriorated in such a manner as to create an
inability to practice or prescribe with reasonable skill or
safety to patients.
8.21.3 Unprofessional conduct, for purposes of
restriction, suspension or revocation of independent practice
or prescriptive authority shall include but not be limited to:
8.21.3.1 The use or attempted use of any false,
fraudulent or forged statement or document or use of any
fraudulent, deceitful, dishonest or immoral practice in
connection with any acquisition or use of independent
practice or prescriptive authority;
8.21.3.2 Conviction of a felony;
8.21.3.3 Any dishonorable or unethical
conduct likely to deceive, defraud or harm the public;
8.21.3.4 Use, distribution or prescription of any
drugs or medical devices other than for therapeutic or
diagnostic purposes;
8.21.3.5 Misconduct, incompetence, or gross
negligence in connection with independent or prescriptive
practice;
8.21.3.6 Unjustified failure upon request to
divulge information relevant to authorization or competence
to independently practice or exercise prescriptive authority
to the Executive Director of the Board of Nursing or to
anyone designated by him or her to request such
information.
8.21.3.7 The violation of the Nurse Practice
Act or of an Order or Regulation of the Board of Nursing or
the Board of Medical Practice related to independent
practice or prescriptive authority.
8.21.3.8 Restriction, suspension, or revocation
of independent practice or prescriptive authority granted by
another licensing authority in any state, territory or federal
agency.
8.21.4 Complaints concerning the use or misuse of
independent practice or prescriptive authority received by
the Division of Professional Regulation or the Board of
Nursing shall be investigated in accordance with the
provisions of Title 29, Section 8807 governing
investigations by the Division of Professional Regulation.
As soon as convenience permits, the Board of Nursing shall
assign an Investigating Board Member to assist with the
investigation of the complaint. The Investigating Board
Member shall, whenever practical, be a member of the Joint
Practice Committee.
8.21.5 Upon receipt of a formal complaint from the
Office of the Attorney General seeking the revocation,
suspension or restriction of independent practice or
prescriptive authority, the Committee Chairperson shall
promptly arrange for not less than a quorum of the
Committee to convene for an evidentiary hearing concerning
such complaint upon due notice to the licensee against whom
the complaint has been filed. Such notice shall comply with
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1016 PROPOSED REGULATIONS
the provisions of the Administrative Procedures Act (29 Del.
C., Chapter 101).
8.21.6 The hearing shall be conducted in
accordance with the Administrative Procedures Act (29 Del.
C., §101), and after the conclusion thereof, the Joint Practice
Committee will promptly issue a written Decision and Order
which shall be based upon the affirmative vote of a majority
of the quorum hearing the case.
8.21.7 Any written Decision and Order of the Joint
Practice Committee which imposes a restriction, suspension
or revocation of independent practice or prescriptive
authority shall not be effective prior to the approval of the
Board of Medical Practice.
12.0 Advisory Committees
12.1 Appointment of Committees
12.1.1 The Board may appoint advisory
committees to assist in the performance of its duties.
12.1.2 Advisory committees will be chaired by a
Board member.
12.1.3 Each advisory committee shall consist of
members who have expertise in the subject assigned.
12.1.4 Any such advisory committee shall function
in the public interest, and no member shall be designated as
representative of any agency or organization.
12.2 Membership of Committees
12.2.1 Potential members shall submit resumes and
receive Board approval prior to appointment.
12.2.2 Members may include Registered Nurses,
Licensed Practical Nurses, Advanced Practice Nurses and
lay persons.
12.3 Joint Practice Committee
12.3.1 Membership
12.3.1.1 Members are selected Del. C., §
1906(19)
12.3.1.2 The Board of Nursing shall appoint
the Advanced Practice Nurses (APN) under the following
guidelines:
12.3.1.2.1 At least one of the APN
members shall be a Clinical Specialist, one APN member a
Certified Nurse Midwife, one APN member a Certified
Registered Nurse Anesthetist, and two APN members Nurse
Practitioners. If there is no qualified APN available in the
needed specialty, then appointments shall be made from
APNs in other specialties.
12.3.1.2.2 The APNs must have
independent prescriptive authority to be a member of the
JPC.
12.3.1.2.3 The Board of Nursing shall
appoint one public member.
12.3.1.3 One of the Board of Nursing
appointees shall be a current Board of Nursing Member.
12.3.1.4 The Executive Director of the Board
of Nursing shall make a call for applications for potential
members to fill vacancies on the JPC. The potential
members shall submit their resumes to the Executive
Director. The resumes shall be reviewed by the Executive
Director and the APN member of the Board of Nursing.
They shall then make recommendations to the Board of
Nursing for approval and appointment of the members to the
JPC.
12.3.1.5 Members shall serve two-year terms.
12.3.1.6 The Executive Director shall verify
members' continued interest in serving on the JPC prior to
expiration of their two-year term. The Executive Director
shall submit the names of the JPC members who are
interested in serving another term on the JPC to the Board of
Nursing for reappointment to the JPC.
12.3.1.7 Members who miss three consecutive
meetings shall be reported to the appointing Board which
may appoint a replacement member.
12.3.1.8 JPC shall be staffed by the Executive
Director of the Board of Nursing or designee who shall assist
the JPC in carrying out its duties.
12.3.2 Officers
12.3.2.1 JPC members shall elect a Chair and
Vice-Chair each September.
12.3.2.2 The Chair shall preside at meetings
and hearings.
12.3.2.3 The Vice-Chair shall preside at the
meetings and hearings in the absence of the Chair.
12.3.2.4 In the absence of the Chair and Vice-
Chair, the next senior member shall preside.
12.3.3 Meetings
12.3.3.1 Meetings will be scheduled in
accordance with all Laws and Rules and Regulations that
apply to Committees under the Division of Professional
Regulation.
12.3.3.2 Five members of the JPC constitute a
quorum.
12.3.3.3 A meeting calendar shall be approved
by the JPC each September.
12.3.3.4 The JPC shall meet as necessary to
carry out its responsibilities as defined in 24 Del. C.,
§1906(20).
12.3.3.5 The Board of Nursing Members on
the JPC shall give the committee report at each Board of
Nursing meeting. The Executive Director shall give the
report if the Board Member is absent.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1017
DEPARTMENT OF EDUCATION
Statutory Authority: 14 Delaware Code,
Section 122(a) (14 Del.C. §122(a))
Educational Impact Analysis Pursuant
To 14 Del. C. Section 122(D)
201 School Shared Decision-makingTransition
Planning Grants
205 School Shared Decision-makingTransition
Planning Grants
210 Approval Of School Improvement Grants
A. Type Of Regulatory Action Requested
Reauthorization of Existing Regulation
B. Synopsis Of Subject Matter Of Regulation
The Secretary of Education seeks the approval of the
State Board of Education to reauthorize the following
regulations: 201 School Shared Decision-Making Transition
Planning Grants, 205 District Shared Decision-Making
Transition Planning Grants and 210 Approval of School
Improvement Grants. These regulations have not changed
and are recommended for re-authorization because 14 Del.
C. Chapter 8, School Shared Decision-Making requires the
Department of Education to have regulations in these three
areas. The implementation timetables in Chapter 8 have
passed and recourses are no longer available but the statute
remains in the Delaware Code and the regulations must be
preserved.
C. Impact Criteria
1. Will the reauthorized regulations help improve
student achievement as measured against state achievement
standards? The reauthorized regulations addresse the
submission and approval of planning grants not achievement
standards.
2. Will the reauthorized regulations help ensure that all
students receive an equitable education? The reauthorized
regulations address the submission and approval of planning
grants not equity issues.
3. Will the reauthorized regulations help to ensure that
all students' health and safety are adequately protected? The
reauthorized regulations address the submission and
approval of planning grants not health and safety issues.
4. Will the reauthorized regulations help to ensure that
all students' legal rights are respected? The reauthorized
regulations address the submission and approval of planning
grants not students' legal rights..
5. Will the reauthorized regulations preserve the
necessary authority and flexibility of decision makers at the
local board and school level? The reauthorized regulations
will preserve the necessary authority and flexibility of
decision makers at the local board and school level.
6. Will the reauthorized regulations place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
reauthorized regulations will not place unnecessary reporting
or administrative requirements or mandates upon decision
makers at the local board and school levels.
7. Will decision-making authority and accountability
for addressing the subjects to be regulated be placed in the
same entity? The decision-making authority and
accountability for addressing the subjects to be regulated
will remain in the same entity.
8. Will the reauthorized regulations be consistent with
and not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies? The reauthorized regulations will be consistent with
and not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies.
9. Is there a less burdensome method for addressing the
purpose of these regulations? The Delaware Code, Chapter 8
requires the Department of Education to make these
regulations.
10. What is the cost to the state and to the local school
boards of compliance with these regulations? In the past the
legislature has provided the funds necessary to implement
these regulations.
201 School Shared Decision-Making Transition
Planning Grants
1.0 Requests for a school shared decision-making
transition planning grant shall be submitted via the local
board of education to the Office of the Secretary of
Education, Delaware Department of Education, P.O. Box
1402, Townsend Building, Dover, DE 19903. Grant
requests shall include the following information:
2.0 A copy of the Report and Recommendations of the
School Advisory Committee. The Report must be signed by
a representative of each stakeholder group that participated
in the process and should include the following information,
indicating that the requirements of 14 Del. C. § 804. have
been met.
2.1 School Advisory Committee (list names and
groups represented)
2.2 Listing of the structured conversations and a
brief description of the activities
2.3 Brief description of how stakeholders made a
good faith effort to communicate with their constituent
groups
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1018 PROPOSED REGULATIONS
2.4 Recommendation to develop a school transition
plan to implement shared decision-making
2.5 Process for establishing a school transition plan
2.6 Process for determining the composition and
roles and responsibilities delegated to the School Transition
Team
3.0 The School TransitionTeam (list names and groups
represented).
3.1 A description of the process for the School
Transition Team to reach decisions and resolve conflicts.
4.0 Assurance that the school has committed to develop
a school improvement plan including comprehensive school
improvement goals tied to state and local academic
performance standards and strategies to achieve these goals
and including staff development for building the necessary
capacities and skills to successfully implement shared
decision-making and improve parental involvement.
5.0 A description of the plan for communicating the
results of the school improvement plan to the broader school
community for information and critical review.
6.0 A description of how the various stakeholder groups
will formally express their opinion regarding the school
transition plan prior to its adoption by the local board of
education.
7.0 Signatures of each stakeholder group representative
indicating the stakeholder's belief that the grant should be
awarded to the school. Any stakeholder refusing to sign
should explain why as part of the grant request.
8.0 Assurance that a copy of the Report and
Recommendations is posted within the school for public
review.
9.0 Assurance that each stakeholder signing the Report
and Recommendations has received a copy of the signed
report, as well as a copy of the grant request.
10.0 Procedure to be used by interested parties to obtain
a copy of the school grant request.
205 District Shared Decision-Making Transition
Planning Grants
1.0 Requests for a district shared decision-making
transition planning grant shall be submitted to the Office of
the Secretary of Education, Delaware Department of
Education, P.O. Box 1402, Townsend Building, Dover, DE
19903. Grant requests shall include the following
information:
1.1 The Board Resolution endorsing both the
concept of shared decision-making and the Report and
Recommendations of the District Advisory Committee.
1.2 A copy of the Report and Recommendations of
the District Advisory Committee. The Report must be
signed by a representative of each stakeholder group that
participated in the process and should include the following
information, indicating that the requirements of 14 Del. C. §
802 have been met.
1.2.1 District Advisory Committee (list names
and groups represented)
1.2.2 Listing of the structured conversations
and a brief description of the activities
1.2.3 Brief description of how stakeholders
made a good faith effort to communicate with their
constituent groups
1.2.4 Recommendation to develop a district
transition plan to implement shared decision-making
1.2.5 Process for establishing a district
transition plan
1.2.6 Process for determining the composition
and roles and responsibilities delegated to the District
Transition Team
1.3 The District Transition Team (list names and
groups represented).
1.4 A description of the process for the District
Transition Team to reach decisions and resolve conflicts.
1.5 A description of the plan for communicating
the results of the district transition plan to the broader school
community for information and critical review.
1.6 Acknowledgment that within the district
transition plan there must be a policy for supporting shared
decision-making activities from the local budget, including
the school improvement planning process set forth in 14 Del.
C. § 806, and acknowledgment that funds must be
specifically identified and made available for use by school
committees.
1.7 A description of how the various stakeholder
groups will formally express their opinion regarding the
district transition plan prior to its adoption by the local board
of education.
1.8 Signatures of each stakeholder group
representative indicating the stakeholder's belief that the
grant should be awarded to the district. Any stakeholder
refusing to sign should explain why as part of the grant
request.
1.9 Assurance that a copy of the Report and
Recommendations is posted within the district for public
review.
1.10 Assurance that each stakeholder signing the
Report and Recommendations has received a copy of the
signed report, as well as a copy of the grant request.
1.11 Procedure to be used by interested parties to
obtain a copy of the district grant request.
210 Approval of School Improvement Grants
1.0 A school that has an approved shared decisionmaking
transition plan as specified in 14 Del. C. §806, may
apply for a school improvement implementation grant. To
apply for a grant, the principal of the eligible school should
submit a letter of request to the Office of the Secretary of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1019
Education, Delaware Department of Education, P. O. Box
1402, Townsend Building, Dover, DE 19903. Requests shall
include the following information:
1.1 Evidence that the local board of education has
adopted the school's transition plan; and
1.2 The school improvement plan containing the
following components:
1.2.1 Comprehensive school improvement
goals tied to state and local academic performance standards
and strategies to achieve these and other goals identified by
the school, including staff development and parental
involvement;
1.2.2 A description of the rationale for the
proposed governance structure, stating how and why the
governance process should improve decision-making and
support continuous improvement in teaching and student
learning;
1.2.3 Evidence of review by the broader
school community with agreement that the school
improvement plan is consistent with the school district plan
and evidence that the local board of education has formally
adopted the school's improvement plan;
1.2.4 A proposed budget that explains the use
of resources allocated to the school to support strategies for
achieving the school improvement goals;
1.2.5 The structural changes or procedures for
providing the necessary time and skill-building to support
shared decision-making and continuous improvement in
teaching and student learning;
1.2.6 The assessment and evaluation process
that the school will use to measure its progress toward
achieving its stated goals;
1.2.7 A proposed timeline for phasing-in the
school improvement plan; and
1.2.8 A proposed budget for the use of the
school improvement grant.
2.0 A school with an approved application shall be
eligible for a school improvement grant for the following (3)
years as provided in the annual appropriations act.
Subsequent applications may be made only after the review
and evaluation of the school improvement plan required by
14 Del. C. §808 is completed and the results of such are
included in the school's application.
See 1 DE Reg. 1400 (3/1/98)
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
DELAWARE STATE LOTTERY OFFICE
Statutory Authority: 29 Delaware Code,
Section 4805(a) (29 Del.C. §4805(a))
The Delaware Lottery Office proposes this Regulation
amendment pursuant to 29 Del. C. §4805(a). The Lottery
will accept written comments from November 1, 2001
through November 30, 2001. The Lottery will hold a public
hearing on the proposed amendments on November 26, 2001
at 10:00 a.m. at the Lottery Office, Second Floor Conference
Room, 1575 McKee Road, Suite 102, Dover, DE 19904-
1903. Written comments should be submitted to the Lottery
at the above address and noted to the attention of Lottery
Director Wayne Lemons.
5.0 Technology Providers: Contracts; Requirements;
Duties
5.1 The Director shall, pursuant to the procedures set
forth in chapter 69 of title 29 of the Delaware Code, enter
into contracts with licensed technology providers as he or
she shall determine to be appropriate, pursuant to which the
technology providers shall furnish by sale or lease to the
State video lottery machines in such members and for such
video games as the Director shall approve from time to time
as necessary for the efficient and economical operation of
the lottery, or convenience of the players, and in accordance
with the agents business plans as approved and amended by
the Director. No single technology provider shall supply
more than 65% of the total number of video lottery machines
at the premises of any agent. No more than 1,000 video
lottery machines shall be located within the confines of an
agents premises unless the Director approves up to an
additional 1,000 machines or other number approved by the
Director as permitted by law.
5.2 All contracts with technology providers who are
video lottery machine manufacturers shall include without
limitation, provisions to the following effect:
5.2.1 The technology provider shall furnish a
person to work with the agency and its consultants to provide
assistance as needed in establishing, planning and executing
acceptance tests on the video lottery machines provided by
such technology provider. Technology provider assistance
shall be provided as requested by the agency in
troubleshooting communication and technical problems that
are discovered when video lottery machines are initially
placed at the agent's site;
5.2.2 The technology provider shall submit video
lottery machine illustrations, schematics, block diagrams,
circuit analysis, technical and operation manuals, program
source code and object code and any other information
requested by the Director for purposes of analyzing and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1020 PROPOSED REGULATIONS
testing the video lottery machines. A maximum of Twenty
Five Dollars ($25) shall be permitted for wagering on a
single play of any video game;
5.2.3 For testing, examination and analysis
purposes, the technology provider shall furnish working
models of video lottery machines, associated equipment, and
documentation at locations designated by the Director. The
technology provider shall pay all costs of any testing,
examination, analysis and transportation of the video lottery
machines, which may include the entire dismantling of the
machines and some tests that may result in damage or
destruction to one or more electronic components of the
machines. The agency and its agents shall have no liability
for any damage or destruction. The agency may require that
the technology provider provide specialized equipment or
the agency may employ the services of an independent
technical laboratory expert to test the video lottery machine
at the technology provider's expense;
5.2.4 Technology providers shall submit all
hardware, software, and test equipment necessary for testing
of their video lottery machines, and shall provide the director
with keys and locks subject to the Director's specifications
for each approved video lottery machine;
5.2.5 The EPROMs of each video lottery machine
shall be certified to be in compliance with published
specifications;
5.2.6 No video lottery machine shall be put into use
prior to certification of its model by the Director;
5.3 All contracts with technology providers shall
include without limitation, provisions to the following
effect:
5.3.1 Technology providers shall agree to promptly
report any violation or any facts or circumstances that may
result in a violation of these rules; provide immediate access
to all its records and its physical premises for inspection at
the request of the Director; attend all trade shows or
conferences as required by the Director;
5.3.2 Technology providers shall agree to modify
their hardware and software as necessary to accommodate
video game changes directed by the agency from time to
time;
5.3.3 Technology providers shall provide such
bonds and provide evidence of such insurance as the
Director shall require from time to time and in such amounts
and issued by such companies as the Director shall approve;
and
5.3.4 Technology providers shall have a valid
license to conduct business in the State of Delaware, shall
comply with all applicable tax provisions, and shall in all
other respects be qualified to conduct business in Delaware.
5.4 Each video lottery machine certified by the Director
shall bear a decal and shall conform to the exact
specifications of the video lottery machine model tested and
certified by the Director.
5.5 No video lottery machine may be transported out of
the State until the decal has been removed and no decal shall
be removed from a video lottery machine without prior
agency approval.
5.6 Technology providers shall hold harmless the
agency, the State of Delaware, and their respective
employees for any claims, loss, cost, damage, liability or
expense, including, without limitation, legal expense arising
out of any hardware or software malfunction resulting in the
wrongful award or denial of credits or cash.
5.7 A technology provider shall not distribute a video
lottery machine for placement in the state unless the video
lottery machine has been approved by the agency. Only
licensed technology providers may apply for approval of a
video lottery machine or associated equipment. The
technology provider shall submit two copies of video lottery
machine illustrations, schematics, block diagrams, circuit
analysis, technical and operation manuals, program source
code and object code, and any other information requested
by the agency for purposes of analyzing and testing the video
lottery machine or associated equipment.
5.8 The agency may require that two working models of
a video lottery machine be transported to the location
designated by the agency for testing, examination, and
analysis. The technology provider shall pay all costs of
testing, examination, analysis and transportation of such
video lottery machine models, which may include the entire
dismantling of the video lottery machine and tests which
may result in damage or destruction to one or more
electronic components of such video lottery machine model.
The agency may require that the technology provider
provide specialized equipment or the services of an
independent technical expert in testing the terminal.
5.9 After each test has been completed, the agency shall
provide the video lottery machine technology provider with
a report that contains findings, conclusions, and pass/fail
results. Prior to approving a particular video lottery
machine model, the agency may require a trial period not in
excess of sixty (60) days for a licensed agent to test the video
lottery machine. During the trial period, the technology
provider may not make any modifications to the video
lottery machine model unless such modifications are
approved by the agency.
5.10 The technology provider is responsible for the
assembly and initial operation, in the manner approved and
licensed by the agency, of all its video lottery machines and
associated equipment. The technology provider may not
change the assembly or operational functions of any of its
video lottery machines approved for placement in Delaware
unless a "request for modification to an existing video lottery
machine prototype" is made to the agency, that request to
contain all appropriate information relating to the type of
change, reason for change, and all documentation required.
The agency must approve such request prior to any changes
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1021
being made, and the agency shall reserve the right to require
second testing of video lottery machines after modifications
have been made.
5.11 Each video lottery machine approved for
placement in a licensed agent's place of business shall
conform to the exact specifications of the video lottery
machine prototype tested and approved by the agency. Any
video lottery machine which does not so conform shall be
disconnected from the Delaware video lottery system until
compliance has been achieved. Each video lottery machine
shall at all times operate and be placed in accordance with
the provisions of these regulations.
5.12 The following duties are required of all licensed
technology providers, without limitation:
5.12.1 Manufacture terminals and associated
equipment for placement in Delaware in accordance with the
specifications of the agency.
5.12.2 Manufacture terminals and associated
equipment to ensure timely delivery to licensed Delaware
agents.
5.12.3 Maintain and provide an inventory of
associated equipment to assure the timely repair and
continued, approved operation and play of licensed video
lottery machines acquired under the contract for placement
in Delaware.
5.12.4 Provide an appropriate number of service
technicians with the appropriate technical knowledge and
training to provide for the service and repair of its licensed
video lottery machines and associated equipment so as to
assure the continued, approved operation and play of those
licensed video lottery machines acquired under contract for
placement in Delaware.
5.12.5 Obtain any certification of compliance
required under the applicable provisions of rules adopted by
the Federal Communications Commission.
5.12.6 Promptly report to the agency any violation
or any facts or circumstances that may result in a violation of
State or Federal law and/or any rules or regulations adopted
pursuant thereto.
5.12.7 Conduct video lottery operations in a
manner that does not pose a threat to the public health,
safety, or welfare of the citizens of Delaware, or reflect
adversely on the security or integrity of the video lottery.
5.12.8 Hold the agency and the State of Delaware
and its employees harmless from any and all claims that may
be made against the agency, the State of Delaware, or the
employees of either, arising from the technology provider's
participation in or the operation of a video lottery game.
5.12.9 Defend and pay for the defense of all claims
that may be made against the agency, the State of Delaware,
or the employees of either, arising from the technology
provider's participation in video lottery operations.
5.12.10 Maintain all required records.
5.12.11 Lease or sell only those licensed video
lottery machines, validation units and associated equipment
approved under these regulations.
5.12.12 It shall be the continuing duty of the
technology provider licensee to provide the Director with an
updated list of the names and addresses of all its employees
who are involved in the daily operation of the video lottery
machines. These employees will include individuals or their
supervisors involved with (1) the repair or maintenance of
the video lottery machines, or (2) positions that provide
direct access to the video lottery machines. It shall be the
continuing duty of the technology provider licensee to
provide for the bonding of each of these individuals to
ensure against financial loss resulting from wrongful acts on
their parts.
5.12.13 It shall be the ongoing duty of the
technology provider licensee to notify the Director of any
change in officers, partners, directors, key employees, video
lottery operations employees, or owners. These individuals
shall also be subject to a background investigation. The
failure of any of the above-mentioned individuals to satisfy a
background investigation may constitute "cause" for the
suspension or revocation of the technology provider's
license.
5.12.14 Provide the agents with the technical
ability to distribute the proceeds of the video lottery in
accordance with the requirements of these regulations and 29
Del.C. Ch. 48.
5.12.15 Supervise its employees and their activities
to ensure compliance with these rules.
5.12.16 Promptly report to the Lottery any violation
or any facts or circumstances that may result in a violation of
State or Federal law and/or any rules or regulations pursuant
thereto, excluding violations concerning motor vehicle laws.
5.12.17 Comply with such other requirements as
shall be specified by the Director.
2 DE Reg. 115 (7/1/98)
2 DE Reg. 779 (11/1/98)
3 DE Reg. 1082 (2/1/00)
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF PUBLIC HEALTH
Statutory Authority: 16 Delaware Code,
Section 122(3)h (16 Del.C. §122(3)h)
These regulations, "The State of Delaware Rules and
Regulations Pertaining to the Practice of Non-Nurse
Midwifery," replace by recision the current "State of
Delaware Rules and Regulations Pertaining to the Practice of
Certified Midwifery" previously adopted on April 17, 1978
and most recently amended May 15, 1985.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1022 PROPOSED REGULATIONS
The new regulations establish and define conditions
under which individuals may be granted permits to practice
direct entry/non-nurse midwifery in the State of Delaware.
The Department of Health and Social Services, through the
Division of Public Health, will recognize and issue a permit
to practice midwifery for direct entry/non-nurse midwives.
Notice Of Public Hearing
The Community Health Care Access Section, Division
of Public Health, Department of Health & Social Services,
will hold a public hearing to discuss the proposed adoption
of new "State of Delaware Rules and Regulations Pertaining
to the Practice of Non-Nurse Midwifery." The public
hearing will be held on November 28, 2001, at 3:00 PM, in
Room 400B, Delaware Technical and Community College,
Terry Campus, Route 13 & Denny's Road, Dover, Delaware.
Information concerning the proposed regulation is
available at the following location:
Community Health Care Access Section
Jesse Cooper Building
Federal and Water Streets
Dover, Delaware 19901
Telephone: (302) 739-4735
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by November 27, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by December 3,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
Delaware State Board Of Health
Rules And Regulations Pertaining To The
Practice Of Midwifery
Adopted by the State Board of Health on April 17, 1978,
amended September 19, 1978, and December 22, 1982, and
amended to be effective 5/15/85.
Under the authority granted to the State Board of Health
under 16 Del. C. §122 (3) (h), the Board of Health of the
State of Delaware hereby adopts the following regulations
pertaining to the practice of midwifery in the State of
Delaware.
Section I - Definitions
a. Midwifery is the management of the woman
throughout an essentially uncomplicated maternity cycle and
includes the immediate care of the newborn. Management
may include but is not limited to the following acts: physical
examination during the maternity cycle; history taking;
prenatal, postpartum and family planning education and
counseling; preparation for childbirth; physical and
emotional monitoring during labor and delivery including
diagnostic tests; attending spontaneous vaginal births;
routine inspection of the vagina and cervix throughout the
maternity cycle; providing local anesthesia for perineal
repair; performing and repairing episiotomies; resuscitating
the newborn according to accepted procedures; documenting
activities in appropriate maternity records; signing Birth
Certificates: Provided, however, that these regulations shall
not apply to a person assisting a licensed physician who may
perform any of the above listed acts, or under emergency
circumstances.
b. Essentially uncomplicated refers to periodic mutual
determinations by the midwife and physician that the
woman's physical and support needs can be met safely by a
midwife.
c. Alliance is a relationship between a midwife and a
physician(s) licensed to practice medicine or osteopathy in
Delaware whereby medical consultation and referral,
available on a 24-hour basis, is agreed upon in writing,
signed by both parties, and filed with the State Board of
Health.
Section II - Qualifications
No permit to practice midwifery in the State of
Delaware shall be issued by the State Board of Health unless
an applicant can demonstrate that said applicant has met the
following qualifications:
a. Age of 21 years or older;
b. Licensed as a Registered Professional Nurse in the
State of Delaware;
c. Possesses a valid certification by the American
College of Nurse Midwives;
d. Submits a sworn statement that he/she has not been
convicted of a felony; been professionally penalized or
convicted of substance addiction; had a professional nursing
license suspended or revoked in this or another state; been
professionally penalized or convicted of fraud; is physically
and mentally capable of engaging in the practice of
midwifery; and
d. Has formed an alliance.
Section III - Application
Any person desiring to obtain a permit to practice
midwifery shall make a written application to the Secretary
of the State Board of Health. Such application shall be
accompanied by the necessary documents setting forth the
facts that the applicant possesses the qualifications in
Section II. If after investigation of the application by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1023
State Board of Health or its designee, it appears the applicant
is qualified to practice midwifery, the State Board of Health
shall issue a permit to practice midwifery in the State of
Delaware.
Section IV - Maintenance of Permit
No person granted a permit under these regulations shall
engage in active practice of midwifery without having an
established alliance with a physician(s) licensed to practice
medicine or osteopathy in the State of Delaware. Should the
alliance be terminated during the permit period, the midwife
must form a new alliance and submit the agreement to the
State Board of Health before continuing to practice as a
midwife. Failure to do so will result in automatic and
immediate revocation of permit.
Loss of certification as a midwife from the American
College of Nurse Midwives or suspension or revocation of
the license to practice professional nursing in Delaware will
result in automatic and immediate revocation of the permit to
practice midwifery in Delaware.
Section V - Renewal of Permit
Any permit granted to practice midwifery in the State of
Delaware shall terminate annually on December 31. The fee
for such annual permit shall be $15.00. Said permit shall be
renewable annually with the filing of an application and
documentation setting forth continued qualification in items
"b" through "e" of Section II. Should said permit not be
renewed by January 31, the permit is considered lapsed and
the midwife shall apply according to Section III.
Section VI - Exclusion
Any person who on September 19, 1978, held a valid
permit issued by the State Board of Health to practice
midwifery in the State of Delaware may be granted a permit
to practice midwifery even though that person does not meet
the qualifications specified in items "b" and "c" of Section II
of these Rules and Regulations providing such midwife must
continue to demonstrate to the State Board of Health full
compliance with all other provisions of these Regulations
and any special conditions as set forth by the State Board of
Health to assure full compliance with all other provisions.
Section VII - Complaints
Any person may make a complaint in writing to the
State Board of Health concerning incompetency, negligence,
addiction to drugs and/or alcohol, physical or mental
impairment, misrepresentation, willful breach of confidence,
failure of a midwife to report a birth, or failure to otherwise
comply with these regulations. Complaints shall be
investigated by the State Board of Health or its designee and
a determination made as to the need for a hearing. In the
event a hearing is to be held, the midwife shall be notified by
certified mail at least fifteen (15) days prior to the hearing as
to the time and place of the hearing and any allegations
which the Board intends to investigate. If such complaint is
found to be justified, the permit of the midwife against
whom the complaint has been lodged may, at the discretion
of the State Board of Health, be revoked or suspended.
Section VIII - Illegal Practice
Any person who practices as a midwife as defined in
item "a" of Section I in the State of Delaware without a
permit issued by the State Board of Health shall be subject to
a fine pursuant to 16 Del. C. § 107.
Section IX - Effective Date
These Regulations shall become effective January 14,
1983, and shall replace Rules and Regulations Pertaining to
the Practice of Midwifery which were in effect until that
date.
Section X - Severability
Should any section, sentence, clause, or phrase of these
Rules and Regulations be legally declared unconstitutional
or invalid for any reason, the remainder of said Rules and
Regulations shall not be affected thereby.
Amendment To
Delaware State Board Of Health
Rules And Regulations Pertaining To The
Practice Of Midwifery
A waiver to the qualifications requirements may be approved
by the State Board of Health to allow practice by a
traditional midwife under the following circumstances and
qualifications:
a. Evidence is submitted to the State Board of Health of
a reasonable attempt to secure a licensed professional
midwife.
b. An alliance has been formed with a physician
licensed in Delaware and certified by the American Board of
Obstetrics and Gynecology.
c. Evidence is submitted of acceptable training and
experience as a midwife that meets criteria established by the
Board.
d. Is at least 21 years of age.
e. Submits a sworn statement that he/she has not been
convicted of a felony or charged with substance abuse, and is
physically and mentally capable of engaging in such
practice.
f. The area of practice shall be limited, by agreement
with the allied physician, to a population which is medically
underserved or has religious tenets opposed to medical
practices.
g. Agrees to abide by all laws and regulations
applicable to the care of newborn infants and registration of
births.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1024 PROPOSED REGULATIONS
If the above requirements are met, a limited license may be
approved, to be renewed annually, and the license so
designated.
Adopted by the State Board of Health to become effective
May 15, 1985.
State Of Delaware
Rules And Regulations Pertaining To The
Practice Of Non-Nurse Midwifery
These regulations replace regulations previously
adopted on April 17, 1978; amended September 19, 1978,
December 22, 1982, and May 15, 1985, by the Delaware
State Board of Health. Effective Date: Xxx xx, xxxx.
Section I - Purpose
The purpose of these Regulations is to establish and
define conditions under which individuals may be granted
permits to practice direct entry/non-nurse midwifery in the
State of Delaware. The Department of Health and Social
Services, through the Division of Public Health, will
recognize and issue a permit to practice midwifery for direct
entry/non-nurse midwives.
Section II - Authority
Title 16, Delaware Code, Chapter 1, Section 122 (3) h.
Section III - Definitions
a. Midwifery practice: is the management of women's
health care, focusing particularly on pregnancy, childbirth,
the postpartum period, care of the newborn, and the family
planning and gynecological needs of women, including the
prescription of appropriate medications and devices within
this defined scope of practice. The midwife practices within
a health care system that provides for consultation,
collaborative management or referral as indicated by the
health status of the client.
b. Direct entry/non-nurse midwife: A person who has
met the qualifications and received a permit from the
Delaware Division of Public Health to practice midwifery in
Delaware who is not licensed as an advanced practice nurse
midwife.
c. Certified midwife: A person who has met the criteria
stated in Section IVa (possesses a valid certification by
national certification body).
d. Collaborative Agreement: Written verification of
health care facility approved clinical privileges; or health
care facility approved job description; or a written document
that outlines the process for consultation and referral
between a direct entry/non-nurse midwife and a physician.
e. Guidelines/Protocols: Suggested pathways to be
followed by direct entry/non-nurse midwives for managing a
particular medical problem. These guidelines/protocols
shall be developed collaboratively by the midwife and a
licensed physician.
f. Referral: The process whereby a direct entry/nonnurse
midwife directs the client to a physician or another
health care professional for management of a particular
problem or aspect of the client's care.
Section IV - Qualifications
To receive a permit to practice direct entry/non-nurse
midwifery in the State of Delaware, an applicant must
submit documentation to the Division of Public Health that
they meet the following qualifications:
a. Possesses a valid certification by the American
College of Nurse-Midwives Certification Council, Inc.; has
completed a midwifery education program accredited by the
ACNM's Division of Accreditation; or has completed an
equivalent program of studies as determined by the
certification agency, including Certified Professional
Midwives (CPM) and/or Certified Midwife (CM).
b. Submits a sworn statement that he/she has not been
convicted of a felony; been professionally penalized or
convicted of substance addiction; had a professional
midwifery license suspended or revoked in this or another
state; been professionally penalized or convicted of fraud;
and is physically and mentally capable of engaging in the
practice of midwifery.
c. Establishes a collaborative agreement with a medical
provider which includes at a minimum:
• a minimum number of medical provider prenatal
visits.
• guidelines and protocols that must include access
and use of oxygen, medications (including
Intravenous medications), emergency protocols for
labor, delivery, and postpartum for both mother and
neonate.
d. Possesses personal medical malpractice insurance.
e. Submits to the Division of Public Health a sample
contract between the midwife and the pregnant women
outlining the scope of practice and potential risk factors and
complications.
Section V - Application
Any person who wishes to obtain a permit to practice
direct entry/non-nurse midwifery shall make a written
application to the Division of Public Health. Such
application shall be accompanied by the necessary
documents demonstrating that the applicant possesses the
qualifications in Section IV. If, after investigation of the
application by the Division of Public Health, it appears the
applicant is qualified to practice direct entry/non-nurse
midwifery, a permit to practice midwifery in the State of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1025
Delaware will be issued.
Section VI - Maintenance of Permit
No person granted a permit under these regulations shall
engage in active practice of direct entry/non-nurse
midwifery without continuously meeting the qualifications
in Section IV. Changes that occur during the permit period
(one year) must be reported to the Division of Public Health.
Section VII - Renewal of Permit
Any permit granted to practice direct entry/non-nurse
midwifery in the State of Delaware shall terminate annually
on December 31. The fee for such annual permit shall be
determined annually (in July) by the Division of Public
Health and not be less than $15.00. Permits shall be
renewable annually with the filing of an application and
documentation setting forth continued qualifications as
specified in Section IV. Should a permit not be renewed by
January 31, the permit is considered lapsed and the direct
entry/non-nurse midwife shall apply according to Section V.
Section VIII - Complaints
The Division of Public Health may, upon receipt of a
complaint or upon its own initiative, investigate allegations
against a direct entry/non-nurse midwife of incompetence,
negligence, substance abuse, misrepresentation, willful
breach of confidence, failure to report a birth, or failure to
comply with these regulations. Upon completion of the
investigation, if the allegations are determined to be
founded, the Division of Public Health may propose to
suspend or revoke the permit of the direct entry/non-nurse
midwife. The Division of Public Health shall notify the
direct entry/non-nurse midwife of the proposed sanctions
and offer the direct entry/non-nurse midwife the opportunity
for a hearing. The direct entry/non-nurse midwife must
request a hearing within 30 days of the date of the
notification of the proposed sanctions. If the direct entry/
non-nurse midwife does not request a hearing, the proposed
sanctions shall become final.
Section IX - Illegal Practice
Any person who practices as a direct entry/non-nurse
midwife, as defined in Section III, in the State of Delaware
without a permit issued by the Division of Public Health
shall be subject to a fine pursuant to 16 Del. C 107.
Section X - Severability
Should any section, sentence, clause, or phase of these
Rules and Regulations be legally declared unconstitutional
or invalid for any reason, the remainder of these Rules and
Regulations shall not be affected.
DIVISION OF PUBLIC HEALTH
Statutory Authority: 16 Delaware Code,
Section 9110 (16 Del.C. §9110)
These regulations amend regulations previously adopted
on November 16, 1998 and most recently amended July 1,
2001. They are to be adopted in accordance with Chapter
91, Section 9110, Title 16, Delaware Code. They will
supersede all previous regulations concerning the
Application and Operation of Managed Care Organizations
(MCO).
Summary Of Proposed Regulations
State Of Delaware Rules And Regulations Pertaining To
The Application And Operation Of Managed Care
Organizations (MCO).
The amendments to these regulations establish and
define conditions of elements contained within the Patient
Bill of Rights (SB181). The definition section of the
regulations is expanded to include language from SB181
relating to: balance billing; standing referrals to health care
specialists; clinical trials; the addition of pharmacy services
as a basic health service; and, the broadening of the
definition of emergency medical condition. The regulations
have been revised to clarify: referrals to non-network
providers and payment for same; minimal standing referral
procedure inclusions; and, clinical trial requirements.
Notice Of Public Hearing
The Office of Health Facilities Licensing and
Certification, Division of Public Health, Department of
Health and Social Services will hold public hearings to
discuss proposed revisions to Delaware Regulations for
Managed Care Organizations (MCOs).
The public hearings will be held November 26, 2001 at
10:00 AM in the third floor conference room, Jesse Cooper
Building, Federal and Water Streets, Dover, Delaware and at
10:00 AM on November 29, 2001 in the first (1st) floor
conference room, Delaware Fire Service Center, 2307
MacArthur Road, New Castle, DE 19720.
Copies of the proposed regulations are available for
review by calling the following location:
Office of Health Facilities Licensing and Certification
2055 Limestone Road, Suite 200
Wilmington, DE 19808
Telephone: (302) 995-8521
Anyone wishing to present his or her oral comments at
this hearing should contact Ms. Vanette Seals at (302) 995-
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1026 PROPOSED REGULATIONS
8521 by November 21, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of oral
testimony should submit such comments by December 3,
2001 to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
PART ONE
SECTION 69.0 LEGAL AUTHORITY
These regulations are adopted under Part VIII, Title 16,
Delaware Code, Chapter 91, pursuant to delegation of
authority from the Secretary of the Department of Health and
Social Services (DHSS) to the Director of the Division of
Public Health (DPH).
SECTION 69.1 DEFINITIONS
69.101 "Administrator/Chief Executive Officer":
the individual employed to manage and direct the activities
of the MCO.
69.102 "Appeal": a request to reexamine or review an
adverse determination made by an MCO that denies, reduces
or terminates health care benefits.
69.103 "Appellant": an enrollee (69.119) or other
authorized representative (69.104) of the enrollee who may
appeal an MCO decision.
69.104 "Authorized Representative": an individual
who the appellant willingly acknowledges to represent her/
his interests during the appeal process. An MCO may
require the appellant to submit written verification of her/his
consent to be represented. If an enrollee has been
determined by a physician to be incapable of assigning the
right of representation, the appeal may be filed by a family
member or a legal representative.
69.105 "Balance Billing": a health care provider's
demand that a patient pay a greater amount for a given
service than the amount the individual's insurer, managed
care organization, or health service corporation has paid or
will pay for the service.
69.105 106 "Basic Health Services": a range of
services, including at least the following:
A. Physician services, including consultant and
referral services, by a physician licensed by the State of
Delaware.
B. At least three hundred sixty-five (365) days of
inpatient hospital services.
C. Medically necessary emergency health
services.
D. Initial diagnosis and acute medical treatment
(at least one (1) time) and responsibility for making initial
behavioral health referrals.
E. Diagnostic laboratory services.
F. Diagnostic and therapeutic radiological
services.
G. Preventive health services including at least the
provision of physical examinations, papanicolaou (PAP)
smears, immunizations, mammograms and childrens' eye
examinations (through age 17) conducted to determine the
need for vision correction and performed at a frequency
determined to be appropriate medical practice. Other
preventive services may be provided by the MCO as
contained in the Health Care Contract.
H. Health education services, including education
in the appropriate use of health services, and education in the
contribution each enrollee can make to the maintenance of
the enrollee's own health. This information shall be
understandable and not misleading.
I. Emergency out-of-area and out-of-network
coverage.
J. Pharmacy services:
1. Coverage for any outpatient drug
prescribed to treat a covered chronic, disabling, or lifethreatening
illness provided that the drug:
a) has been approved by the Food and
Drug Administration (FDA) for at least one indication; and,
b) is recognized for treatment of the
indication for which the drug is prescribed in an approved
prescription drug reference compendium approved by the
Commissioner or a substantially accepted peer reviewed
medical literature.
2. Coverage of a drug shall include coverage
of medically necessary services associated with the
administration of the drug.
3. Coverage does not include:
a) experimental drugs not otherwise
approved for the proposed use or indication by the Food and
Drug Administration, or
b) any disease, condition, service, or
treatment that is excluded from coverage under the policy.
69.107 "Carrier": any entity that provides health
insurance in this State. Carrier includes an insurance
company, health service corporation, health maintenance
organization and any other entity providing a plan of health
insurance or health benefits subject to state insurance
regulation
69.106 108 "Certificate of Authority": the
authorization by the Department of Health and Social
Services to operate the MCO. This certificate shall be
deemed to be a license to operate such an Organization.
69.107 109 "Certified Managed Care Organization":
a managed care organization which has been issued a
Certificate of Authority under 16 Del. C. and either a
Certificate of Authority from the Department of Insurance
(DOI) under the relevant provisions of Title 18 or a
statement from the DOI that the DOI Certificate of Authority
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1027
is not required.
69.110 "Clinical Trials": clinical trials that are
approved or funded by use of the following entities:
A. One of the National Institutes of Health (NIH);
B. An NIH Cooperative group of center which is a
formal network of facilities that collaborate or research
projects and have an established NIH approval peer review
program operating within the group;
C. The federal Departments of Veterans' Affairs
or Defense;
D. An institutional review board of an institution
in this State that has a multiple project assurance contract
approval by the office of protection for the Research Risks of
the NIH; and
E. A qualified research entity that meets the
criteria for NIH Center Support grant eligibility.
69.108 111 "Commissioner": the Insurance
Commissioner of Delaware.
69.109 112 "Covered Health Services": services that
are included in the enrollee's health care contract with the
insurer.
69.110 113 "Covered Person": see "Enrollee".
69.111 114 "Department": the Delaware Department
of Health and Social Services.
69.112 115 "Department of Insurance Certificate of
Authority": the authorization by the Insurance
Commissioner that the MCO has met the relevant provisions
of Title 18 of the Delaware Code.
69.113 116 "Disputable Need": an appeal
classification for adverse determinations that were made
based upon identification of treatment as cosmetic or
experimental.
69.114 117 "Emergency Care": health care items or
services furnished or required to evaluate or treat an
emergency medical condition.
69.115 118 "Emergency Medical Condition": a
medical or behavioral condition, the onset of which is
sudden, that manifest s ing itself by acute symptoms of
sufficient severity (including, but not limited to, severe
pain,) such that a prudent layperson, who possessesing an
average knowledge of health and medicine, could reasonably
expect the absence of immediate medical attention to result
in:
A. Placing the health of the individual afflicted
with such condition (or, with respect to a pregnant woman,
the health of the woman or her unborn child) in serious
jeopardy, or in the case of a behavioral condition, placing the
health of such person or others in serious jeopardy;
B. Serious impairment to bodily functions; or
C. Serious impairment or dysfunction of any
bodily organ or part; or.
D. Serious disfigurement of such person.
69.116 119 "Enrollee": an individual and/or family
who has entered into a contractual arrangement, or on whose
behalf a contractual arrangement has been entered into with
the MCO, under which the MCO assumes the responsibility
to provide to such person(s) coverage for basic health
services and such supplemental health services as are
enumerated in the Health Care Contract.
69.117 120 "Geographical area": the stated primary
geographical area served by an MCO. The primary area
served shall be a radius of not more than twenty (20) miles or
more than thirty (30) minutes driving time from a primary
care office operated or contracted by the MCO.
69.118 121 "Health Care Contract": any agreement
between an MCO and an enrollee or group plan which sets
forth the services to be supplied to the enrollee in exchange
for payments made by the enrollee or group plan.
69.119 122 "Health Care Professional": individuals
engaged in the delivery of health services as licensed or
certified by the State of Delaware.
69.120 123 "Health Care Services": any services
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 person of any and all other services for the purpose of
preventing, alleviating, curing or healing human illness,
injury or physical disability.
69.121 124 "Independent Health Care Appeals
Program": a program within the Department of Health and
Social Services which establishes a final step in the appeal
process and provides for a review by an Independent
Utilization Review Organization (69.126).
69.122 125 "Independent Practice Association"
(IPA): an arrangement in which health care professionals
provide their services through the association in accordance
with a mutually accepted compensation arrangement while
retaining their private practices.
69.123 126 "Independent Utilization Review
Organization (IURO)": an entity that conducts
independent external reviews of an MCO's determinations
resulting in a denial, termination, or other limitation of
covered health care services.
69.124 127 "Insurance Department": the Delaware
Department of Insurance.
69.125 128 "Intermediary": a person authorized to
negotiate and execute provider contracts with MCOs on
behalf of health care providers or on behalf of a network.
69.126 129 "Level 1 Trauma Center": a regional
resource trauma center that has the capability of providing
leadership and comprehensive, definitive care for every
aspect of injury from prevention through rehabilitation.
69.127 130 "Level 2 Trauma Center": a regional
trauma center with the capability to provide initial care for
all trauma patients. Most patients would continue to be
cared for in this center; there may be some complex cases
which would require transfer for the depth of services of a
regional Level 1 or specialty center.
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1028 PROPOSED REGULATIONS
69.128 131 "Managed Care Organization (MCO)": a
public or private organization, organized under the laws of
any state, which:
A. Provides or otherwise makes available to
enrolled participants health care services, including at least
the basic health services defined in 69.106;
B. Is primarily compensated (except for copayment)
for the provision of basic health care services to
the enrolled participants on a predetermined periodic rate
basis; and
C. Provides physician services directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual
physicians or one or more groups of physicians (organized
on a group practice or individual practice basis).
69.129 132 "Medical Necessity": providing of covered
health services (69.112) 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.
69.130 133 "Network": the participating providers
delivering services to enrollees in a managed care plan.
69.131 134 "Office": any facility where enrollees
receive primary care or other health services.
69.132 135 "Out of Area Coverage": health care
services provided outside the organization's geographic
service areas with appropriate limitations and guidelines
acceptable to the Department and the Commissioner. At a
minimum, such coverage must include emergency care.
69.133 136 "Participating Provider": a provider who,
under a contract with the Organization or with its contractor
or subcontractor, has agreed to provide health care services
to enrollees with an expectation of receiving payment, other
than coinsurance, co-payments or deductibles, directly or
indirectly from the Organization.
69.134 137 "Premium": payment(s) called for in the
health care contract which must be:
A. Paid or arranged for by, or on behalf of, the
enrollee before health care services are rendered by the
MCO;
B. Paid on a periodic basis without regard to the
date on which health services are rendered; and
C. With respect to an individual enrollee are fixed
without regard to frequency, extent or cost of health services
actually furnished.
69.135 138 "Primary Care Physician (PCP)": a
participating health care physician chosen by the enrollee
and designated by the MCO to supervise, coordinate, or
provide initial care or continuing care to an enrollee, and
who may be required by the MCO to initiate a referral for
specialty care and maintain supervision of health care
services rendered to the enrollee.
69.136 139 "Provider": a health care professional or
facility.
69.137 140 "Staff Model MCO": an MCO in which
physicians are employed directly by the MCO or in which
the MCO directly operates facilities which provide health
care services to enrollees.
69.141 "Standing Referral": a treatment period during
which a health care specialist shall be permitted to treat an
enrollee without further referral from the enrollee's primary
care physician and during which this specialist may
authorize further referrals, procedures, tests, and other
medical services which the enrollee's primary care physician
would otherwise be permitted to provide or authorize.
69.138 142 "Supplemental Payment": any payment
not incorporated in the premium which is required to be paid
to the MCO or providers under contract to the MCO by the
enrollee.
69.139 143 "Supplementary Health Services": any
health services other than basic health services which may be
provided by a MCO to its enrollees and/or for which the
enrollee may contract such as:
A. Long term care;
B. Vision care not included in basic health
services;
C. Dental services;
D. Behavioral health services;
E. Long term physical medicine or rehabilitative
services;
F. Additional pharmacy services;
G. Infertility services; and
H. Other services, such as occupational therapy,
nutritional, home health, homemaker, hospice and family
planning services.
69.140 144 "Tertiary Services": health care services
provided for the intensive treatment of critically ill patients
who require extraordinary care on a concentrated basis in
special diagnostic categories (e.g. burns, cardiovascular,
neonatal, pediatric, oncology, transplants, etc.).
69.141 145 "Utilization Review": a set of formal
techniques designed to monitor the use of, or evaluate the
clinical necessity, efficacy, and/or efficiency of, health care
services, procedures or settings. Techniques may include
ambulatory review, prospective review, second opinion,
certification, concurrent review, case management,
discharge planning, or retrospective review.
PART TWO
SECTION 69.2 APPLICATION AND CERTIFICATE
OF AUTHORITY
69.201 No person shall establish or operate an MCO in
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PROPOSED REGULATIONS 1029
the State of Delaware or enter this State for purposes of
enrolling persons in an MCO without obtaining a
"Certificate of Authority" under Chapter 91 of Title 16 of the
Delaware Code. A foreign corporation shall not be eligible
to apply for such certificate unless it has first qualified to do
business in the State of Delaware as a foreign corporation
pursuant to 8 Del. C., §371.
69.202 Each application for a Certificate of Authority
shall be made in writing to the Department of Health and
Social Services, shall be certified by an officer or authorized
representative of the applicant, shall be in a form prescribed
by the Department (Appendix A) and shall set forth or be
accompanied by the following:
A. Organizational Information
1. Brief history and description of current
status of applicant, including an organization chart;
2. A copy of the basic organizational
documents such as the certificate of incorporation, articles of
association, or other appropriate documents and
amendments thereto;
3. A list of the names, addresses and official
positions of the persons who are to be responsible for the
conduct of the affairs of the applicant. Include all members
of the Board of Directors or other governing board, the
principal officers in the case of a corporation, and the
partners or members in the case of a partnership or
association; and
4. A list of positions and names for all
management personnel.
B. Health Services Delivery
1. A description of the plan of operation of
the MCO. Include the following items:
a) a listing of basic health services
(69.106) and supplementary health services (69.143) with
utilization projections; and
b) the arrangements for delivery of all
covered health services (including details as to whether
outpatient services are provided directly or through referrals/
purchase agreements with outside fee-for-service providers);
a description of service sites or facilities (specifying days
and hours of operation in the case of outpatient facilities);
and all special policies or provisions designed to improve
accessibility of services.
2. A sample of the contract, agreement or
arrangement between the MCO and providers, including
individual physicians, IPAs, group practices, hospitals,
laboratory services, nursing homes, home health agencies,
and other providers. Any contract, agreement or
arrangement which deviates substantially from the sample
must be submitted to the OHFLC as executed. In addition,
copies of executed contracts or letters of agreement between
an IPA or medical group and its member or non-member
physicians and other health professionals must be submitted;
3. A list of participating physicians by
specialty and by geographic area as well as a list of other
health care personnel providing services. Each physician
included on the list must be identified as accepting or not
accepting new patients and if there are any limitations on
that physician's accepting any enrollees as patients. Staffing
ratios shall be prepared for each geographic area in which
the MCO proposes to operate. Staffing ratios are the number
of physicians or providers by specialty per enrollee;
4. For staff model MCOs, a list of facilities
that show the capacity, square footage, and the legal
arrangements for use of the facility (leases, subleases,
contract of sale, etc.). Provide copies of leases, contracts of
sale, or other legal agreements relating to the facilities to be
operated by the MCO;
5. All of the applicant's utilization review
and utilization management, utilization control, quality
assurance mechanisms, policies, manuals, guidelines, and
materials;
6. The arrangements for assuring continuity
of care for all services provided to enrollees. Include
comments on policies related to the primary care physician's
responsibilities for coordination and oversight of the
enrollee's overall health care and the impact of the medical
record keeping system on continuity of care;
7. Procedures utilized by the applicant for
determining and ensuring network adequacy;
8. Procedures utilized by the applicant for the
credentialing of providers;
9. Procedures for addressing enrollee
grievances;
10. Any materials or procedures utilized by
the applicant for measuring or assessing the satisfaction of
enrollees; and,
11. Procedures for monitoring enrollee access
to participating providers including but not limited to:
a) appointment scheduling guidelines;
b) standards for office wait times; and
c) standards for provider response to
urgent and emergent issues during and after business hours.
C. Enrollment and Marketing
1. A description of the geographic area to be
served, with a map showing service area boundaries,
locations of the MCO's participating providers, PCPs,
institutional and ambulatory care facilities, and travel times
from various points in the service area to the nearest
ambulatory and institutional services;
2. Identification of all information to be
released to enrollees or prospective enrollees;
3. A description of the proposed marketing
techniques and sample copies of any advertising or
promotional materials to be used within Delaware or to
which Delaware citizens would be exposed;
4. Enrollee handbooks proposed for use. A
finalized enrollee handbook shall also be submitted upon
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1030 PROPOSED REGULATIONS
completion; and,
5. Procedures for notifying enrollees of plan
changes.
D. Financial
1. Financial information submitted to the
Department of Insurance shall be deemed to meet the
requirement of Delaware Code, Title 16, Part VIII, Chapter
91, Section 9104(4).
69.203 Within sixty (60) days after receipt of a complete
application for issuance of Certificate of Authority, the
Department shall determine whether the applicant, with
respect to health care services to be furnished, has:
A. Demonstrated the ability to provide such health
services in a manner assuring availability, accessibility and
continuity of services;
B. Made arrangements for an ongoing health care
quality assurance program;
C. The capability to comply with all applicable
rules and regulations promulgated by the Department;
D. The capability to provide or arrange for the
provision to its enrollees of basic health care services on a
prepaid basis through insurance or otherwise, except to the
extent of reasonable requirements of co-payments; and,
E. For staff model MCOs, the staff and facilities
to directly provide at least half of the outpatient medical care
costs of its anticipated enrollees on a prepaid basis.
69.204 The Department shall issue a Certificate of
Authority to any person filing an application under this
section upon demonstration of compliance with these rules
and regulations if:
A. The application contains all the information
required under 69.202 of this Part;
B. The Department has not made a negative
determination pursuant to 69.203 of this Part; and
C. Payment of the application fees prescribed in
16 Del. C. Chapter 91, has been made.
69.205 If within 60 days after a complete application for
a Certificate of Authority has been filed, the Department has
not issued such certificate, the Department shall immediately
notify the applicant, in writing, of the reasons why such
certificate has not been issued and the applicant shall be
entitled to request a hearing on the application. The hearing
shall be held within 60 days of receipt of written request
therefor. Proceedings in regard to such hearing shall be
conducted in accordance with provisions for case decisions
as set forth in the Administrative Procedures Act, Chapter
101 of Title 29, and in accordance with applicable rules and
regulations of the Department (63 Del. Laws, c.382, §1;66
Del. Laws, c. 124, §7.).
69.206 No Certificate of Authority shall be issued
without a Certificate of Authority from the DOI under the
relevant provisions of Title 18 or a statement from the DOI
that the DOI Certificate of Authority is not required.
If a deposit is required, it shall be continuously
maintained in trust. In case of a deficiency of deposit, the
Insurance Commissioner shall transmit notice thereof to both
the MCO and the Department. In case the deficiency is not
cured within the allowed time, the Commissioner shall give
notice thereof to the Department and the Department shall
revoke its Certificate of Authority to the MCO.
PART THREE
SECTION 69.3 GENERAL REQUIREMENTS
69.301 Every MCO operating in this State shall file with
the Department every manual concerning: enrollee services
rights and responsibilities; policies and procedures relating
to health plan coverage; complaint and appeal criteria; and,
any other manual upon request. Every filing shall indicate
the effective date thereof.
69.302 Annual reports shall be filed with the
Department by any MCO on or before June 1 covering the
preceding fiscal year. Such reports shall include any
changes in the information originally submitted or required
under 69.2, 69.404I, 69.405B and 69.705. Financial
information submitted to the Department of Insurance shall
be deemed to meet the requirement of Delaware Code, Title
16, Part VIII, Chapter 91, Section 9104(4)
69.303 Contract Provisions
A. Every contract between an MCO and a
participating provider shall contain the following language:
1. "Provider agrees that in no event,
including but not limited to nonpayment by the MCO or
intermediary, insolvency of the MCO or intermediary, or
breach of this agreement, shall the provider bill, charge,
collect a deposit from, seek compensation, remuneration or
reimbursement from, or have any recourse against an
enrollee or a person (other than the MCO or intermediary)
acting on behalf of the enrollee for services provided
pursuant to this agreement. This agreement does not
prohibit the provider from collecting coinsurance,
deductibles or co-payments, as specifically provided in the
evidence of coverage, or fees for uncovered services
delivered on a fee-for-service basis to enrollees."
2. "In the event of an MCO or intermediary
insolvency or other cessation of operations, covered services
to enrollees will continue through the period for which a
premium has been paid to the MCO on behalf of the enrollee
or until the enrollee's discharge from an inpatient facility,
whichever time is greater. Covered benefits to enrollees
confined in an inpatient facility on the date of insolvency or
other cessation of operations will continue until their
continued confinement in an inpatient facility is no longer
medically necessary."
3. The contract provisions that satisfy the
requirements of Subsections 1. and 2. above shall be
construed in favor of the enrollee, shall survive the
termination of the contract regardless of the reason for
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PROPOSED REGULATIONS 1031
termination, including the insolvency of the MCO, and shall
supersede any oral or written contrary agreement between a
provider and an enrollee or the representative of an enrollee
if the contrary agreement is inconsistent with the hold
harmless and continuation of covered services provisions
required by Subsections 1. and 2. above.
4. Every contract between an MCO and a
participating provider shall state that in no event shall a
participating provider collect or attempt to collect from an
enrollee any money owed to the provider by the MCO.
69.304 Amendments or Revisions of Contracts
Any significant amendment to or revision relating
to the text or subtext of an approved provider contract shall
be submitted to and approved by the Department prior to the
execution of an amended or revised contract with the
providers of an MCO.
69.305 The MCO shall establish a policy governing
termination of providers. The policy shall include at least:
A. Written notification to each enrollee six (6)
weeks prior to the termination or withdrawal from the
MCO's provider network of an enrollee's primary care
physician except in cases where termination was due to
unsafe health care practice; and,
B. Except in cases where termination was due to
unsafe health care practices that compromise the health or
safety of enrollees, assurance of continued coverage of
services at the contract price by a terminated provider for up
to 120 calendar days in cases where it is medically necessary
for the enrollee to continue treatment with the terminated
provider. In cases of the pregnancy of an enrollee, medical
necessity shall be deemed to have been demonstrated and
coverage shall continue to completion of postpartum care.
69.306 The Medical Director and physicians designated
to act on his behalf shall be Delaware licensed physicians.
69.307 Prohibited Practices
A. No MCO or representative may cause or permit
the use of advertising or solicitation which is untrue or
misleading.
B. No MCO may cancel or refuse to renew the
enrollment of an enrollee solely on the basis of her/his
health. This does not prevent the MCO from canceling the
enrollment of an enrollee if misstatements of her/his health
were made at the time of enrollment, or prevent the MCO
from canceling or refusing to renew enrollment for reasons
other than an enrollee's health including without limitation,
nonpayment of premiums or fraud by the enrollee.
C. An MCO contract shall contain no provision or
nondisclosure clause prohibiting physicians or other health
care providers from giving patients information regarding
diagnoses, prognoses and treatment options.
D. An MCO shall not deny, exclude or limit
benefits for a covered individual for losses due to a
preexisting condition where such were incurred more than
twelve (12) months following the date of enrollment in such
plan or, if earlier, the first day of the waiting period for such
enrollment.
E. An MCO shall not impose any preexisting
condition exclusion relating to pregnancy or in the case of a
child who is adopted or placed for adoption before attaining
eighteen (18) years of age and who, as of the last day of the
30-day period beginning on the date of the adoption or
placement for adoption, is covered under creditable
coverage. The previous sentence shall not apply to coverage
before the date of such adoption or placement for adoption.
F. An MCO shall not offer incentives to a
provider to provide less than medically necessary services to
an enrollee.
G. An MCO shall not penalize a provider because
the provider, in good faith, reports to state authorities any act
or practice by the MCO that jeopardizes patient health or
welfare.
H. A contract between an MCO and a provider
shall not contain definitions or other provisions that conflict
with the definitions or provisions contained in these
regulations.
69.308 An MCO shall establish a mechanism by which
the participating provider will be notified on an ongoing
basis of the specific covered health services for which the
provider will be responsible, including any limitations or
conditions on services.
69.309 An MCO shall notify participating providers of
the providers' responsibilities with respect to the MCO's
applicable administrative policies and programs, including
but not limited to payment terms, utilization review, quality
assessment and improvement programs, credentialing,
grievance procedures, data reporting requirements,
confidentiality requirements and any applicable federal or
state programs.
69.310 The rights and responsibilities under a contract
between an MCO and a participating provider shall not be
assigned or delegated by the provider without the prior
written consent of the MCO.
69.311 An MCO is responsible for ensuring that a
participating provider furnishes covered benefits to all
enrollees without regard to the enrollee's enrollment in the
plan as a private purchaser of the plan or as a participant in
publicly financed programs of health care services. This
requirement does not apply to circumstances when the
provider should not render services due to limitations arising
from lack of training, experience, skill or licensing
restrictions.
69.312 An MCO shall notify the participating providers
of their obligations, if any, to collect applicable coinsurance,
co-payments or deductibles from enrollees pursuant to the
evidence of coverage, or of the providers' obligations, if any,
to notify enrollees of their personal financial obligations for
non-covered services.
69.313 An MCO shall establish procedures for
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1032 PROPOSED REGULATIONS
resolution of administrative, payment or other disputes
between providers and the MCO.
69.314 Notice of Changes in MCO Operations
The MCO shall notify the Department in writing,
on an ongoing basis, of any substantial changes in
organization, bylaws, governing board, provider contracts or
agreements, marketing materials, grievance procedures,
enrollee handbooks, utilization management program, and
any change of inpatient acute care hospitals. The
Department shall be notified on at least a quarterly basis of
changes in the provider network.
69.315 Changes in Ownership Interests
Certificates of Authority shall not be assignable or
transferable in whole or in part. Accordingly, the holder of
record of any Certificate of Authority to operate in
Delaware, as a condition thereof, shall comply with all of the
following requirements regarding changes in ownership
interests. For the purposes of this section, changes in
ownership interests shall refer to changes in the ownership of
the holder of record of any Certificate of Authority and/or
changes in ownership of any individual, corporation or other
entity which, through the ownership of voting securities, by
contract or by any other means, has the authority to or does
in fact direct or cause the direction of the management and/
or the policies of the MCO which is the subject of the
Certificate of Authority at issue.
69.316 Examinations
A. The Department may make examinations
concerning the quality of health care services of any MCO.
The Department may make such examination as it deems
necessary for the protection of the interests of the enrollees
of the MCO, but not less frequently than every three (3)
years;
B. Every MCO shall submit its books and records
relating to health care services to such examinations. In the
course of such examinations, the Department may
administer oaths to and examine the officers and agents of
the MCO and of any health care providers with which it has
contracts, agreements or other arrangements. The MCO
shall require a provider to make health records available to
the Department employees involved in assessing the quality
of care or investigating the grievances or complaints of
enrollees, and to comply with the applicable laws related to
the confidentiality of medical or health records; and,
C. The reasonable expenses of examinations
under this section shall be assessed against the MCO being
examined and remitted to the Department.
69.317 Violations/Penalties
A. The Department may revoke or suspend a
Certificate of Authority issued to an MCO pursuant to 16
Del. C. Chapter 91, or may place the MCO on probation for
such period as it determines, or may publicly censure an
MCO if it determines, after a hearing, that:
1. The MCO is operating in a manner which
deviates substantially, in a manner detrimental to its
enrollees, from the plan of operation described by it in
securing its Certificate of Authority;
2. The MCO does not have in effect
arrangements to provide the quantity and quality of health
care services required by its enrollees;
3. The MCO is no longer in compliance with
the requirements of 16 Del. C. §9104(b); or,
4. The continued operation of the MCO
would be detrimental to the health or well being of its
enrollees needing services.
B. The Department may issue an order directing a
health carrier or a representative of a health carrier to cease
and desist from engaging in any act or practice in violation
of the provisions of this act. If the Secretary elects not to
issue a cease and desist order, or in the event of
noncompliance with a cease and desist order, the Secretary
may institute a proceeding to obtain injunctive relief.
1. Within twenty (20) calendar days after
service of the cease and desist order, the health carrier may
request a hearing on the question of whether acts or practices
in violation of this act have occurred. This appeal shall not
stay the cease and desist order.
C. Proceedings in regard to any hearing held
pursuant to this section shall be conducted in accordance
with provisions for case decisions as set forth in the
Administrative Procedures Act, 29 Del. C. §101, and any
applicable rules and regulations of the Department. Any
decision rendered following a hearing shall set forth the
findings of fact and conclusions of the Department as to any
violations of this Chapter, and shall also set forth the reasons
for the Department's choice of any sanction to be imposed.
The Department's choice of sanction shall not be disturbed
upon appeal, except for abuse of discretion.
D. Suspension of a Certificate of Authority
pursuant to this section shall not prevent the MCO from
continuing to serve all its enrollees as of the date the
Department issues a decision imposing suspension, nor shall
it preclude thereafter adding as enrollees newborn children
or other newly acquired dependents of existing enrollees.
Unless otherwise determined by the Department and set
forth in its decision, a suspension shall, during the period
when it is in effect, preclude all other new enrollments and
also all advertising or solicitation on behalf of the MCO
other than communication, approved by the Department,
which are intended to give information as to the effect of the
suspension.
E. In the event that the Department decides to
revoke the Certificate of Authority of an MCO the decision
so providing shall specify the time and manner in which its
business shall be concluded. If the Department determines it
is appropriate, it may refer the matter of conservation or
liquidation to the Insurance Commissioner, who shall then
proceed in accordance with 18 Del. C., Chapter 59. In any
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PROPOSED REGULATIONS 1033
case, after the Department has issued a decision revoking a
Certificate of Authority, unless stayed in connection with an
appeal, the MCO shall not conduct any further business
except as expressly permitted in the Department's decision
and it shall engage only in such activities as are directed by
the Department or are required to assist its enrollees in
securing continued health care coverage.
F. The Department may require a corrective
action plan from an MCO when the Department determines
that the MCO is not in compliance with any of the
regulations contained herein.
G. Civil Monetary Penalty (CMP)
1. A carrier that violates any provision of this
act shall be liable to a civil penalty of not less than two
hundred fifty dollars ($250.00) and not greater than ten
thousand dollars ($10,000.00) for each day that the carrier is
in violation of the act.
2. The Department shall give ten (10)
calendar days written notice to the health carrier of its intent
to levy such a penalty.
3. The health carrier may, within such 10-day
period, give written notice of their desire to have a hearing.
Proceedings in regard to such hearing shall be conducted in
accordance with provisions for case decisions as set forth in
the Administrative Procedures Act, Title 29, Chapter 101 of
the Delaware Code and in accordance with applicable rules
and regulations of the Department.
69.318 Fees
Every MCO shall pay the following fees in
accordance with 16 Del. C., Ch. 91, Sec. 9111. :
A. For filing an application for a Certificate of
Authority - three hundred and seventy-five dollars
($375.00).
B. For filing an annual report - two hundred and
fifty dollars ($250.00).
69.319 Confidentiality of Health Information
Any data or information pertaining to the diagnosis,
treatment or health of any enrollee or applicant obtained
from such person or from any health care provider by any
MCO shall be held in confidence and shall not be disclosed
to any person except upon the express consent of the enrollee
or applicant, or his physician, or pursuant to statute or court
order for the production of evidence or the discovery thereof,
or in the event of claim or litigation between such person and
the MCO wherein such data or information is pertinent or as
may be required by the Department in the course of their
examinations in accordance with 69.316. The
communication of such data or information from a health
care provider to a MCO shall not prevent such data or
information from being deemed confidential for purposes of
the Delaware Uniform Rules of Evidence.
69.320 The MCO is responsible for meeting each
requirement of these regulations. If the MCO chooses to
utilize contract support or to contract functions under these
regulations, the MCO retains responsibility for ensuring that
the requirements of this regulation are met.
69.321 Specific standards may be waived by the
Department provided that each of the following conditions
are met:
A. Strict enforcement of the standard would result
in unreasonable hardship on the MCO.
B. A waiver must not adversely affect the health,
safety, welfare, or rights of any enrollee of the MCO.
C. The request for a waiver must be made to the
Department, in writing, by the MCO with substantial detail
justifying the request.
D. Prior to filing a request for a waiver, the MCO
shall provide written notice of the request to each enrollee.
Prior to filing a request for a waiver, the MCO shall also
provide written notice of the request to the Department. The
notice shall state that the enrollee has the right to object to
the waiver request in writing to the Department.
Upon filing the request for a waiver, the MCO shall
submit to the Department a copy of the notice and a sworn
affidavit outlining the method by which the requirement was
met. The MCO shall maintain proof of the method by which
the requirement was met by the MCO for the duration of the
waiver and make such proof available upon the request of
the Department.
E. A waiver granted by the Department is not
transferable to another MCO in the event of a change of
ownership.
F. A waiver shall be granted for the term of the
license.
PART FOUR
SECTION 69.4 QUALITY ASSURANCE AND
OPERATIONS
69.401 Health Care Professional Credentialing
A. General Responsibilities, an MCO shall:
1. Establish written policies and procedures
for credentialing verification of all health care professionals
with whom the MCO contracts and apply these standards
consistently;
2. Verify the credentials of a health care
professional before entering into a contract with that health
care professional. The medical director of the MCO or other
designated health care professional shall have responsibility
for, and shall participate in, health care professional
credentialing verification;
3. Establish a credentialing verification
committee consisting of licensed physicians and other health
care professionals to review credentialing verification
information and supporting documents and make decisions
regarding credentialing verification;
4. Make available for review by the applying
health care professional upon written request all application
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1034 PROPOSED REGULATIONS
and credentialing verification policies and procedures;
5. Retain all records and documents relating
to a health care professionals credentialing verification
process for not less than four (4) years; and,
6. Keep confidential all information obtained
in the credentialing verification process, except as otherwise
provided by law.
B. Nothing in these regulations shall be construed
to require an MCO to select a provider as a participating
provider solely because the provider meets the MCO's
credentialing verification standards, or to prevent the MCO
from utilizing separate or additional criteria in selecting the
health care professionals with whom it contracts.
C. Selection standards for participating providers
shall be developed for primary care professionals and each
health care professional discipline. The standards shall be
used in determining the selection of health care professionals
by the MCO, its intermediaries and any provider networks
with which it contracts. The standards shall meet the
requirements of 69.401 A. and 69.401 D. Selection criteria
shall not be established in a manner:
1. That would allow an MCO to avoid highrisk
populations by excluding providers because they are
located in geographic areas that contain populations or
providers presenting a risk of higher than average claims,
losses or health services utilization; or,
2. That would exclude providers because
they treat or specialize in treating populations presenting a
risk of higher than average claims, losses or health services
utilization.
D. Qualifications of primary care providers
1. Physicians qualified to function as primary
care providers include: licensed physicians who have
successfully completed a residency program accredited by
the Accreditation Council for Graduate Medical Education
or approved by the American Osteopathic Association in
family practice, internal medicine, general practice,
pediatrics, obstetrics-gynecology or who are diplomats of
one of the above certifying boards approved by the
American Board of Medical Specialties or one of the
certifying boards of the American Osteopathic Association.
E. Verification Responsibilities, an MCO shall:
1. Obtain primary verification of at least the
following information about the applicant:
a) current license, certification, or
registration to render health care in Delaware and history of
same;
b) current level of professional liability
coverage, if applicable;
c) status of hospital privileges, if
applicable;
d) specialty board certification status, if
applicable; and,
e) current Drug Enforcement Agency
(DEA) registration certificate, if applicable.
2. Obtain, subject to either primary or
secondary verification:
a) the health care professional's record
from the National Practitioner Data Bank; and,
b) the health care professional's
malpractice history.
3. Not less than every three (3) years obtain
primary verification of a participating health care
professional's:
a) current license or certification to
render health care in Delaware;
b) current level of professional liability
coverage, if applicable;
c) status of hospital privileges, if
applicable;
d) current DEA registration certificate, if
applicable; and,
e) specialty board certification status, if
applicable.
4. Require all participating providers to
notify the MCO of changes in the status of any of the items
listed in this section at any time and identify for participating
providers the individual to whom they should report changes
in the status of an item listed in this section.
F. Health Care Professionals Right to Review
Credentialing Verification Information
1. An MCO shall provide a health care
professional the opportunity to review and correct
information submitted in support of that health care
professional's credentialing verification application as set
forth below.
a) each health care professional who is
subject to the credentialing verification process shall have
the right to review all information, including the source of
that information, obtained by the MCO to satisfy the
requirements of this section during the MCO's credentialing
process.
b) an MCO shall notify a health care
professional of any information obtained during the MCO's
credentialing verification process that does not meet the
MCO's credentialing verification standards or that varies
substantially from the information provided to the MCO by
the health care professional, except that the MCO shall not
be required to reveal the source of information if the
information is not obtained to meet this requirement, or if
disclosure is prohibited by law.
c) a health care professional shall have
the right to correct any erroneous information. The MCO
shall have a formal process by which a health care
professional may submit supplemental or corrected
information to the MCO's credentialing verification
committee and request a reconsideration of the health
professional's credentialing verification application if the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1035
health care professional feels that the MCO's credentialing
verification committee has received information that is
incorrect or misleading. Supplemental information shall be
subject to confirmation by the MCO.
69.402 Provider Network Adequacy
A. Primary, Specialty and Ancillary Providers
1. The MCO shall maintain an adequate
network of primary care providers, specialists, and other
ancillary health care resources to serve the enrolled
population at all times. The MCO shall develop and submit
annually to the Department policies and procedures for
measuring and assessing the adequacy of the network. At a
minimum, the network of providers shall include:
a) a sufficient number of licensed
primary care providers under contract with the MCO to
provide basic health care services. All enrollees must have
immediate telephone access seven (7) days a week, twentyfour
(24) hours a day, to their primary care provider or his/
her authorized on-call back-up provider;
b) a sufficient number of licensed
medical specialists available to MCO enrollees to provide
medically necessary specialty care. The MCO must have a
policy assuring reasonable access to frequently used
specialists within each service area; and,
c) a sufficient number of other health
professional staff including but not limited to licensed nurses
and other professionals available to MCO enrollees to
provide basic health care services. The MCO shall cover
nonparticipating providers at no extra cost to the enrollee if a
plan has an insufficient number of providers within
reasonable geographic distances and appointment times to
meet the medical needs of the enrollee. If a plan has an
insufficient number of providers within reasonable
geographic distances and appointment times to meet the
medical needs of the enrollee, the MCO shall cover
nonparticipating providers, and shall prohibit balance
billing.
2. The MCO shall allow referral to a nonnetwork
provider, upon the request of a network provider,
when medically necessary covered services are not available
through network providers, or the network providers are not
available within a reasonable period of time. The MCO shall
make acceptable service arrangements with the provider and
enrollee, and shall prohibit balance billing.
B. Facility and Ancillary Health Care Services
1. The MCO shall maintain contracts or other
arrangements acceptable to the Department with institutional
providers which have the capability to meet the medical
needs of enrollees and are geographically accessible. The
network of providers shall include:
a) at least one licensed acute care
hospital including at least licensed medical-surgical,
pediatric, obstetrical, and critical care services in any service
area no greater than thirty (30) miles or forty (40) minutes
driving time from ninety percent (90%) of enrollees within
the service area.
b) surgical facilities including hospitals
licensed ambulatory surgical facilities, and/or physicians
surgical practices. Such services shall be available in each
service area no greater than thirty (30) miles or forty (40)
minutes driving time from ninety percent (90%) of enrollees
within the service area.
c) the MCO shall have a policy assuring
access to the following specialized services, as determined to
be medically necessary:
(1) at least one hospital providing
regional perinatal services;
(2) a hospital offering pediatric
intensive care services;
(3) a hospital offering neonatal
intensive care services;
(4) therapeutic radiation provider;
(5) magnetic resonance imaging
center;
(6) diagnostic radiology provider,
including X-ray, ultrasound, and CAT scan;
(7) emergency mental health service;
(8) diagnostic cardiac catheterization
services in a hospital;
(9) specialty pediatric outpatient
centers for conditions including sickle cell, hemophilia, cleft
lip and palate, and congenital anomalies;
(10) clinical Laboratory certified
under CLIA; and,
(11) certified renal dialysis provider.
Such services shall be reasonably
accessible. Evidence indicating such services shall include
contracts or other agreements acceptable to the Department.
2. If offered by the plan, the MCO shall have
a policy assuring access to the following specialized
services, as determined to be medically necessary:
a) a licensed long term care facility with
skilled nursing beds;
b) residential substance abuse treatment
center;
c) inpatient psychiatric services for
adults and children;
d) short term care facility for involuntary
psychiatric admissions;
e) outpatient therapy providers for
mental health and substance abuse conditions;
f) home health agency licensed by the
Department;
g) hospice program licensed by the
Department; and,
h) pharmacy services.
Such services shall be reasonably
accessible. Evidence indicating such services shall include
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1036 PROPOSED REGULATIONS
contracts or other agreements acceptable to the Department.
3. The MCO shall make acceptable service
arrangements with the provider and enrollee, at no extra cost
to the enrollee and shall prohibit balance billing, if the
appropriate level of service is not available within the
geographical service area. These services will not be limited
to the State of Delaware. These services could include but
are not limited to tertiary services, burn units and transplant
services.
C. Emergency and Urgent Care Services
1. The MCO shall establish written policies
and procedures governing the provision of emergency and
urgent care which shall be distributed to each enrollee at the
time of initial enrollment and after any revisions are made.
These policies shall be easily understood by a layperson.
2. When emergency care services are
performed by non-network providers, the MCO shall make
acceptable service arrangements with the provider and
enrollee, and shall prohibit balance billing. In those cases
where the MCO and the provider cannot agree upon the
appropriate charge, the provider may appeal to the
Commissioner for arbitration.
3. Enrollees shall have access to emergency
care (69.117) twenty-four (24) hours per day, seven (7) days
per week. The MCO shall cover emergency care necessary
to screen and stabilize an enrollee and shall not require prior
authorization of such services if a prudent lay person acting
reasonably would have believed that an emergency medical
condition (69.118) existed.
4. Emergency and urgent care services
shall include but are not limited to:
a) medical and psychiatric care, which
shall be available twenty-four (24) hours a day, seven (7)
days a week;
b) trauma services at any designated
Level I or II trauma center as medically necessary. Such
coverage shall continue at least until the enrollee is
medically stable, no longer requires critical care, and can be
safely transferred to another facility, in the judgment of the
attending physician. If the MCO requests transfer to a
hospital participating in the MCO network, the patient must
be stabilized and the transfer effected in accordance with
federal regulations at 42 CFR 489.20 and 42 CFR 489.24;
c) out of area health care for urgent or
emergency conditions where the enrollee cannot reasonably
access in-network services;
d) hospital services for emergency care;
and,
e) upon arrival in a hospital, a medical
screening examination, as required under federal law, as
necessary to determine whether an emergency medical
condition exists.
5. When an enrollee has received emergency
care from a non-network provider and is stabilized, the
enrollee or the provider must request approval from the
MCO for continued post-stabilization care by a non-network
provider. The MCO is required to approve or disapprove
coverage of post-stabilization care as requested by a treating
physician or provider within the time appropriate to the
circumstances relating to the delivery of services and the
condition of the enrollee, but in no case to exceed one hour
from the time of the request.
D. All enrollees shall be provided with an up-todate
and comprehensive list of the provider network upon
enrollment and upon request. Updates due to provider
changes must be provided at least quarterly.
69.403 Utilization Management
A. Utilization Management Functions
1. The MCO shall establish and implement a
comprehensive utilization management program to monitor
access to and appropriate utilization of health care and
services. The program shall be under the direction of a
designated physician and shall be based on a written plan
that is reviewed at least annually. The plan shall identify at
least:
a) scope of utilization management
activities;
b) procedures to evaluate clinical
necessity, access, appropriateness, and efficiency of
services;
c) mechanisms to detect under
utilization;
d) clinical review criteria and protocols
used in decision-making;
e) mechanisms to ensure consistent
application of review criteria and uniform decisions;
f) system for providers and enrollees to
appeal utilization management determinations in accordance
with the procedures set forth; and,
g) a mechanism to evaluate enrollee and
provider satisfaction with the complaint and appeals systems
set forth. Such evaluation shall be coordinated with the
performance monitoring activities conducted pursuant to the
continuous quality improvement program set forth.
2. Utilization management determinations
shall be based on written clinical criteria and protocols
reviewed and approved by practicing physicians and other
licensed health care providers within the network. These
criteria and protocols shall be periodically reviewed and
updated, and shall, with the exception of internal or
proprietary quantitative thresholds for utilization
management, be readily available, upon request, to affected
providers and enrollees. All materials including internal or
proprietary materials for utilization management shall be
available to the Department upon request.
3. Compensation to persons providing
utilization review services for an MCO shall not contain
incentives, direct or indirect, for these persons to make
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1037
inappropriate review decisions. Compensation to any such
persons may not be based, directly or indirectly, on the
quantity or type of adverse determinations rendered.
B. Utilization Management Staff Availability
1. At a minimum, appropriately qualified
staff shall be immediately available by telephone, during
routine provider work hours, to render utilization
management determinations for providers.
2. The MCO shall provide enrollees with a
toll free telephone number by which to contact customer
service staff on at least a five (5) day, forty (40) hours a
week basis.
3. The MCO shall supply providers with a
toll free telephone number by which to contact utilization
management staff on at least a five (5) day, forty (40) hours a
week basis.
4. The MCO must have policies and
procedures addressing response to inquiries concerning
emergency or urgent care when a PCP or her/his authorized
on call back up provider is unavailable.
C. Utilization Management Determinations
1. All determinations to authorize services
shall be rendered by appropriately qualified staff.
2. All determinations to deny or limit an
admission, service, procedure or extension of stay shall be
rendered by a physician. The physician shall be under the
clinical direction of the medical director responsible for
medical services provided to the MCO's Delaware enrollees.
Such determinations shall be made in accordance with
clinical and medical criteria and standards and shall take into
account the individualized needs of the enrollee for whom
the service, admission, procedure is requested.
3. All determinations shall be made on a
timely basis as required by the exigencies of the situation.
4. An MCO may not retroactively deny
reimbursement for a covered service provided to an enrollee
by a provider who relied upon the written or verbal
authorization of the MCO or its agents prior to providing the
service to the enrollee, except in cases where the MCO can
show that there was material misrepresentation, fraud or the
patient was found not to have coverage.
5. An enrollee must receive upon request a
written notice of all determinations to deny coverage or
authorization for services required and the basis for the
denial.
69.404 Appeal Procedure
A. Scope of Appeal
The following appeal procedure shall be
utilized when the subject of the appeal is based upon medical
necessity (69.132) or disputable need (69.116). For all other
appeals, the MCO carrier shall develop and implement
written policies and procedures that require a review process
and a written response to the appellant.
B. Appeal Procedure
1. Information Disclosure
An MCO carrier shall provide enrollees
with a written explanation of the appeal process upon
enrollment, annually, upon request and each time the appeal
process is substantially changed. An MCO carrier shall also
provide participating providers with a written explanation of
the appeal process, upon initial participation with the MCO's
carrier network, upon request and each time the appeal
process is substantially changed.
2. Stages of Appeal Process
a) an MCO carrier shall establish an
appeal process for appellants for review of coverage
determinations based on medical necessity (69.132) or
disputable need (69.116). The appeal process shall consist
of the following stages: an internal review by the MCO
carrier ("Stage 1 Appeal"), a second subsequent internal
review by the MCO carrier ("Stage 2 Appeal") and an
external review ("Stage 3 Appeal").
b) each stage of the appeal process shall
provide for expedited review that shall not exceed seventytwo
(72) hours.
(1) in the event that the subject of the
appeal concerns an imminent, emergent, or serious threat to
the appellant each stage (1, 2, and 3) of the appeal process
may take seventy-two (72) hours each.
(2) in the event that the subject of the
appeal concerns an emergency medical condition (69.118),
both stages of internal review (stage 1 and 2) must be
concluded within a total of seventy-two (72) hours. Stage 3
must be completed within an additional seventy-two (72)
hours.
3. Petition for External Review form
All MCOs carriers shall complete a DHSS
approved form and forward it to the Department to initiate
the Independent Health Care Appeals Program.
4. Waiver of Internal Review Process
In the event that the MCO carrier fails to comply with any of
the deadlines for completion of the Stage 1 or 2 appeals, or
in the event that the MCO carrier for any reason expressly
waives its rights to an internal review of any appeal, then the
appellant shall be relieved of her/his obligation to complete
the MCO carrier internal review process, and at the
appellant's option, may proceed directly to the Stage 3
appeal process.
5. Appellant Rights.
a) an MCO carrier shall not disenroll,
terminate or in any way penalize an enrollee who exercises
the right to appeal solely on the basis of filing the appeal.
b) MCO Carrier Assistance
(1) i. upon the initiation of an appeal,
an MCO carrier shall notify an appellant of the right to have
a staff member appointed to assist her/him with
understanding the appeal process. Such assistance shall be
available during during the appeal process.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1038 PROPOSED REGULATIONS
(2) ii. an appellant may request such
assistance at any stage of the appeal process.
(3) iii. upon such request, an MCO
carrier shall appoint a member of its staff who has had no
prior direct involvement in the case to assist the appellant.
c) after an adverse determination, an
appellant shall have the right to discuss a coverage
determination with the medical director, or physician
designee, of the MCO carrier who made the coverage
determination.
6. MCO Carrier Records
An MCO carrier shall maintain written or
electronic records to document all appeals received. For
each appeal an MCO carrier shall maintain, at a minimum,
the following information:
a) a general description of the reason for
the appeal;
b) date received;
c) date of each review;
d) resolution at each stage of appeal;
e) date of resolution at each stage; and,
f) name and plan identification number
of the appellant for whom the appeal was filed.
7. Reporting
An MCO carrier shall submit the
following information to the Department within thirty (30)
days after the close of each calendar quarter:
a) the total number appeals (69.102) filed.
b) the number of Stage 1 appeals. This
shall include only those appeals based upon medical
necessity (69.132) and/or disputable need (69.116).
c) the number of Stage 1 appeals upheld.
d) the number of Stage 1 appeals
overturned.
e) the number of Stage 2 appeals. This
shall include only those appeals based upon medical
necessity (69.132) and/or disputable need (69.116).
f) the number of Stage 2 appeals upheld.
g) the number of Stage 2 appeals
overturned.
h) the number of petitions made to the
Independent Health Care Appeals Program.
C. Stage 1 Appeal Procedure
1. Procedure
An MCO carrier shall establish and
maintain an internal appeal procedure in which an appellant,
who is dissatisfied with a coverage determination by the
MCO carrier, that is based on medical necessity or
disputable need, shall have the opportunity to appeal the
determination. This appeal is made to the MCO carrier who
will then assign the medical director and/or a physician
designee, who has had no prior direct involvement with the
appellant's case, to conduct the review.
2. Timeframes
A Stage 1 appeal shall be concluded as
soon as possible in accordance with the medical exigencies
of the case but no more than five (5) business days after
receipt of the appeal. In no event shall appeals that involve
an imminent, emergent, or serious threat to the health of the
appellant exceed seventy-two (72) hours.
3. Notice of Determination
An MCO carrier shall provide notice of
the Stage 1 appeal determination to the appellant within five
business days of receipt of the appeal. If such notice is
provided verbally to the appellant, the MCO carrier shall
provide written notice of the determination to the appellant
within five (5) business days of the verbal notice. In the
event that the adverse determination is upheld, the written
notice shall include the reason for the determination, an
explanation of the appellant's right to proceed to a Stage 2
appeal and a review of the entire appeals process. This
information shall include specific contact information
(address and phone number) that is appropriate for each
appeal stage.
D. Stage 2 Appeal Procedure
1. An MCO carrier shall establish and
maintain an internal appeal procedure in which an appellant
who is dissatisfied with a Stage 1 appeal determination by an
MCO carrier shall have the opportunity to appeal the
determination to the MCO carrier. A panel, selected by the
MCO carrier, shall consist of at least two (2) physicians and/
or other health care professionals having no direct
involvement with the appellant's case prior to this review,
one of who should be in the same or similar specialty that
typically manages the care under review. If the same or
similar physician/health care professional is not a member of
the panel, such physician/health care professional must
consult on the health care service at issue and report such
consultation in writing to the panel for consideration.
2. Written Notice of Meeting
An MCO carrier shall acknowledge
receipt of all Stage 2 appeals in writing to the appellant.
This acknowledgement shall include the place, date and time
of the Stage 2 appeal meeting and shall give the appellant at
least fifteen (15) calendar days notice of the appeal meeting.
The appellant may request a change in the meeting schedule
to facilitate attendance.
3. Appeal Meeting
The MCO carrier shall hold the Stage 2
appeal meeting during regular business hours at a location
reasonably accessible to the appellant. If a face-to-face
meeting is not practical for geographic reasons, the MCO
carrier shall offer the appellant the opportunity to
communicate with the review panel, at the MCO's carrier's
expense, by conference call, video-conferencing, or other
appropriate technology. The MCO carrier shall not
unreasonably deny a request for postponement of the
meeting made by an appellant. The appellant's right to a fair
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1039
review shall not be conditional on the appellant's appearance
at the Stage 2 appeal meeting.
4. Appellant Rights
An appellant has the right to:
a) attend the Stage 2 appeal;
b) present his or her case to the
review panel;
c) submit supporting material both
before and at the appeal meeting;
d) ask questions of any
representative of the MCO carrier participating on the panel;
e) be accompanied and supported by
a person of her/his choice in addition to her/his
representative; and,
f) review all relevant information
that is not confidential, proprietary or privileged.
5. Timeframes
A Stage 2 appeal shall be concluded as
soon as possible in accordance with the medical exigencies
of the case but no more than thirty (30) calendar days after
receipt of the request for the Stage 2 appeal. In no event
shall a Stage 2 appeal involving an imminent, emergent or
serious threat to the health of the appellant exceed seventytwo
(72) hours.
6. Extensions
The MCO carrier may extend the Stage 2
appeal for up to an additional thirty (30) calendar days for
reasonable cause by submitting a written explanation for the
delay to the Department within the original thirty (30)
calendar day review period. An MCO carrier honoring an
appellant's request for extension for necessity or
convenience shall be deemed a reasonable cause. In no
event may an MCO carrier extend the review period for an
expedited appeal.
7. Written Notice of Determination
An MCO carrier shall provide written
notice of the Stage 2 appeal determination to the appellant
within five (5) business days of such determination. In the
event of an adverse determination, such notice shall include:
a) the qualifications of the members of
the Stage 2 appeal panel;
b) a statement of the panel's
understanding of the nature of the appeal and all pertinent
facts;
c) the rationale for the review panel's
determination;
d) reference to evidence or
documentation considered by the panel in making that
determination;
e) instructions for requesting a written
statement of the clinical rationale, including the clinical
review criteria used to make the determination; and,
f) the appellant's right to proceed to a
Stage 3 appeal.
E. Independent Health Care Appeals Program
(External Appeal Process/Stage 3)
1. Upon receipt of an adverse determination
at Stage 2, any appellant who is dissatisfied with the results,
shall have the opportunity to pursue her/his appeal before an
independent utilization review organization.
2. The appellant must file the request for
appeal with the MCO carrier within sixty (60) calendar days
of receipt of the adverse determination from the internal
review process.
3. Upon receipt of a request for external
review, the MCO carrier shall fax the Petition for External
Review form as soon as possible but within no more than
three (3) business days to the Department and shall send a
hard copy of the request to the Department by mail.
4. The Department shall assign an approved
IURO (69.126) to conduct the external review and shall
notify the MCO carrier.
5. The assigned IURO shall, within five (5)
calendar days of assignment, notify the appellant in writing
by certified or registered mail, that the appeal has been
accepted for external review. The notice shall include a
provision stating that the appellant may submit additional
written information and supporting documentation that the
IURO shall consider when conducting the external review.
Appellant shall submit such written documentation to the
IURO within seven (7) calendar days following the date of
receipt of the notice.
a) upon receipt of any information
submitted by the appellant, the assigned IURO shall as soon
as possible but within no greater than two (2) business days,
forward the information to the MCO carrier.
b) the IURO must accept additional
documentation submitted by the MCO carrier in response to
additional written information and supporting
documentation from the appellant.
6. Within seven (7) business days after the
receipt of the notification required in 69.404.E.4, the MCO
carrier shall provide to the assigned IURO, the documents
and any information considered in making the internal
appeal determination.
a) if the MCO 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 internal appeal determination.
7. The external review may be terminated if
the MCO carrier decides to reverse its adverse determination
and provide coverage or payment for the health care service
that is the subject of the appeal.
a) immediately upon making the
decision to reverse its adverse determination, the MCO
carrier shall notify the appellant, the assigned IURO, and the
Department in writing of its decision.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1040 PROPOSED REGULATIONS
b) the assigned IURO shall terminate the
external review upon receipt of the written notice from the
MCO carrier.
8. Within forty-five (45) calendar days after
the receipt of the request for external review, the assigned
IURO shall provide written notice of its decision to uphold
or reverse the adverse determination to:
a) the appellant;
b) the MCO carrier; and,
c) the Department.
9. The IURO shall include the following
information in the notice sent pursuant to 69.404.E.8:
a) the qualifications of the members of
the review panel;
b) a general description of the reason for
the request for external review;
c) the date the IURO received the
assignment from the Department to conduct the external
review;
d) the date(s) the external review was
conducted;
e) the date of its decision;
f) the principal reason(s) for its decision;
and,
g) references to the evidence or
documentation, including practice guidelines and clinical
review criteria, considered in reaching its decision.
10. The decision of the IURO is binding upon
the MCO carrier.
F. Expedited External Utilization Appeal Process
1. An appellant may request an expedited
external review with the MCO carrier at the time the enrollee
receives a final adverse determination if the enrollee suffers
from a condition that poses an imminent, emergent or
serious threat or has an emergency medical condition.
2. At the time the MCO carrier receives a
request for an expedited external review, the MCO carrier
shall immediately fax the Petition for External Review form
to the Department and shall send a hard copy to the
Department by mail.
3. If the Department determines that the
review meets the criteria for expedited review, the
Department shall assign an approved IURO to conduct the
external review and shall notify the MCO carrier.
4. At the time the MCO carrier receives the
notification of the assigned IURO, the MCO carrier shall
provide or transmit all necessary documents and information
considered in making the final adverse determination to the
assigned IURO electronically, by telephone, by facsimile or
any other available expeditious method.
5. As expeditiously as the enrollee's medical
condition permits or circumstances require, but in no event
more than seventy-two (72) hours after the date of the receipt
of the request for an expedited external review, the IURO
shall:
a) make a decision to uphold or reverse
the final adverse determination; and
b) immediately notify the appellant, the
MCO carrier, and the Department of the decision.
6. Within two (2) calendar days of the
immediate notification, the assigned IURO shall provide
written confirmation of the decision to the appellant, the
MCO carrier, and the Department
7. The decision of the IURO is binding upon
the MCO carrier.
G. Petition to DHSS
1. If an MCO carrier receives an appellant's
request for access to the IHCAP whose subject is a benefit
that is a written exclusion from the enrollee's benefit
package, the MCO carrier may make a written request to
have the appeal reviewed for appropriate inclusion in the
IHCAP by the Department. The request must be made in
writing at the time the Petition for External Review Form is
faxed to the Department and include any necessary
supporting documentation.
2. The Department shall review the petition
and may, in its discretion:
a) dismiss the appeal and notify the
appellant in writing that the appeal is inappropriate for the
IHCAP; or,
b) appoint an IURO to conduct a
preliminary review; or,
c) appoint an IURO to conduct a full
external review.
H. Preliminary External Review
1. If an MCO carrier receives an
appellant's request for access to the IHCAP for an appeal
that it believes is not appropriate for inclusion in the IHCAP,
the MCO carrier may file a motion to dimiss. The motion
must be made in writing at the time the Petition for External
Review Form is faxed to the Department and include any
necessary supporting documentation.
2. Upon the written request of an MCO
carrier, the Department shall review the petition and:
a) appoint an IURO to review the
details of the motion to determine if the appeal is appropriate
for inclusion in the IHCAP.
(1) i. appeals that are
inappropriate for inclusion are dismissed.
(2) ii. appeals that are appropriate
for inclusion are subject to a full external review.
b) appoint an IURO to conduct a
full external review.
I. All costs for external IURO review shall
be borne by the MCO carrier. The MCO carrier shall
reimburse the Department for the cost of the review within
ninety (90) calendar days of the receipt of the decision by the
IURO.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1041
J. The Department shall approve IUROs
eligible to be assigned to conduct external reviews.
1. Any IURO wishing to be approved to
conduct external reviews shall submit an application form
(as developed by the Department) and include with the form,
all documentation and information necessary for the
Department to determine if the IURO satisfies minimum
qualifications
2. The Department shall maintain a
current list of approved IUROs.
69.405 Quality Assessment and Improvement
A. Continuous Quality Improvement
1. Under the direction of the Medical
Director or her/his designated physician, the MCO shall
have a system-wide continuous quality improvement
program to monitor the quality and appropriateness of care
and services provided to enrollees. This program shall be
based on a written plan which is reviewed at least semiannually
and revised as necessary. The plan shall describe at
least:
a) the scope and purpose of the program;
b) the organizational structure of quality
improvement activities;
c) duties and responsibilities of the
medical director and/or designated physician responsible for
continuous quality improvement activities;
d) contractual arrangements, where
appropriate, for delegation of quality improvement
activities;
e) confidentiality policies and
procedures;
f) specification of standards of care,
criteria and procedures for the assessment of the quality of
services provided and the adequacy and appropriateness of
health care resources utilized;
g) a system of ongoing evaluation
activities, including individual case reviews as well as
pattern analysis;
h) a system of focused evaluation
activities, particularly for frequently performed and/or
highly specialized procedures;
i) a system of monitoring enrollee
satisfaction and network provider's response and feedback
on MCO operations;
j) a system for verification of provider's
credentials, recertification, performance reviews and
obtaining information about any disciplinary action against
the provider available from the Delaware Board of Medical
Practice or any other state licensing board applicable to the
provider;
k) the procedures for conducting peer
review activities which shall include providers within the
same discipline and area of clinical practice; and,
l) a system for evaluation of the
effectiveness of the continuous quality improvement
program.
2. There shall be a multidisciplinary
continuous quality improvement committee responsible for
the implementation and operations of the program. The
structure of the committee shall include representation from
the medical, nursing and administrative staff, with
substantial involvement of the medical director of the MCO.
3. The MCO shall assure that participating
providers have the opportunity to participate in developing,
implementing and evaluating the quality improvement
system.
4. The MCO shall provide enrollees the
opportunity to comment on the quality improvement
process.
5. The program shall monitor the availability,
accessibility, continuity and quality of care on an ongoing
basis. Indicators of quality care for evaluating the health
care services provided by all participating providers shall be
identified and established and shall include at least:
a) a mechanism for monitoring enrollee
appointment and triage procedures including wait times to
get an appointment and wait times in the office;
b) a mechanism for monitoring enrollee
continuity of care and discharge planning for both inpatient
and outpatient services;
c) a mechanism for monitoring the
appropriateness of specific diagnostic and therapeutic
procedures as selected by the continuous quality
improvement program;
d) a mechanism for evaluating all
providers of care that is supplemental to each provider's
quality improvement system;
e) a mechanism for monitoring network
adequacy and accessibility to assure the network services the
needs of their diverse enrolled population; and,
f) a system to monitor provider and
enrollee access to utilization management services including
at least waiting times to respond to telephone requests for
service authorization, enrollee urgent care inquiries, and
other services required.
6. The MCO shall develop a performance
and outcome measurement system for monitoring and
evaluating the quality of care provided to MCO enrollees.
The performance and outcome measures shall include
population-based and patient-centered indicators of quality
of care, appropriateness, access, utilization, and satisfaction.
Data for these performance measures shall include but not be
limited to the following:
a) indicator data collected by MCOs
from chart reviews and administrative databases;
b) enrollee satisfaction surveys;
c) provider surveys;
d) annual reports submitted by MCOs to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1042 PROPOSED REGULATIONS
the Department; and,
e) computerized health care encounter
data.
7. The MCO shall follow-up on findings
from the program to assure that effective corrective actions
have been taken, including at least policy revisions,
procedural changes and implementation of educational
activities for enrollees and providers.
8. Continuous quality improvement activities
shall be coordinated with other performance monitoring
activities including utilization management and monitoring
of enrollee and provider complaints.
9. The MCO shall maintain documentation
of the quality improvement program in a confidential
manner. This documentation shall be available to the
Department and shall include:
a) minutes of quality improvement
committee meetings; and,
b) records of evaluation activities,
performance measures, quality indicators and corrective
plans and their results or outcomes.
B. External Quality Audit
1. Each MCO shall submit, as a part of its
annual report due June 1, evidence of its most recent external
quality audit that has been conducted or of acceptable
accreditation status. External quality audits must be
completed no less frequently than once every three (3) years.
Such audit shall be performed by a nationally known
accreditation organization or an independent quality review
organization acceptable to the Department.
a) MCOs must submit the following
information to the Department in order to receive approval
for the nationally known accreditation organization or
independent quality review organization that will conduct
the triennial reviews or perform accreditation for the MCO:
(1) i. evidence that the nationally
known accreditation organization or independent quality
review organization has experience performing external
quality audits or accreditation of MCOs; and,
(2) ii. the current standards for
independent quality reviews or accreditations of MCOs as
established and maintained by the accrediting entity.
2. The report must describe in detail the
MCO's conformance to performance standards and the rules
within these regulations. The report shall also describe in
detail any corrective actions proposed and/or undertaken by
the MCO.
3. In lieu of the external quality audit, the
Department may accept evidence that each MCO has
received and has maintained the appropriate accreditation
from a nationally known accreditation organization or
independent quality review organization.
C. Reporting and Disclosure Requirements
1. The Board of Directors of the MCO shall
be kept apprised of continuous quality improvement
activities and be provided at least annually with regular
written reports from the program delineating quality
improvements, performance measures used and their results,
and demonstrated improvements in clinical and service
quality.
2. An MCO shall document and
communicate information about its quality assessment
program and its quality improvement program, and shall:
a) include a summary of its quality
assessment and quality improvement programs in marketing
materials;
b) include a description of its quality
assessment and quality improvement programs and a
statement of enrollee rights and responsibilities with respect
to those programs in the materials or handbook provided to
enrollees; and,
c) make available annually to providers
and enrollees findings from its quality assessment and
quality improvement programs and information about its
progress in meeting internal goals and external standards,
where available. The reports shall include a description of
the methods used to assess each specific area and an
explanation of how any assumptions affect the findings.
3. MCOs shall submit such performance and
outcome data as the Department may request.
PART FIVE
SECTION 69.5 ENROLLEE RIGHTS AND
RESPONSIBILITIES
69.501 The MCO shall establish and implement written
policies and procedures regarding the rights of enrollees and
the implementation of these rights.
69.502 In the case of nonpayment by the MCO to a
provider for a covered service in accordance with the
enrollee's health care contract, the provider may not bill the
enrollee. This does not prohibit the provider from collecting
coinsurance, deductibles or co-payments as determined by
the MCO. This does not prohibit the provider and enrollee
from agreeing to continue services solely at the expense of
the enrollee, as long as the provider clearly informs the
enrollee that the MCO will not cover these services.
69.503 The MCO shall permit enrollees to choose their
own primary care physician from the MCO network. This
choice may be more flexible, depending on the type of health
plan purchased by the enrollee. When MCOs maintain a list
of health care professionals within the plan, this list shall be
updated as health care professionals are added or removed
and shall include:
A. A sufficient number of primary care physicians
who are accepting new enrollees; and,
B. A sufficient number of primary care physicians
that reflects a diversity that is adequate to meet the diverse
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1043
needs of the enrolled populations' varied characteristics
including age, gender, language, race and health status.
69.504 The MCO shall establish and implement a
procedure, for those plans which do not allow direct access
to a health care specialist, by which enrollees can obtain a
standing referral (69.141) to a health care specialist. This
procedure:
A. Shall provide for a standing referral to a
specialist if the enrollee's network provider determines that
the enrollee needs continuing care from a specialist;
B. May require the MCO's approval of an initial
treatment plan designed by the specialist which may limit the
number of visits to the specialist, limit the duration of the
standing referral, or require updates on the enrollee's
condition;
C. May require that referrals, procedures, tests,
and other medical services be provided by network providers
unless such services are not available through network
providers or are not available within a reasonable period of
time. The MCO shall make acceptable service arrangements
with non-network providers and the enrollee, and shall
prohibit balance billing.
69.505 The MCO shall provide coverage of routine
patient care costs (those normally covered under an
enrollee's health plan) for enrollees engaging in clinical
trials for treatment of life-threatening diseases.
A. Clinical trials must meet the following
requirements:
1. The subject or purpose of the trial must be
the evaluation of an item or service that falls within the
covered benefits of the enrollee health plan and is not
specifically excluded from coverage;
2. The trial must not be designed specifically
to test toxicity or disease pathophysiology;
3. The trial must have therapeutic intent;
4. Trials of therapeutic interventions must
enroll patients with diagnosed disease;
5. The principal purpose of the trial is to test
whether the intervention potentially improves the
participant's health outcomes;
6. The trial is well-supported by available
scientific and medical information or it is intended to clarify
or establish the health outcomes of interventions already in
common clinical use;
7. The trial does not unjustifiably duplicate
existing studies; and,
8. The trial is in compliance with Federal
regulations relating to the protection of human subjects.
B. Routine patient care costs include all items and
services that are otherwise generally available to a qualified
individual that are provided in the clinical trial with the
exception of:
1. The investigational items or service itself;
2. Items and services provided solely to
satisfy data collection and analysis needs and that are not
used in the direct clinical management of the enrollees; and,
3. Items and services customarily provided
by the research sponsors free of charge for any enrollee in
the trial.
69.504 506 The MCO shall provide each enrollee with
an enrollee's benefit handbook which includes a complete
statement of the enrollee's rights, a description of all
complaint and appeal procedures, a clear and complete
summary of the evidence of coverage, and notification of
their personal financial obligations for non- covered
services. The statement of the enrollee's rights shall include
at least the right:
A. To available and accessible services when
medically necessary, including availability of care twentyfour
(24) hours a day, seven (7) days a week for urgent or
emergency conditions;
B. To be treated with courtesy and consideration,
and with respect for the enrollee's dignity and need for
privacy;
C. To be provided with information concerning
the MCO's policies and procedures regarding products,
services, providers, appeal procedures and other information
about the organization and the care provided;
D. To choose a primary care provider within the
limits of the covered benefits and plan network, including
the right to refuse care of specific practitioners;
E. To receive from the enrollee's physician(s) or
provider, in terms that the enrollee understands, an
explanation of her/his complete medical condition,
recommended treatment, risk(s) of the treatment, expected
results and reasonable medical alternatives. If the enrollee is
not capable of understanding the information, the
explanation shall be provided to her/his next of kin or
guardian and documented in the enrollee's medical record;
F. To formulate advance directives;
G. To all the rights afforded by law or regulation
as a patient in a licensed health care facility, including the
right to refuse medication and treatment after possible
consequences of this decision have been explained in
language the enrollee understands;
H. To prompt notification, as required in these
rules, of termination or changes in benefits, services or
provider network;
I. To file a complaint or appeal with the MCO
and to receive an answer to those complaints within a
reasonable period of time; and,
J. To file a complaint with the Department or the
Commissioner.
69.505 507 The MCO shall establish and implement
written policies and procedures regarding the responsibilities
of enrollees. A complete statement of these responsibilities
shall be included in the enrollee's benefit handbook.
69.506 508 The MCO shall disclose to each new
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1044 PROPOSED REGULATIONS
enrollee, and any enrollee upon request, in a format and
language understandable to a layperson, the following
minimum information:
A. Benefits covered and limitations;
B. Out of pocket costs to the enrollee;
C. Lists of participating providers;
D. Policies on the use of primary care physicians,
referrals, use of out of network providers, and out of area
services;
E. Written explanation of the appeals process;
F. A description of and findings from the quality
assurance and improvement programs;
G. The patterns of utilization of services; and,
H. For staff model MCOs, the location and hours
of its inpatient and outpatient health services.
69.507 509 The MCO shall provide culturally
competent services to the greatest extent possible.
PART SIX
SECTION 69.6 REQUIREMENTS FOR STAFF
MODEL MCOs
In addition to all other requirements of these
regulations, staff model MCOs shall meet the requirements
of this section.
69.601 Environmental Health and Safety
A. Office premises and other structures operated
by the MCO must have appropriate safeguards for patients.
B. All buildings shall conform to all State and
medical codes and all regulations applicable to services
being offered. These codes shall include but are not limited
to:
1. State Plumbing Code.
2. Waste Disposal Regulations.
3. Public Water Supply Regulations.
4. Food Service Requirements.
5. Radiation Control Regulations.
6. Hazardous Waste Regulations.
7. Air and Water Pollution Regulations.
8. Hand washing facilities shall be installed in
accordance with applicable State and local regulations and
conveniently located.
9. Toilet facilities shall meet appropriate
State and local regulations.
10. State Fire Code requirements.
C. The buildings must be architecturally
accessible to handicapped individuals and comply with the
Americans with Disabilities Act.
D. Measures must be taken to insure that facilities
are guarded against insects and rodents.
E. Housekeeping
1. A housekeeping procedures manual shall
be written and followed. Special emphasis shall be given to
procedures applying to infectious diseases or suspect areas.
2. All premises shall be kept neat, clean, and
free of litter and rubbish.
3. Walls and ceilings shall be maintained free
of cracks and falling plaster and shall be cleaned and painted
regularly.
4. Floors shall be cleaned regularly and in
such a manner that it will minimize the spread of pathogenic
organisms in the atmosphere; dry dusting and sweeping shall
be prohibited.
5. Suitable equipment and supplies shall be
provided for cleaning all surfaces.
6. Solutions, cleaning compounds and
hazardous substances shall be properly labeled and stored in
safe places.
69.602 Emergency Utilities or Facilities
A. The MCO shall be equipped to handle
emergencies due to equipment failures. Emergency
electrical service for lighting and power for equipment
essential to life safety shall be provided in accordance with
hospital regulations where appropriate. (Minimum
Requirements for Construction of Hospital and Health Care
Facilities, Section 7.32H.)
B. In facilities which provide hospital services,
the emergency electrical system shall be so controlled that
the auxiliary power is brought to full voltage and frequency
and can be connected within ten (10) seconds.
C. Emergency utilities for MCOs and contract
providers must be supplied according to procedures
performed on the premises.
69.603 Construction
A. New construction or substantial modifications
on an existing facility shall conform to applicable State,
county and local codes, including the National Fire
Protection Association Publication No. 101 - Life Safety
Code, latest edition adopted by the State Fire Prevention
Board.
B. Radiation requirements of the Authority on
Radiation Protection shall be met.
C. Facility plans or modifications shall be
submitted to the Department for review and approval prior to
any work being begun.
69.604 Personnel
A. The office shall be staffed by appropriately
trained personnel. Appropriate manuals shall be developed
to serve as guidelines and set standards for patient care
provided by nonprofessional personnel.
B. Offices with five (5) or more physicians shall
have at least one (1) full time registered nurse (RN).
C. Nonprofessional personnel shall have
appropriate in-service education on clinical operations and
procedures. The in-service training program must be
conducted at least annually.
D. Primary physician. There shall be at least one
(1) full time or full time equivalent (F.T.E.) physician
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1045
available on contract. There shall be at least one (1) F.T.E.
primary physician for every 1,000 enrollees.
E. Medical Specialties. There shall be either full
time or part-time physicians, other appropriate professional
specialists, or written agreements adequate to ensure access
to all needed services for enrollees.
69.605 Equipment
Each office operated by the MCO must have the
necessary equipment and instruments to provide the required
services. Equipment and instruments for services, when
covered by written contract with medical specialists or other
providers outside of the office, need not be present in the
MCO's office. Where emergency services are provided in
the office, equipment such as a defibrillator, laryngoscope
and other similar equipment must be present.
69.606 Specialized Services
A. The MCO shall provide special services
necessary for diagnosis and treatment such as ultra sound.
Where it is not feasible to provide these services in the
office, there shall be a written agreement for these services
in a nearby location except for isolated rural areas where
arrangements for these services shall be subject to review
and approval by the Department.
1. The MCO's radiology services shall be
supervised and conducted by a qualified radiologist, either
full time or part-time; or, when radiology services are
supervised and conducted by a physician who is not a
qualified radiologist, the MCO shall provide for regular
consultation by a qualified radiologist, who is under contract
with the MCO and is responsible for reviewing all X-rays
and procedures. The number of qualified radiological
technologists employed shall be sufficient to meet the
MCO's requirements. If the MCO operates a radiology
service and provides emergency services, at least one (1)
qualified technologist shall be on duty or on call at all times.
2. Pharmaceutical services, when provided
by the MCO, must be under the direct supervision of a
registered pharmacist who is responsible to the
administrative staff for developing, coordinating and
supervising all pharmaceutical services; or, in the case of
dispensing of pharmaceuticals by a physician, such
dispensing shall not violate the requirements of State law.
MCOs with a licensed pharmacy shall have a Pharmacy and
Therapeutics Committee. Pharmaceutical services may be
provided on the premises of the MCO or by contract with an
independent licensed provider. The contract shall be
available for inspection by the Department at all times.
3. When the MCO provides its own
emergency services, facilities must be provided to ensure
prompt diagnosis and emergency treatment including
adequate Emergency Room space, separate from major
surgical suites. In Emergency Room facilities provided for
or arranged for by the MCO there shall be as a minimum:
adequate oxygen, suction, CPR, diagnostic equipment, as
well as standard emergency drugs, parenteral fluids, blood or
plasma substitutes and surgical supplies. Radiology
facilities, clinical laboratory facilities and current toxicology
including antidotes shall be available at all times.
4. Personnel shall be trained and approved by
an appropriate professional organization in the operation and
procedures of emergency equipment.
69.607 Central Sterilizing and Supply
Autoclaves or other acceptable sterilization
equipment shall be provided of a type capable of meeting the
needs of the MCO and of a recognized type with approved
controls and safety features. Bacteriological culture tests
shall be conducted at least monthly. The maintenance
program of the sterilization system shall be under the
supervision of competent trained personnel.
PART SEVEN
SECTION 69.7 ADMINISTRATIVE
REQUIREMENTS
69.701 Administration
The MCO shall designate an appropriate person or
persons to handle the administrative functions of the MCO.
These functions shall include the following responsibilities:
interpretation, implementation and application of policies
and programs established by the MCO's governing
authority; establishment of safe, effective and efficient
administrative management; control and operation of the
services provided; authority to monitor or supervise the
operation and in accordance with acceptable medical
standards; and such other duties, responsibilities and tasks as
the governing body or other designated authority may
empower such individual(s).
69.702 Qualifications
Persons appointed to administrative positions in the
MCO shall have the necessary current training and
experience in the field of health care as appropriate to carry
out the functions of their job descriptions.
69.703 Medical Privileges
Participating physicians shall have hospital
privileges commensurate with their contractual obligations.
Physicians must be licensed in Delaware.
69.704 Medical Records
The MCO must maintain or provide for the
maintenance of a medical records system which meets the
accepted standards of the health care industry and the
regulations of the Department.
A. These records shall include the following
information: name, identification number, age, sex,
residence, employment, patient history, physical
examination, laboratory data, diagnosis, treatment
prescribed and drugs administered.
B. The medical record should also contain an
abstract summary of any inpatient hospital care or referred
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1046 PROPOSED REGULATIONS
treatment.
C. Regulatory agencies shall have access to
medical records for purposes of monitoring and review of
MCO practices.
D. Enrollees' records shall be filed for five (5)
years following active status before being destroyed.
69.705 Reporting Requirements and Statistics
The MCO shall submit reports as required by these
regulations.
A. The MCO shall disclose to its enrollees the
following information:
1. the patterns of utilization of its services
based on the information in 69.405.A.6; and,
2. the location and hours of its inpatient and
outpatient health services.
B. The following information is required to be
submitted to the Department on an annual basis:
1. Physician visits per enrollee per year.
2. Hospital admissions per year and per 1,000
enrollees per year.
3. Hospital days per year and per 1,000
enrollees per year.
4. Average length of stay per hospital
confinement.
5. Outside consultations per year and per 1,000
enrollees per year.
6. Emergency Room visits per year and per
1,000 enrollees per year.
7. Laboratory procedures per year and per
1,000 enrollees per year.
8. X-ray procedures per year and per 1,000
enrollees per year.
9. Total number of enrollees at the end of the
year.
10. Total number of enrollees enrolled during
the year.
11. Total number of enrollees terminated
during the year.
12. Cost of operation.
13. Current provider directory including
PCPs, specialists, facilities and ancillary health care
services.
14. A statistical summary evaluating the
network adequacy and accessibility to the enrolled
population.
15. Annual appeal report of medical necessity
and disputable need to include:
a) Number of appeals at each level of
appeal;
b) A compilation of causes underlying
the appeals;
c) Resolution of the appeals; and,
d) Number of appeals terminated during
the external review as described by 69.404E7.
16. Annual appeal report of all other appeals
(not medical necessity or disputable need) to include:
a) Number of appeals at each level of
appeal;
b) A compilation of causes underlying
the appeals; and,
c) Resolution of the appeals.
C. The following administrative reports are
required by the Department whenever there is a change:
1. Full name of the Chief Executive Officer.
2. Full name of the Medical Director.
3. Address(es) of the office(s) in operation.
4. Name(s) of the hospital(s) used by the MCO
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
PUBLIC NOTICE
Food Stamps Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Food
Stamps Program is proposing to implement policy changes
to the following section of the Division of Social Services
Manual (DSSM): DSSM 9060. These changes are being
made as a result of the following rule: Food Stamp Program:
Noncitizen Eligibility, and Certification Provisions of PL
104-193, as amended by PL 104-208, 105-33 and 105-185,
Final Rule. This rule implements several provisions of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) and amended by the
Omnibus Consolidated Appropriations Act of 1997
(OCAA), the Balanced Budget Act of 1997 (BBA), and the
Agricultural Research, Extension and Education Reform Act
of 1998 (AREERA).
Summary of Changes:
• Includes cooling costs in the heating standard utility
allowance that creates a heating and cooling
allowance.
• Requires a household to have two, non-heat or
cooling, utility expenses to use the low utility
standard.
• Allows a household living in a public housing unit
or other rental housing unit which has central utility
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1047
meters and charges the household only for excess
heating or cooling costs to receive the LUA (limited
utility allowance) provided the household has
another utility like a phone or gas cooking.
• Allows a household to claim the shelter costs of the
home if not occupied by the household because of
training away from home.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by November 30, 2001.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
REVISION
DSSM 9060 Income Deductions
F. Shelter Costs - Monthly shelter costs in excess of 50% of
the household's income after all other deductions in A, B,
and C above have been allowed. The shelter deduction must
not exceed the maximum excess shelter deduction limit.
(Refer to the current October Cost-of-Living Adjustment
Administrative Notice for the maximum excess shelter
deduction.) This is applicable unless the household contains
a member who is age sixty (60) or over, or disabled per
DSSM 9013.1. Such households will receive an excess
shelter deduction for the monthly costs that exceeds 50% of
the household's monthly income after all other applicable
deductions.
Shelter costs will include only the following:
1) Continuing charges for the shelter occupied by the
household, including rent, mortgages, condo and association
fees, or other continuing charges leading to the ownership of
the shelter such as loan repayments for the purchase of a
mobile home, including interest on such payments. A
mortgage is defined as any loan that uses the house as
collateral.
Households required to pay the "last month's rent" along
with the first month's rent before they can move into the
dwelling can claim both amounts in the month that the
household is billed.
For example, a client rents an apartment in January and
must pay January's and the next December's rent in January.
Both rental amounts can be used for January's food stamp
budget. A rent deduction would not be allowed in December
since it was paid in January.
Households required to pay a security deposit before
they move into a dwelling cannot claim the deposit as a
shelter cost.
For example, a client rents a home and must pay a $450
security deposit and the first month's rent before she moves
in. The security deposit will be refunded when she moves
out if the home is in good condition. She cannot claim the
deposit as a shelter cost for food stamp purposes.
2) Property taxes, State and local assessments and
insurance on the structure itself, but not separate costs for
insuring furniture or personal belongings. If separate
insurance costs for furniture or personal belongings are not
identified, use the total.
3) The costs of:
• fuel for heating or air conditioning costs for
cooling;
• electricity or fuel used for purposes other than
heating or cooling;
• water;
• sewerage;
• well installation and maintenance;
• septic tank system installation and maintenance;
• garbage and trash collection;
• all service fees for one telephone, including, but not
limited to basic service fees, subscriber line
charges, relay center surcharges, 911 fees, and
taxes; and
• fees charged by the utility provider for initial
installation of the utility.
One time deposits cannot be included.
4) There are two standard utility allowances. The
standard heating allowance will be available only to
households which incur heating costs separately and apart
from their rent or mortgage including residents of rental
housing who are billed on a monthly basis by their landlords
for actual usage as determined through individual metering.
The standard heat allowance is available to households
receiving indirect energy assistance payments.
A household living in a public housing unit or other
rental housing unit which has central utility meters and
charges the household only for excess utility costs is not
permitted to use either standard allowance. Such households
may claim the actual verified utility expenses, which it does
pay separately. Households should be advised of this option
at each (re) certification.
The two annualized utility allowances are offered
available:
The limited utility basic allowance (LUA) is
available to households that do not pay for heat or air
conditioning cooling, but incur costs that include electricity
and fuel for purposes other than heating or cooling, water,
sewerage, well and septic tank installation and maintenance,
telephone, and garbage or trash collection. To get the LUA,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1048 PROPOSED REGULATIONS
the household must incur expenses for at least two utilities,
like phone and electric, phone and water, gas cooking and
non-heat or cooling electric, or water and trash collection. A
household living in a public housing unit or other rental
housing unit which has central utility meters and charges the
household only for excess heating or cooling costs can
receive the LUA provided the household has another utility
like a phone or gas cooking.
The heating and cooling utility allowance
(HCSUA) is available to households with heating or air
conditioning cooling costs separate from their rent or
mortgage. Other households eligible for the HCSUA
include:
• Residents of private rental housing who are billed
on a monthly basis by their landlords for actual
usage as determined through individual usage or
who are charged a flat rate;
• Households receiving energy payments under the
Low Income Home Energy Assistance (LIHEA);
• Households receiving direct or indirect energy
assistance payments, other than LIHEA, that is
excluded as income and who continue to incur any
out-of-pocket heating or cooling expenses during
any month in the certification period.
Heating costs must be verified to use the HCSUA. For
cooling costs, you must verify the utility, like electricity, that
provides the air conditioning. Accept the household_s
statement that they pay for cooling unless it is questionable.
(Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the standard utility
allowances.)
Households may choose between a standard or verified
actual utility costs at initial certification, recertification, or
when a household moves.
Permit households to switch between their actual utility
costs and the appropriate utility standard at the time of
recertification. Qualifying households not opting to itemize
actual utility costs will be assigned the appropriate standard
utility allowance.
If the household is billed separately for only telephone,
water, sewer, or garbage collection fees (any one or more of
these), the household is not entitled to claim either standard
utility allowance. If one of these households is billed for a
telephone, The standard telephone allowance will be used
(for these households billed only for a telephone, and
regardless of their actual cost). In addition, these households
may claim the actual utility expenses (water, sewer, or
garbage) for which they are billed separately from rent or
mortgage payments. (Refer to the current October Cost-of-
Living Adjustment Administrative Notice for the telephone
allowance.)
If a household is billed only for one utility, not heating/
cooling or telephone, the household is allowed the actual
cost for that utility.
Prorating the SUA
When households live with and share utility expenses
with other individuals or households, whether they are
participating in the Food Stamp Program or not, the agency
will prorate the standard utility allowances based on the
number of households sharing the utility costs.
The following are examples of prorating the SUA:
Two (2) households share a residence. They both
contribute towards the utility costs. The food stamp
household pays $50 towards the costs each month. The food
stamp household is entitled to one-half of the SUA.
A food stamp household shares an apartment and
utilities with another individual. The food stamp household
pays two-thirds of the utility costs. The household is entitled
to one-half of the SUA.
Three (3) households share a residence and utility
expenses. The food stamp household pays a different amount
each month based on the amount of the costs. The food
stamp household is entitled to a one-third proration of the
SUA.
4) The shelter costs of the home if not occupied by the
household because of employment or training away from
home, illness or abandonment caused by a natural disaster or
casualty loss. For costs of a home vacated by the household
to be included in the household's shelter costs, the household
must intend to return to the home; the current occupants of
the home, if any must not be claiming the shelter costs for
food stamp purposes; and the home must not be leased or
rented during the absence of the household.
A household that has both an occupied home and an
unoccupied home is only entitled to one standard utility
allowance.
5) Charges for the repair of the home that was
substantially damaged or destroyed due to a natural disaster
such as a fire or flood. Shelter costs will not include charges
for repair of the home that have been or will be reimbursed
by private or public relief agencies, insurance companies, or
from any other source. Repairs, other than those due to
natural disasters, do not count as a deduction, even when
tenants must pay for them or be evicted.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1049
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
PUBLIC NOTICE
Medicaid/Medical Assistance Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Medicaid/
Medical Assistance Program is proposing to implement a
policy change to the following section of the Division of
Social Services Manual (DSSM): DSSM 20620.1. Effective
October 1, 2001, this change, approved and funded by the
State Legislature, will increase the monthly personal needs
allowance protected for individuals who are eligible for
Medicaid and reside in nursing facilities.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by November 30, 2001.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
REVISION
20620.1 Personal Needs
$42.00 $44.00 per month of available income is to be
protected for the recipients direct personal needs.
If the recipient receives a reduced VA Improved
Pension (not to exceed $90) the personal needs amount will
be $90 or the amount of personal needs allowance in the
state plan, whichever is greater.
If the recipient regularly attends a rehab/educational
program off the grounds of his nursing facility, including
employment for the purpose of rehabilitation in a sheltered
workshop off the grounds of the facility, $50.00 per month
(rather than $42 $44) will be protected.
For nursing home residents who are participating in
substantial gainful activity (SGA) (20 CFR 416.971), the
following amounts, not to exceed the Adult Foster Care rate
will be deducted from gross earned income:
• Mandatory payroll deductions that are a condition
of employment including, but not limited to:
Federal, State and Local Taxes
FICA
Union Dues
Insurance premiums
Pension contributions
Transportation costs as paid to & from work
Clothing and personal needs allowance of $75/
month.
If earnings average more than $700 a month in a
calendar year, this is considered SGA and DSS can allow a
personal needs allowance of up to the AFC rate. If earnings
average less than $300 a month in a calendar year, this is not
ordinarily considered SGA and DSS can allow the $42 $44
or $50 personal needs allowance. If average earnings are
between $300 and $700, DSS must consider other factors to
determine whether or not the work constitutes SGA. Other
factors include considering if the work is comparable to
unimpaired people in the community performing similar
jobs.
DEPARTMENT OF INSURANCE
Statutory Authority: 18 Delaware Code,
Section 311 (18 Del.C. §311)
NOTICE
Insurance Commissioner Donna Lee H. Williams
Hereby gives notice that a PUBLIC HEARING will be held
on Tuesday November 27, 2001 at 10:00 a.m. in the
Executive Conference Room of the Delaware Department of
Insurance, 841 Silver Lake Boulevard, Dover, Delaware.
The hearing is to consider implementation of Regulation No.
85 (Proposed) entitled "Valuation Of Life Insurance
Policies"
The purpose of the Regulation is to select mortality
factors and rules for their use, set rules concerning a
minimum standard for the valuation of plans with non-level
premiums or benefits, and set rules concerning a minimum
standard for the valuation of plans with secondary
guarantees. The method for calculating basic reserves
defined in the proposed regulation will constitute the
Commissioners' Reserve Valuation Method for policies to
which the proposed regulation is applicable and will conform
to similar standards applicable nationally.
The hearing will be conducted in accordance with the
Delaware Administrative Procedures Act, 29 Del. C.
Chapter 101. Comments are being solicited from any
interested party. Comments may be in writing or may be
presented orally at the Hearing. Written comments must be
received by the Department of Insurance no later than
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1050 PROPOSED REGULATIONS
Friday, November 23, 2001, and should be addressed to
Deputy Attorney General Michael J. Rich, Delaware
Department of Insurance, 841 Silver Lake Boulevard,
Dover, DE 19904. Those wishing to testify or give an oral
statement must notify Michael J. Rich at (302) 739-4251,
Ext. 171 no later than Friday, November 23, 2001.
Regulation 85
Valuation of Life Insurance Policies
Sections
1. Purpose
2. Authority
3. Applicability
4. Definitions
5. General Calculation Requirements for Basic Reserves
and Premium Deficiency Reserves
6. Calculation of MinimumValuation Standard for
Policies with Guaranteed Non-level Gross Premiums or
Guaranteed Non-level Benefits (Other Than Universal
Life Policies)
7. Calculation of MinimumValuation Standard for
Flexible Premium and Fixed Premium Universal Life
Insurance Policies That Contain Provisions Resulting in
the Ability of a Policy Owner to Keep a Policy in Force
Over a Secondary Guarantee Period
8. Effective Date
Appendix.
Section 1. Purpose
A. The purpose of this regulation is to provide:
(1) Tables of select mortality factors and rules for
their use;
(2) Rules concerning a minimum standard for the
valuation of plans with non-level premiums or benefits; and
(3) Rules concerning a minimum standard for the
valuation of plans with secondary guarantees.
B. The method for calculating basic reserves defined in
this regulation will constitute the Commissioners' Reserve
Valuation Method for policies to which this regulation is
applicable.
Section 2. Authority
This regulation is issued under the authority of 18 Del.
C. §312, 18 Del. C. Chapter 11 and 29 Del. C. Chapter 101.
Section 3. Applicability
This regulation shall apply to all life insurance policies,
with or without nonforfeiture values, issued on or after
January 1, 2002, subject to the following exceptions and
conditions.
A. Exceptions
(1) This regulation shall not apply to any individual
life insurance policy issued on or after January 1, 2002 if the
policy is issued in accordance with and as a result of the
exercise of a reentry provision contained in the original life
insurance policy of the same or greater face amount, issued
before January 1, 2002, that guarantees the premium rates of
the new policy. This regulation also shall not apply to
subsequent policies issued as a result of the exercise of such
a provision, or a derivation of the provision, in the new
policy.
(2) This regulation shall not apply to any universal
life policy that meets all the following requirements:
(a) Secondary guarantee period, if any, is five
(5) years or less;
(b) Specified premium for the secondary
guarantee period is not less than the net level reserve
premium for the secondary guarantee period based on the
CSO valuation tables as defined in Section 4F and the
applicable valuation interest rate; and
(c) The initial surrender charge is not less than
100 percent of the first year annualized specified premium
for the secondary guarantee period.
(3) This regulation shall not apply to any variable
life insurance policy that provides for life insurance, the
amount or duration of which varies according to the
investment experience of any separate account or accounts.
(4) This regulation shall not apply to any variable
universal life insurance policy that provides for life
insurance, the amount or duration of which varies according
to the investment experience of any separate account or
accounts.
(5) This regulation shall not apply to a group life
insurance certificate unless the certificate provides for a
stated or implied schedule of maximum gross premiums
required in order to continue coverage in force for a period in
excess of one year.
B. Conditions
(1) Calculation of the minimum valuation standard
for policies with guaranteed non-level gross premiums or
guaranteed non-level benefits (other than universal life
policies), or both, shall be in accordance with the provisions
of Section 6.
(2) Calculation of the minimum valuation standard
for flexible premium and fixed premium universal life
insurance policies, that contain provisions resulting in the
ability of a policyholder to keep a policy in force over a
secondary guarantee period shall be in accordance with the
provisions of Section 7.
Section 4. Definitions
For purposes of this regulation:
A. "Basic reserves" means reserves calculated in
accordance with 18 Del. C. 1113(c).
B. "Contract segmentation method" means the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1051
method of dividing the period from issue to mandatory
expiration of a policy into successive segments, with the
length of each segment being defined as the period from the
end of the prior segment (from policy inception, for the first
segment) to the end of the latest policy year as determined
below. All calculations are made using the 1980 CSO
valuation tables, as defined in Subsection F of this section,
(or any other valuation mortality table adopted by the
National Association of Insurance Commissioners (NAIC)
after the effective date of this regulation and promulgated by
regulation by the commissioner for this purpose), and, if
elected, the optional minimum mortality standard for
deficiency reserves stipulated in Section 5B of this
regulation.
The length of a particular contract segment shall be set
equal to the minimum of the value t for which Gt is greater
than Rt (if Gt never exceeds Rt the segment length is deemed
to be the number of years from the beginning of the segment
to the mandatory expiration date of the policy), where Gt and
Rt are defined as follows:
GPx+k+t
Gt = __________
GPx+k+t-1
where:
x = original issue age;
k = the number of years from the date of issue to
the beginning of the segment;
t = 1, 2, ...; t is reset to 1 at the beginning of each
segment;
GPx+k+t-1 =Guaranteed gross premium per thousand of
face amount for year t of the segment, ignoring policy fees
only if level for the premium paying period of the policy.
qx+k+t
Rt =__________,However, Rt may be increased or
qx+k+t-1 decreased by one percent in any
policy year, at the company's
option, but Rt shall not be less than
one;
where:
x, k and t are as defined above, and
qx+k+t-1 = valuation mortality rate for
deficiency reserves in policy year k+t but using the mortality
of Section 5B(2) if Section 5B(3) is elected for deficiency
reserves.
However, if GPx+k+t is greater than 0 and
GPx+k+t-1 is equal to 0, Gt shall be deemed to be 1000. If
GPx+k+t and GPx+k+t-1 are both equal to 0, Gt shall be
deemed to be 0.
C. "Deficiency reserves" means the excess, if greater
than zero, of
(1) Minimum reserves calculated in accordance
with 18 Del. C. 1113(g) over
(2) Basic reserves.
D. "Guaranteed gross premiums" means the
premiums under a policy of life insurance that are
guaranteed and determined at issue.
E. "Maximum valuation interest rates" means the
interest rates defined in 18 Del. C. 1113(b)(3) (Computation
of Minimum Standard by Calendar Year of Issue) that are to
be used in determining the minimum standard for the
valuation of life insurance policies.
F. "1980 CSO valuation tables" means the
Commissioners' 1980 Standard Ordinary Mortality Table
(1980 CSO Table) without ten-year selection factors,
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law, and variations of the 1980 CSO
Table approved by the NAIC, such as the smoker and
nonsmoker versions approved in December 1983.
G. "Scheduled gross premium" means the smallest
illustrated gross premium at issue for other than universal
life insurance policies. For universal life insurance policies,
scheduled gross premium means the smallest specified
premium described in Section 7A(3), if any, or else the
minimum premium described in Section 7A(4).
H.(1) "Segmented reserves" means reserves,
calculated using segments produced by the contract
segmentation method, equal to the present value of all future
guaranteed benefits less the present value of all future net
premiums to the mandatory expiration of a policy, where the
net premiums within each segment are a uniform percentage
of the respective guaranteed gross premiums within the
segment. The uniform percentage for each segment is such
that, at the beginning of the segment, the present value of the
net premiums within the segment equals:
(a) The present value of the death benefits within
the segment, plus
(b) The present value of any unusual guaranteed
cash value (see Section 6D) occurring at the end of the
segment, less
(c) Any unusual guaranteed cash value occurring at
the start of the segment, plus
(d) For the first segment only, the excess of the
Item (i) over Item (ii), as follows:
(i) A net level annual premium equal to the
present value, at the date of issue, of the benefits provided
for in the first segment after the first policy year, divided by
the present value, at the date of issue, of an annuity of one
per year payable on the first and each subsequent
anniversary within the first segment on which a premium
falls due. However, the net level annual premium shall not
exceed the net level annual premium on the nineteen-year
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1052 PROPOSED REGULATIONS
premium whole life plan of insurance of the same renewal
year equivalent level amount at an age one year higher than
the age at issue of the policy.
(ii) A net one year term premium for the
benefits provided for in the first policy year.
(2) The length of each segment is determined by
the "contract segmentation method," as defined in this
section.
(3) The interest rates used in the present value
calculations for any policy may not exceed the maximum
valuation interest rate, determined with a guarantee duration
equal to the sum of the lengths of all segments of the policy.
(4) For both basic reserves and deficiency reserves
computed by the segmented method, present values shall
include future benefits and net premiums in the current
segment and in all subsequent segments.
I. "Tabular cost of insurance" means the net single
premium at the beginning of a policy year for one-year term
insurance in the amount of the guaranteed death benefit in
that policy year.
J. "Ten-year select factors" means the select factors
adopted with the 1980 amendments to the NAIC Standard
Valuation Law.
K. (1) "Unitary reserves" means the present value of
all future guaranteed benefits less the present value of all
future modified net premiums, where:
(a) Guaranteed benefits and modified net
premiums are considered to the mandatory expiration of the
policy; and
(b) Modified net premiums are a uniform
percentage of the respective guaranteed gross premiums,
where the uniform percentage is such that, at issue, the
present value of the net premiums equals the present value of
all death benefits and pure endowments, plus the excess of
Item (i) over Item (ii), as follows
(i) A net level annual premium equal to the
present value, at the date of issue, of the benefits provided
for after the first policy year, divided by the present value, at
the date of issue, of an annuity of one per year payable on the
first and each subsequent anniversary of the policy on which
a premium falls due. However, the net level annual premium
shall not exceed the net level annual premium on the
nineteen-year premium whole life plan of insurance of the
same renewal year equivalent level amount at an age one
year higher than the age at issue of the policy.
(ii) A net one year term premium for the
benefits provided for in the first policy year.
(2) The interest rates used in the present value
calculations for any policy may not exceed the maximum
valuation interest rate, determined with a guarantee duration
equal to the length from issue to the mandatory expiration of
the policy.
L. "Universal life insurance policy" means any
individual life insurance policy under the provisions of
which separately identified interest credits (other than in
connection with dividend accumulations, premium deposit
funds, or other supplementary accounts) and mortality or
expense charges are made to the policy.
Section 5. General Calculation Requirements for Basic
Reserves and Premium Deficiency Reserves
A. At the election of the company for any one or more
specified plans of life insurance, the minimum mortality
standard for basic reserves may be calculated using the 1980
CSO valuation tables with select mortality factors (or any
other valuation mortality table adopted by the NAIC after the
effective date of this regulation and promulgated by
regulation by the commissioner for this purpose). If select
mortality factors are elected, they may be:
(1) The ten-year select mortality factors
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law;
(2) The select mortality factors in the Appendix; or
(3) Any other table of select mortality factors
adopted by the NAIC after the effective date of this
regulation and promulgated by regulation by the
commissioner for the purpose of calculating basic reserves.
B. Deficiency reserves, if any, are calculated for each
policy as the excess, if greater than zero, of the quantity A
over the basic reserve. The quantity A is obtained by
recalculating the basic reserve for the policy using
guaranteed gross premiums instead of net premiums when
the guaranteed gross premiums are less than the
corresponding net premiums. At the election of the
company for any one or more specified plans of insurance,
the quantity A and the corresponding net premiums used in
the determination of quantity A may be based upon the 1980
CSO valuation tables with select mortality factors (or any
other valuation mortality table adopted by the NAIC after the
effective date of this regulation and promulgated by
regulation by the commissioner). If select mortality factors
are elected, they may be:
(1) The ten-year select mortality factors
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law;
(2) The select mortality factors in the Appendix of
this regulation;
(3) For durations in the first segment, X percent of
the select mortality factors in the Appendix , subject to the
following:
(a) X may vary by policy year, policy form,
underwriting classification, issue age, or any other policy
factor expected to affect mortality experience;
(b) X shall not be less than twenty percent
(20%);
(c) X shall not decrease in any successive
policy years;
(d) X is such that, when using the valuation
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1053
interest rate used for basic reserves, Item (i) is greater than or
equal to Item (ii);
(i) The actuarial present value of future
death benefits, calculated using the mortality rates resulting
from the application of X;
(ii) The actuarial present value of future
death benefits calculated using anticipated mortality
experience without recognition of mortality improvement
beyond the valuation date;
(e) X is such that the mortality rates resulting
from the application of X are at least as great as the
anticipated mortality experience, without recognition of
mortality improvement beyond the valuation date, in each of
the first five (5) years after the valuation date;
(f) The appointed actuary shall increase X at
any valuation date where it is necessary to continue to meet
all the requirements of Subsection B(3);
(g) The appointed actuary may decrease X at
any valuation date as long as X does not decrease in any
successive policy years and as long as it continues to meet all
the requirements of Subsection B(3); and
(h) The appointed actuary shall specifically
take into account the adverse effect on expected mortality
and lapsation of any anticipated or actual increase in gross
premiums.
(i) If X is less than 100 percent at any duration
for any policy, the following requirements shall be met:
(i) The appointed actuary shall annually
prepare an actuarial opinion and memorandum for the
company in conformance with the requirements of 18 Del.
C. §1111(c); and
(ii) The appointed actuary shall annually
opine for all policies subject to this regulation as to whether
the mortality rates resulting from the application of X meet
the requirements of Subsection B(3). This opinion shall be
supported by an actuarial report, subject to appropriate
Actuarial Standards of Practice promulgated by the Actuarial
Standards Board of the American Academy of Actuaries.
The X factors shall reflect anticipated future mortality,
without recognition of mortality improvement beyond the
valuation date, taking into account relevant emerging
experience.
(4) Any other table of select mortality factors
adopted by the NAIC after the effective date of this
regulation and promulgated by regulation by the
commissioner for the purpose of calculating deficiency
reserves.
C. This subsection applies to both basic reserves and
deficiency reserves. Any set of select mortality factors may
be used only for the first segment. However, if the first
segment is less than ten (10) years, the appropriate ten-year
select mortality factors incorporated into the 1980
amendments to the NAIC Standard Valuation Law may be
used thereafter through the tenth policy year from the date of
issue.
D. In determining basic reserves or deficiency reserves,
guaranteed gross premiums without policy fees may be used
where the calculation involves the guaranteed gross
premium but only if the policy fee is a level dollar amount
after the first policy year. In determining deficiency
reserves, policy fees may be included in guaranteed gross
premiums, even if not included in the actual calculation of
basic reserves.
E. Reserves for policies that have changes to
guaranteed gross premiums, guaranteed benefits, guaranteed
charges, or guaranteed credits that are unilaterally made by
the insurer after issue and that are effective for more than
one year after the date of the change shall be the greatest of
the following: (1) reserves calculated ignoring the guarantee,
(2) reserves assuming the guarantee was made at issue, and
(3) reserves assuming that the policy was issued on the date
of the guarantee.
F. The commissioner may require that the company
document the extent of the adequacy of reserves for
specified blocks, including but not limited to policies issued
prior to the effective date of this regulation. This
documentation may include a demonstration of the extent to
which aggregation with other non-specified blocks of
business is relied upon in the formation of the appointed
actuary opinion pursuant to and consistent with the
requirements of 18 Del. C. §1111(c).
Section 6. Calculation of Minimum Valuation Standard
for Policies with Guaranteed Non-level Gross Premiums
or Guaranteed Non-level Benefits (Other than Universal
Life Policies)
A. Basic Reserves
Basic reserves shall be calculated as the greater of
the segmented reserves and the unitary reserves. Both the
segmented reserves and the unitary reserves for any policy
shall use the same valuation mortality table and selection
factors. At the option of the insurer, in calculating
segmented reserves and net premiums, either of the
adjustments described in Paragraph (1) or (2) below may be
made:
(1) Treat the unitary reserve, if greater than zero,
applicable at the end of each segment as a pure endowment
and subtract the unitary reserve, if greater than zero,
applicable at the beginning of each segment from the present
value of guaranteed life insurance and endowment benefits
for each segment.
(2) Treat the guaranteed cash surrender value, if
greater than zero, applicable at the end of each segment as a
pure endowment; and subtract the guaranteed cash surrender
value, if greater than zero, applicable at the beginning of
each segment from the present value of guaranteed life
insurance and endowment benefits for each segment.
B. Deficiency Reserves
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1054 PROPOSED REGULATIONS
(1) The deficiency reserve at any duration shall be
calculated:
(a) On a unitary basis if the corresponding
basic reserve determined by Subsection A is unitary;
(b) On a segmented basis if the corresponding
basic reserve determined by Subsection A is segmented; or
(c) On the segmented basis if the
corresponding basic reserve determined by Subsection A is
equal to both the segmented reserve and the unitary reserve.
(2) This subsection shall apply to any policy for
which the guaranteed gross premium at any duration is less
than the corresponding modified net premium calculated by
the method used in determining the basic reserves, but using
the minimum valuation standards of mortality (specified in
Section 5B) and rate of interest.
(3) Deficiency reserves, if any, shall be calculated
for each policy as the excess if greater than zero, for the
current and all remaining periods, of the quantity A over the
basic reserve, where A is obtained as indicated in Section
5B.
(4) For deficiency reserves determined on a
segmented basis, the quantity A is determined using segment
lengths equal to those determined for segmented basic
reserves.
C. Minimum Value
Basic reserves may not be less than the tabular cost
of insurance for the balance of the policy year, if mean
reserves are used. Basic reserves may not be less than the
tabular cost of insurance for the balance of the current modal
period or to the paid-to-date, if later, but not beyond the next
policy anniversary, if mid-terminal reserves are used. The
tabular cost of insurance shall use the same valuation
mortality table and interest rates as that used for the
calculation of the segmented reserves. However, if select
mortality factors are used, they shall be the ten-year select
factors incorporated into the 1980 amendments of the NAIC
Standard Valuation Law. In no case may total reserves
(including basic reserves, deficiency reserves and any
reserves held for supplemental benefits that would expire
upon contract termination) be less than the amount that the
policy owner would receive (including the cash surrender
value of the supplemental benefits, if any, referred to above),
exclusive of any deduction for policy loans, upon
termination of the policy.
D. Unusual Pattern of Guaranteed Cash Surrender
Values
(1) For any policy with an unusual pattern of
guaranteed cash surrender values, the reserves actually held
prior to the first unusual guaranteed cash surrender value
shall not be less than the reserves calculated by treating the
first unusual guaranteed cash surrender value as a pure
endowment and treating the policy as an n year policy
providing term insurance plus a pure endowment equal to the
unusual cash surrender value, where n is the number of years
from the date of issue to the date the unusual cash surrender
value is scheduled.
(2) The reserves actually held subsequent to any
unusual guaranteed cash surrender value shall not be less
than the reserves calculated by treating the policy as an n
year policy providing term insurance plus a pure endowment
equal to the next unusual guaranteed cash surrender value,
and treating any unusual guaranteed cash surrender value at
the end of the prior segment as a net single premium, where
(a) n is the number of years from the date of
the last unusual guaranteed cash surrender value prior to the
valuation date to the earlier of:
(i) The date of the next unusual
guaranteed cash surrender value, if any, that is scheduled
after the valuation date; or
(ii) The mandatory expiration date of the
policy; and
(b) The net premium for a given year during
the n year period is equal to the product of the net to gross
ratio and the respective gross premium; and
(c) The net to gross ratio is equal to Item (i)
divided by Item (ii) as follows:
(i) The present value, at the beginning of
the n year period, of death benefits payable during the n year
period plus the present value, at the beginning of the n year
period, of the next unusual guaranteed cash surrender value,
if any, minus the amount of the last unusual guaranteed cash
surrender value, if any, scheduled at the beginning of the n
year period.
(ii) The present value, at the beginning of
the n year period, of the scheduled gross premiums payable
during the n year period.
(3) For purposes of this subsection, a policy is
considered to have an unusual pattern of guaranteed cash
surrender values if any future guaranteed cash surrender
value exceeds the prior year's guaranteed cash surrender
value by more than the sum of:
(a) One hundred ten percent (110%) of the
scheduled gross premium for that year;
(b) One hundred ten percent (110%) of one
year's accrued interest on the sum of the prior year's
guaranteed cash surrender value and the scheduled gross
premium using the nonforfeiture interest rate used for
calculating policy guaranteed cash surrender values; and
(c) Five percent (5%) of the first policy year
surrender charge, if any.
E. Optional Exemption for Yearly Renewable Term
Reinsurance. At the option of the company, the following
approach for reserves on YRT reinsurance may be used:
(1) Calculate the valuation net premium for each
future policy year as the tabular cost of insurance for that
future year.
(2) Basic reserves shall never be less than the
tabular cost of insurance for the appropriate period, as
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1055
defined in Subsection C.
(3) Deficiency reserves.
(a) For each policy year, calculate the excess,
if greater than zero, of the valuation net premium over the
respective maximum guaranteed gross premium.
(b) Deficiency reserves shall never be less than
the sum of the present values, at the date of valuation, of the
excesses determined in accordance with Subparagraph (a)
above.
(4) For purposes of this subsection, the calculations
use the maximum valuation interest rate and the 1980 CSO
mortality tables with or without ten-year select mortality
factors, or any other table adopted after the effective date of
this regulation by the NAIC and promulgated by regulation
by the commissioner for this purpose.
(5) A reinsurance agreement shall be considered
YRT reinsurance for purposes of this subsection if only the
mortality risk is reinsured.
(6) If the assuming company chooses this optional
exemption, the ceding company's reinsurance reserve credit
shall be limited to the amount of reserve held by the
assuming company for the affected policies.
F. Optional Exemption for Attained-Age-Based Yearly
Renewable Term Life Insurance Policies. At the option of
the company, the following approach for reserves for
attained-age-based YRT life insurance policies may be used:
(1) Calculate the valuation net premium for each
future policy year as the tabular cost of insurance for that
future year.
(2) Basic reserves shall never be less than the
tabular cost of insurance for the appropriate period, as
defined in Subsection 6C.
(3) Deficiency reserves.
(a) For each policy year, calculate the excess,
if greater than zero, of the valuation net premium over the
respective maximum guaranteed gross premium.
(b) Deficiency reserves shall never be less than
the sum of the present values, at the date of valuation, of the
excesses determined in accordance with Subparagraph (a)
above.
(4) For purposes of this subsection, the calculations
use the maximum valuation interest rate and the 1980 CSO
valuation tables with or without ten-year select mortality
factors, or any other table adopted after the effective date of
this regulation by the NAIC and promulgated by regulation
by the commissioner for this purpose.
(5) A policy shall be considered an
attained-age-based YRT life insurance policy for purposes of
this subsection if:
(a) The premium rates (on both the initial
current premium scale and the guaranteed maximum
premium scale) are based upon the attained age of the
insured such that the rate for any given policy at a given
attained age of the insured is independent of the year the
policy was issued; and
(b) The premium rates (on both the initial
current premium scale and the guaranteed maximum
premium scale) are the same as the premium rates for
policies covering all insureds of the same sex, risk class, plan
of insurance and attained age.
(6) For policies that become attained-age-based
YRT policies after an initial period of coverage, the
approach of this subsection may be used after the initial
period if:
(a) The initial period is constant for all
insureds of the same sex, risk class and plan of insurance; or
(b) The initial period runs to a common
attained age for all insureds of the same sex, risk class and
plan of insurance; and
(c) After the initial period of coverage, the
policy meets the conditions of Paragraph (5) above.
(7) If this election is made, this approach shall be
applied in determining reserves for all attained-age-based
YRT life insurance policies issued on or after the effective
date of this regulation.
G. Exemption from Unitary Reserves for Certain
n-Year Renewable Term Life Insurance Polices. Unitary
basic reserves and unitary deficiency reserves need not be
calculated for a policy if the following conditions are met:
(1) The policy consists of a series of n-year
periods, including the first period and all renewal periods,
where n is the same for each period, except that for the final
renewal period, n may be truncated or extended to reach the
expiry age, provided that this final renewal period is less
than 10 years and less than twice the size of the earlier n-year
periods, and for each period, the premium rates on both the
initial current premium scale and the guaranteed maximum
premium scale are level;
(2) The guaranteed gross premiums in all n-year
periods are not less than the corresponding net premiums
based upon the 1980 CSO Table with or without the ten-year
select mortality factors; and
(3) There are no cash surrender values in any policy year.
H. Exemption from Unitary Reserves for Certain
Juvenile Policies
Unitary basic reserves and unitary deficiency
reserves need not be calculated for a policy if the following
conditions are met, based upon the initial current premium
scale at issue:
(1) At issue, the insured is age twenty-four (24) or
younger;
(2) Until the insured reaches the end of the juvenile
period, which shall occur at or before age twenty-five (25),
the gross premiums and death benefits are level, and there
are no cash surrender values; and
(3) After the end of the juvenile period, gross
premiums are level for the remainder of the premium paying
period, and death benefits are level for the remainder of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1056 PROPOSED REGULATIONS
life of the policy.
Section 7. Calculation of Minimum Valuation Standard
for Flexible Premium and Fixed Premium Universal Life
Insurance Policies That Contain Provisions Resulting in
the Ability of a Policy owner to Keep a Policy in Force
Over a Secondary Guarantee Period
A. General
(1) Policies with a secondary guarantee include:
(a) A policy with a guarantee that the policy
will remain in force at the original schedule of benefits,
subject only to the payment of specified premiums;
(b) A policy in which the minimum premium
at any duration is less than the corresponding one year
valuation premium, calculated using the maximum valuation
interest rate and the 1980 CSO valuation tables with or
without ten-year select mortality factors, or any other table
adopted after the effective date of this regulation by the
NAIC and promulgated by regulation by the commissioner
for this purpose; or
(c) A policy with any combination of
Subparagraph (a) and (b).
(2) A secondary guarantee period is the period for
which the policy is guaranteed to remain in force subject
only to a secondary guarantee. When a policy contains more
than one secondary guarantee, the minimum reserve shall be
the greatest of the respective minimum reserves at that
valuation date of each unexpired secondary guarantee,
ignoring all other secondary guarantees. Secondary
guarantees that are unilaterally changed by the insurer after
issue shall be considered to have been made at issue.
Reserves described in Subsections B and C below shall be
recalculated from issue to reflect these changes.
(3) Specified premiums mean the premiums
specified in the policy, the payment of which guarantees that
the policy will remain in force at the original schedule of
benefits, but which otherwise would be insufficient to keep
the policy in force in the absence of the guarantee if
maximum mortality and expense charges and minimum
interest credits were made and any applicable surrender
charges were assessed.
(4) For purposes of this section, the minimum
premium for any policy year is the premium that, when paid
into a policy with a zero account value at the beginning of
the policy year, produces a zero account value at the end of
the policy year. The minimum premium calculation shall
use the policy cost factors (including mortality charges,
loads and expense charges) and the interest crediting rate,
which are all guaranteed at issue.
(5) The one-year valuation premium means the net
one-year premium based upon the original schedule of
benefits for a given policy year. The one-year valuation
premiums for all policy years are calculated at issue. The
select mortality factors defined in Section 5B(2), (3), and (4)
may not be used to calculate the one-year valuation
premiums.
(6) The one-year valuation premium should reflect
the frequency of fund processing, as well as the distribution
of deaths assumption employed in the calculation of the
monthly mortality charges to the fund.
B. Basic reserves for the secondary guarantees shall be the
segmented reserves for the secondary guarantee period. In
calculating the segments and the segmented reserves, the
gross premiums shall be set equal to the specified premiums,
if any, or otherwise to the minimum premiums, that keep the
policy in force and the segments will be determined
according to the contract segmentation method as defined in
Section 4B.
C. Deficiency reserves, if any, for the secondary
guarantees shall be calculated for the secondary guarantee
period in the same manner as described in Section 6B with
gross premiums set equal to the specified premiums, if any,
or otherwise to the minimum premiums that keep the policy
in force.
D. The minimum reserves during the secondary
guarantee period are the greater of:
(1) The basic reserves for the secondary guarantee
plus the deficiency reserve, if any, for the secondary
guarantees; or
(2) The minimum reserves required by other rules
or regulations governing universal life plans.
Section 8. Effective Date
This regulation shall become effective ten days after
publication in the Register of Regulations.
* PLEASE NOTE: DUE TO SPACE CONSTRAINTS THE
TABLES IN APPENDIX A ARE NOT BEING REPRODUCED
HERE. THEY ARE AVAILABLE UPON REQUEST FROM THE
REGISTRAR'S OFFICE.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF WATER RESOURCES
Statutory Authority: 7 Delaware Code,
Chapter 60 (7 Del.C. Ch. 60)
Total Maximum Daily Load (TMDL) for Nutrients in the
Appoquinimink Watershed, Delaware
Brief Synopsis of the Subject, Substance, and Issues
The Department of Natural Resources and
Environmental Control (DNREC) is proposing to adopt a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1057
Total Maximum Daily Load (TMDL) Regulation for
nutrients in the Appoquinimink Watershed based upon an
expanded version of the TMDL imposed by the
Environmental Protection Agency (EPA) in 1998. A TMDL
sets a limit on the amount of a substance that can enter a
water body while still assuring that applicable water quality
standards are met and beneficial stream uses are protected.
A TMDL is composed of three components, including a
Waste Load Allocation (WLA) for point source discharges, a
Load Allocation (LA) for non-point sources, and a Margin
of Safety (MOS) to account for uncertainties.
Possible Terms of the Agency Action
Following adoption of the proposed Total Maximum
Daily Load for nutrients in the Appoquinimink Watershed,
DNREC will develop a Pollution Control Strategy (PCS) to
achieve the necessary load reductions. The PCS will
identify specific pollution reduction activities and
timeframes and will be developed in concert with affected
parties, the interested public, and the Department's ongoing
Whole Basin Management Program.
Statutory Basis or Legal Authority to Act
The authority to develop a TMDL is provided by Title 7
of the Delaware Code, Chapter 60, and Section 303(d) of the
Federal Clean Water Act, 33 U.S.C. 1251 et. seq., as
amended.
Other Legislation That May Be Impacted
None
Notice of Public Comment
A public workshop will be held on Wednesday,
December 5, 2001, between 3:30 and 5:30 p.m., at the
Volunteer Hose Company of Middletown Hall, 27 West
Green Street, Middletown, DE 19709.
A public hearing will be held onWednesday, December
5, 2001, between 6:00 and 8:00 p.m., at the Volunteer Hose
Company of Middletown Hall, 27 West Green Street,
Middletown, DE 19709. The hearing record will remain
open until 4:30 p.m., December 19, 2001. Please bring
written comments to the hearing or send them to Rod
Thompson, Hearing Officer, DNREC, 89 Kings Highway,
Dover, DE, 19901; facsimile: (302) 739-6242. All written
comments must be received by 4:30 p.m., December 19,
2001. For planning purposes, those individuals wishing to
make oral comments at the public hearing are requested to
notify Marianne Brady, (302) 739-4590; facsimile: (302)
739-6140; email: marianne.brady@state.de.us by 12:00
p.m., December 5, 2001.
Additional information and supporting technical
documents may be obtained from the Watershed Assessment
Section, Division of Water Resources, Department of
Natural Resources and Environmental Control, Silver Lake
Plaza - Suite 220, 820 Silver Lake Blvd, Dover, DE 19904-
2464, (302) 739-4590, facsimile: (302) 739-6140.
Prepared By:
Samuel P. Myoda, Watershed Assessment Section,
(302) 739-4590.
Total Maximum Daily Load (TMDL) for the
Appoquinimink River Watershed, Delaware
A. Introduction and Background
Intensive water quality monitoring performed by
Delaware Department of Natural Resources and
Environmental Control (DNREC) has shown that the waters
of the Appoquinimink River and several of its tributaries and
ponds are impaired as the result of low dissolved oxygen and
high nutrients. Low concentration of dissolved oxygen is
harmful to fish, shellfish, and other aquatic life. With regard
to nutrients (nitrogen and phosphorus), although they are
essential elements for both plants and animals, their presence
in excessive amounts causes undesirable conditions.
Symptoms of nutrient over-enrichment include: frequent
phytoplankton blooms, decreased water clarity, dissolved
oxygen deficiency, alteration of composition and diversity of
economically important native species of plants and animals,
and possible human health effects.
A reduction in the amount of nutrients and oxygen
consuming pollutants reaching the waters of the
Appoquinimink River and its tributaries and ponds is
necessary to reverse their undesirable impacts. These
pollutants and nutrients enter the waters of the
Appoquinimink River from point sources and nonpoint
sources. Point sources are end-of-pipe discharges from
municipal or industrial wastewater treatment plants.
Nonpoint sources include runoffs from agricultural and
urban areas, seepages from septic tanks, and ground water
discharges.
Section 303(d) of the Federal Clean Water Act (CWA)
requires States to develop a list (303(d) List) of waterbodies
for which existing pollution control activities are not
sufficient to attain applicable water quality criteria and to
develop Total Maximum Daily Loads (TMDLs) for the
pollutants of concern. A TMDL sets a limit on the amount of
a pollutant that can be discharged into a waterbody and still
protect water quality. TMDLs are composed of three
components: Waste Load Allocations (WLAs) for point
source discharges, Load Allocations (LAs) for nonpoint
sources, and a Margin of Safety (MOS) to account for
uncertainties and future growth.
DNREC listed the Appoquinimink River and several of
its tributaries and ponds on the State's 1996, 1998, and 2000
303(d) Lists and proposes the following Total Maximum
Daily Load regulation for nitrogen, phosphorous, and
Carbonaceous Biochemical Oxygen Demand (CBOD).
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1058 PROPOSED REGULATIONS
B. Total Maximum Daily Loads (TMDLs) Regulation
for the Appoquinimink River Watershed, Delaware
Article 1. The total nitrogen load from the only point
source facility in the watershed, the Middletown-Odessa-
Townsend (MOT) Regional Wastewater Treatment Plant,
shall be limited to 10.4 pounds per day.
Article 2. The total phosphorous load from the only
point source facility in the watershed, the Middletown-
Odessa-Townsend (MOT) Regional Wastewater Treatment
Plant, shall be limited to 2.1 pounds per day.
Article 3. The CBOD5 (5-day Carbonaceous
Biochemical Oxygen Demand) load from the only point
source facility in the watershed, the Middletown-Odessa-
Townsend (MOT) Regional Wastewater Treatment Plant,
shall be limited to 34.8 pounds per day.
Article 4. The nonpoint source nitrogen load in the
entire watershed shall be reduced by 20 percent (from the
2000 base-line). This shall result in a yearly-average total
nitrogen load of 334.1 pounds per day.
Article 5. The nonpoint source phosphorus load in the
entire watershed shall be reduced by 20 percent (from the
2000 base-line). This shall result in a yearly-average total
phosphorous load of 18.0 pounds per day.
Article 6. Based upon hydrodynamic and water quality
model runs and assuming implementation of reductions
identified by Articles 1 through 5, DNREC has determined
that, with an adequate margin of safety, water quality
standards and nutrient targets will be met in the
Appoquinimink River and its tributaries and ponds.
Article 7. Implementation of this TMDL Regulation
shall be achieved through development and implementation
of a Pollution Control Strategy. The Strategy will be
developed by DNREC in concert with Department's Whole
Basin Management Program, Appoquinimink River
Tributary Action Team, and other affected parties.
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF MOTOR VEHICLES AND THE
DIVISION OF HIGHWAY SAFETY
Statutory Authority: 21 Delaware Code,
Section 4177F(e) (21 Del.C. §4177F(e))
Please take notice, pursuant to 29 Del. C. Chapter 101,
the Delaware Department of Public Safety proposes to
promulgate a new policy regulation, number 91, to regulate
the fees associated with the costs of the Ignition Interlock
Program. After surveying the fees associated with similar
programs in surrounding states, it became obvious that the
fees in Delaware were below the industry standards. The
purpose of this policy regulation is to increase the fees to an
amount that is reasonable and will allow the vendors to
continue to operate at a profit in Delaware.
The Department of Public Safety will hold a hearing
pursuant to 29 Del. C. Chapter 101 concerning the adoption
of Policy Regulation 91, entitled "Ignition Interlock Device
Installation, Removal, and Monthly Monitoring and
Calibration Fees." The Department will receive public
comment regarding the proposed Department of Public
Safety Policy Regulation.
Department of Public Safety and Division of Highway
Safety Policy Regulation Number 91 Concerning: Ignition
Interlock Device Installation, Removal, and Monthly
Monitoring and Calibration Fees.
Date, Time and Place of Public Hearing
DATE: November 29, 2001
TIME: 10:00 a.m.
PLACE: Main Conference Room, 2nd Floor
Department of Public Safety
Public Safety Building
303 Transportation Circle
Dover, DE 19901
Persons may view the proposed Policy Regulation
between the hours of 8:00 a.m. to 4:00 p.m., Monday
through Friday, at the Division of Highway Safety, in the
Public Safety Building, 2nd floor, 303 Transportation Circle,
Suite 201, Dover, DE 19901.
Persons may present their views in writing by mailing
them to Lisa Moore, DUI Programs Coordinator, Division of
Highway Safety, PO Box 1321, Dover, DE 19903. Written
comments will be accepted until the close of business on
Monday, December 3, 2001. Persons may also present their
views by offering testimony at the public hearing. If the
number of persons desiring to testify at the public hearing is
large, the amount of time allotted to each speaker will be
limited.
Policy Regulation Number 91
Concerning: Ignition Interlock Device Installation,
Removal, and Monthly Monitoring and Calibration Fees.
I. Authority
The authority to promulgate this regulation is 21 Del. C.
§4177F(e).
II. Purpose
Title 21 Del.C. §4177F established a program utilizing
the Ignition Interlock device for those individuals with an
alcohol-related violation or offense. After surveying the fees
charged by surrounding jurisdictions for similar services,
this policy regulation will establish a fee schedule for all
expenses related to installation and lease of the device.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1059
III. Applicability
This policy regulation concerns Title 21 Del. C. §4177F.
IV. Substance of Policy
1. Installation of Device
All persons who voluntarily or as a result of a court
order, install an Ignition Interlock device in a motor vehicle
monitored in conjunction with the Division of Motor
Vehicles, will be charged a fee by the provider for that
service, and this fee will include the cost of removing the
device at the termination of the program.
The service providers shall charge a fee not to
exceed $100.00 for installation of the Interlock device, but
this amount includes a rebate of $30.00 which will be
returned to the client at the time of removal. This fee shall
be the responsibility of the clients.
2. Monthly Monitoring & Calibration
All persons with an Ignition Interlock device
installed in a vehicle monitored in conjunction with the
Division of Motor Vehicles, shall be charged a fee for the
monthly electronic monitoring and regular calibration of the
device.
The service providers shall charge a fee not to
exceed $75.00 for monthly monitoring and calibration. This
fee shall be the responsibility of the clients.
3. Initial down Payment
The initial payment will include the installation fee
and the first month's monitoring and calibration. The initial
payment, therefore, shall not exceed $175.00 and the bimonthly
payment shall not exceed $150.00
4. Other Fees
The Division of Motor Vehicles recognizes that
Service providers may charge fees for other services outside
the scope of this policy regulation, including but not limited
to fees for missed appointments, device resets, and optional
insurance programs relating to damage or loss of the device.
5. Definition of Alcohol Related Violations and
Offenses
For purposes of this policy regulation, alcoholrelated
violations and offenses shall mean violations of
Sections 2740, 2742, 4177, 4177B, 4175 of Title 21,
conforming statutes of other states or the District of
Columbia, or local ordinances in conformity therewith.
VI. Severability
If any part of this Regulation is held to be
unconstitutional or otherwise contrary to law by a court of
competent jurisdiction, said portion shall be severed and the
remaining portions of this Regulation shall remain in full
force and effect under Delaware law.
VII. Effective Date
The following regulation shall be effective 10 days from
the date the order is signed and it is published in its final
form in the Register of Regulations in accordance with 29
Del. C. §10118(e).
DIVISION OF STATE POLICE
Statutory Authority: 24 Delaware Code,
Section 5404(a) (24 Del.C. §5404(a))
Public Notice
Notice is hereby given that the Department of Public
Safety, Division of State Police, in accordance with 24 Del C
Section 5404(a) proposes to adopt Rules & Regulations.
These Rules & Regulations will regulate the Bounty
Hunters/Bail Enforcement Agents. If you wish to view the
complete Rules & Regulations, contact Ms. Peggy Anderson
at (302) 739-5991. Any persons wishing to present views
may submit them in writing, by November 31, 2001, to
Delaware State Police, Detective Licensing, P.O. Box 430,
Dover, Delaware, 19903. There will be a public hearing on
Thursday, November 28, 2001, at the Public Safety
Building, Main Conference Room - 2nd Floor, 303
Transportation Circle, Dover, Delaware, 19901-0818.
Bounty Hunter/Bail Enforcement Agents
1.0 Agency Licensing
1.1 Any and all persons, cooperative of persons,
partnership, or corporation applying for an agency license
under Title 24 Chapter 54 must meet and maintain the
following qualifications:
1.1.1 Must not be convicted of any felony;
1.1.2 Must not have been convicted of any
misdemeanor involving theft, drug offenses, offensive
touching, assault III, or moral turpitude within the last seven
(7) years;
1.1.3 Must not have been convicted of any charge
that, in the discretion of the Detective Licensing Section,
bears such a relationship to the performance of the bounty
hunter/bail enforcement agent (bounty hunter); and
1.1.4 Must not have been, as a juvenile,
adjudicated as delinquent for conduct which, if committed
by an adult, would constitute a felony, unless and until that
person has reached their 25th birthday.
1.2 An agency license will not be issued if any and all
persons, cooperative of persons, partnership, or corporation
has a pending charge as listed in Section 1.1.
1.3 The qualifying individual (license holder) of a
cooperative of persons, partnership, or corporation applying
for an agency license under Title 24 Chapter 54 must also
meet the following qualifications;
1.3.1 Must be at least 25 years of age;
1.3.2 Must have at least five (5) years of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1060 PROPOSED REGULATIONS
experience as a bounty hunter; and
1.3.3 Provide five (5) letters of reference attesting
to their good character.
1.4 The person, cooperative of persons, partnership, or
corporation applying for an agency license under Title 24
Chapter 54 must submit, to the Detective Licensing Section,
the following for licensure:
1.4.1 A fee or pro-rated fee of $360 for a two (2)
year license and will expire on June 30th of even years;
1.4.2 A $10,000 surety bond;
1.4.3 Liability Insurance in the amount of
$1,000,000;
1.4.4 Any and all applications required by the
Detective Licensing Section; and
1.4.5 Submit two (2) sets of fingerprints for a
Delaware (CHRI) and Federal (FBI) criminal history record
check. The Director of the State Bureau of Identification
(SBI) determines the fee for this process.
1.5 Any and all persons, cooperative of persons,
partnership, or corporate officer must not be a member or
employee of any Delaware Law Enforcement Organization,
as defined by the Council on Police Training, or a member or
employee of a law enforcement organization of any other
local, state or federal jurisdiction.
1.6 The license issued to the agency shall be posted
upon the premises of business and shall not be altered or
defaced.
1.7 After issuance of an agency license, the license
holder must obtain a State of Delaware business license from
the Division of Revenue.
1.8 It will be the license holders' responsibility to
provide to the Detective Licensing Section:
1.8.1 Any change of address, phone number, status
of cooperative of persons, partnership, or corporation, in
writing, within five (5) days, to the Detective Licensing
Section;
1.8.2 A list of all employees by the tenth (10th) of
each month as explained in Section 3.0; and
1.8.3 A list of the previous months apprehensions
by the tenth (10th) of each month as explained in Section
3.0.
1.9 There will be no reciprocity with any other state
regarding the licensure of a bounty hunter/bail bondsman
agency.
2.0 Employee Licensing
2.1 Any individual applying for a bounty hunter ID card
under Title 24 Chapter 54, to work for a license holder, must
meet and maintain the following qualifications:
2.1.1 Must not be convicted of any felony:
2.1.2 Must not have been convicted of any
misdemeanor involving theft, any drug offenses, offensive
touching, assault III, or moral turpitude within the last seven
(7) years;
2.1.3 Must not have been convicted of any charge
that, in the discretion of the Detective Licensing Section,
bears such a relationship to the performance of the bounty
hunter; and
2.1.4 Must not have been, as a juvenile,
adjudicated as delinquent for conduct which, if committed
by an adult, would constitute a felony, unless and until that
person has reached their 25th birthday.
2.2 An individual bounty hunter ID card will not be
issued if there is a pending charge as listed in Section 2.1.
2.3 The individual bounty hunter applying for an ID
card under Title 24 Chapter 54 must also meet the follow
qualifications:
2.3.1 Must be at least 21 years of age;
2.3.2 Must complete the training qualifications set
forth in Section 8.0; and/or
2.3.3 If carrying a weapon, must meet and maintain
the qualifications set forth in Section 6.0.
2.4 The individual bounty hunter applying for an ID
card under Title 24 Chapter 54 must submit the following for
approval:
2.4.1 A fee of $25 for a one (1) year ID card to
expire on the birthday of the individual;
2.4.2 Any and all applications required by the
Detective Licensing Section; and
2.4.3 Submit two (2) sets of fingerprints for a
Delaware (CHRI) and Federal (FBI) criminal history record
check. The Director of the State Bureau of Identification
(SBI) determines the fee for this process.
2.5 If the individual bounty hunter leaves one agency's
employ and is employed by another, that individual must
turn in the ID card and re-apply for approval through the
Detective Licensing Section, with the requirements from
Section 2.4.1 and Section 2.4.2.
2.5.1 The ID cards are the property of the Delaware
State Police and must be returned to the Detective Licensing
Section upon leaving the employ of an agency, upon
expiration of the ID card, or at the request of the Detective
Licensing Section.
2.6 An individual that has a bounty hunter ID card
issued through Title 24 Chapter 54 shall work for no more
that two (2) licensed agencies at a time.
2.7 A bounty hunter that has been issued an ID card by
the Detective Licensing Section shall be required to have
such card in their possession while in the performance of his
or her duties.
2.8 A bounty hunter must not be a member or employee
of any Delaware Law Enforcement Organization, as defined
by the Council on Police Training, or a member or employee
of a law enforcement organization of any other local, state or
federal jurisdiction.
2.9 There will be no reciprocity with any other state
regarding the issuing of an ID card to a bounty hunter.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1061
3.0 Personnel Rosters and Apprehnsion Lists
3.1 An agency licensed under Title 24 Chapter 54 shall
submit an alphabetical personnel roster and a list of the
previous months apprehensions to the Detective Licensing
Section by the tenth (10th) of every month.
3.1.1 Alphabetical personnel rosters shall include
any and all persons, cooperative of persons, partners,
corporate officers, and individual bounty hunters. The
rosters shall include the full name, DOB, sex, and expiration
date. For example: Mark A. Smith 01/25/60 M 01/25/02
3.1.2 The apprehension lists shall include the
name, date of birth, date, time, and address of attempted or
successful apprehension. For example:
John F. Henry (Apprehended) or (Attempted
Apprehension)
DOB: 05/23/48
09/23/01 9:35pm
689 Old Berry Lane
Marydel, DE
4.0 Badges, Patches, Advertisements
4.1 No person, cooperative of persons, partnership, or
corporation licensed under Title 24 Chapter 54 shall use any
type of uniform or other clothing items displaying logos,
badges, patches, or any other type of writing without first
being approved by the Detective Licensing Section. Under
no circumstances shall any item contain the seal or crest of
the State of Delaware, any state of the United States, the seal
or crest of any county or local sub division, or any facsimile
of the aforementioned seals or crests.
4.2 All advertisements or other forms of publication are
subject to review and approval by the Detective Licensing
Section.
4.3 The use of auxiliary lights, sirens, or any markings
on vehicles is prohibited.
5.0 Use of Animals
5.1 The use of animals is prohibited in the performance
of any bounty hunter activity.
6.0 Firearms Policy
6.1 No person licensed under Title 24 Chapter 54 shall
carry a firearm unless that person has first obtained a
Carrying Concealed Deadly Weapon (CCDW) permit for the
State of Delaware.
6.2 In addition to possessing a CCDW permit, the
individual must complete, and pass, an approved 40-hour
firearm course, instructed by a certified firearm instructor,
recognized by the Detective Licensing Section.
6.3 All persons licensed to carry a firearm under this
chapter must be re-certified yearly by shooting a minimum
of three (3) qualifying shoots a year. The shoots must be
scheduled on at least two (2) separate days, with a
recommended 90 days between scheduled shoots. Of the
three (3) shoots, there will be one mandatory "low light"
shoot. Simulation is permitted and it may be combined with
a daylight shoot. All individuals must qualify with the same
type of weapon that he/she will carry. The minimum passing
score is 75%.
6.4 All handguns must be either a revolver or
semi-automatic and be maintained to factory specifications.
Only the handguns with the following calibers are permitted:
6.4.1 9mm
6.4.2 .357
6.4.3 .38
6.4.4 .40
6.5 All ammunition will be factory fresh (no re-loads).
6.6 The carrying of any shotguns, rifles or any type of
weapon that is not specifically approved by the Detective
Licensing Section is PROHIBITED.
7.0 Nightstick, Pr24, Mace, Peppergas, Chemical Spray,
and Handcuffs
7.1 To carry the above weapons/items a bounty hunter
must have completed a training program on each and every
weapon/item carried, taught by a certified instructor
representing the manufacturer of the weapon/item. Proof of
these certifications must be provided to the Detective
Licensing Section. Under no circumstances would a person
be permitted to carry any other type weapon/item, unless
first approved by the Detective Licensing Section.
8.0 Training
8.1 All bounty hunters licensed under Title 24 Chapter
54 must complete a minimum, but not limited to, 21 hours of
training, which must be approved by the Detective Licensing
Section. The training will include, but not limited to, the
following courses: Constitution/Bill of Rights, Laws of
Arrest, Laws of Search & Seizure of Persons Wanted, Police
Jurisdiction, Rules & Regulations of Bounty Hunters, Use of
Deadly Force, Officer Survival, and Weaponless Defense.
8.2 This training will be waived for the initial licensing,
but must be completed by January 19, 2003. Thereafter, the
training must be completed prior to obtaining a license.
9.0 Notification of Apprehensions
9.1 All bounty hunters licensed under Title 24 Chapter
54 are required to notify the police emergency 911 dispatch
center (i.e., Recom, Kentcom, Suscom) of the appropriate
police agency in which the apprehension will be attempted.
10.0 Notification of Arrest
10.1 Anyone licensed under Title 24 Chapter 54 shall,
excluding weekends and State holidays, notify the Detective
Licensing Section within 24 hours of being arrested if that
arrest could result in a misdemeanor or felony conviction.
Failure to do so may result in the suspension or revocation of
an agency license or individual ID card.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1062 PROPOSED REGULATIONS
11.0 Suspensions and Revocations
11.1 The Detective Licensing Section shall have the
power to suspend or revoke any agency or individual,
licensed under Title 24 Chapter 54, that violates the Chapter
or the promulgated Rules & Regulations.
11.2 The Detective Licensing Section may suspend or
revoke any agency or individual, licensed under Title 24
Chapter 54, that has been arrested and that arrest could result
in the conviction of any misdemeanor or felony as described
in Sections 1.0 or 2.0.
11.3 Anyone whose license has been suspended,
revoked, rejected, or denied is entitled to a hearing before the
Secretary of Public Safety.
11.3.1 Anyone requesting a hearing shall notify the
Detective Licensing Section, in writing, within five (5) days
from the suspension, revocation, rejection, or denial and the
hearing shall be scheduled at the earliest possible time.
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Statutory Authority: 29 Delaware Code,
Section 5005(11) (29 Del. C. § 5005(11)) and
26 Delaware Code, Section 1014(a)
(26 Del. C. §1014(a))
Delaware Economic Development Office
Proposed Energy Alternatives Program Regulation
In accordance with procedures set forth in 29 Del. C.
Ch. 11, Subch. III and 29 Del. C. Ch. 101, the Director of the
Delaware Economic Development Office is proposing to
adopt a regulation entitled "Energy Alternatives Program
Regulation" for the administration and operation of the
Energy Alternatives Program established in 26 Del. C.
§ 1014(a) as part of The Electric Utility Restructuring Act of
1999. The Energy Alternatives Program is designed to
introduce renewable energy technologies into the Delaware
market by reducing the net system costs through the use of
rebates. The proposed regulation sets forth the definition of
certain terms used in the Energy Alternatives Program and
describes (i) the eligibility requirements for persons desiring
to receive a rebate designed to defray a part of certain
purchase and installation costs of certain solar photovoltaic
electricity generating systems, certain solar water heating
systems, certain geothermal heat pump systems, and certain
wind turbine systems (ii) the photovoltaic electricity
generating, solar hot water heating, geothermal, and wind
turbine systems that now qualify for rebates, (iii) how to
request a rebate, (iv) how rebate requests will be evaluated
and processed and the rebates disbursed, and (v) other
administrative features of the Energy Alternatives Program.
Title Of Regulation
Energy Alternatives Program Regulation
Nature Of Proceedings; Synopsis Of The Subject And
Substance Of The Proposed Regulation
In accordance with procedures set forth in 29 Del. C.
Ch. 11, Subch. III and 29 Del. C. Ch. 101, the Director of the
Delaware Economic Development Office is proposing to
adopt a regulation for the administration and operation of the
Energy Alternatives Program established in 26 Del. C. §
1014(a) as part of The Electric Utility Restructuring Act of
1999. The Energy Alternatives Program is designed to
introduce renewable energy technologies into the Delaware
market by reducing the net system costs through the use of
rebates. The proposed regulation sets forth the definition of
certain terms used in the Energy Alternatives Program and
describes (i) the eligibility requirements for persons desiring
to receive a rebate designed to defray a part of certain
purchase and installation costs of certain solar photovoltaic
electricity generating systems, certain solar water heating
systems, certain geothermal heat pump systems, and certain
wind turbine systems (ii) the photovoltaic, electricity
generating, solar hot water heating, geothermal, and wind
turbine systems that now qualify for rebates, (iii) how to
request a rebate, (iv) how rebate requests will be evaluated
and processed and the rebates disbursed, and (v) other
administrative features of the Energy Alternatives Program.
Statutory Basis And Legal Authority To Act
29 Delaware Code, § 5005(11); 26 Del. C. § 1014(a).
Other Regulations Affected
None.
Notice Of Public Hearing; How To Comment On The
Proposed Regulation
Members of the public may receive a copy of the
proposed regulation at no charge by United States Mail by
writing or calling Robert Propes, Delaware Economic
Development Office, Carvel State Office Building, 10th Fl.,
820 North French Sreet, Wilmington, DE, 19801-3509,
phone (302) 577-8708. The Director of the Delaware
Economic Development Authority, or an employee of such
agency designated by the Director, will hold a public hearing
at which members of the public may present comments on
the proposed regulation on Thursday, December 6, 2001in
the auditorium of the Carvel State Office Building, 820 N.
French Street, Wilmington, DE, 19801 from 5:00 PM to 7:00
PM. Additionally, members of the public may present
written comments on the proposed regulation by submitting
such written comments to Robert Propes at the address of the
Delaware Economic Development Office set forth above.
Written comments must be received on or before December
3, 2001.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1063
Energy Alternatives Program Regulation
1.0 Introduction
This regulation is promulgated under the authority
granted to the Director of the Delaware Economic
Development Office ("DEDO") by 29 Del. C. § 5005(11) to
make regulations for the administration and operation of
DEDO. One of the programs administered by DEDO is the
Energy Alternatives Program established in 26 Del. C.
§ 1014(a) as part of The Electric Utility Restructuring Act of
1999. The Energy Alternatives Program is designed to
introduce renewable energy technologies into the Delaware
market by reducing the net system costs through the use of
rebates. This regulation sets forth the definition of certain
terms used in the Energy Alternatives Program and describes
(i) the eligibility requirements for persons desiring to
participate in the program, (ii) the systems that now qualify
for rebates, (iii) how to apply for a rebate, (iv) how rebate
requests will be evaluated and processed and the rebates
disbursed, and (v) other administrative features of the
Energy Alternatives Program.
2.0 Definitions.
For purposes of this regulation, the following initially
capitalized words and phrases shall have the meanings set
forth below.
"DEDO" has the meaning set forth in Section 1.0
hereof.
"DP&L Service Territory" means the service territory
of Delmarva Power and Light Company, doing business as
Conectiv Power Delivery, or its successor, as such territory
is reflected in the electric service territory maps maintained
by the Delaware Public Service Commission under the
authority of 26 Del. C. § 203B.
"Conectiv Power Delivery" means the trade name used
by Delmarva Power and Light Company.
"Eligible Qualifying Geothermal Heat Pump System
Costs" has the meaning set forth in Section 3.4.3 hereof.
"Eligible Qualifying Photovoltaic System Costs" has
the meaning set forth in Section 3.2.4 hereof.
"Eligible Qualifying Solar Water Heating Costs" has
the meaning set forth in Section 3.3.4 hereof.
"Eligible Qualifying Wind Turbine System Costs"
has the meaning set forth in Section 3.5.4 hereof.
"Energy Alternatives Program" has the meaning set
forth in Section 1.0 hereof.
"Energy Alternatives Program Manager" means the
State Energy Office employee whose duties include
consultation with DEDO in the management and
administration of the Environmental Incentive Fund, and the
Energy Alternatives Program.
"Energy Alternatives Rebate" for Photovoltaic, Solar
Water Heating and Wind Turbine systems means, except as
provided hereafter, 35% of Eligible Qualifying Photovoltaic
System Costs, Eligible Qualifying Solar Water Heating
System Costs, or Eligible Qualifying Wind Turbine System
Costs, as the case may be, is subject to the following
limitations: if the Qualifying System is to be used by a
Nonresidential Purchaser, an Energy Alternatives Rebate
shall not exceed $250,000; if the Qualifying System is a
Photovoltaic system to be used by a Residential Purchaser,
an Energy Alternatives Rebate shall not exceed $10,500 per
Residential Dwelling Unit; if the Qualifying System is to be
used by a Residential Purchaser for Solar Water Heating, an
Energy Alternatives Rebate shall not exceed $1,500 per
Residential Dwelling Unit; if the Qualifying System is to be
used by a Residential Purchaser for a Wind Turbine System,
an Energy Alternatives Rebate shall not exceed $5,000 per
Residential Dwelling Unit. Energy Alternative Rebate for a
Geothermal Heat Pump system means the lesser of 35% of
the Eligible Qualifying Geothermal Heat Pump System
Costs difference between the installed cost of the
Geothermal Heat Pump System and a conventional heating/
air-conditioning alternative (air-source heat pump, aircooled
or water-cooled unitary air-conditioning equipment
and/or gas- or oil-fired heating equipment) of equal heating
and cooling capacity , or $500 per Ton of Capacity. An
Energy Alternative Rebate for a Nonresidential Geothermal
Heat Pump system shall not exceed $25,000. An Energy
Alternative Rebate for a Residential Geothermal Heat Pump
system shall not exceed $2,500.
"Environmental Incentive Fund" means the fund
established by 26 Del. C. § 1014(a) and administered by the
Delaware Economic Development Office, in consultation
with the State Energy Office and the Division of Public
Advocate.
"Fiscal Year" means the budget and accounting year of
the State beginning on July 1 and ending on June 30.
Reference to a Fiscal Year by year number means the Fiscal
Year ending on June 30 of the named year. For example, a
reference to Fiscal Year 2001 means the period beginning on
July 1, 2000 and ending on June 30, 2001.
"Freeze Tolerance Limit" means the temperature
below which a Qualifying System for Solar Water Heating
might suffer damage attributable to freezing.
"Geothermal Heat Pump" means - either an open or
closed loop system, or direct expansion system that uses the
thermal energy of the ground or groundwater as the heat
source and heat sink for residential or non-residential space
heating and/or cooling. It may provide both space heating
and cooling, cooling only or heating only functions. A closed
loop system consists of a ground heat exchanger in which the
heat transfer fluid is permanently contained in a closed
system. An open loop system consists of a ground heat
exchanger in which the heat transfer fluid is part of a larger
environment. A direct expansion system consists of a
geothermal heat pump system in which the refrigerant is
circulated in pipes buried in the ground, rather than using a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1064 PROPOSED REGULATIONS
heat transfer fluid, such as water or antifreeze solution in a
separate closed loop, and fluid to refrigerant heat exchanger.
"Grid-connected", "Grid-tied" or "Interconnected"
means a condition in which a Qualifying System that is an
electrical generating system serves and is electrically
connected to an electrical load that is also connected to and
served by the local utility electrical grid. The delivery, or
ability to deliver, any portion of the generating capacity into
the utility electrical grid is not required, nor must the loads
served be only alternating current loads. The Photovoltaic or
Wind Turbine system need only to be capable of serving
electrical loads that would otherwise be served by the local
utility.
"Kilowatt" means 1,000 Watts.
"Kilowatt-hour" means the basic unit of electric
energy equal to one Kilowatt of power supplied to or taken
from an electric circuit steadily for one hour. One-Kilowatt
hour equals 1,000 Watt-hours. Electric energy is commonly
sold by the Kilowatt-hour.
"Nonresidential" means all classes of customer
purchasing electric power for uses other than for individual
households. These groups of customers generally purchase
electric power for commercial and industrial purposes.
When used as an adjective with respect to Qualified Systems
or Energy Alternatives Rebates, such term refers to systems
owned by, or leased to, or rebates granted to Nonresidential
persons.
"Nonresidential List" has the meaning set forth in
Section 4.2.2 hereof.
"Nonresidential Pool" has the meaning set forth in
Section 4.1.1.3 hereof.
"Photovoltaic" means a nonmechanical semiconductor
device, most commonly made of silicon, that produces direct
current (dc) electricity.
"Placed in Service" means installed, operational and
producing output.
"Program Documentation Checklist" means the
"Energy Alternatives Program Documentation Checklist
(EO-1000)" or other form prescribed by the State Energy
Office for the same purpose.
"Purchaser" means the purchaser or lessee of a
Qualifying System.
"Qualifying System" has the meaning set forth in
Section 3.0 hereof.
"Rebate Confirmation and Claim Form" means the
"Energy Alternatives Program Rebate Confirmation and
Claim Form (EO-1002)" or other form prescribed by the
State Energy Office for the same purposes.
"Rebate Reservation" means the reservation of the
amount of a requested Energy Alternatives Rebate against
the previously unreserved funds within the Nonresidential
Pool or the Residential Pool of the Environmental Incentive
Fund available for Energy Alternatives Rebates in
accordance with Section 4.2.3 hereof.
"Rebate Reservation Number" has the meaning set
forth in Section 4.2.2 hereof.
"Rebate Reservation Request" means the request of a
Purchaser for the reservation of an Energy Alternatives
Rebate made in accordance with the procedures specified in
Section 4.2 hereof.
"Rebate Reservation Request Form" means the
"Energy Alternatives Program Rebate Reservation Request
Form -- Photovoltaic (EO 1001PV)", the "Energy
Alternatives Program Rebate Reservation Request Form -
Solar Water Heating (EO 1001SWH)", the "Energy
Alternatives Program Rebate Reservation Request Form --
Geothermal (EO 1001GEO)" the "Energy Alternatives
Program Rebate Reservation Request Form -- Wind Turbine
(EO 1001WT)", or such other form prescribed by the State
Energy Office for making a Rebate Reservation Request
pursuant to Section 4.2 hereof.
"Residential" means the class or classes of customers
purchasing electric power for household uses. When used as
an adjective with respect to Qualified Systems or Energy
Alternatives Rebates, such term refers to systems owned by,
or leased to, or rebates granted to Residential persons.
"Residential Dwelling Unit" means a single-family
house, whether free-standing or attached to one or more
other houses, or an apartment. A Residential Dwelling Unit
must be separately metered for purposes of measuring
electricity consumption.
"Residential List" has the meaning set forth in Section
4.2.2 hereof.
"Residential Pool" has the meaning set forth in Section
4.1.1.3 hereof.
"Retailer" means the vendor or lessor of a Qualifying
System.
"Solar Water Heating" means the heating of water by
use of the sun's energy rather than electricity or gas.
"State" means the State of Delaware.
"Ton of Capacity" means 12,000 British Thermal
Units (BTU) per hour of capacity.
"Vendor Data Form" means the "Energy Alternatives
Program Vendor Data Form" or other form prescribed by the
State Energy Office for the same purpose.
"Watt" means the basic unit of measure of real electric
power, or rate of doing work.
"Watt-hour" means the basic unit of measure of
electric energy consumption. The total amount of energy
used in one hour by a device that requires one Watt of power
for contnuous operation.
"Wind Turbine" means a mechanical/electrical system
that converts the kinetic energy of blowing wind into electric
power.
3.0 Qualifying System
3.1 In General. A Qualifying System must be located
within the DP&L Service Territory, and the Purchaser must
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1065
be a customer of Conectiv Power Delivery. Only
Photovoltaic, Solar Water Heating, Geothermal Heat Pump
and Wind Turbine systems may constitute Qualifying
Systems.
3.1.1 Code Compliance; Contractor Licensing. All
Qualifying Systems must be installed in accordance with
standards and specifications of the manufacturers of the
components in such systems and in compliance with all
applicable electrical, plumbing and building codes.
3.1.2 Warranties. All Qualifying Systems must
have a full 5-year warranty against component failure,
malfunction and premature output degradation. The
warranty must cover all components for which the Energy
Alternatives Rebate is granted and cover the full cost of
repair and replacement of all components of the system. For
professionally installed systems, the warranty must cover the
labor to remove and replace defective components and
systems.
3.2 Photovoltaic Systems.
3.2.1 Capacity. In order to be a Qualifying System,
Photovoltaic systems must have an expected annual system
output that does not exceed the historic or current electricity
needs of the Purchaser at the installation site. Qualifying
Systems must produce at least 300 Watts. For Qualifying
Systems producing more than 10,000 Watts (i.e.,10
Kilowatts), the Energy Alternatives Program Manager may
require additional evidence of feasibility with the Rebate
Reservation Request Form. If the installation site is new
construction, the expected annual system output must not
exceed the estimated building electrical needs, as set forth in
the Conectiv Power Delivery service request with respect to
the installation site submitted by the Purchaser.
3.2.2 Technical Standards. All photovoltaic
modules must be certified by a nationally recognized testing
laboratory as meeting the requirements of the Underwriters
Laboratory Standard 1703. All qualifying grid-connected
systems must comply with and the Institute of Electrical and
Electronic Engineers Standards Board (IEEE) 929,
Recommended Practice for Utility Interface of Photovoltaic
(PV) Systems and the appropriate generation interconnection
arrangements of Conectiv Power Delivery's, Technical
Considerations Covering Parallel Operations of Customer
Owned Generation of Less than 1 Megawatt and
Interconnected with the Conectiv Power Delivery System.
Conectiv's generation interconnection documents are
available on the Division of the Public Advocate's web site
at www.state.de.us/publicadvocate. All inverters must be
certified by a nationally recognized testing laboratory for
safe operation as well as be certified as meeting the
requirements of Underwriters Laboratory Standards 1741-
1999, Standard for Static Inverters and Charge Controllers
for Use in Photovoltaic Power Systems.
3.2.3 Cost Limitations. A Photovoltaic system
may not have Eligible Qualifying Photovoltaic System Costs
in excess of $12 per Watt.
3.2.4 Eligible Qualifying Photovoltaic System
Costs. "Eligible Photovoltaic Qualifying System Costs"
means (i) the sum of costs of the components of a Qualifying
System that are used to convert sunlight to electricity, the
labor costs for the installation of such components, the cost
of required permits and fees for the construction or
installation of a Qualifying System and, in the case of a
Qualifying System to be used by a Nonresidential Purchaser,
engineering costs associated with such system not to exceed
10% of the total cost of such system; minus, (ii) all other
incentives associated with such Qualifying System and
received by the Purchaser, including grants, rebates, buy
downs cost sharing or any similar form of financial incentive
other than a federal income tax credit. In order to be counted
toward Eligible Qualifying System Costs, components of a
Qualifying System must be new and previously unused.
Examples of the components of a Qualifying System that is
Photovoltaic, the costs of which may be counted toward
Eligible Qualifying System Costs, are the photovoltaic
module, the foundation for such photovoltaic module,
mounting or tracking structures and wiring, inverters and
utility interconnection equipment. Components that are
energy storage equipment may not be counted toward
Eligible Qualifying System Costs.
3.3 Solar Water Heating
3.3.1 Capacity. In order to be a Qualifying System
a Solar Water Heating system must have a minimum
combined tank capacity of 80 gallons. A Solar Water
Heating system must be designed to reduce or eliminate the
need for electric or gas-heated hot water.
3.3.2 Technical Standards. All Qualifying Systems
that are Residential Solar Water Heating systems must be
certified to meet the Solar Rating and Certification
Corporation's (SRCC) OG- 300, Operating Guidelines and
Minimum Standards for Certifying Solar Water Heating
Systems: An Optional Solar Water Heating System
Certification and Rating Program and have a Freeze
Tolerance Limit of minus 21 degrees Fahrenheit without
electrical power. All Qualifying Systems that are
Nonresidential Solar Water Heating systems must utilize
collectors certified to meet the Solar Rating and Certification
Corporation's (SRCC) OG-100, Operating Guidelines for
Certifying Solar Collectors.
3.3.3 Cost Limitations. A Solar Water Heating
system may not have Eligible Qualifying Solar Water
Heating System Costs in excess of $2.50 per Kilowatt-Hour
of annual energy savings, as estimated by the Solar Rating
and Certification Corporation's (SRCC) OG-300 Estimated
Annual Performance document.
3.3.4 Eligible Qualifying Solar Water Heating
System Costs. "Eligible Qualifying Solar Water Heating
System Costs" means (i) the sum of costs of the components
of a Qualifying System that are used to convert sunlight to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1066 PROPOSED REGULATIONS
heated water, the labor costs for the installation of such
components, the cost of required permits and fees for the
construction or installation of a Qualifying System and, in
the case of a Qualifying System to be used by a
Nonresidential Purchaser, engineering costs associated with
such system not to exceed 10% of the total cost of such
system; minus, (ii) all other incentives associated with such
Qualifying System and received by the Purchaser, including
grants, rebates, buy downs cost sharing or any similar form
of financial incentive other than a federal income tax credit.
In order to be counted toward Eligible Qualifying System
Costs, components of a Qualifying System must be new and
previously unused. Examples of the components of a
Qualifying System for Solar Water Heating, the costs of
which may be counted toward Eligible Qualifying System
Costs, are collectors, mounting components, storage tanks,
circulators, controllers, timers, heat exchangers, expansion
tanks, piping and insulation. Components that are point of
use heating devices or solar pool heating equipment may not
be counted toward Eligible Qualifying System Costs .
3.4 Geothermal Heat Pump
3.4.1 Capacity. In order to be a Qualifying System
a Geothermal Heat Pump must be sized in accordance with
good heating, ventilation and air conditioning design
practices for the occupancy and location. Vendor shall
provide a Manual J calculation, or other equivalent
calculation, to determine proper size of equipment.
3.4.2 Technical Standards. All Qualifying Systems
must have a warranty for protection of the integrity and
performance of the ground heat exchanger for at least five
years. All Qualifying Systems must meet the following:
• Closed loop systems shall qualify under rating
conditions in accordance with ISO 13256-1.
• Open loop systems shall qualify under rating
conditions in accordance with ISO 13256-1.
• DX systems shall qualify under rating conditions in
accordance with ARI 870.
3.4.3 Eligible Qualifying Geothermal Heat Pump
System Costs. "Eligible Qualifying Geothermal Heat Pump
System Costs" means (i) the sum of costs of the components
of a Qualifying System that are used to collect and/or reject
heat to the ground or groundwater, the labor costs for the
installation of such components, the cost of required permits
and fees for the construction or installation of a Qualifying
System and, in the case of a Qualifying System to be used by
a Nonresidential Purchaser, engineering costs associated
with such system not to exceed 10% of the total cost of such
system; minus, (ii) all other incentives associated with such
Qualifying System and received by the Purchaser, including
grants, rebates, buy downs cost sharing or any similar form
of financial incentive other than a federal income tax credit.
In order to be counted toward Eligible Qualifying System
Costs, components of a Qualifying System must be new and
previously unused. Examples of the components of a
Qualifying System for Geothermal Heat Pump systems, the
costs of which may be counted toward Eligible Qualifying
System Costs, are wells and well drilling, in-ground piping
and heat exchanger loops and excavation for such piping and
loops, circulating pumps, controllers, timers, heat
exchangers, expansion tanks, piping and insulation. Vaporcompression
heat pump units, air handling units, fans,
ductwork, filter systems, and other fluid and air handling
system components are excluded.
3.5 Wind Turbine
3.5.1 Capacity. In order to be a Qualifying System,
Wind Turbine systems must not have an expected annual
system output that does not exceed the historic or current
electricity needs of the Purchaser at the installation site. The
Energy Alternatives Program Manager may require
additional evidence of feasibility with the Rebate
Reservation Request Form. The Energy Alternatives
Program Manager may also reject applications if the location
of the proposed Wind Turbine System has an inadequate
wind resource for reasonable utilization of the equipment. If
the installation site is new construction, the expected annual
system output must not exceed the estimated building
electrical needs, as set forth in the Conectiv Power Delivery
service request with respect to the installation site submitted
by the Purchaser.
3.5.2 Technical Standards. All qualifying gridconnected
systems must comply with the Institute of
Electrical and Electronic Engineers Standards Board (IEEE)
929, Recommended Practice for Utility Interface of
Photovoltaic (PV) Systems and the appropriate generation
interconnection arrangements of Conectiv Power Delivery's,
Technical Considerations Covering Parallel Operations of
Customer Owned Generation of Less than 1 Megawatt and
Interconnected with the Conectiv Power Delivery System.
Conectiv's generation interconnection documents are
available on the Division of the Public Advocate's web site
at www.state.de.us/publicadvocate. All inverters must be
certified by a nationally recognized testing laboratory for
safe operation as well as be certified as meeting the
requirements of Underwriters Laboratory Standards 1741-
1999, Standard for Static Inverters and Charge Controllers
for Use in Photovoltaic Power Systems.
3.5.3 Cost Limitations. A Wind Turbine system
may not have Eligible Qualifying Wind Turbine System
Costs in excess of $5.00 per Watt.
3.5.4 Eligible Qualifying Wind Turbine System
Costs. "Eligible Qualifying Wind Turbine Systems Costs "
means (i) the sum of costs of the components of a Qualifying
System that are used to convert wind energy to electricity,
the labor costs for the installation of such components, the
cost of required permits and fees for the construction or
installation of a Qualifying System and, in the case of a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1067
Qualifying System to be used by a Nonresidential Purchaser,
engineering costs associated with such system not to exceed
10% of the total cost of such system; minus, (ii) all other
incentives associated with such Qualifying System and
received by the Purchaser, including grants, rebates, buy
downs cost sharing or any similar form of financial incentive
other than a federal income tax credit. In order to be counted
toward Eligible Qualifying System Costs, components of a
Qualifying System must be new and previously unused.
Examples of the Wind Turbine System components of a
Qualifying System, the costs of which may be counted
toward Eligible Qualifying System Costs, are the wind
turbine-generator assembly, tower, tower foundations, other
support structure components, wiring, inverters and utility
interconnection equipment. Components that are energy
storage equipment may not be counted toward Eligible
Qualifying System Costs.
4.0 Energy Alternatives Rebate Reservation and
Payment Procedure
4.1 Availability of Funds; Duration of Program.
4.1.1 In General.
4.1.1.1 Program Duration. Energy
Alternatives Rebates will be available on the effective date
of this regulation. DEDO may, however, modify or suspend
the Energy Alternatives Program and the criteria for, or
availability of Energy Alternatives Rebates. Such action
shall be taken in consultation with the State Energy Office
and the Division of the Public Advocate.
4.1.1.2 Funds Available. The availability of
any amount for Energy Alternatives Rebates will depend
entirely upon whether sufficient unencumbered funds are
available in the Environmental Incentive Fund at the
beginning of a Fiscal Year, or are deposited pursuant to 26
Del.C. § 1014(a) into the Environmental Incentive Fund
pursuant to Section 4.1.1.5 hereof during such Fiscal Year.
DEDO can give no assurance that any funds will be available
for Energy Alternatives Rebates.
4.1.1.3 Allocation of Environmental Incentive
Fund for Nonresidential and Residential Energy Alternatives
Rebates. On the effective date of this regulation, DEDO will
allocate sixty percent (60%) of the Environmental Incentive
Fund for the funding of Nonresidential Energy Alternatives
Rebates (the "Nonresidential Pool") and forty percent (40%)
of the Environmental Incentive Fund for the funding of
Residential Energy Alternatives Rebates (the "Residential
Pool"). DEDO will allocate all funds received in the
Environmental Incentive Fund after the effective date of this
regulation in the same proportion into the Nonresidential
Pool or the Residential Pool.
4.1.1.4 Carryforwards. At the end of each
Fiscal Year amounts in the Nonresidential Pool and the
Residential Pool shall carry forward into the next Fiscal Year
within the same pool.
4.1.1.5 Waiting List. If, at any time, the State
Energy Office has made Rebate Reservations within the
Nonresidential Pool or the Residential Pool of all funds in
such pool, the State Energy Office will not disburse further
Energy Alternatives Rebates from such pool, unless and
until additional funds become available in such pool;
however, it will continue to accept, evaluate and classify
Rebate Reservation Request Forms and will continue to
assign Rebate Reservation Numbers to Rebate Reservation
Requests in accordance with Section 4.2.2. If additional
funds become available within a pool for Energy
Alternatives Rebates, the State Energy Office will process
such rebates in the order of the Rebate Reservation Numbers
in either the Nonresidential List or the Residential List, as
the case may be, assigned to Rebate Reservation Requests.
There can be no assurance that additional funds for Energy
Alternatives Rebates will become available. Rebate
Reservation Requests that have been assigned Rebate
Reservation Numbers, but for which funds are unavailable at
any time at which the Director of DEDO decides to suspend
the Energy Alternatives Program shall lapse, and the persons
who submitted such Rebate Reservation Requests shall have
no right to receive any funds from the State with respect to
their Rebate Reservation Requests.
4.1.2 Special Rule for Qualifying Systems Placed
in Service during Fiscal Year 2001. Purchasers of
Qualifying Systems Placed in Service during Fiscal Year
2001 may apply for an Energy Alternatives Rebate even
though they were unable to submit Rebate Reservation
Request Forms until after the end of Fiscal Year 2001.
4.2 Rebate Reservation Procedure.
4.2.1 Submission of Rebate Reservation Request
Form. Purchasers or Retailers may submit a Rebate
Reservation Request Form to the State Energy Office at the
address set forth hereafter. The Rebate Reservation Request
Form (i) must be on the appropriate Rebate Reservation
Request Form for the type of Qualifying System being
installed, (ii) must provide all requested information, (iii)
must be accompanied by all required accompanying
documentation specified in the Program Documentation
Checklist, and (iv) must be signed by the Purchaser. A
Nonresidential Purchaser who proposes to construct either ae
Qualifying Photovoltaic System or a Qualifying Wind
Turbine System with a capacity exceeding 10 Kilowatts, or a
Qualifying Geothermal Heat Pump System, and who intends
to request a 12-month Rebate Reservation in accordance
with Section 4.2.3 hereof shall also submit preliminary plans
and a project schedule so that the State Energy Office can
determine the feasibility of the system. It is the
responsibility of the Purchaser to ensure that a Rebate
Reservation Request Form is accurate, complete and
contains all required accompanying documentation. Rebate
Reservation Request Forms and accompanying
documentation shall be submitted to the following address:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1068 PROPOSED REGULATIONS
State Energy Office
Attention: Energy Alternatives Program Manager
149 Transportation Circle
Dover, DE 19901
4.2.2 State Energy Office Processing of Rebate
Reservation Request Form; Assignment of Rebate
Reservation Numbers within Nonresidential Pool or
Residential Pool. The State Energy Office will review and
evaluate the Rebate Reservation Request Form and the
accompanying documentation for accuracy, completeness
(including all required accompanying documentation) and
eligibility of the proposed project as a Qualifying System. In
making its evaluation of the Rebate Reservation Request
Form and accompanying documentation and in determining
whether the proposed project is a Qualifying System, the
State Energy Office may request further information, or
inspect the site of the proposed project. The State Energy
Office shall reject any Rebate Reservation Request, if the
Rebate Reservation Request Form is not accurate or
complete (including all required accompanying
documentation), or if the proposed project is not a
Qualifying System, and shall notify the Purchaser of such
rejection in writing. After the State Energy Office completes
its review of a Rebate Reservation Request Form and all
required accompanying documentation and if it determines
(i) that such submitted forms are accurate and complete
(including all required accompanying documentation) and
(ii) that the project being proposed is a Qualifying System,
the State Energy Office shall take the following actions:
First, it will classify each Rebate Reservation Request as a
request to be reserved against the Nonresidential Pool or the
Residential Pool, depending on whether the Rebate
Reservation Request describes a Nonresidential or a
Residential Qualifying System and assign such Rebate
Reservation Request to a list of Nonresidential Rebate
Reservation Requests (the "Nonresidential List") or a list of
Residential Rebate Reservation Requests (the "Residential
List"). Second, it will assign a unique consecutive number
to each such Rebate Reservation Request within either the
Nonresidential List or the Residential List based on the
chronological order of the date on which such form was
submitted in complete form (a "Rebate Reservation
Number").
4.2.3 Reservation of Energy Alternatives Rebate.
When the State Energy Office assigns a Rebate Reservation
Number to a Rebate Reservation Request, provided that
sufficient previously unreserved funds are available for
Energy Alternatives Rebates in the Nonresidential Pool (in
the case of Nonresidential Rebate Reservation Requests) or
the Residential Pool (in the case of Residential Rebate
Reservation Requests), the State Energy Office shall reserve
the amount of the Energy Alternatives Rebate so requested
(subject to the applicable limitations) against the funds in the
Nonresidential Pool (in the case of Nonresidential Rebate
Reservation Requests) or the Residential Pool (in the case of
Residential Rebate Reservation Requests) (a "Rebate
Reservation"). A Rebate Reservation shall be valid for six
months from the date on which the State Energy Office
makes such Rebate Reservation. If the Purchaser with
respect to a Nonresidential Photovoltaic Qualifying System,
or a Nonresidential Wind Turbine Qualifying System with a
capacity exceeding 10 Kilowatts, or a Nonresidential
Geothermal Heat Pump Qualifying System makes a written
request therefor, the State Energy Office may, after such
further investigation of the proposed project as it deems
necessary, extend the validity of the Rebate Reservation to
twelve months from the date on which the State Energy
Office made such Rebate Reservation. When a Rebate
Reservation expires, it shall be of no further effect and the
Rebate Reservation Request with respect to which it was
made shall be deemed to have been rejected as of such
expiration date. If the State Energy Office has assigned a
Rebate Reservation Number to a Rebate Reservation
Request but was unable to make a Rebate Reservation
because of the unavailability of funds for such purpose
within the Nonresidential Pool (in the case of Nonresidential
Rebate Reservation Requests) or the Residential Pool (in the
case of Residential Rebate Reservation Requests), and if
funds within the applicable pool sufficient to make such
Rebate Reservation subsequently become available, the
State Energy Office shall make the Rebate Reservation when
such funds become available. Promptly after making a
Rebate Reservation, the State Energy Office shall inform the
Purchaser who made the Rebate Reservation Request of the
amount of the Rebate Reservation and the date on which
such Rebate Reservation expires by mailing a Rebate
Confirmation and Claim Form to the Purchaser.
4.2.4 Modification of Rebate Reservation Request.
A Purchaser may request in writing a modification of a
Rebate Reservation Request at any time prior to the
disbursement of the Energy Alternatives Rebate requested.
A request for a modification of a Rebate Reservation
Request, other than a minor modification, will be treated as a
new Rebate Reservation Request, and the State Energy
Office will evaluate the request for modification as such.
The State Energy Office will exercise its discretion in
determining whether a requested modification is considered
"minor." Upon receipt of a request for modification of a
Rebate Reservation Request that the State Energy Office
does not consider minor, any prior Rebate Reservation made
by the State Energy Office with respect to the Rebate
Reservation Request sought to be modified will expire. The
State Energy Office will evaluate the modified request. If it
determines (i) that the modified Rebate Reservation Request
Form and any accompanying documentation are accurate
and (ii) that the modified project being proposed is a
Qualifying System, the State Energy Office shall assign a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
PROPOSED REGULATIONS 1069
new Rebate Reservation Number to the modified Rebate
Reservation Request and proceed in accordance with Section
4.2.3.
4.3. Claim for and Disbursement of Energy
Alternatives Rebate. If the State Energy Office makes a
Rebate Reservation with respect to a Rebate Reservation
Request Form, after the Qualifying System described in such
Rebate Reservation Request Form has been Placed in
Service and prior to the expiration date of such Rebate
Reservation, the Purchaser may request disbursement of the
Energy Alternatives Rebate that was the subject of the
Rebate Reservation by submitting to the State Energy Office
at the address set forth in Section 4.2.1 a copy of the Rebate
Confirmation and Claim Form that the State Energy Office
sent to the Purchaser after assigning a Rebate Reservation
Number. The Purchaser must complete the section of the
Rebate Confirmation and Claim Form entitled "Rebate
Claim Form" together with all documentation required by
the Program Documentation Checklist to accompany such
Rebate Confirmation and Claim Form. The State Energy
Office must receive the Rebate Confirmation and Claim
Form and all accompanying documentation prior to the
expiration date of the Rebate Reservation specified in the
Rebate Confirmation and Claim Form. The State Energy
Office will evaluate the Rebate Confirmation and Claim
Form and the required accompanying documentation. In
performing such evaluation, the State Energy Office may
make an inspection of the installed system. If there are only
minor modifications to the Rebate Reservation Request or
the Qualifying System, as Placed in Service, that are
described in the Rebate Confirmation and Claim Form, the
State Energy Office will process payment of the Energy
Alternatives Rebate within 30 days of receipt of the Rebate
Confirmation and Claim Form. The State Energy Office will
ordinarily request DEDO to pay the Energy Alternatives
Rebate to the Purchaser; however, if the Purchaser so
requests in writing, the State Energy Office will request
DEDO to pay the Energy Alternatives Rebate to the Retailer.
If modifications to the Rebate Reservation Request or the
Qualifying System, as Placed in Service, that are described
in the Rebate Confirmation and Claim Form are deemed by
the State Energy Office to be other than minor, the Rebate
Confirmation and Claim Form will be treated as a request for
modification of the original Rebate Reservation Request and
processed in accordance with Section 4.2.3 and 4.2.4.
4.4 Maintenance of Balances of Nonresidential Pool
and Residential Pool within the Environmental Incentive
Fund Available for Energy Alternatives Rebates. When the
State Energy Office makes a Rebate Reservation pursuant to
Section 4.2.3 hereof, the funds within either the
Nonresidential Pool or the Residential Pool (as the case may
be) of the Environmental Incentive Fund that have been set
aside for Energy Alternatives Rebates shall be reduced by
the amount of such Rebate Reservation. Whenever a Rebate
Reservation expires in accordance with Section 4.2.3 or
Section 4.2.4 hereof without the corresponding Energy
Alternatives Rebate's having been disbursed in accordance
with Section 4.3 hereof, the funds within either the
Nonresidential Pool or the Residential Pool of the
Environmental Incentive Fund that have been set aside as
available for Energy Alternatives Rebates shall be increased
by the amount of such expired undisbursed Rebate
Reservation.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1070 FINAL REGULATIONS
Symbol Key
Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text
added at the time of the proposed action. Language which is stricken through indicates text being deleted. [Bracketed Bold
language] indicates text added at the time the final order was issued. [Bracketed stricken through] indicates language
deleted at the time the final order was issued.
Final Regulations
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.
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
24 DE Admin. Code 2900
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), (24 Del.C. §2905(a)(1))
Order Adopting Rules and Regulations
AND NOW, this 11th day of October, 2001, in
accordance with 29 Del.C. § 10118 and for the reasons stated
hereinafter, the Real Estate Commission of the State of
Delaware (hereinafter "the Commission") enters this Order
adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Commission's authority under 24 Del.C.
§ 2905(a)(1), the Commission proposed to revise its existing
Rules and Regulations to revise and clarify the rules and
regulations regarding escrow accounts by inserting a new
rule addressing the requirements for transfer of fees or
specified amounts when the real estate transaction is a nonrecurring
residential rental agreement of less than one
hundred twenty (120) days. The Commission's proposal to
revise the rules and regulations resulted from a request for
rulemaking pursuant to 29 Del.C. § 10114 initiated by
Robert G. Gibbs, Esquire. Notice of the public hearing to
consider the proposed amendments to the Rules and
Regulations was published in the Delaware Register of
Regulations dated August 1, 2001, and two Delaware
newspapers of general circulation, in accordance with 29
Del.C. § 10115. The public hearing was held on September
13, 2001 at 9:00 a.m. in Dover, Delaware, as duly noticed,
and at which a quorum of the Commission was present. The
Commission deliberated and voted on the proposed revisions
to the Rules and Regulations. This is the Commission's
Decision and Order ADOPTING the amendments to the
Rules and Regulations as proposed.
II. Evidence and Information Submitted
The Commission received no written comments in
response to the notice of intention to adopt the proposed
revisions to the Rules and Regulations. No public comment
was received at the September 13, 2001 hearing regarding
the proposed revisions.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Commission with
comments.
2. The proposed amendments to the Rules and
Regulations are necessary to clarify the requirements for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1071
transfers of amounts in an escrow account when the real
estate transaction is a non-recurring residential rental
agreement of less than one hundred twenty (120) days. The
proposed amendments will assist licensees in understanding
their responsibilities regarding escrow accounts and will also
provide protection to the public.
3. The Commission concludes that it has statutory
authority to promulgate rules and regulations pursuant to 24
Del.C. § 2905(a)(1).
4. For the foregoing reasons, the Commission
concludes that it is necessary to adopt amendments to its
Rules and Regulations, and that such amendments are in
furtherance of its objectives set forth in 24 Del.C. Chapter
29.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Commission, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del.C. §
10118(g).
By Order of the Real Estate Commission
(As authenticated by a quorum of the Commission)
Mary B. Parker, Chairperson, Public Member
Marvin R. Sachs, Vice Chairperson,
Professional Member
Joseph P. Connor, Jr., Secretary, Professional Member
Ann K. Baker, Professional Member
Judy L. Bennett, Public Member
John R. Giles, Professional Member
James D. McGinnis, Professional Member
Marcia Shihadeh, Public Member
* Note: No changes were made to the regulation as
originally proposed and published in the August 2001
issue of the Register at page 231 (5 DE Reg. 231).
Therefore, the final regulation is not being republished.
Please refer to the August 2001 issue of the Register or
contact the Real Estate Commission.
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
24 DE Admin. Code 2925
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), 2911(b)
(24 Del.C. §2905(a)(1), §2911(b))
Order Adopting Guidelines for Fulfilling The Delaware
Real Estate Education Requirements
AND NOW, this 11th day of October, 2001, in
accordance with 29 Del.C. § 10118 and for the reasons stated
hereinafter, the Real Estate Commission of the State of
Delaware (hereinafter "the Commission") enters this Order
adopting amendments to its Guidelines for Fulfilling the
Delaware Real Estate Education Requirements.
I. Nature of the Proceedings
Pursuant to the Commission's authority under 24 Del.C.
§§ 2905(a)(1), and 2911(b), the Commission proposed to
revise its existing Guidelines for Fulfilling the Delaware
Real Estate Education Requirements to revise and clarify the
education guidelines regarding program criteria to reflect the
approval of courses that have been certified through the
Association of Real Estate License Law Officials Distance
Education Certification Program. Notice of the public
hearing to consider the proposed amendments to the
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements was published in the Delaware Register of
Regulations dated August 1, 2001, and two Delaware
newspapers of general circulation, in accordance with 29
Del.C. §10115. The public hearing was held on September
13, 2001 at 9:30 a.m. in Dover, Delaware, as duly noticed,
and at which a quorum of the Commission was present. The
Commission deliberated and voted on the proposed revisions
to the Guidelines for Fulfilling the Delaware Real Estate
Education Requirements. This is the Commission's
Decision and Order ADOPTING the amendments to the
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements as proposed.
II. Evidence and Information Submitted
The Commission received no written comments in
response to the notice of intention to adopt the proposed
revisions to the Guidelines for Fulfilling the Delaware Real
Estate Education Requirements. At the September 13, 2001
hearing, public comment was received from Eugene
Millman and John Osborne regarding the proposed
revisions. Mr. Millman indicated that he and Mr. Osborne
were present to give support to the proposed revisions
dealing with the Association of Real Estate License Law
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1072 FINAL REGULATIONS
Officials' ("ARELLO") certification of distance learning
programs and expressed their belief that such amendments
comprise movement in the right direction. Notwithstanding
general support of the proposed revisions, Mr. Osborne
stated that in his view the proposed phrasing of Guideline
6.1.2.3 is confusing, and he recommended that an entirely
new and separate rule be drafted that would stand alone
elsewhere in the guidelines. In his opinion, the proposed
Guideline is unclear and potentially subject to varying
interpretation by members of the Real Estate Education
Committee of which he is a member.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Guidelines for Fulfilling the Delaware
Real Estate Education Requirements and offered an adequate
opportunity to provide the Commission with comments. The
Commission considered the comments received from the
public, and determined that it was desirable to adopt the
proposed amendments as written.
2. The proposed amendments to the Guidelines for
Fulfilling the Delaware Real Estate Education Requirements
are necessary to clarify that courses that have been certified
through ARELLO's Distance Education Certification
Program are approved by the Commission, while other
correspondence courses and learning courses not under the
direct supervision of a certified instructor are not approved.
The proposed amendments will assist licensees in
understanding courses of instruction that are acceptable for
credit.
3. The Commission concludes that it has statutory
authority to promulgate rules and regulations pursuant to 24
Del.C. §2905(a)(1), and to publish guidelines as to
acceptable courses of instruction, seminars and lectures in
accordance with 24 Del.C. § 2911(b).
4. For the foregoing reasons, the Commission
concludes that it is necessary to adopt amendments to its
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements, and that such amendments are in furtherance
of its objectives set forth in 24 Del.C. Chapter 29.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Commission, IT IS ORDERED, that the Guidelines
for Fulfilling the Delaware Real Estate Education
Requirements are approved and adopted in the exact text as
set forth in Exhibit A attached hereto. The effective date of
this Order is ten (10) days from the date of its publication in
the Delaware Register of Regulations pursuant to 29 Del.C. §
10118(g).
By Order of the Real Estate Commission
(As authenticated by a quorum of the Commission)
Mary B. Parker, Chairperson, Public Member
Marvin R. Sachs, Vice Chairperson, Professional
Member
Joseph P. Connor, Jr., Secretary, Professional Member
Ann K. Baker, Professional Member
Judy L. Bennett, Public Member
John R. Giles, Professional Member
James D. McGinnis, Professional Member
Marcia Shihadeh, Public Member
* Note: No changes were made to the regulation as
originally proposed and published in the August 2001
issue of the Register at page 238 (5 DE Reg. 238).
Therefore, the final regulation is not being republished.
Please refer to the August 2001 issue of the Register or
contact the Real Estate Commission.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF CLINICAL SOCIAL WORK
EXAMINERS
24 DE Admin. Code 3900
Statutory Authority: 24 Delaware Code,
Section 3906(1) (24 Del. C. §3906(1))
Order Adopting Rules and Regulations
AND NOW, this 17th day of September, 2001, in
accordance with 29 Del.C. § 10118 and for the reasons stated
hereinafter, the Board of Clinical Social Work Examiners of
the State of Delaware (hereinafter "the Board") enters this
Order adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Board's authority under 24 Del.C.
§3906(1), the Board proposed to revise its existing Rules and
Regulations to permit a specified portion of the professional
supervision requirement relating to the work experience that
applicants must demonstrate in order to be licensed to be
accomplished by live videoconferencing. Notice of the
public hearing to consider the proposed amendments to the
Rules and Regulations was published in the Delaware
Register of Regulations dated April 1, 2001, and two
Delaware newspapers of general circulation, in accordance
with 29 Del.C. § 10115. The public hearing was held on
May 14, 2001 at 9:30 a.m. in Dover, Delaware, as duly
noticed, and at which a quorum of the Board was present.
The Board deliberated and voted on the proposed revisions
to the Rules and Regulations. This is the Board's Decision
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1073
and Order ADOPTING the amendments to the Rules and
Regulations as proposed.
II. Evidence and Information Submitted
The Board received written comments from Ms. Rita
Mariani, Chairperson, State Council for Persons with
Disabilities, in response to the notice of intention to adopt
the proposed revisions to the Rules and Regulations. Ms.
Mariani made several observations while endorsing the
concept of the proposed revisions. Ms. Mariani
recommended that the Board modify the heading for Section
2.0 to refer to "Professional Supervision During 2 Year
Internship- Title 24 Del.C. Sec. 3907." Ms. Mariani also
noted her belief that the actual hours of supervision may vary
considerably from month to month. Finally, Ms. Mariani
noted that videoconferencing supervision may reduce
unnecessary travel time or enhance the availability of
supervision in rural areas. At the May 14, 2001 hearing, the
Board received no comment from the public.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Board with comments.
The Board considered the comments received, and
determined that while the comments overall endorsed the
concept of the proposed revisions, some of the comments
were not substantive and others did not directly address the
proposed revisions.
2. The proposed amendments to the Rules and
Regulations are necessary to permit a specified portion of
required supervisory contact to be accomplished by live
videoconferencing, while expressly disallowing supervision
by telephone or e-mail. The proposed amendments will
assist applicants in understanding the professional
supervision requirements for the work experience that they
must demonstrate in order to obtain a license.
3. The Board concludes that it has statutory authority to
promulgate rules and regulations pursuant to 24 Del. C. §
3906(1).
4. For the foregoing reasons, the Board concludes that it
is necessary to adopt amendments to its Rules and
Regulations, and that such amendments are in furtherance of
its objectives set forth in 24 Del. C. § 3901.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Board, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del.C. §
10118(g).
By Order of the Board of Clinical Social Work
Examiners
(As authenticated by a quorum of the Board)
Grace A. Pesikey, LCSW, President, Professional
Member
Maria M. Carroll, Ph.D., LCSW, Vice President,
Professional Member
Robb H. Carter, Public Member
Mack Davis, Public Member
Malisa Knox, LCSW, Professional Member
Timothy J. Toole, LCSW, Professional Member
Jymace Wescott, Public Member
* Note: No changes were made to the regulation as
originally proposed and published in the April 2001 issue
of the Register at page 1591 (4 DE Reg. 1591). Therefore,
the final regulation is not being republished. Please refer
to the April 2001 issue of the Register or contact the
Board of Clinical Social Work Examiners.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
RESIDENTS PROTECTION
Statutory Authority: 11 Delaware Code,
Chapter 85 (11 Del.C. Ch. 85)
Delaware Regulations for the
Delaware Adult Abuse Registry
Nature of the Proceedings:
The Department of Health and Social Services, Division
of Long Term Care Residents Protection (DLTCRP)
initiated proceedings in accordance with 29 Delaware Code
Chapter 101 to adopt Regulations Governing the Adult
Abuse Registry. On June 1, 2001 DLTCRP published
proposed regulations in the Register of Regulations and
received written and verbal comments at public hearings on
July 9 and July 12.
Subsequently, the Department of Health and Social
Services, Division of Long Term Care Residents Protection
revised and republished proposed Regulations Governing the
Adult Abuse Registry on September 1, 2001. The revised
and republished proposed regulations incorporate most
comments received at the July public hearings.
Additional written and verbal comments were received
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1074 FINAL REGULATIONS
at public hearings held October 1 and October 5. DLTCRP
reviewed and evaluated all the comments; and the evaluation
of those comments received at the July public hearings but
not incorporated into the proposed regulations republished
on September 1, as well as those comments received at the
October public hearings, are in the accompanying Summary
of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that
the proposed regulations, as set forth in the attached copy,
should be adopted as final regulations. Therefore, it is
ordered that the proposed Regulations Governing the Adult
Abuse Registry are adopted effective November 10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
Summary of Evidence:
The proposed regulations elicited comments which are
summarized and responded to as follows:
The proposed regulations provide that a person placed
on the Adult Abuse Registry shall have the right to appeal
the hearing officer's decision to Superior Court within a 30
day period after the finding. One comment suggested that
the length of time for an appeal be extended to 60 days.
However, since 30 days accords with the time period for
appeals to Superior Court under the Administrative
Procedures Act, the time period of 30 days is being retained
in these regulations.
Two comments were received urging that the
regulations include a listing of specific lengths of time an
individual would be placed on the Adult Abuse Registry for
specific offenses. DLTCRP believes it is impractical to
attempt to categorize every type of incident. However,
DLTCRP is concerned that similar offenses be treated
similarly. Therefore, DLTCRP will take steps to ensure
equitable treatment and may consider a future revision of the
regulations if such a revision appears warranted.
The regulations include a provision permitting an
individual to petition to have his/her name removed from the
Registry by demonstrating improved behavior through work
references. One comment asked how such references may
be provided from outside of the health care sector. The
intent of the regulation is to consider references submitted by
any employers, including employers outside the health care
sector, who find the individual demonstrates conduct that
warrants reconsideration of placement on the Registry.
The proposed regulations provide that when an
individual petitions for removal from the Adult Abuse
Registry, DLTCRP will respond within 60 days. A
commenter suggested that the response time be shortened to
30 days. However, inasmuch as the consideration of the
petition may include interviews of appropriate parties,
DLTCRP believes that the 60 day time period is more
reasonable.
A comment was also received urging that DLTCRP
provide a list of reasons that a petitioner would be denied
when requesting removal from the Registry. Since the
petitioner's conduct resulted in his/her placement on the
Registry, the burden is on the petitioner to demonstrate
improved conduct. An evaluation of that conduct would be
the basis for removal or denial of removal from the Registry.
Therefore, a list of reasons for denial of removal from the
Registry is not necessary.
Two comments suggested that facilities also be required
to request an Adult Abuse Registry check on volunteers.
DLTCRP lacks the statutory authority to include such a
requirement in the regulations.
The regulations specify the information to be provided
in the notice to an individual following the completion of an
investigation which results in the entry of the person's name
on the Adult Abuse Registry. One commenter appeared to
believe that the investigation referenced would be an
investigation performed preliminarily by another state
agency; and the investigator would not be able to provide the
information. The regulation instead refers to the
investigation concluded by DLTCRP and specifically makes
mention of the "Division" which is defined as the Division
of Long Term Care Residents Protection.
A comment called attention to the references to the
word "facility" and suggested that "facility" be changed to
"facility/State agency" to take into account individuals
providing services in the community who are covered by the
regulations. DLTCRP does not consider this change
necessary because the regulations define "Nursing Facility
and Similar Facility" to include facilities providing
community-based services.
One comment requested that the power of the hearing
officer to compel the attendance of witnesses and the
production of evidence be clarified to refer solely to
witnesses and evidence requested by the state or the
individual requesting the hearing. DLTCRP does not
believe that either the statute or the regulations envision a
role for the hearing officer which would include compelling
the attendance of any witness or the production of any
evidence other than that requested by parties to the hearing.
Therefore, this change is not included in the regulations, but
will be reconsidered in the future if necessary.
Finally, one commenter objected to the inclusion of
"psychiatric units of acute care hospitals" in the definition of
"Nursing Facility and Similar Facility." Accordingly, the
final regulations have removed the phrase "psychiatric units
of acute care" from the regulations and replaced it with the
language directly from the statute. Since that change is
made to conform with the statute, DLTCRP does not believe
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1075
that such a change requires a further public hearing.
Section l: Definitions
(A) "Adult Abuse" means:
(1) Physical abuse including the intentional and
unnecessary infliction of pain or injury to an infirm adult or
the threat thereof. This includes, but is not limited to, hitting,
kicking, pinching, slapping, pulling hair, or any sexual
contact, or the threat of any of the above acts.
(2) Emotional abuse including, but not limited to:
(a) Ridiculing or demeaning an infirm adult.
(b) Making derogatory remarks to an infirm
adult.
(c) Cursing directed towards an infirm adult.
(d) Threatening retaliation, directly or
indirectly
(3) Mistreatment including the inappropriate use
of medications, isolation or physical or chemical restraints
on or of an infirm adult.
(4) Neglect including:
(a) Intentional lack of attention to physical
needs of the infirm adult including, but not limited to,
toileting, bathing, meals and safety.
(b) Intentional failure to report health
problems or changes in health problems or changes in health
condition of an infirm adult to an immediate supervisor,
doctor or nurse.
(c) Intentional failure to carry out a prescribed
treatment plan for an infirm adult.
(5) Misappropriation of property including the
theft of money or property from the infirm adult, use of
money or property without permission of the infirm adult or
guardian, and mishandling of money or property belonging
to the infirm adult.
(B) "Substantiated Abuse" means that, weighing the
facts and circumstances, a reasonable person has concluded
that more likely than not the identified individual has
committed adult abuse.
(C) "Person Seeking Employment" means any person
applying for employment in a health care facility or child
care facility that affords direct access to persons receiving
care at such a facility, or a person applying for licensure to
operate a child care facility.
(D) "Health Care Facility" means any custodial or
residential facility where health, nutritional or personal care
is provided for infirm adults, including nursing homes,
hospitals, home health care agencies, and adult day care
facilities.
(E) "Child Care Facility" means any child care facility
which is required to be licensed by the Department of
Services for Children, Youth and Their Families.
(F) "direct access" means the opportunity to have
personal contact with persons receiving care during the
course of one's assigned duties.
(G) "Infirm adult" means any person 18 years of age or
over who is physically or mentally impaired, either
permanently or temporarily.
(H) "proposed concern" refers to a temporary
classification used until the final determination is made.
(I) "Department" means the Department of Health and
Social Services.
Section 2: Use of Registry
(A) No employer who operates a health care facility or
child care facility shall hire any person seeking employment
without requesting and receiving an Adult Abuse Registry
check for such person.
(1) Any employer who is required to request an
Adult Abuse Registry check shall obtain a statement signed
by the person seeking employment wherein the person
authorizes a full release for the employer to obtain the
information provided pursuant to such a check.
(2) The employer shall call the Adult Abuse
Registry, provide the name and social security number of the
person seeking employment, and will be informed of any
information contained in the registry.
(B) When exigent circumstances exist which require an
employer to fill a position in order to maintain the required
or desired level of service, the employer may hire a person
seeking employment on a conditional basis after the
employer has requested an Adult Abuse Registry check.
(1) The employment of the person shall be
conditional and contingent upon receipt of the Adult Abuse
Registry check by the employer.
(2) The person shall be informed in writing, and
shall acknowledge in writing, that his or her employment is
conditional, and contingent upon receipt of the Adult Abuse
Registry check.
Section 3: Investigation of Adult Abuse.
(A) The Department shall investigate any individual
against whom an allegation of adult abuse has been made.
(B) If the investigator determines preliminarily that the
facts and circumstances conclude that more likely than not
the individual has committed abuse or neglect, the
individual's name shall be placed on the Adult Abuse
Registry with a finding of "Proposed Concern".
Section 4: Administrative Hearings
(A) Individuals against whom an allegation is
preliminarily substantiated shall be notified in writing of the
intent to place their name on the Adult Abuse Registry with a
finding of "Substantiated Abuse" and shall be offered a right
to an administrative hearing. Information contained in the
finding of substantiated abuse shall consist o£
(1) The date of the incident
(2) The type of facility where the incident occurred
(3) A brief description of the incident
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1076 FINAL REGULATIONS
(4) Length of time the finding remains on the
Abuse Registry
(B) Individuals must request in writing an
administrative hearing within 30 days of the date of the
notice that a finding of abuse has been preliminarily
substantiated.
(C) Individuals who fail to request an administrative
hearing within 30 days shall have their name and
information regarding the incident changed from a finding of
"Proposed Concern" to a finding of "Substantiated Abuse"
on the Adult Abuse Registry 30 days after the date of the
notice.
(D) Individuals who have entered a plea or who have
been convicted by a court of law of adult abuse, shall not
have the right to an administrative hearing. Their name and
information regarding the incident shall be entered directly
to the Adult Abuse Registry.
(E) The Department shall make a scheduling decision
within 10 days of receipt of a request for an administrative
hearing by an individual who has received notice of a
preliminary finding of substantiated abuse.
(1) An individual requesting an administrative
hearing shall be entitled to a statement describing the
incident, the date and location of the incident, and the name
of the victim.
(2) The individual shall be afforded an opportunity
to appear with or without an attorney, submit documentary
evidence, present witnesses, and question any witness the
Department presents.
(3) If, at the conclusion of the hearing, the hearing
officer concludes that, weighing the facts and circumstances,
more likely than not, the identified individual has committed
adult abuse, a notice of "substantiation" shall be placed on
the registry.
(4) The hearing officer shall render a written
decision and will notify the individual and the Office of the
Ombudsman of the decision. The notice will specify the
reasons for the decision and, if the finding is substantiated,
the length of time the finding of substantiated abuse shall
remain on the registry.
(5) The decision of the hearing officer is final.
Section 5: Length of time on the Abuse Registry
The length of time on the Abuse Registry shall be no
less than five years and may be permanent. The length of
time shall be based on the actual injury or risk of injury to
the infirm adult and whether there exists a pattern of adult
abuse. Not withstanding the above, the length of time on the
registry may be less than five years if there is evidence of
mitigating circumstances indicating that adult abuse by the
individual was a singular event and not likely to reoccur.
Section 6: Registry of Nurse Aides
The names of registrants with findings of abuse, neglect,
or misappropriation entered on the Registry of Nurse Aides
created pursuant to 42 CFR § 483 shall be entered into the
Adult Abuse Registry with a finding of substantiated abuse.
The finding shall remain on the Adult Abuse Registry for so
long as the finding remains on the Registry of Nurse Aides.
There shall be no right of appeal for findings entered on the
Adult Abuse Registry under this section.
Section l: Definitions
"Abuse" shall have the same meaning as contained in
16 Del. C., § 1131, and shall include mistreatment, neglect
and financial exploitation as defined therein.
"Child Care Facility" means any child care facility
which is required to be licensed by the Department of
Services for Children, Youth and Their Families.
"Contractor" means an entity under contract to
provide services for more than 20 hours per week
(aggregate) and for more than six weeks in a twelve month
period for a health care service provider, and whose
employees have the opportunity for direct access to persons
receiving care. For purposes of these regulations, contractor
does not include construction contractors.
"Department" means the Department of Health and
Social Services.
"Direct Access" means the opportunity to have
personal contact with persons receiving care during the
course of one's assigned duties.
"Division" means the Division of Long Term Care
Residents Protection.
"Health Care Service Provider" means any person or
entity that provides services in a custodial or residential
setting where health, nutritional or personal care is provided
for persons receiving care, including but not limited to,
hospitals, home health care agencies, adult care facilities,
temporary employment agencies and contractors that place
employees or otherwise provide services in custodial or
residential settings for persons receiving care, and hospice
agencies. Health Care Service Provider does not include any
private individual who is seeking to hire a self-employed
health caregiver in a private home.
"Nursing Facility and Similar Facility" means any
facility required to be licensed under 16 Del. C., Ch. 11.
This includes, but is not limited to, facilities commonly
called nursing homes, assisted living facilities, intermediate
care facilities for persons with mental retardation,
neighborhood group homes, family care homes and rest
residential care facilities. Also included are the Stockley
Center, the Delaware Psychiatric Center and [psychiatric
units of acute care] hospitals certified by the Department of
Health and Social Services pursuant to 16 Del. C., § 5001 or
5136.
"Person Receiving Care" means any person who,
because of his/her physical or mental condition, requires a
level of care and services suitable to his/her needs to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1077
contribute to his/her health, comfort and welfare.
"Person Seeking Employment" means any person
applying for employment with or in a health care service
provider, nursing facility or similar facility that may afford
direct access to persons receiving care at such facility, or a
person applying for licensure to operate a child care facility.
It shall also include a self-employed health caregiver who
has direct access in any private home.
"Substantiated Pending Appeal" refers to a
placement on the Registry based on an investigative finding
prior to the subject exercising his/her right to appeal.
"Substantiated Abuse" means that, weighing the facts
and circumstances, a reasonable person has concluded by a
preponderance of evidence that the identified individual has
committed adult abuse for the purpose of placement on the
Adult Abuse Registry.
Section 2 Use of Registry
(A) No health care service provider, to include nursing
and similar facilities, or child care facility shall hire any
person seeking employment or retain any contractors
without requesting and receiving an Adult Abuse Registry
check for such person.
(1) Any employer who is required to request an
Adult Abuse Registry check shall obtain a statement signed
by the person seeking employment wherein the person
authorizes a full release for the employer to obtain the
information provided pursuant to such a check. Said
authorization shall include the following language: "I hereby
release the indicated employer to obtain from the Division of
Long Term Care Residents Protection any information
concerning me which may be on the Adult Abuse Registry
pursuant to 11 Del. C., § 8564."
(2) When exigent circumstances exist which require
an employer to fill a position in order to maintain the
required or desired level of service, the employer may hire a
person seeking employment on a conditional basis after the
employer has requested an Adult Abuse Registry check.
(3) The person shall be informed in writing, and
shall acknowledge in writing, that his or her employment is
conditional, and contingent upon receipt of the Adult Abuse
Registry check.
(B) Private individuals seeking to hire an individual to
provide healthcare services in a private residence may
request the Division to determine if the potential employee is
listed on the Adult Abuse Registry. A short letter of request
along with a release form signed by the prospective
employee may be mailed or faxed to the Division of Long
Term Care Residents Protection (DLTCRP) # 3 Mill Road,
Suite 308, Wilmington, DE 19806, fax number (302) 577-
6673.
Section 3: Investigation of Adult Abuse
(A) The Division shall investigate any individual
against whom an allegation of adult abuse has been made in
accordance with the timeframes delineated in 16 Del. C., §
1134(d).
(B) If the investigation substantiates pending appeal
that the alleged abuse occurred, the Division's Investigations
Unit Chief shall enter on the Adult Abuse Registry, with a
finding of "Substantiated Pending Appeal," the individual's
name, date/time of the incident, a description of same and
the length of time the finding shall remain on the Registry.
(C) The Division may accept preliminary investigations
by a state agency or an entity contracted by a state agency.
The Division will review and may revise the findings upon
further investigation.
(D) Upon placement of a person on the Adult Abuse
Registry, the Division will notify the facility from which the
complaint originated as well as the current employer, if
different, and the victim that the person is on the Registry as
"Substantiated Pending Appeal."
Section 4: Administrative Hearings
(A) An individual against whom an allegation is
substantiated pending appeal shall be notified by certified
mail at his/her home address, to be followed by written
notice in care of his/her current employer at the discretion of
the Division, that his/her name has been entered on the Adult
Abuse Registry and shall be offered a right to an
administrative hearing. The burden of proof in such hearing
shall be on the Division. Individuals shall be informed upon
completion of the investigation of the following:
(1) The date and time of the incident.
(2) The name and type of facility where the
incident occurred.
(3) A brief description of the incident.
(4) Length of time the finding remains on the Adult
Abuse Registry.
(B) All requests for an administrative hearing must be
received in writing, postmarked within 30 days of the date of
the notice that a finding of abuse has been substantiated
pending appeal. The Director or his/her designee shall
dismiss untimely requests for hearing except when the
individual submits evidence of good cause.
(C) An individual who fails to request an administrative
hearing as described above shall have his/her name and
information regarding the incident changed from a finding of
"Substantiated Pending Appeal" to a finding of
"Substantiated Abuse" on the Adult Abuse Registry. At that
time the Division shall notify the individual, the facility from
which the complaint originated as well as the current
employer, if different, and the victim that the individual is on
the Registry with a finding of "Substantiated Abuse."
(D) An individual who has entered a plea or who has
been convicted by a court of law of adult abuse shall have
the right to an administrative hearing solely to challenge the
proposed length of time of registration on the Adult Abuse
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1078 FINAL REGULATIONS
Registry.
(E) The hearing officer shall have the power to compel
the attendance of witnesses and the production of evidence.
Under no circumstance shall the hearing officer order the
release of the investigative report and documents attached
thereto, provided however, the hearing officer may order the
release of statements of witnesses.
(F) The hearing officer should receive requests for
witnesses and/or the production of evidence no less than ten
business days prior to the hearing date.
(G) The individual shall be afforded an opportunity to
appear with or without an attorney, submit documentary
evidence, present witnesses, and question any witness the
Division presents. Limited continuances shall be granted for
good cause.
(H) If, at the conclusion of the hearing, the hearing
officer concludes by a preponderance of evidence, that the
identified individual has committed adult abuse, for the
purpose of placement on the Adult Abuse Registry, a notice
of "Substantiated Abuse" shall be placed on the Adult
Abuse Registry. If, at the conclusion of the hearing, the
hearing officer concludes that the individual has not
committed adult abuse, the finding of "Substantiated
Pending Appeal" shall be removed from the Adult Abuse
Registry.
(I) The hearing officer shall render a written decision
within thirty working days of the hearing and will notify the
individual, the Division, the facility and the victim of the
decision. The notice will specify the reasons for the decision
and, if the finding is substantiated, the length of time the
finding of substantiated abuse shall remain on the Adult
Abuse Registry.
(J) Any person placed on the Adult Abuse Registry shall
have the right to appeal the decision within thirty days of the
finding. The decision of the hearing officer may be appealed
on the record to Superior Court.
Section 5: Length of Time on the Adult Abuse Registry
(A) The length of time on the Adult Abuse Registry
shall be based on the seriousness of the incident and whether
there exists a pattern of adult abuse. Evidence of mitigating
circumstances may be considered.
(B) The names of registrants with findings of abuse,
neglect or misappropriation entered on the Registry of Nurse
Aides created pursuant to 42 CFR § 483 shall be entered on
the Adult Abuse Registry with a finding of substantiated
abuse. There shall be a right of appeal for findings entered
on the Adult Abuse Registry under this section solely to
challenge the proposed length of time of registration on the
Adult Abuse Registry.
(C) Upon final disposition of the allegation, the Division
shall notify, in writing, the victim, the facility where the
incident occurred as well as the current employer of the
individual, if different, of the final disposition.
Section 6: Removal of a Person from the Adult Abuse
Registry
(A) The Department shall be authorized to remove a
person from the Adult Abuse Registry before the expiration
of his/her registration period when the Department deems
that the person no longer poses a threat to any person
receiving care in accordance with 11 Del. C., § 8564(g).
(B) A person whose name has been placed on the Adult
Abuse Registry shall have the right to petition the Division,
in writing, for the removal of his/her name from the
Registry. Said petitioner must demonstrate:
(1) A minimum of twelve months has passed since
his/her placement on the Registry.
(2) Affirmative steps have been taken to correct
behavior that led to placement on the Registry, i.e. anger
management counseling, drug/alcohol treatment, sensitivity
training, etc.
(3) Demonstrated improved behavior through work
references.
(C) The Division will evaluate the information provided
by the petitioner and respond in writing within 60 days of
receipt of all information provided by the petitioner. The
Division is authorized to grant or deny the removal based on
the review of the information presented. If the Division
denies the request, the petitioner may request a hearing to
appeal the denial, or reapply for the removal after 6 months
or when the petitioner can produce evidence of performance
of the affirmative steps listed above.
Section 7: Disclosure of Adult Abuse Registry Records
Except as otherwise provided in these regulations, the
dissemination of information contained in the Adult Abuse
Registry shall be limited as follows:
(A) Hearing Officer Opinions shall be released upon
request to the following:
(1) The subject of the hearing.
(2) A victim identified by name in the record or
his/her legal representative.
(3) Law enforcement officials pursuant to an
official investigation.
(4) The Long Term Care Ombudsman pursuant to a
complaint from a victim identified in the record.
(5) The Medicaid Fraud Control Unit of the
Department of Justice.
(6) The Division of Professional Regulation if a
finding of substantiated abuse pertains to a licensed
professional.
(B) Investigative files shall be released upon request to:
(1) Law enforcement officials pursuant to an
official investigation.
(2) The Medicaid Fraud Control Unit of the
Department of Justice.
(3) Rights protection agencies otherwise entitled
under applicable federal or state law.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1079
ADDENDUM
REPORTING TO NURSE AIDE REGISTRY
In accordance with 42 CFR § 483, the Division of Long
Term Care Residents Protection will report findings of abuse
to the Nurse Aide Registry under the following procedure:
1. When the Division has substantiated pending appeal
a finding of abuse, neglect, mistreatment or financial
exploitation against a certified nurse assistant, a
determination will be made whether the substantiated
findings meet the criteria required in the federal regulations
or the criteria in state statute and regulations.
2. If the findings support the criteria for abuse,
mistreatment or misappropriation of property in the federal
regulations, the certified nurse assistant will be notified that
his/her name is both reported to the Nurse Aide Registry and
placed on the Adult Abuse Registry, and that he/she has a
right to a hearing. The CNA will also be notified that, with
regard to the Nurse Aide Registry, a substantiated finding
will result in a lifetime prohibition against employment in a
federally certified facility.
3. If the findings support the criteria for neglect in the
federal regulations, the certified nurse assistant will be
notified that his/her name is both reported to the Nurse Aide
Registry and placed on the Adult Abuse Registry, and that
he/she has a right to a hearing. The CNA will also be
notified that, with regard to the Nurse Aide Registry, a
substantiated finding of neglect will result in a lifetime
prohibition against employment in a federally certified
facility. However, the CNA will be further informed of his/
her right to petition the Division to have the report removed
from the Nurse Aide Registry in accordance with
§1819(g)(1)(D) of the Social Security Act.
4. The notice to the certified nurse assistant will include
an explanation that the hearing described in the Adult Abuse
Registry regulations will also consider the placement of the
CNA on the Nurse Aide Registry. The CNA will be
informed that if the evidence presented at a hearing does not
warrant a finding of abuse, neglect, mistreatment or
misappropriation of property under the federal regulations,
the evidence will be considered to determine whether it
meets the criteria for abuse, neglect, mistreatment or
financial exploitation under the state Adult Abuse statute.
DIVISION OF LONG TERM CARE
RESIDENTS PROTECTION
Statutory Authority: 16 Delaware Code,
Chapter 11 (16 Del.C. Ch. 11)
Delaware Regulations for Group Home Facilities for
Persons with Aids
Nature of the Proceedings:
The Department of Health and Social Services, Division
of Long Term Care Residents Protection (DLTCRP)
initiated proceedings in accordance with 29 Delaware Code,
Chapter 101 to adopt Regulations for Group Home Facilities
For Persons With AIDS. On June 1, 2001, DLTCRP
published proposed regulations in the Register of
Regulations and received written and verbal comments at a
public hearing on July 12.
The Department of Health and Social Services, Division
of Long Term Care Residents Protection revised the
proposed regulations in response to comments at the July
hearing and republished the revised regulations in the
September Register of Regulations. A second public hearing
was held October 5, 2001.
Additional written comments were received at the
second hearing. DLTCRP reviewed and evaluated all the
comments; and the evaluation of those comments not
incorporated into the revised proposed regulations
republished on September 1 are in the accompanying
Summary of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that
the proposed regulations, as set forth in the attached copy,
should be adopted as final regulations. Therefore, it is
ordered that the proposed Regulations for Group Home
Facilities For Persons With AIDS are adopted effective
November 10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
Summary of Evidence:
Comments on the proposed regulations have been
received and evaluated as follows:
The regulations permit a Group Home for Persons with
AIDS to have as many as 16 beds, an increase from 8 beds in
the current regulations. One comment expressed concern at
the increase in size. DLTCRP, however, is responding to the
need, as experienced by the provider, for services for a larger
number of individuals whose health status is appropriate for
a group home. Further, under the provisions of the Life
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1080 FINAL REGULATIONS
Safety Code, a facility with up to 16 beds is considered a
small facility, so these regulations will now conform to the
Life Safety Code.
A comment also objected to the removal from the
regulations of both a regulation pertaining to suspension or
revocation of a license and an appendix to the regulations.
In both instances, the portions removed either repeated the
statute or paraphrased the statute. DLTCRP intends to
ensure that copies of the statute are made available so that
readers see the complete and accurate text of the statute.
Similarly, a comment called attention to the language in
the current regulations which referenced an advance
directive in two different regulations. The comment
indicated that both references should be retained. However,
the references were repetitive and, therefore, one has been
deleted.
In another comment, pertaining to grab bars and slip
resistant surfaces for showers and tubs, a comment noted
that the regulations had been diluted. In fact, the proposed
regulations contain no substantive change from the current
regulations, but simply reflect the condensation of two
regulations into one.
In the proposed regulations published in June, a
requirement that physicians sign verbal orders in 5 days
drew a number of comments objecting to that time period
and suggesting a time period of 14 days as more workable.
One comment, however, proposed a 28-day period. The
regulations as proposed in September accepted the 14-day
period. Since that time period was suggested by all but one
commenter, the proposal for a 28-day time span has not been
accepted.
Regulations for Group Home Facilities
For Persons With Aids
Title 16 - Health and Safety
Part II, Chapter 11Sanitoria, Rest Homes, Nursing Homes,
Boarding Homes and Related Institutions
"Sanitorium, rest home, nursing home, boarding
home, and related institutions," within the meaning of this
chapter, mean any institution, building or agency in which
accommodation is maintained, furnished, or offered for any
fee, gift, compensation or reward for the care of more than I
aged, infirm, chronically ill, adult psychiatrically disabled or
convalescent person. The word "person" shall not include
mother, father, sister, brother, niece, nephew, mother-in-law,
father-in-law, sister-in-law, or brother-in-law of any
individual operating a facility under this chapter.
These regulations are promulgated in accordance with
16 Del.C. Chapter 11
All facilities must comply with applicable local, state
and federal laws and regulations.
REGULATIONS
SECTION 62.0 - DEFINITION
The following regulations are designed specifically for
Group Homes for eight (8) sixteen (16) or less persons with
AIDS and establish the minimal acceptable level of living
and programmatic conditions in such homes. Only those
residents shall be admitted with an established diagnosis and
disease progression such that the resident requires a routine
and frequent combination of physician, professional nursing
and supportive services. Provisions shall be made for the
transfer and/or discharge of residents when acute care
(hospital) services are required or requested.
SECTION 62.1 GLOSSARY OF TERMS
62.101 Activities of Daily Living - Getting into or out
of bed, bathing, dressing, eating, walking, shaving, brushing
teeth and combing hair.
Normal daily activities including but not
limited to ambulating, transferring, range of motion,
grooming, bathing, dressing, eating and toileting.
62.102 Certified Nurse Aide/Nurse Assistant - An
individual who provides care that does not require the
judgment and skills of a licensed nurse.
The care may include but is not limited to the
following: bathing dressing, grooming, toileting,
ambulating, transferring and feeding, observing and
reporting the general well-being for the person(s) to whom
they are providing care.
The aide has met the training and testing
requirements for nurse aide certification and is included on
Delaware Nurse Aide Registry.
Certified Nursing Assistant - An individual
certified in accordance with 16 Del. C., Chapter 30A who
provides care that does not require the judgment and skills of
a licensed nurse.
62.103 Continuous - Available at all times without
cessation, break or interruption.
62.104 Department - Department of Health and Social
Services.
62.104 62.105 Dietitian - A person currently
registered by the Commission on Dietetic Registration of the
American Dietetic Association and/or a Certified Dietitian/
Nutritionist in the State of Delaware.
62.105 62.106 Direction - Authoritative policy or
procedural guidance for the accomplishment of a function or
activity.
62.107 Division - Division of Long Term Care
Residents Protection
62.106 62.108 Facilities - The site, physical structure
and equipment necessary to provide the required service.
62.107 62.109 Group Home Administrator - The
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FINAL REGULATIONS 1081
individual responsible for the operation of the group home.
62.110 Incident - An occurrence or event, a record of
which must be maintained in facility files, that results or
might result in harm to a resident. Incident includes alleged
abuse, neglect, mistreatment and financial exploitation;
incidents of unknown source which might be attributable to
abuse, neglect or mistreatment; all deaths; falls; and errors or
omissions in medication/treatment. (Also see Reportable
Incident, 62.119.)
62.108 62.111 Licensed Practical Nurse - A nurse
who is licensed to practice as a practical nurse in the State of
Delaware or whose license is recognized to practice in
Delaware.
62.109 62.112 Licensee - The person or organization to
whom the group home for persons with AIDS license is
granted. The licensee has full legal authority and
responsibility for the governance and operation of the group
home.
62.110 Medical Services - The services pertaining to
medical care and performed at the direction of a physician on
behalf of residents by physicians, nurses, or any other
professional or technical personnel.
62.113 Medical and Nursing Services - The services
pertaining to medical care and performed at the direction of
a physician on behalf of residents by physicians, nurses, or
any other professional or technical personnel such as an
advanced nurse practitioner or physician's assistant and
which may include the curative, restorative, preventive and
palliative aspects of nursing care.
62.111 62.114 Notifiable Diseases - A
communicable disease or condition of public health
significance required to be reported to the Division of Public
Health in accordance with the Delaware Department of
Health and Social Services Regulations for the Control of
Communicable and other Disease Conditions.
62.112 62.115 Nursing Service Personnel - Those
licensed or unlicensed persons giving direct services to the
residents, pertaining to the curative, restorative, preventive
or palliative aspects of nursing care and who are supervised
by either a registered professional nurse or a licensed
practical nurse.
62.113 Nursing Services - Those medical services
pertaining to the curative, restorative, preventive and
palliative aspects of nursing care that are performed or
supervised by a registered professional maw or a licensed
practical nurse at the direction of a physician.
62.114 62.116 Personal Care Services - Those health
related services that include general supervision of and direct
assistance to, individuals in their activities of daily living.
62.115 62.117 Physician - A physician licensed to
practice in the State of Delaware.
62.116 62.118 Registered Professional Nurse - A
nurse who is a graduate of an approved school of
professional nursing and who is licensed to practice in the
State of Delaware or whose license is recognized to practice
in Delaware.
62.119 Reportable Incident - An occurrence or event
which must be reported at once to the Division and for which
there is reasonable cause to believe that a resident has been
abused, neglected, mistreated or subjected to financial
exploitation. Reportable incident also includes an incident
of unknown source which might be attributable to abuse,
neglect or mistreatment; all deaths; falls with injuries; and
significant errors or omissions in medication/treatment
which cause the resident discomfort or jeopardize the
resident's health and safety. (Also see Incident, 62.110.)
62.117 62.120 Resident Beds - Accommodations
with supportive services (such as: food, laundry,
housekeeping) for persons who generally stay in excess of
twenty-four (24) hours.
62.118 62.121 Supervision - Direct oversight and
inspection of the act of accomplishing a function or activity.
That degree of oversight and inspection of licensed and
unlicensed personnel necessary to ensure the safety, comfort
and well-being of residents.
SECTION 62.2 LICENSING REQUIREMENTS AND
PROCEDURES
62.200 License Requirement
No person shall establish, conduct or maintain
in this State any sanatorium, rest home, nursing home, or
boarding home for the care of human beings without first
obtaining a license from the Department of Health and
Social Services.
62.200 When a facility is classified under this law or
regulation and plans to construct, extensively remodel or
convert any buildings, two (2) copies one (1) copy of
property prepared plans and specifications for the entire
facility are to be submitted to the Division of Public Health.
An approval in writing is to be obtained before such work is
begun. After the work is completed, in accordance with the
plans and specifications, a new license to operate will be
issued.
62.201 Separate licenses are required for facilities,
maintained in separate locations, even though operated
under the same management. A separate license is not
required for separate buildings maintained by the same
management on the same grounds. A license is not
transferable from person to person or from one location to
another. Under conditions of assignment or transfer of
ownership, a new license will be issued.
62.203 62.202 Inspections
Every group home for persons with AIDS for which
a license has been issued under this chapter shall be
periodically inspected by a representative of the Division of
Public Health.
A. Issuance of Licenses. Licenses shall be
issued in the following categories:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1082 FINAL REGULATIONS
(1) Annual License. An annual license
(12 months) may be renewed yearly if the holder is in full
compliance with the provisions of this chapter 16 Del. C.,
Chapter 11 and the rules and regulations of the Department
of Health and Social Services.
(2) Provisional License. A provisional
license shall be granted for a term of ninety (90) days only,
and shall be granted only to a home which, although not in
full compliance, is nevertheless demonstrating evidence of
improvement. A provisional license shall be granted for a
term of ninety (90) days only, and shall be granted to a group
home during its first 90 days of operation. A provisional
license may also be granted to a group home, which although
not in full compliance, is nevertheless demonstrating
evidence of improvement.
(3) Restricted License. A restricted
license shall be granted for a term of ninety (90) days when
the home is not in compliance with the provisions of this
chapter, and does not demonstrate evidence of improvement.
The holder of a restricted license may not admit residents to
the home to which the restricted license applies during the
period of restriction, but the home may remain in operation
until such license is revoked, expires, becomes annual or
provisional.
B. Suspension or Revocation of Licenses
The Secretary of the Department of Health
and Social Services or his/her designee may suspend or
revoke a license issued under this chapter on any of the
following grounds:
(1) Violation of any of the provisions of
this chapter or the rules and regulations issued pursuant
thereto.
(2) Permitting, aiding or abetting the
commission of any illegal act in the facility.
(3) Conduct or practices detrimental to
the welfare of the resident. Before any license issued under
this chapter is suspended or revoked, thirty (30) days notice
shall be given in writing to the holder of the license, during
which time he/she may appeal for a hearing before the
Secretary of the Department of Health and Social Services or
his/her designee.
Provisional or restricted licenses may
be issued by the Office of Health Facilities Licensing and
Certification without notice if such actions are deemed to be
in the best interest of the residents. The holder of the license
may appeal the issuance of the provisional or restricted
license to the Secretary or his/her designee, however, the
provisional or restricted license will remain in effect during
the pendency of the appeal.
C. Renewal of License After Suspension or
Revocation
If and when the conditions upon which the
suspension or revocation of a license are based have been
corrected and after a proper inspection has been made, a new
license may be granted.
62.204 62.203 The Division of Public Health may
adopt, amend, or repeal regulations governing the operation
of the institutions defined in Section I 10 1 of this title
facilities defined under 16 Del. C., Chapter 11, Subchapter I.,
Licensing By The State, and shall establish reasonable
standards of equipment, capacity, sanitation, and any other
conditions which might influence the health or welfare of the
residents of such institutions.
SECTION 62.3 GENERAL REQUIREMENTS
62.301 All required records maintained by the group
home for persons with AIDS shall be open to inspection by
the authorized representatives of the Division of Public
Health.
62.302 The term "Group Home" shall not be used as
part of the name of any facility in this State, unless it has
been so classified by the Department of Health and Social
Services.
62.303 No rules shall be adopted by the licensee or
administrator which are in conflict with these regulations.
62.304 The Division of Public Health shall be notified,
in writing, of any changes in the Administrator.
62.305 The group home shall establish written polices
regarding the rights and responsibilities of residents, and
these policies and procedures are to be made available to
sponsoring agency(ies), and authorized representatives of
the Division of Public Health.
62.306 Each facility shall provide with the admission
agreement to all residents or their sponsors a complete
statement enumerating all charges for services, materials and
equipment which shall, or may be, furnished to the resident
during the period of residency.
62.307 62.306 Each facility shall make known, in
writing, the refund and prepayment policy at the time of
admission, and in the case of third-party payment, an exact
statement of responsibility in the event of retroactive denial.
62.308 62.307 The group home shall provide safe
storage for resident's valuables.
62.309 62.308 The group home provider shall assure
emergency transportation and care through use of
appropriate transfer agreements with local medical facilities.
62.310 62.309 All residents shall be afforded all
protections and privileges contained in the Delaware Patients
Bill of Rights.
SECTION 62.4 PLANT, EQUIPMENT AND
PHYSICAL ENVIRONMENT
62.401 Site Provisions:
Each group home for persons with AIDS shall
be located on a site which is considered suitable by the
Division of Public Health. The site must be safe easily
drained, suitable for the disposal of sewage, and for the
furnishing of a potable water supply.
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FINAL REGULATIONS 1083
62.402 Water Supply and Sewage Disposal:
A. The water supply and the sewage disposal
system shall be approved by the Division of Public Health
and the Department of Natural Resources and Environmental
Control respectively.
B. The water system shall be designed to supply
adequate hot and cold water, under pressure, at all times.
C. Hot water at shower, bathing and hand washing
facilities shall not exceed 110°F (43°C).
62.403 Building:
A. The building shall be so constructed and
maintained to prevent the entrance or existence of rodents
and insects at all times. An exterior openings shall be
effectively screened during the fly season. Screen doors shall
open outward. All screening shall have at least sixteen (16)
mesh per inch.
B. The roof, exterior walls, doors, sky lights and
windows shall be weather tight and watertight and shall be
kept in sound condition and good repair.
C. The exterior of the site shall be free from
hazards and also from the accumulation of waste materials,
obsolete and unnecessary articles, tin cans, rubbish, and
other fitter. litter.
D. Floor and wall surfaces of bathrooms, kitchens,
and soiled utility rooms shall be constructed and maintained
to be impervious to water and to permit the floor and walls to
be easily kept in a clean condition.
E. Basements shall be of such construction that
they can be maintained in a dry and sanitary condition.
F. Main entrance areas shall open into general or
group function areas, usually living rooms. , not into private
or more specific function areas, i.e., bedrooms or quiet space
areas.
G. The group home facility must be handicapped
accessible. The entrance and circulation areas shall meet
appropriate American National Standards Institute
('A.N.S.I.') standards and all other State and Federal
standards.
H. One of the main points of entry for the facility
shall provide entry closet capacity for outdoor and foul
weather clothing.
L. Traffic to and from any room shall not be
through a bedroom bathroom, utility room or kitchen except
where a utility room, toilet room or bathroom opens directly
off the room it serves.
62.404 Plumbing:
The plumbing shall meet the requirements of
all municipal or county codes. Where there is no local law,
the provisions of the Division of Public Health Sanitary
Plumbing Code shall prevail.
62.405 Heating Ventilation and Air Conditioning:
A. The heating equipment for all living and
sleeping quarters shall be adequate, safe, protected, and
easily controlled. It shall be capable of maintaining the
temperature in each room used by residents at a minimum of
72°F (21°C). Portable heating devices shall not be used.
B. The group home must be adequately ventilated.
Air conditioning equipment must be adequate and capable of
maintaining the temperature in each room used by residents
between 72°F - 82°F.
62.406 Lighting:
Each room must be suitably lighted at all times
for maximum safety, comfort sanitation and efficiency of
operation. A minimum of 30 foot candles of light shall be
provided for all working and reading surfaces, and a
minimum of 10 foot candles of light on all other areas. This
includes hallways, stairways, storerooms and bathrooms.
62.407 Safety Equipment:
A. To prevent slipping, staircases shall have stair
treads and sturdy handrails.
B. Stairways, ramps and open-sided porches shall
have adequate lighting and handrails.
C. Hallways shall have night lights.
B. Floor surfaces, especially in heavy traffic areas
shall be durable, yet non abrasive and slip-resistant. Area
rugs on hand finished floors shall have a non skid backing.
Carpeting shall be maintained in a clean and slip-resistant
condition.
C. All doors for areas used by residents shall be
capable of being opened from both sides.
62.408 Bedrooms:
A. Each room shall be well lighted and well
ventilated. Each room shall be an outside room with at least
one (1) window opening directly to the outside. The
windowsill shall be at least three (3) feet above the floor and
above grade. Windows shall be constructed to allow a
maximum of sunlight and air, to eliminate drafts, and be easy
to open and close. Window area shall be no less than the
equivalent of one-tenth (1/10) of the floor space.
B. Bedrooms for one (1) person shall be at least
100 square feet in size; and bedrooms for more than one (1)
person shall provide at least 80 square feet of floor space per
person and be adequately spaced for resident care.
(Minimum room areas are exclusively of toilet rooms,
closets lockers, wardrobes, alcoves or vestibules). The
ceiling shall not be less than seven (7) feet from the floor.
C. Each bedroom is to have walls that go to the
ceiling and a door that can be closed.
D. Adequate electrical outlets shall be
conveniently located in each room and each room shall have
general lighting and night lighting. A reading light shall be
provided for each resident. At least one light fixture shall be
switched at the entrance to each bedroom.
E. Walls shall be finished in colors which are light
and cheerful.
F. E. Facilities shall ensure adequate privacy
and separation of sexes in sleeping arrangements except in
cases of husband or wife or other long term consensual
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1084 FINAL REGULATIONS
partnership arrangements.
G. F. If bedroom doors of residents are locked by
residents for privacy reasons, all persons on duty must carry
a master key for these locks.
H.G. Bedrooms shall accommodate no more
than two residents per room.
I. H. Bedrooms shall contain a separate bed of
proper size and height for each resident.
J. I. Each resident shall be provided with at
least one chair, chest-of-drawers, closet space with a clothes
rack and shelves, and a mirror.
K. Bedroom furniture and closets shall have
sufficient space to provide readily accessible storage for the
resident's personal possessions and clothes.
L. J. Bedroom windows shall have window
treatment(s) that close for privacy.
M. K. Bedrooms shall have closable doors that
open directly into corridors or Hallways Bedroom doors
shall open directly into corridors or hallways.
62.409 Bathrooms and Hand Washing Facilities:
A. At least one (1) window or mechanical
ventilation to the outside shall be provided. Floors shall not
be slippery.
B. Bathroom design shall bee handicapped
accessible and meet appropriate American National
Standards Institute (ANSI) Standards.
C. Toilets, showers, bathtubs and wash basins
shall provide accessible traffic patterns for all resident
rooms.
D. Toilets, bathing and toileting appliances shall
be equipped for use by multiple handicapped residents.
E. There shall be at least one toilet of appropriate
size for every four clients:
1. Each toilet shall be equipped with a toilet
seat and toilet tissue.
2. Toilet tissue shall be readily accessible at
each toilet.
3. 2.Separate toilet facilities with hand
washing must be provided for staff.
F. There shall be at least one hand washing sink
for every four clients. Hand washing facilities shall be
readily accessible to residents and staff. Hand washing
facilities shall be provided in each resident room or located
in an adjoining toilet room available at a reasonable distance
from the resident room.
G There shall be at least one tub or shower
equipped with grip bars and slip resistant surfaces for every
four residents. At least one shower must be handicapped
accessible without curbs.
H. Wash basins shall be available in or
immediately adjacent to bathrooms and toilet rooms.
I. Shower and tub areas shall be equipped with
grab bars and slip-resistant surfaces.
J. I. Bathroom areas shall be equipped with mirrors
for personal grooming. Mirrors shall be installed in such a
way to minimize the danger or breakage.
62.410 Day Room and Dining Area:
B. A. There shall be at least 30 square feet per
client within the house, not including client bedrooms, for
recreation, dining and program activities.
A. B.When a multi-purpose room is used for dining
and recreation, it shall have sufficient space to accommodate
all activities and to prevent interference with each other.
among activities.
C. Basement space may be used for recreation
activities if there are a minimum of two fire exits.
D. Appropriate leisure and mealtime furniture, as
well as comfortable seating shall be provided for each
resident.
62.411 Kitchen and Pantry/Storage Areas:
A. The kitchen shall provide sufficient space to
carry out proper food preparation and dishwashing
operations and shall have:
1 . Walls, floors and counters with coverings
which are easily cleaned and impervious to water to the level
of splash. Food contact surfaces, utensils and equipment
shall be of approved material, cleanable and shall be kept in
good repair.
2. At least one (1) refrigerator in proper
working order, capable of maintaining foods at 41°F, or
below, as determined in the warmest part of the refrigerator,
and one (1) freezing unit, in proper working order capable of
maintaining frozen foods in a continuous frozen state.
3. At least one (1) four burner range and one
(1) oven which are in proper working order.
4. A dishwasher shall be provided to
effectively remove food sod and soaps or detergents from
dishes, utensils and equipment used in food storage,
preparation and service. The dishwasher must be supplied
with hot water of 165°F. If a dishwasher is not used, dishes,
equipment, and utensils shall first be washed, next rinsed,
and then sanitized according to the following:
a. Immersion for at least one-half (1/2)
minute in clean, hot water of a temperature of at least 1700 F;
b. Immersion for at least one (1) minute
in a clean solution containing at least fifty (50) parts per
million of available chlorine as a hypochlorite (household
bleach or the equivalent) and having a temperature of at least
750F.
B. Cleaned dishes, utensils and equipment shall
be stored in a clean dry area protected from contamination
by splash, dust or other means.
62.412 Sanitation and Housekeeping:
A. All rooms and every part of the building shall
be kept clean, orderly and free of offensive odors.
B. Policy manuals shall be prepared and followed
which outline maintenance and cleaning procedures safe
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FINAL REGULATIONS 1085
storage of cleaning materials and pesticides and other
potentially toxic materials, and safe storage and handling of
linen and other matters which pertain to the comfort and
safety of the residents.
C. There shall be a minimum of three sets of
towels, washcloths, sheets and pillowcases for each resident
which shall be changed at least weekly or whenever soiled.
D. There shall be separate areas for storage of
1. Food items.
2. Cleaning agents, disinfectants and
polishes.
3. Poisons, chemicals and pesticides.
4. Eating, serving and cooking utensils.
E. A ventilated janitors closet must be provided
containing a service sink for storage and use of
housekeeping items. Chemicals and disinfection agents shall
be stored separate from resident care items and food.
F. Laundry processing must limit the handling of
laundry and must utilize universal precautions in the
handling of all soiled laundry.
1. On-site laundry processing area must
include:
a. One room with areas for receiving,
sorting, and washing of soiled linen. Washers must be
supplied with hot water of 160°F. Room must be property
ventilated with air flow under negative pressure in relation to
adjacent areas.
b. One room for drying and folding of
clean linen. Room must have hand washing immediately
accessible and be properly ventilated with air flow under
positive pressure in relation to adjacent areas.
2. Off-site laundry processing must comply
with the following:
a. A contract with a commercial laundry
must be obtained for the proper processing of soiled linen.
b. A property ventilated soiled linen
holding room (ventilated directly outside, with an air flow
under negative pressure) or a designated area in the soiled
utility room shall be provided for the storage of soiled linen.
c. A clean linen storage closet sufficient
for the storage of clean linen must be provided.
G. Soiled utility room for storage of regulated
infectious waste, sharps and disposal of body fluids must be
provided and must contain a work counter, hand washing
facilities, clinical sink or other bed pan cleaning device. This
room must be property ventilated directly outside with air
flow under negative pressure in relation to adjacent area (10
total air exchanges per hour).
62.413 Nursing Equipment and Supplies:
A. There shall be sufficient equipment and
supplies for nursing care to meet the needs of each resident.
It shall be the responsibility of the administrator to obtain
specific items required for individual cases.
B. Over the bed tables shall be provided for
residents who may not be able to be served a meal in the
dining room.
C. There shall be sufficient space and facilities
available for the proper cleansing, disinfection, sterilization
(if done on premises) and storage of nursing supplies and
equipment.
D. A call system shall be provided for each
resident. This system shall be accessible to each bed, each
toilet room bathroom and shower room used by residents.
E. The facility shall maintain a scale on the
premises which can accommodate the physical condition of
each resident.
F. The group home provider shall provide bag and
mask for assisted ventilation.
SECTION 62.5 FIRE SAFETY
62.501 Fire safety in group homes shall comply with
the adopted rules and regulations of the State Fire Prevention
Commission. Enforcement of Fire Regulations is the
responsibility of the State Fire Prevention Commission. All
applications for a license or renewal of a license must
include, with the application, a letter certifying compliance
by the Fire Marshal having jurisdiction. Notification of
noncompliance with the Rules and Regulations of the State
Fire Prevention commission shall be grounds for revocation
of a license.
62.502 There must be sufficient staff (a minimum of
two) awake and on duty at all times including the night shift,
to evacuate all residents in case of fire. More than two staff
shall be on duty at all times if the Fire Marshal determines
that more staff is required to evacuate residents timely in
case of fire. [However, should all residents be ambulatory
and capable of self-evacuation, only one nursing service
personnel shall be required on duty at all times.]
62.503 Residents and all staff on each shift shall be
trained in executing the evacuation plan.
62.504 Evacuation drills must be held at least quarterly
on each shift for all staff and residents.
SECTION 62.6 PERSONNEL/ADMINISTRATIVE
62.601 There must be a licensee of the facility. The
licensee must:
A. Exercise general policy, budget, and operating
direction over the facility;
B. Appoint the administrator of the facility who
shall have:
1. An associates degree or higher from an
accredited college or university plus three (3) years
experience in a health or human services field; or
2. A bachelor's degree or higher in a health,
business, or related field and a minimum of one year's work
experience in a health or human service field.
C. Insure all operations of the group home facility
are conducted in accordance with these regulations and
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1086 FINAL REGULATIONS
applicable Federal, state and local laws and requirements.
62.602 The licensee and the administrator shall be
responsible for complying with the regulations herein
contained. In the absence of the administrator, a qualified
substitute shall be authorized, in writing, to be in charge.
62.603 The administrator must be on duty and on site
in the home a minimum of four (4) hours a day, five (5) days
a week.
62.604 In addition to the staff engaged in the direct
care and treatment of residents, there must be sufficient
personnel to provide basic services such as: food service,
laundry, housekeeping and plant maintenance. Nursing
service personnel shall not be engaged in food service,
laundry, housekeeping and plant maintenance.
62.605 All personnel shall submit to and pass a
criminal background check and drug testing in accordance
with Title 16 Del. C., Chapter 11, Subchapter IV., Criminal
Background Checks and Mandatory Drug Testing.
62.605 62.606 No employee shall be less than 18
years of age and no person shall be employed who has been
convicted of a crime where the victim was a person
regardless of whether the crime was a felony or a
misdemeanor. disqualifying crime as set forth in the Criminal
Background Check regulations of the Division of Long Term
Care Residents Protection.
62.606 62.607 The facility shall have written
personnel policies and procedures that adequately support
sound resident care. Personnel records of each employee
shall be kept current and available upon request by the
Division of Public Health representatives and shall contain
sufficient information to support placement in the positions
to which assigned.
62.607 62.608 Minimum requirements for employee
physical examinations include:
A. Each person, including volunteers, who is
involved in the care of residents shall have a screening test
for tuberculosis as a prerequisite to employment and
annually thereafter. Either a negative intradermal skin test or
a chest x-ray showing no evidence of active tuberculosis
shall satisfy this requirement. No person, including
volunteers, found to have active tuberculosis in an infectious
stage shall be permitted to give care or service to residents.
B. A report of this test shall be on file at the
facility of employment.
A. The facility shall have on file results of
tuberculin tests performed annually for all employees,
including volunteers who are involved in the care of
residents. The tuberculin test to be used is the Mantoux test
containing 5 TU-PPD stabilized with Tween, injected
intradermally, using a needle and syringe, usually on the
volar surface of the forearm. Persons found to have a
significant reaction (defined as 10 mm of induration or
greater) to tests shall be reported to the Division of Public
Health and managed according to recommended medical
practice. A tuberculin test as specified, done within the
twelve months prior to employment or a chest x-ray showing
no evidence of active tuberculosis shall satisfy this
requirement for asymptomatic individuals. A report of this
skin test shall be kept on file.
B. Employees who do not have a significant
reaction to the initial tuberculin test (those individuals who
have less than 10 mm induration) should be retested within 7
- 21 days to identify those who demonstrate delayed
reactions. Tests done within one year of a previous test need
not be repeated in 7 -21 days.
C. No person, including volunteers, found to have
active tuberculosis in an infectious stage shall be permitted
to give care and service to residents.
62.608 62.609 Each applicant of a group home must
have a medical evaluation for tuberculosis before being
admitted to a group home. Any resident found to have active
tuberculosis in an infectious stage may not be admitted or
continue to reside in a group home.
62.609 62.610 The licensee shall approve written
policies and procedures pertaining to the services the group
home provides. Such policies and procedures should reflect
the philosophy and objectives of the home to provide on a
continuing basis good medical, nursing and psychosocial
care for all persons admitted to the home who require such
care, Such policies and procedures shall reflect the
requirements of Section 62.7 and include:
A. Admission, transfer and discharge policies
B. Categories of residents accepted or not
accepted
C. Physician services
D. Nursing services
E. Food and nutrition services including kitchen
sanitation, food handling and storage
F. Rehabilitative services
G. Pharmaceutical services
H. Diagnostic services
I. Housekeeping services
J. A written policy and procedure denoting care
of residents
1. In an emergency
2. During a communicable disease episode
3. In case of critical illness or mental
disturbance
K. Dental services
L. Social services
M. Resident activities, recreational, social,
religious
N. Clinical records
O. Fire and safety policies
P. Advance directives to include:
1. On admission, inform residents in writing
of their right 1) to accept or refuse treatment, 2) to give
written instructions concerning their care and 3) to appoint
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1087
an agent or proxy to make health cue decisions.
2. Documenting in medical records whether
or not residents have executed advance directives.
3. Ensuring compliance with requirements of
state law on advance directives.
4. Providing education for staff on issues
concerning advance directives.
Q. Infection control.
SECTION 62.7 SERVICES TO RESIDENTS
62.701 Group Home Services:
A. The group home, shall provide to all residents
the care deemed necessary for their comfort, safety
nutritional requirements and general well being
B. The group home shall have in effect a written
transfer agreement with one (1) or more hospitals, which
provides the basis for an effective working arrangement
under which inpatient hospital care, or other hospital
services, are available promptly to the facilities residents,
when needed.
C. The group home shall have a written contract
agreement for promptly obtaining required laboratory, x-ray
and other diagnostic services. These services may be
obtained from other facilities that meet applicable local, state
and Federal laws and regulations.
D. The group home shall have arrangements for
the provision of all other services and supplies to meet the
health and psychosocial needs of each resident. Such
arrangements may be other met by appropriately licensed
facility staff or by contractual agreements with organizations
or individuals licensed as applicable by the State of
Delaware.
E. The group home shall immediately inform the
attending or emergency physician, his designee, registered
nurse or contracting agency providing nursing services to the
resident, and if known, notify the resident's legal
representative, interested family member, or other parties as
designated by the resident when there is:
a) an accident involving the resident.
b) a significant change in the resident's
physical, mental, or psychosocial status (i.e., a deterioration
in health, mental or psychosocial status in either life
threatening conditions or clinical complications);
c) a need to alter treatment significantly (i.e., a
need to discontinue an existing form of treatment due to
adverse consequences, or to commence a new form of
treatment).
62.702 Medical and Nursing Services:
A. The group home shall provide for medical and
nursing services either directly or through contract
arrangements with organizations or individuals licensed as
applicable by the State of Delaware.
B. All persons admitted to a group home shall be
under the care of a licensed physician and shall be seen by
their attending physician at least every 30 days, unless
Justified otherwise and documented by the attending
physician.
C. All group homes shall arrange for one (1) or
more licensed physicians to be called in an emergency.
Names and phone numbers of these physicians shall be
posted in a conspicuous location.
D. All orders for medications, treatments, diets,
and diagnostic services shall be in writing and signed by the
attending physician. Telephone orders shall be
countersigned by the physician within fourteen (14) working
days.
E. All statements of medical treatment goals and
treatment plans shall be reviewed and updated as needed by
the attending physician, to insure continuing appropriateness
of the goals, consistency of management methods with the
goals and the achievement of progress towards the goals.
F. A progress note shall be written and signed by
the physician if he/she makes an on-site visit.
G. All telephone orders shall be accepted in the
group home by a licensed nurse and shall be counter signed
by the physician within five (5) working days.
H. G. The nursing services provided either
directly or through contractual arrangements include:
1 . An assessment of the resident upon
admission, by a registered nurse and development of written
resident care plans in conjunction with the physician and
other professionals as needed.
a) Individual written resident care plans
to meet the resident's needs shall be developed within seven
(7) days of admission and reviewed at least every 62 days by
registered nurses and other professional disciplines, as
required.
b) In the event that there is a significant
change in the resident's medical or psychosocial condition
the care plan shall be modified to meet the needs of the
resident.
2. The coordination and monitoring of
resident care and services with the physician and other health
professionals by a registered nurse who visits the group
home at least weekly.
3. A supervisory visit to the group home at
least every two weeks by a registered nurse who conducts an
assessment of the care provided by the certified nurse
assistants.
4. The administration of treatments and
medications by licensed nurses in accordance with the Nurse
Practice Act.
I. H. There must be a sufficient number of trained
personnel to provide for direct care of residents with a
minimum of two (2) nursing service personnel on duty at all
times. However, should all residents be ambulatory and
capable of self-evacuation, only one nursing service
personnel shall be required on duty at all times. Each nurse
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1088 FINAL REGULATIONS
assistant employed by the group home shall have met the
training and testing requirements for certification and be
registered in good standing on the Delaware Nurse Aide
Registry.
62.703 Infection Control:
A. Prevention and Control Services
The facility shall establish and implement an
infection prevention and control program. The Administrator
shall ensure the development and implementation of the
program.
The facility shall establish and implement
written policies and procedures regarding infection
prevention and control including, but not limited to:
1. Universal Precautions as established by
the Centers for Disease Control and Prevention (CDC).
1. 2. A system for investigating, reporting,
and evaluating the occurrence of all infections, diseases, or
conditions which are reportable to the Division of Public
Health that my be related to staff activities and procedures of
the facility;
2. 3. Notifiable diseases shall be reported
to the County Public Health Administrator;
3. 4. Care of residents with communicable
diseases;
4. 5. Policies and procedures for exclusion
from work and authorization to return to work for personnel
with communicable diseases;
5. 6. Surveillance techniques to minimize
sources and transmission of infection;
6. 7. Disinfection, cleaning and care
practices and techniques used in the facility including, but
not limited to the following:
a) Care of utensils, instruments,
solutions, dressings, articles and surfaces;
b) Selection, storage, use and disposition
of disposable and non-disposable resident care item;
c) Methods to ensure that sterilized
materials are packaged and labeled to maintain sterility and
to permit identification of expiration dates;
d) Procedures for care of equipment and
other devices that provide a portal of entry for pathogenic
micro-organisms;
e) Techniques to be used during each
resident contact including hand washing before and after
caring for a resident;
f) Criteria and procedures for isolation
of residents.
g) All personnel shall receive orientation
at the time of employment and annual in-service education
regarding the infection prevention and control program
B. Infectious Disease and Waste Removal
The facility shall establish and implement
policies and procedures for the collection, storage, handling
and disposition of all pathological and infectious wastes
within the facility, and for the collection, storage, handling
and disposition of all pathological and infectious wastes to
be removed from the facility, including, but not limited to
the following:
1. Needles and syringes and other solid,
sharp, or rigid items shall be placed in a puncture resistant
container and incinerated or compacted prior to disposal.
2. Needles and syringes shall be destroyed or
disposed of in a safe and proper manner by an infectious
waste hauler approved by the Department of Natural
Resources and Environmental Control.
3. Non-rigid items, such as blood tubing and
disposable equipment and supplies, shall be incinerated or
placed in double, heavy duty, impervious plastic bags and
disposed of by an infectious waste hauler approved by the
Department of Natural Resources and Environmental
Control.
4. Fecal matter and liquid waste, such as
blood and blood products, shall be flushed into, the sewage
system or otherwise disposed of in accordance with federal,
state and local standards or regulations.
5. All pathology specimens, tissue and waste,
including gross and microscopic tissue removed surgically
or by any other procedure and products of conception must
be disposed of in compliance with OSHA (Occupational
Safety and Health Administration), EPA (Environmental
Protection Agency), DNREC (Department of Natural
Resources and Environmental Control) and other state and
local standards covering the treatment of medical waste.
6. Collection, storage, handling and
disposition procedures of all pathological and infectious
wastes within the facility shall meet the of all state and
federal codes.
62.704 Medications:
A. All medication administered to residents shall
be ordered in writing, dated and signed by the attending
physician. All prescription medications shall be properly
labeled in accordance with Title 24 of the Delaware
Pharmacy Laws and Regulations. 24 Del. C., Chapter 25 and
the regulations of the Delaware Board of Pharmacy. The label
shall contain the following information:
1. The prescription number;
2. The date such drugs were originally
dispensed to the resident;
3. The resident's full name;
4. The brand or established name and
strength of the drug to the extent that it can be measured;
5. The physician's directions as found on the
prescription;
6. The physician's name;
7. The name and address of the dispensing
pharmacy or physician.
B. Medications may be self-administered or
administered in accordance with the Nurse Practice Act.
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FINAL REGULATIONS 1089
Those residents who, upon admission, are incapable of
self-administration or who become incapable of
self-administration will have the medications administered
according to the Nurse Practice Act.
C. The group home provider licensee shall
maintain a record of all medication provided to a resident
indicating time of day, type of medication, dose, route of
self-administration/administration, by whom given and any
reactions noted.
D. Medication Storage
1. Provisions for the locked storage of
medications shall be provided. Medication storage area shall
contain a work counter, refrigerator and hand sink. The key
to the medication storage must be in the possession of or
accessible only to personnel responsible for the distribution
for self-administration/administration of medications. If
secure storage of medications is provided in resident rooms
for those residents capable of self-administration the key to
the medication storage must be in the possession of the
resident.
a) No stock supplies of drugs except
those approved for the emergency drug kit and those
commonly available without prescription (non-legend
drugs), e.g., antacids, aspirin, laxatives, shall be kept in the
facility.
b) Prescription medication not requiring
refrigeration shall be kept in the original container stored in a
locked cabinet or drawer, and clearly labeled for the specific
resident. These medications shall be stored within the U.S.P.
recommended temperature range of 59 - 86°F unless the
manufacturer's labeling suggests otherwise.
c) Prescription medication requiring
refrigeration shall be stored in a separate and secure locked
container within the refrigerator. The temperature range
must be maintained within U.S.P. requirements.
d) Schedule II substances/prescriptions
shall be kept in separately locked, securely fixed boxes or
drawers in the locked medication cabinet; hence, under two
(2) locks.
Schedule II substances shall be
handled in the manner outlined by the State and Federal laws
and regulations. AD unused Schedule 11 substances shall be
returned to the pharmacist for disposition.
e) Internal medications shall be stored
separately from external medications.
2. The group home provider shall insure that
prescription medication is not used by other than the resident
for whom the medication was prescribed.
3. The group home provider is responsible
for maintaining an adequate supply of medication at all
times.
4. Prescription medication which is no longer
needed by a resident shall be disposed of by a physician,
pharmacist or other designee who must be a licensed medical
professional in accordance with Delaware Pharmaceutical
Board of Pharmacy Regulations. All unused portions of any
resident's discontinued or expired prescriptions shall be
immediately isolated and destroyed or returned to the
pharmacist or provider pharmacy supplying pharmaceutical
services within 72 hours. The appropriate notation of such
return or destruction, providing a quantity, description and
date on the resident's medical administration record shall be
prowled. The person performing the return or destruction
shall initial this document.
5. The facility may keep on the premises an
emergency drug kit with quantities of medications approved
by the Board of Pharmacy. These medications shall only be
used by licensed physicians or licensed nurses in an
emergency situation. Stocking of this kit shall be arranged
with a pharmacist who checks the contents after use and/or
periodically.
62.705 Food Service:
A. A minimum of three (3) meals or equivalent
shall be served in each twenty-four (24) hour period. Meals
shall be served at regular times comparable to normal
mealtimes in the community. There must not be more than a
fourteen (14) hour span between the evening meal and
breakfast.
B. Meals shall provide nutrients and calories for
each resident based upon compliance with current
recommended dietary allowances of the Food and Nutrition
Board of the National Academy of Sciences, National
Research Council, except as ordered by a physician.
C. Food preparation methods that conserve
nutrients shall be utilized. Excessive exposure to light,
prolonged storage, and prolonged cooking in a large quantity
of water shall be avoided.
D. Food shall be prepared so that it will have an
appetizing aroma and appearance. Food shall be held and
served at proper temperatures in accordance with the U.S.
Department of Health and Human Services! Food Code.
current Delaware Food Code.
E. Food shall be prepared in a form designated to
meet individual needs.
F. When residents refuse food served, substitutes
of similar nutritive value shall be offered.
G. Bedtime snacks shall be offered routinely to all
residents to the extent medical orders permit.
H. Diets and nutritional supplements shall be
saved as prescribed by the physician. Meal and supplement
intake shall be monitored by nursing service personnel and
recorded in each resident's clinical record.
I. A copy of a recent diet manual shall be
available for planning therapeutic menus and as a resource.
J. Menus shall be planned in advance and a copy
of the current week's menus shall be posted in the kitchen
and in a public area.
1. Portion sizes shall be listed on a menu in
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1090 FINAL REGULATIONS
the food service area.
2. The names of fruit, vegetables or starch
shall be specified on the menu (for example: orange juice,
green beans, rice).
3. All menus, both regular and therapeutic,
shall be approved by the dietitian.
K. Menus showing food actually served each day
shall be kept on file for at least one (1) month. When
changes in the menu are necessary, substitutions of similar
nutritive value shall be provided.
L. A three (3) day supply of food shall be kept on
the premises at all times.
M. Food shall be from approved sources. The use
of home-canned foods is prohibited.
N. M. A suspected occurrence of food poisoning
shall be reported immediately, by telephone, to the County
Public Health Administrator.
62.706 Nutrition Services
A. The facility must employ a dietitian directly or
through contractual arrangements, either full time, part time
or on a consultant basis, and provide on-site services to
residents as needed.
B. The immediate nutritional needs of residents
shall be addressed upon admission with consultation by the
dietitian as needed. A comprehensive nutritional assessment
which includes height and weight and an evaluation of
calories, protein and fluid requirements shall be completed
by the dietitian and updated and reviewed as indicated by the
resident's condition.
C. The facility shall obtain residents' weights
monthly or more often as needed.
D. Weight changes of 5 pounds or 5% of body
weight in one month shall be reported to the physician and
dietitian.
62.707 Abuse, Neglect or Mistreatment of Residents
A. The group home A" follow all requirements set
forth in subchapter III of the Delaware Code titled Abuse,
Neglect or Mistreatment of Patients or Residents (16 Del.C.
§ 1131. et seq.). The facility shall report incidents of abuse,
neglect or mistreatment of residents to the Department of
Health and Social Services as set forth in the Rules and
Regulations Governing Delaware's Patient Abuse Law.
B. In addition the group home shall immediately
report to the Office of Health Facilities Licensing and
Certification alleged violations regarding abuse,
mistreatment, neglect, injuries of unknown origin and
misappropriation of property. These incidents shall be
thoroughly investigated by the group home and the results of
the thorough investigation shall be reported to the Office of
Health Facilities Licensing and Certification, within 5 days
of the alleged incident.
62.708 62.707 Records and Reports:
A. There shall be a separate clinical record
maintained at the group home on each resident which shall
be a chronological history of the resident's stay in the group
home. Each resident's records shall contain:
1. Admission record: Including resident's
name, birth date, home address prior to entering the facility,
identification numbers, such as social security, Medicaid,
Medicare, date of admission, physician's name, address and
phone number, admitting diagnosis, next of kin
(relationship, name, address and phone number).
2. History and physical examination:
Prepared by physician within seven (7) days of the resident's
admission. A summary and history which was prepared at
the hospital and the resident's physician examination which
was performed at the hospital, if performed within seven (7)
days prior to admission to the home, may be substituted.
Additionally, a record of an annual medical evaluation
performed by a physician must be contained in each
resident's file.
3. Statement of complete diagnosis and
prognosis.
4. Physician's orders shall include:
a) Complete list of medications,
medication name, dosage, frequency and route of
administration, indication for usage;
b) If "as needed" medications are
ordered, the reason why the resident takes the medication
and the maximum dose in a 24 hour period;
c) Treatments, diets and level of
permitted activity.
5. Physician's progress notes with each
on-site visit. If medical services are obtained in the
physician's office a summary including diagnosis and
prognosis, changes in medication mid therapy and necessary
follow-up will be provided.
6. Nursing notes, shall be recorded by each
person providing professional nursing services to the
resident, indicating date, time, scope of service provided and
signed by the provider of the service.
7. Medication sheets: Including medication,
name, dosage, frequency and route of administration, space
for the resident to record his/her initials if medication is
self-administered or for recording the initials of the medical
professional authorized and responsible for administration of
the medication.
8. Inventory of personal effects both upon
admission and at time of transfer and/or discharge.
9. For discharged or transferred residents, the
records shall contain the following:
a. A discharge summary containing the:
1. Date and time of discharge,
2. Place to which the resident was
discharged;
3. Condition of resident at time of
discharge.
b. The resident's written consent for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1091
discharge or discharge order from the resident's physician.
c. Copies of the name of the resident's
guardian, powers of attorney and advance directives, if
applicable.
10. Special service notes: e.g., social services
and activities, results of special consultations, requested by
the physician such as physical therapy, dental and podiatry if
services me provided in the group home.
11. Nutrition progress notes.
12. Copy of an interagency transfer form if the
resident was admitted from an acute care facility or any other
long term care facility or transferred to an acute care or other
type of health care facility.
13. Advance Directives: any written advance
directives signed by residents shall accompany the resident
upon transfer to another health care facility.
14. 13. Documentation of the percentage of
intake for each meal.
15. 14. Recording of weights obtained
including the date the weight was obtained.
16. 15. Laboratory work, special tests, and
x-rays ordered by the physician.
B. Records shall be available at all times to legally
authorized persons; otherwise, such records shall be held
confidential.
C. Clinical records shall be retained for five (5)
years from the date of discharge.
D. Should the facility cease operation, all resident
records shall be transferred with the resident to another home
or facility, with written receipt acknowledging the transfer
which shall be signed by the resident and the new
administrator.
E. If a facility ceases operation, arrangements,
shall be made to retain discharge records for five (5) years
following closure.
F. Incident/accident reports, with adequate
documentation &hall be completed for each accident, injury
or unusual incident. Adequate documentation shall consist of
the name of the resident(s) involved, a description of the
accident, injury or unusual incident, a list of the parties
involved, the nature of any injuries, the location of the
accident (on the premises or off), time of injury, disposition
of resident(s) and notice that physician and family have been
contacted. Incident/accident reports shall be kept on file in
the facility. A copy shall be included in the residents clinical
record. Incident reports, with adequate documentation, shall
be completed for each incident. Adequate documentation
shall consist of the name of the resident(s) involved; the
date, time and place of the incident; a description of the
incident; a list of other parties involved, including witnesses;
the nature of any injuries; resident outcome; and follow-up
action, including notification of the resident's representative
or family, attending physician and licensing or law
enforcement authorities when appropriate.
Incident reports shall be kept on file in the
facility. Reportable incidents shall be communicated
immediately to the Division of Long Term Care Residents
Protection, 3 Mill Road, Suite 308, Wilmington, DE 19806;
phone number: 1-877-453-0012; fax number: 1-877-264-
8516.
SECTION 62.8 WAIVER OF STANDARDS
62.801 Specific standards may be waived by the
Division of Public Health provided that each of the
following conditions are met:
1. A. Strict enforcement of the standard would
result in unreasonable hardship on the group home.
2. B. The waiver is in accordance with the
particular needs of any resident of the group home.
3. C. A waiver must not adversely affect the
health, safety, welfare, or rights of any resident of the group
home.
4. D. The request for a waiver must be made to
the Division of Public Health in writing by the group home
with substantial detail justifying the request.
5. E. Prior to filing a request for a waiver, the
facility shall provide written notice of the request to each
resident, each court-appointed guardian of any resident, each
person appointed in the durable power of attorney of any
resident, each person appointed to be any resident's health
care agent under the Death with Dignity Act and each spouse
and adult child of any resident. Prior to filing a request for a
waiver, the facility shall also provide written notice of the
request to the Office of Long Term Care Ombudsman. The
notice shall state that the recipient has the right to object to
the waiver request in writing to the Division. of Public
Health.
Upon filing the request for a waiver, the group
home shall submit to the Office of Health Facilities
Licensing and Certification a copy of the notice and a sworn
affidavit outlining the method by which the requirement was
met. The facility shall maintain proof of the method by
which the requirement was met by the group home for the
duration of the waiver and make such proof available upon
the request of the Division of Public Health or its agents.
6. F. A waiver granted by the Division of Public
Health is not transferable to another group home in the event
of a change of ownership.
7. G. A waiver shall be granted for a period up
to the term of the license.
APPENDIX A
These regulations are adopted by the Director,
Division of Public Health pursuant to 16 Del. C. 1121,
1122, 1123.
PATIENT'S BILL OF RIGHTS
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1092 FINAL REGULATIONS
RESPECT
1. Every patient and resident shall be treated with
consideration, respect and full recognition of their dignity
and individuality.
2. Every patient and resident shall receive care,
treatment and services which are adequate and appropriate.
SERVICES AND PAYMENT
3. Each patient and resident and their families shall,
prior to or upon admission, and during their stay, receive a
written statement of the services provided by the facility
including those required to be offered on an n as-needed"
basis.
A. They shall also receive a statement of related
charges, including any charges for services not covered
under Medicare, Medicaid or the facility's basic per them
rate.
B. Upon receiving such statement, the patient and
his representative shall sign a written receipt which shall be
retained by the facility.
TREATMENT
4. Each patient shall receive from the attending
physician or resident physician of the facility, in lay terms,
complete and current information regarding his diagnosis,
treatment and prognosis, unless medically inadvisable.
5. Each patient and resident:
A. Shall participate in the planning of their
medical treatment;
B. May refuse medication or treatment;
C. Shall be informed of the medical consequences
of all medication and treatment alternatives; and
D. Shall give prior informed consent to
participation in any experimental research, which shall be
verified by his signature and the signature of a family
member or representative.
6. The facility shall see to it that the name, address
and telephone number of the patient or resident's physician is
readily accessible to them at their bedside.
7. Each patient and resident's medical care program
shall be conducted discreetly and in accordance with the
patient's need for privacy.
A. Persons not directly involved in patient care
shall not be present during medical examinations, treatment
and case discussion.
B. Personal and medical records shall be treated
confidentially; shall not be made public without the consent
of the patient or resident; shall not be released to any person
inside or outside the facility who has no demonstrable need
for such records.
8. Every patient and resident shall be free from mental
and physical abuse and also from chemical and physical
restraints, unless authorized by a physician according to
clear and indicated medical requirement.
COMMUNICATIONS
9. Every patient and resident shall receive from the
Administrator or staff of the facility a courteous and
reasonable response to his requests.
10. Every patient and resident shall be provided with
information as to any relationships of the facility to other
health care facilities as far as the patient's care is concerned.
11. To maintain reasonable continuity of care, every
patient and resident at the least shall be informed of the
availability of physicians and appointment times.
12. Every patient and resident may associate privately
with people and groups of his own choice at any reasonable
hour.
A. May send and receive mail promptly and
unopened.
B.
telephone where he may speak privately.
Shall have access to any reasonable hour to a
C. Shall have access to writing instruments,
stationery and postage.
CONTROL OF FINANCIAL AFFAIRS
13. Each patient and resident has the right to manage
his own financial affairs.
A. If, by written request, the facility manages the
patient's financial affairs, it shall have available for
inspection a monthly accounting and shall furnish a quarterly
statement upon request to the patient or a designated
representative.
B. The patient and resident shall have unrestricted
access to such accounts at reasonable hours.
PRIVACY
14. If married, every patient and resident shall enjoy
privacy in visits by his spouse and, if both reside in the
facility, they shall be allowed to share a room, unless
medically contraindicated.
15. Every patient and resident has the right of privacy
in their room and the facility's staff shall respect this right by
knocking on the door before entering the room.
GRIEVANCES
16. Every patient and resident has the right, personally,
or through others, to present grievances to the Division of
Aging, the Ombudsman or to others.
A. There shall be no reprisal, restraint,
interference, coercion or discrimination of the patient as a
result of such grievance or suggestion.
B. Any alleged violation of any of the provisions
of these Rules and Regulations should be presented orally or
in writing and forwarded to the attention of the Ombudsman.
C. The Ombudsman shall consult with the
complainant to determine if he/she wishes to pursue an
investigation. If the complainant wishes to pursue the matter,
the Ombudsman shall work closely with the complainant and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1093
the institution to resolve the matter. In any case, the
confidentiality of the complainant shall not be revealed
without his/her consent.
D. on completion of the investigation, the
Ombudsman shall report the findings to the complainant and
with the complainant's consent to the facility wherein the
complaint originated.
E. If the grievance is not resolved at the end of the
investigation by the Ombudsman, the grievance findings
shall be forwarded to the State Board of Health for
appropriate action after obtaining the consent of the
complainant.
PERSONAL CHOICE/PERSONAL PROPERTY
17. A patient or resident shall not be required to
perform services for the facility.
18. Every patient and resident shall have the right to
retain and use their personal clothing and possessions where
reasonable and shall be entitled to have security in their
storage and use.
TRANSFERS/DISCHARGES
19. No patient or resident, shall be transferred or
discharged from a facility except for the following:
A. For medical reasons;
B. For the patient's own welfare or the welfare of
the other patients; and
C. For non-payment of justified charges.
20. If good cause exists, the patient or resident shall be
given 30 days advance notice of the proposed action and the
reasons for the action and may request an impartial hearing.
In emergency situations, such notice need not be given.
21. If a hearing is requested, it shall be held within ten
(10) working days of the request. The hearing shall be
conducted by the Division of Public Health. Hearing officers
could include:
A. Nursing Home Ombudsman;
B. A staff member of the advocacy section,
Division of Aging;
C. A physician from the Division of Public
Health, not employed by a hospital operated by the Division.
D. The licensure program director for the type of
home involved.
The Deputy Attorney General for the Division
of Public Health may attend as legal officer in these
hearings.
22. If the hearing determines in favor of the patient, the
home shall be instructed to comply. If the home refuses to
comply, the matter will be referred to the Attorney General's
Office to see if further action is called for or permissible
under the law.
DEVOLUTION OF RIGHTS
Where consistent with the above rights, all rights,
particularly as they pertain to a patient adjudicated
incompetent, a patient determined to be medically
incompetent by his attending physician or a patient unable to
communicate, shall devolve to that patient's next of kin,
guardian, representative, sponsoring agency or
representative payee (except where the facility is the
representative payee).
NOTICE - AWARENESS OF RIGHTS
I. These provisions shall be posted conspicuously in a
public place in each facility.
II. Copies are to be furnished to the patient or resident
upon admission and to all current patients and residents and
next of kin, guardian, representative, sponsoring agency or
two representative payee.
III. Receipts for the statement signed by the above
parties shall be retained in the facilities files.
Revised May 27, 1982
APPENDIX B
Notifiable Diseases
1. Acquired Immune Deficiency Syndrome41. Rubella
2. Amebiasis 42. Rubella, Congenital
Syndrome
3. Anthrax 43. Salmonellosis
4. Botulism 44. Shigellosis
5. Brucellosis 45. Smallpox
6. Campylobacteriosis 46. Syphilis
7. Chancroid 47. Tetanus
8. Chlamydia trachomatis infections48. Toxic Shock
Syndrome
9. Cholera 49. Trichinosis
10. Condylomata acuminate 50. Tuberculosis
11. Diphtheria 51. Tularemia
12. Encephalitis 52. Typhoid Fever
13. Foodborne Disease Outbreaks53. Typhus Fever
14. Giardiasis 54. Vaccine Adverse
Reactions
15. Gonococcal Infections 55. Waterborne Disease
Outbreaks
16. Granuloma Inguinale 56. Yellow Fever
17. Hansen's Disease (Leprosy)
18. Hepatitis (Viralall types)
19. Herpes
20. HistoplasmosisAlso, any unusual disease and
21. Human Immunodeficiency Virus (HIV)adverse reaction
to vaccine.
22. Influenza
23. Lead Poisoning
24. Legionnaires Disease
25. Leptospirosis
26. Lyme DiseaseCounty Health Offices:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1094 FINAL REGULATIONS
27. Lymphogranuloma Venereum.
28. Malaria New Castle County 9958632
29. Measles
30. Meningitis (Bacterial) Kent County7395305
31. Meningitis (Aseptic)
32. Meningococcal Disease (Other)Sussex County8565355
33. Mumps
34. Pertussis
35. Plague
36. Poliomyelitis
37. Psittacosis
38. Rabies (man, animal)
39. Reye's Syndrome
40. Rocky Mountain Spotted Fever
PART II
APPENDIX A
Notifiable Diseases
Acquired Immune Deficiency Malaria
Syndrome (S) Measles(T)
Anthrax (T) Meningitis (all types
Botulism (T) other than meningoccal)
Brucellosis Meningococcal
Campylobacteriosis infections (all types) (T)
Chancroid (S) Mumps (T)
Chlamydia trachomatis infections(S)Pelvic Inflammatory
Cholera Disease (resulting from
Cryptosporidiosis gonococcal and/or
Cyclosporidiosis chlamydial infections) (S)
Diphtheria (T) Pertussis (T)
E. Coli 0157:H7 infection (T) Plague (T)
Encephalitis Poliomyelitis (T)
Ehrlichiosis Psittacosis
Foodborne Disease Outbreaks (T) Rabies (man, animal)(T)
Giardiasis Reye's Syndrome
Gonococcal infections (S) Rocky Mountain
Granuloma Inguinale (S) Spotted Fever
Hansen's Disease (Leprosy) Rubella (T)
Hantavirus infection (T) Rubella (congenital)(T)
Hemolytic uremic syndrome (HUS)Salmonellosis
Hepatitis A (T) Shigellosis
Hepatitis B (S) Smallpox (T)
Hepatitis C & unspecified Streptococcal disease
Herpes (congenital) (S) (invasive group A)
Herpes (genital) (N) Streptococcal toxic
Histoplasmosis shock syndrome (STSS)
Human Immunodeficiency Syphilis (S)
Virus (HIV) (N) Syphilis (congenital) (T)
Human papillomavirus Tetanus
(genital warts) (N) Toxic Shock Syndrome
Influenza (N) Trichinosis
Lead Poisoning Tuberculosis
Legionnaires Disease Tularemia
Leptospirosis Typhoid Fever (T)
Lyme Disease Vaccine Adverse
Lymphogranuloma Venereum (S) Reactions
Varicella
Waterborne Disease
Outbreaks (T)
Yellow Fever (T)
Also, any unusual disease and County Health Offices:
adverse reaction to vaccine New Castle County995-8632
Kent County 739-5305
Sussex County856-5355
(T) report by rapid means
(N) report in number only when so requested
For all diseases not marked by (T) or (N):
(S) - sexually transmitted disease, report
required in 1 day
Others - report required in 2 days
APPENDIX B
DRUG RESISTANT ORGANISMS REQUIRED TO BE
REPORTED
Staphylococcus aureus intermediate or resistance to
Vancomycin (MIC > 8 ug/ml)
Streptococcus pneumoniae drug resistant, invasive disease
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services / Food
Stamp Program initiated proceedings to amend policies to
implement policy changes to the following section of the
Division of Social Services Manual: Section 9089, regarding
Delaware's A Better Chance (DABC) and/or General
Assistance (GA) Food Stamp Households. Summary of
change: removes language about shortening of certification
periods, which are no longer allowed and corrects policy
number change from 7004.3 to 9089. This rule implements
several provisions of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (PRWORA) and
amended by the Omnibus Consolidated Appropriations Act
of 1997 (OCAA), the Balanced Budget Act of 1997 (BBA),
and the Agricultural Research, Extension and Education
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1095
Reform Act of 1998 (AREERA). The Department's
proceedings to amend its regulations were initiated pursuant
to 29 Delaware Code Section 10114 and its authority as
prescribed by 31 Delaware Code Section 512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the September, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by September 30, 2001 at which time the
Department would receive information, factual evidence and
public comment to the said proposed changes to the
regulations.
No written or verbal comments were received relating to
this proposed rule
Findings of Fact:
The Department finds that the proposed changes as set
forth in the September, 2001 Register of Regulations should
be adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulation related to the Food Stamp Program Reporting
Requirements for Delaware's A Better Chance and/or
General Assistance Households is adopted and shall be final
effective November 10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
[7004.3] [9089] DABC and/or GA Food Stamp Households
[273.12(f)]
DABC and/or GA households have the same reporting
requirements as any other food stamp households. Whenever
an DABC and/or GA household reports a change,
adjustments must be made in the household's eligibility
status or allotment for the months determined appropriate
given the household's budgeting cycle.
Notify households whenever their benefits are altered as
a result of changes in the DABC and/or GA benefits, or
whenever the food stamp certification period is shortened to
reflect changes in the household's circumstances. If the
certification period is shortened, the household's certification
period must not end any earlier than the month following the
month in which DSS determines that the certification period
should be shortened, allowing adequate time to send a notice
of expiration and for the household to timely reapply. If the
DABC and/or GA benefits are terminated but the household
is still eligible for food stamp benefits, advise household
members of food stamp work registration requirements, if
applicable, as their First Step registration exemption no
longer applies.
Whenever a change results in the reduction or
termination of a household's DABC and/or GA benefits
within its food stamp certification period, and DSS has
sufficient information to determine how the change affects
the household's food stamp eligibility and benefit level, take
the following actions:
• If a change in household circumstances requires
both reduction or termination in the DABC and/or
GA payment and a reduction or termination in food
stamp benefits, issue a single notice of adverse
action for both the DABC and/or GA and food
stamp actions. If the household requests a fair hearing
within the period provided by the notice of
adverse action, continue the household's food stamp
benefit on the basis authorized immediately prior to
sending the notice. If the fair hearing is requested
for both programs' benefits, conduct the hearing
according to DABC and/or GA procedures and
timeliness standards. The household must reapply
for food stamp benefits if the food stamp certification
period expires before the fair hearing process is
completed. If the household does not appeal, make
the change effective in accordance with the procedures
in DSSM 9085.2.
• If the household's food stamp benefits will be
increased as a result of a reduction or termination of
DABC and/or GA benefits, the household's food
stamp benefits must continue at the previous basis.
If the household does not appeal, make the change
effective in accordance with the procedures specified
in DSSM 9085.2, except calculate the time limits
for action from the date the DABC and/or GA
notice of adverse action period expires.
Whenever a change results in the termination of a
household's DABC and/or GA benefits within its food stamp
certification period, and DSS does not have sufficient
information to determine how the change affects the
household's food stamp eligibility and benefit level (such as
when an absent parent returns to a household, rendering the
household categorically ineligible for DABC and/or GA, and
DSS has no information on the income of the new household
member), take the following action:
1) Where a DABC and/or GA notice of adverse
action has been sent, wait until the household's notice of
adverse action period expires or until the household requests
a fair hearing, whichever occurs first. If the household
requests a fair hearing and its DABC and/or GA benefits are
continued pending the appeal, the household's food stamp
benefits will be continued at the same basis.
2) If an DABC and/or GA notice of adverse action
is not required, or the household decides not to request a fair
hearing and continuation of its DABC and/or GA benefits,
send the household a Form 105 requesting the verification
needed to determine the household's continued food stamp
eligibility notice of expiration and that it must reapply if it
wishes to continue to participate. Explain to the household
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1096 FINAL REGULATIONS
that its certification period will expire at the end of the
month following the month the notice of expiration is sent
and that it must reapply if it wishes to continue to participate.
Explain to the household that its certification period is
expiring because of changes in its circumstances that may
affect its food stamp eligibility and benefit level. Give the
household at least ten (10) days to provide the necessary
verifications. Take the necessary action to adjust or
terminate the food stamps based on the rules regarding
processing reported changes per DSSM 9085.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services /
Medicaid/Medical Assistance Program initiated proceedings
to amend policies related to the Division of Social Services
Manual Sections 17170.2 and 17170.3. The first of two
changes cite 20 CFR 416.924 as a more specific rule for
children. The second change includes a statement of who
performs the disability rules. The Department's proceedings
to amend its regulations were initiated pursuant to 29
Delaware Code Section 10114 and its authority as prescribed
by 31 Delaware Code Section 512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the June, 2001 Delaware Register of Regulations,
requiring written materials and suggestions from the public
concerning the proposed regulations to be produced by June
30, 2001 at which time the Department would receive
information, factual evidence and public comment to the
said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule.
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the June, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations of Section 4913 Disabled Children's Program are
adopted and shall be final effective November 10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
17170 Section 4913 Disabled Children
Section 4913 of The Balanced Budget Act (BBA)
provides that children who were receiving SSI payments on
August 22, 1996, and who but for the enactment of the new
disability definition under § 211(a) of the Personal
Responsibility and Work Opportunity Act of 1996
(PRWORA), would continue to be paid SSI, are mandatory
categorically eligible for Medicaid. This provision is
effective for those children who lose their SSI payment on or
after July 1, 1997.
17170.1 Technical Eligibility
The child must meet all of the following
requirements:
(a) The child was being paid SSI on August 22,
1996. This includes children who, as of August 22, 1996,
were in current pay status, had received favorable or
partially favorable administrative decisions, or had a Zebley
appeal pending.
(b) The child's SSI payment stopped on or after
July 1, 1997.
(c) The decision to stop SSI payments was due to a
determination that the child does not meet the definition of
disability enacted on August 22, 1996, at § 211(a) of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996.
(d) The child would, except for the disability
determination described in (c), continue to be paid SSI.
A child, who was not receiving SSI on August 22, 1996,
is not protected by Section 4913. A child who loses SSI
after August 22, 1996, for a nondisability reason is also not
protected by Section 4913. If either of these two situations
occur, a redetermination of Medicaid eligibility for the child
under another eligibility group will be done.
17170.2 Disability Determination
The redetermination of disability will follow the
rules in 20 CFR 416.920-930 20 CFR 416.924 - 924e as in
effect on April 1, 1996. A contractor who is competent to
perform the redetermination of disability will be used.
17170.3 Continuing Disability Reviews
The rules in 20 CFR 416.990 20 CFR 416.994a as
published on April 1, 1996, will be used with the following
modifications to the frequency of review:
(a) Review disability after, at most, 18 months if
medical improvement is expected.
(b) Review disability after, at most, 3 years if
disability is not permanent but medical improvement cannot
be predicted.
(c) Review disability after, at most, 7 years if
disability is permanent.
A contractor who is competent to perform the
continuing disability reviews will be used.
17170.4 Financial Eligibility
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1097
Follow the SSI income and resource standards and
methodologies.
17170.5 Continued Eligibility
Medicaid eligibility for children covered under this
provision continues until the earlier of:
a) the child reaches age 18
b) the child no longer meets the criteria of the SSI
program for payment of benefits (other than the post August
22, 1996, definition of disability for children). A child who
ceases to meet the non-disability SSI eligibility criteria can
recover coverage under Section 4913 if the child again meets
the non-disability SSI criteria. However, a determination
that the child is no longer disabled under the pre-PRWORA
disability criteria will permanently bar the child from
protected coverage under Section 4913.
c) the child is not eligible under another Medicaid
eligibility group.
17170.6 Redetermination of Eligibility
A redetermination of the nondisability criteria is
required at least every 12 months.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature Of The Proceedings
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services /
Medicaid/Medical Assistance Programs initiated
proceedings to amend policies to implement changes to the
Division of Social Services Manual (DSSM). Changes in
policy from the current policy DSSM 17200, Disabled
Children Program to the new policy DSSM 25000,
Children's Community Alternative Disability Program
include the following:
• Statement of purpose of the program
• Eligibility criteria clarified
• Caregiver description provided
• Levels of care factors listed
• Definitions of specific level of care types
• Medical plan of care and costs determinations
• Cost effectiveness calculation
• Options when cost effectiveness exceed cost of
institutional care.
The Department's proceedings to amend its regulations
were initiated pursuant to 29 Delaware Code Section 10114
and its authority as prescribed by 31 Delaware Code Section
512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the September, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by September 30, 2001 at which time the
Department would receive information, factual evidence and
public comment to the said proposed changes to the
regulations.
One comment was received relating to this proposed
rule.
Summary of Information Submitted
The State Council for Persons with Disabilities (SCPD)
provided the following comment on the proposed regulation:
"SCPD strongly endorses the proposed regulations because
Council believes they are a major improvement over the
former standards. The proposed regulations now include the
following provisions:
1) eligibility approval predisposition in "close" cases
(Sec. 2050, second paragraph);
2) clear program eligibility criteria (Sec. 25100);
3) comprehensive list of factors influencing level of
care determination (Sec. 25250);
4) discrete definitions of each qualifying level of care
(Sec. 25300);
5) comprehensive list of mental health-related level of
care factors (Sec. 25300.5);
6) Division of Social Services' duty to reduce
environmental deficits to home care (Sec. 25400); and
7) emphasis on solicitation of input from multiple
medical, educational, and other sources (Sec. 25500)."
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the September, 2001 Register of Regulations should
be adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Medicaid/Medical Assistance Programs
related to the Children's Community Alternative Disability
Program are adopted and shall be final effective November
10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
17200 Disabled Children
Effective 7/1/86, Medicaid coverage is available for
certain disabled children who:
1. are age 18 and under who are living at home;
2. would be eligible, if in a medical institution,
for Medicaid and
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1098 FINAL REGULATIONS
3. require a level of care provided in a hospital,
skilled nursing facility, or intermediate care facility.
There must be medical documentation that it is
appropriate to provide care for the child outside of an
institutional setting, and the estimated amount which would
be expended by Medicaid for the individual while he or she
is living at home is not greater than the estimated amount
which would otherwise be expended by Medicaid for the
individual within an appropriate institution.
The medical documentation includes the
Comprehensive Medical Report (MAP 25), the Medical
Eligibility Fact Sheet (MAP 150), and the Attending
Physician's Certification (MAP 151). Estimated costs of
care are determined by the Medical Review Team based on
the information provided on the MAP 150.
Essentially, any child who is disabled enough to require
institutionalization may be eligible for Medicaid without
regard to parental income, resources or other health
insurance coverage. Effective 1/1/95, the child must have
gross income at or below 250% of the current SSI standard
and resources at or below the current SSI level.
17200.1 Application Process
Referrals are usually received by phone from
parents, social workers, physicians, etc. Medical forms are
sent to the primary physician to be used in the Level of Care
determination. An application form and face to face
interview must be completed. It is preferable (but not
required) for the child to be present at the interview. Home
visits can be made if the family cannot come into the office.
The face to face interview may be waived at the discretion of
the supervisor.
NOTE: Effective 1/1/96, there is no 3 month retroactive
coverage for children who, in the month of application, are
eligible for enrollment in the Diamond State Health Plan.
During the interview the worker obtains information for
the Social History and the Medical Cost Data form.
Information obtained during the interview and worker's
observations are sometimes critical in determining the
eligibility of the child. The worker should include in the
social history important factors that do not appear on the
medical form.
17200.2 Medical Eligibility
The DSS Medical Review Team will determine if
the level of care is approved or disapproved. They may
request additional information if a decision cannot be made
with the information submitted. For disabled children who
are not required to enroll in the Diamond State Health Plan
(managed care), the worker may request that the level of care
be approved effective three months retroactive from the
month of the application. The following information must
be submitted as a package to the Medical Review Team.
Form MAP 25: Comprehensive Medical Report
Form MAP 151: completed by the attending
physician to assure that home care is appropriate.
Form MAP 150: completed by the Medicaid
worker with the help of the family giving detailed analysis of
medical needs, current cost of medical care, and health
insurance coverage for those services.
17200.3 Financial Eligibility
If the child is receiving SSI there is no need to
apply for the Disabled Children's Program. This program
does not provide any additional medical services above those
received through SSI Medicaid.
All SSI regulations/policies and income and
resource methodologies apply except the deeming of
parental income and resources.
Consider only income and resources owned by the
child. Any income received for the benefit of the child is
considered owned by the child, i.e., child support, Social
Security benefits, interest, etc. Exclude 1/3 of the child
support payment amount before the income is included in the
eligibility determination.
Monthly income must be at or below 250% of the
current SSI standard. Resources owned by the child must be
at or below the SSI resource limit. They include but are not
limited to life insurance, bank accounts, U.S. savings bonds,
trust funds. See Long Term Appendix for income and
resource limits. (DSSM 20100.2 and DSSM 20300 )
If the total face value of all life insurance policies is
$1500 or less, disregard the insurance as a countable
resource. If the total face value of all life insurance policies
exceeds $1500, verify the cash surrender value and count it
toward the resource limit. Resources may also be designated
for burial.
See Long Term Care Section for more detailed
information on SSI disregards and methodologies for income
and resources.
17200.4 Redetermination of Eligibility
Redeterminations must be completed annually. The
redetermination must include a new determination of level of
care (MAP 150, MAP 25) by the Medical Review Team and
a detailed claims history for the preceding year showing
Medicaid expenditures.
25000 CHILDREN'S COMMUNITY ALTERNATIVE
DISABILITY PROGRAM (CCADP)
This program was formerly known as the Disabled
Children's Program and is based on 42 CFR §435.225.
25050 PURPOSE
The Children's Community Alternative Disability
Program (CCADP) is a Delaware Medicaid option that is
designed to serve children with significant disabilities. Such
children would otherwise qualify to be cared for in an
institutional setting. The State desires that this program
serve as many children as possible at home or in noninstitutional
settings as long as it can be done safely,
efficiently and economically. The best care for children who
would be eligible for this program is with the support and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1099
direction of involved parents or guardians. This care will
generally result from the active collaboration of DSS, and
multidisciplinary providers, and parents or guardians.
In general, any child whose disability profile meets
a designated level of care may be eligible for Medicaid
without regard to parental income, resources, or other health
insurance. Given the State's commitment to promoting
children's access to basic health care, any benefit of the
doubt concerning program qualification should be resolved
in favor of eligibility. To the extent eligibility is jeopardized
by safety concerns, DSS will act affirmatively to eliminate
or reduce unsafe conditions to an acceptable level through
Departmental and community resources. DSS recognizes its
responsibility to make a referral to a protective agency if
conditions so warrant.
25100 ELIGIBILITY
Medicaid eligibility is available to children who meet
ALL of the following seven (7) criteria established by
Federal regulation (42 CFR §435.225):
1. The child must be 18 years of age or younger
(under age 19).
2. The child's countable resources do not exceed the
SSI limit for a single individual described in DSSM §20300.
3. The child's countable income does not exceed
250% of the SSI benefit level.
4. The child's profile is consistent with the level of
care of a hospital, Skilled Nursing Facility (SNF),
Intermediate Care Facility (ICF), Intermediate Care Facility
for Mental Retardation (ICF/MR), or Intermediate Care
Facility Institution for Mental Disease (ICF/IMD).
5. The child must meet Supplemental Security Income
(SSI) medical disability standards codified at 42 U.S.C. §
1382c(a) (presumptively met if child with chronic condition
qualifies for SNF, ICF, ICF/MR, or ICF/IMD level of care).
6. It is appropriate to provide a comparable level of
care in an alternative setting (e.g. natural family home).
7. The estimated Medicaid cost of care in the
alternative setting is no higher than the estimated cost of the
comparable facility-based level of care.
25150 APPROVAL DURATION AND REVIEW
TIMETABLE
Approval of an initial application is generally
effective for a period not to exceed one year. Subject to
DSSM 14950 (6 month guaranteed eligibility) if the Division
is aware of the likelihood of a material change in financial or
medical status, initial approval may be for a shorter period.
Redetermination of eligibility is expected to occur
on at least an annual basis and may otherwise be prompted
by notice of a material change in financial or medical status.
Redetermination shall include a reassessment of whether the
child meets all seven eligibility criteria (DSSM 25100). If
a child manifests a chronic profile, the Division may utilize
abbreviated reassessment forms and rely on previous
evaluations that remain clinically valid.
25200 CAREGIVER QUALIFICATIONS
The primary person in charge of the care of a child,
usually a family member or a designated health care
professional meeting the following qualifications:
1. The individual must be willing to accept the
responsibility of the care of the child.
2. The individual must be trained and/or display
competence in the medical skill required by the child.
25250 GENERAL LEVEL OF CARE FACTORS
1. The assessment of whether a child's profile is
consistent with a qualifying level of care is influenced by
multiple considerations. Material criteria include the
following mental, physical, familial, and environmental
factors:
a. chronological and developmental age of
child;
b. nature and severity of disease or medical
condition(s);
c. symptomatology or functional limitations
attributable to disease or medical condition (s);
d. stability of disease process or medical
condition(s);
e. physical environment;
f. availability and profile of primary
caregiver(s);
g. potential for harm, regression, or
developmental delay in absence of services;
h. extent of assistance necessary for child to
engage in activities of daily living ("ADLs")
i. extent of monitoring or supervision
necessary to minimize potential for harm due to mental or
physical health risks (e.g. suicide; elopement; self injurious
behaviors; seizure); and
j. extent to which professional or specialized
personnel (e.g. nurse; therapist) are necessary to provide
monitoring, assistance, or services.
2. Since some debilitating diseases and medical
conditions (quadriplegia; profound mental retardation) are
highly correlated with a qualifying level of care, the Division
may adopt presumptive eligibility guidelines to expedite
processing of such applications.
25300 SPECIFIC LEVEL OF CARE STANDARDS
25300.1 DEFINITION OF INSTITUTIONAL
SETTING
An institutional setting is a residential placement
that provides room board and health related services, which
are supervised by a licensed practitioner. The setting has the
necessary professional personnel, equipment and facilities to
meet the health and functional needs of the child on a
continuing or repetitive basis and is authorized under State
law to provide such care.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1100 FINAL REGULATIONS
25300.2 DEFINITION OF HOSPITAL LEVEL OF
CARE
A hospital is an institutional setting that provides
medical, nursing and allied health care for acute or chronic
illnesses. Such a setting includes at least daily physician
intervention and the availability of around the clock
professional nursing care. A hospital may provide general
medical care or specialized care (e.g. psychiatric or
rehabilitative).
25300.3 DEFINITION OF SKILLED NURSING
FACILITY LEVEL OF CARE
Skilled nursing facility (SNF) is an institutional
setting, which provides skilled nursing or rehabilitation,
services for mental or physical conditions. Such a setting
includes availability of around the clock professional nursing
observation, assessment or intervention.
25300.4 DEFINITION OF INTERMEDIATE
NURSING FACILITY LEVEL OF CARE
Intermediate care nursing facility (ICF) is an
institutional setting in which nursing and allied health care
and support services are provided. Such services are
supervised by but not necessarily given by a licensed nurse.
25300.5 DEFINITION OF ICF/IMD LEVEL OF
CARE
An intermediate care facility for mental disease
(ICF/IMD) is a residential setting which offers
comprehensive clinical and support services to persons with
significant behavioral health disorders. Children who
qualify for an ICF/IMD level of care exhibit a severe,
complex, or chronic behavioral health disorder. Such
disorder must compromise age-appropriate functioning in
multiple areas and require frequent or intensive medical or
behavioral interventions (e.g. drug therapy; professional
counseling; behavior management techniques). Subject to
full consideration of factors itemized in Section DSSM
25250), the presence of the following disability-related
personal characteristics supports qualifications under an
ICF/IMD level of care:
a. impaired judgment or insight
b. disorientation to time, place, or person
c. memory impairment
d. perceptual or thinking disturbance
e. lack of self-regulation or impulse control
f. diminished capacity to focus, concentrate,
or maintain attention
g. propensity to engage in verbal or physical
aggression towards others
h. marked changes in mood or affect
i. marked withdrawal, isolation, or
depression
j. sleep disturbance
k. appetite disturbance with change in weight
l. marked difficulty in maintaining
interpersonal relationships
m. propensity to elope
25300.6 DEFINITION OF ICF/MR LEVEL OF
CARE
An intermediate care facility for the mentally
retarded (ICF/MR) is a residential setting which offers
comprehensive habilitative and support services to persons
with mental retardation or related conditions. Children who
qualify for an ICF/MR level of care exhibit significant
deficits in age-appropriate functioning in multiple domains.
As a consequence, they require frequent assistance or
supervision to competently or safely engage in activities of
daily living (ADLs). Subject to full consideration of factors
itemized in Section DSSM 25200, the presence of adaptive
behavior deficits in the following contexts supports
qualification under an ICF/MR level of care:
a. self care skills
b. domestic skills
c. community skills
d. self direction
e. social interaction
f. safety awareness
g. receptive and expressive communication
h. basic learning
i. co-occurrence of physical or behavioral
health disorder
j. co-occurrence of alcohol or substance
addiction or misuse
25400 APPROPRIATENESS OF COMMUNITYBASED
SETTING
Program eligibility is contingent upon a finding that
non-institutional care is appropriate and services are
available (DSSM 25100). The community-based setting
must meet the child's needs safely and effectively to be
appropriate. To fulfill this requirement, the Division will
assess both the physical and social environment within the
community-based setting. Given the State's strong
preference for non-institutional care of children, denial of
eligibility based on environmental deficits is disfavored. If
eligibility is jeopardized by environmental deficits, the
division will affirmatively attempt to eliminate or reduce
such deficits to an acceptable level through Departmental
and community resources.
25500 DETERMINING MEDICAL PLAN OF CARE
AND COSTS
During the application and redetermination process,
medical and social information is gathered from several
sources including the primary caregivers, primary care
practitioners, specialists and other health care providers, the
schools, Child Development Watch (Part C) and/or other
relevant sources. A listing of the services needed or
currently being provided is recorded indicating whether
there are ongoing costs (such as daily home health aides or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1101
one-time costs (durable medical equipment). The cost for
each are estimated as closely as possible and, to the extent
possible, costs paid or defrayed by other insurance or other
means of payment insurance settlement, donations, etc.) are
deducted from the cost cap. Since Medicaid is generally
payor of last resort [with exception of Individual with
Disabilities Education Act (IDEA) services], the assessor
may contact other potential payment sources to determine
potential coverage especially when it appears the child might
exceed the cost cap. Once the medical costs are computed
the entire packet of assessment information is reviewed by
the medial review team for the cost comparison and final
eligibility determination.
25600 COST EFFECTIVENESS CALCULATION
A determination of cost effectiveness for the Children's
Community Alternative Disability's Program must be made
using the following procedures.
25625 CALCULATION
A calculation is made of the total actual or
projected cost of all significant, recurring medical services
(home health aides & nurses, private duty nursing,
Prescribed Pediatric Extended Care, supplies, equipment and
therapies).
25650 ANNUALIZED COSTS CALCULATION
The annualized costs of any significant recurring
DME (e.g. specialized wheelchair or lift not included in
facility per diem rate) is added to the calculation in DSSM
25625.
25675 OTHER COSTS
All other costs, such as physician services,
pharmaceuticals, lab tests, x-rays, etc. are not part of medical
facility costs, so will not be considered in the cost
effectiveness determination except in cases where acute
hospitalization is the appropriate comparable level of care.
25700 COST DOES NOT EXCEED COMPARABLE
MEDICAL FACILITY CARE
The calculated cost in DSSM 25600 must not exceed
100% of comparable medical facility care. Comparable
rates to be used are defined in the following subsections.
A. If the child is determined to meet the hospital LOC,
the anticipated home services costs will be compared to the
current fiscal year inpatient hospital rate of the AI DuPont
Hospital for Children or alternate facility rate as determined
by the Medicaid Director.
B. If a child is determined to meet the skilled LOC, the
anticipated home services costs will be compared to the
current averaged rate of participating Delaware nursing
facilities that are caring for children under 18. A higher
comparative rate based on the current averaged rate for
children placed in subacute pediatric facilities may be
applied for children determined "superskilled" by the DSS
Medical Operation Administrator.
C. If a child is determined to meet ICF/MR/DD LOC,
the anticipated home service costs will be compared to the
current Stockley Center ICF/MR/DD rate or alternate facility
rate as determined by the Medicaid Director.
D. If a child is determined to meet the ICF/IMD LOC,
the anticipated home costs would be compared to the current
Terry Center rate or alternate facility rate as determined by
the Medicaid Director.
E. If a child is determined to meet an ICF LOC the
anticipated home services costs will be compared to the
current averaged rate of participating Delaware nursing
facilities that are caring for children under 18 years of age.
25800 COST EFFECTIVENESS EXCEEDS COST OF
INSTITUTIONAL CARE
When the cost effectiveness analysis shows that the cost
of care in the home will exceed the cost of comparable
institutional care, the parent or guardian will be offered a
choice of the following options.
A. The use of less costly alternatives (such as privately
contracting with LPNs or RNs for private duty nursing at a
lower cost than can be obtained through an agency,
purchasing refurbished, used equipment, etc.), or
B. The use of fewer units of service with assurances
from parent/guardian that the remainder of medically
necessary services will be provided by or paid for by other
means, or
C. The admission to an appropriate medical facility, or
D. The withdrawal of the application for this program.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-0042
RE: Proposed Regulation 24
(Control of Volatile Organic Compounds Emissions)
Section 11:
- Mobile Equipment Repair and Refinishing -
Date of Issuance: October 10, 2001
Effective Date of the Amendment: November 11, 2001
I. Background
On Wednesday, August 29, 2001, a public hearing was
held in the Priscilla Building Conference Room of DNREC
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1102 FINAL REGULATIONS
in Dover to receive comment on the proposed adoption of
Regulation 24 (Control of Volatile Organic Compounds
Emissions), Section 11 - Mobile Equipment Repair and
Refinishing of the Regulations Governing the Control of Air
Pollution. The proposed Regulation 24 - Section 11 - would
apply to any person who applies coatings to mobile
equipment, such as cars, trucks, and/or tractors for
beautification or protection. This amended regulation, if
adopted, establishes requirements for using improved
transfer efficiency coating and application equipment, as
well as spray gun cleaning techniques, and provides
minimum training standards in the proper use of equipment
and materials. The Department is proposing these
regulations to aid Delaware in attaining compliance with the
ground-level ozone standard set by the Environmental
Protection Agency (EPA). Regulations similar to the
aforementioned proposed Section 11 are being developed by
other States in the region as well. Proper notice of the
hearing was provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated October 5, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed adoption of Regulation No. 24, Section 11, and has
given careful and serious consideration to the written
comments provided by Safety-Kleen with respect to this
issue.
III. Order
It is hereby ordered that the proposed adoption of
Regulation No. 24, Section 11, be promulgated in final form
in accordance with the customary and established rulemaking
procedure required by law.
IV. Reasons
The adoption of Regulation 24, Section 11, will aid the
State of Delaware in attaining compliance with the groundlevel
ozone standard set by the Environmental Protection
Agency (EPA), and will assist the Department in furtherance
of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
Section 11 - Motor Vehicle Refinishing.
11/29/94
c. Applicability.
1. This Section applies to any source that applies
coatings in a motor vehicle refinishing operation.
2. This Section does not apply to sources applying
coatings to motor vehicle parts if the parts are not a
component of a vehicle or mobile equipment being coated at
a motor vehicle refinishing operation.
3. This Section does not apply to any coating
operation at a motor vehicle assembly plant.
4. Existing sources affected by this Section shall
comply with the provisions of this Section as soon as
practicable, but no later than April 1, 1996. New, modified,
or reconstructed sources affected by this Section shall
comply with the provisions of this Section upon startup.
5. Any facility that is currently subject to a state or
federal rule promulgated pursuant to the Clean Air Act
Amendments of 1977 by exceeding an applicability
threshold is and shall remain subject to those provisions.
d. Definitions. As used in this Section, all terms not
defined herein shall have the meaning given them in the
November 15, 1990 Clean Air Act Amendments (CAAA), or
in Section 2 of Regulation 24.
"Adhesion promoter" means a coating that is used to
facilitate the bonding of a primer or topcoat to surfaces such
as trim moldings, door locks, and door sills, where sanding is
impracticable, and on plastic parts and the edges of sanded
areas.
"Anti-glare/safety coating" means a coating that does
not reflect light.
"Assembly-line coating operation" means any
arrangement of people and machinery that applies a coating
finish in a series of successive specialized operations by
conveying the work along a slowly moving belt or track
from person to person. This definition does not include any
touch-up coating operations that occur once the equipment to
be coated has left the conveyor.
"As supplied" means the condition of a coating as
provided by the coating manufacturer, before it is mixed
with components such as dilution solvents and reactive
constituents to produce the coating, as applied.
"Basecoat/clearcoat system" (two-stage coating system)
means a topcoat system composed of a pigmented basecoat
portion and a transparent clearcoat portion [grams/liter (g/l),
pounds/gallon (lb/gal)].
The VOC content of basecoat/clearcoat systems shall be
calculated according to the following formula:
VOCbc/cc =
where:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1103
VOCbc/cc is the average VOC content as applied of the
basecoat/clearcoat system.
VOCbc is the VOC content as applied of any given
basecoat.
2VOCcc is two times the VOC content as applied of any
given clearcoat.
"Batch number" means the code number assigned to
each lot of coating, as supplied.
"Catalyst" means any chemical that is added to a
coating, as supplied, to speed up a chemical reaction.
"Coating category" means the class of coating as
specified in paragraph (c) of this Section.
"Controlled air-spray system" means a method of
spraying a coating, such as a high-volume, low-pressure
(HVLP) or low-volume, low-pressure (LVLP) spray system
that improves the transfer efficiency while maintaining the
air pressure of the spray-gun between 0.1 and 10 pounds per
square inch gauge (psig).
"Elastomeric material" means a coating that is specially
formulated for application over flexible parts, such as
elastomeric bumpers.
"Electrostatic application" means the application of
charged atomized paint droplets that are deposited by
electrostatic attraction.
"Fisheye remover" means a coating that is designed to
mask surface depressions in a coating film.
"Group I vehicles" means passenger cars, large/heavyduty
truck cabs and chassis, light/medium-duty trucks and
vans, and motorcycles.
"Group II vehicles and equipment" means public transit
buses and mobile equipment.
"Hardener" means an additive that is specifically
designed to promote a faster cure of an enamel finish.
"Large/heavy-duty truck" means any truck that has a
manufacturer's gross vehicle weight rating of over 10,000
pounds.
"Maximum volatile organic compound content or
maximum VOC content, as applied" means the highest VOC
content that will be obtained when a coating, as supplied, is
mixed according to any mixing instructions that have been
issued by the coating manufacturer, importer, or distributor.
"Mixing instructions" means the coating manufacturer's,
importer's, or distributor's specification of the quantities of
dilution solvents and/or reactive components that are added
to the coating, as supplied, to prepare the coating, as applied.
"Mobile equipment" means any equipment that is
physically capable of being driven or drawn upon a highway
including, but not limited to, the following types of
equipment: construction vehicles (such as mobile cranes,
bulldozers, concrete mixers); farming equipment (such as
wheel tractors, plows, and pesticide sprayers); hauling
equipment (such as truck trailers, utility bodies, and camper
shells); and miscellaneous equipment (such as street cleaners
and golf carts).
"Motor vehicle refinishing operation" means any
refinishing operations conducted on after-market
automobiles, motorcycles, and light/medium-duty trucks and
vans that are performed in auto body and repair shops,
production paint shops, new car dealer repair and paint
shops, fleet operation repair and paint shops, and in any
other facility which coats vehicles under the Standard
Industrial Classification (SIC) Code 7532 (Top, Body and
Upholstery Repair Shops and Paint Shops), including dealer
repair of vehicles damaged in transit. This definition does
not include refinishing operations for other types of mobile
equipment, such as farm machinery and construction
equipment.
"Multi-stage coating system" means a topcoat system
composed of three or more coatings including: pigmented
basecoat portions, semi-transparent midcoat portions, and
transparent clearcoat portions [grams/liter (g/l), pounds/
gallon (lb/gal)].
The VOC content of multi-stage coating systems shall
be calculated according to the following formula:
VOCms =
where:
VOCms is the average VOC content as applied of the
multi-stage coating system.
VOCbc is the weighted average VOC content as applied
of all basecoats.
VOCmc is the weighted average VOC content as
applied of all midcoats.
2VOCcc is two times the weighted average VOC
content as applied of all clearcoats.
"Original equipment manufacturer or OEM" means any
assembly-line manufacturer of automotive vehicles who
applies coatings to the vehicles prior to their shipment from
the manufacturing plant.
"Precoat" means a coating which is applied to bare
metal primarily to deactivate the metal surface for corrosion
resistance.
"Pretreatment wash primer" means any coating that
contains a minimum of 0.5 percent acid by weight and that is
applied directly to bare metal surfaces to provide corrosion
resistance and to promote adhesion of subsequent coating
layers.
"Primer-sealer" means any coating that is applied prior
to the application of a topcoat to provide corrosion
resistance, topcoat adhesion, and/or color uniformity and to
promote the ability of an undercoat to resist penetration by
the topcoat.
"Reducer" means any solvent that is used to thin
enamels.
"Refinishing" means the process of coating vehicles or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1104 FINAL REGULATIONS
their parts and components, including partial body collision
repairs, for the purpose of protection or beautification, that is
subsequent to the original coating applied in a coating
assembly line at the original equipment manufacturing plant.
"Refinishing coating" means a protective or decorative
substance that is applied in a thin layer to the surface of
passenger cars, light/medium-duty trucks, heavy-duty
trucks, heavy-duty truck cabs and chassis, vans, buses,
motorcycles, and mobile equipment, and is applied
subsequent to coatings that are applied in a coating assembly
line at the original equipment manufacturing plant.
"Specialty coating" means a coating which is necessary
due to unusual and uncommon job-performance
requirements. These coatings include, but are not limited to,
weld-through primers, adhesion promoters, uniform-finish
blenders, elastomeric materials, gloss flatteners, bright metal
trim repair, anti-glare/safety coatings, rubberized asphaltic
underbody coatings, impact resistant coatings and water
hold-out coatings.
"Spot repair" means a repair to a motor vehicle in which
the damaged area to be repaired is limited to only a portion
of any given panel so that an entire panel need not be
repaired.
"Spray booth" means any power-ventilated structure
that is designed to accommodate refinishing operations.
"Surface preparation product" means a product that is
used to remove wax, tar, grease, and silicone from a surface
to be refinished.
"Thinner" means any solvent that is used to reduce the
viscosity or solids content of a coating.
"Three/four-stage topcoat" means a topcoat that is
composed of a pigmented basecoat, a semi-transparent
midcoat, and a transparent clearcoat.
"Two-stage topcoat" means a topcoat that consists of a
pigmented basecoat and a transparent clearcoat.
"VOC content, less water and exempt compounds"
means the amount of VOCs, in grams (pounds), present in 1
liter (gallon) of coating, less the mass of any water or exempt
compounds in the coating, as determined using the
procedures described in paragraph (f) of this Section.
c. Standards.
1. Except as specified in paragraph (d) of this Section,
effective on April 1, 1996, any person who applies coatings
to Group I or Group II vehicles, or their parts and
components, may not use a coating, as applied, that exceeds
the VOC content specified in paragraph (c)(2) of this
Section.
2. Coating Standards
TABLE 1. MAXIMUM VOC CONTENT FOR COATINGS
AS APPLIED TO GROUP I VEHICLES
Coating Category Maximum VOC Content on April 1,
1996
Pretreatment 780 g/l (6.5 lbs/gal)
Precoat 660 g/l (5.5 lbs/gal)
Primer/Primer Surfacer 576 g/l (4.8 lbs/gal)
Primer Sealer 552 g/l (4.6 lbs/gal)
Topcoat 600 g/l (5.0 lbs/gal)
Three/four Stage 624 g/l (5.2 lbs/gal)
Topcoat
Specialty 840 g/l (7.0 lbs/gal)
g/l - grams per liter.
lbs/gal - pounds per gallon.
TABLE 2. MAXIMUM VOC CONTENT FOR COATINGS
AS APPLIED TO GROUP II VEHICLES
Coating Category Maximum VOC Content
on April 1, 1996
Pretreatment 780 g/l (6.5 lbs/gal)
Precoat 660 g/l (5.5 lbs/gal)
Primer/Primer Surfacer 336 g/l (2.8 lbs/gal)
Primer Sealer 420 g/l (3.5 lbs/gal)
Topcoat 420 g/l (3.5 lbs/gal)
Extreme Performance 744 g/l (6.2 lbs/gal)
Specialty 840 g/l (7.0 lbs/gal)
g/l - grams per liter.
lbs/gal - pounds per gallon.
3. All coating standards established in this Section
apply to coatings as applied at the application equipment,
after all viscosity adjustments have been made.
d. Alternative Controls.
1. In lieu of meeting the requirements of paragraph (c)
of this Section, the owner or operator of a facility subject to
any control requirements of this Section may comply with an
alternative control plan that has been approved by the
Department and the U.S. EPA.
2. Any owner or operator of a motor vehicle
refinishing operation subject to any control requirements of
this Section may comply by using a destructive device (such
as an incinerator) or a recovery device that achieves an
overall reduction in uncontrolled VOC emissions of at least
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1105
81 weight percent. A technical support document adequately
justifying the emission capture and control techniques and
complying with Appendix "A" and Appendix "D" of this
regulation, shall be submitted to the Department.
e. Compliance Certification.
1. To establish the records required under this Section,
the VOC content of each coating, as applied, may be based
on the manufacturer's technical information for compliant
coatings. The efficiency of each capture system and control
device shall be determined by the applicable test methods
and procedures specified in Appendix "B" and Appendix
"D" of Regulation 24.
2. By April 1, 1996, or upon startup of a new coating
operation or upon changing the method of compliance for an
existing subject coating operation, the owner or operator
shall certify to the Department that the coating operation is
or will be in compliance with the requirements of this
Section on and after April 1, 1996, or on and after the initial
startup date. Such certification shall include the following
information:
i. The name and location of the facility.
ii. The address and telephone number of the
person responsible for the facility.
iii. The identification of subject sources.
iv. The name and identification number, including
the manufacturer, of each coating as applied on each coating
operation.
v. The total volume of coatings purchased during
each calendar quarter and the VOC content of each.
vi. The time at which the facility's day begins if a
time other than midnight local time is used to define a day.
f. Test Methods. The appropriate test methods to be used
to determine VOC content of coatings are found in
Appendix "B" in Regulation 24; the emission capture,
destruction and removal efficiency, and monitoring
requirements are found in Appendix "D" in Regulation 24.
g. Recordkeeping and Reporting.
1. A person who owns or operates a motor vehicle
refinishing operation subject to this Section shall maintain
records of the following data:
i. The total volume of coatings purchased during
each calendar quarter and the VOC content of each.
ii. The total volume of specialty coatings
purchased during each calendar quarter and the VOC content
of each.
2. All records shall be maintained for at least five
years and made available to the Department upon request.
3. Data collection and maintenance shall commence
with the first quarter of calendar year 1996.
Section 11 - Mobile Equipment Repair and Refinishing.
[10/31/01 11/11/01]
a. Applicability.
1. This Section applies to any person who applies
coatings, for the purpose of protection and/or beautification,
to mobile equipment or mobile equipment components in the
State of Delaware, except:
i. The surface coating process at any automobile
assembly plant.
ii. Persons who do not receive compensation for
the application of the coatings.
iii. The application of coatings sold in nonrefillable
aerosol cans.
2. Any person subject to the requirements of this
Section shall be in compliance on or after October 31, 2003.
3. Any person who is currently subject to a state or
federal rule promulgated pursuant to the Clean Air Act
Amendments of 1977 by exceeding an applicability
threshold is and shall remain subject to those provisions.
4. Compliance with the requirements of this section
are in addition to all other state and federal requirements, to
include the requirements of 40 CFR 59, Subpart B, "National
Volatile Organic Compound Emission Standards for
Automobile Refinish Coatings".
b. Definitions. As used in this Section, all terms not
defined herein shall have the meaning given them in the
November 15, 1990 Clean Air Act Amendments (CAAA), or
in Section 2 of Regulation 24.
"Airless Spray" means a spray coating method in which
the coating is atomized by forcing it through a small nozzle
at high pressure. The coating is not mixed with air before
exiting from the nozzle opening.
"Electrostatic spray" means the application of charged
atomized paint droplets that are deposited by electrostatic
attraction.
"High Volume Low Pressure" or "HVLP" means a
method of spraying a coating, that improves the transfer
efficiency while maintaining the air pressure between 0.1
and 10 pounds per square inch gauge (psig).
"Mobile equipment" means any equipment that is
physically capable of being driven or drawn upon a highway
including, but not limited to, the following types of
equipment: automobiles; trucks, truck cabs, truck bodies;
buses; motorcycles; ground support vehicles, used in support
of aircraft activities at airports; construction vehicles (such
as mobile cranes, bulldozers, concrete mixers); farming
equipment (such as wheel tractors, plows, and pesticide
sprayers); hauling equipment (such as truck trailers, utility
bodies, and camper shells); and miscellaneous equipment
(such as street cleaners and golf carts).
c. Standards.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1106 FINAL REGULATIONS
1. Any person subject to the requirements of this
Section shall use only the following application techniques:
ii. Any non-atomized application technique (e.g.,
Flow/curtain coating, Dip coating, Roller coating, Brush
coating, Cotton-tipped swab application coating,
Electrodeposition coating, etc.)
ii. High Volume Low Pressure (HVLP) spraying;
iii. Electrostatic spray;
iv. Airless spray;
v. Any other coating application technique that
the person has demonstrated and the Department has
determined achieves emission reductions equivalent to
HVLP or electrostatic spray.
2. The following are exempt from the requirements of
paragraph (c)(1) of this Section:
i. The use of airbrush application methods for
graphics, stenciling, lettering, and other identification
markings;
ii. The applications of coatings to cover finish
imperfections equal to or less than 1 inch in diameter.
3. Spray guns used to apply coatings to mobile
equipment or mobile equipment components shall be
cleaned by one of the following methods:
i. Use of an enclosed spray gun cleaning system
that is kept closed when not in use.
ii. The unatomized discharge of solvent into a
paint waste container that is kept closed when not in use.
iii. The disassembly of the spray gun and cleaning
in a vat that is kept closed when not in use.
iv. The atomized spray into a paint waste
container that is fitted with a device designed to capture
atomized solvent emissions.
4. Any person subject to the provisions of this Section
shall implement the following housekeeping and pollution
prevention measures:
i. Fresh and used coatings, solvent, and cleaning
solvents shall be stored in non-absorbent, non-leaking
containers. The containers shall be kept closed at all times
except when filling or emptying.
ii. Cloth and paper, or other absorbent applicators,
moistened with coatings, solvents, or cleaning solvents shall
be stored in closed, non-absorbent, non-leaking containers.
iii. Handling and transfer procedures shall
minimize spills during the transfer of coatings, solvents, and
cleaning solvents.
5. Any person subject to the requirements of this
Section shall be trained in the proper use and handling of
coatings, solvents and waste products in order to minimize
the emission of air contaminants.
i. Proof of training for any person subject to the
requirements of this Section shall be maintained on the
facility premises.
ii. Acceptable forms of training include
equipment or paint manufacturer's seminars, classes,
workshops, or any other training approved by the
Department.
DIVISION OF AIR & WASTE MANAGEMENT
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-003
RE: Proposal to Amend Regulation 24
(Control of Volatile Organic Compound Emissions),
- Section 33: Solvent Cleaning and Drying -
Date of Issuance: September 21, 2001
Effective Date of the Amendment: November 11, 2001
I. Background
On Tuesday, August 28, 2001, a public hearing was held
in the DNREC Auditorium in Dover to receive comment on
proposed amendments to Regulation 24 of the Regulations
Governing the Control of Air Pollution with regard to the
control of volatile organic compound emissions (VOCs).
This amendment to Section 33 is being proposed in an
attempt to achieve reduction of VOCs needed to obtain final
EPA approval of the Department's 1-hour ozone attainment
demonstration. The amendment defines applicability,
compliance, notification, monitoring, recordkeeping, and
reporting requirements similar to the Ozone Transport
Commission model rule approved this spring for adoption,
as needed, by member States. Public workshops were
conducted on June 25, 27, and 28, 2001, in Dover,
Georgetown, and New Castle, respectively. No negative
comments were received on the Department's planned action
during the public hearing, nor were any received throughout
the comment period, which ended on August 31, 2001.
Written comments were received from John W. Whitby, Jr.,
Environmental Chairman of the Delaware Automobile and
Truck Dealers Association, as well as from David A.
Wagner, Senior Environmental Manger of Safety-Kleen.
AQM responded to these comments, both verbally at the
public hearing, as well as in a separate memoranda to the
Hearing Officer, dated September 4, 2001. Proper notice of
the hearing was provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated September 19, 2001, and that
memorandum is expressly incorporated herein by reference.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1107
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed amendments to Regulation No. 24, Section 33,
including reasoned responses to the various comments made
to the Department with respect to this proposed amendment.
III. Order
It is hereby ordered that the proposed amendments to
Regulation No. 24, Section 33, be promulgated in final form
in accordance with the customary statutory procedure.
IV. Reasons
The amendment of Regulation 24, Section 33, will aid
the State of Delaware in attaining compliance with the 1-
hour ground-level ozone standard set by the Environmental
Protection Agency (EPA), and will assist the Department in
furtherance of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
Section 33 - Solvent Metal Cleaning.
1/11/93
a. Applicability. This Section applies to all solvent metal
cleaning sources with the following exemptions:
1. Any open-top vapor degreasing operation with an
open area smaller than 1 square meter (m 2) (10. 8square feet
[ft2]) is exempt from paragraphs (c)(2)(iii)(B) and
(c)(2)(iii)(D) of this Section.
2. Any conveyorized degreaser with an air/solvent
interface smaller than 2.0 m2 (21.5 ft2) is exempt from
paragraph (c)(3)(ii) of this Section.
b. Definitions. As used in this Section, all terms not
defined herein shall have the meaning given them in the
November 15, 1990 Clean Air Act Amendments, or in
Section 2 of this regulation.
"Air/solvent interface" means the surface area defined
by points of contact between the solvent liquid or vapor in
the cleaner/degreaser and the surrounding air.
"Cold cleaning" means the batch process of cleaning
and removing soils from a metal surface by spraying,
brushing, flushing, or immersion while maintaining the
solvent below its boiling point. Wipe cleaning is not
included in this definition.
"Conveyorized degreasing" means the process of
cleaning and removing soils from a continuous stream of
metal parts using either cold or vaporized solvents.
"Freeboard height" means, for a cold cleaner, the
distance from the liquid solvent level in the degreaser tank to
the lip of the tank. For an open-top vapor degreaser, it is the
distance from the vapor level in the tank during idling to the
lip of the tank. For a vapor-conveyorized degreaser, it is the
distance from the vapor level to the bottom of the entrance or
exit opening, whichever is lower. For a cold-conveyorized
degreaser, it is the distance from the liquid solvent level to
the bottom of the entrance or exit opening, whichever is
lower.
"Freeboard ratio" means the freeboard height divided by
the smaller interior dimension (length, width, or diameter) of
the degreaser tank.
"Open-top vapor degreasing" means the process using
condensation of hot solvent vapor to clean and remove soils
from a batch of metal parts.
"Refrigerated chiller" means a device mounted above
both the water jacket and the primary condenser coils which
carries a refrigerant that provides a chilled air blanket above
the solvent vapor, thereby reducing emissions from the
degreaser bath.
"Solvent metal cleaning" means the process of cleaning
soils from metal surfaces by cold cleaning, open-top vapor
degreasing, or conveyorized degreasing.
c. Standards.
1. Cold cleaning facilities. The owner or operator of a
cold cleaning facility shall:
i. Equip the cleaner with a cover that is easily
operated with one hand, if any one of the following:
A. The solvent true vapor pressure is greater
than 2 kiloPascals (kPa) (15 millimeters of Mercury [mm
Hg] or 0.3 pound per square inch [psi]) measured at 38oC
(100oF) by ASTM D323-89.
B. The solvent is agitated.
C. The solvent is heated.
ii. Equip the cleaner with an internal drainage
facility so that parts are enclosed under the cover while
draining if the solvent true vapor pressure is greater than
4.3 kPa (32 mm Hg or 0. 6psi) measured at 38oC (100oF) by
ASTM D323-89, except that the drainage facility may be
external for applications where an internal type cannot fit
into the cleaning system.
iii. Implement one of the following control
measures if the solvent true vapor pressure is greater than
4.3 kPa (32 mm Hg or 0. 6psi) measured at 38oC (100oF) by
ASTM D323-89, or if the solvent is heated above 50oC
(120oF):
A. Freeboard that gives a freeboard ratio
greater than or equal to 0.7.
B. Water cover at least 2.54 cm (1 in.) deep
(solvent shall be insoluble in and heavier than water).
C. Another system of equivalent control, such
as a refrigerated chiller or a carbon adsorber, approved by
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1108 FINAL REGULATIONS
the Administrator of the U.S. EPA as part of a State
Implementation Plan (SIP) or Federal Implementation Plan
(FIP) revision.
iv. Provide a permanent, legible, conspicuous
label, summarizing the operating requirements.
v. Store waste solvent in covered containers.
vi. Close the cover whenever parts are not being
handled in the cleaner.
vii. Drain the cleaned parts until dripping ceases.
viii. If used, supply a solvent spray that is a solid
fluid stream (not a fine, atomized, or shower-type spray) at a
pressure that does not exceed 10 pounds per square inch
gauge (psig).
ix. Degrease only materials that are neither porous
nor absorbent.
2. Open top vapor degreasers. Except as provided
under paragraph (a)(i) of this Section, the owner or operator
of an open top vapor degreaser shall:
i. Equip the vapor degreaser with a cover that can
be opened and closed easily without disturbing the vapor
zone.
ii. Provide the following safety switches:
A. A vapor level thermostat that shuts off the
sump heat if the condenser coolant is either not circulating or
too warm.
B. A spray safety switch that shuts off the
spray pump if the vapor level drops more than
10 centimeters (cm) ( 4inches [in.]).
iii. Implement one of the following control
measures:
A. Freeboard ratio greater than or equal to
0.75 and, if the degreaser opening is greater than 1 m2
(10.8 ft2), a powered cover.
B. Refrigerated chiller.
C. Enclosed design (cover or door opens only
when the dry part is actually entering or exiting the
degreaser).
D. Carbon adsorption system, with
ventilation greater than or equal to 15 cubic meters per
minute per square meter (m3/min/m2) (50 cubic feet per
minute per square foot [ft3/min/ft2]) of air/solvent interface
(when cover is open), and exhausting less than 25 parts per
million (ppm) of solvent averaged over one complete
adsorption cycle, or 24 hours, whichever is less.
E. A control system, demonstrated to have a
control efficiency equivalent to or greater than any of the
above and approved by the Administrator of the U.S .EPA as
part of a SIP or FIP revision.
iv. Keep the cover closed at all times except when
processing work loads through the degreaser.
v. Minimize solvent carryout by:
A. Racking parts so that solvent drains freely
and is trapped.
B. Moving parts in and out of the degreaser at
less than 3.3 meters per minute (m/min) (11 feet per minute
[ft/min]).
C. Holding the parts in the vapor zone at least
30 seconds or until condensation ceases, whichever is
longer.
D. Tipping out any pools of solvent on the
cleaned parts before removal from the vapor zone.
E. Allowing parts to dry within the degreaser
for at least 15 seconds or until visually dry, whichever is
longer.
vi. Degrease only materials that are neither porous
nor absorbent.
vii. Occupy no more than one-half of the
degreaser's open-top area with a workload.
viii. Always spray within the vapor level.
ix. Repair solvent leaks immediately, or shut
down the degreaser.
x. Store waste solvent only in covered containers.
xi. Operate the cleaner such that water cannot be
visually detected in solvent exiting the water separator.
xii. Use no ventilation fans near the degreaser
opening.
xiii. When the cover is open, not expose the opentop
vapor degreaser to drafts greater than 40 m/min (131 ft/
min), as measured between 1 and 2 m upwind and at the
same elevation as the tank lip.
xiv. If a lip exhaust is used on the open top vapor
degreaser, not use a ventilation rate that exceeds 20 m3/min/
m2 (65 ft3/min/ft2) of degreaser open area, unless a higher
rate is necessary to meet OSHA requirements.
xv. Provide a permanent, conspicuous label,
summarizing the operating procedures of
paragraphs (c)(2)(iv) through (c)(2)(xiv) of this Section.
3. Conveyorized degreasers. Except as provided
under paragraph (a)(3) of this Section, the owner or operator
of a conveyorized degreaser shall:
i. Use no workplace fans near the degreaser
opening, and ensure that exhaust ventilation does not exceed
20 m3/min/m2 (65 ft3/min/ft2) of degreaser opening, unless a
higher rate is necessary to meet OSHA requirements.
ii. Install one of the following control devices:
A. Refrigerated chiller.
B. Carbon adsorption system, with
ventilation greater than or equal to 15 m3/min/m2 (50 ft3/
min/ft2) of air/solvent interface (when downtime covers are
open), and exhausting less than 25 ppm of solvent by volume
averaged over one complete adsorption cycle, or 24 hours,
whichever is less.
C. A system demonstrated to have a control
efficiency equivalent to or greater than the devices listed in
paragraph (c)(3)(ii)(A) or (c)(3)(ii)(B) of this Section and
approved by the Administrator of the U.S. EPA as part of a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1109
SIP or FIP revision.
iii. Equip the cleaner with equipment, such as a
drying tunnel or rotating (tumbling) basket, sufficient to
prevent cleaned parts from carrying out solvent liquid or
vapor.
iv. Provide the following safety switches:
A. A condenser flow switch and thermostat
that shut off the sump heat if the condenser coolant is either
not circulating or too warm.
B. A spray safety switch which shuts off the
spray pump or the conveyor if the vapor level drops more
than 10 cm (4 in.).
C. A vapor level control thermostat that shuts
off the pump heat when the vapor level rises too high.
v. Minimize openings during operation so that
entrances and exits silhouette workloads with an average
clearance between the parts and the edge of the degreaser
opening of less than 10 cm (4 in.) or less than 10 percent of
the width of the opening.
vi. Provide downtime covers for closing off the
entrance and exit during shutdown hours.
vii. Minimize carryout emissions by:
A. Racking parts so that solvent drains freely
from parts and is not trapped.
B. Maintaining the vertical conveyor speed at
less than 3.3 m/min (11 ft/min).
viii. Store waste solvent only in covered containers.
ix. Repair solvent leaks immediately, or shut
down the degreaser.
x. Operate the cleaner such that water cannot be
visually detected in solvent exiting the water separator.
xi. Place downtime covers over entrances and
exits of the conveyorized degreaser at all times when the
conveyors and exhausts are not being operated.
xii. Degrease only materials that are neither porous
nor absorbent.
d. Test methods. Compliance with paragraphs (c)(1)(i)
through (iii), (c)(2)(iii)(D), (c)(2)(xii) through (xiv),
(c)(3)(i), and (c)(3)(ii)(B) of this Section shall be determined
by applying the following test methods, which are found at
40 CFR, Part 60, Appendix A (July 1, 1992), or the
American Society for Testing and Materials (ASTM)
methods, as appropriate:
1. Methods 1-4 for determining flow rates.
2. Method 18 for determining gaseous organic
compound emissions by gas chromatography.
3. Method 25 for determining total gaseous
nonmethane organic emissions as carbon except in cases
where the outlet VOC concentration of the control device is
less than 50 ppm as carbon, in which case Method25A shall
be used.
4. Method 25A or 25B for determining total gaseous
organic concentrations using flame ionization or
nondispersive infrared analysis.
5. ASTM D323-89 for measuring solvent true vapor
pressure.
e. Recordkeeping. Each owner or operator of a solvent
metal cleaning source subject to this Section shall maintain
the following records in a readily accessible location for at
least 5 years and shall make these records available to the
Department upon verbal or written request:
1. A record of central equipment maintenance, such as
replacement of the carbon in a carbon adsorption unit.
2. The results of all tests conducted in accordance
with the requirements in paragraph (d) of this Section.
f. Reporting. The owner or operator of any facility
containing sources subject to this Section shall:
1. Comply with the initial compliance certification
requirements of Section 5(a) of this regulation.
2. Comply with the requirements of Section 5(b) of
this regulation regarding reports of excess emissions, as well
as complying with other State of Delaware exceedance
reporting requirements.
3. Comply with the requirements of Section 5(c) of
this regulation for excess emissions related to any control
devices used to comply with paragraphs (c)(1)(iii)(C),
(c)(2)(iii)(D) or (E), and (c)(3)(ii)(B) or (C) of this Section.
This requirement is in addition to any other State of
Delaware exceedance reporting requirement.
Section 33 - Solvent Cleaning and Drying
[10 11]/11/01
a. Applicability.
1. This Section applies to any person who owns or
operates a solvent cleaning machine that meets the criteria of
paragraphs a.1.i. and a.1.ii.
i. Contains more than 1 liter of solvent.
ii. Uses any solvent containing volatile organic
compounds in a total concentration greater than 5 percent by
weight, as a cleaning and/or drying agent.
2. E[xcept as provided in paragraphs c.4 through
c.6 of this Section, e]xisting sources affected by this Section
shall comply with the provisions of this Section [as soon as
practicable, but] no later than [October November] 11,
200[1 2]. New, modified, or reconstructed sources affected
by this Section shall comply with the provisions of this
Section upon start-up.
3. Any person subject to both this Section and
Regulation 30 of the State of Delaware "Regulations
Governing the Control of Air Pollution" shall submit to the
Department a request to amend the existing Title V permit,
consistent with the permitting requirements of Regulation
30. Any person subject to paragraph c. of this Section, but
not subject to Regulation 30, shall request to be covered
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1110 FINAL REGULATIONS
under a source category permit, consistent with Regulation 2
of the State of Delaware "Regulations Governing the Control
of Air Pollution" within 90 days of the Department's
establishment of a source category permit covering solvent
cleaning and drying. Any person subject to paragraphs d.
through g. of this Section, but not subject to Regulation 30,
shall submit to the Department a request to amend the
existing Regulation 2 permit, consistent with the permitting
requirements of Regulation 2.
b. Definitions. As used in this Section, all terms not
defined herein shall have the meaning given them in the
November 15, 1990 Clean Air Act Amendments, in
Regulation 1, or in Section2 of this regulation.
"Airless cleaning system" means a solvent cleaning
machine that is automatically operated and seals at a
differential pressure of 0.50 pounds per square inch gauge
(psig) or less, prior to the introduction of solvent or solvent
vapor into the cleaning chamber and maintains differential
pressure under vacuum during all cleaning and drying
cycles.
"Airtight cleaning system" means a solvent cleaning
machine that is automatically operated and seals at a
differential pressure of 0.50 pounds per square inch gauge
(psig) or less, prior to the introduction of solvent or solvent
vapor into the cleaning chamber and during all cleaning and
drying cycles.
"Automated parts handling system" means a mechanical
device that carries all parts and parts baskets at a controlled
speed from the initial loading of soiled or wet parts through
the removal of the cleaned or dried parts. Automated parts
handling systems include, but are not limited to, hoists and
conveyors.
"Batch vapor cleaning machine" means a vapor solvent
cleaning machine in which individual parts or a set of parts
move through the entire cleaning or drying cycle before new
parts are introduced into the cleaning machine. The term
does not include machines that do not have a solvent/air
interface, such as airless and airtight cleaning systems.
"Carbon adsorber" means a bed of activated carbon into
which an air/solvent gas-vapor stream is routed and which
adsorbs the solvent on the carbon.
"Cold cleaning machine" means a solvent cleaning
machine that contains and/or uses unheated liquid solvent
into which parts are placed to remove soils from the surfaces
of the parts or to dry the parts. The term does not include
machines that do not have a solvent/air interface, such as
airless and airtight cleaning systems.
"Downtime mode" means the time period when a
solvent cleaning machine is not cleaning or drying parts and
the sump heating coils, if present, are turned off.
"Dwell" means the technique of holding parts within the
freeboard area but above the vapor zone of a solvent
cleaning machine. Dwell occurs after cleaning or drying to
allow solvent to drain from the parts or parts baskets back
into the solvent cleaning machine.
"Dwell time" means the period of time between when
parts or a parts basket is placed in the vapor zone of a batch
vapor or in-line vapor cleaning machine and when solvent
dripping ceases.
"Freeboard height" means, for a batch cold cleaning
machine, the distance from the liquid solvent level to the top
of the solvent cleaning machine. For a batch vapor cleaning
machine, it is the distance from the solvent/air interface to
the top of the solvent cleaning machine, as measured during
idling mode. For an in-line cleaning machine, it is the
distance from the solvent/air interface to the bottom of the
entrance or exit opening, whichever is lower, as measured
during idling mode.
"Freeboard ratio" means the ratio of the solvent
cleaning machine freeboard height to the smaller interior
dimension (length, width, or diameter) of the solvent
cleaning machine.
"Freeboard refrigeration device" means a set of
secondary coils mounted in the freeboard area that carries a
refrigerant or other chilled substance to provide a chilled air
blanket above the solvent vapor. A primary condenser that
is capable of maintaining a temperature, in oF, in the center
of the chilled air blanket at not more than 30 percent of the
solvent's boiling point is both a primary condenser and a
freeboard refrigeration device.
"Idling mode" means the time period when a solvent
cleaning machine is not actively cleaning or drying parts and
the sump heating coils, if present, are turned on.
"Immersion cold cleaning machine" means a cold
solvent cleaning machine in which the parts are immersed in
the solvent when being cleaned or dried. A remote reservoir
cold cleaning machine that is also an immersion cold
cleaning machine is considered an immersion cold cleaning
machine for purposes of this Section.
"In-line vapor cleaning machine" means a vapor solvent
cleaning machine that uses an automated parts handling
system, typically a conveyor, to automatically provide a
continuous supply of parts to be cleaned or dried. These
units are fully enclosed except for the conveyor inlet and exit
portals.
"Primary condenser" means a series of circumferential
cooling coils on a vapor cleaning machine through which a
chilled substance is circulated or recirculated to provide
continuous condensation of rising solvent vapors and,
thereby, creating a concentrated solvent vapor zone.
"Reduced room draft" means decreasing the flow or
movement of air across the top of the freeboard area of a
solvent cleaning machine to less than 15.2 meters per minute
(50 feet per minute) by methods including, but not limited to,
redirecting fans and/or air vents to not blow across the
cleaning machine, moving the cleaning machine to a corner
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1111
where there is less room draft, and constructing a partial or
complete enclosure around the cleaning machine.
"Remote reservoir cold cleaning machine" means a
solvent cleaning machine in which liquid solvent is pumped
to a sink-like work area that immediately drains solvent back
into an enclosed container while parts are being cleaned or
dried, allowing no solvent to pool in the work area.
"Soils" means contaminants that are removed from the
parts being cleaned. Soils include, but are not limited to,
grease, oils, waxes, metal chips, carbon deposits, fluxes, and
tars.
"Solvent/air interface" means, for a vapor cleaning
machine, the location of contact between the concentrated
solvent vapor layer and the air. This location of contact is
defined as the mid-line height of the primary condenser
coils. For a cold cleaning machine, it is the location of
contact between the liquid solvent and the air.
"Solvent cleaning machine" means any device or piece
of equipment that uses volatile organic compounds, liquid or
vapor, to remove soils from parts or to dry parts. Types of
solvent cleaning machines include, but are not limited to,
batch vapor, in-line vapor, in-line cold, immersion cold, and
remote reservoir cold cleaning machines, as well as, airless
cleaning and airtight cleaning systems.
"Superheated vapor system" means a system that heats
the solvent vapor, either passively or actively, to a
temperature 10oF above the solvent's boiling point. Parts
are held in the superheated vapor before exiting the machine
to evaporate the liquid solvent on the parts. Hot vapor
recycle is an example of a superheated vapor system.
"Vapor cleaning machine" means a batch or in-line
solvent cleaning machine that heats liquid solvent that is
used as part of the cleaning or drying cycle. The heated
solvent may or may not be boiling. The term does not
include machines that do not have a solvent/air interface,
such as airless and airtight cleaning systems.
"Vapor up control switch" means a thermostatically
controlled switch that shuts off or prevents solvent from
being sprayed when there is no vapor. On in-line vapor
cleaning machines the switch also prevents the conveyor
from operating when there is no vapor.
"Working mode" means the time period when the
solvent cleaning machine is actively cleaning or drying
parts.
"Working mode cover" means any cover or solvent
cleaning machine design that allows the cover to shield the
cleaning machine openings from outside air disturbances
while parts are being cleaned or dried in the cleaning
machine. A cover that is used during the working mode is
opened only during parts entry and removal.
c. Standards for batch cold cleaning machines. This
paragraph applies to all batch cold cleaning machines. The
provisions of this paragraph shall not apply if the owner or
operator of the cold cleaning machine demonstrates and the
Department approves in writing that compliance with the
paragraph will result in unsafe operating conditions.
1. Immersion cold cleaning machines shall have a
freeboard ratio of 0.75 or greater unless the machines are
equipped with working mode covers that shall be closed
except when parts are being placed into or being removed
from the machine. Covers shall be free of cracks, holes, and
other defects, and easily opened or closed.
2. Immersion cold cleaning machines and remote
reservoir cold cleaning machines shall:
i. Have a permanent, conspicuous label
summarizing the operating requirements in paragraph c.3. of
this Section.
ii. Be equipped with a downtime mode cover that
shall be closed at all times except during cleaning or drying
of parts or the addition or removal of solvent. Cover shall be
free of cracks, holes, and other defects, and readily opened
or closed.
3. Cold cleaning machines shall be operated in
accordance with the following procedures:
i. Waste solvent, still bottoms, and sump bottoms
shall be collected and stored in closed containers. The
closed containers may contain a device that allows pressure
relief, but does not allow liquid solvent to drain from the
container.
ii. Cleaned parts shall be drained at least 15
seconds or until dripping ceases, whichever is longer. Parts
having cavities or blind holes shall be tipped or rotated while
the part is draining. During the draining, tipping or rotating,
the parts shall be positioned so that solvent drains directly
back to the cleaning machine.
iii. Flushing of parts using a flexible hose or other
flushing device shall be performed only within the freeboard
area of the cold cleaning machine. The solvent flushing
shall be a solid fluid stream, not an atomized or shower
spray, at a pressure that does not exceed 10 pounds per
square inch gauge (psig).
iv. Work area fans shall be located and positioned
so that they do not blow across the opening of the cold
cleaning machine.
v. Sponges, fabric, wood, leather, paper products,
and other absorbent materials shall not be cleaned or dried in
the cold cleaning machine.
vi. Any solvent bath agitator shall be operated to
produce a rolling motion of the solvent with no observable
splashing of the solvent against the tank walls or the parts
being cleaned. Air agitated solvent baths may not be used.
vii. Spills during solvent transfer and use of the
cold cleaning machine shall be cleaned up immediately, and
the wipe rags or other absorbent material shall be
immediately stored in covered containers for disposal or
recycling.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1112 FINAL REGULATIONS
viii. The owner or operator shall ensure that the
solvent level does not exceed the fill line.
4. On and after [October November] 11, 2002, no
person shall use, sell, or offer for sale for use in a cold
cleaning machine any solvent with a vapor pressure of 1.0
millimeters of mercury (mm Hg) or greater, measured at
20oC (68oF) that contains volatile organic compounds.
5. On and after [October November] 11, 2002, a
person who sells or offers for sale any solvent containing
volatile organic compounds for use in a cold cleaning
machine shall provide, to the purchaser, the following
written information:
i. The name and address of the solvent supplier.
ii. The type of solvent including the product or
vendor identification number.
iii. The vapor pressure of the solvent measured in
mm Hg at 20oC (68oF).
6. The owner or operator of a cold cleaning machine
shall maintain for not less than five years, and shall provide
to the Department, on request, the information specified in
paragraph c.5. An invoice, bill of sale, certificate that
corresponds to a number of sales, Material Safety Data Sheet
(MSDS), or other appropriate documentation acceptable to
the Department may be used to comply with this Section.
d. Standards for batch vapor cleaning machines. This
paragraph applies to batch vapor cleaning machines.
1. Batch vapor cleaning machines shall be equipped
with:
i. Either a fully enclosed design or idling and
downtime mode covers that completely covers the cleaning
machine openings when in place. Covers shall be free of
cracks, holes, and other defects, and readily opened or closed
without disturbing the vapor zone. If the solvent cleaning
machine opening is greater than 10 square feet, the covers
must be powered. If a lip exhaust is used, the closed covers
shall be below the level of the lip exhaust.
ii. A freeboard ratio of 0.75 or greater.
iii. A primary condenser.
iv. A vapor up control switch.
v. A device that shuts off the sump heat if the
sump liquid solvent level drops to the sump heater coils.
vi. A vapor level control device that shuts off the
sump heat if the vapor level in the vapor cleaning machine
rises above the height of the primary condenser.
vii. An automated parts handling system that
moves parts or parts baskets at a speed of 3.4 meters per
minute (11 feet per minute) or less when the parts are
entering or exiting the vapor zone. If the parts or parts
basket being cleaned or dried occupy more than 50% of the
solvent/air interface area, the automated parts handling
system shall move parts or parts baskets at a speed of 0.93
meters per minute (3 feet per minute) or less.
viii. Each vapor cleaning machine that uses a lip
exhaust shall be designed and operated to route all collected
solvent vapors through a properly operated and maintained
carbon adsorber. The concentration of organic solvent in the
exhaust shall not exceed 25 parts per million, averaged over
one complete adsorption cycle or 24 hours, whichever is
less.
ix. A permanent, conspicuous label summarizing
the operating requirements in paragraph d.4. of this Section.
2. In addition to the requirements of paragraph d.1. of
this Section, the owner or operator of a batch vapor cleaning
machine with a solvent/air interface area of 13 square feet or
less shall implement one of the following control options:
i. A working mode cover, a freeboard ratio of
1.0, and superheated vapor.
ii. Superheated vapor and a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature is no greater than 30 percent of the
solvent's boiling point.
iii. A working mode cover and a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature, in oF, is no greater than 30 percent of
the solvent's boiling point.
iv. Reduced room draft, a freeboard ratio of 1.0,
and superheated vapor.
v. Reduced room draft and a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature, in oF, is no greater than 30 percent of
the solvent's boiling point.
vi. A freeboard ratio of 1.0 and a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature, in oF, is no greater than 30 percent of
the solvent's boiling point.
vii. Dwell and a freeboard refrigeration device
operated to ensure that the chilled air blanket temperature, in
oF, is no greater than 30 percent of the solvent's boiling
point. Dwell shall be not less than 35 percent of the dwell
time determined for the part or parts basket.
viii. Reduced room draft, a freeboard ratio of 1.0,
and dwell. Dwell shall be not less than 35 percent of the
dwell time determined for the part or parts basket.
ix. A freeboard refrigeration device operated to
ensure that the chilled air blanket temperature, in oF, is no
greater than 30 percent of the solvent's boiling point and a
carbon adsorber that reduces solvent emissions in the
exhaust to a level not to exceed 25 parts per million,
averaged over one complete adsorption cycle or 24 hours,
whichever is less.
x. A freeboard ratio of 1.0, superheated vapor,
and a carbon adsorber that reduces solvent emissions in the
exhaust to a level not to exceed 25 parts per million,
averaged over one complete adsorption cycle or 24 hours,
whichever is less.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1113
3. In addition to the requirements of paragraph d.1. of
this Section, the owner or operator of a batch vapor cleaning
machine with a solvent/air interface area of greater than 13
square feet shall implement one of the following control
options:
i. A freeboard refrigeration device operated to
ensure that the chilled air blanket temperature, in oF, is no
greater than 30 percent of the solvent's boiling point, a
freeboard ratio of 1.0, and superheated vapor.
ii. Dwell, a freeboard refrigeration device
operated to ensure that the chilled air blanket temperature, in
oF, is no greater than 30 percent of the solvent's boiling
point, and reduced room draft. Dwell shall be not less than
35 percent of the dwell time determined for the part or parts
basket.
iii. A working mode cover, a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature, in oF, is no greater than 30 percent of
the solvent's boiling point, and superheated vapor.
iv. Reduced room draft, freeboard ratio of 1.0, and
superheated vapor.
v. A freeboard refrigeration device operated to
ensure that the chilled air blanket temperature, in oF, is no
greater than 30 percent of the solvent's boiling point,
reduced room draft, and superheated vapor.
vi. A freeboard refrigeration device operated to
ensure that the chilled air blanket temperature, in oF, is no
greater than 30 percent of the solvent's boiling point, a
freeboard ratio of 1.0, and reduced room draft.
vii. A freeboard refrigeration device operated to
ensure that the chilled air blanket temperature is no greater
than 30 percent of the solvent's boiling point, superheated
vapor, and a carbon adsorber that reduces solvent emissions
in the exhaust to a level not to exceed 25 parts per million,
averaged over one complete adsorption cycle or 24 hours,
whichever is less.
4. Batch vapor cleaning machines shall be operated in
accordance with the following procedures:
i. Waste solvent, still bottoms, and sump bottoms
shall be collected and stored in closed containers. The
closed containers may contain a device that allows pressure
relief, but does not allow liquid solvent to drain from the
container.
ii. Cleaned parts shall be drained at least 15
seconds or until dripping ceases, whichever is longer. Parts
having cavities or blind holes shall be tipped or rotated while
the part is draining. During the draining, tipping or rotating,
the parts shall be positioned so that solvent drains directly
back to the batch vapor cleaning machine. A superheated
vapor system shall be an acceptable alternate technology.
iii. Parts or parts baskets shall not be removed
from the batch vapor cleaning machine until dripping has
ceased.
iv. Flushing of parts using a flexible hose or other
flushing device shall be performed within the vapor zone of
the batch vapor cleaning machine or within a section of the
machine that is not exposed to the ambient air. The solvent
flushing shall be a solid fluid stream, not an atomized or
shower spray.
v. When the cover is open, the batch vapor
cleaning machine shall not be exposed to drafts greater than
40 meters per minute (132 feet per minute), as measured
between 1 and 2 meters (3.3 and 6.6 feet) upwind and at the
same elevation as the tank lip.
vi. Sponges, fabric, wood, leather, paper products,
and other absorbent materials shall not be cleaned or dried in
the batch vapor cleaning machine.
vii. Spills during solvent transfer and use of the
batch vapor cleaning machine shall be cleaned up
immediately, and the wipe rags or other absorbent material
shall be immediately stored in covered containers for
disposal or recycling.
viii. Work area fans shall be located and positioned
so that they do not blow across the opening of the batch
vapor cleaning machine.
ix. During startup of each batch vapor cleaning
machine, the primary condenser shall be turned on before the
sump heater.
x. During shutdown of each batch vapor cleaning
machine, the sump heater shall be turned off and the solvent
vapor layer allowed to collapse before the primary condenser
is turned off.
xi. When solvent is added to or drained from the
batch vapor cleaning machine, the solvent shall be
transferred using threaded or other leakproof couplings, and
the discharge end of the pipe shall be located beneath the
liquid solvent surface.
xii. The idling and downtime mode covers
shall be closed at all times during idling and downtimes
except during maintenance of the machine when the solvent
has been removed and during addition of solvent to the
machine.
xiii. If a lip exhaust is used on the open top batch
vapor cleaning machine, the ventilation rate shall not exceed
20 m3/min/m2 (65 ft3/min/ft2) of batch vapor cleaning
machine open area, unless a higher rate is necessary to meet
OSHA requirements.
e. Standards for in-line cleaning machines. This paragraph
applies to in-line cold and vapor cleaning machines.
1. In-line cleaning machines shall be equipped with:
i. Either a fully enclosed design or idling and
downtime mode covers that completely covers the in-line
cleaning machine openings when in place. Covers shall be
free of cracks, holes, and other defects, and readily opened
or closed without disturbing the vapor zone.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1114 FINAL REGULATIONS
ii. A freeboard ratio of 0.75 or greater.
iii. A primary condenser.
iv. A vapor up control switch.
v. A device that shuts off the sump heat if the
sump liquid solvent level drops to the sump heater coils.
vi. A vapor level control device that shuts off the
sump heat if the vapor level in the in-line cleaning machine
rises above the height of the primary condenser.
vii. An automated parts handling system that
moves parts or parts baskets at a speed of 3.4 meters per
minute (11 feet per minute) or less when the parts are
entering or exiting the vapor zone. If the parts or parts
basket being cleaned or dried occupy more than 50% of the
solvent/air interface area, the automated parts handling
system shall move parts or parts baskets at a speed of 0.93
meters per minute (3 feet per minute) or less.
viii. Each in-line machine that uses a lip exhaust
shall be designed and operated to route all collected solvent
vapors through a properly operated and maintained carbon
adsorber. The concentration of organic solvent in the
exhaust shall not exceed 25 parts per million, averaged over
one complete adsorption cycle or 24 hours, whichever is
less.
ix. A permanent, conspicuous label summarizing
the operating requirements in paragraph e.3.
2. In addition to the requirements of paragraph e.1. of
this Section, the owner or operator of an in-line cleaning
machine shall implement one of the following control
options:
i. A freeboard ratio of 1.0 and superheated vapor.
ii. A freeboard ratio of 1.0 and a freeboard
refrigeration device operated to ensure that the chilled air
blanket temperature, in oF, is no greater than 30 percent of
the solvent's boiling point.
iii. Dwell and a freeboard refrigeration device
operated to ensure that the chilled air blanket temperature, in
oF, is no greater than 30 percent of the solvent's boiling
point. Dwell shall be not less than 35 percent of the dwell
time determined for the part or parts basket.
iv. Dwell and a carbon adsorber that reduces
solvent emissions in the exhaust to a level not to exceed 25
parts per million, averaged over one complete adsorption
cycle or 24 hours, whichever is less. Dwell shall be not less
than 35 percent of the dwell time determined for the part or
parts basket.
3. In-line cleaning machines shall be operated in
accordance with the following procedures:
i. Waste solvent, still bottoms, and sump bottoms
shall be collected and stored in closed containers. The
closed containers may contain a device that allows pressure
relief, but does not allow liquid solvent to drain from the
container.
ii. Parts shall be oriented so that the solvent drains
freely from the parts. Cleaned parts shall be drained at least
15 seconds or until dripping ceases, whichever is longer.
Parts having cavities or blind holes shall be tipped or rotated
while the part is draining. During the draining, tipping or
rotating, the parts shall be positioned so that solvent drains
directly within the in-line cleaning machine.
iii. Parts or parts baskets shall not be removed
from the in-line cleaning machine until dripping has ceased.
iv. Flushing of parts using a flexible hose or other
flushing device shall be performed within the vapor zone of
the in-line cleaning machine or within a section of the
machine that is not exposed to the ambient air. The solvent
flushing shall be a solid fluid stream, not an atomized or
shower spray.
v. When the in-line cleaning machine is
operating, the entrance and exit portals shall not be exposed
to drafts greater than 40 meters per minute (132 feet per
minute), as measured between 1 and 2 meters (3.3 and 6.6
feet) upwind and at the same elevation as the portals.
vi. Sponges, fabric, wood, leather, paper products,
and other absorbent materials shall not be cleaned or dried in
the in-line cleaning machine.
vii. Spills during solvent transfer and use of the inline
cleaning machine shall be cleaned up immediately, and
the wipe rags or other absorbent material shall be
immediately stored in covered containers for disposal or
recycling.
viii. Work area fans shall be located and positioned
so that they do not blow across the openings of the in-line
cleaning machine.
ix. During startup of each in-line cleaning
machine, the primary condenser shall be turned on before the
sump heater.
x. During shutdown of each in-line cleaning
machine, the sump heater shall be turned off and the solvent
vapor layer allowed to collapse before the primary condenser
is turned off.
xi. When solvent is added to or drained from the
in-line cleaning machine, the solvent shall be transferred
using threaded or other leakproof couplings and the
discharge end of the pipe shall be located beneath the liquid
solvent surface.
xii. The idling and downtime mode covers shall be
closed at all times during idling and downtimes except
during maintenance of the machine when the solvent has
been removed and during addition of solvent to the machine.
xiii. If a lip exhaust is used on the on-line cleaning
machine, the ventilation rate shall not exceed 20 m3/min/m2
(65 ft3/min/ft2) of on-line cleaning machine open area,
unless a higher rate is necessary to meet OSHA
requirements.
xiv. Minimize openings during operation so that
entrances and exits silhouette workloads with an average
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1115
clearance between the parts and the edge of the portal
opening of less than 10 centimeters (4 inches) or less than 10
percent of the width of the opening.
f. Standards for cleaning machines not having a solvent/
air interface. This paragraph applies to cleaning machines
that do not have a solvent/air interface. These cleaning
machines include, but are not limited to, airless and airtight
cleaning systems.
1. The owner or operator of each machine shall
maintain a log of solvent additions and deletions for each
machine including the weight of solvent contained in
activated carbon or other adsorbent material used to control
emissions from the cleaning machine.
2. The owner or operator of each machine shall
demonstrate that the emissions from each machine, on a
three-month rolling average, are equal to or less than the
allowable emission limit determined using Equation 1
below.
EL = 330 (Vol) 0.6 (Eq. 1)
where:
EL = the three-month rolling average monthly
emission limit (kilograms/month).
Vol = the cleaning capacity of machine (cubic
meters).
3. The owner or operator of each machine shall
operate the machine in conformance with the manufacturer's
instructions and good air pollution control practices.
4. The owner or operator of each machine equipped
with a carbon adsorber shall maintain and operate the carbon
adsorber system to reduce solvent emissions in the exhaust
to a level not exceed 25 parts per million, averaged over one
complete adsorption cycle or 24 hours, whichever is less.
5. A permanent, conspicuous label summarizing the
operating requirements in paragraph f.7. below.
6. The owner or operator of a solvent cleaning
machine complying with paragraph f. shall demonstrate
compliance with the applicable 3-month rolling average
monthly emission limit on a monthly basis. If the applicable
3-month rolling average monthly emission limit is not met,
an exceedance has occurred. All exceedances shall be
reported to the Department within 30 days of the
determination of the exceedance.
7. Cleaning machines not having a solvent/air
interface shall be operated in accordance with the following
procedures:
i. Waste solvent, still bottoms, and sump bottoms
shall be collected and stored in closed containers. The
closed containers may contain a device that allows pressure
relief, but does not allow liquid solvent to drain from the
container.
ii. Cleaned parts shall be drained at least 15
seconds or until dripping ceases, whichever is longer. Parts
having cavities or blind holes shall be tipped or rotated while
the part is draining. During the draining, tipping or rotating,
the parts shall be positioned so that solvent drains directly
into the cleaning machine.
iii. Parts or parts baskets shall not be removed
from the cleaning machine until dripping has ceased.
iv. Sponges, fabric, wood, leather, paper products,
and other absorbent materials shall not be cleaned or dried in
the cleaning machines.
v. Spills during solvent transfer and use of the
cleaning machines shall be cleaned up immediately, and the
wipe rags or other absorbent material shall be immediately
stored in covered containers for disposal or recycling.
vi. Work area fans shall be located and positioned
so that they do not blow across the opening of the cleaning
machine.
vii. When solvent is added to or drained from the
cleaning machine, the solvent shall be transferred using
threaded or other leakproof couplings and the discharge end
of the pipe shall be located beneath the liquid solvent
surface.
8. The owner or operator of a solvent cleaning
machine complying with paragraph f. shall maintain records
and determine compliance with the applicable provisions in
accordance with the following:
i. On the first operating day of every month
ensure that the solvent cleaning machine system contains
only clean liquid solvent. This includes, but is not limited to,
fresh unused solvent, recycled solvent, and used solvent that
have been cleaned of soils. A fill line must be indicated
during the first month the measurements are made. The
solvent level within the machine must be returned to the
same fill-line each month, immediately prior to calculating
monthly emissions. The solvent cleaning machine does not
have to be emptied and filled with fresh unused solvent prior
to the calculations.
ii. Using the records of all solvent additions and
deletions for the previous monthly reporting period,
determine total solvent emissions, E, using Equation 2,
below:
E = SA - LSR - SSR (Eq. 2)
where:
E = the total VOC solvent emissions from the solvent
cleaning machine during the most recent monthly reporting
period (kilograms of solvent per month).
SA = the total amount of VOC liquid solvent added to
the solvent cleaning machine during the most recent monthly
reporting period (kilograms of solvent per month).
LSR = the total amount of VOC liquid solvent removed
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1116 FINAL REGULATIONS
from the solvent cleaning machine during the most recent
monthly reporting period (kilograms of solvent per month).
SSR = the total amount of VOC solvent removed from
the solvent cleaning machine in solid waste during the most
recent monthly reporting period (kilograms of solvent per
month), as determined from tests conducted using Method
25D in appendix A of 40 CFR part 60 or by engineering
calculations included in the compliance report.
iii. Determine the monthly rolling average solvent
emission, EA, using Equation 3, below:
EA = ( E j = 1 + E j = 2 + E j = 3 ) / 3 (Eq. 3)
where:
EA = the average VOC solvent emissions over the
preceding 3 monthly reporting periods (kilograms of solvent
per month).
E = the total VOC solvent emissions for each month (j)
for the most recent 3 monthly reporting periods (kilograms
of solvent per month).
j = 1 = the most recent monthly reporting period.
j = 2 = the monthly reporting period immediately prior
to j = 1.
j = 3 = the monthly reporting period immediately prior
to j = 2.
g. Alternative standard. As an alternative to meeting the
requirements of paragraphs d. or e. of this Section, the owner
or operator of a batch vapor or in-line cleaning machine can
elect to comply with the requirements of paragraphs g.1.
through g.4. The owner or operator shall maintain records
sufficient to demonstrate compliance. The records shall
include, at a minimum, the quantity of solvent added to and
removed from the solvent cleaning machine, the dates of the
addition and removal, and the calculations of the monthly
rolling 3-month average emission limit.
1. The owner or operator shall:
i. Maintain a log of solvent additions and
deletions for each solvent cleaning machine.
ii. Ensure that emissions from each solvent
cleaning machine are equal to or less than the allowable
emission limit presented in Table 1.
Table 1 -- Emission Limits for Batch Vapor and In-line
Cleaning Machines
Solvent cleaning machine 3-Month rolling average monthly
emission limit
(kilograms/square meters/month)
Batch vapor cleaning 150
machines
Existing in-line cleaning 153
machines
New in-line cleaning 99
machines
2. In addition to the requirements of paragraph g.1. of
this Section, the owner or operator of a cleaning machine
shall comply with the following:
i. Paragraphs d.1.ix. and d.4. for batch vapor
cleaning machines.
ii. Paragraphs e.1.ix. and e.3. for in-line cleaning
machines.
3. The owner or operator of a solvent cleaning
machine complying with paragraph g. shall demonstrate
compliance with the applicable 3-month rolling average
monthly emission limit on a monthly basis. If the applicable
3-month rolling average monthly emission limit is not met,
an exceedance has occurred. All exceedances shall be
reported to the Department within 30 days of the
determination of the exceedance.
4. The owner or operator of a solvent cleaning
machine complying with paragraph g. shall maintain records
and determine compliance with the applicable provisions in
accordance with the following:
i. On the first operating day of every month
ensure that the solvent cleaning machine system contains
only clean liquid solvent. This includes, but is not limited to,
fresh unused solvent, recycled solvent, and used solvent that
have been cleaned of soils. A fill line must be indicated
during the first month the measurements are made. The
solvent level within the machine must be returned to the
same fill-line each month, immediately prior to calculating
monthly emissions. The solvent cleaning machine does not
have to be emptied and filled with fresh unused solvent prior
to the calculations.
ii. Using the records of all solvent additions and
deletions for the previous monthly reporting period,
determine total solvent emissions, E, using Equation 4,
below:
E = (SA - LSR - SSR) / AREA (Eq. 4)
where:
E = the total VOC solvent emissions from the solvent
cleaning machine during the most recent monthly reporting
period (kilograms of solvent per square meter of solvent/air
interface area per month).
SA = the total amount of VOC liquid solvent added to
the solvent cleaning machine during the most recent monthly
reporting period (kilograms of solvent per month).
LSR = the total amount of VOC liquid solvent removed
from the solvent cleaning machine during the most recent
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1117
monthly reporting period (kilograms of solvent per month).
SSR = the total amount of VOC solvent removed from
the solvent cleaning machine in solid waste during the most
recent monthly reporting period (kilograms of solvent per
month), as determined from tests conducted using Method
25D in appendix A of 40 CFR part 60 or by engineering
calculations included in the compliance report.
Area = the solvent/air interface area of the solvent
cleaning machine (square meters).
iii. Determine the monthly rolling average solvent
emission, EA, using Equation 5, below:
EA = ( E j = 1 + E j = 2 + E j = 3 ) / 3 (Eq. 5)
where:
EA = the average VOC solvent emissions over the
preceding 3 monthly reporting periods (kilograms of solvent
per square meter of solvent/air interface area per month).
E = the total VOC solvent emissions for each month (j)
for the most recent 3 monthly reporting periods (kilograms
of solvent per square meter of solvent/air interface area per
month).
j = 1 = the most recent monthly reporting period.
j = 2 = the monthly reporting period immediately prior
to j = 1.
j = 3 = the monthly reporting period immediately prior
to j = 2.
h. Monitoring. The owner or operator of a solvent
cleaning machine subject to the provisions of paragraphs d.
through g. of this Section shall conduct monitoring as
follows.
1. If a freeboard refrigeration device is used to comply
with this Section, the owner or operator shall use a
thermometer or thermocouple to measure the temperature at
the center of the air blanket during the idling mode.
Measurements and recordings shall be made weekly.
2. If a superheated vapor system is used to comply
with this Section, the owner or operator shall use a
thermometer or thermocouple to measure the temperature at
the center of the superheated solvent vapor zone while the
solvent cleaning machine is in the idling mode.
Measurements and recordings shall be made weekly.
3. If a cover (working mode, downtime mode, and/or
idling mode cover) is used to comply with this Section, the
owner or operator shall conduct a visual inspection to
determine if the cover is opening and closing properly,
completely covers the cleaning machine openings when
closed, and is free of cracks, holes, and other defects.
Observations and recordings shall be made monthly.
4. If dwell is used to comply with this Section, the
owner or operator shall determine the actual dwell time by
measuring the period of time that parts are held within the
freeboard area of the solvent cleaning machine after cleaning
or drying. Measurements and recordings shall be made
monthly.
5. The owner or operator shall determine the
automated parts handling system speed by measuring the
time it takes to travel a measured distance. The speed is
equal to the distance in meters or feet divided by the time in
minutes (meters or feet per minute). Measurements and
recordings shall be made monthly.
6. If reduced room draft is used to comply with this
Section, the owner or operator shall determine the average
wind speed and controlling room parameters (i.e.,
redirecting fans, closing doors and windows, etc.) as follows.
i. Initially measure the wind speed within 6
inches above the top of the freeboard area of the solvent
cleaning machine in accordance with the following:
A. Determine the direction of the wind
current by slowly rotating a velometer or similar device until
the maximum speed is located.
B. Orient a velometer in the direction of the
wind current at the four corners of the machine.
C. Record the reading for each corner.
D. Average the values obtained at each corner
and record the average wind speed.
ii. Record the room parameters established during
the initial compliance test to achieve the reduced room draft.
iii. Quarterly monitor of the wind speed in
accordance with paragraph h.6.i.
iv. Weekly monitoring of the room parameters as
specified in paragraph h.6.
7. If an enclosure (full or partial) is used to achieve
reduced room draft, the owner or operator shall conduct an
initial monitoring test of the wind speed within the enclosure
by slowly rotating a velometer inside the entrance to the
enclosure until the maximum speed is located and recorded.
Measurements and recordings shall be made monthly. The
owner or operator shall also conduct a monthly visual
inspection of the enclosure to determine if it is free of cracks,
holes, and other defects.
8. The owner or operator of a using a carbon adsorber
to comply with this Section shall measure and record the
concentration of VOC solvent in the exhaust of the carbon
adsorber whenever the solvent cleaning machine is in the
working mode and/or is venting to the carbon adsorber. The
concentration shall be determined through a sampling port
within the exhaust outlet that is easily accessible, located
downstream from no other inlet, and located at least 8 stack
or duct diameters downstream and 2 stack or duct diameters
upstream from any flow disturbance such as a bend,
expansion, contraction, or outlet
i. Recordkeeping. The owner or operator of a solvent
cleaning machine subject to this Section shall maintain the
following records in a readily accessible location for a least 5
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1118 FINAL REGULATIONS
years and shall make these records available to the
Department, upon verbal or written request:
1. The log of operating times for the carbon adsorber,
if applicable.
2. The maintenance record for the carbon adsorber,
such as replacement of the activated carbon bed, if
applicable.
3. The maintenance record for each control option
used, such as replacement of a heater in the superheated
vapor recycle system, if applicable.
4. The logs and calculations demonstrating
compliance with the allowable emission limits in paragraphs
f. and g. of this Section.
5. The results of all monitoring conducted in
accordance with the requirements in paragraph h. of this
Section.
j. Reporting. The owner of operator of a solvent cleaning
machine subject to this Section shall:
1. Comply with the initial compliance certification
requirements of Section 5.a. of this regulation.
2. Comply with the requirements of Section 5.b. of
this regulation regarding reports of excess emissions, as well
as complying with other State of Delaware exceedance
reporting requirements.
DIVISION OF AIR & WASTE MANAGEMENT
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-0035
RE: Proposed Amendment to Regulation 38
(Emission Standards for Hazardous Air Pollutants for
Source Categories) Subpart "T"
- Emission Standard for Halogenated Solvent Cleaning -
Date of Issuance: October 1, 2001
Effective Date of the Amendment: November 11. 2001
I. Background
On Tuesday, August 28, 2001, a public hearing was held
in the Richardson and Robbins Auditorium of DNREC in
Dover to receive comment on the proposed amendment of
Regulation 38 (Emission Standards for Hazardous Air
Pollutants for Source Categories), Subpart "T" - Emission
Standard for Halogenated Solvent Cleaning - of the
Regulations Governing the Control of Air Pollution. The
Department is proposing this regulation to add a MACT
(Maximum Achievable Control Technology) standard to
reduce the emissions of hazardous air pollutants (HAPs)
from halogenated solvent cleaning and drying machines. On
June 25, 2001, DNREC conducted a public workshop
regarding this issue, at which time the Department discussed
the regulatory requirements currently being proposed with
those members of the public that attended the same.
This proposed amendment is for the adoption of the
Federal MACT standard that applies to solvent cleaning
machines that use one or a combination of six specific
halogenated solvents. The Department is undertaking this
regulatory action to protect the air resources of the State of
Delaware from pollution, in the interest of the public's
health, safety, and welfare. No one from the public attended
this public hearing, and there were no written comments
received by the Department regarding the proposed
amendment of Regulation 38, Subpart "T". Proper notice of
the hearing was provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated September 27, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed adoption of Regulation 38, Subpart "T", and has,
where necessary, made non-substantive changes in response
to some of the suggestions offered to the Department by
EPA with respect to this amendment.
III. Order
It is hereby ordered that the proposed amendments to
Regulation 38, Subpart "T", including those revisions
suggested by AQM, be promulgated in final form in
accordance with the customary statutory procedure.
IV. Reasons
These amendments will aid in the Department's ongoing
responsibility to develop regulations that would reduce the
risks to public health caused by the emissions of pollutants
from point sources in Delaware, by adopting Federal MACT
standards by reference into Delaware's Regulation 38, in
furtherance of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
[10 11] /11/01
Subpart T Emission Standards for Halogenated Solvent
Cleaning
The provisions of Subpart T - National Emission
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1119
Standards for Halogenated Solvent Cleaning, of Title 40,
Part 63 of the Code of Federal Regulations, dated of July 1,
2000 and as amended on Sept. 8, 2000, are hereby adopted
by reference with the following changes:
(a) Except as shown in Table T-1 of Subpart T,
"Department" shall replace "Administrator".
(b) Paragraph 63.460(b) shall be replaced with the
following language: "Owners or operators of affected
sources subject to the provisions of this subpart must also
comply with the requirements of subpart A of this
regulation, according to the applicability of subpart A of this
regulation to such sources, as identified in Table 1 of this
subpart."
(c) The following dates shall be replaced by the date
[October November] 11, 2001:
(i) December 2, 1994;
(ii) August 29, 1995;
(iii) December 2, 1997; and
(iv) December 2, 1999.
(d) The opening sentence of Section 63.461 shall be
replaced with the following language: "Unless defined
below, all terms in this subpart have the meanings given
them in the Act or in subpart A of this regulation:".
(e) The definition of Administrator in Section 63.461
shall be replaced with the following language:
"Administrator means the Administrator of the United States
Environmental Protection Agency."
(f) The definition of Existing in Section 63.461 shall
be replaced with the following language: "Existing means
any solvent cleaning machine the construction or
reconstruction of which was commenced on or before
November 29, 1993. An existing solvent cleaning machine
moved within a contiguous facility or to another facility
under the same ownership remains an existing machine."
(g) The definition of Part in Section 63.461 shall be
replaced with the following language: "Part means any
object that is cleaned or dried in a solvent cleaning machine.
Parts include, but are not limited to, discrete parts,
assemblies, sets of parts, and parts cleaned or dried in a
continuous web cleaning machine (i.e., continuous sheets of
metal or film)."
(h) The definition of Solvent cleaning machine in
Section 63.461 shall be replaced with the following
language: "Solvent cleaning machine means any device or
piece of equipment that uses halogenated HAP solvent liquid
or vapor to remove soils from the surfaces of materials.
Types of solvent cleaning machines include, but are not
limited to, batch vapor, in-line vapor, in-line cold, and batch
cold solvent cleaning machines. Buckets, pails, and beakers
with capacities of one liter (30 ounces) or less are not
considered solvent cleaning machines."
(i) The definition of Working mode in Section 63.461
shall be replaced with the following language: "Working
mode means the time period when the solvent cleaning
machine is actively cleaning or drying parts."
(j) Paragraph 63.462(b) shall be replaced with the
following language: "Each owner or operator of a remotereservoir
batch cold solvent cleaning machine shall employ a
tightly fitting cover over the sink-like work area that shall be
closed at all times except during the cleaning of parts."
(k) Paragraph 63.462(c) shall be replaced with the
following language: "Each owner or operator of a batch cold
solvent cleaning machine complying with paragraph (a) or
(b) of this section shall comply with the work and
operational practice requirements specified in paragraphs
(c)(1) through (c)(11) of this section as applicable."
(l) Paragraph 63.462(c)(2) shall be replaced with the
following language: "If a flexible hose or flushing device is
used, flushing shall be performed only within the freeboard
area of the solvent cleaning machine. The solvent spray shall
be a solid fluid stream, not an atomized or shower spray, at a
pressure that does not exceed 10 pounds per square inch
gauge."
(m) Paragraph 63.462(c)(3) shall be replaced with the
following language: "The owner or operator shall drain
solvent cleaned parts for 15 seconds or until dripping has
stopped, whichever is longer. Parts having cavities or blind
holes shall be tipped or rotated while draining. During the
draining, tipping or rotating, the parts shall be positioned so
the solvent drains directly into the solvent cleaning
machine."
(n) Paragraph 63.462(c)(5) shall be replaced with the
following language: "Spills during solvent transfer or use of
the solvent cleaning machine shall be wiped up immediately.
The wipe rags or other sorbent material shall be stored in
closed containers meeting the requirements of paragraph
(c)(1) of this section."
(o) Paragraph 63.462(c)(6) shall be replaced with the
following language: "When a pump-agitated solvent bath is
used, the owner or operator shall ensure that the agitator is
operated to produce a rolling motion of the solvent with no
observable splashing against tank walls or parts being
cleaned. Air-agitated solvent baths shall not be used."
(p) Paragraph 63.462(c)(7) shall be replaced with the
following language: "The owner or operator shall ensure
that, when the cover is open, the cold cleaning machine is
not exposed to drafts greater than 40 meters per minute (132
feet per minute), as measured between 1 and 2 meters (3.3
and 6.6 feet) upwind and at the same elevation as the tank
lip. In addition, work area fans shall be located and
positioned so that they do not blow across the opening of the
solvent cleaning machine."
(q) Paragraphs 63.462(c)(10), 63.463(g)(4)(x), and
63.463(h)(3)(ix) shall be added and paragraph 63.463(d)(10)
shall be replaced with the following language: "Each
operator of a solvent cleaning machine shall complete and
pass the applicable sections of the test of solvent cleaning
procedures in appendix A of this subpart if requested during
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
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1120 FINAL REGULATIONS
an inspection by the Department."
(r) Paragraph 63.462(c)(11) shall be added with the
following language: "The owner or operator shall provide a
permanent, legible, conspicuous label summarizing the
operating requirements in paragraph (c) of this section."
(s) Paragraph 63.463(b)(1)(i) shall be replaced with the
following language: "Employ one of the control
combinations listed in Table 463-1 of this subpart.
Alternatively, equivalent methods of control can be
submitted to and approved by the Administrator, using the
procedure in Sec. 63.469."
(t) Replace the title of Table 1 in Section 63.463 with
the following title: "Table 463-1 -- Control Combinations
for Batch Vapor Solvent Cleaning Machines With a Solvent/
Air Interface Area of 1.21 Square Meters (13 Square Feet) or
Less".
(u) Paragraph 63.463(b)(1)(ii) shall be replaced with
the following language: "Demonstrate that their solvent
cleaning machine can achieve and maintain an idling
emission limit of 0.22 kilograms per hour per square meter
(0.045 pounds per hour per square foot) of solvent/air
interface area as determined using the procedures in Sec.
63.465(a) and Method 307 in appendix A of 40 CFR part
63."
(v) Paragraph 63.463(b)(2)(i) shall be replaced with the
following language: "Employ one of the control
combinations listed in Table 463-2 of this subpart.
Alternatively, equivalent methods of control can be
submitted to and approved by the Administrator, using the
procedure in Sec. 63.469."
(w) Replace the title of Table 2 in Section 63.463 with
the following title: "Table 463-2 -- Control Combinations for
Batch Vapor Solvent Cleaning Machines With a Solvent/Air
Interface Area Greater than 1.21 Square Meters (13 Square
Feet)".
(x) Paragraph 63.463(b)(2)(ii) shall be replaced with
the following language: "Demonstrate that their solvent
cleaning machine can achieve and maintain an idling
emission limit of 0.22 kilograms per hour per square meter
(0.045 pounds per hour per square foot) of solvent/air
interface area as determined using the procedures in Sec.
63.465(a) and Method 307 in appendix A of 40 CFR part
63."
(y) Paragraph 63.463(c)(1)(i) shall be replaced with the
following language: "Employ one of the control
combinations listed in Table 463-3 of this subpart.
Alternatively, equivalent methods of control can be
submitted to and approved by the Administrator, using the
procedure in Sec. 63.469."
(z) Replace the title of Table 3 in Section 63.463 with
the following title: "Table 463-3 -- Control Combinations
for Existing In-Line Solvent Cleaning Machines".
(aa) Paragraph 63. 463(c)(1)(ii) shall be replaced
with the following language: "Demonstrate that their solvent
cleaning machine can achieve and maintain an idling
emission limit of 0.10 kilograms per hour per square meter
(0.021 pounds per hour per square foot) of solvent/air
interface area as determined using the procedures in Sec.
63.465(a) and Method 307 in appendix A of 40 CFR part
63."
(bb) Paragraph 63. 463(c)(2)(i) shall be replaced
with the following language: "Employ one of the control
combinations listed in Table 463-4 of this subpart.
Alternatively, equivalent methods of control can be
submitted to and approved by the Administrator, using the
procedure in Sec. 63.469."
(cc) Replace the title of Table 4 in Section 63.463
with the following title: "Table 463-4 Control
Combinations for New In-Line Solvent Cleaning Machines".
(dd) Paragraph 63. 463(c)(2)(ii) shall be replaced
with the following language: "Demonstrate that their solvent
cleaning machine can achieve and maintain an idling
emission limit of 0.10 kilograms per hour per square meter
(0.021 pounds per hour per square foot) of solvent/air
interface area as determined using the procedures in Sec.
63.465(a) and Method 307 in appendix A of 40 CFR part
63."
(ee) Paragraph 63. 463(d) shall be replaced with the
following language: "Except as provided in Sec. 63.464 for
all cleaning machines, each owner or operator of an existing
or new batch vapor or in-line solvent cleaning machine shall
meet all of the following required work and operational
practices specified in paragraphs (d)(1) through (d)(15) of
this section as applicable. The owner or operator of a
continuous web cleaning machine shall comply with the
requirements of paragraph (g) or (h) of this section, as
appropriate, in lieu of complying with this paragraph."
(ff) Add the following language at the end of
paragraphs 63.463(d)(3), 63.463(g)(4)(ii), and
63.463(h)(3)(i): "The solvent spray shall be a solid fluid
stream, not an atomized or shower spray."
(gg) Paragraphs 63. 463(d)(8), 63.463(g)(4)(v), and
63.463(h)(3)(iv) shall be replaced with the following
language: "When solvent is added to or drained from any
solvent cleaning machine, the solvent shall be transferred
using threaded or other leak-proof couplings, and the
discharge end of the pipe shall be located beneath the liquid
solvent surface."
(hh) Paragraph 63. 463(d)(13) shall be added with
the following language: "Spills during solvent transfer or use
of the solvent cleaning machine shall be wiped up
immediately. The wipe rags or other sorbent material shall
be stored in closed containers meeting the requirements of
paragraph (d)(11) of this section."
(ii) Paragraphs 63. 463(d)(14), 63.463(g)(4)(xii),
and 63.463(h)(3)(xi) shall be added with the following
language: "Work area fans shall be located and positioned so
that they do not blow across the opening of the solvent
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1121
cleaning machine."
(jj) Paragraph 63. 463(d)(15) shall be added with
the following language: "The owner or operator shall
provide a permanent, legible, conspicuous label
summarizing the operating requirements in paragraph (d) of
this section."
(kk) Paragraph 63. 463(e)(2)(vii)(A) shall be
replaced with the following language: "Ensure that the
concentration of halogenated HAP solvents in the exhaust
from this device does not exceed 25 parts per million of
halogenated HAP solvents as measured using the procedure
in Sec. 63.466(e). If the halogenated HAP solvent
concentration in the carbon adsorber exhaust exceeds 25
parts per million, the owner or operator shall adjust the
desorption schedule or replace the disposable canister, if not
a regenerative system, so that the exhaust concentration of
halogenated HAP solvent is brought below 25 parts per
million."
(ll) Paragraph 63. 463(e)(2)(x)(B) shall be
replaced with the following language: "Maintain the selected
air knife parameter value at the level determined in
paragraph (e)(2)(x)(A) of this section."
(mm) Paragraph 63. 463(e)(2)(xi)(B) shall be
replaced with the following language: "Maintain the selected
parameter value at the level determined in paragraph
(e)(2)(xi)(A) of this section."
(nn) Paragraph 63. 463(e)(3)(i) shall be replaced
with the following language: "An exceedance has occurred if
the requirements of paragraphs (e)(2)(ii)(B), (e)(2)(iii)(A),
(e)(2)(iv)(A), (e)(2)(v), (e)(2)(vi)(B), (e)(2)(vi)(C),
(e)(2)(vii)(B), (e)(2)(vii)(C), (e)(2)(viii), (e)(2)(ix)(A)
through (e)(2)(ix)(D), (e)(2)(x)(A) through (e)(2)(x)(C), or
(e)(2)(xi)(A) through (e)(2)(xi)(C) of this section have not
been met."
(oo) Paragraph 63. 463(e)(3)(ii) shall be replaced
with the following language: "An exceedance has occurred if
the requirements of paragraphs (e)(2)(i), (e)(2)(ii)(A),
(e)(2)(iii)(B), (e)(2)(iv)(B), (e)(2)(vi)(A), (e)(2)(vii)(A),
(e)(2)(ix)(E), (e)(2)(x)(D), or (e)(2)(xi)(D) of this section
have not been met and are not corrected within 15 days of
detection. Adjustments or repairs shall be made to the
solvent cleaning system or control device to reestablish
required levels. The parameter must be remeasured
immediately upon adjustment or repair and demonstrated to
be within required limits."
(pp) Paragraph 63. 463(g)(2) shall be replaced with
the following language: "If a carbon adsorber system can be
demonstrated to the Department's satisfaction to have an
overall solvent control efficiency (i.e., capture efficiency
times removal efficiency) of 70 percent or greater, this
system is equivalent to the options in paragraph (g) of this
section."
(qq) Paragraph 63. 463(g)(4)(i)(A) shall be replaced
with the following language: "Cover(s) to each solvent
cleaning machine shall be in place during the idling mode
and during the downtime mode unless either the solvent has
been removed from the machine or maintenance or
monitoring is being performed that requires the cover(s) to
not be in place. A continuous web part that completely
occupies an entry or exit port when the machine is idle is
considered to meet this requirement."
(rr) Paragraph 63. 463(g)(4)(xi) shall be added
with the following language: "Spills during solvent transfer
or use of the solvent cleaning machine shall be wiped up
immediately. The wipe rags or other sorbent material shall
be stored in closed containers meeting the requirements of
paragraph (g)(4)(vii) of this section."
(ss) Paragraph 63. 463(g)(4)(xiii) shall be added
with the following language: "The owner or operator shall
provide a permanent, legible, conspicuous label
summarizing the operating requirements in paragraph (g)(4)
of this section."
(tt) Paragraph 63. 463(h) shall be replaced with the
following language: "Except as provided in Sec. 63.464,
each owner or operator of a remote reservoir continuous web
cleaning machine shall comply with paragraphs (h)(1)
through (h)(3) of this section."
(uu) Paragraph 63. 463(h)(1)(iii) shall be replaced
with the following language: "If a carbon adsorber system
can be demonstrated to the Department's satisfaction to have
an overall solvent control efficiency (i.e., capture efficiency
times removal efficiency) of 70 percent or greater, this
system is equivalent to the options in paragraphs (h)(1)(i)
and (h)(1)(ii) of this section."
(vv) Paragraph 63. 463(h)(3)(x) shall be added with
the following language: "Spills during solvent transfer or use
of the solvent cleaning machine shall be wiped up
immediately. The wipe rags or other sorbent material shall
be stored in closed containers meeting the requirements of
paragraph (h)(3)(vi) of this section."
(ww) Paragraph 63. 463(h)(3)(xii) shall be added
with the following language: "The owner or operator shall
provide a permanent, legible, conspicuous label
summarizing the operating requirements in paragraph (h)(3)
of this section."
(xx) Paragraph 63. 464(a)(1)(ii) shall be replaced
with the following language: "Ensure that the emissions
from each solvent cleaning machine are equal to or less than
the applicable emission limit presented in Table 464-1 of this
subpart as determined using the procedures in Sec. 63.465(b)
and (c)."
(yy) Replace the title of Table 5 in Section 63.464
with the following title: "Table 464-1 -- Emission Limits
for Batch Vapor and In-Line Solvent Cleaning Machines
With a Solvent/Air Interface ".
(zz) Paragraph 63. 464(a)(2)(ii) shall be added with
the following language: "Ensure that the emissions from
each solvent cleaning machine are equal to or less than the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
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1122 FINAL REGULATIONS
appropriate limits as described in paragraphs (a)(2)(ii)(A) or
(a)(2)(ii)(B) of this section, as applicable."
(aaa) Paragraph 63. 464(a)(2)(ii)(A) shall be
replaced with the following language: "For cleaning
machines with a cleaning capacity, as reported in Sec.
63.468(d), that is less than or equal to 2.95 cubic meters (104
cubic feet), the emission limit shall be determined using
Table 464-2. If the cleaning capacity of the cleaning
machine falls between two cleaning capacity sizes, then the
lower of the two emission limits applies."
(bbb) Replace the title of Table 6 in Section 63.464
with the following title: "Table 464-2 Emission Limits
for Cleaning Machines Without a Solvent/Air Interface ".
(ccc) Paragraph 63. 465(a) shall be replaced with the
following language: "Except as provided in paragraphs (f)
and (g) of this section for continuous web cleaning
machines, each owner or operator of a batch vapor or in-line
solvent cleaning machine complying with an idling emission
limit standard in Sec. 63.463(b)(1)(ii), (b)(2)(ii), (c)(1)(ii), or
(c)(2)(ii) shall determine the idling emission rate of the
solvent cleaning machine using Method 307 in appendix A
of 40 CFR part 63."
(ddd) Replace the definitions of Ei in paragraph
63.365(c)(3) with the following language: "Ei = halogenated
HAP solvent emissions for each month (j) for the most
recent 3 monthly reporting periods, (kilograms of solvent per
square meter of solvent/air interface area per month)."
(eee) Equation 8 shall be replaced with the following
equation: "Eo = (Ri * 100) / (Ri + Sai - SSRi) (Eq. 8)"
(fff) Paragraph 63.466(c) shall be replaced with the
following language: "Except as provided in paragraph (g) of
this section, each owner or operator of a batch vapor or inline
solvent cleaning machine complying with the equipment
or idling standards in Sec. 63.463 shall monitor the hoist
speed and record the results as described in paragraphs (c)(1)
through (c)(4) of this section."
(ggg) The entire content of Paragraph 63.466(e) shall
be replaced with the following language: "Except as
provided in paragraph (g) of this section, each owner or
operator using a carbon adsorber to comply with this subpart
shall measure and record the concentration of halogenated
HAP solvents in the exhaust of the carbon adsorber daily.
This test shall be conducted while the solvent cleaning
machine is in the working mode and is venting to the carbon
adsorber. The exhaust concentration shall be determined as
specified in paragraphs (e)(1) and (e)(2) of this section.
(1) Measure the solvent concentration in the
exhaust using one of the following analytical techniques:
(A) A colorimetric detector tube designed to
measure a concentration of 25 parts per million by volume of
the halogenated HAP solvent in air to an accuracy of ??25
percent and used in accordance with the manufacturer's
instructions.
(B) A flame ionization analyzer used in
accordance with Method 25A in appendix A of 40 CFR part
60.
(C) A nondispersive infrared analyzer used in
accordance with Method 25B in appendix A of 40 CFR part
60.
(2) Provide a sampling port for monitoring within
the exhaust outlet of the carbon adsorber that is easily
accessible and located at least 8 stack or duct diameters
downstream from any flow disturbance such as a bend,
expansion, contraction, or outlet; downstream from no other
inlet; and 2 stack or duct diameters upstream from any flow
disturbance such as a bend, expansion, contraction, inlet or
outlet."
(hhh) Paragraph 63.467(b)(4) shall be replaced with
the following language: "If a carbon adsorber is used to
comply with these standards, records of the date and results
of the daily measurement of the halogenated HAP solvent
concentration in the carbon adsorber exhaust required in Sec.
63.466(e)."
(iii) Paragraph 63.468(b) shall be replaced with the
following language: "Each owner or operator of a new
solvent cleaning machine subject to the provisions of this
subpart shall submit an initial notification report to the
Department. New sources shall submit this report as soon as
practicable before the construction or reconstruction is
planned to commence or [October November] 11, 2001,
whichever is later. This report shall include all of the
information required in Sec. 63.5(d)(1) of subpart A of this
regulation, with the revisions and additions in paragraphs
(b)(1) through (b)(3) of this section."
(jjj) Paragraph 63.468(b)(1) shall be replaced with
the following language: "The report shall include a brief
description of each solvent cleaning machine including
machine type (batch vapor, batch cold, vapor in-line or cold
in-line), solvent/air interface area, and existing controls."
(kkk) Paragraph 63.468(b)(3) shall be replaced with
the following language: "In lieu of Sec. 63.5(d)(1)(ii)(H) of
subpart A of this regulation, the owner or operator must
report an estimate of annual halogenated HAP solvent
consumption for each solvent cleaning machine."
(lll) Paragraph 63.468(c) shall be replaced with the
following language: "Each owner or operator of a batch cold
solvent cleaning machine subject to the provisions of this
subpart shall submit a compliance report to the Department.
For existing sources, this report shall be submitted to the
Department no later than [October November] 11, 2001.
For new sources, this report shall be submitted to the
Department no later than 150 days after startup or [October
November] 11, 2001, whichever is later. This report shall
include the requirements specified in paragraphs (c)(1)
through (c)(4) of this section."
(mmm) Paragraph 63.468(d) shall be replaced with the
following language: "Each owner or operator of a batch
vapor or in-line solvent cleaning machine complying with
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1123
the provisions of Sec. 63.463 shall submit to the Department
an initial statement of compliance for each solvent cleaning
machine. For existing sources, this report shall be submitted
to the Department no later than [October November] 11,
2001. For new sources, this report shall be submitted to the
Department no later than 150 days after startup or October
11, 2001, whichever is later. This statement shall include the
requirements specified in paragraphs (d)(1) through (d)(7) of
this section."
(nnn) Paragraph 63.468(d)(6) shall be replaced with
the following language: "Each owner or operator of a solvent
cleaning machine complying with the idling emission limit
standards of Sec. 63.463(b)(1)(ii), (b)(2)(ii), (c)(1)(ii), and
(c)(2)(ii) shall submit a test report for tests of idling
emissions meeting the specifications in Method 307 in
appendix A of 40 CFR part 63. This report shall comply with
the requirements specified in paragraphs (d)(6)(i) through
(d)(6)(iv) of this section."
(ooo) Paragraph 63.468(d)(6)(iv) shall be replaced
with the following language: "If a solvent cleaning machine
vendor or third party test report is used, the owner or
operator of the solvent cleaning machine shall comply with
the requirements specified in paragraphs (d)(6)(iv)(A) and
(d)(6)(iv)(B) of this section."
(ppp) Paragraph 63.468(d)(7) shall be replaced with
the following language: "If a carbon adsorber is used to
comply with these standards, the date and results of the daily
measurement of the halogenated HAP solvent concentration
in the carbon adsorber exhaust required in Sec. 63.466(e)."
(qqq) Paragraph 63.468(e) shall be replaced with the
following language: "Each owner or operator of a batch
vapor or in-line solvent cleaning machine complying with
the provisions of Sec. 63.464 shall submit to the Department
an initial statement of compliance for each solvent cleaning
machine. For existing sources, this report shall be submitted
to the Department no later than [October November] 11,
2001. For new sources, this report shall be submitted to the
Department no later than 150 days after startup or [October
November] 11, 2001, whichever is later. The statement shall
include the information specified in paragraphs (e)(1)
through (e)(4) of this section."
(rrr) Paragraph 63.468(i)(3) shall be replaced with the
following language: "The Department does not object to a
reduced frequency of reporting for the affected source as
provided in paragraph (e)(3)(iii) in Sect. 63.10 of subpart A
of this regulation."
(sss) Paragraph 63.468(j) shall be replaced with the
following language: "The owner or operator of any batch
cold solvent cleaning machine that is not a major source and
is not located at a major source, as defined in Regulation 30
of State of Delaware "Regulations Governing the Control of
Air Pollution", is exempt from title V permitting
requirements in Regulation 30 for that source, provided the
owner or operator is not otherwise required to obtain a title V
permit. The owner or operator of any other solvent cleaning
machine subject to the provisions of this subpart is also
subject to title V permitting requirements. These sources are
deferred from title V permitting requirements until
December 9, 2004, if the source is not a major source and is
not located at a major source, as defined in Regulation 30,
and is not otherwise required to obtain a title V permit. All
sources receiving a deferral under this section shall submit a
title V permit application by December 9, 2005. All sources
receiving a deferral from title V permitting requirements
shall comply with the provisions of this subpart applicable to
area sources."
(ttt) Paragraph 63.468(k) shall be replaced with the
following language: "Each owner or operator of a solvent
cleaning machine requesting an equivalency determination,
as described in Sec. 63.469 shall submit an equivalency
request report to the Administrator (with copy to the
Department). For existing sources, this report must be
submitted to and approved by the Administrator no later than
[October November] 11, 2001. For new sources, this report
must be submitted to and approved by the Administrator
prior to startup or [October November] 11, 2001,
whichever is later."
(uuu) The first sentence in Section 63.469 shall be
replaced with the following language: "Upon written
application to the Administrator (with copy to the
Department), the Administrator may approve the use of
equipment or procedures after they have been satisfactorily
demonstrated to be equivalent, in terms of reducing
emissions of methylene chloride, perchloroethylene,
trichloroethylene, 1,1,1-trichloroethane, carbon tetrachloride
or chloroform to the atmosphere, to those prescribed for
compliance within a specified paragraph of this subpart."
(vvv) Add the following language after Section
63.470: "[59 FR 61805, Dec. 2, 1994; as amended at 63 FR
68400, Dec. 11, 1998]"
(www) Option B. for test question 9 in Appendix A to
Subpart T shall be replaced with the following language:
"With the discharge end of the pipe below the liquid solvent
surface".
(xxx) Replace the title of table following Section
63.470 with the following title: "Table 1 of Subpart T of
Regulation 38 - Subpart A (General Provisions)
Applicability to Subpart T".
(yyy) In Table 1 of Subpart T, change the
applicability from each "No" to "Yes" for the following
"General provision references":
(i) "63.1(b)(2)";
(ii) "63.1(b)(3)";
(iii) "63.1(e)";
(iv) "63.5(b)(3)";
(v) "63.5(c)";
(vi) "63.5(d)-(f)"; and
(vii)"63.9(b)(4)".
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1124 FINAL REGULATIONS
(zzz) In Table 1 of Subpart T, delete the comment(s)
for the following "General provision references":
(i) "63.1(b)(3)";
(ii) "63.5(b)(3)";
(iii) "63.5(d)-(f)";
(iv) "63.6(c)(1)-(2)"; and
(v) "63.9(b)(4)".
(aaaa) In Table 1 of Subpart T, the comment for
63.1(a)(4) under "General provision references" shall be
replaced with the following language: "Table 1 to Subpart T
specifies applicability of each paragraph in subpart A to
subpart T."
(bbbb) In Table 1 of Subpart T, the comment for
63.1(b)(2) under "General provision references" shall be
replaced with the following language: "However, subpart T
exempts certain BCC from Regulation 30 permitting
requirements."
(cccc) In Table 1 of Subpart T, the comments for
63.1(c)(2) under "General provision references" shall be
replaced with the following language: "Subpart T, Sec.
63.468[(h) (j)], indicates a title V permit exemption for
halogenated HAP batch cold solvent cleaning machines that
are not major sources [or and are not] located at a major
source[, as defined in Regulation 30, and are not
otherwise required to obtain a title V permit]. This
section also specifies a deferral from the requirement of a
title V permit for owners or operators of solvent cleaning
machines subject to subpart T provisions that are not major
sources [or and are] not located at a major source[, as
defined in Regulation 30, and are not otherwise required
to obtain a title V permit]."
(dddd) In Table 1 of Subpart T, the comments for
63.1(c)(5) under "General provision references" shall be
replaced with the following language: "Subpart T does not
require continuous monitoring systems (CMS) or continuous
opacity monitoring systems (COMS). Therefore,
notifications and requirements for CMS and COMS
specified in subpart A do not apply to subpart T."
(eeee) In Table 1 of Subpart T, the comments for
63.6(c)(5) under "General provision references" shall be
replaced with the following language: "Subpart T has the
same requirements for affected halogenated HAP solvent
cleaning machine subcategories that are located at area
sources as it does for those located at major sources."
(ffff) In Table 1 of Subpart T, the comments for
63.7(g) under "General provision references" shall be
replaced with the following language: "Subpart T specifies
what is required to demonstrate idling emission standard
compliance through the use of Method 307 in appendix A of
40 CFR part 63 and control device monitoring. Reports and
records of testing and monitoring are required for
compliance verification. Three runs of the test are required
for compliance, as specified in Sec. 63.7(e) of subpart A."
(gggg) In Table 1 of Subpart T, the replace 63.9(g)(1)
under "General provision references" with the following
language: "63.9(g)".
(hhhh) In Table 1 of Subpart T, the comments for
63.9(h) under "General provision references" shall be
replaced with the following language: "Section 63.468 of
subpart T requires an initial statement of compliance for
existing sources to be submitted to the Department no later
than [October November] 11, 2001. For new sources, this
report is to be submitted to the Department no later than 150
days after startup or [October November] 11, 2001,
whichever is later."
[(iiii) Paragraph 63.466(a)(5) shall be replaced
with the following language: "As an alternative to
complying with paragraph (a)(4) of this section, the
owner or operator can provide data, sufficient to satisfy
the Department, that demonstrate that the part
temperature remains above the boiling point of the
solvent at all times that the part is within the continuous
web solvent cleaning machine. This data could include
design and operating conditions such as information
supporting any exothermic reaction inherent in the
processing."
(jjjj) Paragraph 63.468(d)(6)(iv)(B) shall be
replaced with the following language: "Demonstrate to
the Department's satisfaction that the solvent emissions
from the solvent cleaning machine for which the test
report is being submitted are equal to or less than the
solvent emissions from the solvent cleaning machine in
the vendor test report."]
Table T-1 of Subpart T - Exceptions to "Department" as
replacement of "Administrator" under Subpart T
Reference "Administrator"
means
"Administrator"
Comment
63.460(e) Yes -
63.461 Yes As replaced.
63.463(b)(1)(i) Yes As replaced.
63.463(b)(2)(i) Yes As replaced.
63.463(c)(1)(i) Yes As replaced.
63.463(c)(2)(i) Yes As replaced.
63.463(d)(4) Yes As replaced.
63.463(d)(9) Yes -
63.463(f)(1)(ii) Yes -
63.463(f)(4)(ii) Yes -
63.463(g)(4)(vi) Yes -
63.463(h)(3)(v) Yes -
63. 464(d) Yes -
[63.466(a)(5)] [Yes] [-]
63.466(f)(2) Yes -
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1125
63.466(g) Yes -
[63.468(d)(6)(iv)(B)] [Yes] [-]
63.468(k) Yes As replaced.
63.469 Yes As replaced.
Table 1 of Subpart T Yes -
DIVISION OF AIR & WASTE MANAGEMENT
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.:
RE:Proposed Regulation 41
(Limiting VOC Emissions from Consumer and
Commercial Products) Section 3:
-Portable Fuel Containers-
Date of Issuance: September 17, 2001
Effective Date of the Amendment: November 11. 2001
I. Background
On Wednesday, August 29, 2001, a public hearing was
held in the Priscilla Building Conference Room of DNREC
in Dover to receive comment on the proposed adoption of
Regulation 41 (Limiting Emissions of Volatile Organic
Compounds From Consumer and Commercial Products),
Section 3 - Portable Fuel Containers of the Regulations
Governing the Control of Air Pollution. The proposed
Regulation 41 - Section 3 - specifically concerns the use of
portable fuel containers, and is intended to reduce refueling
emissions from equipment and engines that are
predominantly refueled with portable containers. The
Department is proposing these regulations to aid Delaware in
attaining compliance with the ground-level ozone standard
set by the Environmental Protection Agency (EPA).
Regulations similar to the aforementioned proposed Section
3 are being developed by other States in the region. Also,
similar regulations are already in effect in the State of
California. Proper notice of the hearing was provided as
required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated September 14, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed adoption of Regulation No. 41, Section 3. In
addition, the record will show that the following findings
have been made:
1. Proper notice of the hearing was provided as required
by law.
2. This regulation will require each portable fuel
container and/or spout sold to meet the following
requirements:
• Have an automatic shut-off and closure device;
• Contain one opening for filling, pouring, and venting;
• Provide certain fuel flow based on nominal capacity;
and
• Meet a permeation standard.
III. Order
It is hereby ordered that the proposed adoption of
Regulation No. 41, Section 3, be promulgated in final form
in accordance with the customary and established rulemaking
procedure required by law.
IV. Reasons
The adoption of Regulation 41, Section 3, will aid the
State of Delaware in attaining compliance with the groundlevel
ozone standard set by the Environmental Protection
Agency (EPA), and will assist the Department in furtherance
of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
Section 3 - Portable Fuel Containers
[10/31/01 11/1/01]
a. Applicability.
1. This Section applies to any person who sells,
supplies, offers for sale, or manufactures for sale portable
fuel container(s) or spout(s) or both portable fuel
container(s) and spout(s) for use in the State of Delaware;
except:
i Safety cans meeting the requirements of 29
CFR 1926, Subpart F.
ii Portable fuel containers with a nominal
capacity less than or equal to one quart.
iii Rapid refueling devices with nominal
capacities greater than or equal to four gallons provided such
devices are designed for use in officially sanctioned offhighway
motorcycle competitions, and either create a leakproof
seal against a stock target fuel tank or are designed to
operate in conjunction with a receiver permanently installed
on the target fuel tank.
iv. Portable fuel tanks manufactured specifically
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1126 FINAL REGULATIONS
to deliver fuel through a hose attached between the portable
fuel tank and an outboard engine for the purpose of operating
that outboard engine.
2. Compliance with the requirements of this Section
does not exempt any spill-proof system or spill-proof spout
from compliance with other applicable Federal or State
requirements.
3. The requirements of this Section apply on and after
January 1, 2003, except that, any portable fuel container or
spout or both portable fuel container and spout manufactured
before January 1, 2003 that does not meet the requirements
of this Section, may be sold, supplied, or offered for sale
until January 1, 2004, provided that the date of manufacture
or a date code, representing the date of manufacture, is
clearly displayed on the portable fuel container or spout.
4. Any person subject to any requirement of this
Section may comply with an alternative control plan that has
been approved by the Department and the U.S. EPA as part
of Delaware's State Implementation Plan.
b. Definitions.
For the purpose of this Section, the following definitions
apply:
"Fuel" means a hydrocarbon mixture used to power any
spark ignition internal combustion engine.
"Manufacturer" means any person who imports,
manufactures, produces, assembles, packages, repackages,
or re-labels a portable fuel container or spout or both
portable fuel container and spout.
"Nominal Capacity" means the volume, indicated by the
manufacturer that represents the maximum recommended
filling level.
"Outboard Engine" means a spark-ignition marine
engine that, when properly mounted on a marine watercraft
in the operating position, houses the engine and drive unit
external to the hull of the marine watercraft.
"Permeation" means the process by which individual
fuel molecules may penetrate the walls and various assembly
components of a portable fuel container directly to the
outside ambient air.
"Person" means any individual, public or private
corporation, political subdivision, government agency,
department or bureau of the State, municipality, industry, copartnership,
association, firm, estate or any legal entity
whatsoever.
"Portable Fuel Container" means any container or
vessel with a nominal capacity of ten gallons or less that is
intended for reuse and that is designed or used primarily for
receiving, transporting, storing, and dispensing fuel.
"Spill-Proof Spout" means any spout that complies with
all of the performance standards specified in paragraph
(c)(2) of this Section.
"Spill-Proof System" means any configuration of
portable fuel container and firmly attached spout that
complies with all of the performance standards in paragraph
(c)(1) of this Section.
"Spout" means any device that can be firmly attached to
a portable fuel container, through which the contents of a
portable fuel container can be dispensed.
"Target Fuel Tank" means any receptacle that receives
fuel from a portable fuel container.
c. Standards.
1. No person subject to the requirements of this
Section shall sell, supply, offer for sale, or manufactures for
sale portable fuel container(s) or spout(s) or both portable
fuel container(s) and spout(s) for use in the State of
Delaware which does not:
i. Have an automatic shut-off that stops the fuel
flow before the target fuel tank overflows.
ii. Automatically close and seal when removed
from the target fuel tank, and remain completely closed
when not dispensing fuel.
iii. Have only one opening for both filling and
pouring.
iv. Provide a fuel flow rate and fill level of:
A. not less than one-half gallon per minute
for portable fuel containers with a nominal capacity of:
1. less than or equal to 1.5 gallons and
fills to a level less than or equal to 1 inch below the top of
the target fuel tank opening; or
2. greater than 1.5 gallons but less than
or equal to 2.5 gallons and fills to a level less than or equal to
1 inch below the top of the target fuel tank opening if the
spill-proof system clearly displays the phrase "Low Flow
Rate" in type of 34 point or greater on each spill-proof
system or label affixed thereto, and on the accompanying
package, if any; or
B. not less than one gallon per minute for
portable fuel containers with a nominal capacity greater than
1.5 gallons but less than or equal to 2.5 gallons and fills to a
level less than or equal to 1.25 inches below the top of the
target fuel tank opening; or,
C. not less than two gallons per minute for
portable fuel containers with a nominal capacity greater than
2.5 gallons.
v. Meet a permeation rate of 0.4 grams per gallon
per day or less.
vi. Have a warranty from the manufacturer for a
period of not less than one year against defects in materials
and workmanship.
2. No person subject to the requirements of this
Section shall sell, supply, offer for sale, or manufacture for
sale any spout for use in the State of Delaware, which does
not:
i. Have an automatic shut-off that stops the fuel
flow before the target fuel tank overflows.
ii. Automatically close and seal when removed
from the target fuel tank, and remain completely closed
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1127
when not dispensing fuel.
iii. Provide a fuel flow rate and fill level of:
A. not less than one-half gallon per minute
for portable fuel containers with a nominal capacity of:
1. less than or equal to 1.5 gallons and
fills to a level less than or equal to 1 inch below the top of
the target fuel tank opening; or,
2. greater than 1.5 gallons but less than
or equal to 2.5 gallons and fills to a level less than or equal to
1 inch below the top of the target fuel tank opening if the
spill-proof spout clearly displays the phrase "Low Flow
Rate" in type of 34 point or greater on the accompanying
package, or for spill-proof spouts sold without packaging, on
either the spill-proof spout or a label affixed thereto; or,
B. not less than one gallon per minute for
portable fuel containers with a nominal capacity greater than
1.5 gallons but less than or equal to 2.5 gallons and fills to a
level less than or equal to 1.25 inches below the top of the
target fuel tank opening; or,
C. not less than two gallons per minute for
portable fuel containers with a nominal capacity greater than
2.5 gallons.
iv. Have a warranty from the manufacturer for a
period of not less than one year against defects in materials
and workmanship.
d. Testing Procedures.
1. Any manufacturer subject to the requirements of
paragraph (c) of this Section shall perform the following
compliance tests in accordance with test methods and
procedures stated, or as otherwise approved by the
Department and the Administrator of the EPA. Records of
compliance testing shall be maintained for as long as the
product is available for sale in Delaware, and test results
shall be made available to the Department within 60 days of
request.
i. The following tests shall be carried out to
determine compliance with paragraph (c)(2) of this Section
prior to the product being manufactured for sale in
Delaware:
A. "Test Method 510, Automatic Shut-Off
Test Procedure for Spill-Proof Systems and Spill-Proof
Spouts" adopted by California Air Resources Board (CARB)
on July 6, 2000. This test method is hereby adopted by
reference.
B. "Test Method 511, Automatic Closure
Test Procedure for Spill-Proof Systems and Spill-Proof
Spouts" adopted by CARB on July 6, 2000. This test
method is hereby adopted by reference.
C. "Test Method 512, Determination of Fuel
Flow Rate for Spill-Proof Systems and Spill-Proof Spouts"
adopted by CARB on July 6, 2000. This test method is
hereby adopted by reference.
ii. The following tests shall be carried out to
determine compliance with paragraph (c)(1) of this Section
prior to the product being manufactured for sale:
A. All of the test procedures stated in
paragraph (d)(1)(i) of this Section.
B. "Test Method 513, Determination of
Permeation Rate for Spill-Proof Systems," adopted by
CARB on July 6, 2000. This test method is hereby adopted
by reference.
e. Administrative Requirements.
1. Any manufacturer subject to the requirements of
paragraph (c)(1) of this Section shall clearly display on each
spill-proof system:
i. the phrase "Spill-Proof System";
ii. a date of manufacture or representative date
code; and
iii. a representative code identifying the portable
fuel container or portable fuel container and spout as subject
to and complying with the requirements of paragraph (c)(1)
of this Section.
2. Any person subject to the requirements of
paragraph (c)(2) of this Section shall clearly display on the
accompanying package, or for spill-proof spouts sold
without packaging, on either the spill-proof spout or a label
affixed thereto:
i. the phrase "Spill-Proof Spout";
ii. a date of manufacture or representative date
code; and
iii. a representative code identifying the spout as
subject to and complying with the requirements of paragraph
(c)(2) of this Section.
3. Any manufacturer subject to paragraph (e)(1) and/
or paragraph (e)(2) of this Section shall file an explanation of
both the date code and representative code with the
Department prior to manufacturing the product for sale in the
State of Delaware.
4. Any person subject to paragraph (e)(1) and/or
paragraph (e)(2) of this Section shall clearly display a fuel
flow rate on each spill-proof system or spill-proof spout, or
label affixed thereto, and on any accompanying package.
5. Any person subject to paragraph (e)(2) of this
Section shall clearly display the make, model number, and
size of those portable fuel containers the spout is designed to
accommodate.
6. Any person not subject to or not in compliance with
paragraph (c) of this Section may not display the phrase
"Spill-Proof System" or "Spill-Proof Spout" on the portable
fuel container or spout, respectively, on any sticker or label
affixed thereto, or on any accompanying package.
7. Any person subject to and complying with
paragraph (c) of this Section, that due to its design or other
features, cannot be used to refuel on-road motor vehicles
shall clearly display the phrase "Not Intended For Refueling
On-Road Motor Vehicles" in type of 34 point or greater on
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1128 FINAL REGULATIONS
each of the following:
i. For a portable fuel container or portable fuel
container and spouts sold together as a spill-proof system, on
the system or on a label affixed thereto, and on the
accompanying package, if any; and
ii. For a spill-proof spout sold separately from a
spill-proof system, on either the spill-proof spout, or a label
affixed thereto, and on the accompanying package, if any.
DIVISION OF FISH & WILDLIFE
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
Order No. 2001-FW-0038
Order
Summary Information
In accordance with 29 Del.C. §10113(5), an amendment
to Shellfish Regulation No. S-55-A, HORSESHOE CRAB
DREDGE PERMIT LOTTERY is in order to be adopted
informally in order to make Shellfish Regulation S-55-A
consistent with changes in basic law but which do not
otherwise alter the substance of this regulation. The 141st
General Assembly enacted Senate Bill 185 as amended by
House amendment No.1 and Senate Amendment No.1 which
struck 7 Del.C., Chapter 21 relative to oysters and
substituted in lieu thereof a new Chapter 21 relative to
oysters. In doing so, it changed the licensing of oyster
vessels that harvested and/or transplanted oysters from
natural oyster beds or from leased grounds to an oyster
harvesting license issued to a person to harvest of oysters
from the natural oyster beds or from leased shellfish grounds
in the State. (§2101, 7 Del.C.).
As a result of the enactment of a new Chapter 21, 7 Del.
C. relating to oysters, the Department adopted amendments
to Shellfish Regulations Nos. S-7(b), S-9, S-11, S-13 and S-
37 which struck them in their entirety (Order No. 2001-FW-
0031).
Shellfish Regulation No. S-55-A, HORSESHOE CRAB
DREDGE PERMIT LOTTERY, subsection (b) states: "(b)
To be eligible an applicant for a horseshoe crab dredge
permit shall be the current owner and operator of an oyster
vessel licensed to transplant oysters from natural oyster beds
according to procedures in Shellfish Regulation No. S-37,
OYSTER VESSEL LICENSING FOR TRANSPLANTING
OYSTERS FROM NATURAL OYSTER BEDS." Since
Shellfish Regulation S-37 has been stricken and the licensing
of oyster vessels has been changed to the licensing of
persons to harvest oysters from natural oyster beds or from
leased shellfish grounds in the State, S-55-A (b) should be
amended to reflect these changes to be consistent with a
change in the basic law but which do not otherwise alter the
substance.
Order
It is hereby ordered, this 3rd day of October, in the year
2001, that Shellfish Regulation No. S-55-A (b), a copy of
which is attached hereto, is amended to make it consistent
with changes in basic law but which do not otherwise alter
the substance of this regulation. In doing so, the procedural
requirements of 29 Del.C. are waived and this amendment is
adopted informally. This Order shall be effective on
November 10, 2001.
Nicholas A. DiPasquale, Secretary
Department of Natural Resources
And Environmental Control
"S-55-A Horseshoe Crab Dredge Permit Lottery
(a) The Department of Natural Resources and
Environmental Control shall hold an annual lottery to select
eligible individuals for the five horseshoe crab dredge
permits authorized to be issued each year if more than five
applications are received by the Department. Applications
for an annual commercial horseshoe crab permit shall be
accepted by the Department until 4:30 PM December 31 or
4:30 PM on the Friday preceding if December 31 is a
Saturday or Sunday. If an annual lottery is necessary it shall
be conducted at 1:00 PM on January 1, or the first work day
thereafter, in the Richardson and Robbins Building, 89
Kings Highway, Dover, Delaware."
(b) To be eligible an applicant for a horseshoe crab
dredge permit shall be the current owner and operator of an
oyster vessel licensed to transplant oysters from natural
oyster beds according to procedures in Shellfish Regulation
No. S-37 OYSTER VESSEL LICENSING FOR
TRANSPLANTING OYSTERS FROM NATURAL
OYSTER BEDS." holder of an oyster harvesting license
issued by the Department.
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF BOILER SAFETY
Statutory Authority: 29 Delaware Code,
Section 8210 (29 Del.C. § 8210)
Order
The Division of Boiler Safety ("The Division") held a
properly noticed public hearing on October 3, 2001 pursuant
to 29 Del.C. § 8210(b) to receive comment on proposed
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1129
additions, revisions, deletions, modifications and
reservations to Division's proposed Rules and Regulations.
The attendance sheets and transcribed minutes of this
hearing are filed with the Division in lieu of a statement of
the summary of evidence. The Division received no written
comments, and there were no objections presented at the
public hearing.
Decision
The Division hereby adopts the Rules and Regulations
proposed and a copy of the Rules and Regulations as adopted
is attached to this Order.
It is so ordered this 11 day of October, 2001.
James B. Harlan
Director, Division of Boiler Safety
Approved:
Honorable James L. Ford, Jr.
Secretary, Department of Public Safety
* Note: No changes were made to the regulation as
originally proposed and published in the September 2001
issue of the Register at page 584 (5 DE Reg. 584).
Therefore, the final regulation is not being republished.
Please refer to the September 2001 issue of the Register
or contact the Department of Public Safety, Division of
Boiler Safety.
DEPARTMENT OF
TRANSPORTATION
DIVISION OF PLANNING AND POLICY
Statutory Authority: 17 Delaware Code,
Section 190, et seq. (17 Del.C. 190, et seq.)
State Scenic and Historic Highways Program
Summary of Evidence and Information Submitted
The Department published a draft of the State Scenic
and Historic Highways Program (Program) Guide in the
September 1, 2001 edition of the Delaware Register of
Regulations. Publication in the Delaware Register of
Regulations also signified the start of the 30-day public
comment period that began on the same date and ended on
September 30, 2001. As means of providing additional
information on the draft Program and facilitating greater
public review and comment, the Department held the three
following public hearings, each of which were advertised in
the Delaware Register of Regulations and in six newspapers
throughout the State.
•· Sussex County: Monday, September 17, 2001 from
4 p.m. at the DelDOT South District Office in
Georgetown.
•· Kent County: Tuesday, September 18, 2001 from 4
p.m. at the DelDOT Administration Building in
Dover.
•· New Castle County: Thursday, September 20, 2001
from 4 p.m. at the DelDOT North District Office in
Bear.
Staff from the Department was available during each of
the public hearings to provide information and answer
questions related to the draft Program, and a formal
presentation was scheduled for 6 p.m. each evening. In
addition, the public was able to ask questions or provide
comments either by speaking with Department staff directly
or by speaking with a court reporter who was present during
each session to take individual comments, and to record the
formal presentation and discussion that followed.
Questionnaires were also available for members of the
public to complete on-site or to mail-in.
As a result of the aforementioned public outreach, the
following is a summary of the comments received related to
the draft Program:
Comments received from the September 17, 2001 public
hearing in Sussex County
Seven people attended the Sussex County public
hearing. One person asked how the draft Program worked
and whether it could be used to highlight resources in Sussex
County other than those related to resort area recreation and
tourism, and another was interested in learning how a
particular section of Roue 113 could be nominated into the
draft Program. None of the comments received questioned
how the draft Program was developed or how it is organized,
or included any specific recommendations for improving the
draft Program and/or the draft Program Guide.
Comments received from the September 18, 2001 public
hearing in Kent County
Seven people attended the Kent County public hearing,
including two members of the State Scenic and Historic
Highways Advisory Board (Advisory Board) who attended
to support the Program. During the public hearing several
questions were asked of staff in terms of the how the draft
Program was organized and how it would work once
implemented. Among the topics discussed were:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1130 FINAL REGULATIONS
• The role of Advisory Board during the development
of the draft Program;
• The role of the Secretary of Transportation in
approving corridor designations and corridor management
plans;
• The meaning of the term "increased maintenance"
as its pertains to roadways that could be designated
under the draft Program; and
• Whether there were minimum or maximum lengths
limits for roadways that could be designated under
the draft Program.
Based on the questions asked of staff and the
discussions that followed, no objections to the draft Program
were voiced and all those who spoke with staff were
supportive of it. The Department did not receive any
specific recommendations for improving the draft Program
and/or the draft Program Guide. In addition, one
questionnaire was completed and it complimented the
Department on the draft Program in terms of how
straightforward and easy to understand it is, and in terms of
the flexibility it offers with regard to the length roadways
need to be to be considered for designation.
Comments received from the September 20, 2001 public
hearing in New Castle County
Eleven people attended the New Castle County public
hearing, including three members of the Advisory Board that
attended to support the Program. During the public hearing
several questions were asked of staff in terms of the how the
draft Program was organized and how it would work once
implemented. Among the topics discussed were:
• The nomination and designation process;
• The relationship between the draft Program and
local land use control; and
• The role of the draft Program in limiting new offpremises
outdoor advertising.
Based on the questions asked of staff and the
discussions that followed, no objections to the draft Program
were voiced and all those who spoke with staff were
supportive of it. As a result of the discussions held and the
public hearing and as a follow-up the Department received a
letter complimenting the draft Program and its readability,
and suggesting a change in wording from Mr. Nathan J.
LaComb. Specifically, attention was brought to the
possibility that the wording of the second paragraph in the
section titled What is the Effect of Designation as a
Delaware Scenic and Historic Highway in Chapter 2 that
pertains to outdoor advertising might be misleading and in
need of clarification. This was the only specific
recommendation received.
Other comments
The Department received a letter from Mr. D. Reed
Macmillan, Director of the Kent County Department of
Planning that generally supported the draft Program. He
highlighted several opportunities the draft Program
presented for coordination with other Kent County
initiatives, and he specifically reiterated the role of the Kent
County Levy Court in reviewing and approving and future
land use policies or programs that might be suggested as part
of developing corridor management plans.
In addition to the above, Department staff and its
technical team made the following comments on the draft
Program Guide as part of their final review of the document.
• Introduction, Goal 1, sixth point. This point reads
"Ensure that to the extent possible that all scenic
and historic highway designations are continuous."
The concern is that this wording might indicate
that the draft Program would support noncontinuous
roadway designations, which was not
the intent of the Advisory Board when developing
the draft Program.
• Chapter 1, Step 2- Corridor Plan Application, second
paragraph. The last line of this paragraph
states that a corridor plan must also have a short
term Action Plan that covers the initial two years of
implementation. This is not consistent with Chapter
3, Step 2- Corridor Plan, the last paragraph of this
chapter, which states that the short term Action
Plan should cover the first two to three years.
Findings of Fact
Based on the comments received and summarized
above, and made the following changes to the draft Program:
• The sixth point under Goal 1 in the Introduction
was changed to read "Ensure that all scenic and historic
highway designations are continuous." This
clarifies the intent of the Advisory Board with
regard to whether designated roadways should be
continuous.
• The second paragraph in the section titled What is
the Effect of Designation as a Delaware Scenic and
Historic Highway in Chapter 2 and clarified its
intent with regard to outdoor advertising. The paragraph
was revised to read as follows:
Secondly, the designation affects permits for new
outdoor advertising signs that are placed on one
property but advertise goods or services available
on another property. Such new off-site/off-premise
outdoor advertising signs are not permitted along
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1131
state Scenic and Historic Highways. This rule does
not affect existing outdoor advertising.
• The first line of the last paragraph of Chapter 3,
Step 2- Corridor Plan was changed to read "The
Corridor Plan should include a short-term action
plan covering the first two years if implementation
of the Plan." This changes makes the requirements
for the Short Term Action Plan consistent throughout
the document, specifically with how it is referenced
in Chapter 1, Step 2- Corridor Plan
Application, in the second paragraph.
These were the only specific change made to the draft
Program, and they are noted in the full citation that is part of
the section below.
Decision
Pursuant to the authority in 17 Delaware Code, Section
190 et seq. Delaware Code, plus federal authority, and after
due notice as required under the Administrative Procedures
Act, the Department of Transportation is hereby adopting the
Delaware State Scenic and Historic Highway Program,
effective November 10, 2001.
Comments or questions regarding how this program will
be administered should be directed to:
Joseph Cantalupo, Assistant Director of
Planning and Policy
Delaware Department of Transportation
Division of Planning and Policy
P.O. Box 778
Dover, DE 19903
(302) 760-2121 (telephone) (302) 739-2251 (fax)
jcantalupo@.mail.dot.state.de.us
B. David Petrosky, Project Planner
Delaware Department of Transportation
Division of Planning and Policy
P.O. Box 778
Dover, DE 19903
(302) 760-2121 (telephone) (302) 739-2251 (fax)
dpetrosky@.mail.dot.state.de.us
Nathan Hayward III
Secretary, Delaware Department of Transportation
10/3/01
Program Guide
Delaware Scenic & Historic Highways
Introduction
Delaware is rich in scenic, historic and cultural
resources. The first state to ratify the U.S. Constitution,
Delaware's landscapes and communities tell stories from
battles between warring colonial powers, to the rise of a
mercantile economy among the mills of the Brandywine
River, to the continuing importance of agriculture to the
state, to the evolution of American recreational pastimes
along the state's beckoning beaches.
These diverse resources and their stories are accessible
to travelers and residents along road corridors that deserve
special consideration of their unique features and special role
in the highway system. To recognize Delaware's special
road corridors, the General Assembly in 2000 created a
Scenic and Historic Highway Program (17 Del.C. c. 1 §101).
This program guide provides an understanding of the
vision for Delaware's Scenic and Historic Highway Program,
and an overview of the designation process, including how
you can nominate a roadway. It also provides information
on identifying intrinsic qualities (scenic, historic, natural,
cultural, recreational, and archeological), preparing corridor
plans and seeking sources of support in implementing these
plans.
What is a Scenic and Historic Highway?
A Scenic and Historic Highway is a transportation route
which is adjacent to or travels through an area that has
particular intrinsic scenic, historic, natural, cultural,
recreational or archeological qualities. It is a road corridor
that offers an alternative travel route to our major highways,
while telling a story about Delaware's heritage, recreational
activities or beauty. It is a route that is managed in order to
protect its special intrinsic qualities and to encourage
appreciation and/or development of tourism and recreational
resources. Scenic and Historic Highways can also be called
"scenic byways."
Why would you want to seek this designation for a
roadway?
Scenic and Historic Highway designation provides
official recognition of the special nature of a roadway
corridor. This designation will heighten awareness and
recognition of the community seeking the designation and
help to boost community pride.
Additional community benefits may include:
• Increased business, tax revenue, and jobs from
tourist dollars.
• Federal and state funding for planning and
implementing a corridor plan.
• Protection for a resource that may become
threatened.
• Improved maintenance for your road.
• Access to resources and expert assistance in
managing the corridor.
• Identification on state highway maps, leading
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1132 FINAL REGULATIONS
to more tourism opportunities for the area.
• Assistance from state offices of economic
development and tourism.
Relationship to personal property rights
When a roadway is designated as a Delaware Scenic and
Historic Highway, a Corridor Plan must be developed, which
includes a process for involving property owners in a
collaborative discussion of future plans for the highway
corridor. The preparation of the Corridor Plan provides a
means to consider the interests of all affected parties.
Designating a roadway corridor as Scenic and Historic does
not mean property owners will be told what to do with their
property.
Program governance
Delaware's Scenic and Historic Highways Program is a
collaborative effort of Delaware's citizens, local, state and
federal government. During the 2000 legislative session, the
General Assembly passed Senate Bill 320 authorizing the
Delaware Department of Transportation (DelDOT) to
develop the Delaware Scenic and Historic Highways
Program. Senate Bill 320 required that the program be
developed under the guidance of the State Scenic and
Historic Highways Advisory Board and it required that the
Board be comprised of a wide range of interests. Members
of the Board include representatives of county government,
other state agencies, the outdoor advertising industry, the
real estate industry and various environmental and historic
preservation advocacy groups.
The State Scenic and Historic Highways Advisory
Board assists and recommends in the designation,
development, operation, management and promotion of
scenic and historic highways. The program is managed by
DelDOT. The Secretary of Transportation designates
Delaware Scenic and Historic Highways based upon criteria
outlined in this program guide and upon the
recommendations of the State Scenic and Historic Highways
Advisory Board.
DelDOT is responsible for an annual evaluation of the
Scenic and Historic Highways Program that identifies
changes needed to keep the Program current with the state of
the practice. The annual evaluation also tracks the progress
of sponsors of designated Scenic and Historic Highways in
implementing corridor plans to support, preserve and
manage the special qualities of their corridor. DelDOT
provides an annual report to the Governor and General
Assembly on the overall status of the Program and the
individual highways designated under it.
National Scenic Byways Program
Delaware's Scenic and Historic Highways Program has
been spurred by the creation and policies of the National
Scenic Byways Program, first established in 1991 by the
federal Intermodal Surface Transportation Efficiency Act
(ISTEA). This program, managed by the U.S. Department
of Transportation in partnership with state departments of
transportation or other responsible state agencies, designates
National Scenic Byways and All-American Roads based on
their scenic, historic, recreational, cultural, natural and/or
archeological intrinsic qualities.
Through 2000, 66 National Scenic Byways and 15 All-
American Roads have been designated. Federal funds may
be available to assist sponsors of state scenic byways. These
funds may be used to prepare corridor management plans, to
seek National Scenic Byway designation, or for other
purposes including executing interpretive plans, preparing
marketing materials, or addressing safety improvements
needed due to scenic byway designation.
Program vision, goals and objectives
Looking into the future, the State Scenic and Historic
Highways Advisory Board discussed their vision for the
Program, its accomplishments and contributions to the
citizens of Delaware. They outlined the Vision, Goals and
Objectives for the program as follows:
The Delaware State Scenic and Historic Highways
Program showcases the natural beauty and unique features
of the state and fosters the preservation of natural, cultural
and historic resources, while benefiting economic
development through tourism and recreational
opportunities.
Sites and features of the State Scenic and Historic
Highways are apparent to all who travel Delaware roads,
and the Program enjoys broad public participation and
support.
Vision
The Delaware State Scenic and Historic Highways
Program showcases the natural beauty and unique features of
the state and fosters the preservation of natural, cultural and
historic resources, while benefiting economic development
through tourism and recreational opportunities.
Sites and features of the State Scenic and Historic
Highways are apparent to all who travel Delaware roads, and
the Program enjoys broad public participation and support.
Goal 1 - Evaluate and Designate State Scenic and
Historic Highways.
Determine the responsibilities of sponsors seeking to
designate a corridor under the State Scenic and Historic
Highways Program.
Determine the responsibilities of the State Department
of Transportation in administering the State Scenic and
Historic Highways Program.
Determine the responsibilities of the Scenic and Historic
Highways Advisory Board in administering the State Scenic
and Historic Highways Program.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1133
Define the opportunities, benefits, and impacts of
designation under the State Scenic and Historic Highways
Program.
Assure compliance with FHWA requirements regarding
outdoor advertising control.
Ensure [to the extent possible] that all scenic and
historic highway designations are continuous.
Evaluate opportunities for multi-state scenic byway
development.
Goal 2 - Protect and/or enhance State Scenic and Historic
Highways and their resources through a coordinated
management program while ensuring the safe operation
of these routes.
Coordinate with other related federal, state, local and
private sector programs and planning processes.
Determine the responsibility of local government in the
management of designated State Scenic and Historic
Highways.
Assist State Scenic and Historic Highway sponsors in
locating and applying for federal, state and private funding
available to support such highways.
Ensure adherence to Federal Scenic Byways Program
requirements to afford the best opportunity for federal
funding and designation where desired.
Protect the historic and scenic character of the highway
while addressing the need for safe and efficient traffic flow.
Promote the use of Context Sensitive Design criteria
and traffic calming measures.
Encourage multi-modal systems wherever feasible -
auto, transit, pedestrian, and bicycle.
Address the needs of commerce in corridor management
plans.
Support full range of public and private landscape
conservation and historic preservation programs to afford
resource protection to the intrinsic qualities of designated
scenic highways.
Advocate for legislation to enhance funding
opportunities for the intrinsic resources of designated scenic
highways.
Goal 3 - Benefit economic development through tourism
and promote byway related educational and recreational
opportunities.
Promote tourism opportunities associated with State
Scenic and Historic Highways.
Develop marketing programs to highlight State Scenic
and Historic Highways.
Improve access to areas utilized for the purposes of
recreation where appropriate while protecting the intrinsic
qualities of the designated scenic highway and the recreation
area.
Develop a unique identity for the State Scenic and
Historic Highways Program.
Develop a creative range of interpretive materials on the
State Scenic and Historic Highways Program and the
corridors designated within it such as maps, brochures, a
website, and wayside exhibits, among other ideas.
Coordinate with the Delaware Historic Markers
Program and other educational programs with related
purposes to the Scenic and Historic Highways Program.
Goal 4 - Monitor and evaluate the implementation of the
State Scenic and Historic Highways Program to ensure it
continues to meet the needs of the State and its citizens.
Develop an annual evaluation program that will:
Identify changes needed to keep the Program current
with the state of the practice;
Track the progress of individual corridor management
plans as well as conformance with the provisions of the
Program; and
Provide an annual report to the Governor and General
Assembly on the overall status of the Program and the
individual highways designated under it.
Chapter 1: Overview of Designation Process
Step 1 - Nomination Application
The successful completion, review and evaluation of a
Step 1 - Nomination Application results in the designation
of a road by Delaware's Secretary of Transportation as a
State Scenic and Historic Highway. The application can be
submitted by anyone interested in seeking designation for a
route as a Delaware Scenic and Historic Highway. The
review process for the nomination focuses on an evaluation
of the identified intrinsic qualities of the highway and on the
input from a public involvement process carried out as part of
preparing the Nomination Application.
Impact of state designation as a scenic and historic
highway
Two principal impacts result from the designation of a
route as a Delaware Scenic and Historic Highway. First, the
sponsor for the route is eligible to apply through DelDOT to
the Federal Highway Administration for grant funds to assist
with the completion of a Corridor Plan for the Scenic and
Historic Highway and/or may use the state designation status
to assist in seeking funding from other sources to assist with
the Corridor Plan.
Second, the designation affects permits for new off site/
off premises signs (outdoor advertising signs that are placed
on one property, but advertise goods or services available on
another property) on any roads controlled by the Highway
Beautification Act of 1965. New off premise outdoor
advertising signs are not permitted along state Scenic and
Historic Highways. This rule does not affect existing
outdoor advertising signs.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1134 FINAL REGULATIONS
Step 2 - Corridor Plan Application
The successful completion, review and evaluation of a
Step 2 - Corridor Plan Application results in approval of the
Corridor Plan by Delaware's Secretary of Transportation,
and then signing (with specially designed signs) of the
Delaware Scenic and Historic Highway, identifying it on
state maps and promoting it through the Delaware Tourism
Office.
A Corridor Plan is a written document in which the
highway sponsor describes the goals, strategies, and
responsibilities for conserving and enhancing a scenic and
historic highway's most valuable qualities. It is developed
collaboratively with all those who have an interest in the
future of the area included in the Scenic and Historic
Highway corridor. It includes both a long-term Vision for
what the Scenic and Historic Highway may become over
time and also a short-term Action Plan that covers the initial
two years of implementation of the Corridor Plan.
Impact of approval of the Corridor Plan for a Delaware
Scenic and Historic Highway
The impact of approval of the Corridor Plan for a
Delaware Scenic and Historic Highway is stated above.
DelDOT will provide signs for the route to indicate its
designated status and will identify the route on state maps.
The Delaware Tourism Office will promote the Scenic and
Historic Highway in accord with the promotion and
marketing plans included in the Corridor Plan.
Chapter 2: Step 1 - Nomination Application
Who can nominate a route to become a Delaware Scenic
and Historic Highway?
Any interested party can nominate a route, including
individuals; local governments; counties; tourism
departments; historical societies; non-profit organizations;
state and federal agencies; or a Corridor Advocacy Group
formed of citizens, groups or local governments. The party
nominating a route is called the sponsor.
What information is required for the nomination?
DelDOT has prepared a nomination form to guide the
sponsor in preparing the Step 1 - Nomination Application.
The sponsor needs to provide the following information
about the proposed Scenic and Historic Highway:
• A physical description of the route,
• Representative photographs,
• A map indicating the boundaries of the route
that locates the intrinsic qualities along the
corridor, and indicates land uses in the
corridor.
• An intrinsic quality resource inventory,
• A written statement that summarizes and
evaluates the significance of the primary
intrinsic quality for which the highway merits
designation and that also describes the
significance of any secondary intrinsic
qualities present along the route.
• A written description of what a traveler will see
when traversing the corridor.
• A description of public involvement conducted
to date and the comments and input that have
resulted from this process.
Who reviews the nomination and what is the review
process?
DelDOT's Scenic and Historic Highways Coordinator
reviews the nomination application with representatives
from the State Historic Preservation Office, Department of
Natural Resources and Environmental Control, Delaware
Tourism Office, and Department of Agriculture. This
Evaluation Committee jointly makes a recommendation to
DelDOT's Director of Planning. If the Evaluation
Committee's recommendation is that the Nomination is not
complete or should not be approved, DelDOT's Director of
Planning will return the nomination application to the
sponsor with a letter that specifies reasons for the
disapproval and includes recommendations for how the
application could be resubmitted, if appropriate.
If the Evaluation Committee's joint recommendation to
the Director of Planning is favorable, the Director of
Planning reviews the application and submits it with the
Evaluation Committee's recommendation and with his or her
recommendation to the State Scenic and Historic Highways
Advisory Board for review. If the Advisory Board
recommends approval, the application is submitted to the
Secretary of Transportation for review and a final decision.
What is the timeline for the review of Step 1 -
Nomination Applications?
There will be ongoing reviews of Step 1 - Nomination
Applications by the Evaluation Committee and by the
Advisory Board. As a guideline, DelDOT will issue a
response to the applicant within 120 days from the time that
a complete Step 1 - Nomination Application is received.
Who designates a roadway as a Delaware Scenic and
Historic Highway?
Designation is made by Delaware's Secretary of
Transportation based on submission of the Step 1 -
Nomination Application, joint review by the Evaluation
Committee of state agency representatives, review by
DelDOT's Director of Planning and then review and
recommendation for approval by the State Scenic and
Historic Highways Advisory Board.
What is the effect of designation as a Delaware Scenic
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1135
and Historic Highway?
As stated in the preceding section, two principal impacts
result from the designation of a route as a Delaware Scenic
and Historic Highway. First, the sponsor for the route is
eligible to apply through the Delaware Department of
Transportation to the Federal Highway Administration for
grant funds to assist with the completion of a Corridor Plan
for the Scenic and Historic Highway and/or may use the state
designation status to assist in seeking funding from other
sources to assist with the Corridor Plan.
Secondly, the designation affects permits for new
outdoor advertising signs that are placed on one property but
advertise goods or services available on another property.
[New outdoor advertising signs are not permitted along
state Scenic and Historic Highways. Such new off-site/
off-premise outdoor advertising signs are not permitted
along state Scenic and Historic Highways.] This rule does
not affect existing [billboard signs outdoor advertising].
Other benefits of designation as a Delaware Scenic and
Historic Highway follow once the Corridor Plan that is
described in the next chapter is approved.
What are the designation criteria for Step 1 -
Nomination Application?
The primary criteria include consideration of the quality
of the road's intrinsic scenic, historic, natural, cultural,
recreational or archeological resources. The Sponsor should
identify and provide documentation of the primary intrinsic
quality for which they think the road merits designation as a
Delaware Scenic and Historic Highway. The application
should include a statement of significance for these
resources to justify why the route merits designation.
While the route can qualify as a Delaware Scenic and
Historic Highway based on the significance of just one
intrinsic quality, applicants should also describe any
secondary intrinsic qualities present along the route and
provide a statement describing the significance of the
resources.
Additional criteria include:
A requirement that the route proposed for designation
must be continuous in order to encourage management of the
entire route to protect its special intrinsic qualities and to
support the best possible visitor experience along the route.
• Information to demonstrate a high level of
public involvement and public support.
• The route must be a public route that safely
accommodates two-wheel drive motor
vehicles.
Information about intrinsic qualities: definitions
Scenic Quality is the heightened visual experience
derived from the view of natural and man-made elements of
the visual environment of the scenic and historic highway
corridor. The characteristics of the landscape are strikingly
distinct and offer a pleasing and most memorable visual
experience. All elements of the landscape - landform,
water, vegetation, and man-made development - contribute
to the quality of the corridor's visual environment.
Everything present is in harmony and shares in the intrinsic
qualities.
Historic Quality encompasses legacies of the past that
are distinctly associated with physical elements of the
landscape, whether natural or man-made, that are of such
historic significance that they educate the viewer and stir an
appreciation for the past. The historic elements reflect the
actions of people and may include buildings, settlement
patterns, and other examples of human activity. Historic
features can be inventoried, mapped, and interpreted.
Historic features must possess integrity of location, design,
setting, material, workmanship, feeling, and association.
Natural Quality applies to those features of the visual
environment that are in a relatively undisturbed state. These
features predate the arrival of human populations and may
include geological formations, fossils, landforms, water
bodies, vegetation, and wildlife. There may be evidence of
human activity, but the natural features reveal minimal
disturbances.
Cultural Quality is evidence and expression of the
customs or traditions of a distinct group of people. Cultural
features include, but are not limited to, crafts, music, dance,
rituals, festivals, speech, food, special events, vernacular
architecture, etc. that are currently being practiced. The
cultural qualities of the corridor could highlight one or more
significant communities and/or ethnic traditions.
Recreational Quality involves outdoor recreational
activities directly associated with and dependent upon the
natural and cultural elements of the corridor's landscape.
The recreational activities provide opportunities for active
and passive recreational experiences including, but not
limited to, rafting, boating, fishing and hiking. Driving the
road itself may qualify as a pleasurable recreational
experience. The recreational activities may be seasonal, but
the quality and importance of the recreational activities as
seasonal operations must be well recognized.
Archeological Quality involves those characteristics of
the scenic and historic highway corridor that provide
physical evidence of historic or prehistoric human life or
activity that is visible and capable of being inventoried and
interpreted. The corridor's archeological interest, as
identified through ruins, artifacts, structural remains, and
other physical evidence, has scientific significance that
educates the viewer and stirs an appreciation for the past.
How to inventory and evaluate your Corridor's intrinsic
qualities
In 1999, the Federal Highway Administration (FHWA)
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1136 FINAL REGULATIONS
published a booklet titled, "Byway Beginnings:
Understanding, Inventorying, and Evaluating a Byway's
Intrinsic Qualities." This publication is available on request
from the National Scenic Byways Clearinghouse by calling
1-800-4byways and selecting extension #2. This publication
provides information about inventorying and evaluating
byways' intrinsic qualities. Although the booklet was
prepared to assist byway sponsors seeking National Scenic
Byway designation, nearly all of the information presented is
applicable to sponsors seeking Delaware Scenic and Historic
Highway designation.
One important difference between the FHWA
publication's guidance and the criteria for Delaware's Scenic
and Historic Highway designation should be noted. In
discussing "Evaluating the Byway's Significance," on page
55 of the publication, the text references a need to
demonstrate "regional" significance, defined as exhibiting at
least one intrinsic quality that is representative of a
geographic area encompassing two or more states.
Delaware's designation criteria do not require that the
intrinsic quality be found to have regional significance.
Demonstrating significance in a statewide context is
sufficient.
DelDOT's Scenic and Historic Highways Coordinator is
available to attend meetings and provide phone consultation
to prospective Scenic and Historic Highway sponsors
regarding the guidance provided in the FHWA publication
and the evaluation of intrinsic qualities for purposes of
designation as a Delaware Scenic and Historic Highway.
Chapter 3: Step - 2 Corridor Plan
What is a Corridor Plan?
A Corridor Plan is a written document in which the
Scenic and Historic Highway sponsor lays out the vision,
goals and responsibilities for conserving and enhancing the
corridor's most valuable qualities and describes how this will
benefit economic development through tourism and
recreational opportunities. The Corridor Plan presents a
strategy for balancing concern for the intrinsic resources
with the visitor's opportunity to experience the Scenic and
Historic Highway. It explains how the participants are
involved in and responsible for implementing the Plan.
Where does a Corridor Plan fit into the designation
process?
A Corridor Plan is required as part of the 2nd Step of the
designation process, following the formal designation of a
highway as a Delaware Scenic and Historic Highway. The
designation as a Scenic and Historic Highway qualifies
sponsors for these highways to apply for matching federal
National Scenic Byway grant funds to assist in completion of
a Corridor Plan. This designation also results in applying to
qualifying roads the federal requirement not to allow new
outdoor advertising signs to be erected on these roads.
Once a Corridor Plan for the Scenic and Historic
Highway has been approved, signs will be placed along the
route identifying it as a Delaware Scenic and Historic
Highway. It will also be identified on state maps and
promoted through the Delaware Tourism Office.
Who is responsible for preparing the Corridor Plan?
The sponsor of the Step 1 - Nomination Application is
responsible for preparing the Corridor Plan or for contracting
with a consultant to do this. It is the sponsor's responsibility
to raise any funds needed to complete the Plan. As stated
above, sponsors are eligible to apply for matching federal
National Scenic Byway funds for this purpose. Information
about these grants is available on the National Scenic Byway
Program website, www.byways.org. Further information on
sources of assistance is provided in Chapter 6 of this guide.
What information must be included in a Corridor Plan?
• Vision and Goals Statement with objectives
and strategies for achieving the goals.
• Documentation of public involvement efforts
to illustrate the support the corridor designation
has received from the public.
• Stewardship of intrinsic qualities through
resource preservation; through enhancing
existing development and accommodating new
development in a complementary manner.
• Tourism Development, including an
explanation of the tourism potential of the
corridor and a description of how the visitor's
experience will be maximized and enhanced.
• Marketing and Promotion, including a signage
plan supportive of the visitor experience.
• Resources Interpretation, including
recommended locations for distributing
information.
• Support and Implementation, including
relationship to local government
comprehensive plans.
• Funding Plan for implementing the Corridor
Plan.
• Transportation and Safety, including
consideration of appropriate design guidelines
for Context Sensitive Design in the corridor,
accommodating commercial traffic,
accommodating multi-modal uses of the
corridor to the extent feasible, and complying
with outdoor advertising controls.
• Short-term Action Plan for implementation.
An appendix should include the following information
from the Step 1 - Nomination Application:
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FINAL REGULATIONS 1137
• A physical description of the route.
• Representative photographs.
• A map indicating the boundaries of the route,
that locates the intrinsic qualities along the
corridor and indicates land uses in the corridor.
• An intrinsic quality resource inventory.
• A written statement that summarizes and
evaluates the significance of the primary
intrinsic quality for which the highway merits
designation and that also describes the
significance of any secondary intrinsic
qualities present along the route.
• A written description of what a traveler will see
when traversing the corridor.
• A description of public involvement conducted
to date and the comments and input that have
resulted from this process.
Who reviews the Corridor Plan and what is the review
process?
The DelDOT Scenic and Historic Highways Coordinator
reviews the Step 2 - Corridor Plan Application and makes a
recommendation to DelDOT's Director of Planning.
DelDOT's Director of Planning submits the Corridor Plan
Application to the State Scenic and Historic Highways
Advisory Board for review along with his/her
recommendation and comments. If the Board recommends
approval, the application is submitted to the DelDOT
Secretary of Transportation for review and a final decision.
What are the timelines for reviewing Step 2 - Corridor
Plan Application?
There will be ongoing reviews of Step 2 - Corridor Plan
Applications by the Scenic and Historic Highways
Coordinator and by the Advisory Board. Generally DelDOT
will respond to the applicant within 90 days from the time
that a complete Step 2 - Corridor Plan Application is
received.
What is the impact of approval of a Corridor Plan?
If the Corridor Plan is approved, DelDOT will provide
signs for the route to indicate its designated status and will
identify the route on state maps. Delaware's Office of
Tourism will promote the Delaware Scenic and Historic
Highway in accord with the promotion and marketing plans
included in the Corridor Plan.
Information about elements that must be included in a
Corridor Plan.
The major elements that must be included in a Corridor
Plan for a Delaware Scenic and Historic Highway are
summarized in this section. Guidance on how to develop
information on these elements can be found in the Federal
Highway Administration's (FHWA) booklet titled,
"Community Guide to Planning and Managing a Scenic
Byway." As with the publication, "Byway Beginnings,"
referenced in Chapter 3, this publication is available from
the National Scenic Byways Clearinghouse by calling 1-800-
4byways and selecting #2. Although the booklet was
prepared to assist byway sponsors seeking National Scenic
Byway designation, the information presented will be of
great help to sponsors seeking to develop corridor plans for
Delaware Scenic and Historic Highways.
• Vision and Goals Statement with objectives
and strategies for achieving the goals
A Vision is a mental image of the condition of the
Scenic and Historic Highway corridor and the
accomplishments of the Sponsor group in the future (say 20
years from now). It is a corridor-wide expression of how the
corridor will be viewed in the future. The Goals Statement
elaborates on the Vision by identifying the broad goals that
will implement the Corridor Plan. These will likely be
oriented towards areas of 1) Resource protection,
maintenance and enhancement; 2) Community support and
participation; 3) Education and interpretation; 4) Economic
development through tourism; and 5) Transportation and
safety. An objective is an end that one strives to obtain, or an
aim. A strategy is a plan or action to achieve an objective
based on skillful understanding of how best to achieve that
objective.
• Documentation of Public Involvement efforts
to illustrate the support the corridor designation
has received from the public
Every opportunity must be taken to generate regional
support and commitment to the scenic and historic highway
designation and to the development and eventual
implementation of the Corridor Plan. A Scenic and Historic
Highway's success can be assured only if local residents,
business owners and public officials understand and support
the designation and have a sense of participation and
ownership of the Vision and Goals outlined in the Corridor
Plan. Therefore, development of a Corridor Plan includes a
concerted effort to actively engage the public throughout the
process. This can be done by creating a broad-based steering
committee to oversee the development of the Corridor Plan;
conducting informative public meetings; involving citizens
in small working group sessions to develop elements of the
plan based upon their interests and expertise; keeping people
informed of the Corridor Plan effort through newspaper
articles; and many other techniques tailored to the needs of
the specific community or communities.
The Corridor Plan should briefly document public
involvement efforts during preparation of the Plan and
outline a plan to assure on-going public involvement in the
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1138 FINAL REGULATIONS
implementation of corridor management objectives.
• Stewardship of intrinsic qualities through
resource preservation; through enhancing
existing development and accommodating new
development in a complementary manner
The stewardship plan should address the strategies, tools
and techniques that will be employed to manage, protect and
enhance resources that distinguish the route. Specific
strategies will vary widely across the state depending on
local conditions, population, economic conditions, political
climate and the intensity or severity of threats to the
resources. Some examples of potential strategies include
conservation easements, education programs and historic
district designations. Identify the standards and
management techniques which will be applied to the
significant resources.
The Corridor Plan should describe how existing and
new development might be enhanced while managing the
corridor's significant resources. For example, are there any
major intrusions on the enjoyment or character of the
roadway? If so, describe what could be done to improve
these conditions.
Strategies in individual Corridor Plans might
recommend design review and such land management
techniques as zoning, easements, and economic incentives.
The corridor should be maintained with particularly
high standards, not only for travelers' safety and comfort, but
also for preserving the highest levels of visual integrity and
attractiveness. It may be adequate simply to continue
existing regulations and policies or economic incentives, or
new policies, programs or regulations may be needed. To
determine the appropriate strategies, communities are
encouraged to work with local, county and regional planning
agencies. College or university landscape architecture,
planning and tourism programs may also provide assistance.
• Tourism Development, including an explanation of the
tourism potential of the corridor and a description of
how the visitor's experience will be maximized
and enhanced
Sponsors must provide a basic explanation of the
tourism potential for the Scenic and Historic Highway. You
should summarize how and to what degree the designation
and promotion of the corridor will improve the local
economy and indicate whether the area is already serving
tourists or if tourism will be a new industry.
Identify visitor accommodations (e.g. gas, food,
lodging, restrooms, emergency services, ATMs, phones,
parking, etc.) that are available along the corridor. Assess
whether the existing supply is adequate to meet the demand
to be generated by the Scenic and Historic Highway. In
other words, what other services might be helpful to
maximize the amount of time a visitor spends along the
corridor?
Describe how the visitor's experience will be maximized
and enhanced. Explain how intrusions on that experience
will be minimized through making improvements to enhance
that experience.
• Marketing and Promotion, including a signage plan
supportive of the visitor experience
Sponsors must outline the objectives for marketing or
promotion of the Scenic and Historic Highway. These goals
will vary depending on the comments received during the
public involvement process. Such goals may focus on doing
a better job of educating residents about the heritage of the
area, or may focus on increasing tourism to the area, or
include some other objectives. New opportunities for a
community may result from the increased exposure a Scenic
and Historic Highway receives. This exposure can be gained
in a number of ways, such as by distribution of maps and trip
planning brochures or developing pre-planned itineraries for
bus tour companies, installation of Scenic and Historic
Highway signage or targeted advertising campaigns.
The Corridor Plan must include a signage plan covering
signs in the right-of-way as well as the corridor as a whole,
that demonstrates how public and private interests can work
together with a coordinated strategy to make the number and
placement of signs more supportive of the visitor experience.
Local government officials should play an important role in
developing this strategy.
• Resources Interpretation, including
recommended locations for distributing
information
You need to provide a description of how you plan to
interpret the significant resources of the Scenic and Historic
Highway. Briefly describe the stories illustrated by
resources of the Scenic and Historic Highway that will serve
as a basis for interpretation. You should include
recommended locations for the placement of visitor centers,
interpretive markers, interpretive brochure distribution
points and other planned interpretive opportunities.
• Support and Implementation, including
relationship to local government
comprehensive plans
The continuation of the Scenic and Historic Highway
over time will need a capable management entity (or sponsor
group) responsible for day-to-day coordination and
advocacy of the highway. The Plan should describe the
management entity for the Scenic and Historic Highway,
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FINAL REGULATIONS 1139
identify the principal partners (e.g., highway departments,
tourism agencies, chambers of commerce, county
government, citizens groups, etc.), and include a list of their
specific, individual responsibilities. The Plan should include
a letter of intent (i.e., commitment) from strategic partners of
support for the Scenic and Historic Highway's designation
and their participation in the Plan's implementation.
Obtain a letter of intent or resolution of support by local
governments (from the chief elected official or body) with
jurisdiction along the roadway that indicates support for the
designation and intent to incorporate the following items in
local land use plans: a map that shows the Scenic and
Historic Highway corridor, the corridor vision statement and
the goals, objectives and strategies related to the specific
local government.
List all organizations with responsibility for the
implementation of the Plan and identify what those
responsibilities are. Explain how the implementation will be
monitored to verify that those responsibilities are being met
and modified, as needed, to incorporate new participation.
• Funding Plan for implementing the Corridor
Plan
Develop and include a budget that estimates the costs
for implementation of the Plan over a five to ten year period.
Address the availability of financial resources needed to
upgrade, protect, develop, promote and/or otherwise
enhance the corridor and implement the Corridor Plan to
make the Scenic and Historic Highway and its corridor
available for its intended uses. Indicate funding currently in
hand and funds that have been requested, and the sources for
these funds. For funding that is presently not available,
indicate how you plan to locate funding sources.
• Transportation and Safety, including
consideration of appropriate design guidelines
for Context Sensitive Design in the corridor,
accommodating commercial traffic,
accommodating multi-modal uses of the
corridor to the extent feasible, and complying
with outdoor advertising controls.
The Corridor Plan should identify the potential safety,
operational and maintenance impacts of the designation
based on available information, their causes, and actions
possible to address them. The initial step towards
accomplishing this is to contact the agency responsible for
maintenance of the highway. This agency can share
available information and provide expertise to identify any
correctable faults in highway design, maintenance, or
operation.
In addition, this agency can describe the types of
transportation projects that will likely arise within the
corridor over a ten to fifteen year period. The Plan should
identify these expected project types and make broad
recommendations for general solutions applying the
principles of Context Sensitive Design. This discussion
should include an evaluation of how any proposed changes
may affect the intrinsic qualities of the corridor.
The Plan should include a narrative describing strategies
to accommodate commercial traffic while maintaining a safe
and efficient level of highway service and ensuring the
safety of sightseers in smaller vehicles, as well as bicyclists,
joggers and pedestrians.
The Plan should address accommodating multi-modal
uses of the corridor to the extent feasible. The corridor may
be served by rail service, car ferries, airports, buses, or
bicycles. It may be helpful to contact local or regional
transportation planning agencies to help assess the role of all
transportation facilities and services for visitor access and
use of the Scenic and Historic Highway. Describe in the
Corridor Plan any recommendations for improvements and
changes to these services and facilities as they relate to
visitor access and use of the highway.
The Corridor Plan should describe existing local, state
and federal laws regarding the control of outdoor advertising
and should demonstrate compliance with these laws.
• Short-Term Action Plan for implementation
The Corridor Plan should include a short-term action
plan covering the first two [to three] years of
implementation of the Plan. The action plan outlines the
sequence of actions that the Sponsor will perform or oversee
in an effort to meet the goals, objectives and strategies and,
ultimately, achieve the Corridor Vision. The Plan should
provide specific milestones month-by-month for
implementation actions stating who is responsible for each.
The action plan should include a schedule and performance
measures for the continuing review of how well
implementation responsibilities are being met.
Chapter 4: Implementation of Corridor Plans
Is there a periodic review of the routes that have been
designated?
The Scenic and Historic Highway Sponsor is required to
monitor implementation of the Corridor Plan annually,
including the protection of intrinsic qualities, by providing a
written status report to DelDOT's Scenic and Historic
Highways Coordinator. This report should describe progress
made in implementing the plan, funds secured,
accomplishments achieved, and modifications made to the
Corridor Plan based on evolving circumstances.
Additionally, DelDOT's staff will conduct inspections
annually to ensure the stability of intrinsic qualities and the
character of the corridor for which it merited designation and
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1140 FINAL REGULATIONS
to assess progress made in implementing the Corridor Plan.
DelDOT staff will prepare a written report to document their
findings and send this to the Corridor Sponsor and other
responsible agencies. DelDOT staff will encourage
corrective actions if necessary. DelDOT will also submit
these reports to the Scenic and Historic Highways Advisory
Board.
Chapter 5: De-designation of Scenic and Historic
Highways
Is there a de-designation process?
A Delaware Scenic and Historic Highway may be dedesignated
for two reasons: first, if the corridor is
designated, but a Corridor Plan is not completed in a timely
manner; and second, if the corridor loses the qualities for
which it was designated.
Once a Scenic and Historic Highway has been
designated by the Secretary of Transportation, the sponsor
group has five years from the date of designation to complete
an approved Corridor Plan for the Scenic and Historic
Highway. If a Plan is not completed and approved by this
date, the Scenic and Historic Highway will be automatically
de-designated as a State Scenic and Historic Highway.
The second condition that might result in de-designation
is related to DelDOT's annual inspection of Scenic and
Historic Highways. When DelDOT's Scenic and Historic
Highways Coordinator conducts an inspection and he or she
identifies such a substantial change in the quality, level, or
integrity of intrinsic qualities that it appears that the corridor
no longer meets the criteria for designation, the dedesignation
process may be initiated. This process may only
begin, however, after DelDOT has indicated its concerns to
the Sponsor in written form including, if possible, a plan for
remedial action to restore the qualities for which the
roadway was designated, allowing a one-year period for
showing progress. DelDOT can allow more time to
accomplish remedial action if necessary. If, however, no
remedial action plan is agreed upon, DelDOT will proceed
with de-designation.
The de-designation process will follow generally the
same process as the Corridor Plan review process.
DelDOT's Scenic and Historic Highways Coordinator will
prepare information documenting how the corridor no longer
meets the criteria for designation. This information will be
reviewed by DelDOT's Director of Planning and submitted
with his or her recommendation to the State Scenic and
Historic Highways Advisory Board for their
recommendation. The Advisory Board's recommendation
will be submitted to the Secretary of Transportation for a
decision on de-designation.
In addition to DelDOT's ability to initiate a dedesignation
inquiry, any interested party, including
individuals, local governments, counties, tourism
departments, historical societies, non-profit organizations
and state and federal agencies, may request in writing that
DelDOT initiate this process. This request should include
documentation of the reason why the requestor believes the
roadway no longer meets the criteria for designation of
Scenic and Historic Highways.
Whether DelDOT initiates an inquiry into dedesignation
or a member of the public requests this inquiry,
public notice will be provided.
Chapter 6: Sources of Information to Assist Scenic &
Historic Highway Sponsors
General information
Information to assist Scenic and Historic Highway
sponsors will come from a multitude of sources. With
DelDOT as the sponsor agency for the program, a Sponsor
should start by contacting the DelDOT Scenic and Historic
Highways Coordinator to receive all available program
information. DelDOT staff will provide phone consultation
to prospective Scenic and Historic Highway sponsors and
assist with public involvement to the extent resources are
available. If funding can be secured, DelDOT will provide
training in public involvement and other skills needed to
develop Corridor Plans.
Many other agencies and organizations will be able to
assist Sponsors as well. Foremost among these is the
Federal Highway Administration (FHWA) through its
publications referenced in Chapters 2 and 3, "Byway
Beginnings: Understanding, Inventorying, and Evaluating a
Byway's Intrinsic Qualities" and "Community Guide to
Planning & Managing a Scenic Byway" and through its
website at www.byways.org. The publications are available
by calling FHWA's Scenic Byways Clearinghouse at 1-800-
4byways and choosing extension #2. Other publications
available include a map of National Scenic Byways and All
American Roads.
Using the same 1-800-4byways phone number and
choosing extension #5, a caller reaches the America's
Byways Resource Center, a source of information for
developing statewide scenic byways programs, and for
byway sponsors seeking National Scenic Byway
designation. Staff at the center are assigned to specific
states, so ask for the staff person assigned to Delaware. The
website includes a wealth of information for byway sponsors
with the opportunity to "Ask an Expert" questions and links
to many state scenic byway sites.
A list of the member organizations of Delaware's Scenic
and Historic Highways Advisory Board is listed in the
appendix. These groups have helped to shape the program
and many have expertise that will be valuable in developing
the Step 1 - Nomination Application and Step 2 - Corridor
Plan Application. The FHWA publications mentioned
above cite the types of information likely available in state
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FINAL REGULATIONS 1141
level organizations for resource identification, resource
protection and interpretive strategies, etc. Delaware's Office
of Tourism staff will be able to inform Scenic and Historic
Highway sponsors of current marketing efforts and evolving
themes for future marketing that sponsors may want to use as
a basis for interpretive efforts.
To help with your nomination and Corridor Plan efforts,
the FHWA suggests that you consider recruiting community
leaders who have experience in planning and organizing
projects. Their expertise in grant writing, political
maneuvering, project management, conflict resolution and
other related skills may prove extremely useful.
Local, state, and federal government staff can be a
considerable help, particularly those who work in the fields
of transportation planning, resource conservation, economic
development and tourism. Also colleges and state
universities are likely to have individuals who can assist the
Sponsor group in technical expertise (from departments of
landscape architecture, architecture, planning, historic
preservation, geography, history, natural resources,
recreation planning, and government, for example).
You may also want to contact state and regional
chapters of professional organizations, including the
American Planning Association, and the American Society
of Landscape Architects, and environmental and
preservation organizations like Scenic America, the Nature
Conservancy, Trust for Public Land, the National Trust for
Historic Preservation and Preservation Delaware.
Remember to involve business leaders in your efforts.
These leaders may have limited time to spare, but if you use
their time well, their ideas may be critical to the success of
the overall scenic byway effort.
Funding
The passionate efforts of committed volunteers along
with time devoted by state and local agency staff, will go a
long way toward assembling the critical mass of effort
needed to prepare at Step 1 - Nomination Application and
Step 2 - Corridor Plan. However, some level of funding will
likely be needed to complete these efforts. Creative
partnering is a good first step toward securing needed
resources, both expertise and financial. Many suggestions
are made in the previous section of this chapter. While some
of your partners may be familiar with funding sources from
government programs, others may know foundation sources
interested in collaborative and positive outcomes likely from
a scenic byway planning and implementation process. Still
others, particularly business leaders, may know of corporate
sources willing to sponsor your effort.
Once a route has received state Scenic and Historic
Highway designation as a result of approval of the Step 1 -
Nomination Application, it is eligible for federal funding for
corridor planning from the FHWA. Federal grants are
available on a competitive basis with applications due
generally about June 1 of each year. DelDOT's Scenic and
Historic Highways Coordinator will have complete
information available on this funding. The byways.org
website includes a list of activities eligible for funds, listings
of grants awarded in past years, and an application for future
grant awards. There is a matching requirement of 20% for
the federal funds awarded.
Cooperative efforts with neighboring states
The nearby states of Maryland and New Jersey have
particularly active scenic byways programs and are
interested in byway proposals that might cross state lines.
For example, the Underground Railroad, an important theme
in Delaware's history, is also being interpreted as part of
Maryland's Chesapeake Country Byway. You may wish to
contact the state scenic byways coordinators for these states
to discuss possible partnership opportunities. DelDOT's
Scenic and Historic Highways Coordinator can provide you
with contact information.
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Statutory Authority: 29 Delaware Code,
Section 5005(11), (29 Del.C. §5005(11))
Delaware Economic Development Office
The Delaware Economic Development Authority
Order Adopting And Promulgating Proposed
Amendment To Regulation No. 5 - Procedures
Governing The Delaware Strategic Fund
TITLE OF REGULATION
Regulation No. 5 - Procedures Governing the Delaware
Strategic Fund.
ORDER ADOPTING AND PROMULGATING
AMENDMENTS TO REGULATIONS
AND NOW, this 2nd day of October, 2001, John D.
Wik, as Director of the Delaware Economic Development
Office ("DEDO") and as Chairperson of The Delaware
Economic Development Authority ("DEDA"), in accordance
with 29 Delaware Code §§ 5005(11), 5029(a) and 10118(b),
for the reasons stated below enters this ORDER adopting
and promulgating the amendments to Regulation No. 5 -
"Procedures Governing the Delaware Strategic Fund" (the
"Regulation")
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1142 FINAL REGULATIONS
NATURE OF PROCEEDINGS; SYNOPSIS OF THE
SUBJECT AND SUBSTANCE OF THE
PROPOSEDAMENDMENTS TO THE REGULATION
In accordance with procedures set forth in 29 Del. C.
Ch. 11, Subch. III and 29 Del. C. Ch. 101, the Director of
DEDO, as Chairperson of DEDA, proposed to adopt
amendments to the existing Regulation, which governs the
administration and operation of the Delaware Strategic Fund
Program established in 29 Del. C. §§ 5027 through 5029, as
amended, to reflect certain changes in the practices of The
Delaware Economic Development Authority pertaining to
the Delaware Strategic Fund Program and changes to the
Brownfield Assistance program under that statute that are
necessitated by the enactment into law of 73 Delaware Laws,
c. 183 (July 13, 2001). The proposed amendments add
certain new definitions in connection with the Brownfield
Assistance Program, incorporate the interagency due
diligence that the staff of the Delaware Economic
Development Office performs into the description of the
evaluation process for assistance, eliminate certain nonprofit
activities from the list of ineligible projects in certain
programs, remove a limitation on the amount of assistance
that can be rendered with respect to certain programs and
conform the Brownfield Assistance Program terms to those
in the recently enacted 29 Del. C. § 5028(c).
Notice of the public hearing to consider the proposed
amendments and the text of the amendments appeared in the
September 1, 2001 issue of the Delaware Register of
Regulations, 5 Del. R.499 - 512 (September 1, 2001), and in
Delaware newspapers of general circulation on September 6,
2001 and September 10, 2001in accordance with 29 Del. C.
§10115(b). An employee of DEDO designated by the
Director of DEDO in accordance with 29 Del. C. §§
5005(10), 5053(e) and 10117(1) held the public hearing on
October 1, 2001 from 5:00 until 7:00 p.m. at the offices of
DEDO on the 10th floor of the Carvel State Office Building,
820 N. French Street, Wilmington, DE, 19801, as duly
noticed. This is the order of the Director of DEDO in his
capacity as Director and as Chairperson of DEDA adopting
the proposed amendments to the Regulation.
SUMMARY OF EVIDENCE AND INFORMATION
SUBMITTED
DEDO received no written comments in response to the
notice of the proposed amendments to the Regulation, and
no member of the public made comment on the proposed
amendments to the Regulation at the public hearing on
October 1, 2001.
FINDINGS OF FACT AND CONCLUSIONS
1. The Delaware General Assembly enacted certain
changes to the Brownfields Program within the Delaware
Strategic Fund in 73 Delaware Laws, c. 183 (July 13, 2001),
codified at 29 Del. C. § 5028(a)(4) and (c), that require the
amendment of the Regulation so that it conforms to the
statute governing the Delaware Strategic Fund.
2. In the process of evaluating applications for
assistance under the Delaware Strategic Fund program,
DEDO personnel have begun the practice of making
inquiries of other agencies of the State of Delaware, other
states and the United States about the applicant to verify
assertions made in the application. The proposed
amendments to the Regulation reflect this recently
developed practice.
3. Based on its experience with the Delaware Strategic
Fund Program, DEDA has determined that it should amend
certain restrictions imposed by the Regulation. Thus, the
proposed amendments to the Regulation alter the maximum
amount of certain types of assistance, broaden the uses to
which certain types of assistance may be put, eliminate
certain percentage limitations on the amount of assistance
available under various subprograms of the Delaware
Strategic Fund and eliminate the ineligibility for assistance
of certain non-profit activities and entities.
4. Certain changes and language in the Regulation
proposed in the version of the Regulation sent to the Register
of Regulations were not reproduced in the Regulation, as
published in 5 Del. R. 499 - 512, and those changes are
reflected in the text of the final regulation that follows.
5. The proposed amendments to the Regulation are
necessary to conform the Regulation to its underlying statute
and to reflect present DEDA practice in the administration of
the Delaware Strategic Fund Program.
6. The Director of DEDO, in his capacity as Director
and as Chairperson of DEDA, has statutory authority to
promulgate regulations pursuant to 29 Del. C. §§ 5005(11)
and 5029(a).
DECISION AND ORDER CONCERNING
AMENDMENTS TO THE REGULATION
NOW THEREFORE, under the statutory authority and
for the reasons set forth above, the Director of DEDO, in his
capacity as Director and as Chairperson of DEDA, ORDERS
that the amendments to the Regulation be, and that they
hereby are, adopted and promulgated as set forth below. The
effective date of this Order is ten days from the date of its
publication in the Delaware Register of Regulations, in
accordance with 29 Del. C. § 10118(g).
John D. Wik, Director, Delaware Economic Development
Office and Chairperson, The Delaware Economic
Development Authority
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1143
TEXT OF THE REGULATION, AS AMENDED
1.0 ENABLING LEGISLATION
1.1 Pursuant to 29 Del.C. §§ 5027-5029 (the "Act"), as
amended, the Delaware Strategic Fund (the "Fund") was
established. The Fund was created to assist the Delaware
Economic Development Office (the "Office") through The
Delaware Economic Development Authority (the
"Authority") with efficiently administering financing
programs as well as with developing new programs to retain,
attract and expand Delaware employment. Section 5029(a)
of the Act directs the Authority to draft rules and regulations
pertaining to Fund eligibility. The following regulations (the
"Regulations") have been adopted by the Authority pursuant
to the foregoing provision of the Act. 29 Del.C. § 5005(11)
also gives the Director of the Office general power to
promulgate rules and regulations governing the Office.
2.0 PURPOSE
2.1 The purpose of these Regulations is to establish
criteria for the administration of the Fund. The Regulations
contain procedures governing the process for applying to the
Authority for economic assistance under the Fund, preclosing
and post-closing procedures and criteria for the
Authority's approval or disapproval of an application for
economic assistance under the Fund.
3.0 DEFINITIONS
Unless otherwise indicated below, all capitalized terms
used herein shall have the meaning ascribed to such terms in
29 Del.C. § 5052.
The terms defined in 1.0 of this Regulation shall have
the meanings ascribed to such terms therein.
The following words and terms, unless the context
clearly indicates a different meaning, shall have the
following respective meanings:
"Application" means an application made to the
Authority on such form or forms, together with all relevant
attachments, as the Authority may, in its sole discretion,
require in connection with administration of the Fund.
"Applicant" means any person, including individuals,
firms, partnerships, associations, societies, trusts, public or
private corporations, not for profit corporations or other
legal entities, including public or governmental bodies as
well as natural persons for which a Project is undertaken or
proposed to be undertaken.
"Award" shall have the meaning ascribed to such term
in 18.0 hereof.
"Brownfield" means any vacant, abandoned or
underutilized real property, the development or
redevelopment of which may be hindered by the reasonably
held belief that the real property may be environmentally
contaminated.
"Brownfield Assistance" shall have the meaning
ascribed to such term in 19.0 hereof.
"Certified Brownfield" means a Brownfield that the
Secretary of the Department of Natural Resources and
Environmental Control has certified as a Brownfield
pursuant to the regulations promulgated under 7 Del.C.
§9104(b)(2)p.
Chairman "Chairperson" means the Chairman
Chairperson of the Authority.
"Council" means the Council on Development Finance
created by 29 Del. C. §5007.
"Development Assistance" shall have the meaning
ascribed to such term in 15.0 hereof.
"Director" means the Director of the Delaware
Economic Development Office.
"Eligible Project" shall have the meaning ascribed to
such term in 19.0 hereof.
"Final Approval" means the final approval of an
Application by the Chairman Chairperson.
"Financial Assistance" shall have the meaning
ascribed to such term in 17.0 hereof.
"GII Loan" shall have the meaning ascribed to such
term in 11.0 hereof.
"Green Industries Initiative" means the program
created by the memorandum of understanding between the
Delaware Development Office, predecessor in interest to the
Delaware Economic Development Office, and the
Department of Natural Resources and Environmental
Control dated December 2, 1991.
"Loan" shall have the meaning ascribed to such term in
10.0 hereof.
"Participation" shall have the meaning ascribed to
such term in 9.0 hereof.
"Program" shall have the meaning ascribed to such
term in 18.0 hereof.
"Relocation Assistance" shall have the meaning
ascribed to such term in 16.0 hereof.
"SBIR" shall have the meaning ascribed to such term in
18.0 hereof.
4.0 FEES
4.1 Application Fees
4.1.1 A non-refundable fee of two hundred fifty
dollars ($250) shall accompany every Application before
such Application shall be considered by the Authority. The
fee shall be in the form of a check made payable to "The
Delaware Economic Development Authority."
4.2 Closing Fees
4.2.1 For loans or participations in any amount up
to and including one hundred thousand dollars ($100,000), a
fee of one half percent (.5%) of the loaned amount shall be
paid at closing.
4.2.2 For loans or participations excess of one
hundred thousand dollars ($100,000) up to and including
two hundred twenty five thousand dollars ($225,000), a fee
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1144 FINAL REGULATIONS
of one percent (1%) of the loaned amount shall be paid at
closing.
4.2.3 For loans or participations in excess of two
hundred twenty five thousand dollars ($225,000), a fee of
one and one half percent (1.5%) of the loaned amount shall
be paid at closing.
4.2.4 The Application fee shall be credited toward
the closing fee required to be paid under 4.2. In no event
shall the closing fee and the Application fee total less than
two hundred fifty dollars ($250).
4.3 Post Closing Fees
4.3.1 Any fees or costs incurred by the Authority in
connection with executing a document or granting a consent
or waiver related to a Project after closing, including,
without limitation, attorney fees, shall be paid by the
Applicant.
4.3.2 Any fees or costs incurred by the Authority
for modifying or restructuring payment terms for financial
assistance after closing, shall be paid by the Applicant.
4.3.3 Closing documentation for all Projects shall
contain the Applicant's covenant to pay the fees and costs
described in 4.3.1 and 4.3.2.
4.4 Waiver of Fees
4.4.1 The foregoing fees shall, unless otherwise
waived by the Authority in its sole discretion, be paid with
respect to all financial assistance granted by the Authority.
5.0 LOAN TERMS
5.1 Interest Rate
5.1.1 The interest rate on a direct loan with a term
up to and including one hundred twenty (120) months shall
be sixty percent (60%) of the prime rate published in The
Wall Street Journal.
5.1.2 The interest rate on a direct loan with a term
of more than one hundred twenty (120) months shall be
seventy percent (70%) of the prime rate published in The
Wall Street Journal.
5.1.3 The interest rate on a participation loan with a
term up to and including one hundred twenty (120) months
shall be sixty percent (60%) of the participating bank's
commercial rate.
5.1.4 The interest rate on a participation loan with a
term of more than one hundred twenty (120) months shall be
seventy percent (70%) of the participating bank's
commercial rate.
5.2 Maturity
5.2.1 Loans for which the proceeds are used for
working capital purposes shall not have a maturity of greater
than five (5) years.
5.2.2 Loans for which the proceeds are used for
purposes other than working capital and the purchase or
renovation of real estate shall not have a maturity of greater
than ten (10) years.
5.2.3 Loans for which the proceeds are used to
purchase or renovate real estate shall not have a maturity
greater than twenty (20) years.
5.3 Repayment
5.3.1 Loans will be amortized and repaid to the
Authority on a monthly basis. Any amortization of Loan
repayment other than monthly principal and interest shall be
at the sole discretion of the Authority.
5.3.2 Participations will be amortized to mirror
those of the financial institution from which the Participation
was purchased.
6.0 APPLICATION PROCEDURE
6.1 Before submitting an Application, the Applicant
should consult with the Authority to determine if the Project
is eligible for consideration.
6.2 To apply for financial assistance, an Applicant must
submit a completed Application concerning the Project to
the Authority for review, together with the non-refundable
Application fee. No application will be reviewed by the
Authority until it is complete to the satisfaction of the
Authority.
6.3 Applicants may obtain Application forms by
contacting the Director of Financial Programs, Delaware
Economic Development Office, 99 Kings Highway, Dover,
DE 19901. Phone (302) 739-4271 / Fax (302) 739-5749.
7.0 EVALUATION PROCESS
7.1 When an Application is complete to the satisfaction
of the Authority, the Authority will evaluate the Project,
which evaluation may be based on the following:
7.1.1 Visitation to the Applicant's place of
business, which may take place prior to the Application as a
part of the meeting to determine eligibility.
7.1.2 Analysis of historical and projected financial
statements and a comparison to industry peers.
7.1.3 An independent industry study (using source
material such as RMA Annual Statement Studies),
comparing the Applicant's projections to the study, and
considering the short term and long term outlook for the
industry.
7.1.4 Contact with the Applicant's customers to
ascertain the quality of the product or service provided, the
competitiveness of the pricing, reliability and timelines of
delivery, length of the relationship, likelihood of the
relationship being continued, and customer's opinions of the
Applicant's management.
7.1.5 Contact with the Applicant's suppliers to
ascertain the length of the relationship, the amount of credit
extended, the amount of purchases, payment history, the
likelihood of the relationship being continued, and possibly
an opinion of Applicant's management.
7.1.6 Contact with the Applicant's bank(s) to
ascertain credit history and obtain an opinion of the
Applicant's management.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1145
7.1.7 An analysis of collateral available to secure
any requested financing as to adequacy of amount, quality,
condition, and marketability.
7.1.8 Independent credit investigations of the
Applicant and its principals, which may include judgment
and lien searches.
7.1.9 Independent inquiries about the Applicant
and its principals with other agencies of the State, other
states, or the United States.
7.2 After completing the evaluation, a determination
shall be made regarding the merits of the request, the
adequacy of the collateral available to secure the requested
financing, if applicable, and, if applicable, the likelihood of
repayment.
7.3 If a positive determination is made, the requested
financing will be presented to the Chairman Chairperson for
preliminary approval.
8.0 APPROVAL PROCESS
8.1 The Authority shall use its reasonable best efforts to
complete its review of the Application and to forward the
Application to the Chairman Chairperson for preliminary
approval or disapproval within sixty (60) days from the date
it deems an Application complete.
8.2 Upon preliminary approval by the Chairman
Chairperson, an Application shall be submitted to the
Council for review, and the Council shall make a
recommendation with respect to the Application.
8.3 If the Chairman Chairperson of the Authority
determines that a Project has substantial economic
development content, is in the public interest, and that the
Authority's financial support would represent a prudent use
of State funds, consistent with the Act, then the Chairman
Chairperson may recommend financial assistance for such
Project to the Council which exceeds any dollar limitations,
conditions to, or restrictions on, assistance contained in these
Regulations.
8.4 Upon recommendation by the Council, the
Application shall be submitted to the Chairman Chairperson
for consideration and final approval or disapproval.
8.5 Final Approval shall constitute official action on the
part of the Authority demonstrating its intent to adopt a
resolution authorizing the issuance of the requested financial
assistance. Final Approval will be binding on the Authority
provided, however, that the Authority may withdraw Final
Approval at any time prior to the Closing Date disbursement
of financial assistance, if it determines that (1) the
Applicant's circumstances have changed adversely since the
date of Final Approval or since completion of the
Application, if such adverse change did not come to the
Authority's attention prior to Final Approval or (2) the
Application contained a statement that was materially false
or failed to include information necessary to prevent the
Application from being materially false.
8.6 Final Approval will be effective for a period not to
exceed one (1) year, and all funds committed for a Project
must be completely dispersed by the Authority within that
time. The Authority, in its sole discretion, may make
limitations or grant extensions with respect to this one-year
period.
8.7 The Applicant shall be issued a commitment letter
outlining the terms and conditions of the Final Approval.
When the commitment letter has been accepted by the
Applicant and returned to the Authority together with any
required fees, and all required documentation is prepared in
form and content satisfactory to the Authority, a closing is
scheduled and financial assistance is made available to the
Applicant.
9.0 PARTICIPATION LOAN PROGRAM
9.1 Program Description
9.1.1 The Authority is empowered to purchase
participations from financial institutions that are approved
by the Authority (a "Participation"). A Participation shall be
no more than thirty percent (30%) of the eligible bank debt
with respect to a Project. The Authority may, in its sole
discretion, limit the amount of its Participation in any Project
to any amount less than thirty percent (30%).
9.1.2 The maximum amount of a Participation
ordinarily shall be four hundred fifty thousand dollars
($450,000), and the minimum amount shall be thirty
thousand dollars ($30,000).
9.1.3 Proceeds of Participations can be used for
any Project, subject to 9.2.2 below.
9.1.4 The maximum term of a Participation shall be
twenty (20) years and the minimum term shall be two (2)
years. The actual term will be based on usage of the
proceeds and will mirror the term of the underlying loan.
9.2 Eligibility Standards
9.2.1 To be eligible for a Participation, a Project
should serve a public purpose by maintaining or expanding
full-time employment in the State, maintaining or
diversifying business and industry in the State, and/or
maintaining or increasing its tax base. Also, the Applicant
must be able to demonstrate to the satisfaction of the
Authority that financial assistance from the State is
necessary to effectuate the outcome of the Project.
9.2.2 The following projects do not qualify for a
Participation:
9.2.2.1 Private speculative real estate ventures;
9.2.2.2 Projects which do not attract or retain
employment opportunities;
9.2.2.3 Restaurants and professional office
buildings;
9.2.2.4 Refinancing of existing debt; and,
9.2.2.5 Funding projects located outside the
State. and
9.2.2.6 Private, non-profit activities except
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1146 FINAL REGULATIONS
those which assist in the financing of medical facilities,
nursing facilities for the residence care of the aged in order
to provide modern and efficient medical and nursing care
and residence facilities for the citizens of the State.
9.3 Project Approval Standards
9.3.1 Findings. - As a precondition to approving a
Participation, the Authority shall make the findings and
determinations required by 29 Del. C. §5055 with respect to
the Applicant and the Project. The Authority shall apply the
following standards, where applicable, in making such
findings and determinations:
9.3.1.1 Employment Standard. - The Authority
will review information concerning the Applicant as
submitted in an Application or as otherwise available to the
Authority through independent investigation. As a condition
precedent to purchasing a Participation, the Authority shall
determine that the Applicant intends to maintain and/or is
capable of maintaining or providing gainful employment
within the State. The standards to be considered by the
Authority will include, but not be limited to, the number of
permanent, quality, full-time jobs created or retained as a
result of the Project, the wage scale applicable to persons to
be employed as a result of the Project, the economic
situation in the State at the time of filing of the Application,
the effect of the Project on the tax base of the State or of the
county or municipality in which the Project is to be located,
and the expected impact that the Project will have on the
development of new or expanded economic activity within
the State.
9.3.1.2 Abandonment Standard. - When
applying the "employment standard" set forth in 9.3.1.1.
above, the Authority shall take into consideration whether
the Project will cause or result in unnecessary abandonment
of an existing facility elsewhere in the State by the
Applicant. The Authority, in its sole discretion, may
disapprove a Participation for a Project involving relocation
within the State if the relocation will result in a job loss and/
or hardship for existing employees or abandonment.
9.3.1.3 Capability Standard; Adherence to
Law. In determining whether the Project will assist in
creating or retaining "direct, permanent, quality full-time
jobs" in the State, the Applicant shall demonstrate to the
Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude by any agency or court of the
federal government or agency or court of any state in the 2-
year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its sole discretion, rely on a sworn affidavit of the
Applicant or an officer of the Applicant or an opinion of
counsel of the Applicant to such effect. If an Applicant has
been convicted of such a violation, the Authority, in its sole
discretion, may decline to consider the Application. If
requested by the Authority, similar proof shall be obtained
from any operator or principal user of the Project.
9.3.1.4 Prior Lending Commitment. - Prior to
Final Approval the Applicant must provide a written
commitment from a bank or other recognized lending
institution evidencing its commitment to lend to the
Applicant the required portion of the bank debt necessary to
complete the proposed Project.
9.3.2 Collateral Provisions. - The Participation
shall be collateralized to the satisfaction of the Authority
which shall use standard underwriting procedures to
determine such collateralization. In the case of a privately
held company, personal guarantees from active owners
(whose ownership is 20% or greater) will normally be
required.
9.3.3 Mandatory Provisions in Closing Documents.
- The closing documents for a Participation shall state that, if
applicable, the participating financial institution will provide
evidence to the Authority that the Applicant maintains
property insurance policies on any collateral. The Authority
shall be listed as loss payee, as its interests may appear, and
the participating financial institution will provide evidence
to the Authority that the Applicant maintains public liability
insurance naming the Authority as an additional insured, as
its interests may appear.
9.3.4 Post-Loan Period - Annual Reporting. -
Unless waived or amended by the Authority in its sole
discretion, the Applicant shall, for a period of five (5) years
following the funding of a Participation, submit to the
Authority, on an annual basis, financial statements in a form
acceptable to the Authority, a progress report on the status of
the Project, including, but not limited to, the number of
permanent, quality, full-time jobs created or saved as a result
of the Project and the wage scale applicable to such persons,
any economic impact of the funding (such as sales, costs,
etc.) and any other information required by the Authority.
Each Applicant shall report to the Authority no later than
August 31 of each of the years for which the report is
required.
10.0 DIRECT LOAN PROGRAM
10.1 Program Description
10.1.1 The Authority is empowered to make direct
loans to Applicants (a "Loan"). The maximum amount of a
Loan shall be thirty percent (30%) of the eligible bank debt
with respect to a Project. The Authority may, in its sole
discretion, limit the amount of its Loan in any Project to any
amount less than thirty percent (30%).
10.1.2 The maximum amount of a Loan ordinarily
shall be four hundred fifty thousand dollars ($450,000), and
the minimum amount shall be thirty thousand dollars
($30,000).
10.1.3 Proceeds of a Loan can be used for, but are
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1147
not limited to, the acquisition of land, buildings, machinery
and equipment, the expansion of an existing building, or the
renovation of machinery, equipment, and buildings.
Proceeds can also be used to augment working capital.
10.1.4 The maximum term of a Loan shall be
twenty (20) years and the minimum term shall be two (2)
years. The actual term of the Loan will be based on usage of
the proceeds.
10.2 Eligibility Standards
10.2.1 To be eligible for a Loan, a Project should
serve a public purpose by maintaining or expanding
employment in the State, by maintaining or diversifying
business and industry in the State, and/or by maintaining or
increasing its tax base. Also, the Applicant must be able to
demonstrate to the satisfaction of the Authority that financial
assistance from the State is necessary to effectuate the
outcome of the Project.
10.2.2 The following projects do not qualify for a
Loan:
10.2.2.1 Private speculative real estate
ventures;
10.2.2.2 Projects which do not attract or retain
employment opportunities;
10.2.2.3 Restaurants and professional office
buildings;
10.2.2.4 Refinancing of existing debt; and,
10.2.2.5 Funding projects located outside the
State. and
10.2.2.6 Private, non-profit activities except
those which assist in the financing of medical facilities,
nursing facilities for the residence care of the aged in order
to provide modern and efficient medical and nursing care
and residence facilities for the citizens of the State.
10.3 Project Approval Standards
10.3.1 Findings. - As a precondition to approving
a Loan, the Authority shall make the findings and
determinations required by 29 Del.C. § 5055 with respect to
the Applicant and the Project. The Authority shall apply the
following standards, where applicable, in making such
findings and determinations:
10.3.1.1 Employment Standard. - The
Authority will review information concerning the Applicant
as submitted in an Application or as otherwise available to
the Authority through independent investigation. As a
condition precedent to making a Loan, the Authority shall
determine that the Applicant intends to maintain and/or is
capable of maintaining or providing gainful employment
within the State. The standards to be considered by the
Authority will include, but not be limited to, the number of
permanent, quality, full-time jobs created or retained as a
result of the Project, the wage scale applicable to persons to
be employed as a result of the Project, the economic
situation in the State at the time of filing of the Application,
the effect of the Project on the tax base of the State or of the
county or municipality in which the Project is to be located,
and the expected impact that the Project will have on the
development of new or expanded economic activity within
the State.
10.3.1.2 Abandonment Standard. - When
applying the "employment standard" set forth in 10.3.1.1.
above, the Authority shall take into consideration whether
the Project will cause or result in unnecessary abandonment
of an existing facility elsewhere in the State by the
Applicant. The Authority, in its sole discretion, may
disapprove a Loan in a Project involving relocation within
the State if the relocation will result in a job loss and/or
hardship for existing employees or abandonment.
10.3.1.3 Capability Standard; Adherence to
Law. In determining whether the Project will assist in
creating or retaining "direct, permanent, quality full-time
jobs" in the State, the Applicant shall demonstrate to the
Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude by any agency or court of the
federal government or agency or court of any state in the 2-
year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its discretion, rely on a sworn affidavit of the Applicant or
an officer of the Applicant or an opinion of counsel of the
Applicant to such effect. If an Applicant has been convicted
of such a violation, the Authority, in its sole discretion, may
decline to consider the Application. If requested by the
Authority, similar proof shall be obtained from any operator
or principal user of the Project.
10.3.1.4 Prior Lending Commitment. - Prior to
Final Approval the Applicant must provide a written
commitment from a bank or other recognized lending
institution evidencing its commitment to lend to the
Applicant the required portion of the bank debt necessary to
complete the proposed Project.
10.3.2 Collateral Provisions. - The Loan shall be
collateralized to the satisfaction of the Authority which shall
use standard underwriting procedures to determine such
collateralization. In the case of a privately held company,
personal guarantees from active owners (whose ownership is
20% or greater) will normally be required.
10.3.3 Mandatory Provisions in Closing
Documents. - The closing documents for a Loan shall state
that, if applicable, the Applicant will provide evidence to the
Authority that the Applicant maintains property insurance
policies on any collateral with the Authority listed as loss
payee, as its interests may appear, and public liability
insurance policies with the Authority listed as an additional
insured, as its interests may appear.
10.3.4 Post-Loan Period - Annual Reporting. -
Unless waived or amended by the Authority in its sole
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1148 FINAL REGULATIONS
discretion, the Applicant shall, for a period of five (5) years
following the funding of a Loan, submit to the Authority, on
an annual basis, financial statements in a form acceptable to
the Authority, a progress report on the status of the Project,
including, but not limited to, the number of permanent,
quality, full-time jobs created or saved as a result of the
Project and the wage scale applicable to such persons, any
economic impact of the funding (such as sales, costs, etc.)
and any other information required by the Authority. Each
Applicant shall report to the Authority no later than August
31 of each of the years for which the report is required.
11.0 GREEN INDUSTRIES LOAN PROGRAM
11.1 Program Description
11.1.1 The Authority is empowered to make loans
to Applicants who have been approved for eligibility under
the Green Industries Initiative (a "GII Loan"). The
maximum amount of a GII Loan by the Authority shall be
thirty percent (30%) of the eligible bank debt with respect to
a Project. The Authority may, in its sole discretion, limit the
amount of its GII Loan in any Project to any amount less
than thirty percent (30%).
11.1.2 The maximum amount of a GII Loan
ordinarily shall be four hundred fifty thousand dollars
($450,000), and the minimum amount shall be thirty
thousand dollars ($30,000).
11.1.3 Proceeds of a GII Loan can be used for
projects including, but not limited to, the acquisition of land,
buildings, machinery and equipment, the expansion of an
existing building, or the renovation of machinery,
equipment, and buildings. Proceeds can also be used to
augment working capital. Proceeds shall not be used for
vehicles or other equipment that may be classified as "rolling
stock."
11.1.4 The maximum term of a GII Loan shall be
twenty (20) years and the minimum term shall be two (2)
years. The actual term of the GII Loan will be based on
usage of the proceeds.
11.1.5 GII Loans may also be made through
Participations. The term of a GII Participation will mirror
the underlying loan from the financial institution.
11.2 Eligibility Standards
11.2.1 To be eligible for a GII Loan, a Project
should serve a public purpose by demonstrating the
reduction, abatement, or prevention of pollution of the
state's environment or protecting its natural resources.
11.2.2 The following projects do not qualify for a
GII Loan:
11.2.2.1 Projects for which the Applicant has
not been approved for the Green Industries Initiative;
11.2.2.2 Projects which do not demonstrate the
reduction, abatement, or prevention of pollution of the
State's environment or the protection of its natural resources;
11.2.2.3 Refinancing of existing debt;
11.2.2.4 Speculative ventures;
11.2.2.5 Funding projects located outside the
State; and
11.2.2.6 Private, non-profit activities.
11.3 Project Approval Standards
11.3.1 Findings. - As a precondition to approving a
GII Loan, the Authority shall make the findings and
determinations required by 29 Del. C. §5055 with respect to
the Applicant and the Project. The Authority shall apply the
following standards, where applicable, in making such
findings and determinations:
11.3.1.1 Pollution Control Standard. - The
Authority will review information concerning the Applicant
as submitted in an Application or as otherwise available to
the Authority through independent investigation. As a
condition precedent to making a GII Loan, the Authority
shall determine that the Applicant intends to maintain and/or
is capable of maintaining or providing for the control,
abatement, or prevention of land, water, or general
environmental pollution within the State. The standards to
be considered by the Authority will include, but not be
limited to, the environmental situation in the State at the time
of filing of the Application, the effect of the Project on the
State or of the county or municipality in which the Project is
to be located, and the expected impact that the Project will
have on the development of new or expanded economic
activity within the State.
11.3.1.2 Abandonment Standard. - When
applying the "Pollution Control Standard" set forth in
11.3.1.1 above, the Authority shall take into consideration
whether the Project will cause or result in unnecessary
abandonment of an existing facility elsewhere in the State by
the Applicant. The Authority, in its sole discretion, may
disapprove a GII Loan in a Project involving relocation
within the State if the relocation will result in a job loss and/
or hardship for existing employees or abandonment.
11.3.1.3 Capability Standard; Adherence to
Law. In determining whether the Project will assist in the
reduction, abatement, or prevention of pollution of the
State's environment or whether it will protect the State's
natural resources, the Applicant shall demonstrate to the
Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude by any agency or court of the
federal government or agency or court of any state in the 2-
year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its discretion, rely on a sworn affidavit of the Applicant or
an officer of the Applicant or an opinion of counsel of the
Applicant to such effect. If an Applicant has been convicted
of such a violation, the Authority, in its sole discretion, may
decline to consider the Application. If requested by the
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FINAL REGULATIONS 1149
Authority, similar proof shall be obtained from any operator
or principal user of the Project.
11.3.1.4 Prior Lending Commitment. -Prior to
Final Approval the Applicant must provide a written
commitment from a bank or other recognized lending
institution evidencing its commitment to lend to the
Applicant the required portion of the bank debt necessary to
complete the proposed Project.
11.3.2 Collateral Provisions. - The GII Loan shall
be collateralized to the satisfaction of the Authority which
shall use standard underwriting procedures to determine
such collateralization. In the case of a privately held
company, personal guarantees from active owners (whose
ownership is 20% or greater) will normally be required.
11.3.3 Mandatory Provisions in Closing
Documents. - The closing documents for a GII Loan shall
state that, if applicable, the Applicant will provide evidence
to the Authority that the Applicant maintains property
insurance policies on any collateral with the Authority listed
as loss payee, as its interests may appear, as well as public
liability policies with the Authority listed as additional
insured, as its interests may appear.
11.3.4 Post-Loan Period - Annual Reporting. -
Unless waived or amended by the Authority in its sole
discretion, the Applicant shall, for a period of five (5) years
following the funding of a GII Loan, submit to the Authority,
on an annual basis, financial statements in a form acceptable
to the Authority, a progress report on the status of the
Project, including, but not limited to, the number of
permanent, quality, full-time jobs created or saved as a result
of the Project and the wage scale applicable to such persons,
any economic impact of the funding (such as sales, costs,
etc.) and any other information required by the Authority.
Each Applicant shall report to the Authority no later than
August 31 of each of the years for which the report is
required.
12.0 RESERVED FOR FUTURE USE.
13.0 RESERVED FOR FUTURE USE.
14.0 RESERVED FOR FUTURE USE.
15.0 DEVELOPMENT INCENTIVE ASSISTANCE
15.1 Program Description
15.1.1 The Authority is empowered to make
financial assistance in the form of grants to Applicants
("Development Assistance"). The maximum amount of
Development Assistance by the Authority shall be thirty
percent (30%) of the project costs with respect to a Project.
The Authority may, in its sole discretion, limit the amount of
Development Assistance in any Project to any amount less
than thirty percent (30%).
15.1.2 The maximum amount of Development
Assistance with respect to a Project ordinarily shall be four
hundred fifty thousand dollars ($450,000), and the minimum
amount shall be thirty thousand dollars ($30,000).
15.2 Eligibility Standards
15.2.1 To be eligible for Development Assistance,
a Project should serve a public purpose by maintaining or
expanding employment in the State, maintaining or
diversifying business and industry in the State, and/or
maintaining or increasing its tax base. Development
Assistance may be used for the following activities: the
acquisition of land, buildings, machinery and equipment, the
expansion of an existing building, or the renovation or
reconstruction of machinery, equipment, and buildings .
15.2.1.1 Renovation, construction, or any
other type of improvements to roads, and utilities related to
infrastructure; and
15.2.1.2 Assistance for land and building
acquisition and development related to infrastructure.
15.2.2 The following projects do not qualify for
Development Assistance:
15.2.2.1 Private speculative real estate
ventures;
15.2.2.2 Projects which do not attract or retain
employment opportunities;
15.2.2.3 Restaurants and professional office
buildings;
15.2.2.4 Refinancing of existing debt; and
15.2.2.5 Funding projects located outside the
State. and
15.2.2.6 Private, non-profit activities except
those which assist in the financing of medical facilities,
nursing facilities for the residence care of the aged in order
to provide modern and efficient medical and nursing care
and residence facilities for the citizens of the State; and
15.2.2.7 Equipment other than that which is
directly infrastructure related to the funded activity.
15.3 Project Approval Standards
15.3.1 Findings. - As a precondition to approving
Development Assistance, the Authority shall make the
findings and determinations required by 29 Del. C. § 5055
with respect to the Applicant and the Project. The Authority
shall apply the following standards, where applicable, in
making such findings and determinations:
15.3.1.1 Employment Standard. - The
Authority will review information concerning the Applicant
as submitted in an Application or as otherwise available to
the Authority through independent investigation. As a
condition precedent to making Development Assistance, the
Authority shall determine that the Applicant intends to
maintain and/or is capable of maintaining or providing
gainful employment within the State. The standards to be
considered by the Authority will include, but not be limited
to, the number of permanent, quality, full-time jobs created
or retained as a result of the Project, the wage scale
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1150 FINAL REGULATIONS
applicable to persons to be employed as a result of the
Project, the economic situation in the State at the time of
filing of the Application, the effect of the Project on the tax
base of the State or of the county or municipality in which
the Project is to be located, and the expected impact that the
Project will have on the development of new or expanded
economic activity within the State.
15.3.1.2 Abandonment Standard. - When
applying the "employment standard" set forth in 15.3.1.1
above, the Authority shall take into consideration whether
the Project will cause or result in unnecessary abandonment
of an existing facility elsewhere in the State by the
Applicant. The Authority, in its sole discretion, may
disapprove Development Assistance for a Project involving
relocation within the State if the relocation will result in a
job loss and/or hardship for existing employees or
abandonment.
15.3.1.3 Capability Standard; Adherence to
Law. - In determining whether the Project will assist in
creating or retaining "direct, permanent, quality full-time
jobs" in the State, the Applicant shall demonstrate to the
Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude by any agency or court of the
federal government or agency or court of any state in the 2-
year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its discretion, rely on a sworn affidavit of the Applicant or
an officer of the Applicant or an opinion of counsel of the
Applicant to such effect. If an Applicant has been convicted
of such a violation, the Authority, in its sole discretion, may
decline to consider the Application. If requested by the
Authority, similar proof shall be obtained from any operator
or principal user of the Project.
15.3.1.4 Business Standard. - In making
findings and determinations with respect to the capital
investment in a Project, the Authority will consider capital
investment made and to be made in the proposed Project. If
the Project involves an Agricultural Business or a
Commercial Business, as those terms are defined in the Act,
the Project must require a capital investment of at least ten
thousand dollars ($10,000), which funds, including the
amount of Development Assistance will be available or
expended on the date that the Authority provides such during
a period of time commencing one (1) year prior to the date
on which an application for Development Assistance is
submitted to the Authority and terminating one year
following the making of a grant with respect thereto. The
Applicant must provide at least a One Hundred Thousand
Dollar ($100,000) capital investment in and/or secure at least
One Hundred Thousand Dollars ($100,000) of capital leases
for buildings and/or equipment in the State. The term
"capital investment" shall be applied in accordance with
generally accepted accounting principles.
15.3.1.5 Operator and User Standard. - An
Applicant shall, if requested by the Authority or required in
the Application, submit such information as is requested or
required for each proposed operator or principal user of the
Project. The Authority shall apply the same standards with
respect to the operators and principal users of the Project as
are applied to the Applicants, unless there is good reason,
established by the Applicant, to make the findings and
determinations with respect to the Applicant alone. The
financial strength of the Applicant and capacity to manage or
operate the Project, among other considerations, may be the
basis for omitting such findings and determinations with
respect to the operators or principal users.
15.3.2 Clawback Provision. - The Authority shall
determine, in its sole discretion, appropriate clawback
provisions for each Applicant under which the Applicant
may be required to repay some or all of the Development
Assistance granted under this section 15.
15.3.3 Post-Grant Period - Annual Reporting -
Unless waived or amended by the Authority in its sole
discretion, the Applicant shall, for a period of five (5) years
following the award of Development Assistance under the
Program, submit to the Authority, on an annual basis,
financial statements in a form acceptable to the Authority, a
progress report on the status of the Project, including, but not
limited to, the number of permanent, quality, full-time jobs
created or saved as a result of the Project and the wage scale
applicable to such persons, any economic impact of the
funding (such as sales, costs, etc.) and any other information
required by the Authority. Each Applicant shall report to the
Authority no later than August 31 of each of the years for
which the report is required.
16.0 RELOCATION ASSISTANCE
16.1 Program Description
16.1.1 The Authority is empowered to provide
financial assistance to businesses to offset some of the
expenses associated with physically relocating personnel
and/or equipment related to the establishment of their
Delaware operation ("Relocation Assistance"). Relocation
expenses will be based on a formula of up to a maximum of
five thousand dollars ($5,000) for each new full-time
permanent Delaware job created.
16.1.2 The maximum amount of Relocation
Assistance ordinarily shall be assistance with respect to a
Project shall be five hundred four hundred fifty thousand
dollars ($500,000) ($450,000), and the minimum amount
shall be thirty thousand dollars ($30,000).
16.2 Eligibility Standards
16.2.1 To be eligible for Relocation Assistance, a
Project must serve a public purpose by creating new
employment in the State, and should be from targeted
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1151
industries which include manufacturers, wholesalers,
laboratories, data processing, engineering, financial services
(except banks subject to bank franchise tax), or
administration and/or provide a minimum of 25 new jobs by
either transferring out-of-state employees to new residences
in the State or by attracting new employees for the Delaware
operation.
16.2.1.1 The following criteria are used to
determine eligibility:
16.2.1.1.1 A company not presently in the
State relocates to the State.
16.2.1.1.2 A distinct division, subsidiary,
or company with an existing Delaware presence that
relocates additional operations to the State.
16.2.1.1.3 A significant expansion of an
existing Delaware operation by relocating new and distinct
operations not currently being done in the State, but
previously done out-of-state that:
16.2.1.1.3.1 increases permanent fulltime
employment over their current Delaware base;
16.2.1.1.3.2 demonstrates that new
and distinct operations being relocated are added to the
existing Delaware operation.
16.2.1.1.4 The assistance provided should
be a critical element in the relocation decision.
16.2.2 Applicant for Relocation Assistance shall
provide for substantiation of eligibility before funding of a
Project will occur.
16.2.2.1 The following criteria are used to
determine substantiation:
16.2.2.1.1 Machinery & Equipment - The
Applicant must provide actual receipts of expenses
associated with the physical relocation and installation of
equipment from a previous location to the State. (The
purchase and installation of new equipment is not eligible).
16.2.2.1.2 Personnel - The Applicant
shall provide evidence of the physical relocation of those
employees which have moved and established a new
residence in the State.
16.3 Project Approval Standards
16.3.1 Findings. - As a precondition to approving
Relocation Assistance, the Authority shall make the findings
and determinations required by 29 Del.C. § 5055 with
respect to the Applicant and the Project. The Authority shall
apply the following standards, where applicable, in making
such findings and determinations:
16.3.1.1 Employment Standard. - The
Authority will review information concerning the Applicant
as submitted in an Application or as otherwise available to
the Authority through independent investigation. As a
condition precedent to making Relocation Assistance, the
Authority shall determine that the Applicant intends to
maintain and/or is capable of maintaining or providing
gainful employment within the State. The standards to be
considered by the Authority will include, but not be limited
to, the number of permanent, quality, full-time jobs created
or retained as a result of the Project, the wage scale
applicable to persons to be employed as a result of the
Project, the economic situation in the State at the time of
filing of the Application, the effect of the Project on the tax
base of the State or of the county or municipality in which
the Project is to be located, and the expected impact that the
Project will have on the development of new or expanded
economic activity within the State.
16.3.1.2 Capability Standard; Adherence to
Law. - In determining whether the Project will assist in
creating or retaining "direct, permanent, quality full-time
jobs" in the State, the Applicant shall demonstrate to the
Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude by any agency or court of the
federal government or agency or court of any state in the 2-
year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its discretion, rely on a sworn affidavit of the Applicant or
an officer of the Applicant or an opinion of counsel of the
Applicant to such effect. If an Applicant has been convicted
of such a violation, the Authority, in its sole discretion, may
decline to consider the Application. If requested by the
Authority, similar proof shall be obtained from any operator
or principal user of the Project.
16.3.1.3 Business Standard. - In making
findings and determinations with respect to the capital
investment in a Project, the Authority will consider capital
investment made and to be made in the proposed Project. If
the Project involves an Agricultural Business or a
Commercial Business, as those terms are defined in the Act,
the Project must require a capital investment of at least ten
thousand dollars ($10,000), which funds, including the
amount of Relocation Assistance will be available or
expended on the date that the Authority provides such during
a period of time commencing one (1) year prior to the date
on which an application for Relocation Assistance is
submitted to the Authority and terminating one year
following the making of a grant with respect thereto. The
Applicant must provide at least a One Hundred Thousand
Dollar ($100,000) capital investment in and/or secure at least
One Hundred Thousand Dollars ($100,000) of capital leases
for buildings and/or equipment in the State. The term
"capital investment" shall be applied in accordance with
generally accepted accounting principles.
16.3.1.4 Operator and User Standard. - An
Applicant shall, if requested by the Authority or required in
the Application, submit such information as is requested or
required for each proposed operator or principal user of the
Project. The Authority shall apply the same standards with
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1152 FINAL REGULATIONS
respect to the operators and principal users of the Project as
are applied to Applicants, unless there is good reason,
established by the Applicant, to make the findings and
determinations with respect to the Applicant alone. The
financial strength of the Applicant and his capacity to
manage or operate the Project, among other considerations,
may be the basis for omitting such findings and
determinations with respect to the operators or principal
users.
16.3.2 Clawback Provision. - The Authority shall
determine, in its sole discretion, appropriate clawback
provisions for each Applicant under which the Applicant
may be required to repay some or all of the Relocation
Assistance granted under this section 16.
16.3.3 Post-Grant Period - Annual Reporting. -
Unless waived or amended by the Authority in its sole
discretion, the Applicant shall, for a period of five (5) years
following the award of Relocation Assistance, submit to the
Authority, on an annual basis, financial statements in a form
acceptable to the Authority, a progress report on the status of
the Project, including, but not limited to, the number of
permanent, quality, full-time jobs created or saved as a result
of the Project and the wage scale applicable to such persons,
any economic impact of the funding (such as sales, costs,
etc.) and any other information required by the Authority.
Each Applicant shall report to the Authority no later than
August 31 of each of the years for which the report is
required.
17.0 EXEMPT PERSONS DEVELOPMENT
ASSISTANCE
17.1 Program Description.
17.1.1 The Authority is empowered to make
financial assistance ("Financial Assistance") in the form of
grants or loans to Exempt Persons, as defined in the Act.
Exempt Persons are governmental units and certain nonprofit
organizations described in section 501(c)(3) of the
federal Internal Revenue Code of 1986 public or
governmental bodies ("Financial Assistance"). The
maximum amount of any Financial Assistance by the
Authority shall be thirty percent (30%) of the project costs
with respect to a Project. The Authority may, in its sole
discretion, limit the amount of Financial Assistance in a
Project to any amount less than thirty percent (30%).
17.1.2 The maximum amount of Financial
Assistance with respect to a Project ordinarily shall be four
hundred fifty thousand dollars ($450,000), and the minimum
amount of such assistance shall be thirty thousand dollars
($30,000).
17.2 Eligibility Standards
17.2.1 To be eligible for Financial Assistance, a
Project shall demonstrate broad potential for future
development or continuation of the State's economic base. to
contribute to the prosperity, health or general welfare of the
citizens of the State by contributing, directly or indirectly, to
the retention and expansion of existing Delaware businesses,
to the recruitment of new businesses to the State, or to the
formation of new businesses in the State.
17.2.2 If the Applicant involves individuals or
organizations other than Exempt Persons in a Project, then
the Applicant must also demonstrate that the involvement of
such individuals or organizations on the Project will
contribute to the prosperity, health or general welfare of the
citizens of the State by contributing, directly or indirectly, to
the retention and expansion of improve the quality and/or
increase the productivity and profitability of the State's
economy, existing Delaware businesses, to the recruitment
of new businesses to the State, or to the formation of new
businesses in the State, and the Applicant must define such
individual's or organization's responsibilities and document
their willingness and ability to perform.
17.3 Project Approval Standards
17.3.1 Findings. - In connection with the approval
of Financial Assistance for a Project, the Authority shall
make the findings and determinations required by 29 Del. C.
§ 5055 5054(f)(2) with respect to the Project. The Authority
shall apply the following standards where applicable in
making such findings and determinations:
17.3.1.1 General Findings Standard. - The
Authority will review the information submitted by the
Applicant to determine whether the Project will tend,
directly or indirectly, to maintain or provide gainful
employment within the State. The standards to be
considered will include, but not be limited to, the number of
permanent, quality, full-time jobs that could be created or
saved as a result of the Project, the economic situation in the
State, and the expected effect that the Project will have on
the development of new or expanded economic activity
within the State. If the Project is for pollution control
purposes, the Authority will determine whether the Project
will reduce, abate or prevent pollution of the State's
environment or protect its natural resources.
17.3.1.2 Public Purpose Standard. - The
Applicant must demonstrate that the proposed Project will
serve a public purpose by contributing to the prosperity,
health, or general welfare of the citizens of the State.
17.3.1.3 Adherence to Law. - Should the
Applicant involve individuals or organizations in
conjunction with a Project, findings and determinations must
be made that such individuals and organizations have not
been convicted of a major labor law violation or of a
violation involving moral turpitude by any agency or court
of the federal government or agency or court of any state in
the 2-year period immediately prior to the approval of the
Applicant's Application.
18.0 SBIR BRIDGE GRANT ASSISTANCE
18.1 Program Description
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1153
18.1.1 In order to encourage Delaware small
businesses to participate in the federal Small Business
Innovation Research ("SBIR") program, the Authority has
set forth criteria to help maintain continuing SBIR program
research and development. The purposes of the SBIR
program are to (i) stimulate technological innovation; (ii)
use small business to meet federal research and development
needs; (iii) encourage the participation by disadvantaged and
minority persons in technological innovation; and (iv)
increase private sector commercialization of results derived
from federal research and development.
18.1.1.1 The SBIR program is divided into
three phases. The purpose of SBIR Phase I is to show: (i)
that the Assisted Person can do high quality research and
development; (ii) that the proposed effort is technically
feasible; and (iii) that sufficient progress has been made to
justify a much larger federal agency investment in an
Assisted Person's project in connection with SBIR's Phase
II. An SBIR Phase I Award can be as much as on hundred
thousand dollars ($100,000). The SBIR Phase II is the
principal research and development effort, with a duration
which normally does not exceed two years. Federal awards
for SBIR Phase II are based upon the results of SBIR Phase I
and the scientific and technical merit of the SBIR Phase II
proposal. The object is to continue the research and
development initiated under SBIR Phase I. An SBIR Phase
II [A][a]ward can be as much as five hundred thousand
dollars ($500,000). However, the federal government is not
obliged to fund any specific Phase II proposal. SBIR Phase
III encourages small businesses to seek commercialization
funding principally from the private sector (no federal SBIR
funding is provided).
18.1.1.2 The SBIR Bridge Grant Assistance
program (the "Program") seeks to permit the Applicant to
maintain its staff and continue its research pending SBIR
Phase II approval, which may take as long as nine months
after the submission of an SBIR Phase II proposal. Thus, a
Program grant of financial assistance (an "Award") may be
used to help cover the salaries of personnel after completion
of Phase I and before Phase II monies become available. In
addition, an Award may be used to help defray expenses
connected with scientific research, patent search and
applications, strategic and business plan development,
market research, product planning and product development.
Capital equipment and construction or modifications of
facilities are not covered.
18.1.2 Award Approval and Standards
18.1.2.1 Findings. - In connection with the
approval of an Award, the Authority shall make the findings
and determinations required by 29 Del. C. § 5055 with
respect to the Applicant and the Project. The Authority shall
apply the following standards in making such findings and
determinations:
18.1.2.1.1 SBIR Participation. - In order
to be eligible for an Award, an Applicant must establish that
it has been granted an SBIR Phase I award and has submitted
a proposal to the appropriate federal agency for, but has not
yet received, SBIR Phase II funding.
18.1.2.1.2 Principal Place of Business
Standard. - In determining whether an Applicant's principal
place of business is in the State, an Applicant shall
demonstrate to the Authority that its Delaware operation is
either its sole operation or its primary business location.
18.1.2.1.3 Economic Benefit Standard. -
When applying the "Economic Benefit Standard" the
Authority will review the information submitted by an
Applicant to determine whether the Project will tend to
maintain or provide gainful employment within the State.
The standards to be considered will include, but will not be
limited to, the wage scale applicable to persons to be
employed as a result of the research project, the economic
situation in the State, the effect of the project on the tax base
of the State, and of the county or municipality in which the
project is to be located, and the expected effect that the
research project will have on the development of new
economic activity within the State.
18.1.2.1.4 Employment Standard. - The
Authority shall require that an officer or principal of the
Applicant certify to the Authority that the Applicant
maintains a full-time equivalent of not more than one
hundred fifty (100150) employees at the time of Application
the Award.
18.1.3 Approval. - The Authority may, after
applying the foregoing standards, approve a Project and
provide an Award to an Applicant up to a maximum of fifty
thousand dollars ($50,000). No more than three (3)Awards
will be granted to an Applicant in any five (5) year period.
The maximum amount of Awards an Applicant may receive
in a lifetime is two hundred thousand dollars ($200,000).
Additional Awards may be granted by the Authority, but the
Authority may, in its discretion, require repayment of such
additional awards. An Award may be made, at the sole
discretion of the Authority, in a lump sum or in installments.
The specific conditions under which the Authority shall
make an Award to an Applicant shall be set forth in a
commitment letter between the Authority and the Applicant.
18.1.4 Post-Award Documentation. - The
following documentation shall be required of all Applicants
receiving Awards:
18.1.4.1 A summary of the work performed
under the Award no later than August 31 of each of the five
(5) years following the Award or otherwise as required by
the Authority. Such summary shall include projections or
documentation of any actual commercialization of the
Project (such as patents obtained, new products developed,
etc.) and any economic impact (in terms of employment and/
or sales impact with the company, etc.) of such
commercialization.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1154 FINAL REGULATIONS
18.1.4.2 Notification of Phase II SBIR award
results immediately after the award is made or denied.
19.0 BROWNFIELD ASSISTANCE
19.1 Program Description
19.1.1 The Authority is empowered to make
financial assistance in the form of matching grants to
Applicants for the costs of conducting environmental
assessments and remediation at Certified Brownfield sites
investigations of vacant, unoccupied, or underutilized sites,
with respect to any portion thereof, that the Applicant has
reasonable cause to believe may as the result of any prior
commercial or industrial activity by any person, have been
environmentally contaminated in a manner that would
interfere with the intended use of such site ("Brownfield
Assistance").
19.1.2 The maximum amount of Brownfield
Assistance by the Authority shall be twenty-five thousand
dollars ($25,000) or fifty percent (50%) of the total Project
costs, whichever is less, for environmental investigations of
sites eligible for Brownfield Assistance (an "Eligible
Project"). The Authority may, in its sole discretion, limit the
amount of Brownfield Assistance in any Eligible Project to
any amount less than twenty- five thousand dollars
($25,000) or fifty percent (50%).
19.1.2 The maximum amount of Brownfield
Assistance by the Authority with respect to any single
Certified Brownfield shall be the lesser of (a) fifty thousand
dollars ($50,000), or (b) fifty percent (50%) [of the total
costs of] environmental assessment and remediation with
respect to that Certified Brownfield (an "Eligible Project").
The Authority may, in its sole discretion, limit the amount of
Brownfield Assistance for any Eligible Project to any
amount less than fifty thousand dollars ($50,000) or fifty
percent (50%) of environmental assessment and remediation
at the Eligible Project. The Authority may not award more
than one million dollars ($1,000,000) of Brownfield
Assistance, in aggregate, during any fiscal year of the State.
19.2 Eligibility Standards
19.2.1 The following criteria will be used to
determine eligibility for Brownfield Assistance:
19.2.1.1 The proposed investment should have
the potential to serve a public purpose by maintaining or
expanding employment in the State by maintaining,
expanding, or diversifying business and industry in the State,
and/or maintaining or increasing its tax base.
19.2.1.2 Since Brownfield Assistance is in the
form of matching grants, the Applicant shall demonstrate to
the satisfaction of the Authority that funds are available for
environmental assessment and remediation expenses at the
Eligible Project project expenses that will equal or exceed
the amount of Brownfield Assistance requested.
19.2.1.3 Because Eligible Projects must be
Certified Brownfields, the Applicant must submit with its
Application the written certification of the Eligible Project as
a Brownfield issued by the Secretary of the Department of
Natural Resources and Environmental Control. Sites which
qualify for Brownfield Assistance shall be Property as
defined in 7 Del C. § 9103, or any portion thereof, for which
industrial or commercial development is proposed and which
would result in the expansion, retention, or start-up, of an
existing or new business. The Applicant shall demonstrate
to the satisfaction of the Authority that reasonable cause
exists for the Applicant to believe the site may have been
environmentally contaminated as the result of prior
commercial or industrial activity by any person other than a
current or future user of the site, and that said contamination
will interfere with the intended proposed use of such site.
19.2.1.4 Eligible Project sites are vacant,
unoccupied, or underutilized. An underutilized site is one
that the Applicant can demonstrate to the satisfaction of the
Authority (1) is not being used in its fullest capacity or
form, as evidenced by historical data and/or use, or (2) is a
site for which the expansion of business is targeted.
Evidence of expansion shall include a business plan which
outlines proposed capital investment and job creation, or
retention of existing business activity.
19.2.1.5 Eligible Projects are those which the
Authority concludes, in its sole discretion, are sites of the
type that are targeted by Title 7, Del. C., Chapter 91.
19.2.2 The following expenses or types of real
property do not qualify for Brownfield Assistance:
19.2.2.1 Expenses for environmental
assessment and remediation incurred prior to January 16,
2001 July 1, 1995;
19.2.2.2 Project Eexpenses for environmental
assessment which are considered by the Authority, in its sole
discretion, as normal and ordinary in the course of any
financing or real estate transfer transaction or Phase One
assessments;
19.2.2.3 Any site with respect to any portion
of which enforcement action has been initiated under
Chapter 63, Chapter 74 or §9101 of Title 7 of the Delaware
Code; 42 U.S.C. § 6901 et seq.; or 42 U.S.C. § 9606 or
§ 9607;
19.2.2.4 Sites which are owned by a
governmental unit of the State; and
19.2.2.5 Sites located outside the State.
19.3 Project Approval Standards
19.3.1 Findings. - As a precondition to approving
Brownfield Assistance, the Authority shall make the
findings and determinations required by 2[9] Del. C. § 5055
with respect to the Applicant and the Project. The Authority
shall apply the following standards, where applicable, in
making such findings and determinations:
19.3.1.1 Employment Standard. - The
Authority will review information concerning the Applicant
as submitted in an Application or as otherwise available to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
FINAL REGULATIONS 1155
the Authority through independent investigation. As a
condition precedent to making Brownfield Assistance to an
Applicant, the Authority shall determine that the Eligible
Project proposed by the Applicant will assist in maintaining
or providing gainful employment within the State.
Capability Standard; Adherence to Law. - In determining
whether the Project may assist in creating or retaining
employment in the State, the Applicant shall demonstrate to
the Authority that the Applicant, operator or principal user
thereof has the capability to operate and maintain such
Project efficiently and that the Applicant has not been
convicted of a major labor law violation or of a violation
involving moral turpitude turpitude by any agency or court
of the federal government or agency or court of any state in
the 2-year period immediately prior to the approval of the
Applicant's Application. In this regard, the Authority may,
in its discretion, rely on a sworn affidavit of the Applicant or
an officer of the Applicant or an opinion of counsel of the
Applicant to such effect. If an Applicant has been convicted
of such a violation, the Authority, in its sole discretion, may
decline to consider the Application. If requested by the
Authority, similar proof shall be obtained from any proposed
operator or principal user of the Eligible Project.
19.3.1.2 Operator and User Standard. - An
Applicant shall, if requested by the Authority or required in
the Application, submit such information as is requested or
required for each proposed operator or principal user of the
Eligible Project. The Authority shall apply the same
standards with respect to the operators and principal users of
the Eligible Project as are applied to the Applicants, unless
the Applicant establishes good reason to make the findings
and determinations with respect to the Applicant alone.
19.3.2 Clawback Provision. - The Authority shall
determine, in its sole discretion, appropriate clawback
provisions for each Applicant under which the Applicant
may be required to repay some or all of the Brownfield
Assistance granted under this section 19.
19.3.3 Post-Grant Period - Annual Reporting. -
Unless waived or amended by the Authority in its sole
discretion, the Applicant shall, for a period of three (3) years
following the award of Brownfield Assistance, within ninety
(90) days after completing the environmental assessment
and/or remediation at the Eligible Project, submit to the
Authority a written report setting forth the total costs for
management and labor, equipment, sampling and analysis
and the removal and disposal of hazardous waste or other
materials at the Eligible Project , on an annual basis, a
progress report on the status of the Eligible Project,
including, but not limited to, the number of permanent,
quality, full-time jobs created or saved as a result of the
Eligible Project and the wage scale applicable to such
persons, an economic impact of the funding (such as sales,
costs, etc.) and any other information required by the
Authority. Each Applicant shall report to the Authority no
later than August 31 of each of the years for which the report
is required.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1156 GOVERNOR'S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
211 Task Force
Adult Entertainment Commission
Architectural Accessibility Board
Board of Cosmetology and Barbering
Board of Examiners of Private Investigators &
Private Security Agencies
Board of Parole
Board of Pharmacy
Board of the Sewell C. Biggs Collection
Chief Information Officer
Department of Technolgy and Information
Committee on Massage/Bodywork Practitioners
Council on the Blind
Council on Environmental Control
Mr. John McNeal Pleasure of the
Governor
Ms. K. Jean Williams Pleasure of the
Governor
Ms. Mary Boudart Three Years From
Senate Confirmation
Mrs. Elizabeth Olsen Three Years From
Senate Confirmation
Mr. Nash Childs 8/15/05
Ms. Lois Dawson 9/06/05
Mr. Francis DiSabatino, Jr., Chairperson Pleasure of the
Governor
Mr. Armando Liberti 8/15/05
Ms. Deana Miller 9/06/05
Ms. Emma Lou Browning 10/20/03
Mr. Preston L. Dyer 9/18/04
Ms. Nina M. Silicato 9/18/04
Mr. Edward V. Hill 8/22/04
Dr. Hope W. Murray 8/22/04
Mr. Frank G. Sullivan 8/22/04
Mrs. Marlene Lichtenstadter, Chair Pleasure of the
Governor
Ms. Donna Dagen 7/01/04
Mr. C. Terry Jackson, II Pleasure of the
Governor
The Honorable Sherman Tribbitt Pleasure of the
Governor
Mr. Thomas Jarrett Pleasure of the
Governor
Ms. Phyllis E. Mikell 9/18/04
Mr. Daniel P. Stokes 9/18/04
Ms. Katherine Clark 8/28/04
Ms. Marita Gonzalez 8/28/04
Dr. Joel Halpern 8/28/04
Ms. Joyce Voshell 9/14/04
Mr. Douglas Corey 4/22/02
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GOVERNOR'S APPOINTMENTS 1157
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Council on Hispanic Affairs
Delaware Agricultural Lands Preservation
Foundation Board
Delaware Arts Council
Delaware Board of Nursing
Delaware Gaming Control Board
Dover Housing Authority
Emergency Medical Services Oversight Committee
Kent County Vocational Technical Board
of Education
Public Employment Relations Board
Riverfront Development Corporation
Selective Service Board
Mr. Jose F. Echeverri 9/12/04
Mr. I. Jaime Figueras 9/12/04
Mr. Hector Figueroa 9/12/04
Sister Margaret M.Giblin 9/12/04
The Honorable Joseph E. Miro 9/12/04
Ms.Elba Quiles 9/07/04
Mr. Robert R. Garey, Sr., Chair Pleasure of the
Governor
Ms. Kathleen M. Davis 9/07/04
Mr. Fred Kaltreider 9/07/04
Ms. Julia M. McCabe 9/07/04
Mr. David Schelat 9/07/04
Ms. Ann G. Schenck 9/07/04
Ms. Dolores Arensberg 9/14/04
Dr. Lucille C. Gambardella 8/29/04
Ms. Deborah Maichle 8/15/04
Ms. Mary Jeanette Monihan 8/15/04
Mr. Frank J. Long 8/29/06
Mr. Ronald L. Mosher 8/29/06
Mr. Roland Neeman 4/29/06
Mr. George M. Records 7/24/04
Mr. Dale A. Callaway Pleasure of the
Governor
Mr. Joseph David Majewski Pleasure of the
Governor
Ms.Cynthia Brown 9/25/08
Mr. James J. Collins 9/25/08
Mr. Kenneth W. Edwards 5/07/05
Mr. Frank Ingram, Jr. 9/25/08
Mr. Raymond Patterson 9/25/08
Mr. John Walls 9/25/08
Mr. Robert Currie Six Years From
Senate Confirmation
Mrs. Elizabeth Maron Six Years From
Senate Confirmation
The Honorable David Singleton Pleasure of the
Governor
Mr. Michael Ongay Forwarded to the
President of the
United States
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1158 GOVERNOR'S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Selective Service Board
State Board of Examiners of Optometry
State Board of Pharmacy
State Board of Plumbing Examiners
State Board of Social Work Examiners
State Committee of Dietetics & Nutritionists
State Examining Board of Physical Therapists
State Fire Prevention Commission
Sussex County Vocational Technical School Board
Wastewater Facilities Advisory Council
Wilmington Area Planning Council
Workforce Investment Board
Mr. Samuel F. Slabaugh Forwarded to the
President of the
United States
Ms. Ellen M. Wheatley Forwarded to the
President of the
United States
Ms. Nichole E. Anderson 9/14/04
Dr. Thomas Bastholm 8/29/04
Mr. Mark Metzelaar 9/27/04
Dr. Greta Seinbach-Wallis 9/14/04
Ms. Jessica Davis 9/27/04
Ms. Nancy E. Weldin 9/27/04
Mr. Alex J. Filippone, III 9/14/04
Mr. Robb Carter 8/28/04
Mr. Mack L. Davis 8/28/04
Ms. Malisa L. Knox 8/28/04
Mr.Timothy J. Toole 8/28/04
Ms. Jymayce Y. Wescott 8/28/04
Ms. Mary Shapero 9/06/04
Ms. Phyllis Collins 9/07/04
Mr. Jeff Fitz 7/24/04
Mr. Bernard A. Pinkett 9/07/04
Mr. Daniel Magee 8/15/07
Mr. Frank Calio 9/25/08
Mr. Lee Beetschen Three Years From
Senate Confirmation
Ms. Grace Pierce-Beck Three Years From
Senate Confirmation
Ms. Andrea Kreiner 7/01/03
Mr. John McMahon, Chairman Pleasure of the
Governor
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GENERAL NOTICES 1159
DEPARTMENT OF INSURANCE
Statutory Authority: 18 Delaware Code,
Section 311 (18 Del. C. 311)
AGENTS BULLETIN NO. 8
EXECUTIVE ORDER BLOCKING PROPERTY AND
PROHIBITING TRANSACTIONS WITH PERSONS
WHO PERMIT, THREATEN TO COMMIT, OR
SUPPORT TERRORISM
Issued: October 6, 2001
TO: ALL LICENSEES
FROM: DONNA LEE H. WILLIAMS,
COMMISSIONER
In response to the terrorist attacks in New York,
Pennsylvania, and the Pentagon committed on September
11, 2001, President Bush issued an Executive Order,
effective September 24, 2001, which provides that property
and interests in property of those persons and entities listed
in the Annex to the Executive Order (a copy of the list is
attached to this Bulletin) that are either in the United States
or come into the United States are blocked. This includes
the making or receiving of any contribution of funds, goods,
or services to or for the benefit of those persons or entities
listed in the Annex to the Order or otherwise determined to
be subject to the Order.
The purpose of this Bulletin is to advise all insurers and
licensees to become familiar with their obligations under the
Executive Order. All insurers and licensees should review
their records for any information that may be relevant to the
Executive Order. Insurers and licensees should also review
the United States Department of the Treasury, Office of
Foreign Assets Control, website, www.treas.gov/ofac, which
will provide additional updated information regarding these
requirements. Questions regarding the Executive Order
should be directed to the Office of Foreign Assets Control.
Entities found to have violated this Executive Order may be
subject to sanction.
Insurers and licensees reporting information to federal
authorities should also notify Mr. Gene Reed, Director,
Licensing and Consumer Services, Delaware Insurance
Department, 841 Silver Lake Blvd., Dover, DE 19904-2465.
Donna Lee H. Williams, Commissioner
ANNEX TO EXECUTIVE ORDER
Al Qaida/Islamic Army
Abu Sayyaf Group
Armed Islamic Group (GIA)
Harakat ul-Mujahidin (HUM)
Al-Jihad (Egyptian Islamic Jihad)
Islamic Movement of Uzbekistan (IMU)
Asbat al-Ansar
Salafist Group for Call and Combat (GSPC)
Libyan Islamic Fighting Group
Al-Itihaad al-Islamiya (AIAI)
Islamic Army of Aden
Usama bin Laden
Muhammad Atif (aka, Subhi Abu Sitta, Abu Hafs Al Masri)
Sayf al-Adl
Shaykh Sai'id (aka, Mustafa Muhammad Ahmad)
Abu Hafs the Mauritanian (aka, Mahfouz Ould al-Walid,
Khalid Al-Shanqiti)
Ibn Al-Shaykh al-Libi
Abu Zubaydah (aka, Zayn al-Abidin Muhammad Husayn,
Tariq)
Abd al-Hadi al-Iraqi (aka, Abu Abdallah)
Ayman al-Zawahiri
Thirwat Salah Shihata
Tariq Anwar al-Sayyid Ahmad (aka, Fathi, Amr al-Fatih)
Muhammad Salah (aka, Nasr Fahmi Nasr Hasanayn)
Makhtab Al-Khidamat/Al Kifah
Wafa Humanitarian Organization
Al Rashid Trust
Mamoun Darkazanli Import-Export Company
DOMESTIC/FOREIGN INSURERS BULLETIN NO. 9
EXECUTIVE ORDER BLOCKING PROPERTY AND
PROHIBITING TRANSACTIONS WITH PERSONS
WHO PERMIT, THREATEN TO COMMIT, OR
SUPPORT TERRORISM
Issued: October 6, 2001
TO: ALL INSURERS AND LICENSEES
FROM: DONNA LEE H. WILLIAMS,
COMMISSIONER
In response to the terrorist attacks in New York,
Pennsylvania, and the Pentagon committed on September
11, 2001, President Bush issued an Executive Order,
effective September 24, 2001, which provides that property
and interests in property of those persons and entities listed
in the Annex to the Executive Order (a copy of the list is
attached to this Bulletin) that are either in the United States
or come into the United States are blocked. This includes
the making or receiving of any contribution of funds, goods,
or services to or for the benefit of those persons or entities
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1160 GENERAL NOTICES
listed in the Annex to the Order or otherwise determined to
be subject to the Order.
The purpose of this Bulletin is to advise all insurers and
licensees to become familiar with their obligations under the
Executive Order. All insurers and licensees should review
their records for any information that may be relevant to the
Executive Order. Insurers and licensees should also review
the United States Department of the Treasury, Office of
Foreign Assets Control, website, www.treas.gov/ofac, which
will provide additional updated information regarding these
requirements. Questions regarding the Executive Order
should be directed to the Office of Foreign Assets Control.
Entities found to have violated this Executive Order may be
subject to sanction.
Insurers and licensees reporting information to federal
authorities should also notify Mr. Darryl Reese, Director,
B.E.R.G., Delaware Insurance Department, 841 Silver Lake
Blvd., Dover, DE 19904-2465.
Donna Lee H. Williams, Commissioner
ANNEX TO EXECUTIVE ORDER
Al Qaida/Islamic Army
Abu Sayyaf Group
Armed Islamic Group (GIA)
Harakat ul-Mujahidin (HUM)
Al-Jihad (Egyptian Islamic Jihad)
Islamic Movement of Uzbekistan (IMU)
Asbat al-Ansar
Salafist Group for Call and Combat (GSPC)
Libyan Islamic Fighting Group
Al-Itihaad al-Islamiya (AIAI)
Islamic Army of Aden
Usama bin Laden
Muhammad Atif (aka, Subhi Abu Sitta, Abu Hafs Al Masri)
Sayf al-Adl
Shaykh Sai'id (aka, Mustafa Muhammad Ahmad)
Abu Hafs the Mauritanian (aka, Mahfouz Ould al-Walid,
Khalid Al-Shanqiti)
Ibn Al-Shaykh al-Libi
Abu Zubaydah (aka, Zayn al-Abidin Muhammad Husayn,
Tariq)
Abd al-Hadi al-Iraqi (aka, Abu Abdallah)
Ayman al-Zawahiri
Thirwat Salah Shihata
Tariq Anwar al-Sayyid Ahmad (aka, Fathi, Amr al-Fatih)
Muhammad Salah (aka, Nasr Fahmi Nasr Hasanayn)
Makhtab Al-Khidamat/Al Kifah
Wafa Humanitarian Organization
Al Rashid Trust
Mamoun Darkazanli Import-Export Company
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
AIR QUALITY MANAGEMENT SECTION
Secretary's Order No.: 2001-A-0039
RE: Measures to Meet the EPA-Identified Shortfalls in
Delaware's Phase II Attainment Demonstration
For the Philadelphia-Wilmington-Trenton
Ozone Non-Attainment Area
-State Implementation Plan Revision-
Date of Issuance: October 2, 2001
Effective Date of the Amendment: November 11, 2001
I. Background
On Thursday, August 23, 2001, a public hearing was
held in the Priscilla Building Conference Room of DNREC
in Dover to receive comment on a proposed revision to the
State Implementation Plan (SIP) to meet EPA-Identified
shortfalls in Delaware's Phase II Attainment Demonstration
for the Philadelphia-Wilmington-Trenton Ozone Non-
Attainment Area. This proposed revision to the SIP for
attainment of the 1-Hour standard for ground-level ozone is
based on work that was performed regionally to identify
emission control strategies and develop regulations that will
close shortfalls in the attainment demonstrations for several
ozone non-attainment areas in the Northeast. The Ozone
Transport Commission coordinated the regional work, and
several members of the Department at DNREC participated
in the same. Additionally, the Ozone Transportation
Commission hired a contractor, E.H. Pechan, to analyze the
benefits of the model rules, thereby guaranteeing that the
methods used to calculate emission reductions in the model
rules were consistent in all parts of the ozone transport
region.
This SIP revision covers the Philadelphia-Wilmington-
Trenton ozone non-attainment area, which includes Kent and
New Castle Counties in Delaware. However, the emission
reductions are derived from a slightly larger area, which
includes the non-attainment area itself, plus counties within
100 kilometers of the non-attainment areas. The
aforementioned SIP revision (which is the subject of this
report) is a non-regulatory plan that relies on the
promulgation of the six Ozone Transport Commission model
rules by each state in the designated area. Delaware is in the
process of taking each of its versions of the six model rules
through the public review and comment process. Thus, the
comments that were made at this public hearing were limited
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
--
GENERAL NOTICES 1161
to the non-regulatory plan previously mentioned above.
The Department has proposed to submit this analysis
document to the Environmental Protection Agency (EPA) as
a State Implementation Plan (SIP) Revision concerning the
Delaware Ozone Attainment Demonstration. Written
comments were received from Doug Raymond, Director of
Regulatory Affairs, Sherwin Williams Consumer Group,
regarding this proposed SIP revision, which were addressed
by the Department in their response memorandum dated
September 26, 2001. Proper notice of the hearing was
provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared her report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated October 1, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions:
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed revision to the State Implementation Plan (SIP)
with respect to measures to meet the EPA-identified
shortfalls in the Delaware Phase II attainment demonstration
for the Philadelphia-Wilmington-Trenton Ozone nonattainment
area, and has demonstrated Delaware's strategy
for attaining the one-hour national ambient air quality
standards (NAAQS) for ground-level ozone by the year
2005.
III. Order
It is hereby ordered that AQM's suggested revisions
with respect to the Measures to Meet the EPA-Identified
Shortfalls to the State Implementation Plan (also known as
"The Shortfall SIP") be made, and that the proposed
amendment be promulgated in final form, in accordance
with the customary and established rule-making procedure
required by law.
IV. Reasons
This revision to the SIP with respect to measures to
meet the EPA-identified shortfalls in the Delaware Phase II
attainment demonstration for the Philadelphia-Wilmington-
Trenton Ozone non-attainment area demonstrates Delaware's
strategy for attaining the one-hour national ambient air
quality standards (NAAQS) for ground-level ozone by the
year 2005, in furtherance of the policy and purposes of 7
Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
Final Draft
MEASURES TO MEET THE EPA-IDENTIFIED
SHORTFALLS IN THE DELAWARE PHASE II
ATTAINMENT DEMONSTRATION FOR THE
PHILADELPHIA-WILMINGTON-TRENTON
OZONE NON-ATTAINMENT AREA
Prepared For:
The U.S. Environmental Protection Agency
July, 2000
Delaware Department of Natural Resources &
Environmental Control
Division of Air and Waste Management
Air Quality Management Section
A. List of Attachments to SIP Submission
1. Attachment 1 -- Marine Engine and Locomotive
Engine Standards: Emission Reduction Calculations for
Sussex County
2. Attachment 2 On-Road Heavy Duty Diesel
Standards: Emission Reduction Break-Out and MOBILE 5b
Outputs for Kent, New Castle, and Sussex Counties
3. Attachment 3 -- Ozone Transport Commission
Document: OTC States' Approach to Achieving Emission
Reductions in the Ozone Transport Region from
Implementing Model Rules, Ozone Transport Commission
4. Attachment 4 -- E. H. Pechan Document: Control
Measure Development Support Analysis of Ozone Transport
Commission Model Rules
I. Preface
This revision to Delaware's State Implementation Plan
(SIP) is based on work that was performed regionally to
identify emission control strategies and develop model
regulations that will close shortfalls in the attainment
demonstrations for several ozone non-attainment areas in the
Northeast. The Ozone Transport Commission (OTC)
coordinated the regional work. Several Delaware employees
participated in the regional work. In addition, the OTC hired
a contractor, E.H. Pechan, to analyze the benefits of the
model rules. This approach guaranteed that the methods
used to calculate emission reductions from the model rules
were consistent in all parts of the Ozone Transport Region.
Information specific to the areas within and surrounding
the Philadelphia-Wilmington-Trenton ozone non-attainment
area, including Delaware, are contained herein. Details of
the OTC regional work, and the resulting regional data, are
contained in 2 documents attached to the SIP submission for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1162 GENERAL NOTICES
reference. These documents are:
• OTC States' Approach to Achieving Additional
Emission Reductions in the Ozone Transport
Region from Implementing Model Rules, the Ozone
Transport Commission, May 18, 2001.
•
•Control Measure Development Support Analysis of
Ozone Transport Commission Model Rules, E.H.
Pechan, March 31, 2001.
These documents are available on the OTC web site at http://
www.sso.org/otc/ under "Publications".
1.1 Organizational and Staff Responsibilities
This SIP revision was developed by the Delaware
Department of Natural Resources and Environmental
Control (DNREC), Division of Air and Waste Management,
Air Quality Management Section under the direction of the
following officials and managers:
Nicholas A. Di Pasquale - Secretary, DNREC
William Hill - Acting Director, Division of Air and Waste
Management
Ali Mirzakhalili - Program Administrator, Air Quality
Management Section
Raymond H. Malenfant - Program Manager, Planning and
Community Protection Branch
S. Michael Thompson - Planning Supervisor, Airshed
Assessment and Improvement Program
Responsible Staff
II. Introduction
Delaware has two counties, Kent and New Castle, that
are part of the Philadelphia-Wilmington-Trenton nonattainment
area with respect to the 1 hour ozone national
ambient air quality standard. The Philadelphia-Wilmington-
Trenton ozone non-attainment area also contains parts of
Maryland, Pennsylvania and New Jersey, and has a total of
14 counties (see Figure 1).
Figure 1 - Philadelphia-Wilmington-Trenton Severe
Ozone Non-Attainment Area
The Philadelphia-Wilmington-Trenton non-attainment
area is classified as a "severe" non-attainment area with
respect to the degree of 1-hour ozone non-attainment. Under
the Clean Air Act Amendments of 1990, this severe nonattainment
area is required to reach attainment by 2005. In
order to demonstrate that the non-attainment area is on track
for reaching attainment by 2005, states in the non-attainment
area were required to submit attainment demonstrations to
the United States Environmental Protection Agency (EPA).
These attainment demonstrations were required to show,
through atmospheric photochemical computer modeling,
that the current and planned pollution reduction measures
will bring the non-attainment area into attainment by the end
of the 2005 ozone season.
2.1 Attainment Demonstrations
In spite of many attempts, the states in the Philadelphia-
Wilmington-Trenton non-attainment area have had great
difficulty in demonstrating attainment through modeling. In
May, 1998, Delaware submitted to EPA a document entitled
The Delaware Phase II Attainment Demonstration for the
Philadelphia-Wilmington-Trenton Ozone Non-Attainment
Area. This document contained the results of extensive
Employee Title Assignment Phone
Alfred R. Deramo Planner Author of SIP Submission 739-4791
Mohammed A. Majeed Environ. Engineer SIP Technical Reviewer 739-4791
Frank Gao Environ. Engineer Federal Rule Benefits 739-4791
Ronald A. Amirikian Program Manager Model Rule Development 323-4542
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GENERAL NOTICES 1163
atmospheric photochemical modeling for the non-attainment
area. Although one modeled episode in that attainment
demonstration predicted attainment for Delaware's portion
of the non-attainment area, it did not predict attainment for
the entire area, as mandated by the Clean Air Act. The
modeling contained current and planned reductions within
the non-attainment area, plus reductions in transported
nitrogen oxide (NOx) emissions as a result of the regional
NOx SIP Call.1 Even with the reductions in regional NOx
transport, the non-attainment area could not fully
demonstrate attainment. Because of this problem, EPA
cannot approve the attainment demonstrations for the nonattainment
area without the inclusion of additional
reductions.
In order to facilitate the production of acceptable
attainment demonstrations, and at the same time further
reduce the problem of pollution transport, EPA agreed to
extend the deadline for submission of acceptable attainment
demonstrations if the states would do two things. First, the
states in the Ozone Transport Region, comprising most of
the Northeastern and Mid-Atlantic U.S., must work together
to develop a set of common pollution reductions measures.
Second, the states in the non-attainment area must revise
their attainment demonstrations by including the reductions
from the regional measures plus any state-specific measures
needed to close an emission reduction shortfall as defined by
EPA.
2.2 Attainment Shortfalls
In a series of Federal Register notices on December 16,
1999, EPA issued proposed rules to accomplish the above
goals. The notices include the quantification of the
attainment shortfalls for the applicable non-attainment areas.
The Federal Register Notice pertaining to Delaware is 64 FR
70443. In this notice, EPA identifies the emission reduction
shortfall for the Philadelphia-Wilmington-Trenton nonattainment
area, and instructs Delaware to work with the
1. The NOx SIP Call was a requirement issued by EPA
as a final rule through Federal Register Notice 63 FR
57397, entitled, Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone Transport
Assessment Group Region for Purposes of Reducing
Regional Transport of Ozone, September 24, 1998.
Nineteen states plus the District of Columbia were
required to comply with an EPA-derived NOx emissions
budget in order to reduce transport of NOx to
downwind ozone non-attainment areas. For details, see
the SIP submission entitled, Delaware Plan for Meeting
the Nitrogen Oxide (NOx) Budget Requirements Contained
in the EPA NOx SIP Call, Delaware Department
of Natural Resources and Environmental Control
(DNREC), November 2000.
other states to eliminate this shortfall. In 64 FR 70443, EPA
determined that the Philadelphia-Wilmington-Trenton nonattainment
area is short of its attainment emission level
target by amounts equal to 4.5 percent of the 1990 baseline
emission inventory for volatile organic compounds (VOC)
and 0.3 percent of the 1990 baseline emission inventory for
nitrogen oxides (NOx). The EPA-derived additional
reductions that equate to these percentages are contained in
Table 1.
Table 1
Additional Reductions of VOC and NOx For
Philadelphia-Wilmington-Trenton
Non-Attainment Area
III. Ozone Transport Region Model Rules
In order to produce new pollution control measures to
close the attainment shortfall, the states in the Philadelphia-
Wilmington-Trenton non-attainment area cooperated with
other states in the Ozone Transport Region to develop six
model rules. The Ozone Transport Commission coordinated
model rule development. The model rules will be adopted
and implemented by each state in the non-attainment area.
3.1 Reductions in the Non-Attainment Area
The six model rules and the expected reductions for the
Philadelphia-Wilmington-Trenton non-attainment area are
listed in Table 2.
Table 2 Reductions from Model Rules for the
Philadelphia-Wilmington-Trenton
Non-Attainment Area
VOC Reductions (tons/
day)
NOx Reductions (tons/day)
62 3
Model Rule Reduction Benefit by 2005
(tons/day)
VOC NOx
NOx Model Rule N/A 6
Consumer Products 9 N/A
Portable Fuel Containers 5 N/A
Architect. & Indust.
Maintenance (AIM) Coatings
19 N/A
Mobile Equipment
Refinishing
6 N/A
Solvent Cleaning Operations 20 N/A
Total 59 6
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1164 GENERAL NOTICES
The Delaware-specific versions of the model rules will be
submitted to EPA as separate SIP revisions, and will be
incorporated into the Regulations Governing the Control of
Air Pollution. Table 3 contains the regulation numbers and
titles, and the expected reductions for Kent and New Castle
Counties. Table 4 contains the expected reductions from the
model rules for the counties of the other states in the
Philadelphia-Wilmington-Trenton non-attainment area. Note: Totals may not equal the sum of the individual
benefits due to rounding
Salem 1.02 0.09 0.05 0.20 0.07 0.03 0.45
PA Bucks 0.00 0.83 0.56 1.79 0.64 2.78 6.60
Chester 0.46 0.59 0.39 1.26 0.45 1.97 4.66
Delaware 0.89 0.78 0.45 1.69 0.60 2.63 6.16
Montgomery 0.30 1.02 0.78 2.19 0.78 3.42 8.19
Philadelphia 0.59 2.11 0.93 4.54 1.62 7.07 16.2
8
Table 3
Delaware Regulations and Their Expected Reductions 3.2 Reductions in Counties Outside of Non-Attainment
for Kent & New Castle Counties Area
Regulation Number and Title Expected Benefit by
2005 (tons/day)
Kent New Castle
VOC NOx VOC NOx
Reg. 42, Sect. 1 - Control of
NOx miss. From Indust.
Boilers
N/A 0.00 N/A 0.36
Reg. 41, Sect. 2 - Consumer
Products
0.17 N/A 0.68 N/A
Reg. 41, Sect. 3 - Portable Fuel
Containers
0.09 N/A 0.43 N/A
Reg. 41, Sect. 1 - Architectural
& Industrial intenance
Coatings
0.38 N/A 1.46 N/A
Reg. 24, Sect. 11 (amended) -
Mobile Equip. Repair
Refinish.
0.07 N/A 0.29 N/A
Reg. 24, Sect. 33 (amended) -
Solvent Cleaning & Drying
0.48 N/A 0.91 N/A
County Totals 1.19 0.00 3.77 0.36
E
Ma
&
In order to produce further benefit for the Philadelphia-
Wilmington-Trenton non-attainment area, the states decided
to also apply the six new regulations to 19 counties outside
the non-attainment area. The outside counties being credited
to the non-attainment area fall within 100 kilometers of the
non-attainment area. The creditable range of 100 kilometers
is in accordance with EPA guidelines. The outside counties
and their VOC reduction are listed in Table 5.
Table 5
VOC Reductions (Tons/Day) From Counties Within 100
KM of
Non-Attainment Area
Delaware Maryland New Jersey Pennsylvania
Table 4
Model Rule Benefits for Counties of Other States in the
Philadelphia-Wilmington-Trenton
Non-Attainment Area
State County
Model Rule Benefits for 2005 (tons/day)
County VOC County VOC County VOC County VOC
Sussex 1.6 Caroline 0.3 Atlantic 1.7 Adams 0.9
Dorchester 0.4 Cape
May
0.7 Berks 3.9
Kent 0.2 Cumber
land
2.3
Queen
Annes
0.4 Dauphi
n
2.8
Talbot 0.4 Lancast
er
5.1
Wicomico 0.9 Lebano
n
1.3
Lehigh 3.3
Northa
mpton
2.9
Schuyk
ill
1.7
York 4.1
Total 1.6 Total 2.6 Total 2.4 Total 28.3
Total
NOx
(NOx
Model
Rule)
Consumer
Products
(VOC)
Portable
Fuel
Containers
(VOC)
AIM
Coatings
(VOC)
Mobile
Equipment
Refinishing
(VOC)
Solvent
Cleaning
Operations
(VOC)
Tota
l
VO
C
MD Cecil 0.00 0.11 0.06 0.24 0.00 0.00 0.42
NJ Burlington 0.29 0.60 0.33 1.29 0.46 0.20 2.88
Camden 0.07 0.72 0.38 1.56 0.56 0.24 3.47
Cumberland 0.80 0.20 0.09 0.44 0.16 0.07 0.95
Gloucester 0.01 0.35 0.19 0.75 0.27 0.12 1.68
Mercer 1.05 0.47 0.27 1.02 0.36 0.16 2.29
Extending the VOC rules to the counties outside the
non-attainment area but within 100 kilometers of the nonattainment
area adds about 35 tons/day of VOC reductions to
the 59 tons/day of VOC reductions from within the nonattainment
area. This gives a total of 94 tons/day of VOC
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GENERAL NOTICES 1165
reductions that can be applied to the attainment shortfall for
the Philadelphia-Wilmington-Trenton non-attainment area.
An additional benefit of 1 ton/day of NOx reduction is
picked up by applying the NOx Model Rule to sources
outside of the non-attainment area but within 100 kilometers.
The total VOC and NOx benefits from the non-attainment
area plus the counties within 100 kilometers are compared to
the EPA-derived shortfalls in Table 6.
Table 6
Total Model Rule Benefits Versus EPA-Derived
Shortfalls
for Philadelphia-Wilmington-Trenton Non-Attainment
Area (Tons/Day)
As can be seen from Table 6, the model rules achieve
more VOC and NOx reductions than necessary to close the
attainment shortfall.
IV. Delaware-Specific Reductions
In addition to the benefits from the regional model rules,
Delaware is identifying emission reduction benefits from the
implementation of three federal rules that were not available
when the original modeling for the attainment demonstration
was conducted. As indicated in EPA's Federal Register
Notice 64 FR 70443, the benefits from these measures were
not included in the May 1998 submission of the Delaware
Phase II Attainment Demonstration for the Philadelphia-
Wilmington-Trenton Ozone Non-Attainment Area. The
three federal rules and their benefits are listed in Table 7.
Note: Negative numbers in Table 7 indicate NOx increases.
The reductions in Kent and New Castle Counties from
these three federal measures were included in Delaware's
2005 Rate-of-Progress Plan but not in Delaware's
Attainment Demonstration. Therefore, they are being
applied to the attainment shortfall. The emission reduction
calculations for marine engines and locomotives in Kent and
New Castle Counties are contained in Section IV of the
Delaware 2005 Rate-of-Progress Plan for Kent and New
Castle Counties, December 2000. Because that rate-ofprogress
plan does not cover Sussex County, the emission
reduction calculations for marine engines and locomotives in
Sussex County are being submitted as Attachment 1 to this
SIP submission. Emission Reductions for on-road heavyduty
diesel engines in Kent and New Castle Counties were
included in the total calculation for on-road mobile emission
controls in the Delaware 2005 Rate-of Progress Plan for
Kent and New Castle Counties , but were not broken out as a
line item. Therefore, MOBILE 5a model runs and emission
reduction break-outs for on-road heavy-duty diesel standards
in Kent and New Castle Counties, as well as those for Sussex
County, are being submitted as Attachment 2 to this SIP
submission.
V. Summary of Reductions
Table 8 shows the new total benefits for the nonattainment
area when the Delaware-specific reductions from
the three federal rules are added to the reductions from the
OTC model rules.
Table 8
Total Reductions Applied to Non-Attainment Area
Shortfall
Pollutants
EPA-Derived
Shortfalls
Benefits: Non-Attainment Area
Plus 100 Kilometers
VOC 62 94
NOx 3 7
Pollutant Reductions (tons/day)
Table 7
Delaware Emission Reduction Benefits from
Implementation of Three Federal Rules (Tons/Day)
VOC NOx VOC NOx VOC NOx
Marine Engine 0.02 0.00 2.02 - 0.11 0.18 -
Standards 0.01
Locomotive 0.00 0.14 0.00 0.63 0.00 0.15
Engine Standards
On-Road Heavy 0.00 0.02 0.00 0.05 0.00 0.02
Duty Diesel
Standards
Total 0.02 0.16 2.02 0.57 0.18 0.16
Federal Rule Kent New Castle Sussex
OTC Model 3 Federal Total
Rules Rules in Reductions in
in NAA + 100 Delaware NAA + 100 KM
KM
VOC 94 2 96
NOx 7 1 8
The analysis contained in this document has shown that
the implementation of the OTC model rules in the
Philadelphia-Wilmington-Trenton non-attainment area and
19 counties within 100 kilometers of the non-attainment area
will result in ample emission reductions to close the EPAidentified
attainment shortfall. The inclusion of additional
emission reductions in Kent, New Castle and Sussex
Counties from the implementation of three federal rules not
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1166 GENERAL NOTICES
previously counted toward attainment further increases the
total amount of benefits that can be counted towards
attainment for the Philadelphia-Wilmington-Trenton nonattainment
area. The emission reduction efforts described in
this document are significant, and are intended to enhance
the chances of attaining the 1-hour ozone standard by 2005.
VI. Mid-Course Review
In order to check our progress toward attaining the 1-
hour ozone standard by 2005, Delaware plans to conduct an
analysis prior to that date. This analysis, termed the midcourse
review, will follow EPA guidelines and will show
that either 1) the adopted control measures are sufficient to
reach attainment by 2005, or 2) additional control measures
will be needed for attainment. Delaware previously
committed to the mid-course review in its January 2000 SIP
submission, Addendum to the Delaware Phase II Attainment
Demonstration for the Philadelphia-Wilmington-Trenton
Ozone Non-Attainment Area. Delaware is herein reiterating
its previous commitment, and is also committing to submit
the mid-course review to EPA no later than December 31,
2004.
ATTACHMENT 1
Marine Engine and Locomotive Engine Standards:
Emission Reduction Calculations for Sussex County
(Available by Request)
ATTACHMENT 2
On-Road Heavy Duty Diesel Standards:
Emission Reduction Break-Out and MOBILE 5b Outputs for
Kent, New Castle, and Sussex Counties
(Available by Request)
ATTACHMENT 3
Ozone Transport Commission Document:
OTC States' Approach to Achieving Emission Reductions in
the Ozone Transport Region from Implementing Model
Rules
(Available by Request)
ATTACHMENT 4
E. H. Pechan Document:
Control Measure Development Support Analysis of
Ozone Transport Commission Model Rules
(Available by Request)
DIVISION OF AIR & WASTE MANAGEMENT
AIR QUALITY MANAGEMENT SECTION
Secretary's Order No.: 2001-A-0036
RE: Analysis of the Effectiveness of
Reasonable Available Control Measures (RACM)
To Attain the 1-Hour Ozone Standard
-State Implementation Plan Revision-
Date of Issuance: October 2, 2001
Effective Date of the Amendment: November 11, 2001
I. Background
On Thursday, August 23, 2001, a public hearing was
held in the Priscilla Building Conference Room of DNREC
in Dover to receive comment on a proposed revision to the
State Implementation Plan (SIP) for the Attainment and
Maintenance of the National Ambient Air Quality Standards
for ground level ozone. This proposed amendment details
the Department's Analysis of the Effectiveness of
Reasonable Available control Measures (RACM) to attain
the 1-Hour Ozone Standard. It also includes an analysis of
the air quality benefits of implementing transportation
control measures (TCM) whose purpose is to reduce air
emissions by reducing automobile usage and increasing
other transportation choices, such as providing more transit
service to the motoring pubic. The Department has proposed
to submit this analysis document to the Environmental
Protection Agency (EPA) as a State Implementation Plan
(SIP) Revision concerning the Delaware Ozone Attainment
Demonstration. No written comments were received from
the public regarding this proposed SIP revision. Proper
notice of the hearing was provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared her report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated August 24, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed revision to the State Implementation Plan (SIP) for
the Attainment and Maintenance of the National Ambient
Air Quality Standards for ground-level ozone, and has
demonstrated Delaware's strategy for attaining the one-hour
national ambient air quality standards (NAAQS) for groundlevel
ozone by the year 2005. Further, the following
findings have been made:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GENERAL NOTICES 1167
1. Proper notice of the hearing was provided as
required by law.
2. No TCMs will be adopted by the Department into
the SIP, due to the availability of options, comparative costs,
low emission reduction potentials, and, even if the TCMs
were adopted, they would not help advance the attainment
date.
3. This SIP revision will provide actual
documentation with respect to the fact that the RACM
analysis did, in fact, take place, and how it was used in the
SIP .
III. Order
It is hereby ordered that AQM's suggested revisions to
the State Implementation Plan be made, and that the
proposed amendment be promulgated in final form, in
accordance with the customary and established rule-making
procedure required by law.
IV. Reasons
This revision to the SIP for the Attainment and
Maintenance of the National Ambient Air Quality Standards
for ground-level ozone demonstrates Delaware's strategy for
attaining the one-hour national ambient air quality standards
(NAAQS) for ground-level ozone by the year 2005.
Furthermore, it includes an analysis of the air quality
benefits of implementing transportation control measures
(TCMs), whose purpose is to reduce air emissions by
reducing automobile usage and increasing other
transportation choices, such as providing more transit
service to the motoring public, in furtherance of the policy
and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
ANALYSIS OF THE EFFECTIVENESS OF
REASONABLE AVAILABLE CONTROL MEASURES
TO ATTAIN THE
1-HOUR OZONE STANDARD
Proposal
To Submit this Document to EPA
As a State Implementation Plan Revision Concerning
The Delaware Ozone Attainment Demonstration
Prepared by
State Of Delaware
Department Of Natural Resources And Environmental
Control
Division Of Air and Waste Management
Air Quality Management Section
July 12, 2001
Preface
The purpose of this document is to respond to a request
for additional information from the U.S. Environmental
Protection Agency (EPA), as an addendum to the Delaware
State Implementation Plan (SIP) for the severe ozone nonattainment
area including New Castle and Kent counties.
The document examines the value of adding reasonably
available control measures (RACM) as part of the State
Implementation Plan to significantly increase Delaware's
likelihood of attaining the one-hour ozone standard prior to
the year 2005. Section 172(c)(1) of the Clean Air Act
requires that the State consider adopting these measures as a
means to achieve the air quality standards by the specified
attainment date.
This analysis focuses on transportation control measures
(TCM) that would be applicable to the RACM requirement
in Section 172(c)(1). Section 108 (f) of the Clean Air Act
describes some of the programs that can be considered as
TCM. The analysis will also compare the emission
reductions of TCM with area and point source controls, also
known as reasonably available control technology (RACT).
To date, no TCM have been adopted in the Delaware's SIP,
however, there have been several RACT measures adopted
which satisfies the requirements in Section 172(c)(1) of the
Clean Air Act. This report will discuss why the TCM were
not adopted as part of any SIP revisions to attain the onehour
ozone standard.
EPA guidance (57 FR AT 13560, April 16, 1992)
provides the definition of RACM. The guidance states that
measures which can be implemented and produce sufficient
benefits to advance the attainment date can be considered to
be RACM. The guidance states that cost can be a factor in
determining whether a measure is reasonable. EPA guidance
notes that measures that are not enforceable are not RACM.
TCM only provide a marginal benefit in reducing ozone
precursor emissions, while other TCM are so costly that they
would put a serious financial constraint on the state's
transportation budget. In addition, the TCM that the State of
Delaware will implement as part of transportation plans have
budgetary constraints and are not enforceable under
Delaware law. Therefore the measures may be discontinued
or delayed without being in noncompliance with any
Delaware statute.
History
As required by the Clean Air Act, Delaware must
submit to EPA an enforceable plan to attain the one-hour
ozone standard by the year 2005. The attainment plan, Phase
I and II, was submitted to EPA in 1997 and 1998,
respectively. Phase II was later revised and submitted to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1168 GENERAL NOTICES
EPA in January of 2000. As part of the Philadelphia-
Wilmington-Trenton Non-attainment Area, Delaware will be
part of regional effort to reduce volatile organic compound
(VOC) emissions and oxides of nitrogen (NOx), and propose
a plan to EPA in the fall of 2001. In addition, Delaware must
show a rate of progress towards attaining the standard by
each milestone year. Delaware has submitted to EPA the
1996, 1999, 2002, and 2005 rate of progress plans. The first
rate of progress plan submitted to EPA showed a 15%
reduction of VOC (a precursor pollutant to ozone) from 1990
levels. Subsequent rate of progress plans demonstrated an
additional 3% reduction per year in both VOC and NOx out
to the year 2005. To achieve rate of progress and to
demonstrate attainment, RACT controls were adopted as
enforceable measures to achieve the stated planned
reductions. The RACT measures adopted and the related
emission reductions of VOC and NOx are provided later in
this report.
Delaware Ozone Attainment Strategy Workgroup
On April 17, 1998, the Ozone Attainment Strategy
Workgroup met to ascertain what emission reduction
strategies needed to be analyzed for feasibility and
effectiveness. Members of the workgroup included State of
Delaware agencies (Department of Transportation, Division
of Motor Vehicles, the Economic Development Office and
Department of Agriculture), environmental groups
(Delaware Nature Society and Green Delaware), industry
representatives (Delmarva Power and Light, Delaware
Petroleum Council, Star Enterprise, SPI Polyols Inc.,
DuPont Corp, Saftey Kleen Corp., Delaware Automobile
Dealers Association, Kent County Motor Sales, Delaware
State Chamber of Commerce), transportation planning
organizations (Wilmington Area Planning Council and the
Dover Metropolitan Planning Organization) and officials
from the governor's office as well as representatives of
Delaware's state and U.S legislators. The group discussed
the "home grown" ozone reductions as well as the regional
ozone transport issues. The group was presented with
possible strategies to reduce VOC and NOx. The group
discussed the promotion of statewide, multi-modal
transportation choice programs, acknowledging them as
beneficial in reducing the amount of vehicle miles traveled
in the state and thereby reducing mobile source emissions.
The multi-modal programs and enhancements mirrored the
kinds of measures the Clean Air Act described in Section
108(f). However, the Air Quality Management Section of
the Department of Natural Resources and Environmental
Control, hereafter, the Department (the SIP agency) did not
have the regulatory power to enforce their implementation.
The group decided to continue regulating air emissions from
area and point sources and to consider a high-enhanced
motor vehicle inspection program. To date, the high
enhanced inspection program has not been implemented.
The following table indicates the RACT measures that were
adopted in the SIP and complied with Section of 172 (c)(1)
requirements.
VOC EMISSION CONTROL MEASURES (Using
RACT) AND EXPECTED REDUCTIONS FOR THE
2002 RATE PROGRESS PLAN
(Delaware RPP SIP-December, 2000)
Control Measures Expected VOC Emission Reduction
and Regulations Tons Per Day
Kent New Total NAA
Castle
Point Source Controls
RACT "Catch Up: in Kent Kent New Total
Cty Castle NAA
Solvent Metal Cleaning
Cutback Asphalt
0.136 N/A 0.136
0.026 N/A 0.026
RACT "Catch Up: in Kent
Cty
Solvent Metal Cleaning
Surface Coating of Metal
Furnitiure
Leaks from Synthetic
Organic Chemical,
Polymer and Resin
Manufacture Equipment.
0.537 N/A 0.537
0.037 N/A 0.037
0.004 N/A 0.004
Stationary Area
Source Controls
Expected VOC Emission
Reduction
Tons Per Day
New and Revised RACT Regulations
Stage I Vapor Recovery-Gas Disp.
Facilities
Emulsified Asphalt
Motor Vehicle Refinishing
Offset Lithography
Aerospace Coatings
Stage II Vapor Recovery
0.493 0.159 0.652
0.026 0.027 0.053
0.266 1.058 1.324
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
GENERAL NOTICES 1169
0.080 0.001 0.081
N/A 0.033 0.033
0.447 1.435 1.882
Total 2.052 2.713 4.765
Transportation County NOx VOC
Control Measure Reductions Reductions
Ton/Day Tons/Day
The above table shows the reductions of VOC that
would be achieved by 2002 and prior to the attainment date.
These reductions are enforceable by the adoption of Air
Regulation 12. Air Regulation 24 provides RACT
requirements on certain NOx sources in Delaware that
reduces 2.32 tons of NOx by 2002, three years prior to the
attainment date.
Improved Transit
(increased routes)
New Castle 0.1143 0.0645
Kent 0.0159 0.0112
Expected Emission Reductions from Transportation
Control Measures
Although there are no enforceable measures in the
Delaware SIP to reduce emissions from transportation
sources, measures are included in the long range
transportation plans of WILMAPCO (Wilmington Area
Planning Council) and the Dover/Kent County Metropolitan
Planning Organization. Some of the measures have already
been put in respective transportation improvement programs
and will be implemented prior to the attainment date. An
analysis was performed by the Delaware Department of
Transportation (DelDOT) concerning emission reductions
from TCM needed to overcome a conformity shortfall that
existed with the 2005 SIP budget. These programs, because
of monetary budget constraints and enforcement issues,
would disqualify some of the programs listed below as
RACM. The measures were not adopted in the SIP for two
reasons: first, the Department does not have the authority to
Employer Based
Transportation
Plans and
Programs (Ride
Share, Shuttles)
New Castle 0.1637 0.0924
Kent 0.0464 0.0329
Trip Reduction
Ordinances
New Castle 0.0201 0.00
Kent N/A N/A
Traffic Flow
Improvements
New Castle 0.2666 0.9776
Kent 0.0066 0.0242
Transportation County NOx VOC
regulate other agencies such as the Department of Control Measure Reductions Reductions
Transportation that would implement most of the measures Tons/Day Tons/Day
considered and second, the emission reductions achieved by
the measures would be appreciably small and have little
effect, if any, in advancing the goal of attaining the air
quality standards prior to 2005.
HOV Restrictions New Castle
County
0.1889 0.1066
Kent County 0.0340 0.0241
PRESENTATION TO THE DELAWARE
AIR QUALITY MOBILE SOURCE COMMITTEE
EMISSION REDUCTION STRATEGIES,
PROGRAMS, CONTROLS
In Place by the Year 2005
(Prepared by the Delaware Department of
Transportation - 2/23/01)
Replacing Older
Public Transit
Buses with New
Buses
New Castle 0.0038 0.0009
Kent 0.0009 0.0006
Pedestrian and
Bikeways
New Castle 0.0175 0.0172
Kent 0.0058 0.0057
Programs to
Control Extended
Idling ofVehicles
New Castle 0.0026 0.0005
Kent 0.0007 0.0001
Programs to
Encourage
Removal of Pre
1980 Model Year
Vehicles (Scrappage)
Removal of 25%
of pre-80 light
duty registered
New Castle 0.1249 0.0720
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1170 GENERAL NOTICES
Kent 0.0618 0.0327
Alternative Fuel
Vehicles
New Castle 0.0139 0.0078
Kent 0.0118 0.0083
Totals for New
Castle and
Kent Counties
1.1 1.48
above at $2,000, the comparison is significantly unfavorable
to the TCM.
Summary
Delaware has complied with the requirements of Clean
Air Act Section 172 (c)(1). As noted above, EPA guidance
states that only control measures that produce sufficient
benefits to advance the attainment date can be considered to
be RACM. The guidance states that cost can be a factor in
determining whether a measure is reasonable. EPA guidance
notes that measures that are not enforceable are not RACM.
As has been shown in the table above, TCM only provide
small reductions in ozone precursor emissions (VOC and
NOx), and have very high costs. Moreover, the Department
did not adopt any TCM in the State Implementation Plan
because of the inability to enforce these measures.
As stated above some of the measures listed have been
adopted by the two Metropolitan Planning Organizations.
The TCM total reductions are 1.1 tons per day for NOx and
1.48 tons per day for VOC which are not significant
additional reductions that the Department would need to
demonstrate attainment of the one-hour standard nor would
they help attain the standard sooner than 2005.
Nevertheless, by the year 2005 programs such as improved
transit service, ride share, trip reduction ordinances, traffic
flow improvements, pedestrian and bikeway facilities
construction will all be funded and included in the
transportation improvement programs in New Castle and
Kent counties.
Some of the above transportation control measures that
were considered by transportation planners as effective ways
to reduce emissions were not financially feasible and cannot
be considered reasonable available control measures. High
occupancy vehicle restrictions or constructing HOV lanes
are not cost effective in either New Castle or Kent counties.
One mile of new construction of an additional lane on
Interstate 95, 295 or 495 in the Wilmington area with HOV
restrictions is estimated to cost $3.6 million. The cost/benefit
or cost per ton of NOx reduction is $16.1 million per ton per
mile and $27.6 million per ton per mile for VOC. The
benefit to the motorists regarding trip time savings would
only be approximately 5 minutes and not a sufficient
incentive to carpool and use the HOV lane. Therefore, in
Delaware the HOV lane restrictions would be extremely
expensive investment with very little air quality or time
savings benefits. Another program, the vehicle scrappage
initiative would use transportation funding to encourage a
vehicle owner to take his pre-1981 vehicle owner off the
road by providing a rebate towards a newer vehicle. To be
fair and because there are only three counties in the State of
Delaware, the program should cover the entire state fleet of
pre-1980 passenger vehicles. There are only about 15,000
pre-1980 vehicles in the state. However, if the target goal of
25% of applicable vehicles were taken off the road and the
program was fully funded at even at the meager sum of $500
per vehicle the cost would be approximately $1.6 million.
However the cost/benefit or cost per ton of reductions of
NOx and VOC would be $6.8 million and $10.9 million
respectively. When compare to the average cost per ton for
NOx and VOC reductions for the RACT measures listed
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 1171
DELAWARE STATE FIRE
PREVENTION COMMISSION
Notice Of Public Hearing
The Delaware State Fire Prevention Commission will
hold a hearing pursuant to 16 Del. C. §6603 and 29 Del. C.
Ch. 101, to receive public comment regarding a proposed
change to the State Fire Prevention Regulations. The
Commission is proposing to add a Criminal History Records
Check Policy, to the Ambulance Service Regulations as
follows:
Add Section 3 - 1. Criminal History Records Check
Policy
Date, Time And Place Of Public Hearing
DATE: Tuesday, November 20, 2001
TIME: 9:00 AM and 1:00 PM
PLACE:Commission Chamber
Delaware State Fire School
Delaware Fire Service Center
1463 Chestnut Grove Road
Dover, Delaware 19904
Persons may view the proposed addition to the
Regulations between the hours of 8:00 a.m. to 4:30 p.m.,
Monday through Friday, at the Delaware State Fire
Prevention Commission Office, Delaware Fire Service
Center, 1463 Chestnut Grove Road, Dover, Delaware,
19904.
Persons may present their views in writing by mailing
their views to the Commission at the above address prior to
the hearing or by offering testimony at the public hearing. If
the number of persons desiring to testify at the public
hearing is large, the amount of time allotted to each speaker
will be limited.
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF NURSING
The Delaware Joint Practice Committee in accordance
with 24 Del. Code, Subsection 1906(19) has proposed to
revise the Rules and Regulations governing Independent
Practice/Prescriptive Authority for Advanced Practice
Nurses (APN).
The proposed changes detail the complaint process
related to APN's Independent Practice/Prescriptive
Authority and define the Joint Practice Committee's process
of APN members, officers, and meetings.
A public hearing will be held on Tuesday, December 18,
2001 at 5:30 p.m. in the second floor conference room C-216
at Delaware Technical and Community College, Stanton
Campus, 400 Christiana-Stanton Road, Newark, Delaware.
Anyone desiring a copy of the proposed revised section
of the Rules and Regulations may obtain a copy from the
Delaware Board of Nursing, 861 Silver Lake Blvd., Cannon
Building, Suite 203, Dover, DE 19904, (302) 744-4516.
Persons desiring to submit written comments on the revised
rules and regulations may forward these comments to the
above address. The final date to receive written comments
will December 18, 2001.
STATE BOARD OF EDUCATION
The State Board of Education will hold its
monthly meeting on Thursday, November 15,
2001 at 9:00 a.m. in the Townsend Building,
Dover, Delaware.
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
DELAWARE STATE LOTTERY OFFICE
The Lottery proposes this Regulation amendment
pursuant to 29 Del. C. §4805(a). The Lottery will accept
written comments from November 1, 2001 through
November 30, 2001. The Lottery will hold a public hearing
on the proposed amendments on November 26, 2001 at
10:00 a.m. at the Lottery Office, Second Floor Conference
Room, 1575 McKee Road, Suite 102, Dover, DE 19904-
1903. Written comments should be submitted to the Lottery
at the above address and noted to the attention of Lottery
Director Wayne Lemons.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF PUBLIC HEALTH
These regulations, "The State of Delaware Rules and
Regulations Pertaining to the Practice of Non-Nurse
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1172 CALENDAR OF EVENTS/HEARING NOTICES
Midwifery," replace by recision the current "State of
Delaware Rules and Regulations Pertaining to the Practice of
Certified Midwifery" previously adopted on April 17, 1978
and most recently amended May 15, 1985.
The new regulations establish and define conditions
under which individuals may be granted permits to practice
direct entry/non-nurse midwifery in the State of Delaware.
The Department of Health and Social Services, through the
Division of Public Health, will recognize and issue a permit
to practice midwifery for direct entry/non-nurse midwives.
Notice Of Public Hearing
The Community Health Care Access Section, Division
of Public Health, Department of Health & Social Services,
will hold a public hearing to discuss the proposed adoption
of new "State of Delaware Rules and Regulations Pertaining
to the Practice of Non-Nurse Midwifery." The public
hearing will be held on November 28, 2001, at 3:00 PM, in
Room 400B, Delaware Technical and Community College,
Terry Campus, Route 13 & Denny's Road, Dover, Delaware.
Information concerning the proposed regulation is
available at the following location:
Community Health Care Access Section
Jesse Cooper Building
Federal and Water Streets
Dover, Delaware 19901
Telephone: (302) 739-4735
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by November 27, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by December 3,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
DIVISION OF PUBLIC HEALTH
Application and Operation of Managed Care
Organizations (MCO)
These regulations amend regulations previously adopted
on November 16, 1998 and most recently amended July 1,
2001. They are to be adopted in accordance with Chapter
91, Section 9110, Title 16, Delaware Code. They will
supersede all previous regulations concerning the
Application and Operation of Managed Care Organizations
(MCO).
Summary Of Proposed Regulations
The amendments to these regulations establish and
define conditions of elements contained within the Patient
Bill of Rights (SB181). The definition section of the
regulations is expanded to include language from SB181
relating to: balance billing; standing referrals to health care
specialists; clinical trials; the addition of pharmacy services
as a basic health service; and, the broadening of the
definition of emergency medical condition. The regulations
have been revised to clarify: referrals to non-network
providers and payment for same; minimal standing referral
procedure inclusions; and, clinical trial requirements.
Notice Of Public Hearing
The Office of Health Facilities Licensing and
Certification, Division of Public Health, Department of
Health and Social Services will hold public hearings to
discuss proposed revisions to Delaware Regulations for
Managed Care Organizations (MCOs).
The public hearings will be held November 26, 2001 at
10:00 AM in the third floor conference room, Jesse Cooper
Building, Federal and Water Streets, Dover, Delaware and at
10:00 AM on November 29, 2001 in the first (1st) floor
conference room, Delaware Fire Service Center, 2307
MacArthur Road, New Castle, DE 19720.
Copies of the proposed regulations are available for
review by calling the following location:
Office of Health Facilities Licensing and Certification
2055 Limestone Road, Suite 200
Wilmington, DE 19808
Telephone: (302) 995-8521
Anyone wishing to present his or her oral comments at
this hearing should contact Ms. Vanette Seals at (302) 995-
8521 by November 21, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of oral
testimony should submit such comments by December 3,
2001 to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
Food Stamps Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 1173
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Food
Stamps Program is proposing to implement policy changes
to the following section of the Division of Social Services
Manual (DSSM): DSSM 9060. These changes are being
made as a result of the following rule: Food Stamp Program:
Noncitizen Eligibility, and Certification Provisions of PL
104-193, as amended by PL 104-208, 105-33 and 105-185,
Final Rule. This rule implements several provisions of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) and amended by the
Omnibus Consolidated Appropriations Act of 1997
(OCAA), the Balanced Budget Act of 1997 (BBA), and the
Agricultural Research, Extension and Education Reform Act
of 1998 (AREERA).
Summary of Changes:
• Includes cooling costs in the heating standard utility
allowance that creates a heating and cooling
allowance.
• Requires a household to have two, non-heat or
cooling, utility expenses to use the low utility
standard.
• Allows a household living in a public housing unit
or other rental housing unit which has central utility
meters and charges the household only for excess
heating or cooling costs to receive the LUA (limited
utility allowance) provided the household has
another utility like a phone or gas cooking.
• Allows a household to claim the shelter costs of the
home if not occupied by the household because of
training away from home.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by November 30, 2001.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
Medicaid/Medical Assistance Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Medicaid/
Medical Assistance Program is proposing to implement a
policy change to the following section of the Division of
Social Services Manual (DSSM): DSSM 20620.1. Effective
October 1, 2001, this change, approved and funded by the
State Legislature, will increase the monthly personal needs
allowance protected for individuals who are eligible for
Medicaid and reside in nursing facilities.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by November 30, 2001.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
DEPARTMENT OF INSURANCE
NOTICE OF PUBLIC HEARING
Insurance Commissioner Donna Lee H. Williams
Hereby gives notice that a PUBLIC HEARING will be held
on Tuesday November 27, 2001 at 10:00 a.m. in the
Executive Conference Room of the Delaware Department of
Insurance, 841 Silver Lake Boulevard, Dover, Delaware.
The hearing is to consider implementation of Regulation No.
85 (Proposed) entitled "Valuation Of Life Insurance
Policies"
The purpose of the Regulation is to select mortality
factors and rules for their use, set rules concerning a
minimum standard for the valuation of plans with non-level
premiums or benefits, and set rules concerning a minimum
standard for the valuation of plans with secondary
guarantees. The method for calculating basic reserves
defined in the proposed regulation will constitute the
Commissioners' Reserve Valuation Method for policies to
which the proposed regulation is applicable and will conform
to similar standards applicable nationally.
The hearing will be conducted in accordance with the
Delaware Administrative Procedures Act, 29 Del. C.
Chapter 101. Comments are being solicited from any
interested party. Comments may be in writing or may be
presented orally at the Hearing. Written comments must be
received by the Department of Insurance no later than
Friday, November 23, 2001, and should be addressed to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
1174 CALENDAR OF EVENTS/HEARING NOTICES
Deputy Attorney General Michael J. Rich, Delaware
Department of Insurance, 841 Silver Lake Boulevard,
Dover, DE 19904. Those wishing to testify or give an oral
statement must notify Michael J. Rich at (302) 739-4251,
Ext. 171 no later than Friday, November 23, 2001.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF WATER RESOURCES
Total Maximum Daily Load (TMDL) for Nutrients in the
Appoquinimink Watershed, Delaware
Brief Synopsis of the Subject, Substance, and Issues
The Department of Natural Resources and
Environmental Control (DNREC) is proposing to adopt a
Total Maximum Daily Load (TMDL) Regulation for
nutrients in the Appoquinimink Watershed based upon an
expanded version of the TMDL imposed by the
Environmental Protection Agency (EPA) in 1998. A TMDL
sets a limit on the amount of a substance that can enter a
water body while still assuring that applicable water quality
standards are met and beneficial stream uses are protected.
A TMDL is composed of three components, including a
Waste Load Allocation (WLA) for point source discharges, a
Load Allocation (LA) for non-point sources, and a Margin
of Safety (MOS) to account for uncertainties.
Notice of Public Comment
A public workshop will be held on Wednesday,
December 5, 2001, between 3:30 and 5:30 p.m., at the
Volunteer Hose Company of Middletown Hall, 27 West
Green Street, Middletown, DE 19709.
A public hearing will be held onWednesday, December
5, 2001, between 6:00 and 8:00 p.m., at the Volunteer Hose
Company of Middletown Hall, 27 West Green Street,
Middletown, DE 19709. The hearing record will remain
open until 4:30 p.m., December 19, 2001. Please bring
written comments to the hearing or send them to Rod
Thompson, Hearing Officer, DNREC, 89 Kings Highway,
Dover, DE, 19901; facsimile: (302) 739-6242. All written
comments must be received by 4:30 p.m., December 19,
2001. For planning purposes, those individuals wishing to
make oral comments at the public hearing are requested to
notify Marianne Brady, (302) 739-4590; facsimile: (302)
739-6140; email: marianne.brady@state.de.us by 12:00
p.m., December 5, 2001.
Additional information and supporting technical
documents may be obtained from the Watershed Assessment
Section, Division of Water Resources, Department of
Natural Resources and Environmental Control, Silver Lake
Plaza - Suite 220, 820 Silver Lake Blvd, Dover, DE 19904-
2464, (302) 739-4590, facsimile: (302) 739-6140.
Prepared By:
Samuel P. Myoda, Watershed Assessment Section, (302)
739-4590.
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF MOTOR VEHICLES AND
DIVISION OF HIGHWAY SAFETY
Please take notice, pursuant to 29 Del. C. Chapter 101,
the Delaware Department of Public Safety proposes to
promulgate a new policy regulation, number 91, to regulate
the fees associated with the costs of the Ignition Interlock
Program. After surveying the fees associated with similar
programs in surrounding states, it became obvious that the
fees in Delaware were below the industry standards. The
purpose of this policy regulation is to increase the fees to an
amount that is reasonable and will allow the vendors to
continue to operate at a profit in Delaware.
The Department of Public Safety will hold a hearing
pursuant to 29 Del. C. Chapter 101 concerning the adoption
of Policy Regulation 91, entitled "Ignition Interlock Device
Installation, Removal, and Monthly Monitoring and
Calibration Fees." The Department will receive public
comment regarding the proposed Department of Public
Safety Policy Regulation.
Department of Public Safety and Division of Highway
Safety Policy Regulation Number 91 Concerning: Ignition
Interlock Device Installation, Removal, and Monthly
Monitoring and Calibration Fees.
Date, Time and Place of Public Hearing
DATE: November 29, 2001
TIME: 10:00 a.m.
PLACE: Main Conference Room, 2nd Floor
Department of Public Safety
Public Safety Building
303 Transportation Circle
Dover, DE 19901
Persons may view the proposed Policy Regulation
between the hours of 8:00 a.m. to 4:00 p.m., Monday
through Friday, at the Division of Highway Safety, in the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 1175
Public Safety Building, 2nd floor, 303 Transportation Circle,
Suite 201, Dover, DE 19901.
Persons may present their views in writing by mailing
them to Lisa Moore, DUI Programs Coordinator, Division of
Highway Safety, PO Box 1321, Dover, DE 19903. Written
comments will be accepted until the close of business on
Monday, December 3, 2001. Persons may also present their
views by offering testimony at the public hearing. If the
number of persons desiring to testify at the public hearing is
large, the amount of time allotted to each speaker will be
limited.
DIVISION OF STATE POLICE
Public Notice
Notice is hereby given that the Department of Public
Safety, Division of State Police, in accordance with 24 Del C
Section 5404(a) proposes to adopt Rules & Regulations.
These Rules & Regulations will regulate the Bounty
Hunters/Bail Enforcement Agents. If you wish to view the
complete Rules & Regulations, contact Ms. Peggy Anderson
at (302) 739-5991. Any persons wishing to present views
may submit them in writing, by November 31, 2001, to
Delaware State Police, Detective Licensing, P.O. Box 430,
Dover, Delaware, 19903. There will be a public hearing on
Thursday, November 28, 2001, at the Public Safety
Building, Main Conference Room - 2nd Floor, 303
Transportation Circle, Dover, Delaware, 19901-0818.
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Notice Of Public Hearing On Proposed Energy
Alternatives Program Regulation
In accordance with procedures set forth in 29 Del. C.
Ch. 11, Subch. III and 29 Del. C. Ch. 101, the Director of the
Delaware Economic Development Office is proposing to
adopt a regulation entitled "Energy Alternatives Program
Regulation" for the administration and operation of the
Energy Alternatives Program established in 26 Del. C.
§ 1014(a) as part of The Electric Utility Restructuring Act of
1999. The Energy Alternatives Program is designed to
introduce renewable energy technologies into the Delaware
market by reducing the net system costs through the use of
rebates. The proposed regulation sets forth the definition of
certain terms used in the Energy Alternatives Program and
describes (i) the eligibility requirements for persons desiring
to receive a rebate designed to defray a part of certain
purchase and installation costs of certain solar photovoltaic
electricity generating systems, certain solar water heating
systems, certain geothermal heat pump systems, and certain
wind turbine systems (ii) the photovoltaic electricity
generating, solar hot water heating, geothermal, and wind
turbine systems that now qualify for rebates, (iii) how to
request a rebate, (iv) how rebate requests will be evaluated
and processed and the rebates disbursed, and (v) other
administrative features of the Energy Alternatives Program.
Members of the public may receive a copy of the
proposed regulation at no charge by United States Mail by
writing or calling Robert Propes, Delaware Economic
Development Office, Carvel State Office Building, 10th
Floor, 820 North French Street, Wilmington, DE, 19801-
3509, phone (302) 577-8708. The Director of the Delaware
Economic Development Authority, or an employee of such
agency designated by the Director, will hold a public hearing
at which members of the public may present comments on
the proposed regulation on Thursday, December 6, 2001 in
the auditorium of the Carvel State Office Building, 820 N.
French Street, Wilmington, DE, 19801 from 5:00 PM to 7:00
PM. Additionally, members of the public may present
written comments on the proposed regulation by submitting
such written comments to Robert Propes at the address of the
Delaware Economic Development Office set forth above.
Written comments must be received on or before December
3, 2001.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001
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DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 5, THURSDAY, NOVEMBER 1, 2001