Delaware Register 


of 

Regulations 

Issue Date: November 1, 2015 

Volume 19 - Issue 5, Pages 345 - 443 


IN THIS ISSUE: 

Regulations: 
Proposed 
Final 

Calendar of Events & 
Hearing Notices 


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, 2015. 

Cover Photo by 
Dr. Brian Kutner 



INFORMATION ABOUT THE DELAWARE 
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The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed 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 
• 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: 
16 DE Reg. 1227 - 1230 (06/01/13) 
Refers to Volume 16, pages 1227 - 1130 of the Delaware Register issued on June 1, 2013. 

SUBSCRIPTION INFORMATION 

The cost of a yearly subscription (12 issues) for the Delaware Register of Regulations is $135.00. Single 
copies are available at a cost of $12.00 per issue, including postage. For more information contact the Division of 
Research at 302-744-4114 or 1-800-282-8545 in Delaware. 

CITIZEN PARTICIPATION IN THE REGULATORY PROCESS 

Delaware citizens and other interested parties may participate in the process by which administrative 
regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability 
of regulations is determined. 

Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, 
it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, 
amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this 
title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, 
issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to 
any other regulations that may be impacted or affected by the proposal, and shall state the manner in which 
persons may present their views; if in writing, of the place to which and the final date by which such views may be 
submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such 
public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the 
Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a 
summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general 
circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for 
advance notice of its regulation-making proceedings. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


INFORMATION ABOUT THE DELAWARE 
REGISTER OF 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. 

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 DATE CLOSING DATE CLOSING TIME 
December 1 November 16 4:30 p.m. 
January 1 December 15 4:30 p.m. 
February 1 January 15 4:30 p.m. 
March 1 February 16 4:30 p.m. 
April 1 March 15 4:30 p.m. 

DIVISION OF RESEARCH STAFF 

Lori Christiansen, Director; Mark J. Cutrona, Deputy Director; Tara Donofrio, Administrative Specialist 
II; Bethany Fiske, Assistant Registrar of Regulations; Robert Lupo, Printer; Deborah J. Messina, Print Shop 
Supervisor; Kathleen Morris, Human Resources/Financials; Georgia Roman, Unit Operations Support Specialist; 
Victoria Schultes, Administrative Specialist II; Don Sellers, Printer; Yvette W. Smallwood, Registrar of 
Regulations; Holly Vaughn Wagner, Research Analyst; Verity Watson, Joint Sunset Analyst; Rochelle Yerkes, 
Office Manager; Sara Zimmerman, Legislative Librarian. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


TABLE OF CONTENTS 

Cumulative Tables............................................................................................................................. ............ 350 


PROPOSED 


DEPARTMENT OF AGRICULTURE 
Thoroughbred Racing Commission 

1001 Thoroughbred Racing Commission, Section 15.0 - Medication; Testing Procedures.. ............ 354 


DEPARTMENT OF EDUCATION 
Office of the Secretary 

252 Required Educational Records and Transfer and Maintenance of Educational Records........... 355 
286 Application Fee For Educator Licensure........................................................................ ............ 358 
775 New Teacher Hiring Date Reporting............................................................................... ............ 360 
817 Medications and Treatments.......................................................................................... ............ 362 


Professional Standards Board 

1502 Professional Growth Salary Increments....................................................................... ............ 364 
1506 Emergency Certificate.................................................................................................. ............ 367 


DEPARTMENT OF HEALTH AND SOCIAL SERVICES 
Division of Medicaid and Medical Assistance 

Title XIX Medicaid State Plan -Pharmaceutical Services Reimbursement - 340B Drug Products ... 369 
Title XIX Medicaid State Plan - Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) 
Services - Mental Health Services.................................................................................. ............ 373 
Title XIX Medicaid State Plan - Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) 
Services - Substance Use Disorder Services................................................................. ............ 377 
Title XIX Medicaid State Plan - Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) 
Services - Inpatient Psychiatric Hospital Services for Individuals Under Age 21............ ............ 380 

Division of Public Health 

4304 Medical Orders for Life-Sustaining Treatment or Pre-Hospital Advance Care Directives ........ 388 
4406 Home Health Agencies--Aide Only (Licensure)............................................................ ............ 388 
4410 Skilled Home Health Agencies (Licensure).................................................................. ............ 391 
4469 Personal Assistance Services Agencies...................................................................... ............ 392 


DEPARTMENT OF INSURANCE 
Office of the Commissioner 

1801 Registration of Insurance Holding Companies............................................................. ............ 396 


DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 
Division of Energy and Climate 

102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions.......... ............ 397 


Division of Fish and Wildlife 

3542 Tilefish.......................................................................................................................... ............ 401 


Division of Waste and Hazardous Substances 

1351 Underground Storage Tank Systems........................................................................... ............ 402 


DEPARTMENT OF SAFETY AND HOMELAND SECURITY 
Division of State Police 

2400 Board of Examiners of Constables, Rules 4.0 & 9.0.................................................... ............ 404 


Office of the Alcoholic Beverage Control Commissioner 

Alcoholic Beverage Control Regulations............................................................................... ............ 406 


DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


TABLE OF CONTENTS 

FINAL 


DEPARTMENT OF HEALTH AND SOCIAL SERVICES 
Division of Public Health 

4452 Clean Indoor Air Act...................................................................................................... ............ 407 
4470 State of Delaware Medical Marijuana Code................................................................. ............ 409 


DEPARTMENT OF INSURANCE 
Office of the Commissioner 

606 Proof of Automobile Insurance....................................................................................... ............ 414 


DEPARTMENT OF LABOR 
Division of Industrial Affairs 
Office of Labor Law Enforcement 

1322 Prevailing Wage Regulations................................................................................. ............ 415 


Office of Workers’ Compensation 

1341 Workers’ Compensation Regulations..................................................................... ............ 416 


DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 
Division of Waste and Hazardous Substances 

1301 Regulations Governing Solid Waste (DRGSW)............................................................ ............ 418 
1301 Regulations Governing Solid Waste (DRGSW)............................................................ ............ 422 


DEPARTMENT OF SAFETY AND HOMELAND SECURITY 
Division of State Police 

2400 Board of Examiners of Constables, Rules 3.0 and 5.0................................................. ............ 425 
2400 Board of Examiners of Constables, Rule 7.0................................................................ ............ 426 


DEPARTMENT OF STATE 
Division of Professional Regulation 

500 Board of Podiatry............................................................................................................ ............ 427 
1100 Board of Dentistry and Dental Hygiene, Section 10.0, Practical (Clinical) Examination........... 431 
1900 Board of Nursing, Sections 2.0, 3.0, 4.0, 5.0 & 9.0....................................................... ............ 432 


Public Service Commission 

1202 Policies and Procedures Regarding FOIA Requests.................................................... ............ 434 


CALENDAR OF EVENTS/HEARING NOTICES 

Delaware River Basin Commission, Notice of Business Meeting and Public Hearing....................... ............ 437 
Dept. of Agriculture, Notice of Public Comment Period...................................................................... ............ 437 
Dept. of Education, Notice of Monthly Meeting................................................................................... ............ 437 
Dept. of Health and Social Services, Div. of Medicaid and Medical Assistance; Division of Public Health, 

Notices of Public Comment Periods and Hearings ........................................................ ............ 437-440 
Dept. of Insurance, Office of the Commissioner, Notice of Public Comment Period.......................... ............ 441 
Dept. of Natural Resources and Environmental Control, Div. of Energy and Climate; Div. of Fish and 

Wildlife, Div. of Waste and Hazardous Substances; Notices of Public Comment Period ........... 442-443 
Dept. of Safety and Homeland Security, Div. of State Police; Office of the Alcoholic Beverage Control Commissioner, 

Notices of Public Comment Periods............................................................................................. ............ 443 


DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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.). 

ADMINISTRATIVE OFFICES OF THE COURTS 
Child Placement Review Board 
1401 Regulations Governing the Ivyane D.F. Davis Scholarship....................... 19 DE Reg. 186 (Final) 

DELAWARE SOLID WASTE AUTHORITY 
501 Regulations of the Delaware Solid Waste Authority.......................................... 19 DE Reg. 226 (Prop.) 
502 Statewide Solid Waste Management Plan......................................................... 19 DE Reg. 231 (Prop.) 

DELAWARE STATE FIRE PREVENTION COMMISSION 
701 Administration and Enforcement ....................................................................... 19 DE Reg. 96 (Prop.) 
702 Fire Protection in Building Construction...................................................... ...... 19 DE Reg. 97 (Prop.) 
703 Installation, Operation, Maintenance, Testing and Sales of Signaling Systems, 
Fire Protection Systems and Fire Extinguishers................................................ 19 DE Reg. 97 (Prop.) 
704 Hazardous Processes and Operations.............................................................. 19 DE Reg. 98 (Prop.) 
705 General Fire Safety............................................................................................ 19 DE Reg. 99 (Prop.) 
706 Specific Occupancy Requirements.................................................................... 19 DE Reg. 99 (Prop.) 

DEPARTMENT OF AGRICULTURE 
Delaware Agricultural Lands Preservation Foundation 
701 Farmland Preservation Program................................................................. 19 DE Reg. 160 (Prop.) 
Harness Racing Commission 
501 Harness Racing Rules and Regulations, Section 8.0.................................. 19 DE Reg. 10 (Prop.) 
19 DE Reg. 189 (Final) 

Standardbred Breeders’ Fund 

502 Delaware Standardbred Breeders’ Fund Regulations, Section 13.0 Races.................................................................................................... 
19 DE Reg. 161 (Prop.) 
Thoroughbred Racing Commission 

1001 Thoroughbred Racing Rules and Regulations, Section 15.0: Medication; 
Testing Procedures...................................................................................... 19 DE Reg. 137 (Final) 
Sections 18.0 and 19.0................................................................................ 19 DE Reg. 32 (Final) 
1002 Delaware Jockeys’ Health and Welfare Benefit Board Regulations.......... 19 DE Reg. 33 (Final) 

DEPARTMENT OF EDUCATION 
Office of the Secretary 
103 Accountability for Schools, Districts and the State...................................... 19 DE Reg. 162 (Prop.) 
19 DE Reg. 234 (Prop.) 

106A Teacher Appraisal Process Delaware Performance Appraisal System 
Revised........................................................................................................ 19 DE Reg. 35 (Final) 
107A Specialist Appraisal Process Delaware Performance Appraisal System 
Revised........................................................................................................ 19 DE Reg. 38 (Final) 
108A Administrator Appraisal Process Delaware Performance Appraisal 
System Revised........................................................................................... 19 DE Reg. 35 (Final) 
284 Licensure and Certification of Public Education Employees in the 
Department of Education, in Adult Education and in Prison Education 
Programs Whose Work Responsibilities are Directly Related to 
Curriculum and Instruction........................................................................... 19 DE Reg. 163 (Prop.) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CUMULATIVE TABLES 

505 High School Graduation Requirements and Diplomas............................... 19 DE Reg. 100 (Prop.) 
19 DE Reg. 303 (Final) 
545 K to 12 School Counseling Programs......................................................... 19 DE Reg. 102 (Prop.) 
19 DE Reg. 305 (Final) 
804 Immunizations............................................................................................ 19 DE Reg. 43 (Final) 
811 School Health Record Keeping Requirements........................................... 19 DE Reg. 234 (Prop.) 
902 Gifted or Talented Education Plan.............................................................. 19 DE Reg. 48 (Final) 
1007 DIAA Sportsmanship................................................................................ 19 DE Reg. 105 (Prop.) 
1008 DIAA Junior High and Middle School Interscholastic Athletics................. 19 DE Reg. 110 (Prop.) 
1009 DIAA High School Interscholastic Athletics.............................................. 19 DE Reg. 111 (Prop.) 
1150 School Transportation............................................................................... 19 DE Reg. 51 (Final) 
19 DE Reg. 112 (Prop.) 
19 DE Reg. 307 (Final) 
Professional Standards Board 
1559 Skilled and Technical Sciences Teacher................................................... 19 DE Reg. 237 (Prop.) 
1560 Art Teacher............................................................................................... 19 DE Reg. 12 (Prop.) 
1563 Music Teacher.......................................................................................... 19 DE Reg. 14 (Prop.) 
1564 Physical Education Teacher..................................................................... 19 DE Reg. 15 (Prop.) 
1571 Exceptional Children Special Education Teacher..................................... 19 DE Reg. 17 (Prop.) 
1583 School Psychologist................................................................................. 19 DE Reg. 241 (Prop.) 
1595 Certification Programs for Leaders in Education...................................... 19 DE Reg. 243 (Prop.) 


DEPARTMENT OF HEALTH AND SOCIAL SERVICES 
Division of Long Term Care Residents Protection 
3325 Financial Capability Reporting.................................................................. 19 DE Reg. 52 (Final) 
Division of Medicaid and Medical Assistance 
Hippotherapy..................................................................................................... 19 DE Reg. 164 (Prop.) 
Private Duty Nursing Services........................................................................... 19 DE Reg. 245 (Prop.) 
Reimbursement Methodology for Home Health Services.................................. 19 DE Reg. 253 (Prop.) 
Reimbursement Methodology for State Plan Personal Care Services.............. 19 DE Reg. 258 (Prop.) 
Title XIX Medicaid State Plan, Attachment 3.1-A, Introductory Page 1 (Telemedicine)..................................................................................................... 
19 DE Reg. 20 (Prop.) 
19 DE Reg. 191 (Final) 
Title XIX Medicaid State Plan, Multi-State Purchasing Pool Supplemental 
Drug Rebate Agreement (SRA).................................................................. 19 DE Reg. 57 (Final) 
Title XIX Medicaid State Plan, State Plan Rehabilitative Services - Coverage 
and Reimbursement for Community Support Services............................... 19 DE Reg. 60 (Final) 
Division of Public Health 
4452 Clean Indoor Air Act................................................................................. 19 DE Reg. 169 (Prop.) 
4455 Delaware Regulations Governing a Detailed Plumbing Code.................. 19 DE Reg. 138 (Final) 
4462 Public Drinking Water Systems................................................................ 19 DE Reg. 22 (Prop.) 
19 DE Reg. 114 (Prop.) 
19 DE Reg. 172 (Prop.) 
4464 Public Swimming Pools............................................................................ 19 DE Reg. 115 (Prop.) 
19 DE Reg. 309 (Final) 
4465 Delaware Radiation Control Regulations, Part D: Standards for Protection 
Against Radiation; Part J: Notices, Instructions and Reports to Workers; 
Inspections.................................................................................................. 19 DE Reg. 140 (Final) 
4470 State of Delaware Medical Marijuana Code.............................................. 19 DE Reg. 91 (Emer.) 
19 DE Reg. 116 (Prop.) 

DEPARTMENT OF INSURANCE 
Office of the Commissioner 
504 Continuing Education for Insurance Agents, Brokers, Surplus Lines 
Brokers and Consultants............................................................................. 19 DE Reg. 262 (Prop.) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CUMULATIVE TABLES 

606 Proof of Automobile Insurance.................................................................... 19 DE Reg. 173 (Prop.) 
1208 New Annuity Mortality Table for Use in Determining Reserve Liabilities 
for Annuities................................................................................................. 19 DE Reg. 263 (Prop.) 

DEPARTMENT OF LABOR 

Division of Industrial Affairs 
1101 Apprenticeship and Training Regulations.................................................. 19 DE Reg. 194 (Final) 
Office of Workers’ Compensation 

1341 Workers’ Compensation Regulations.................................................. 19 DE Reg. 175 (Prop.) 
Division of Unemployment Insurance 
1202 Unemployment Insurance Regulations..................................................... 19 DE Reg. 64 (Final) 

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 

Division of Air Quality 
1124 Control of Volatile Organic Compound Emissions..................................... 19 DE Reg. 199 (Final) 
1138 Emission Standards for Hazardous Air Pollutants for Source Categories. 19 DE Reg. 23 (Prop.) 

19 DE Reg. 311 (Final) 
1141 Limiting Emissions of Volatile Organic Compounds from Consumer and 
Commercial Products................................................................................... 19 DE Reg. 25 (Prop.) 
Division of Energy and Climate 

102 Implementation of Renewable Energy Portfolio Standards Cost Cap 
Provisions.................................................................................................... 19 DE Reg. 270 (Prop.) 
Division of Fish and Wildlife 
3507 Black Sea Bass Size Limit; Trip Limits, Seasons; Quotas......................... 19 DE Reg. 92 (Emer.) 
19 DE Reg. 121 (Prop.) 

19 DE Reg. 313 (Final) 
3711 Conch Minimum Size Limits...................................................................... 19 DE Reg. 315 (Final) 
3712 Commercial Conch Dredge Licenses [Commercial Conch Season]......... 19 DE Reg. 315 (Final) 
3900 Wildlife: Section 4.0 Seasons; Section 23.0 Non-native/Invasive Wildlife. 19 DE Reg. 176 (Prop.) 

Division of Waste and Hazardous Substances 
1302 Regulations Governing Hazardous Waste................................................ 19 DE Reg. 181 (Prop.) 
1375 Regulations Governing Hazardous Substance Cleanup........................... 19 DE Reg. 65 (Final) 

Division of Watershed Stewardship 
5102 Regulation Governing Beach Protection and the Use of Beaches............ 19 DE Reg. 274 (Prop.) 

DEPARTMENT OF SAFETY AND HOMELAND SECURITY 

Division of State Police 
1300 Board of Examiners of Private Investigators & Private Securiy Agencies. 19 DE Reg. 202 (Final) 
5500 Bail Enforcement Agents, Rules 1.0, 4.0 and 6.0...................................... 19 DE Reg. 318 (Final) 

DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES 
Division of Family Services 
101 Rules for Early Care and Education and School-Age Centers.................... 19 DE Reg. 6 (Emer.) 

DEPARTMENT OF STATE 

Division of Professional Regulation 
100 Board of Accountancy................................................................................. 19 DE Reg. 68 (Final) 
300 Board of Architects...................................................................................... 19 DE Reg. 124 (Prop.) 

19 DE Reg. 275 (Prop.) 
1400 Board of Electrical Examiners................................................................... 19 DE Reg. 141 (Final) 
1725 Polysomnography Advisory Council.......................................................... 19 DE Reg. 69 (Final) 
19 DE Reg. 184 (Prop.) 
1900 Board of Nursing, Sections 2.0, 3.0, 4.0, 5.0 & 9.0................................... 19 DE Reg. 125 (Prop.) 
2000 Board of Occupational Therapy Practice................................................... 19 DE Reg. 276 (Prop.) 
2100 Board of Examiners in Optometry............................................................. 19 DE Reg. 26 (Prop.) 


DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CUMULATIVE TABLES 

2100 Board of Examiners in Optometry............................................................. 19 DE Reg. 204 (Final) 
2500 Board of Pharmacy................................................................................... 19 DE Reg. 26 (Prop.) 
19 DE Reg. 125 (Prop.) 
2500 Board of Pharmacy, Section 5.0......................................................... 19 DE Reg. 282 (Prop.) 
2700 Board of Registration for Professional Land Surveyors............................ 19 DE Reg. 142 (Final) 
2930 Council on Real Estate Appraisers........................................................... 19 DE Reg. 70 (Final) 
3000 Board of Professional Counselors of Mental Health and Chemical 
Dependency Professionals......................................................................... 19 DE Reg. 283 (Prop.) 
3500 Board of Examiners of Psychologists....................................................... 19 DE Reg. 319 (Final) 
3700 Board of Speech/Language Pathologists, Audiologists and Hearing Aid 
Dispensers.................................................................................................. 19 DE Reg. 284 (Prop.) 
3800 Board of Dietetics/Nutrition....................................................................... 19 DE Reg. 27 (Prop.) 
4100 Board of Home Inspectors, Sections 4.0, 9.0 and 10.0............................ 19 DE Reg. 184 (Prop.) 
Uniform Controlled Substances Act Regulations............................................... 19 DE Reg. 27 (Prop.) 
Public Service Commission 
3007 Electric Service Reliability and Quality Standards.................................... 19 DE Reg. 126 (Prop.) 
4002 Regulations Governing Payphone Service Providers in Delaware 
(Docket No. 12), Repeal of.......................................................................... 19 DE Reg. 71 (Final) 

DEPARTMENT OF TRANSPORTATION 
Division of Planning and Policy 
2309 Development Coordination Manual.......................................................... 19 DE Reg. 73 (Final) 
19 DE Reg. 322 (Final) 
Division of Transportation Solutions 
2402 Delaware Manual in Uniform Traffic Control Devices............................... 19 DE Reg. 76 (Final) 
2405 Oversize/Overweight Hauling Permit Policy and Procedures Manual...... 19 DE Reg. 134 (Prop.) 
19 DE Reg. 324 (Final) 

EXECUTIVE DEPARTMENT 
Office of Management and Budget 

Guidelines for Agency Regulatory Statements Required under the Regulatory 
Flexibility Act............................................................................................... 19 DE Reg. 289 (Prop.) 
Division of Facilities Management 

4104 Regulations for the Drug Testing of Contractor and Subcontractor 
Employees Working on Large Public Works Projects........................... 19 DE Reg. 207 (Final) 
Statewide Benefits Office 
2007 Disability Insurance Program Rules and Regulations........................ 19 DE Reg. 78 (Final) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Symbol Key 

Arial 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 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. 

DEPARTMENT OF AGRICULTURE 

THOROUGHBRED RACING COMMISSION 

Statutory Authority: 3 Delaware Code, Section 10103(c) (3 Del.C. §10103(c)) 
3 DE Admin. Code 1001 

PUBLIC NOTICE 

1001 Thoroughbred Racing Rules and Regulations 

Summary 

The Thoroughbred Racing Commission proposes to amend its Regulations adopted in accordance with Title 3, 
Chapter 101. The purpose of the amended regulations is to adopt the ARCI Endogenous, Dietary, or 
Environmental Substances Schedule. Other regulations issued by the Thoroughbred Racing Commission are not 
affected by this proposal. The Thoroughbred Racing Commission is issuing these proposed regulations in 
accordance with Title 3 of the Delaware Code. This notice is issued pursuant to the requirements of Chapter 101 
of Title 29 of the Delaware Code. 

Comments 

A copy of the proposed regulations is being published in the November 1, 2015 edition of the Delaware 
Register of Regulations. A copy is also on file in the office of the Thoroughbred Racing Commission, 777 Delaware 
Park Boulevard, Wilmington, Delaware 19804 and is available for inspection during regular office hours. Copies are 
also published online at the Register of Regulations website: http://regulations.delaware.gov/services/ 
current_issue.shtml. 

Interested parties may offer written comments on the proposed regulations or submit written suggestions, data, 
briefs, or other materials to the Thoroughbred Racing Commission at the above address as to whether these 
proposed regulations should be adopted, rejected, or modified. Pursuant to 29 Del.C. §10118(a), public comments 
must be received on or before December 1, 2015. Written materials submitted will be available for inspection at the 
above address. 

Adoption of Proposed Regulation 

On or after December 1, 2015, following review of the public comment, the Thoroughbred Racing Commission 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

will determine whether to amend its regulations by adopting the proposed changes to rule 15.1.3.1.3 relating to the 
ARCI Endogenous, Dietary, or Environmental Substances Schedule or make additional changes because of the 
public comments received. 

1001 Thoroughbred Racing Rules and Regulations 

(Break in Continuity of Sections) 

15.0 Medication; Testing Procedures 
15.1 Prohibition and Control of Medication: 
(Break in Continuity Within Section) 

15.1.3 Foreign Substances: 
15.1.3.1 
No horse participating in a race shall carry in its body any foreign substance except as 
provided in Rule 15.1.3.1.3: 
(Break in Continuity Within Section) 

15.1.3.1.3 
A foreign substance of accepted therapeutic value may be administered as prescribed 
by a Veterinarian when test levels and guidelines for its use have been established by 
the Association of Racing Commissioners International (ARCI). The Commission 
hereby adopts by reference the ARCI Controlled Therapeutic Medication Schedule, 
Version 2.1. The Commission hereby adopts by reference the ARCI Endogenous, 
Dietary, or Environmental Substances Schedule (Version 3.0, updated July 2015). A 
substance listed on the ARCI Endogenous, Dietary, or Environmental Substances 
Schedule shall be permitted up to the threshold established by the ARCI. If there is 
any inconsistency between the Commission's regulations and the ARCI Controlled 
Therapeutic Medication Schedule or the ARCI Endogenous, Dietary, or 
Environmental Substances Schedule, the provisions of the Commission's regulations 
shall prevail. Androgenic-Anabolic Steroids are subject to the provisions of Rule 
15.17. 
*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

1001 Thoroughbred Racing Rules and Regulations 

DEPARTMENT OF EDUCATION 

OFFICE OF THE SECRETARY 

Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 
14 DE Admin. Code 252 

PUBLIC NOTICE 

Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) 

252 Required Educational Records and Transfer and Maintenance of Educational Records 

A. Type of Regulatory Action Required 
Amendment to Existing Regulation 

B. Synopsis of Subject Matter of the Regulation 
The Acting Secretary of Education intends to amend 14 DE Admin. Code 252 Required Educational Records 
and Transfer and Maintenance of Educational Records. This regulation is being amended to clarify the 
maintenance and transfer of student records as it pertains to private and public schools and educational programs 
operated by the Department of Services for Children, Youth and Their Families. It also clarifies when the student’s 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

records should be maintained as an original Cumulative Record File and when they are permitted to be copied and 
transferred. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 7, 2015 to Tina Shockley, Education Associate, Department of Education, Regulatory Review, at 
401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed online at the Register 
of Regulations website, http://regulations.delaware.gov/services/current_issue.shtml, or obtained at the 
Department of Education, Finance Office located at the address listed above. 

C. Impact Criteria 
1. Will the amended regulation help improve student achievement as measured against state achievement 
standards? The amended regulation is intended to improve student achievement as measured against state 
achievement standards by clarifying the transfer and maintenance of educational records. 
2. Will the amended regulation help ensure that all students receive an equitable education? The amended 
regulation is intended to continue to help ensure all students receive an equitable education. 
3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? 
The amendments do not address students’ health and safety. 
4. Will the amended regulation help to ensure that all students’ legal rights are respected? The amended 
regulation continues to help ensure that all student’s legal rights are respected. 
5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The amended regulation does not change the decision making at the local board and 
school level. 
6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates 
upon decision makers at the local board and school levels? The amended regulation does not place any 
unnecessary reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the amendment. 
8. Will the amended regulation 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 amendment is consistent with and not an 
impediment to the implementation of other state educational policies. 
9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
expected cost to implementing this amended regulation. 
252 Required Educational Records and Transfer and Maintenance of Educational Records 

1.0 Definitions 
The following words and terms, when used in this regulation, shall have the following meaning unless 
the context clearly states otherwise: 
“Court Orders” shall means any written direction from a court of competent jurisdiction directed to the 
student or affecting the student’s care or custody. 
“Delaware School Health Record” shall means the form required by 14 DE Admin Code 811 for 
Delaware public school students. 

“Discipline Record” shall means information about any and all periods of suspension or of expulsion from 
the regular school setting imposed on a student as a result of an infraction of the school or district’s 
code of conduct or other rules. 

“Emergency/Nursing Treatment Card” shall means the card containing the general emergency 
information and procedures for the care of a student when the student becomes sick or injured in 
school as required in 14 DE Admin. Code 811. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

“Identifying Data” shall means the name of the student, date of birth, sex, race and ethnicity, address, 
telephone number, Delaware student identification number and the name of the parent(s), guardian(s) 
or Relative Caregiver. 

“Progress Report” shall means a single record maintained for each student in kindergarten through 
grade 8 that contains end of year and up to date grades; standardized test(s) scores such as the DSTP 
or successor state student assessment; and attendance data for each year of the student’s 
attendance. 

“Student Transcript” shall means a single record maintained for each student in grades 9 and above that 
contains the following: end of year and up to date grades; credits earned; class rank; Grade Point 
Average (GPA); withdrawal or graduation date; standardized test(s) scores such as the DSTP or 
successor state student assessment, SAT, PSAT, ACT; attendance data and school activities. If 
applicable, a list of the career technical competencies achieved by a student enrolled in a specific 
career technical program shall also be included. 

2.0 
Education Records Required by Schools in Delaware 
2.1 
Each Delaware school shall maintain a Cumulative Record File either as an electronic or paper file for 
each student enrolled. 
2.1.1 
The student Cumulative Record File shall contain the Emergency/Nursing Treatment Card, 
Identifying Data, School Health Record, Progress Report, Student Transcript (for students in 
grades 9 and above) and Discipline Record. 
2.1.2 
The student Cumulative Record File shall also contain any Court Orders in the school or district’s 
possession, to the extent the school or district maintains such documents for an individual student. 
and; 
2.1.3 
In addition, tThe Cumulative Record File for a child with a disability as defined in 14 DE Admin 
Code 925 or for a child identified under Section 504 shall contain any records related to the 
identification, evaluation, placement, and provision of a free appropriate public education. Such 
documents may be collected and maintained separately. 
3.0 
Transfer of the Records of Public School and Private Schools Students 
3.1 
When a student transfers from a public school, private school or an educational program operated by 
the Department of Services for Children, Youth and Their Families to any other school in Delaware, the 
receiving school shall immediately request the Cumulative Record File from the sending school or 
program. 
3.2 
The Cumulative Record File shall follow each student transferred from one school to another including 
files for each student with disabilities transferred from one school to another. 
3.2.1 
Public schools, school districts, private schools and educational programs operated by the 
Department of Services for Children, Youth and Their Families shall promptly transfer a student’s 
Cumulative Record File upon the request of a receiving school. 
3.2.1.1 
Public schools and school districts shall maintain the original Cumulative Record File and 
provide a copy of the file when students transfer to a private school or educational 
program operated by the Department of Services for Children, Youth and Their Families. 
3.2.1.2 
Public schools and school districts shall provide the original Cumulative Record File when 
transferring records to another public school. 
3.2.2 
Unpaid student fees or fines shall not be a basis for a public school, school district or an 
educational program operated by the Department of Services for Children, Youth and Their 
Families to deny or to delay transfer of the Cumulative Record File. 
3.2.3 
Students shall not be denied enrollment into a public school on the grounds that the student’s 
Cumulative Record File has not been received. 
3.3 
Before transferring student records, a public school, school district or private school shall specifically 
confirm that the Cumulative Record File contains the student’s Discipline Record. 
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PROPOSED REGULATIONS 

3.4 
When students transfer to a Delaware school from any other school including a school in a foreign 
country the receiving school is responsible for having the transcripts evaluated. 
4.0 
Maintenance of the Education Records of Public Schools 
4.1 
The Delaware School District General Records Retention Schedule published by the Delaware Public 
Archives shall be followed as to the length of time and special considerations for the maintenance of 
education records. 
4.2 
Contracts for storage of student records of graduates, withdrawals and special education students for 
district storage, shall be initiated between the school district or charter school and the Delaware Public 
Archives. 
4.3 
The Cumulative Record Files for students who have graduated from or who left school prior to 
graduation from high school shall be stored at the school or district of last attendance or in the 
Delaware Public Archives. 
5.0 
Destruction of Education Records of Public Schools 
5.1 
The Delaware School District General Records Retention Schedule published by the Delaware Public 
Archives shall be followed as to the length of time and special considerations for the destruction of any 
education records. 
5.2 
The destruction of educational records of children with disabilities shall also comply with the 
requirements of 14 DE Admin. Code 927. 
OFFICE OF THE SECRETARY 

Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 

PUBLIC NOTICE 

Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) 

286 Application Fee For Educator Licensure 

A. 
Type of Regulatory Action Required 
New Regulation 

B. 
Synopsis of Subject Matter of the Regulation 
The Acting Secretary of Education seeks the consent of the State Board of Education to create 14 DE Admin. 
Code 286 Application Fee For Educator Licensure. This regulation is being created pursuant to House Bill 146 of 
the 148th General Assembly, codified at 14 Del. Code §122(b)(27) and to comply with 14 Del. Code §122 related 
to educator licensure. This bill establishes a one-time non-refundable fee of $100 for educators seeking new 
licenses in Delaware. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 7, 2015 to Tina Shockley, Education Associate, Department of Education, Regulatory Review, at 
401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed online at the Register 
of Regulations website, http://regulations.delaware.gov/services/current_issue.shtml, or obtained at the 
Department of Education, Finance Office located at the address listed above. 

C. 
Impact Criteria 
1. Will the new regulation help improve student achievement as measured against state achievement 
standards? The new regulation intends to ultimately improve student achievement as measured against state 
achievement standards by helping to ensure that qualified educators are properly licensed in Delaware. 
2. 
Will the new regulation help ensure that all students receive an equitable education? The new regulation is 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

intended to continue to help ensure all students receive an equitable education. 

3. Will the new regulation help to ensure that all students’ health and safety are adequately protected? The 
new regulation does not address students’ health and safety. 
4. Will the new regulation help to ensure that all students’ legal rights are respected? The new regulation 
continues to help ensure that all student’s legal rights are respected. 
5. Will the new regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The new regulation does not change the decision making at the local board and school 
level. 
6. Will the new regulation place unnecessary reporting or administrative requirements or mandates upon 
decision makers at the local board and school levels? The new regulation does not place any unnecessary 
reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the new regulation. 
8. Will the new regulation 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 new regulation is consistent with and not 
an impediment to the implementation of other state educational policies. 
9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
cost to the local education agencies. 
286 Application Fee For Educator Licensure 

1.0 
Purpose 
The purpose of this regulation is to comply with 14 Del.C. §122(b)(27) related to educator licensure. This 
regulation sets forth the rules and guidelines related to fees for educator licensure. Specifically, the Department of 
Education will implement a one-time, non-refundable fee of not more than $100 for an educator’s application in 
Delaware. This application may be for an Initial, Continuing or Advanced License. 

2.0 
Definitions 
“Advanced License” means a license issued as part of the three tiered licensure system set forth in 14 
Del.C. Ch. 12, subchapter II. 
“Continuing License” means a license issued as part of the three tiered licensure system set forth in and 
14 Del.C. Ch. 12, subchapter II. 
“Department” means the Delaware Department of Education. 
“Educator Licensure Application Fee” means the one-time, non-refundable fee of not more than $100 

an individual pays for a first educator license in Delaware. 
“Initial License” means a license issued as part of the three tiered licensure system set forth in 14 Del.C. 
Ch. 12, subchapter II. 

3.0 
Application Process 
3.1 
Effective the later of January 15, 2016 or upon activation of the online payment option within the 
electronic licensure and certification system, applicants seeking an educator licensure in Delaware 
shall: 
3.1.1 
Establish an online account in the electronic licensure and certification system in Delaware; 
3.1.2 
Submit official documents to the Department to support their application; 
3.1.3 
Pay a one-time, non-refundable $100 application fee via debit or credit card through the electronic 
licensure and certification system when applying for an Initial, Continuing, or Advanced License; 
and 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

3.1.4 
Meet all statutory and regulatory requirements. 
3.2 
An application will not be processed until all conditions of 3.1 are met. 
3.3 
Upon online payment and submission of the application for educator licensure, the application will be 
reviewed and processed by the Department. 
3.4 
Submission of an online fee and application does not entitle the applicant to the requested license. 
4.0 
Exemptions From Application Fee 
4.1 
Any person who submits an application for their first license in Delaware prior to January 15, 2016 
shall be exempt from the application fee. 
4.2 
Any person who is already licensed and certified to teach in Delaware prior to January 15, 2016 shall 
be exempt from the application fee. 
5.0 
Fee Payment and Collection 
5.1 
No installment or partial payments of the fee will be accepted. Only full payment of the fee, to be made 
as part of the online electronic application, is permitted. 
5.2 
No appeals, exceptions, or waivers shall be granted for the fee. 
5.3 
All fees collected pursuant to this regulation shall be deposited in the General Fund. 
OFFICE OF THE SECRETARY 

Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 
14 DE Admin. Code 775 

PUBLIC NOTICE 

Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) 

775 New Teacher Hiring Date Reporting 

A. Type of Regulatory Action Required 
Amendment to Existing Regulation 

B. Synopsis of Subject Matter of the Regulation 
The Acting Secretary of Education intends to amend 14 DE Admin. Code 775 New Teacher Hiring Date 
Reporting. This regulation is being amended to align teacher hiring date collection with annual reporting done 
within the Teacher and Leader Effectiveness branch of the Department of Education and as required by 14 Del. 
Code §1725. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 7, 2015 to Tina Shockley, Education Associate, Department of Education, Regulatory Review, at 
401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed online at the Register 
of Regulations website, http://regulations.delaware.gov/services/current_issue.shtml, or obtained at the 
Department of Education, Finance Office located at the address listed above. 

C. Impact Criteria 
1. Will the amended regulation help improve student achievement as measured against state achievement 
standards? The amended regulation does not address student achievement as measured against state 
achievement standards. 
2. Will the amended regulation help ensure that all students receive an equitable education? The amended 
regulation is intended to continue to help ensure all students receive an equitable education. 
3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? 
The amendments do not address students’ health and safety. 
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PROPOSED REGULATIONS 

4. Will the amended regulation help to ensure that all students’ legal rights are respected? The amended 
regulation continues to help ensure that all student’s legal rights are respected. 
5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The amended regulation does not change the decision making at the local board and 
school level. 
6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates 
upon decision makers at the local board and school levels? The amended regulation does not place any 
unnecessary reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the amendment. 
8. Will the amended regulation 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 amendment is consistent with and not an 
impediment to the implementation of other state educational policies. 
9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
expected cost to implementing this amended regulation. 
775 New Teacher Hiring Date Reporting 

1.0 Purpose 
The purpose of this regulation is to outline the criteria and process related to new teacher hiring data 
collection and reporting by school districts as required by 14 Del.C. §1725 and align such with annual 
reporting done within the Teacher and Leader Effectiveness Branch of the Department. 

2.0 Definitions 
"Contract Offer Date" shall mean the date an authorized agent or representative of the district notifies 
the successful candidate of the intent to hire. 
"Critical Curricular Area" shall mean an area identified as a critical area by the Department of 


Education and approved by the State Board of Education. 


"District" shall mean a reorganized school district or vocational technical school district established 
pursuant to Chapter 10 of Title 14 of the Delaware Code. 
"Department" means the Delaware Department of Education. 
"New Teacher Hiring Date" shall mean, for purposes of this regulation, the Contract Offer Date as 


defined herein. 


"Position Availability Date" shall mean the date the district Human Resources Office knows the 
available position is released for a new full-time teacher hire. 
"Position Title" shall mean the appropriate teaching position as offered to the teacher from the list of 


teacher position titles as provided in the Delaware Educator Data System (DEEDs). 
"Position Type" shall mean the appropriate instructional level of the teacher or whether the teacher is 
in a critical curricular area. 


32.0 New Teacher Hiring Data Report 
On or before December 1st of each year, each District local education agency shall annually submit an 
New Teacher Hiring Date Report Educator Hiring Practices and Needs Report to the Department on in 
a format approved by the Department that includes, but is not limited to, Contract Offer Date, Position 
Availability Date, and Position Title number of positions available and filled, information on hard-to-staff 
positions, information on recruitment and selection processes, and information on staffing practices 
during the most recent hiring season(s). The Department may also require local educational agencies 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

to enter such information on an ongoing basis into an electronic statewide information system. The 
report Department shall reflect the district new teacher hiring activity from the "estimated unit count" as 
that term is defined pursuant to 14 Del.C. §1704 until November 15th of that same calendar year 
review and provide information on educator hiring practices and needs in the annual Delaware Talent 

Practices Report, to be provided no later than March 31st of the following year. 

OFFICE OF THE SECRETARY 

Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 
14 DE Admin. Code 817 

PUBLIC NOTICE 

Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) 

817 Medications and Treatments 

A. Type of Regulatory Action Required 
Amendment to Existing Regulation 

B. Synopsis of Subject Matter of the Regulation 
The Acting Secretary of Education intends to amend 14 DE Admin. Code 817 Medications and 
Treatments.This regulation is amended to clarify assistance with self-administration of medications at unique 
approved school activities, such as extended field trips and to update a citation to the Delaware Code. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 7, 2015 to Tina Shockley, Education Associate, Department of Education, Regulatory Review, at 
401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed online at the Register 
of Regulation’s website, http://regulations.delaware.gov/services/current_issue.shtml, or obtained at the 
Department of Education, Finance Office located at the address listed above. 

C. Impact Criteria 
1. Will the amended regulation help improve student achievement as measured against state achievement 
standards? The amended regulation is related to medications and treatments and is not specifically related to 
improving student achievement as measured against state achievement standards. 
2. Will the amended regulation help ensure that all students receive an equitable education? The amended 
regulation is intended to continue to help ensure all students receive an equitable education. 
3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? 
The amendments address students’ health and safety in relation to assistance with self-administration of 
medications. 
4. Will the amended regulation help to ensure that all students’ legal rights are respected? The amended 
regulation continues to ensure that all student’s legal rights are respected. 
5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The amended regulations does not change the decision making at the local board and 
school level. 
6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates 
upon decision makers at the local board and school levels? The amended regulation does not place any 
unnecessary reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the amendment. 
8. Will the amended regulation 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 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

subjects of mathematics, science, language arts and social studies? The amendment is consistent with and not an 
impediment to the implementation of other state educational policies. 

9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
cost to local schools boards for compliance with this amended regulation. 
817 Medications and Treatments 

(Break in Continuity of Sections) 

2.0 
Definitions 
The following words and terms, when used in this regulation, shall have the following meaning unless 
the context clearly states otherwise: 

(Break in Continuity Within Section) 

“Controlled Medication” means those prescribed drugs regulated by Federal (CSA Controlled 
Substance Act of 1970) and/or State Controlled (dangerous) Substances Act. 

(Break in Continuity of Sections) 

6.0 
Assistance With Self-Administration of Medications at Approved School Activities 
6.1 
Educators and Other School Employees who are Trained Assistants for Self-Administration are 
authorized by 24 Del.C. §1921(a)(173) to assist a student with self-administration of Medications at an 
Approved School Activity for students in kindergarten through Grade 12. The Trained Assistant for 
Self-Administration is subject to the following provisions: 
6.1.1 
Assistance with Self-Administration of Medication shall not be provided without the prior written 
request or consent of a parent, guardian or Relative Caregiver, or the student if 18 years or older, 
or an unaccompanied homeless youth (as defined by 42 USC 11434a). Said written request or 
consent shall contain clear instructions including: the student's name; the name of the medication; 
the dose; the time(s) and date(s) of administration; and the method of administration. At least one 
copy of said written request or consent shall be in the possession of the person assisting a student 
with medication on a Field Trip or Approved School Activity outside of the traditional School day or 
off-campus. 
(Break in Continuity Within Section) 

6.1.2 
In order to be qualified to provide Assistance with Self-Administration of Medications, each such 
person shall complete a Board of Nursing approved training course developed by the Delaware 
Department of Education, pursuant to 24 Del.C. §1921(a)(173). Training shall be renewed 
minimally every five years. No person shall provide Assistance with Self-Administration of 
Medications without documented acknowledgment to the Department of Education that he/she 
has completed the course and that he/she understands the same, and will abide by the safe 
practices and procedures set forth therein. A School Nurse shall: 
(Break in Continuity Within Section) 

6.2 
District and charter school boards may develop policies for unique Approved School Activities for 
which the specified process is unable to be implemented. 
*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

817 Medications and Treatments 

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PROPOSED REGULATIONS 

PROFESSIONAL STANDARDS BOARD 

Statutory Authority: 14 Delaware Code, Section 1205(b) (14 Del.C. §1205(b)) 
14 DE Admin. Code 1502 

Education Impact Analysis Pursuant to 14 Del.C. Section 122(d) 

1502 Professional Growth Salary Increments 

A. Type of Regulatory Action Required 
Amendment to Existing Regulation 

B. Synopsis of Subject Matter of the Regulation 
The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 
1502 Professional Growth Salary Increments. This regulation is being amended to provide current formatting and 
to eliminate unnecessary language. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 1, 2015 to Chris Kenton, Executive Director, Professional Standards Board, at 401 Federal 
Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed or obtained at the Department of 
Education, Finance Office located at the address listed above. 

C. Impact Criteria 
1. Will the amended regulation help improve student achievement as measured against state achievement 
standards? The amended regulation is related to the Professional Standards Board and does not directly affect any 
changes to student achievement as measured against the state achievement standards. 
2. Will the amended regulation help ensure that all students receive an equitable education? The regulation is 
related to the Professional Standards Board and does not directly affect any changes to students’ ability to receive 
an equitable education. 
3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? 
The regulation is related to the Professional Standards Board and does not directly affect any changes to the 
protection of students’ health and safety. 
4. Will the amended regulation help to ensure that all students’ legal rights are respected? The regulation is 
related to the Professional Standards Board and does not directly affect any changes to students’ legal rights. 
5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The amended regulations do not change or weaken the ability to make decisions at the 
local board and school level. 
6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates 
upon decision makers at the local board and school levels? The amended regulation does not place any 
unnecessary reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the amendment. 
8. Will the amended regulation 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 amendment is consistent with and not an 
impediment to the implementation of other state educational policies. 
9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
expected cost to implementing this amended regulation. 
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PROPOSED REGULATIONS 

1502 Professional Growth Graduate Level Salary Increments 

(Effective 7/1/04) 

1.0 
Content 
This regulation shall apply to professional growth graduate level salary increments for educators, 
pursuant to 14 Del.C. §1305 (a). 

(Break in Continuity of Sections) 

4.0 
Post Master’s Degree Course Work 
4.1 
Educators who hold an eligible master's degree from a regionally accredited college or university may 
accrue credits taken after the conferral date of their first master's degree toward salary increments 
toward a Master's Degree Plus 15 graduate credits, a Master's Degree Plus 30 graduate credits, a 
Master's Degree Plus 45 graduate credits, or a doctorate doctoral degree on the basic salary schedule 
for educators, set forth in 14 Del.C. §1305 (a). All credits taken must be graduate level and must be: 
4.1.1 
Earned through a graduate level course of study clearly related to the educator's professional 
responsibilities and otherwise approved pursuant to 14 Del.C. Ch. 12, or 
4.1.2 
Earned toward a second master's degree, or 
4.1.3 
Matriculated graduate credits earned toward a doctorate doctoral degree. 
4.2 
Notwithstanding 4.1, graduate credits earned prior to the conferral of a master's degree may be 
applied toward movement on the salary schedule if the graduate credits are part of a Specialist Degree 
Program as long as the credits were earned after matriculating into the program. 
5.0 
Use of Undergraduate and Inservice Credits 
5.1 
Educators entitled to rightward movement on the basic salary schedule for educators, set forth in 14 
Del.C. §1305 (a), on the basis of inservice or undergraduate credits approved prior to July 1, 2004, 
shall continue to be entitled to such movement in the event of any future application for movement 
submitted after July 1, 2004. 
5.1.1 
For example, an educator who holds a Bachelor's Plus 15 or a Bachelor's Plus 30 approved prior 
to July 1, 2004 and based entirely on inservice or undergraduate credits, shall be entitled to move 
to a Master's Degree Plus 15 or Master's Degree Plus 30, whichever is applicable, upon 
completion of a master's degree program. 
5.1.2 
In order to use undergraduate credits toward a salary increment on the basic salary schedule for 
educators, set forth in 14 Del.C. §1305 (a), the credits must be completed by, and the application 
for salary increment submitted to, and approved by, the Department by June 30, 2004. 
Undergraduate credits will not be accepted for Plus 15, 30 or 45 salary increments after June 30, 
2004. 
5.1.3 
In order to use inservice credits toward a salary increment on the basic salary schedule for 
educators, set forth in 14 Del.C. §1305 (a), the credits must be completed by, and the application 
for salary increment submitted to, and approved by, the Department by June 30, 2004. Inservice 
credits will not be accepted for Plus 15, 30 or 45 salary increments after June 30, 2004. 
(Break in Continuity of Sections) 

7.0 
Acceptable Grades 
All grades for graduate level credit submitted for a professional growth salary increments must be a 
grade of "B" or better higher or satisfy the granting institution's standard for graduate level work. In the 
case of credits earned on a pass fail basis, a grade of "pass" is acceptable. 

(Break in Continuity of Sections) 

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PROPOSED REGULATIONS 

10.0 
Eligibility for Professional Growth Graduate Level Salary Increments 
10.1 
Where applicable and available, Aan applicant for a professional growth graduate level salary 
increment must hold a Standard or Professional Status Certificate issued pursuant to General 
Regulations for Certification of Professional Public School Personnel and the specific regulations as 
adopted for certification effective July 1, 1993 through August 31, 2003, or an Initial, Continuing, or 
Advanced License issued by the Department in accordance with 14 Del.C., Ch. 12, Subchapter III. 
10.2 
An educator employed on an Emergency Certificate pursuant to 14 Del.C. §1506 is eligible to receive 
a salary increment. 
11.0 
Acceptable Professional Degrees 
11.1 
In order to be applicable to professional growth graduate level salary increments, master's and 
doctorate degrees must be directly related to an area or specialty in which the educator is employed, 
which has been identified as a critical needs area in K to 12 education, or which the district or charter 
school, if applicable, in which the educator is employed has requested the educator to pursue or as 
required by regulation. 
11.2 
Any such request from a district or charter school, if applicable, must be in writing and must be 
submitted with the completed application for a salary increment. 
12.0 
Application Procedures 
12.1 
Upon completion of the credits required for movement on the basic salary schedule for educators, set 
forth in 14 Del.C. §1305(a), an applicant may apply for a salary increment. No applications will be 
considered prior to the completion of credits necessary for movement on the salary schedule. 
12.1.1 
An applicant shall secure the proper form from the local school district or charter school office, 
complete the form, and return it to the school district office for transmittal to the Department. An 
applicant shall submit an electronic salary increment application through DEEDS. 
12.1.2 
The applicant shall arrange for official transcripts to be submitted by the college or university 
directly to the Department or delivered by the applicant in an unopened, unaltered envelope. The 
applicant shall arrange for official transcripts (unopened and unaltered) to be submitted by the 
institution of higher learning directly to the employer’s Human Resources Office. The application 
will be reviewed and either approved or denied by the employer. The Department in its discretion 
may also accept verification of an official transcript by other means if the authenticity of the 
transcript can be made. 
12.1.3 
An application for a salary increment for the current fiscal year (July 1 to June 30) must be 
received in the Department no later than June 1. This date is necessary to allow adequate time for 
evaluation and notification to the district payroll office for salary adjustment. Applications received 
after June 1 will be approved effective the first day of the next fiscal year. If approved by the 
District/Charter, the application will be submitted to the Department for review and either denial or 
approval. Official transcripts must be submitted to the Department with the application. 
13.0 
Effective Date of Salary Adjustment 
13.1 
The salary adjustment shall be made after the evaluation and approval of the candidate's application 
by the Department. 
13.1.1 
The adjustment will be authorized to be made retroactive to the first of the month following the date 
certified by transcript or official grade slip as to when the program or credit was completed. 
13.1.2 
This date is necessary to allow adequate time for evaluation and notification to the district payroll 
office for salary adjustment. 
13.1.3 
Applications received after June 1 will be approved effective the first day of the next fiscal year. 
13.2 
Retroactive salary adjustment may be by a single payment or by payments divided equally among all 
the pay periods remaining in a current fiscal year as may be determined by the district or state fiscal 
officers. 
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PROPOSED REGULATIONS 

13.3 No salary increment shall be retroactive to a prior fiscal year. 
*Please Note: As the rest of the sections were not amended they are not being published. A copy of the 
regulation is available at: 

1502 Professional Growth Salary Increments 

PROFESSIONAL STANDARDS BOARD 

Statutory Authority: 14 Delaware Code, Section 1205(b) (14 Del.C. §1205(b)) 
14 DE Admin. Code 1506 
Education Impact Analysis Pursuant to 14 Del.C. Section 122(d) 


1506 Emergency Certificate 

A. Type of Regulatory Action Required 
Amendment to Existing Regulation 

B. Synopsis of Subject Matter of the Regulation 
The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 
1506 Emergency Certificate. This regulation is being amended to provide current formatting and to eliminate 
unnecessary language, as well as to allow the Department of Education the ability to process some Emergency 
Certificates automatically for those enrolled in an approved Alternate Routes program. 

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or 
before December 1, 2015 to Chris Kenton, Executive Director, Professional Standards Board, at 401 Federal 
Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed or obtained at the Department of 
Education, Finance Office located at the address listed above. 

C. Impact Criteria 
1. Will the amended regulation help improve student achievement as measured against state achievement 
standards? The amended regulation addresses student achievement by establishing standards for the issuance of 
a standard certificate to educators who have acquired the prescribed knowledge, skill, and/or education to practice 
in a particular area, to teach a particular subject, or to instruct a particular category of students to help ensure that 
students are instructed by educators who are highly qualified. 
2. Will the amended regulation help ensure that all students receive an equitable education? The amended 
regulation helps to ensure that all teachers employed to teach students meet high standards and have acquired the 
prescribed knowledge, skill, and/or education to practice in a particular area, to teach a particular subject, or to 
instruct a particular category of students. 
3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? 
The regulation is related to the Professional Standards Board and does not directly affect any changes to the 
protection of students’ health and safety. 
4. Will the amended regulation help to ensure that all students’ legal rights are respected? The regulation is 
related to the Professional Standards Board and does not directly affect any changes to students’ legal rights. 
5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local 
board and school level? The amended regulations do not change or weaken the ability to make decisions at the 
local board and school level. 
6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates 
upon decision makers at the local board and school levels? The amended regulation does not place any 
unnecessary reporting or administrative requirements on decision makers. 
7. Will the decision making authority and accountability for addressing the subject to be regulated be placed 
in the same entity? The decision making authority and accountability for addressing the subject to be regulated 
does not change because of the amendment. 
8. Will the amended regulation 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 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

subjects of mathematics, science, language arts and social studies? The amendment is consistent with and not an 
impediment to the implementation of other state educational policies. 

9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less 
burdensome method for addressing the purpose of the regulation, and 14 Del.C. requires that we promulgate this 
regulation. 
10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no 
expected cost to implementing this amended regulation. 
1506 Emergency Certificate 

(Break in Continuity of Sections) 

3.0 
Issuance of Emergency Certificate 
(Break in Continuity Within Section) 

3.7 
Transfer of Emergency Certificates to a New Employing Authority. 
3.7.1 
Upon application by a new employing authority, the Department may approve the transfer of the 
Emergency Certificate if the following requirements are met: 
3.7.1.1 
The new employing authority that hires an individual with a valid an Emergency Certificate 
requests prior to the expiration of the original emergency certificate, the continued 
approval of the Emergency Certificate through the remainder of the original term school 
year or requests an extension. 
(Break in Continuity Within Section) 

3.8 
Extension of Emergency Certificates 
3.8.1 
The Emergency Certificate may be valid for up to two (2) consecutive school years. An employing 
authority must request an extension of the Emergency Certificate prior to June 30th November 1st. 
3.8.2 
Emergency Certificates granted an extension shall expire on June 30th of the consecutive school 
year. 
3.8.3 
Prior to June 30th November 1st, the employing authority shall review the Emergency Certificate 
and if considered necessary, the employing authority may apply to the Department for an 
extension for an additional school year. 
3.8.4 
The Department may grant an extension of the Emergency Certificate if the following requirements 
are met: 
3.8.4.1 
The employing authority submits a complete request and report prior to June 30th 
November 1st. 
(Break in Continuity Within Section) 

4.0 
Application Procedures 
4.1 
The employing authority shall: 
(Break in Continuity Within Section) 

4.1.3 
Apply for the Emergency Certificate within sixty (60) calendar days of the individual's hire or new 
job assignment. However, the Department may issue an Emergency Certificate to an employed 
educator enrolled in an approved alternative routes for teacher licensure and certification program 
even if the employing authority fails to meet the 60-day request deadline. 
4.1.4 
Set forth a written plan with the application of the Emergency Certificate, verified by the individual 
and the employing authority. The plan must be designed to support and assist the individual in 
achieving the skills and knowledge necessary to meet the applicable certification requirements. 
The written plan is subject to Department approval. The written plan shall contain at a minimum 
the following: 
4.1.4.1 
A listing of all the outstanding certification requirements necessary to obtain the standard 
certificate in the area for which the Emergency Certificate is requested including but not 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

limited to the specific examination of content knowledge such as Praxis II and any 
required course work, professional development, education or experience; and 

4.1.4.2 
The specific course work or professional development including the educational institution 
or provider the individual intends to use to fulfill the requirements; and 
4.1.4.3 
The anticipated time frame for the completion of the requirements; and 
4.1.4.4 
A specific listing of how the employing authority shall support and assist the individual in 
achieving the skills and knowledge necessary and completing the requirements. 
4.2 
Failure by the employing authority to fulfill the conditions set forth shall result in denial of the 
Emergency Certificate. 
5.0 
Employing Authority Report 
(Break in Continuity Within Section) 

5.2 
Failure by tThe employing authority to shall fulfill the conditions set forth in 5.1 prior to June 30th 
November 1st shall result in the expiration of the Emergency Certificate. 
*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

1506 Emergency Certificate 

DEPARTMENT OF HEALTH AND SOCIAL SERVICES 

DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) 

PUBLIC NOTICE 

Pharmaceutical Services Reimbursement – 340B Drug Products 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware 
Code), 42 U.S.C., §1902(a)(13)(A) of the Social Security Act, 42 CFR §447.205, and under the authority of Title 31 
of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of 
Medicaid and Medical Assistance (DMMA) is proposing to amend the Delaware Title XIX Medicaid State Plan 
regarding Pharmaceutical Services, specifically, to clarify reimbursement methodology for entities that purchase 
340B drug products. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. 

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. 

SUMMARY OF PROPOSAL 

The purpose of this notice is to advise the public that Delaware Health and Social Services (DHSS)/Division of 
Medicaid and Medical Assistance (DMMA) is proposing to amend the Title XIX Medicaid State Plan regarding 
Pharmaceutical Services, specifically, to clarify reimbursement methodology for entities that purchase 340B drug 
products. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Statutory Authority 

• 
Veterans Health Care Act of 1992, Public Law 102-585, Section 602, limitations on prices of drugs 
purchased by certain clinics and hospitals, as amended by the Patient Protection and Affordable Care 
Act (Pub. L. No. 111-148), Health Care and Education Reconciliation Act of 2010 (Pub. L. No. 111-152) 
and Medicare and Medicaid Extenders Act of 2010 (Public Law 111-309) 
• 
1927(a)(1) and 1927 (a)(4) of the Social Security Act, authorizes state to enter directly into separate or 
supplemental rebate agreements with manufacturers 
• 
1902(a)(19) of the Social Security Act, care and services under a Medicaid state plan be provided in a 
manner consistent with simplicity of administration and the best interests of beneficiaries 
• 
Section 340 of the Public Health Service Act, 42 U.S.C. §256b, imposes ceilings on prices drug 
manufacturers may charge for medications sold to specified health care facilities 
• 
42 CFR PART 10, 340B Drug Pricing Program 
• 
42 CFR §440.120, Prescribed drugs 
• 
42 CFR §447.201, State plan requirements 
• 
42 CFR §447.205, Public notice of changes in Statewide methods and standards for setting payment 
rates 
Background 

Under the Medicaid program, States may provide coverage of outpatient drugs as an optional service under 
section 1905(a)(12) of the Social Security Act (the Act). Section 1903(a) of the Act provides for Federal financial 
participation (FFP) in State expenditures for these drugs. In general, in order for payment to be made available 
under section 1903 for covered outpatient drugs, manufacturers must enter into a Medicaid drug rebate agreement 
as set forth in section 1927(a) of the Act. Section 1927 of the Act provides specific requirements for rebate 
agreements, drug pricing submission and confidentiality requirements, the formulas for calculating rebate 
payments, and requirements for States for covered outpatient drugs. 

Medicaid Supplemental Drug Rebate Agreements 

The federal Omnibus Budget Reconciliation Act of 1990, section 4401 added §1927 to the Social Security Act. 
Section 1927 provides that States may enter separate or supplemental drug rebate agreements as long as such 
agreements achieve drug rebates equal to or greater than the drug rebates set forth in the Secretary’s national 
rebate agreement with drug manufacturers, which is published at 56 F.R. 7049 (1991). Specifically, the drug rebate 
statute, at section 1927(a)(1) of the Social Security Act (Act), provides that “the Secretary may authorize a State to 
enter directly into agreements with a manufacturer.” Also, section 1927(a)(4) of the Act provides that any drug 
rebate agreement between a State and drug manufacturers and in effect on November 5, 1990, may constitute a 
rebate agreement in compliance with the statute if the Centers for Medicare and Medicaid Services (CMS) 
determines that any such agreement “provides for rebates that are at least as large as the rebates otherwise 
required under this section.” CMS accordingly believes that Congress intended that States that seek CMS approval 
under section 1927(a)(1) to enter directly into agreements with manufacturers must ensure that any such 
agreement will achieve drug rebates that are at least equal to the rebates set forth in the Secretary’s rebate 
agreements with manufacturers. Currently, prescription drug manufacturers are required to enter into a rebate 
agreement. 

Section 340B Drug Discount Program 

The drug rebate program was amended in November 1992 by Public Law 102-585, the Veterans’ Health Care 
Act (VHCA) of 1992. Under VHCA, Congress created the 340B program which is administered by the Health 
Resources and Services Administration (HRSA), Office of Pharmacy Affairs (OPA). The 340B program requires 
manufacturers of drugs that are paid for by state Medicaid programs to enter into an agreement with HRSA to 
provide statutory discounts on drugs to “covered entities”. This legislation was designed to establish price controls 
to limit the cost of drugs to Federal purchasers and to certain Federal grantees. It was a follow-up to the Medicaid 
Drug Rebate Program, enacted as part of the Omnibus Budget Reconciliation Act of 1990 (OBRA90). Title IV of the 
VHCA contains three sections—all of which deal with drug pricing issues: 

• 
Section 601 is an introduction to general issues about drugs purchased by the Department of Veterans 
Affairs and other specific types of clinics and hospitals. 
• 
Section 602 provides drug discounts to certain grantees and other eligible covered entities. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

• Section 603 establishes limitations on prices that a manufacturer may charge for drugs purchased by the 
Department of Veterans Affairs and certain other Federal agencies. 

Section 602 of the VHCA enacted Section 340B of the Public Health Service (PHS) Act. 

Section 340B of the Public Health Service Act, 42 U.S.C. §256b, “imposes ceilings on prices drug 
manufacturers may charge for medications sold to specified health care facilities.” The 340B program requires 
manufacturers to enter into a Pharmaceutical Pricing Agreement (PPA) with the Secretary of Health and Human 
Services. Under the 340B program and in accordance with the PPA, pharmaceutical manufacturers agree to 
charge at or below statutorily defined prices, known as the 340B ceiling prices, for sales to qualified 340B entities. 

When reimbursing for 340B-purchased drugs, State Medicaid agencies have a responsibility to accurately 
reimburse covered entities and appropriately claim Medicaid rebates from drug manufacturers. State Medicaid 
agencies can use pre-pay edits and post-pay reviews to ensure accurate reimbursements. With respect to rebates, 
State Medicaid agencies should exclude claims for 340B-purchased drugs (340B claims) from Medicaid rebate 
requests to prevent subjecting drug manufacturers to duplicate discounts (i.e., selling 340B-purchased drugs to 
covered entities at the discounted ceiling prices and providing Medicaid rebates on the same drugs). 

Participation in the 340B program is voluntary; eligible entities must notify HRSA of their intention to participate 
by completing appropriate registration forms. Upon receipt and approval of the forms, HRSA adds the entity to its 
covered entity database, which is available on HRSA’s web site. The 340B entity is responsible for alerting 
wholesalers and manufacturers of its participation and referring them to the database for confirmation so it can 
purchase covered outpatient drugs at or below the ceiling prices. The Section 340B Drug Discount Program is a 
complex program. Utilization of this program requires an understanding of detailed concepts of drug pricing and 
procurement. 

Summary of Proposal 

Rationale and Justification 

Among the services provided to recipients of services under the Delaware Medical Assistance Program 
(DMAP) are prescription drugs and related pharmacy services. Expenditures for pharmacy services are offset in 
part by rebate agreements with suppliers of prescription drugs. 

Drug manufacturers use the potential for a 340B discounted price to dispute rebate payment. Pharmacy 
providers enrolled with the Delaware Medical Assistance Program (DMAP) have declared that they do not use 
public health service products. This policy change will formalize this process and prevent incurring additional 
operational costs/resources to collect rebates due the state. 

Purpose 

To add language to the Medicaid State plan to clarify that providers of pharmaceutical services who have 
access to 340B medications are not dispensing nor administering them to treat Medicaid patients. This will allow 
claims from these entities to be included in the Federal and supplemental rebate programs. 

Summary of Proposed Changes 

This SPA action addresses the need to ensure the state is able to meet the full scope of responsibilities to 
manage the Delaware Medical Assistance Program’s interactions with the 340B program. 

If implemented as proposed, this reimbursement methodology plan amendment will accomplish the following, 
effective January 1, 2016: 

The amendment is to specifically prohibit the use of 340B-purchased medications for Medicaid patients. This 
will simplify the rebate program and eliminate one area for provider audits. Public health service providers have the 
ability to purchase medications at severely discounted prices. These products are excluded from all rebate 
programs associated with Medicaid patients. Based on HRSA guidelines, these contracted entities have the ability 
to include or exclude Medicaid patients from using these medications. If contracted entities chose to use drugs 
purchased via the 340B discount, they must only charge the actual acquisition cost and a professional dispensing 
fee, when the medication is dispensed, and not administered. 

To date, with few exceptions, every contracted entity listed on the 340B participating providers’ file has 
responded in writing that they do not use these products for Delaware Medicaid patients. The Affordable Care Act 
has added another level of complexity to this process by excluding some drugs based on specific diagnoses. The 
340B program has become increasingly difficult to manage based on retrospective changes to the HRSA website 
as there are no tools to gather 340B prices nor is there any accountability mechanism to monitor if the drug was 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

purchased through a wholesaler or through the public health service process. 

The agency’s proposal involves no change in the definition of those eligible to receive pharmaceutical services, 
and the Medicaid prescribed drugs benefit available to eligible recipients remains the same. 

Public Notice 

In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social 
Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware 
Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives 
public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to 
provide input to the methods and standards governing payment methodology for pharmaceutical services. 
Comments must be received by 4:30 p.m. on December 1, 2015. 

CMS Review and Approval 

The provisions of this draft state plan amendment (SPA) are subject to the Centers for Medicare and Medicaid 
Services (CMS) review and approval. The draft SPA page(s) may undergo further revisions before and after 
submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to 
significant change. 

Provider Manual Update 

Also, upon CMS approval, the applicable Delaware Medical Assistance Program (DMAP) Provider Policy 
Specific Manuals will be updated. Manual updates, revised pages or additions to the provider manual are issued, 
as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or 
instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute 
new or revised manual material and to provide any other pertinent information regarding manual updates. 

Fiscal Impact Statement 

The proposed amendment is being implemented to clarify current practices attested to by DMAP pharmacy 
providers. Therefore, there is no impact on the General Fund. 

DMMA PROPOSED REGULATION #15-20 
REVISION:

 ATTACHMENT 4.19-B 
Page 14 

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 

STATE: DELAWARE 

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES – OTHER TYPES OF CARE 

REIMBURSEMENT FOR PHARMACEUTICALS 

Overview 
The Delaware Medical Assistance Program (DMAP) will reimburse pharmaceuticals using the lower of: 


• 
The usual and customary (U & C) charge to the general public for the product, 
• 
National Average Drug Acquisition Cost (NADAC) or if a NADAC is not available the Average Wholesale 
Price (AWP) minus 19%, 
• 
A State-specific maximum allowable cost (DMAC) when the purchase price is not appropriately 
represented by either the NADAC or the Average Wholesale Price (AWP) minus 19%, 
• 
The Federal Upper Limit (FUL) will not be used since the NADAC reflects the actual acquisition cost. 
Entities that qualify for special purchasing under Section 602 of the Veterans Health Care Act of 1992, Section 340B 
of the Public Health Service Act covered entities, selected disproportionate share hospitals and entities exempt 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

from the Robinson-Patman Price Discrimination Act of 1936 must charge the DMAP no more than their actual 
acquisition cost (AAC) plus a professional dispensing fee. The AAC must be supported by invoice and payment 
documentation. 

Entities that purchase Section 340B of the Public Health Service Act products are prohibited from using their stock 
for DMAP patients either directly or through coverage of the Managed Care Organization. 

Professional Dispensing Fee 
The professional dispensing fee rate is ten dollars ($10.00). There is one-time professional fee per thirty (30)-day 
period unless the class of drugs is routinely prescribed for a limited number of days. 

Definitions 
Delaware Maximum Allowable Cost (DMAC) - a maximum price set for reimbursement: 


• 
when a single source product has Average Selling Prices provided by the manufacturer that indicates the 
AWP is exaggerated, or 
• 
when the NADAC does not reflect the most current cost of a multiple source drug, or 
• 
if a single provider agrees to a special price. 
Any willing provider can dispense the product. 

DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services - Mental Health Services 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, specifically, coverage and reimbursement methodologies for rehabilitative mental 
health services. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: EPSDT 

– Mental Health Services. 
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. 

SUMMARY OF PROPOSAL 

The purpose of this notice is to advise the public that Delaware Health and Social Services/Division of 
Medicaid and Medical Assistance (DHSS/DMMA) proposes to amend the Title XIX Medicaid State Plan regarding 
the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, specifically, coverage and 
reimbursement methodologies for rehabilitative mental health services. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Statutory Authority 

• 
Section 1905(r) of the Social Security Act, Early and Periodic Screening, Diagnostic, and Treatment 
Services 
• 
42 CFR §441 Subpart B, Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) of Individuals 
under Age 21 
• 
42 CFR §440.60, Medical or other remedial care provided by licensed practitioners 
• 
42 CFR §440.130, Diagnostic, screening, preventive, and rehabilitative services 
• 
42 CFR §447.205, Public notice of changes in statewide methods and standards for setting payment rates 
• 
State Medicaid Manual, Section 5010, Early and Periodic Screening, Diagnostic, and Treatment Services 
Background 

Early and Periodic Screening, Diagnostic, and Treatment Services 

The Medicaid program’s benefit for children and adolescents is known as Early and Periodic Screening, 
Diagnostic, and Treatment services, or EPSDT. Under federal Medicaid law at 42 U.S.C. § 1396d(r) [1905(r) of the 
Social Security Act], EPSDT provides a comprehensive array of prevention, diagnostic, and treatment services for 
low-income infants, children and adolescents under age 21, as specified in Section 1905(r) of the Social Security 
Act (the Act). The EPSDT benefit is more robust than the Medicaid benefit for adults and is designed to assure that 
children receive early detection and care, so that health problems are averted or diagnosed and treated as early as 
possible. The goal of EPSDT is to assure that individual children get the health care they need when they need it – 
the right care to the right child at the right time in the right setting. 

Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service 
that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by 
screening,” whether or not the service is covered under the Delaware Medicaid State Plan. The services covered 
under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. 
§ 1396d (a) [1905(a) of the Social Security Act]. 

States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware 
of EPSDT and have access to required screenings and necessary treatment services. States also have broad 
flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit 
outright (through fee-for-service arrangements) or provide oversight to private entities with whom they have 
contracted to administer the benefit (e.g., managed care entities). States must arrange (directly or through 
delegations or contracts) for children to receive the physical, mental, vision, hearing, and dental services they need 
to treat health problems and conditions. 

Medicaid Rehabilitative Services 

Treatment for mental health and substance use issues and conditions is available under a number of Medicaid 
service categories, including hospital and clinic services, physician services, and services provided by a licensed 
professional such as a psychologist. States should also make use of rehabilitative services. While rehabilitative 
services can meet a range of children’s treatment needs, they can be particularly critical for children with mental 
health and substance use issues. Rehabilitative services are defined to include: 

any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician 
or other licensed practitioner of the healing arts within the scope of their practice under State law, for the 
maximum reduction of physical or mental disability and restoration of an individual to the best possible 
functional level. 

Like other services covered under EPSDT, rehabilitative services need not actually cure a disability or 
completely restore an individual to a previous functional level. Rather, such services are covered when they 
ameliorate a physical or mental disability, as discussed above. Moreover, determinations of whether a service is 
rehabilitative must take into consideration that a child may not have attained the ability to perform certain functions. 
That is, a child’s rehabilitative services plan of care should reflect goals appropriate for the child’s developmental 
stage. 

Depending on the interventions that the individual child needs, services that can be covered as rehabilitative 
services include: 

• 
Community-based crisis services, such as mobile crisis teams, and intensive outpatient services; 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

• 
Individualized mental health and substance use treatment services, including in non-traditional settings 
such as a school, a workplace or at home; 
• 
Medication management; 
• 
Counseling and therapy, including to eliminate psychological barriers that would impede development of 
community living skills; and 
• 
Rehabilitative equipment, for instance daily living aids. 
With respect to the provision of rehabilitative services, including those noted above, CMS requires more 
specificity of providers and services due to the wide spectrum of rehabilitative services coverable under the broad 
definition. CMS would expect a state to include in their State Plan the services, and providers with their 
qualifications, as well as a reimbursement methodology for each service it provides. 

Summary of Proposal 

Note: This Mental Health Services state plan amendment (SPA) is first of three (3) proposed SPA actions 

related to Medicaid rehabilitative services for individuals under age 21 to clarify coverage and payment 

methodology under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program. 

Purpose 

The purpose of this notice is to clarify service descriptions, reimbursement methodologies, and provider 
qualifications for rehabilitative mental health services under the Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) State Plan and to request comments from the public. 

On February 23, 2011, the Centers for Medicare and Medicaid Services (CMS) sent a companion letter to the 
Division of Medicaid and Medical Assistance (DMMA) concerning a previously approved State Plan Amendment 
#08-004, School-Based Health Services. CMS performed a program analysis of corresponding coverage sections 
not originally submitted with this SPA. This analysis revealed concerns regarding the monthly bundled rates for 
rehabilitative child mental health and substance use disorder services under the EPSDT program. CMS 
determined that the service descriptions and reimbursement language for rehabilitative child mental health and 
substance use disorder services fails to comply with 42 CFR 430.10 and 42 CFR 447.252 which implement in part 
Section 1902(a)(30)(A) of the Social Security Act, to require collectively that States comprehensively describe the 
methodologies that they use to reimburse service providers. The methodologies must be understandable, clear, 
unambiguous, and auditable. 

Proposal 

In order to comport with 42 CFR 430.10 and 42 CFR 447.252, DMMA proposes to clarify existing rehabilitative 
mental health services and reimbursement methodology language currently described at Attachment 3.1-A and 
Attachment 4.19-B in the Delaware Medicaid State Plan by: 

• 
defining the reimbursable unit of service; 
• 
describing payment limitations; 
• 
providing a reference to the provider qualifications per the State Plan; 
• 
publishing location to access State developed fee schedule rates. 
The agency’s proposal involves no change in the definition of those eligible to receive mental health services 
benefit under the Medicaid Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, and the 
mental health services benefit available to eligible recipients remains the same. 

Summary of Proposed Changes 

The proposed Medicaid Rehabilitative Mental Health Services SPA clarifies coverage for outpatient and 
residential mental health services for children under the Medicaid program including care by unlicensed 
practitioners and Evidence-Based Practices (EBPs). If implemented as proposed, the coverage and 
reimbursement methodology plan amendments will accomplish the following, effective July 1, 2016: 

Crisis intervention for children, unlicensed mental health practitioners (including Community Psychiatric 

Support and Treatment, Psychosocial Rehabilitation, and family peer support services) and all residential 

programs providing children’s mental health services to reflect the current rehabilitative services not covered 

under other Medicaid authorities. The rates for these services will be set using the same modeled rate 

methodology as the Division of Substance Abuse and Mental Health (DSAMH) PROMISE (Promoting Optimal 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Mental Health for Individuals through Supports and Empowerment) fee schedule for unlicensed practitioners 

and programs. The rates may vary from PROMISE depending upon the need for adaptions to the rates for 

accessibility of services by children and differences in service delivery. 

Public Notice 

In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social 
Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware 
Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives 
public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to 
provide input to the methods and standards governing payment methodology for rehabilitative mental health 
services under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program. Comments must be 
received by 4:30 p.m. on December 1, 2015. 

CMS Review and Approval 

The provisions of this draft state plan amendment (SPA) are subject to the Centers for Medicare and Medicaid 
Services (CMS) review and approval. The draft SPA page(s) may undergo further revisions before and after 
submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to 
significant change. 

Provider Manual Update 

Also, upon CMS approval, the applicable Delaware Medical Assistance Program (DMAP) Provider Policy 
Specific Manuals will be updated. Manual updates, revised pages or additions to the provider manual are issued, 
as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or 
instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute 
new or revised manual material and to provide any other pertinent information regarding manual updates. 

Fiscal Impact Statement 

The purpose of this state plan amendment is to update and reorganize both the services (Attachment 3.1-A) 
and reimbursement (Attachment 4.19-B) sections of the Medicaid State Plan that primarily address rehabilitative 
services early and periodic screening, diagnostic, and treatment (EPSDT) program. 

This amendment is not for the purpose of making program changes. Rather, this is part of DHSS/DMMA’s 
continuing effort in working with CMS to assure the reimbursement pages clearly correspond to the service 
sections of the state plan and to implement the required wording regarding fee schedules and the dates for which 
reimbursement rates were set for these services. There are no intended content changes other than improved 
descriptions. 

The proposed amendment imposes no increase in cost on the General Fund as the proposed services in this 
State plan amendment will be budget neutral. 

Federal budget impact for federal fiscal years 2016 and 2017 is projected as follows: 

Federal Fiscal Year 2016 Federal Fiscal Year 2017 
$195,802.39 $837,865.32 
*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 
regulation is available at: 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services -Mental Health Services 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services - Substance Use Disorder 
Services 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, specifically, coverage and reimbursement methodologies for Medicaid rehabilitative 
substance use disorder services. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: EPSDT 

– Substance Use Disorder Services. 
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. 

SUMMARY OF PROPOSAL 

The purpose of this notice is to advise the public that Delaware Health and Social Services/Division of 
Medicaid and Medical Assistance (DHSS/DMMA) proposes to amend the Title XIX Medicaid State Plan regarding 
the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, specifically, coverage and 
reimbursement methodologies for Medicaid rehabilitative substance use disorder services. 

Statutory Authority 

• 
Section 1905(r) of the Social Security Act, Early and Periodic Screening, Diagnostic, and Treatment Services 
• 
42 CFR §441 Subpart B, Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) of Individuals 
under Age 21 
• 
42 CFR §440.60, Medical or other remedial care provided by licensed practitioners 
• 
42 CFR §440.130, Diagnostic, screening, preventive, and rehabilitative services 
• 
42 CFR §447.205, Public notice of changes in statewide methods and standards for setting payment 
rates 
• 
State Medicaid Manual, Section 5010, Early and Periodic Screening, Diagnostic, and Treatment Services 
Background 

Early and Periodic Screening, Diagnostic, and Treatment Services 

The Medicaid program’s benefit for children and adolescents is known as Early and Periodic Screening, 
Diagnostic, and Treatment services, or EPSDT. Under federal Medicaid law at 42 U.S.C. § 1396d(r) [1905(r) of the 
Social Security Act], EPSDT provides a comprehensive array of prevention, diagnostic, and treatment services for 
low-income infants, children and adolescents under age 21, as specified in Section 1905(r) of the Social Security 
Act (the Act). The EPSDT benefit is more robust than the Medicaid benefit for adults and is designed to assure that 
children receive early detection and care, so that health problems are averted or diagnosed and treated as early as 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

possible. The goal of EPSDT is to assure that individual children get the health care they need when they need it – 
the right care to the right child at the right time in the right setting. 

Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service 
that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by 
screening,” whether or not the service is covered under the Medicaid State Plan. The services covered under 
EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. 
§1396d (a) [1905(a) of the Social Security Act]. 

States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware 
of EPSDT and have access to required screenings and necessary treatment services. States also have broad 
flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit 
outright (through fee-for-service arrangements) or provide oversight to private entities with whom they have 
contracted to administer the benefit (e.g., managed care entities). States must arrange (directly or through 
delegations or contracts) for children to receive the physical, mental, vision, hearing, and dental services they need 
to treat health problems and conditions. 

Medicaid Rehabilitative Services 

Treatment for mental health and substance use issues and conditions is available under a number of Medicaid 
service categories, including hospital and clinic services, physician services, and services provided by a licensed 
professional such as a psychologist. States also make use of rehabilitative services. While rehabilitative services 
can meet a range of children’s treatment needs, they can be particularly critical for children with mental health and 
substance use issues. Rehabilitative services are defined to include: 

any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician 
or other licensed practitioner of the healing arts within the scope of their practice under State law, for the 
maximum reduction of physical or mental disability and restoration of an individual to the best possible 
functional level. 

Like other services covered under EPSDT, rehabilitative services need not actually cure a disability or 
completely restore an individual to a previous functional level. Rather, such services are covered when they 
ameliorate a physical or mental disability, as discussed above. Moreover, determinations of whether a service is 
rehabilitative must take into consideration that a child may not have attained the ability to perform certain functions. 
That is, a child’s rehabilitative services plan of care should reflect goals appropriate for the child’s developmental 
stage. 

Depending on the interventions that the individual child needs, services that can be covered as rehabilitative 
services include: 

• 
Community-based crisis services, such as mobile crisis teams, and intensive outpatient services; 
• 
Individualized mental health and substance use treatment services, including in non-traditional settings 
such as a school, a workplace or at home; 
• 
Medication management; 
• 
Counseling and therapy, including to eliminate psychological barriers that would impede development of 
community living skills; and 
• Rehabilitative equipment, for instance daily living aids. 
With respect to the provision of rehabilitative services, including those noted above, CMS requires more 
specificity of providers and services due to the wide spectrum of rehabilitative services coverable under the broad 
definition. CMS expects a state to include in their State Plan the services, and providers with their qualifications, as 
well as a reimbursement methodology for each service it provides. 

Summary of Proposal 

Note: This Substance Use Disorder Services (SUDs) state plan amendment (SPA) is second of three (3) 
proposed SPA actions related to Medicaid rehabilitative services for individuals under age 21 to clarify 
coverage and payment methodology under the Early and Periodic Screening, Diagnosis, and Treatment 
(EPSDT) program. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Purpose 

The purpose of this notice is to clarify service descriptions, reimbursement methodologies, and provider 
qualifications for rehabilitative substance use disorder services under the Early and Periodic Screening, Diagnosis, 
and Treatment (EPSDT) State Plan and to request comments from the public. 

On February 23, 2011, the Centers for Medicare and Medicaid Services (CMS) sent a companion letter to the 
Division of Medicaid and Medical Assistance (DMMA) concerning a previously approved State Plan Amendment 
#08-004, School-Based Health Services. CMS performed a program analysis of corresponding coverage sections 
not originally submitted with this SPA. This analysis revealed concerns regarding the monthly bundled rates for 
rehabilitative child mental health and substance use disorder services under the EPSDT program. CMS 
determined that the service descriptions and reimbursement language for rehabilitative child mental health and 
substance use disorder services fails to comply with 42 CFR 430.10 and 42 CFR 447.252 which implement in part 
Section 1902(a)(30)(A) of the Social Security Act, to require collectively that States comprehensively describe the 
methodologies that they use to reimburse service providers. The methodologies must be understandable, clear, 
unambiguous and auditable. 

Proposal 

In order to comport with 42 CFR 430.10 and 42 CFR 447.252, DMMA proposes to clarify existing rehabilitative 
substance use disorder services and reimbursement methodology language currently described at Attachment 3.1A 
and Attachment 4.19-B in the Delaware Medicaid State Plan by: 

• defining the reimbursable unit of service; 
• describing payment limitations; 
• providing a reference to the provider qualifications per the State Plan; 
• publishing location to access State developed fee schedule rates. 
The agency’s proposal involves no change in the definition of those eligible to receive substance use disorder 
services benefit under the Medicaid Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, 
and the substance use disorder services benefit available to eligible recipients remains the same. 

Summary of Proposed Changes 

The proposed Medicaid Rehabilitative Substance Use Disorder (SUD) Services SPA ensures that the already 
approved SUD state plan amendment for adults also provides coverage of SUD services for children under the 
Medicaid program. This SPA is a revised version of the Rehabilitative Services SPA recently approved for the State 
of Delaware for adults and authorizes SUD outpatient and residential services. If implemented as proposed, the 
coverage and reimbursement methodology plan amendments will accomplish the following, effective July 1, 2016: 

The new SPA will make small changes that allow the Department of Services to Children, Youth and Their 
Families (DSCYF) to set program requirements for children. The Division of Substance Abuse and Mental Health 
(DSAMH) will still license the programs. This SPA includes one change requested by the industry to correct the 
scope of practice for licensed chemical dependency professional (LCDP) and Certified Dependency and Addiction 
Counselors (CDACs). DSCYF will use the Delaware Medical Assistance Program (DMAP) Current Procedural 
Terminology/Healthcare Common Procedures Coding System (CPT/HCPCS) fee schedule for licensed 
practitioners and set modeled rates for unlicensed practitioners and programs (thus, no changes are needed to the 
SPA reimbursement pages for SUD). The EPSDT rates for unlicensed practitioners and programs will be the same 
or similar to the adult SUD rates depending upon the need for adaptions to the rates for accessibility of services by 
children. 

Public Notice 

In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social 
Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware 
Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives 
public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to 
provide input to the coverage and payment methodology for rehabilitative substance use disorder services under 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program. Comments must be received by 

4:30 p.m. on December 1, 2015. 
CMS Review and Approval 

The provisions of this draft state plan amendment (SPA) are subject to the Centers for Medicare and Medicaid 
Services (CMS) review and approval. The draft SPA page(s) may undergo further revisions before and after 
submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to 
significant change. 

Provider Manual Update 

Also, upon CMS approval, the applicable Delaware Medical Assistance Program (DMAP) Provider Policy 
Specific Manuals will be updated. Manual updates, revised pages or additions to the provider manual are issued, 
as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or 
instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute 
new or revised manual material and to provide any other pertinent information regarding manual updates. 

Fiscal Impact Statement 

The purpose of this state plan amendment is to update and reorganize both the services (Attachment 3.1-A) 
and reimbursement (Attachment 4.19-B) sections of the Medicaid State Plan that primarily address rehabilitative 
services under the early and periodic screening, diagnostic, and treatment (EPSDT) program. 

This amendment is not for the purpose of making program changes. Rather, this is part of DHSS/DMMA’s 
continuing effort in working with CMS to assure the reimbursement pages clearly correspond to the service 
sections of the state plan and to implement the required wording regarding fee schedules and the dates for which 
reimbursement rates were set for these services. 

There are no intended content changes other than improved descriptions. The proposed amendment imposes 
no increase in cost on the General Fund as the proposed services in this State plan amendment will be budget 
neutral. The federal fiscal impact associated with this amendment will be zero dollars. 

*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 
regulation is available at: 

EPSDT Services - Substance Use Disorder Services 

DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services - Inpatient Psychiatric Hospital 
Services for Individuals under Age 21 

In compliance with the State's Administrative Procedures Act (APA -Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, addressing Inpatient Psychiatric Hospital Services for Individuals under Age 21, 
specifically, coverage and reimbursement methodology for psychiatric residential treatment facilities (PRTFs). 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: Inpatient 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Psychiatric Hospital Services for Individuals under Age 21. 

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. 

SUMMARY OF PROPOSAL 

The purpose of this notice is to advise the public that Delaware Health and Social Services/Division of 
Medicaid and Medical Assistance (DHSS/DMMA) proposes to amend the Title XIX Medicaid State Plan regarding 
the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program addressing Inpatient Psychiatric 
Hospital Services for Individuals under Age 21, specifically, coverage and reimbursement methodology for 
psychiatric residential treatment facilities (PRTFs). 

Statutory Authority 

• 
Section 1905(r) of the Social Security Act, Early and Periodic Screening, Diagnostic, and Treatment 
Services 
• 
Section 1905(a)(16), Inpatient Psychiatric Hospital Services for Individuals under Age 21 
• 
42 CFR §441 Subpart B, Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) of 
Individuals under Age 21 
• 
42 CFR §440.60, Medical or other remedial care provided by licensed practitioners 
• 
42 CFR §440.130, Diagnostic, screening, preventive, and rehabilitative services 
• 
42 CFR §447.205, Public notice of changes in statewide methods and standards for setting payment 
rates 
• 
State Medicaid Manual, Section 5010, Early and Periodic Screening, Diagnostic, and Treatment 
Services 
Background 

Early and Periodic Screening, Diagnostic, and Treatment Services 

The Medicaid program’s benefit for children and adolescents is known as Early and Periodic Screening, 
Diagnostic, and Treatment services, or EPSDT. Under federal Medicaid law at 42 U.S.C. § 1396d(r) [1905(r) of the 
Social Security Act], EPSDT provides a comprehensive array of prevention, diagnostic, and treatment services for 
low-income infants, children and adolescents under age 21, as specified in Section 1905(r) of the Social Security 
Act (the Act). The EPSDT benefit is more robust than the Medicaid benefit for adults and is designed to assure that 
children receive early detection and care, so that health problems are averted or diagnosed and treated as early as 
possible. The goal of EPSDT is to assure that individual children get the health care they need when they need it – 
the right care to the right child at the right time in the right setting. 

Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service 
that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by 
screening,” whether or not the service is covered under the Delaware Medicaid State Plan. The services covered 
under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. 
§ 1396d (a) [1905(a) of the Social Security Act]. 

States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware 
of EPSDT and have access to required screenings and necessary treatment services. States also have broad 
flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit 
outright (through fee-for-service arrangements) or provide oversight to private entities with whom they have 
contracted to administer the benefit (e.g., managed care entities). States must arrange (directly or through 
delegations or contracts) for children to receive the physical, mental, vision, hearing, and dental services they need 
to treat health problems and conditions. 

Medicaid Rehabilitative Services 

Treatment for mental health and substance use issues and conditions is available under a number of Medicaid 
service categories, including hospital and clinic services, physician services, and services provided by a licensed 
professional such as a psychologist. States should also make use of rehabilitative services. While rehabilitative 
services can meet a range of children’s treatment needs, they can be particularly critical for children with mental 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

health and substance use issues. Rehabilitative services are defined to include: 

any medical or remedial services (provided in a facility, a home, or other setting) recommended by a 
physician or other licensed practitioner of the healing arts within the scope of their practice under State law, 
for the maximum reduction of physical or mental disability and restoration of an individual to the best 
possible functional level. 

Like other services covered under EPSDT, rehabilitative services need not actually cure a disability or 
completely restore an individual to a previous functional level. Rather, such services are covered when they 
ameliorate a physical or mental disability, as discussed above. Moreover, determinations of whether a service is 
rehabilitative must take into consideration that a child may not have attained the ability to perform certain functions. 
That is, a child’s rehabilitative services plan of care should reflect goals appropriate for the child’s developmental 
stage. 

Depending on the interventions that the individual child needs, services that can be covered as rehabilitative 
services include: 

• 
Community-based crisis services, such as mobile crisis teams, and intensive outpatient services; 
• 
Individualized mental health and substance use treatment services, including in non-traditional settings 
such as a school, a workplace or at home; 
• 
Medication management; 
• 
Counseling and therapy, including to eliminate psychological barriers that would impede development of 
community living skills; and 
• 
Rehabilitative equipment, for instance daily living aids. 
With respect to the provision of rehabilitative services, including those noted above, CMS requires more 
specificity of providers and services due to the wide spectrum of rehabilitative services coverable under the broad 
definition. CMS would expect a state to include in their State Plan the services, and providers with their 
qualifications, as well as a reimbursement methodology for each service it provides. 

Inpatient Psychiatric Services for Individuals under Age 21 Benefit 

The Psychiatric Services for Individuals under Age 21 benefit at section 1905(a)(16) of the Act, is optional. The 
benefit must be provided in all States to those individuals who are determined during the course of an Early and 
Periodic Screening, Diagnosis, and Treatment (EPSDT) screen to need this type of inpatient psychiatric care. 
Under the EPSDT provision, States must provide any services listed in section 1905(a) of the Act that is needed to 
correct or ameliorate defects and physical and mental conditions discovered by EPSDT screening, whether or not 
the service is covered under the State plan. 

This benefit has a long title, and so is often referred to as "Psych under 21". Most states have chosen to 
provide this optional benefit. Services are provided in psychiatric hospitals or psychiatric units in a hospital, or 
psychiatric facilities for which states may define accreditation requirements, subject to requirements at 42 CFR 441 
Subpart D. Among the requirements for this service is certification of need for inpatient care, and a plan of care for 
active treatment, developed by an interdisciplinary team. 

This benefit is significant as a means for Medicaid to cover the cost of inpatient mental health services. The 
federal Medicaid program does not reimburse states for the cost of institutions for mental diseases (IMDs) except 
for young people, who receive this service, and individuals age 65 or older served in an IMD. No later than age 22, 
individuals are transitioned to community services, or non-Medicaid inpatient services. 

Many states provide psych under 21 services through psychiatric residential treatment facilities (PRTFs). A 
PRTF provides comprehensive mental health treatment to children and adolescents (youth) who, due to mental 
illness, substance abuse, or severe emotional disturbance, are in need of treatment that can most effectively be 
provided in a residential treatment facility. All other ambulatory care resources available in the community must 
have been identified, and if not accessed, determined to not meet the immediate treatment needs of the youth. 

PRTF programs are designed to offer a short term, intense, focused mental health treatment program to 
promote a successful return of the youth to the community. Specific outcomes of the mental health services include 
the youth returning to the family or to another less restrictive community living situation as soon as clinically 
possible and when treatment in a PRTF is no longer medically necessary. The residential treatment facility is 
expected to work actively with the family, other agencies, and the community to offer strengths-based, culturally 
competent, medically appropriate treatment designed to meet the individual needs of the youth including those 
identified with emotional and behavioral issues. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

What is a Psychiatric Residential Treatment Facility? 

A Psychiatric Residential Treatment Facility (PRTF) is any non-hospital facility with a provider agreement with 
a State Medicaid Agency to provide the inpatient services benefit to Medicaid-eligible individuals under the age of 
21 (psych under 21 benefit). The facility must be accredited by Joint Commission on Accreditation of Healthcare 
(JCAHO) or any other accrediting organization with comparable standards recognized by the State. PRTFs must 
also meet the requirements in §441.151 through 441.182 of the CFR. The regulatory authority for PRTFs includes 
Section 1864(a) of the Social Security Act (the Act), which authorizes the Secretary to enter into an agreement with 
the State. Authority also includes Section 1902(a)(9)(A), which authorizes the state agency or other appropriate 
medical agency, to be responsible for establishing and maintaining health standards, and Section 1902(a)(33)(B), 
licensing requirement. 

Summary of Proposal 

Note: This Inpatient Psychiatric Hospital Services for Individuals under Age 21 state plan amendment (SPA) is third 
of three (3) proposed SPA actions related to Medicaid rehabilitative services under the Early and Periodic 
Screening, Diagnosis, and Treatment (EPSDT) program. 

Purpose 

The purpose of this notice is to clarify service descriptions and reimbursement methodologies for Inpatient 
Psychiatric Hospital Services for Individuals under Age 21 and to request comments from the public. 

On February 23, 2011, the Centers for Medicare and Medicaid Services (CMS) sent a companion letter to the 
Division of Medicaid and Medical Assistance (DMMA) concerning a previously approved State Plan Amendment 
#08-004, School-Based Health Services. CMS performed a program analysis of corresponding coverage sections 
not originally submitted with this SPA. This analysis revealed concerns regarding the monthly bundled rates for 
rehabilitative child mental health and substance use disorder services under the EPSDT program. CMS 
determined that the service descriptions and reimbursement language for rehabilitative child mental health and 
substance use disorder services fails to comply with 42 CFR 430.10 and 42 CFR 447.252 which implement in part 
Section 1902(a)(30)(A) of the Social Security Act, to require collectively that States comprehensively describe the 
methodologies that they use to reimburse service providers. The methodologies must be understandable, clear, 
unambiguous and auditable. 

Proposal 

In order to comport with 42 CFR 430.10 and 42 CFR 447.252, DMMA proposes to clarify existing rehabilitative 
child mental health and substance use disorder services reimbursement methodology language currently 
described at Medicaid State plan page Attachment 3.1-A and new Attachment 4.19-A.3 by: 

• defining the reimbursable unit of service; 
• describing payment limitations; 
• providing a reference to the provider qualifications per the State Plan; 
• publishing location to access State developed fee schedule rates. 
The agency’s proposal involves no change in the definition of those eligible to receive the inpatient psychiatric 
hospital services for individuals under age 21 benefit under the Medicaid Early and Periodic Screening, Diagnosis, 
and Treatment (EPSDT) Program, and the “Psych under 21” benefit available to eligible recipients remains the 
same. 

Summary of Proposed Changes 

The proposed “Psych under 21” SPA provides a reimbursement methodology for psychiatric residential 
treatment facilities (PRTFs) for children in compliance with CMS guidance. On November 28, 2012, CMS issued 
an informational bulletin clarifying that states may structure coverage and payment for the benefit category of 
inpatient psychiatric hospital or facility services for individuals under age 21 to ensure youth receiving inpatient 
psychiatric services would receive medically necessary Medicaid services to meet their medical, psychological, 
social, behavioral, and developmental needs as identified in their plan of care. This clarification is intended to 
describe flexibility currently available to states to ensure the provision of medically necessary Medicaid services to 
children in inpatient psychiatric facilities. 

To view the CMCS Informational Bulletin regarding Inpatient Psychiatric Hospital Services for Individuals under 
age 21, use the following link to the CMS website: 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

http://www.medicaid.gov/Federal-Policy-Guidance/downloads/CIB-11-28-12.pdf. 
The proposed effective date for this state plan amendment is July 1, 2016. 

Public Notice 

In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social 
Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware 
Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives 
public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to 
provide input to the methods and standards governing payment methodology for the rehabilitative inpatient 
psychiatric hospital services for individuals under age 21 benefit under the Early and Periodic Screening, 
Diagnosis, and Treatment (EPSDT) program. Comments must be received by 4:30 p.m. on December 1, 2015. 

CMS Review and Approval 

The provisions of this draft state plan amendment (SPA) are subject to the Centers for Medicare and Medicaid 
Services (CMS) review and approval. The draft SPA page(s) may undergo further revisions before and after 
submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to 
significant change. 

Provider Manual Update 

Also, upon CMS approval, the applicable Delaware Medical Assistance Program (DMAP) Provider Policy 
Specific Manuals will be updated. Manual updates, revised pages or additions to the provider manual are issued, 
as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or 
instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute 
new or revised manual material and to provide any other pertinent information regarding manual updates. 

Fiscal Impact Statement 

The purpose of this state plan amendment is to update and reorganize both the services (Attachment 3.1-A) 
and reimbursement (Attachment 4.19-A and Attachment 4.19-B) sections of the Medicaid State Plan that primarily 
address rehabilitative services under the early and periodic screening, diagnostic, and treatment (EPSDT) 
program. 

This amendment is not for the purpose of making program changes. Rather, this is part of DHSS/DMMA’s 
continuing effort in working with CMS to assure the reimbursement pages clearly correspond to the service 
sections of the state plan and to implement the required wording regarding fee schedules and the dates for which 
reimbursement rates were set for these services. 

There are no intended content changes other than improved descriptions. The proposed amendment imposes 
no increase in cost on the General Fund as the proposed services in this State plan amendment will be budget 
neutral. The federal fiscal impact associated with this amendment will be zero dollars. 

DMMA FINAL ORDER REGULATION #15-23a 

REVISION: 
Revision: HCFA-PM-86-20 (BERC) 
SEPTEMBER 1986 
ATTACHMENT 3.1-A 
Page 7 
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 
State/Territory: Delaware 

AMOUNT, DURATION AND SCOPE OF MEDICALAND REMEDIAL CARE AND SERVICES PROVIDED TO THE 
CATEGORICALLY NEEDY 


16. Inpatient psychiatric facility services for individuals under 22 years of age. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

• 
Provided: . 
. No limitations • 
With limitations* 
*See Attachment 3.1-A Page 2c Addendum, Item 4.b. - EPSDT 
. 
Not provided. 
DMMA PROPOSED REGULATION #15-23b 
REVISION: 
ATTACHMENT 4.19-A.3 

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 

State/Territory: DELAWARE 

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES 

– INPATIENT PSYCHIATRIC CARE FOR UNDER AGE 21 
1. 
Psychiatric Residential Treatment Facility (PRTF) Reimbursement 
Reimbursement for services is based upon a Medicaid fee schedule established by the State of 
Delaware. Psychiatric residential treatment facilities will be reimbursed the lesser of: 

• 
The Delaware Medicaid per diem reimbursement rate for activities in the per diem plus additional 
fee-for-service reimbursement using the Delaware Medicaid fee schedule for activities on the plan 
of care but not in the per diem, 
• 
The facilities usual and customary charge to privately insured or private-pay beneficiaries, or 
• 
If an out of state facility, the specific in-state PRTF interim Medicaid per diem reimbursement rate 
for the activities included in that state’s per diem rate with additional fee-for-service reimbursement 
using the Delaware Medicaid fee schedule for activities on the plan of care but not in that state’s 
per diem reimbursement. 
Except as otherwise noted in the State Plan, the State-developed fee schedule is the same for 
both governmental and private individual providers and the fee schedule and any annual/periodic 
adjustments to the fee schedule are published in the Delaware Register of Regulations. The 
Agency’s fee schedule rate was set as of July 1, 2016 and is effective for services provided on or 
after that date. All rates are published on the Delaware Medical Assistance Program (DMAP) 
website at: 

http://www.dmap.state.de.us/downloads/feeschedules.html. 

A. 
Delaware Medicaid per diem PRTF reimbursement rate includes the following covered 
inpatient psychiatric residential treatment facility (PRTF) activities for individuals under 
twenty-one (21) years of age when included on the patient’s inpatient psychiatric active 
treatment plan of care: 
1. 
Behavioral Health care by staff who are not physicians 
2. 
Occupational Therapy / Physical Therapy / Speech Therapy 
3. 
Laboratory 
4. 
Transportation 
5. 
Dental 
6. 
Vision 
7. 
Diagnostics/radiology (x-ray). 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

ATTACHMENT 4.19-A.3.1 

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 

State/Territory: DELAWARE 

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES 

– INPATIENT PSYCHIATRIC CARE FOR UNDER AGE 21 CONTINUED 
B. 
Pharmaceuticals and physician activities provided to the youth in a PRTF, when on the active 
treatment plan of care, are components of the Medicaid covered PRTF service. These activities 
will be paid directly to the treating pharmacy or physician, using Medicaid pharmacy and physician 
fee schedule rates excluded from the psychiatric residential treatment facility (PRTF) State of 
Delaware Medicaid per diem reimbursement rates. 
C. 
Medical services under 1905(a) of the Social Security Act that are listed on the inpatient 
psychiatric active treatment plan and excluded in A or B above shall be paid directly to the treating 
provider, using Medicaid fee schedule rates. Such services are excluded from the psychiatric 
residential treatment facility (PRTF) State of Delaware Medicaid per diem reimbursement rates. 
D. 
The Medicaid PRTF per diem reimbursement rates shall exclude such costs other than 
pharmaceutical, physician, and other medical services that could be covered under 1905(a) of the 
Social Security Act on the inpatient psychiatric active treatment plan unrelated to providing 
inpatient psychiatric care for individual less than twenty-one (21) years of age including, but not 
limited to the following: 
1. Group education including elementary and secondary education. 
2. Medical services that are not listed in Items A, B, and C above. 
3. Activities not on the inpatient psychiatric active treatment plan. 
2. Psychiatric Residential Treatment Facility (PRTF) Reimbursement Rate Methodology 
A. 
Medicaid certified providers will be reimbursed for covered PRTF services using a Medicaid per 
diem reimbursement rate consistent with the principles in section 1 above. The Medicaid per diem 
reimbursement rate paid to the provider will be determined by the following service criteria: 
1. PRTF specializing in sexually-based treatment programs. 
2. PRTF specializing in substance use disorder treatment programs. 
3. PRTF treating children with mental health diagnoses. 
ATTACHMENT 4.19-A.3.2 

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 

State/Territory: DELAWARE 

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES 

– INPATIENT PSYCHIATRIC CARE FOR UNDER AGE 21 CONTINUED 
The Delaware Medicaid PRTF fee development methodology will build fees considering each component of 
provider costs as outlined below. These reimbursement methodologies will produce rates sufficient to enlist 
enough providers so that services under the State Plan are available to beneficiaries at least to the extent that 
these services are available to the general population, as required by 42 CFR 447.204. These rates comply with 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

the requirements of Section 1902(a)(3) of the Social Security Act and 42 CFR 447.200, regarding payments and 
are consistent with economy, efficiency, and quality of care. Provider enrollment and retention will be reviewed 
periodically to ensure that access to care and adequacy of payments are maintained. 

DMMA PROPOSED REGULATION #15-23c 
REVISION: 

ATTACHMENT 4.19-B 
Page 19a 

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 

STATE: DELAWARE 

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES – OTHER TYPES OF CARE 

5. Other EPSDT Services 
Reimbursement for services not otherwise covered under the State Plan is determined by the Medicaid 
agency through review of a rate setting committee. Non-institutional services are paid on a fee-forservice 
basis. Institutional services are per diem rates based on reasonable costs. These services 
include: 

(a) Prescribed Pediatric Extended Care - see ATT. 4.19-B, Page 7 
(b) Inpatient and Partial Hospital Psychiatric Services – reimbursed on a per diem basis 
(c) Outpatient Psychiatric Facility Services - fee-for-service 
(d) (b) School-Based Health Service (SBHS) Providers: 
School based health service providers include Delaware school districts and charter schools and may 
provide the following Medicaid services per Attachment 3.1-A, Page 2 Addendum: 

• EPSDT Screens 
• Nursing Services 
• Physical Therapy 
• Occupational Therapy 
• Speech Therapy, Language and Hearing Services 
• Psychological and Developmental Treatment Assessment 
• Counseling and Therapy 
• Residential Mental Health or Developmental Disability Treatment 
• Specialized Transportation Services 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, Chapter 25 (16 Del.C. Ch. 25) 
16 DE Admin. Code 4304 

PUBLIC NOTICE 

4304 Medical Orders for Life-Sustaining Treatment or Pre-Hospital Advance Care Directives 

Division of Public Health, Department of Health and Social Services, is proposing to repeal and replace 
regulations for Delaware Medical Orders Scope of Treatment (DMOST). The purpose of replacing existing 
regulation with the proposed regulations is to improve the quality of care people receive at the end of life by 
translating patient/resident goals and preferences into medical orders. The proposed regulations will set 
requirements for use of DMOST forms, provide guidance in the use of the forms and formalize the DMOST form 
itself. On November 1, 2015, DPH plans to publish as proposed the new regulations, and hold them out for public 
comment per Delaware law. 

NOTICE OF PUBLIC COMMENT PERIOD 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Friday, December 4, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 
regulation is available at: 

4304 Medical Orders for Life-Sustaining Treatment or Pre-Hospital Advance Care Directives 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, Section 122(3)o (16 Del.C. §122(3)o) 
16 DE Admin. Code 4406 

PUBLIC NOTICE 

4406 Home Health Agencies--Aide Only (Licensure) 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 
Services, is proposing revisions to the regulations governing Home Health Care Agencies - Aide Only (4406). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 
nursing facilities and hospitals. This change will allow patients to receive the services necessary to safely achieve 
their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

NOTICE OF PUBLIC HEARING 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 
Jamie Mack 
Division of Public Health 
417 Federal Street 
Dover, DE 19901 
Email: jamie.mack@state.de.us 
Phone: (302) 744-4951 

4406 Home Health Agencies--Aide Only (Licensure) 

1.0 
Definitions 
1.1 
The following words and terms, when used in this regulation, should have the following meaning 
unless the context clearly indicates otherwise: 
(Break in Continuity Within Section) 

“Branch Office” means a separately licensed office within the state which is located within fifty miles of 
the parent agency and shares administrative functions with the parent. The branch maintains patient 
records while patients are active with the agency. 

(Break in Continuity Within Section) 

“Director” means the individual appointed by the governing body to act on its behalf in the overall 
management of the home health agency. The director shall have a Baccalaureate Degree in health or 
a related field. The “Director” and “Clinical Director” may be the same individual if that individual is 
dually qualified. 

“Full-time” means the established business hours of the home health agency. 
“Governing Body or Other Legal Authority” means the individual, partnership, agency, group, or 


corporation designated to assume full legal responsibility for the policy determination, management, 
operation and financial liability of the home health agency. 
“Healthcare Facility” means any facility licensed under 16 Del.C. Ch.10 or 11. 
“Home Health Agency (HHA)” means any business entity or sub-division thereof, whether public or 


private, proprietary or not-for-profit, which provides home health aide services, to an individual 
primarily in their place of residence. The HHA shall only provide services in the county in which the 
HHA is located and/or the county(ies) which are immediately adjacent. 

(Break in Continuity Within Section) 

“Home Health Aide Care Plan” means a written plan developed by the nurse that specifies the tasks 
that are to be performed by the aide primarily in the patient’s residence. The written plan specifies 
scope, frequency and duration of services. 

“Homemaker Services” means performance of household chores for an individual, primarily in her/his 
place of residence. Household chores may include but are not necessarily limited to housekeeping, 
meal preparation and shopping. 

(Break in Continuity Within Section) 

“Parent Agency” means the agency located within the state that develops and maintains 
administrative control of branch offices. The parent agency is separately licensed from the branch(es) 
and must be located within fifty miles of any branch. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

(Break in Continuity Within Section) 

“Residence” means the domicile of the patient either personally owned by that patient or considered 

the place of residence of that patient. 
“Supervision of Services” means authoritative procedural guidance by a qualified person for the 
accomplishment of a function or activity with initial direction and periodic inspection of the actual act of 
accomplishing the function or activity. 


2.0 
Licensing Requirements and Procedures 
(Break in Continuity Within Section) 
2.3 Issuance of Licenses 
(Break in Continuity Within Section) 
2.3.3 License 
(Break in Continuity Within Section) 

2.3.3.4 
A license may not be issued to a home health agency: which is not in substantial 
compliance with these regulations or whose deficient practices present an immediate 
threat to the health and safety of its patients. 
2.3.3.4.1 
Which does not meet the definition of a home health agency as contained within these 
regulations; 
2.3.3.4.2 
Which is not in substantial compliance with these regulations; or 
2.3.3.4.3 
Whose deficient practices present an immediate threat to the health and safety of its 
patients. 
(Break in Continuity Within Section) 

2.9.6 
A Personal Assistance Services Agency which solely provides services defined in 16 Del.C. 
§122(x) (3)x. 
3.0 
General Requirements 
(Break in Continuity Within Section) 

3.5 
The home health agency may not establish separate offices without first contacting and receiving 
approval from the Department. 
3.6 
The home health agency may contract with a staffing agency for services to be provided to its patients 
when the home health agency is not able to meet staffing needs. Individuals providing services under 
contract must meet the same requirements as those persons employed directly by the agency. 
3.76 The director or clinical director shall be available at all times during the operating hours of the home 
health agency. 
3.87 The home health agency shall advise the Department in writing at least thirty (30) calendar days prior 
to any change in office location. 
3.98 The home health agency must permit photocopying of any records or other information by, or on behalf 
of authorized representatives of the Department, as necessary to determine or verify compliance with 
these regulations. 
3.109 The agency shall have policies and an operational system which assure uninterrupted implementation 
of the plan of care. In furtherance of this requirement, the agency shall, at a minimum: 1) maintain a 
sufficient pool of qualified employees/contractors to fulfill plans of care and provide scheduled 
services; and 2) develop and maintain a back-up system to provide substitute employees/contractors if 
regularly scheduled employees/contractors are unavailable. 
3.1110 
The agency shall be in compliance with federal, state and local laws and codes. 

3.11 
Prior to the provision of services in a healthcare facility, the home health agency must obtain written 
permission from each healthcare facility in which services will be provided. 
(Break in Continuity of Sections) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

5.0 
Administration/Personnel 
(Break in Continuity Within Section) 

5.7 
Staff Development 
(Break in Continuity Within Section) 

5.7.9 
All newly hired employees and contractors must pass a competency evaluation test prior to 
providing care to patients and annually thereafter. 
6.0 
Patient Care Management 
(Break in Continuity Within Section) 

6.4 
Scope of Services 
6.4.1 
Competent patients who do not reside in a medical facility or a facility regulated pursuant to 16 
Del.C. Ch. 11 may delegate personal care services to home health aides provided: 
6.4.1.1 
The nature of the service/task is not excluded by Del.C. law or other state or federal 
regulation; 
6.4.1.2 
The services/tasks are those competent patients could normally perform themselves but 
for functional limitation; and 
6.4.1.3 
The delegation decision is entirely voluntary. 
6.4.2 
Services provided to patients who are not able to delegate services/tasks due to impaired 
cognitive function shall be those delegated by the registered nurse as permitted by Del.C. law. 
6.4.3 
Services are provided under the supervision and direction of the registered nurse. 
6.4.3.1 
On-site professional supervisory visits are required for all patients receiving home health 
aide services. 
6.4.3.1.1 
The registered nurse must make an on-site supervisory visit to the patient’s home 
residence (while the home health aide is providing care) no less frequently than every 
sixty (60) calendar days. 
6.4.3.1.2 
A report of the supervisory visit should be kept with the patient’s record. 
(Break in Continuity Within Section) 

6.5 
Records and Reports 
(Break in Continuity Within Section) 

6.5.5 
All patient records shall be available at all times for review by authorized representatives of the 
Department and to legally authorized persons; otherwise patient records shall be held confidential. 
The written consent of the patient or her/his representative, if the patient is incapable of making 
decisions, shall be obtained before any personal information is released from her/his records as 
authorized by these regulations or Delaware law. 
*Please Note: As the rest of the sections were not amended they are not being published. A copy of the 
regulation is available at: 

4406 Home Health Agencies--Aide Only (Licensure) 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, §122(3)o (16 Del.C. §122(3)o) 
16 DE Admin. Code 4410 

PUBLIC NOTICE 

4410 Skilled Home Health Agencies (Licensure) 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Services, is proposing revisions to the regulations governing Home Health Care Agencies - Skilled (4410). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 
nursing facilities and hospitals. This change will allow patients to receive the services necessary to safely achieve 
their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

NOTICE OF PUBLIC HEARING 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 
regulation is available at: 

4410 Skilled Home Health Agencies (Licensure) 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, §122(3)x (16 Del.C. §122(3)x) 
16 DE Admin. Code 4469 

PUBLIC NOTICE 

4469 Personal Assistance Services Agencies 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 
Services, is proposing revisions to the regulations governing Personal Assistance Service Agencies (4469). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 
nursing facilities and hospitals. This change will allow consumers to receive the services necessary to safely 
achieve their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

NOTICE OF PUBLIC HEARING 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Health at (302) 744-4951. 
Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 
Jamie Mack 
Division of Public Health 
417 Federal Street 
Dover, DE 19901 
Email: jamie.mack@state.de.us 
Phone: (302) 744-4951 

4469 Personal Assistance Services Agencies 

1.0 
Definitions 
1.1 
The following words and terms, when used in this regulation, should have the following meaning 
unless the context clearly indicates otherwise: 
(Break in Continuity Within Section) 

"Healthcare Facility" means any facility licensed under 16 Del.C. Ch. 10 or 11. 

(Break in Continuity Within Section) 

“Personal Assistance Services Agency” is an agency that employs or contracts with direct care 
workers to provide personal assistance services to consumers of the agency primarily in his/her place 
of residence. The personal assistance services agency shall only provide services in the county in 
which the agency is located and/or the county(ies) which are immediately adjacent. 

(Break in Continuity Within Section) 

“Residence” means the domicile of the consumer either personally owned by that consumer or 
considered the place of residence of that consumer and that is not licensed, operated for profit, or 
operating as a healthcare facility. 

(Break in Continuity Within Section) 

2.0 
Licensing Requirements and Procedures 
(Break in Continuity Within Section) 

2.2 
Application Process 
(Break in Continuity Within Section) 

2.2.2 
In addition to a completed application for licensure, applicants shall submit to the Department the 
following information: 
2.2.2.1 
The names, addresses and types of facilities owned or managed by the applicant; 
2.2.2.2 
A copy of the Applicant's policies and procedures manual as outlined in Regulation 
Section 4.3; 
(Break in Continuity Within Section) 

2.2.2.7 
A copy of the test to be given to each direct care worker, as required by Regulation 
Section 4.5; 
2.2.2.8 
Proof of insurance and bonding as required in Regulation Section 7.0. 
2.2.2.9 
Any other information required by the Department. 
2.3 
Issuance of Licenses 
(Break in Continuity Within Section) 

2.3.3 
License 
(Break in Continuity Within Section) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

2.3.3.4 
A license may not be issued to a personal assistance services agency; that is not in 
substantial compliance with these regulations or whose deficient practices present an 
immediate threat to the health and safety of its consumers. 
2.3.3.4.1 
Which does not meet the definition of a personal assistance services agency as 
contained within these regulations; 
2.3.3.4.2 
Which is not in substantial compliance with these regulations; or 
2.3.3.4.3 
Whose deficient practices present an immediate threat to the health and safety of its 
consumers. 
(Break in Continuity Within Section) 

2.9 
Exclusions from Licensure 
The following persons, associations or organizations are not required to obtain a Personal Assistance 
Services Agency license: 

(Break in Continuity Within Section) 

2.9.6 A Home Health Agency which solely provides services defined in 16 Del.C. §122(o) (3)o. 
3.0 
General Requirements 
(Break in Continuity Within Section) 

3.12 
Prior to the provision of personal care services in a healthcare facility, the personal assistance services 
agency must: 
3.12.1 
Disclose the personal assistance services agency’s and the direct care worker's status with 
respect to attendant tax, worker's compensation and liability insurance obligations, insurance 
coverage or the lack thereof to each healthcare facility in which services are provided. 
3.12.2 
Obtain written permission from each healthcare facility in which personal care services will be 
provided. 
3.13 
The personal assistance services agency must not use the word "healthcare", or any other language 
which implies or indicates the provision of healthcare services, in its title or in its advertising. 
4.0 
Administration 
4.1 
Agency Director 
(Break in Continuity Within Section) 

4.1.4 
The director must ensure that the personal assistance services agency adheres to its policies and 
procedures. 
(Break in Continuity Within Section) 

4.4 
Personnel and Direct Care Worker Records 
4.4.1 
Records of all personnel, including each direct care worker shall be kept current and available 
upon request by authorized representatives of the Department. 
4.4.2 
For all personnel, including direct care workers, the agency shall maintain individual records which 
shall contain at least: 
(Break in Continuity Within Section) 

4.4.2.6 
Health History 
(Break in Continuity Within Section) 

4.4.2.6.5 
All new direct care workers shall be required to have a pre-employment/referral 
physical examination, a copy of which shall be maintained in individual files. All new 
personnel, including direct care workers shall be required to have a physical 
examination prior to providing care: 
4.4.2.6.5.1 
The physical examination must have been completed within three (3) months prior 
to employment/referral; and 
4.4.2.6.5.2 
A copy of the physical examination shall be maintained in the individual's file. 
(Break in Continuity Within Section) 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

4.5 
Orientation and Testing 
4.5.1 
All direct care workers are required to complete an orientation program given by the Agency 
before providing services to a consumer. 
4.5.2 
The orientation program shall include but not be limited to: 
(Break in Continuity Within Section) 

4.5.2.22 
Service Plan specific description; and 
(Break in Continuity Within Section) 

4.5.3 
All newly hired/contracted direct care workers must pass a competency test prior to providing care 
to consumers and annually thereafter. 
4.5.3.1 
The competency test must include questions addressing the competencies listed in 
Section 4.5.2. 
4.5.3.2 
It is the responsibility of the personal assistance services agency to ensure that direct care 
workers are proficient to carry out the care assigned in a safe, effective and efficient 
manner. 
4.5.44.5.3.2.1A Personal Assistance Services Agency that provides direct healthcare services to 
persons diagnosed as having Alzheimer’s disease or other forms of dementia shall 
provide dementia specific training to those healthcare providers who must participate 
in continuing education programs all direct care workers. The mandatory training must 
include: communicating with persons diagnosed as having Alzheimer’s disease or 
other forms of dementia; the psychological, social, and physical needs of those 
persons; and safety measures which need to be taken with those persons. This 
paragraph shall not apply to persons certified to practice medicine under the Medical 
Practice Act, Chapter 17 of Title 24 of the Delaware Code. 

5.0 
Consumer Care Management 
(Break in Continuity Within Section) 

5.4 
Scope of Services 
5.4.1 
Competent consumers who do not reside in a medical facility or a facility regulated pursuant to 16 
Del.C. Ch. 11 may delegate personal care services to direct care workers provided: 
5.4.1.1 
The nature of the service/task is not excluded by Del.C. law or other state or federal 
regulation. 
(Break in Continuity Within Section) 

5.4.2 
For consumers who are not able to delegate services/tasks due to impaired cognitive function, 
services/tasks shall be limited by the following: 
(Break in Continuity Within Section) 

5.4.2.2 Fingernail Nail Care 
(Break in Continuity Within Section) 

5.5 
Records and Reports 
5.5.1 
There shall be a separate record maintained at the personal assistance services agency for each 
consumer which shall contain: 
(Break in Continuity Within Section) 

5.5.1.9 
Signed disclosure form required by Regulation Section 5.1.3; and 
(Break in Continuity Within Section) 

5.5.3 
Activity logs shall be signed and dated by the direct care worker on the day that the service is 
rendered. 
5.5.4 
Copies of all activity logs shall be maintained at the residence of the consumer. 
5.5.5 
Original activity log notes must be incorporated into the consumer's record located at the Agency 
no less often than every 90 days. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

5.5.6 
All agency records shall be available at all times for review by authorized representatives of the 
Department and to legally authorized persons; otherwise consumer records shall be held 
confidential. The consent of the consumer or his representative if the consumer is incapable of 
making decisions shall be obtained before any personal information is released from his records 
as authorized by these regulations or Delaware law. 
(Break in Continuity Within Section) 

5.5.13 
The personal assistance services agency must ensure all consumer records are accurate and 
complete. 
(Break in Continuity Within Section) 

6.0 
Consumer Rights 
(Break in Continuity Within Section) 

6.3 
Each consumer shall have the right to: 
(Break in Continuity Within Section) 

6.3.8 
Be fully informed, at the time of admission into the program, of services and activities available 
and related charges, including the disclosure required by Regulation Section 5.1.3; and 
*Please Note: As the rest of the sections were not amended they are not being published. A copy of the 
regulation is available at: 

4469 Personal Assistance Services Agencies 

DEPARTMENT OF INSURANCE 

OFFICE OF THE COMMISSIONER 

Statutory Authority: 18 Delaware Code, Section 311 and Chapter 50 (18 Del.C. §311 & Ch. 50) 
18 DE Admin. Code 1801 

PUBLIC NOTICE 

1801 Registration of Insurance Holding Companies 

INSURANCE COMMISSIONER KAREN WELDIN STEWART hereby gives notice of proposed amended 
Department of Insurance Regulation 1801 relating to Registration of Insurance Holding Companies [Formerly 
Regulation 13]. The docket number for this proposed AMENDED regulation is 2969-2015. 

The proposed amended regulation is being submitted to maintain accreditation and replaces the current 
regulation with the updated National Association of Insurance Commissioners (NAIC) Model Insurance Holding 
Company System Model Regulation With Reporting Forms And Instruction, to support the Insurance Holding 
Company System Regulatory Act. The Delaware Code authority for the change is 18 Del.C. §311 and Ch. 50, and 
29 Del.C. Ch. 101. 

The Department of Insurance does not plan to hold a public hearing on the proposed amended regulation. The 
proposed amended regulation appears below and can also be viewed at the Delaware Insurance Commissioner's 
website at: 

www.delawareinsurance.gov/departments/documents/ProposedRegs/ProposedRegs.shtml 

Any person can file written comments, suggestions, briefs, and compilations of data or other materials 
concerning the proposed amendment. Any written submission in response to this notice and relevant to the 
proposed regulation must be received by the Department of Insurance no later than 4:30 p.m. EST, Tuesday, 
December 1, 2015. Any such requests should be directed to: 

Regulatory Specialist Rhonda West 

Delaware Department of Insurance 

841 Silver Lake Boulevard 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Dover, DE 19904 

Phone: (302) 674-7379 

Fax: (302) 739-5566 

Email: rhonda.west@state.de.us 

*Please Note: Due to the size of the proposed regulation, it is not being published here. A copy of the 
regulation is available at: 

1801 Registration of Insurance Holding Companies 

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL 
CONTROL 


DIVISION OF ENERGY AND CLIMATE 

Statutory Authority: 26 Delaware Code, Section 354(i) and (j) (26 Del.C. §354(i) & (j)) 

REGISTER NOTICE #2015-XX 

102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 

1. 
TITLE OF THE REGULATION: 
102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 

2. 
BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUE: 
The purpose of this action is to propose rules to govern how the Director of the Division of Energy & Climate 
(Director) and the Division of Energy & Climate (Division) administer their obligations under 26 Del.C. §354(i) & (j). 
The statute directs when and whether the Director may institute a freeze on the implementation of Delaware's 
Renewable Energy Portfolio Standards as provided for in 26 Del.C. §354(a). 

Start Action Notice 2012-03 initiating this rule making process was issued April 16, 2012. 

This proposed regulation replaces the regulation posted in the Register on October 1, 2015, which contained 
significant typographical errors. 

3. 
POSSIBLE TERMS OF THE AGENCY ACTION: 
None. 

4. 
STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 
26 Del.C. §354(i) & (j) 
5. 
LIST OF OTHER REGULATIONS THAT MAY BE IMPACTED OR AFFECTED BY THE PROPOSAL: 
N/A 

6. 
NOTICE OF PUBLIC COMMENT: 
The hearing record on 102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 
(Proposed Rules to Implement 26 Del.C. §354(i) & (j)) will open November 1, 2015 and will close December 8, 
2015 at 4:30 PM. 

Individuals may submit written comments regarding the proposed changes via e-mail to Lisa.Vest@state.de.us 
or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901 (302) 739-9042. 
However, any comments submitted in response to the regulation posted in the October 1, 2015 Register will be 
considered to be part of the record. 

The public hearing scheduled for November 3, 2015, starting at 6:00 p.m. in the DNREC Auditorium, 89 Kings 
Highway, Dover, DE 19901 has been cancelled and rescheduled for November 23, 2015 as noted below. 

A public hearing on the proposed amendment will be held on November 23, 2015 beginning at 6:00 p.m. in the 
Public Service Commission Hearing Room, 861 Silver Lake Blvd., Dover, DE, 19904. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

7. PREPARED BY: 
Thomas Noyes Thomas.Noyes@state.de.us (302) 735-3356 

Philip Cherry, Director 

102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 

1.0 Purpose 
These rules govern how the Director of the Division of Energy & Climate (Director) and the Division of Energy 
& Climate (Division) administer their obligations under 26 Del.C. §354(i) & (j). The statute directs when and 
whether the Director may institute a freeze on the implementation of the Renewable Energy Portfolio Standards as 
provided for in 26 Del.C. §354(a). 

2.0 Definitions 
For purposes of this regulation, the following words and phrases shall have the following meaning 


unless the context clearly indicates otherwise: 
"Alternative compliance payment" means a payment of a certain dollar amount per megawatt hour, 
which a Commission-Regulated Electric Company may submit in lieu of supplying the minimum 
percentage of RECs from Eligible Energy Resources required as defined and set by 26 Del.C. 
§§352(1) and 358(d). 


“Avoided system costs” means reductions in electric generation, transmission or distribution costs. 


“Commission-Regulated Electric Company" means the same as an Electric Distribution Company 
in 26 Del.C. §1001(12). 
"Compliance year" means the calendar year beginning with June 1 and ending with May 31 of the 


following year, for which a Commission-Regulated Electric Company must demonstrate that it has met 


the requirements of the subchapter known as the “Renewable Energy Portfolio Standards Act”. 
“Director” means the Director of the Division of Energy & Climate, who is considered the State Energy 
Coordinator for the purpose of these rules. 


“Division” means the Division of Energy & Climate, the successor agency to the Delaware Energy 


Office. 
“End-use customer” means a person or entity in Delaware that purchases electrical energy at retail 
prices from regulated electric utilities. 


“Exempt sales” means the retail customer sales of a Commission-Regulated Electric Company that is 


not included in the total retail sales for RPS compliance. 
“Externality benefits” means reductions in environmental, health and mortality costs resulting from 
reduced emissions. 


“Freeze” means suspension of enforcement or implementation of the annual increase in the RPS as 
provided for under 26 Del.C. §§352(3) & 354(a). 


“Green Energy Fund” means the grant program authorized under 29 Del.C. §8057. 
"Integrated Resource Plan" or "IRP" means the plan filed by the Commission-Regulated Electric 
Company to meet the requirements of 26 Del.C. §1007(c) & (d). 


“Non-exempt sales” means the retail customer sales of a Commission-Regulated Electric Company 


that is included in the total retail sales for RPS compliance. 
“PJM” or “PJM interconnection” means the regional transmission organization that coordinates the 
movement of wholesale electricity in the PJM region, or its successors at law. 


“Price suppression effects” means reductions in energy or capacity costs due to competitive 
pressures from renewable resources. 
“PSC” means the Delaware Public Service Commission. 


DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

“REC costs of compliance” means the total costs expended by the Commission-Regulated Electric 
Company to achieve the applicable RPS percentage standards for RECs during a respective 
compliance year. 

“REC percentage requirements” and “SREC percentage requirements” mean the renewable 

energy portfolio requirements for each compliance year as set forth in 26 Del.C. §354(a). 
“Renewable Energy Cost of Compliance” means the total costs expended by the Commission-
Regulated Electric Company to achieve the applicable RPS percentage standards for all renewable 
energy during a respective compliance year. 

“Renewable Energy Credit” or “REC” means a tradable instrument defined by 26 Del.C. §352(18) 

used to demonstrate compliance with the percentage requirements set forth in 26 Del.C. §354(a). 
“RPS” means the renewable portfolio standard, the minimum percentage of total electricity sales 
delivered to Delaware end-use customers that is derived from eligible energy resources established 
under 26 Del.C., §354. 

“Solar alternative compliance payment" means the payment of certain dollar amounts expended in 
lieu of supplying the minimum percentage from solar photovoltaics as defined and set by 26 Del.C. 
§§352(24) and 358(e). 

“Solar Renewable Energy Cost of Compliance” means the total costs expended by a Commission-
Regulated Electric Company to achieve the applicable RPS percentage standards for solar 
photovoltaic renewable energy during a respective compliance year. 

“Solar Renewable Energy Credit” or “SREC” means the tradable instrument defined by 26 Del.C. 
§352(25) used to demonstrate compliance with the percentage requirements set forth in 26 Del.C. 
§354(a). 

“Third party supplier” means an electricity supplier that sells power to end-use customers delivered 
over the distribution facilities of the Commission-Regulated Electric Company. It does not include the 
Commission-Regulated Electric Company, Rural Electric Cooperatives or Municipal Electric 
Companies. 

“Total Retail Costs of Electricity” means the total costs paid by customers of the Commission-
Regulated Electric Company for the supply, transmission, distribution and delivery of retail electricity to 
serve non-exempt customers, including those served by third party suppliers, during a respective 
compliance year. 

3.0 
Application 
3.1 
These rules shall apply only to a Commission-Regulated Electric Company. These rules shall not 
apply to electric supply provided by either: 
3.1.1 
an exempted municipal electric company or a municipal utility (as set forth in 26 Del.C. §363); or 
3.1.2 
an exempted rural electric cooperative or a rural electric cooperative (as set forth in 26 Del.C. 
§363). 
3.2 
These rules will be applied immediately upon enactment. 
4.0 
Calculation of the Cost of Compliance 
4.1 
The Division shall calculate the Renewable Energy Cost of Compliance, the Solar Renewable Energy 
Cost of Compliance and the Total Retail Cost of Electricity as follows. 
4.2 
The Division shall calculate the Renewable Energy Cost of Compliance for a particular compliance 
year to be: 
4.2.1 
the total of contributions to that portion of the Green Energy Fund used to support the 
development of renewable resources, plus 
4.2.2 
the cost of RECs and SRECs retired to satisfy the RPS requirement, plus 
4.2.3 
all Alternative Compliance Payments. 
4.3 
The Division shall calculate the Solar Renewable Energy Cost of Compliance for a particular 
compliance year to be: 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

4.3.1 the total of contributions to that portion of the Green Energy Fund used to support the 
development of photovoltaic renewable resources, plus 
4.3.2 the cost of SRECs retired to satisfy the RPS requirement, plus 
4.3.3 all Solar Alternative Compliance Payments for the solar photovoltaic requirement. 

4.4 
The Division will determine the Total Retail Costs of Electricity as all customer costs for non-exempt 
load customers for a particular compliance year. 
5.0 
Determination by the Director 
5.1 
The Director shall review the calculations of the Division. 
5.2 
If the Division calculations show that the Renewable Energy Cost of Compliance is greater than 3 
percent of the Total Retail Costs of Electricity for the compliance year, the Director shall, after 
consulting with the staff of the PSC, determine whether a freeze should be implemented. 
5.3 
If the Division calculations show that the Solar Renewable Energy Cost of Compliance is greater than 
1 percent of the Total Retail Costs of Electricity for the compliance year, the Director shall, after 
consulting with the staff of the PSC, determine whether a freeze should be implemented. 
5.4 
In making a determination, the Director may consider: 
5.4.1 
the overall energy market conditions; 
5.4.2 
the avoided cost benefits from the RPS; 
5.4.3 
the externality benefits due to the RPS; and 
5.4.4 
the economic impacts of the deployment of renewable energy in Delaware. 
5.5 
Overall market conditions may include shifts in energy prices, long term market trends, adjustments for 
short term fluctuations, changes in compliance costs, consumer benefits of other state energy policies 
such as the implementation of energy efficiency programs, and the overall cost of energy to 
consumers. 
5.6 
Avoided cost benefits from the RPS may include avoided system costs and price suppression effects 
attributable to the deployment of renewable energy that result in lower net electricity costs. 
5.7 
Externality benefits of changes in energy markets may include externality savings in health and 
mortality costs and environmental impacts due to policies promoting cleaner energy in Delaware and 
regional energy generation. To the extent possible, the externality savings should be consistent with 
the current IRP filed by the Commission-Regulated Electric Company, except where other published 
methods or studies are determined to be more appropriate. 
5.8 
Economic development benefits may include the overall economic activity attributed to jobs created by 
the development of renewable energy in Delaware. 
6.0 
Implementation 
If the Director determines that a freeze should be implemented under Section 5.0 above, the Director, 
in consultation with the staff of the PSC, will declare the freeze and notify the Commission-Regulated 
Electric Company that filed reports on RPS compliance. The Director will also publish notice of the 
freeze in the next appropriate issue of the Delaware Register of Regulations. 

7.0 
Lifting of a Freeze 
7.1 
If a freeze has been imposed, the Division will calculate compliance costs, using the methods 
described in Section 4.0 of this regulation. 
7.2 
The Director will review the calculation and determine whether to lift a freeze using the methods and 
criteria described in Section 5.0 of this regulation. 
7.3 
If the total cost of compliance falls below the 3 percent threshold in Section 5.2 of this regulation or 1 
percent threshold in Section 5.3 of this regulation, the Director shall lift a freeze following consultation 
with the staff of the PSC. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

7.4 If a freeze is lifted, the Director will promptly notify, electronically and by mail, the Commission-
Regulated Electric Company that filed reports on RPS compliance. The Director will also: 
7.4.1 
7.4.2 
provide prior notice of the lifting of the freeze to the PSC; and 
publish notice of the lifting of the freeze in the next appropriate issue of the Delaware Register of 
Regulations. 
8.0 Administration 
8.1 
8.2 
8.3 
8.4 
Within 90 days after the end of any compliance year, the Commission-Regulated Electric Company 
shall submit to the Division in writing and electronically the following information for the applicable 
compliance year: 
8.1.1 the Renewable Energy Cost of Compliance for that compliance year; 
8.1.2 the Solar Renewable Energy Cost of Compliance costs for that compliance year; and 
8.1.3 the Total Retail Costs of Electricity for that compliance year. 
Within 30 days from receipt of the information described in Section 8.1 of this regulation from the 
Commission-Regulated Electric Company, the Division shall calculate the cost of compliance as 
described in Section 4.0 of this regulation and present the results to the Director. 
Within 30 days of receipt of the calculations of the cost of compliance from the Division, the Director 
will, after receipt of the calculations, make a determination as described in Section 5.0 of this 
regulation and present to the Registrar for publication. 
The public will have 15 business days from the publication of the Director’s determination to offer 
comment. The Director may alter or amend the determination based on review of the public 
comments. 
8.5 The Director shall make a final determination, including effective date, and provide public notice and 
notify electronically and by mail the PSC, the Commission-Regulated Electric Company, and other 
interested parties within 15 business days of the close of public comments. 
9.0 Existing Contracts 
In implementing a freeze under these rules, existing contracts for the production or delivery of RECs, 
SRECs, renewable energy supply or other environmental attributes shall not be abrogated. 

DIVISION OF FISH AND WILDLIFE 

Statutory Authority: 7 Delaware Code, Sections 901(c & d) and 903(e)(3) (7 Del.C. §§901(c & d) 
& 903(e)(3) 

REGISTER NOTICE #2015 - 03 

3500 Tidal Finfish 

3542 Tilefish 

1. TITLE OF THE REGULATION: 
3542 Tilefish 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUE: 
The Department of Natural Resources & Environmental Control (DNREC) initiated the development of regulations 
pertaining to Tilefish at the request of the Mid-Atlantic Fishery Management Council (MAFMC) and based on guidance 
from Delaware’s Advisory Council on Tidal Finfisheries. Two management options were presented to the public in 
proposed form (18 DE Reg. 951 (06/01/15)) and a public hearing on the matter was held June 24, 2015 at 6:00 PM in 
the DNREC Auditorium, Dover, DE. Both management options included a commercial trip limit of 300 pounds and a 
recreational possession limit of no more than seven fish per person; however, one option limited the new regulation to 
Blueline Tilefish (Caulolatilus microps) and one option applied the regulation more broadly (as in Maryland and 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

Virginia) to include both Blueline and Golden Tilefish (Lopholatilus chamaelonticeps). The hearing record was closed 
on July 9, 2015. Following careful consideration of the hearing record, the Department has opted to adopt a Tilefish 
regulation that affords protections to both Blueline Tilefish and Golden Tilefish (Option 2). Additionally, to provide 
greater understanding to the regulated community, the Department proposes to clarify that the term “possess” pertains 
to individuals “aboard a vessel”. 

3. 
POSSIBLE TERMS OF THE AGENCY ACTION: 
None. 

4. 
STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 
§901(c & d), §903(e) (3), Title 7 Delaware Code 
5. 
LIST OF OTHER REGULATIONS THAT MAY BE IMPACTED OR AFFECTED BY THE PROPOSAL: 
N/A 

6. 
NOTICE OF PUBLIC COMMENT: 
No additional hearing will be held; the Department will receive written comment through November 30, 2015. 
Individuals may submit written comments regarding the proposed clarification to 7 DE Admin. Code 3542 via email 
to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, 
DE 19901 (302) 739-9042. 

7. 
PREPARED BY: 
Stewart Michels Stewart.Michels@state.de.us (302) 739-9914 

3542 Tilefish 

1.0 
Tilefish possession limits 
1.1 
It is unlawful for a recreational finfisherman to possess aboard a vessel more than seven (7) tilefish in 
aggregate to include blueline tilefish (Caulolatilus microps) or golden tilefish (Lopholatilus 
chamaelonticeps), unless otherwise authorized by the Department. 
1.2 
Notwithstanding the provisions of subsection 1.1, a person issued a valid commercial food fishing 
license may possess aboard a vessel up to 300 pounds of tilefish in aggregate to include blueline 
tilefish (Caulolatilus microps) or golden tilefish (Lopholatilus chamaelonticeps) in any number, provided 
said tilefish were taken using gear for which said person is lawfully permitted under 7 Del.C. §915. 
1.3 
It is unlawful for a person issued a valid commercial food fishing license to possess aboard a vessel 
more than 300 pounds of tilefish in aggregate to include blueline tilefish (Caulolatilus microps) or 
golden tilefish (Lopholatilus chamaelonticeps). 
DIVISION OF WASTE AND HAZARDOUS SUBSTANCES 

TANK MANAGEMENT BRANCH 
Statutory Authority: 7 Delaware Code, Chapters 60 and 74 (7 Del.C. Ch. 60 & 74) 
7 DE Admin. Code 1351 


REGISTER NOTICE: SAN #2015-04 

1351 Underground Storage Tank Systems 

1. 
TITLE OF THE REGULATIONS: 
Administrative Code Section 1351, Underground Storage Tank Regulations 

2. 
BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES: 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

DNREC is taking action to clarify several issues concerning cleanup liability associated with releases from 
underground storage tanks resulting from the amendment of 7 Delaware Code Chapter 74, Delaware’s 
Underground Storage Tank Act in October 2014. These changes clarify when the Department will require a 
responsible party to perform additional corrective actions following the Department issuing a No Further Action 
letter. Also, the changes establish an All Appropriate Inquiry Standard for residential properties that if completed 
would exempt a purchaser from liability associated with the cleanup of a release from an underground storage tank 
discovered after they purchased the property. 

3. POSSIBLE TERMS OF THE AGENCY ACTION: 
There is not a sunset date related to the proposed regulations. 

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 
The statutory basis for these regulations is Title 7 Delaware Code Chapter 74, Section 7407. 

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL: 
None 

6. NOTICE OF PUBLIC COMMENT: 
The hearing record on the proposed amendments to 7 DE Admin. Code §1351 Underground Storage Tank 
Regulations will be open November 1, 2015. Individuals may submit written comments regarding the proposed 
changes via e-mail to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings 
Highway, Dover, DE 19901 (302) 739-9042. A public hearing on the proposed amendments will be held on 
December 1, 2015 beginning at 6:00 PM in the DNREC New Castle Office, located at 391 Lukens Drive, New 
Castle DE 19720. 

PREPARED BY: 

Alex Rittberg, 302-395-2500 

Email: Alex.Rittberg@state.de.us 

EAR 2015-26 

1351 Underground Storage Tank Systems 

(Break in Continuity of Sections) 

PART E: Requirements for Reporting, Release Investigation, Remedial Action and NO FURTHER ACTION 
DETERMINATIONS For Underground Storage Tank Systems 

(Break in Continuity of Sections) 

6.0 
No Further Action Requirements 
(Break in Continuity Within Section) 

6.2 
Department Response to a Request for No Further Action 
6.2.1 
The DNREC Tank Management Branch Section shall issue a letter requiring no further action 
(NFA letter) and documenting that site cleanup objectives have been met. The no further action 
approval issuance of the NFA letter does not absolve the Responsible Parties from previously 
incurred or potential future liability. 
6.2.2 
The no further action NFA letter applies to site conditions at the time that the request for no further 
action was made. If the risk posed by the site changes in the future, including but not limited to 
land use changes at the site or surrounding area, the Responsible Parties shall perform additional 
Remedial Action as necessary to eliminate the risk to human health, safety and the environment. 
Except as discussed in 6.2.3, once the Department has issued a NFA letter associated with a 
release, the Department shall not require Responsible Parties to perform additional corrective 
actions associated with the release unless site conditions, including but not limited to the current or 
future land use, change or there is new information that the release poses an unacceptable risk to 
human health, safety, and the environment. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

6.2.3 
The Department shall not require Responsible Parties to perform additional corrective actions 
associated with an underground storage tank (UST) system when all of the following conditions 
have been met: (1) the Department has issued any type of NFA letter, either with conditions for 
future management or without conditions for future management after the removal or closure in 
place of the UST System, (2) the UST system was located on a residential property, (3) the 
underground storage tank associated with the UST system contained heating fuel used for 
Consumptive Use On the Premises. 
6.2.34 Any Person disturbing any residual contamination at the site by digging, boring, excavating, 
dewatering, or other means, shall submit a contaminated material management plan to the 
Department for approval prior to work commencing and shall be financially responsible for 
implementing it. 
7.0 
All Appropriate Inquiry 
When residential property is purchased by an individual, individuals, or a nonprofit agency as defined 
by the Internal Revenue Service or State law, a title search and a visual inspection by the purchaser or 
his or her agent that is intended to locate evidence of a UST system on the property shall constitute all 
appropriate inquiry pursuant to 7 Del.C. Chapter 74, Section 7406e(2)(b). 

*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 

regulation is available at: 
1351 Underground Storage Tank Systems 

DEPARTMENT OF SAFETY AND HOMELAND SECURITY 

DIVISION OF STATE POLICE 

2400 BOARD OF EXAMINERS OF CONSTABLES 
Statutory Authority: 10 Delaware Code, Chapter 27 (10 Del.C. Ch. 27) 
24 DE Admin. Code 2400 


PUBLIC NOTICE 

2400 Board of Examiners of Constables 

Notice is hereby given that the Board of Examiners of Constables, in accordance with 10 Del.C. Ch. 27 
proposes to amend/adopt Rules: 4.0 – Badges & Vehicle Markings – requires all badges and vehicle markings to 
be approved by the Board; and 9.0 – Minimum Training Standards & In-Service Training – clarifies the 
requirements for the training standards and continuing education through in-service. If you wish to view these 
amendments/adoptions, contact Ms. Peggy Anderson at 302-672-5304. Any persons wishing to present views may 
submit them in writing, by December 1, 2015, to Delaware State Police, Professional Licensing, P.O. Box 430, 
Dover, DE 19903. The Board will hold the annual meeting on Thursday, December 10, 2015, Tatnall Building, 150 
Martin L. King, Jr. Boulevard South, Room 112, Dover, DE. 

2400 Board of Examiners of Constables 

(Break in Continuity of Sections) 

4.0 
Reserved Badges and Vehicle Markings 
4.1 
All persons licensed under 10 Del.C. Ch. 27 shall wear or display any uniform, patch, badge, seal, 
vehicle and the markings, letterhead, business card, advertisement, or other form of publication unless 
first approved by the Board of Examiners. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

4.2 
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. 
4.3 
No such items will be approved by the Board if the item will mislead the public by confusing the 
licensee and/or his/her employees with official law enforcement agencies and/or personnel. 
4.4 
All persons licensed under 10 Del.C. Ch. 27 shall wear or display their assigned badge visibly on the 
outermost garment. 
4.5 
Vehicle Identification 
4.5.1 
No vehicle utilized for purposes covered by 10 Del.C. Ch. 27 shall have an appearance that 
creates a reasonable likelihood of confusion with a police vehicle used by the Delaware State 
Police or a law enforcement agency of any state or governmental subdivision. The Board of 
Examiners shall have discretion to review the appearance of vehicles, and to make comparisons 
with known law enforcement vehicles, in order to enforce this Rule. 
4.5.2 
In the event that a vehicle is not approved by the Board of Examiners pursuant to Rule 4.0, the 
Board may indicate what changes to the vehicle appearance would be sufficient to satisfy the 
standards and criteria set forth above. 
4.5.3 
Auxiliary lights on vehicles, used for patrol, shall be amber and/or clear only. Use of sirens is 
prohibited. 
(Break in Continuity of Sections) 

9.0 
Minimum Training Standards and In-Service Training 
9.1 
The Constable Academy, administered through Delaware Technical Community College (DTCC) 
Workforce Development and Community Education (WDCE), shall instruct applicants in the minimum 
training standards established by the Board. The Academy shall be a minimum of 180.5 hours and 
include, but is not limited to the following courses: 
Introduction to law enforcement and constables; constitution and bill of rights; other police 
agencies/fire departments/ambulance jurisdictions; basic defensive driving; traffic investigations; 
criminal investigations; sex crimes; criminal code; handling person with disabilities; interventions 
with people suffering with mental health and substance abuse; civil disobedience; labor disputes 
(crowd control); active shooter; courtroom procedure and demeanor; cultural diversity and 
community relations; domestic violence; basic first aid; CPR; AED; NIMS 700; ICS 100; 
information systems – communications, report writing, DELJIS; interview/interrogation techniques; 
manual traffic control; juvenile procedures; laws of evidence and search and seizure; laws of 
arrest; police communication and crisis intervention; police discipline and ethics; baton/nightstick/ 
pr24/chemical spray/handcuffing; officer survival/defensive techniques; patrol procedures; drug 

identification and controlled substances; canine; and 4th amendment. 

9.2 
Applicants attending the Academy must take and pass the test with a minimum score of 75%. Any 
failed test may be taken again within two weeks of the first test. A second failed test will require the 
applicant to take the Academy again. 
9.3 
In-service training shall be every year. Odd years will be eight hours of classroom training through 
DTCC/WDCE. Even years will be done by completing an on-line modular and test through DTCC/ 
WDCE. 
9.3.1 
All in-service training courses must be approved by the Board. 
9.3.2 
Failure to complete the in-service training every year shall be grounds for suspension or 
revocation of a current commission. Any commissioned individual not obtaining the in-service 
training for a given year by the last class offered shall be placed on emergency suspension 
immediately. Any training missed, or not completed, by a commissioned individual must be 
completed before the emergency suspension may be administratively lifted. On-line training must 
be made up on-line and classroom instruction must be made up in person in the classroom. 
Notwithstanding the foregoing, the Board may consider extenuating circumstances for 
reinstatement at its discretion. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


PROPOSED REGULATIONS 

9.3.3 
Any in-service training test must be passed with a minimum score of 75%. Any failed test may be 
taken again within two weeks of the first test. A second failed test will require the individual to take 
the training again. 
*Please Note: As the rest of the sections were not amended they are not being published. A copy of the 
regulation is available at: 

2400 Board of Examiners of Constables 

OFFICE OF THE ALCOHOLIC BEVERAGE CONTROL COMMISSIONER 

Statutory Authority: 4 Delaware Code, Section 304(a) (4 Del.C. §304(a)) 
4 DE Admin. Code 

PUBLIC NOTICE 

Alcoholic Beverage Control Regulations 

A. Type of Regulatory Action Required 
Amendments to Existing Regulations 

B. Synopsis of Subject Matter of the Regulation 
The Office of the Alcoholic Beverage Control Commissioner intends to amend Title 4 of the Delaware 
Administrative Code by revising the existing regulations to reflect the current regulatory environment. These 
amendments will update the regulations to control the manner of the sale of alcoholic beverages to protect the 
public safety and insure that the sales are in the best interest of the public. 

These proposed amendments were previously published in September 2014 and have not been changed 
since that date. Any comments regarding the previously proposed amendments made: 

a) at the hearings, 

b) in writing with delivery to this Office, and 

c) electronically sent to this Office 

will be considered and there is no necessity of repeating these comments. 

Should you desire to make additional comments, written comments will be accepted until close of business on 
December 2, 2015. Written comments should be submitted to Lauren Shinault, Regulation Review, Office of the 
Alcoholic Beverage Control Commissioner, Carvel Building 3rd Floor, 820 N. French Street, Wilmington, Delaware 
19801 or electronically to OABCCrulescomments@state.de.us. A copy of these regulations may be viewed at the 
above address. 

* Please Note: Due to the size and extent of the revisions they are not printed here. A PDF version is 
available at the following link: 
Alcoholic Beverage Control Regulations 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

Symbol Key 

Arial 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 bold 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 HEALTH AND SOCIAL SERVICES 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, Section 2906(b) (16 Del.C. §2906(b)) 
16 DE Admin. Code 4452 

ORDER 

4452 Clean Indoor Air Act 

NATURE OF THE PROCEEDINGS: 

Delaware Health and Social Services ("DHSS") initiated proceedings to adopt the State of Delaware Clean 
Indoor Air Act (4452). The DHSS proceedings to adopt regulations were initiated pursuant to 29 Del.C. Chapter 
101 and authority as prescribed by 16 Del.C. §2906(c). 

On September 1, 2015 (Volume 19, Issue 3), DHSS published in the Delaware Register of Regulations its 
notice of proposed regulations, pursuant to 29 Del.C. §10115. It requested that written materials and suggestions 
from the public concerning the proposed regulations be delivered to DHSS by October 9, 2015, or be presented at 
a public hearing on September 30, 2015, after which time the DHSS would review information, factual evidence 
and public comment to the said proposed regulations. 

Written comments were received during the public comment period and evaluated. The results of that 
evaluation are summarized in the accompanying "Summary of Evidence." 

SUMMARY OF EVIDENCE 

In accordance with Delaware Law, public notices regarding proposed Department of Health and Social 
Services (DHSS) State of Delaware Clean Indoor Air Act (4452) were published in the Delaware State News, the 
News Journal and the Delaware Register of Regulations. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

Comments from Jeanne Chiquoine, Delaware Government Relations Director, ACS CAN: 

The American Cancer Society Cancer Action Network (ACS CAN) would like to provide the following testimony 
on the proposed regulations (16 DE Admin. Code, Section 4522) adding electronic smoking devices to the Clean 
Indoor Air Act. First as Delawareans we should all be proud that our Clean Indoor Air Act passed in 2003 was one 
of the first such laws in the country and to this day it remains one of the nation's most comprehensive in protecting 
citizens from the harms of secondhand smoke exposure. It is critical as a state we maintain our leadership role by 
making sure that our laws keep pace in language and in action to protect the health of our citizens. 

The use of electronic cigarettes, or e-cigarettes, should be prohibited in all workplaces, restaurants, bars, and 
casinos to protect against secondhand exposure to nicotine and other potentially harmful chemicals, to ensure the 
enforcement of the existing smoke-free law is not compromised, and the public health benefits of smoke-free laws 
are not undermined. 

A growing number of studies have examined the contents of e-cigarette aerosol. Unlike a vapor, an aerosol 
contains fine particles of liquid, solid, or both. Propylene glycol, nicotine, and flavorings were most commonly found 
in e-cigarette aerosol. Other studies have found the aerosol to contain heavy metals, volatile organic compounds 
and tobacco-specific nitrosamines, among other potentially harmful chemicals. A 2009 study done by the FDA 
found cancer-causing substances in several of the e-cigarette samples tested. Additionally, Food and Drug 
Administration (FDA) tests found nicotine in some e-cigarettes that claimed to contain no nicotine. 

There are serious questions about the safety of inhaling the substances in e-cigarette aerosol. Studies have 
shown that the use of e-cigarettes can cause short-term lung changes and irritations. Preliminary studies indicate 
nonusers can be exposed to the same potentially harmful chemicals as users, including nicotine, ultrafine particles, 
heavy metals and volatile organic compounds. 

The use of e-cigarettes in workplaces, restaurants, bars, and casinos can undermine the public health benefits 
that have been and continue to be achieved by smoke-free laws. Because some e-cigarettes are designed to look 
like cigarettes and cigars, their indoor use may renormalize smoking, encourage kids to try them and make it more 
difficult for adults to quit or maintain their nonsmoking status. Additionally, from a practical standpoint, business 
owners can face difficulty and confusion when enforcing smoke-free laws if e-cigarette use is permitted. Some e-
cigarette manufacturers even specifically market their products for use in places where smoking is prohibited. 

We applaud the General Assembly's action to include electronic smoking devices in our Clean Indoor Air Act 
and we encourage the members of this committee to endorse their language which protects everyone's right to 
breathe clean indoor air, free from the unknown chemicals in e-cigarette aerosol. 
Program Response: 

The Division of Public Health thanks you for the support of the proposed revisions to the regulations. 

Comments from the American Lung Association: 

ALA supports the proposed regulations DE Admin Code 16, 4452 Clean Indoor Air Act. At the same time, ALA 
remains concerned that the absence of a disclosure of the contents of the material used for smoking with e-
cigarettes is a risk to individuals who are using the e-cigarette as a part of their cessation effort. Earlier research 
into the content of that material suggests it may contain high levels of nicotine with its highly addictive effect. With 
increasing adolescent utilization of e-cigarettes this is particularly concerning. When FDA actions in help 
consumers identify the content of the materials used to smoke e-cigarettes, the ALA encourages the DPH to 
review the appropriate restrictions on use of e-cigarettes beyond inclusion in the Clean Indoor Air Act. 

Thank you for receiving this information and we look forward to our continued work with the Div of Public 
Health that shares our mission to protect lung health of all Delawareans. 
Program Response: 

The Division of Public Health thanks you for the support of the proposed revisions to the regulations. DPH will 
continue to review FDA actions related to e-cigarettes and consider appropriate revisions to these regulations. 

The public comment period was open from September 1, 2015 through October 9, 2015. Two parties provided 
comments on the regulations, which did not result in changes to the regulations. 

Verifying documents are attached to the Hearing Officer's record. The regulation has been approved by the 
Delaware Attorney General's office and the Cabinet Secretary of DHSS. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

FINDINGS OF FACT: 

No changes were made to the proposed regulations based on the comments received. The Department finds 
that the proposed regulations, as set forth in the attached copy should be adopted in the best interest of the 
general public of the State of Delaware. 

THEREFORE, IT IS ORDERED, that the proposed State of Delaware Clean Indoor Air Act (4452) is adopted 
and shall become effective December 1, 2015, after publication of the final regulation in the Delaware Register of 
Regulations. 

Rita M. Landgraf, Secretary 

*Please note that no changes were made to the regulation as originally proposed and published in the 
September 2015 issue of the Register at page 169 (19 DE Reg. 169). Therefore, the final regulation is not 
being republished. A copy of the final regulation is available at: 

4452 Clean Indoor Air Act 

DIVISION OF PUBLIC HEALTH 

Statutory Authority: 16 Delaware Code, Chapter 49A (16 Del.C., Ch. 49A) 
16 DE Admin. Code 4470 

ORDER 

4470 State of Delaware Medical Marijuana Code 

NATURE OF THE PROCEEDINGS: 

Delaware Health and Social Services ("DHSS") initiated proceedings to adopt the State of Delaware Medical 
Marijuana Code (4470). The DHSS proceedings to adopt regulations were initiated pursuant to 29 Del.C. Chapter 
101 and authority as prescribed by 16 Del.C. §4923A. 

On August 1, 2015 (Volume 19, Issue 2), DHSS published in the Delaware Register of Regulations its notice of 
proposed regulations, pursuant to 29 Del.C. §10115. It requested that written materials and suggestions from the 
public concerning the proposed regulations be delivered to DHSS by September 8, 2015, or be presented at a 
public hearing on August 27, 2015, after which time the DHSS would review information, factual evidence and 
public comment to the said proposed regulations. 

Written comments were received during the public comment period and evaluated. The results of that 
evaluation are summarized in the accompanying "Summary of Evidence." 

On July 20, 2015, the DHSS, in accordance with Section 6.0 of the Delaware Medical Marijuana Code, posted 
a petition to add autism with aggressive or self-injurious behavior to the list of qualifying conditions under which 
individuals could apply for registration with the program. Comments on the petition were accepted from July 20, 
2015 through October 5, 2015, with a public meeting on the petition held on August 27, 2015. 

SUMMARY OF EVIDENCE 

In accordance with Delaware Law, public notices regarding proposed Department of Health and Social 
Services (DHSS) State of Delaware Medical Marijuana Code revisions were published in the Delaware State 
News, the News Journal and the Delaware Register of Regulations. 

Comments on the proposed revisions to the Medical Marijuana code, excluding the addition of Autism with 
Aggressive or Self-Injurious behavior which is addressed below, were received from the Governor's Advisory 
Council for Exceptional Citizen's and the State Council for Persons With Disabilities. As the comments from both 
agencies were similar in scope and nature, they are addressed concurrently in this summary of evidence. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

Comments on Revisions to Medical Marijuana Code 
Comment: 

First, it would be preferable to permit an adult with a qualifying condition to receive marijuana oil as juxtaposed 
to traditional dried-plant-based marijuana. The regulation ostensibly disallows adults from acquiring marijuana oil. 
See §7.2.8.3.1.4. Indeed, it is defined as "Pediatric Medical Marijuana Oil". Consider the following: 

A. Ingesting an oil would not have the adverse lung effects of smoking marijuana. 
B. A minor turning 18 for whom the oil is effective must categorically stop using the oil. See §5.3.8. It is 
difficult to imagine that the efficacy of the oil would change on someone’s birthday. 
C. The May 14, 2015 article suggests that other states allow adults access to the oil-based marijuana: 
Fourteen states have approved cannabis oil for the treatment of epilepsy and other serious conditions. The list 
includes Virginia, where lawmakers earlier this year passed legislation allowing residents, including children, to use 
marijuana oils to treat seizures. 
D. The synopsis to S.B. 90 posits that age of the user should be immaterial: These oils don't have enough 
"active ingredient" to get someone high. Therefore, there is no reason whatsoever not to allow its use for treatment 
of these conditions, no matter what the age of the person needing its help. 
E. The text of S.B. 90 does not limit access to marijuana oils to minors. The definition of "usable 
marijuana" is amended to include "marijuana oil" and adults are eligible to receive "usable marijuana". 
MMP Response: 

The use of Medical Marijuana Oils has always been in place for adults. The changes driven by SB-90 were to 
make oils available to patients under the age of 18 years. The pediatric medical marijuana oils are limited in their 
formulization in as much as they cannot contain greater than seven percent tetrahydrocannabinol. If an adult 
wishes to use CBD or THC-A Oils, even at the pediatric formulas, they can purchase them from the Compassion 
Center. 

2.0 Definitions 
"Medical marijuana oil" means a resinous matrix of cannabinoids obtained from the Cannabis plant by 
solvent extraction, formed into oil. 

"Pediatric Medical marijuana oil" means: 

a. "Cannabidiol oil" which is a processed Cannabis plant extract that contains at least 15 percent 
cannabidiol but no more than seven percent tetrahydrocannabinol, or a dilution of the resin of the Cannabis plant 
that contains at least 50 milligrams of cannabidiol per milliliter but not more than seven percent 
tetrahydrocannabinol; and 
b. "THC-A oil" which is a processed Cannabis plant extract that contains at least 15 percent 
tetrahydrocannabinol acid but not more than seven percent tetrahydrocannabinol, or a dilution of the resin of the 
Cannabis plant that contains at least 50 milligrams of tetrahydrocannabinol acid per milliliter but not more than 
seven percent tetrahydrocannabinol; and 
c. any change in the oil formulation which is made by the Department based upon the recommendation 
of the advisory council Medical Marijuana Act Oversight Committee" 
Comment: 

Second, it is unclear how much marijuana oil can be dispensed (to a child or adult). Section 7.2.8.3.1.2 limits 
dispensing to no more than three ounces of usable marijuana during a 14 day period. Three ounces of a liquid oil 
may be quite different than three ounces of a dried plant product. The Division may wish to assess whether the 
three-oz. cap should apply to oils. Also, Council suggests allowing prescribing entities to determine the amount and 
timeframes for dispensation rather than the regulations. 
MMP Response: 

All medical marijuana products are counted in grams and ounces. Oils contain 15 milligrams of cannabinoids 
per ML - A patient purchasing medical marijuana oils or pediatric medical marijuana oils would buy it in either 3ML 
or 5ML syringes - so the active ingredient is expressed in mgs for purchase limit calculations. As to the comment 
on prescribing practices, modification of the prescription allowances for medical marijuana is outside the scope of 
the proposed revisions to the regulations. Changes to that aspect of the program would require legislative action to 
revise the authorizing statute, Title 16 Chapter 49a. 

Comment: 

Third, the definition of "Responsible Party", second sentence, merits correction for grammar. There is a plural 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

pronoun ("their") with a singular antecedent ("Party"). Consider substituting "Responsible Party's" for "their". 

MMP Response: 

Thank you for your comment; we will modify the definition to read as below. 

"Responsible Party" means the parent or legal guardian with responsibility and decision-making capability for a 
qualifying patient or applicant. The Responsible Party will have primary responsibility for purchase, handling and 
dispensing of the medical marijuana products for the person under their the Responsible Party's charge. 

Comment: 

Fourth, an adult with a qualifying condition for whom a guardian has been appointed could participate in the 
program with the guardian serving as the "Responsible Party". However, §3.3.3 categorically presumes that 
anyone with a guardian will be a minor. Thus, only pediatric physicians are authorized to certify eligibility. The 
requirement that a pediatric physician certify the eligibility of an adult with a guardian should be corrected. Note 
that the reference to pediatric physicians in §3.3.3 may be redundant anyway given the definition of "Physician". 
MMP Response: 

Thank you for your comment; we will modify the sentence to read as below. 

3.3.3 If the patient is under the age of 18, the The physician must be a pediatric neurologist, pediatric 
gastroenterologist, pediatric oncologist or pediatric palliative care specialist and certify that… 
Comment: 

Fifth, §3.3.3.2 should be reviewed. Since there is a plural pronoun ("they") with a singular antecedent 
("patient"), consider substituting "the patient has" for "they have". Moreover, the term "seizures" should be inserted 
after "nausea;". Compare S.B. No. 90, §4902A(3)b. There could be seizures without "painful and persistent muscle 
spasms". 
MMP Response: 

Thank you for your comment; we will modify the sentence to read as below. 

3.3.3.2.The qualifying patient has a chronic or debilitating disease or medical condition where the patient 
has they have failed treatment involving 1 or more of the following symptoms: cachexia or wasting syndrome; 
intractable nausea; seizures; severe, painful and persistent muscle spasms. 

Comment: 

Sixth, the grammar in §3.3.5 should be corrected. Substitute "Parties" for "Party's". 

MMP Response: 

Thank you for your comment; we will modify the sentence to read as below. 

3.3.5 Responsible Party's Parties for qualifying patients under the age of 18 will be issued an identification 
card with the same 10-digit alphanumeric identifier provided on the patient card issued to patient under their 
charge, 
Comment: 

Seventh, the grammar in §5.3.8, first sentence, should be corrected. Consider the following substitute: "When 
a registered qualifying pediatric patient passes their 18"' birthday attains 18 years of age, the patient may...." 
MMP Response: 

Thank you for your comment; we will modify the sentence to read as below. 

5.3.8 When a registered qualifying pediatric patient passes their 18th birthday, they attains 18 years of age, 
the patient may request a new patient card releasing them from the pediatric restrictions. The new patient ID Card 
will be issued at the card replacement cost $20 and maintain the original expiration date. 
Comment: 

Eighth, §7.2.6 adopts more flexible standards for the maximum inventory of marijuana that can be maintained 
by a compassion center. This change is consistent with a recommendation in the attached article, M. Lally, "What's 
in Store for Delaware's First Medical Cannabis Dispensary" at p. 23: 

In addition, Delaware law prohibits a registered compassion center from having more than 150 marijuana 
plants, irrespective of the stage of grow, or from possessing more than 1,500 ounces of usable marijuana, 
regardless of formulation. These restrictions may adversely impact the ability of registered dispensaries to produce 
enough medicine. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

Adopting a more flexible standard is ostensibly a prudent amendment. 

MMP Response: 

Thank you for your comment. 

Comment: 

Ninth, instead of having a limit on the amount of medical marijuana determined by regulation (which is not 
individualized) it should be treated like other drugs and DPH should consider allowing physicians the ability to 
prescribe the amount and periodicity of medical marijuana administration. 
MMP Response: 

Thank you for your comment; modification of the prescription allowances for medical marijuana is outside the 
scope of the proposed revisions to the regulations. Changes to that aspect of the program would require legislative 
action to revise the authorizing statute, Title 16 Chapter 49a. 

Comments on the Petition to Add a Qualifying Condition - Autism with Aggressive or Self-Injurious 
Behavior 
Comments from Ms. Humphreys: 

I'm just here to represent my petition in memory of my son Scott, who passed away on June 20th of this year, 
and I feel that it's beneficial or hopefully will be beneficial to other people with this debilitating condition. Scott, we 
had tried over 20 different medications with him, and nothing worked, and his life was always a struggle, and I think 
with -- I wanted the opportunity for him to try medical marijuana. Of the things that I had heard about it, in 
considering the side effects of some of the psychotropic medications that he had been on that -- devastating, could 
have lasting effects, it certainly seemed worth pursuing a natural course of treatment for Scott. And I had the 
support of his doctors for doing this. Unfortunately, like I said, Scott will never have the opportunity, but I'm hoping 
that there are other parents and guardians out there that will want to do this for their son or daughter or guardian. 
MMP Response: 

Thank you for your comments. 

Comments from Brandon Kalbfleisch: 

My name is Brandon Kalbfleisch. I basically was born in Newark, Delaware. I'm hear to absolutely support the 
petition. I moved out to Colorado and I basically got to see firsthand what medical marijuana can do for so many 
different ailments and so many different people and truly believe it can help people with autism and people with 
chronic disease and debilitating diseases. It basically helps brings new perspective into people's lives and can give 
them at least a chance to heal. I'm here to support that, and I truly have read over the petition and I believe in its -I 
hope it will help so many people to come. Thank you for letting me come and comment. 
MMP Response: 

Thank you for your comments. 

Comments from Carol A. Donahue: 

My name is Carol A. Donahue. I'm mother and guardian for my son, Thomas Donahue, and he's age 46 years 
old. He is a resident of Delaware and he resides in a group home. Do you need the address? Group home which is 
run by Chimes Delaware. My son is --he has hyperactivity and he's also -- he has pica and he's a walk-away/runaway. 
He needs one-on-one supervision. And his behaviors are cyclical. At times he will be calm, but at other times 
he's just so agitated and hyperactive. He can tire in front of me. He walks almost all of the day. His activity is 
walking. But when his behavior gets out of control, he will be throwing things and knocking things, not really aware 
of his surroundings as far as bumping into things. He will just walk into anything in the way, he just bumps into 
them. I don't know if -- he does not take medications to alter his behavior. He does take like a sedative, tranquilizer 
Lorazepam, to somewhat quiet him, but it's basically when he has a high activity and hyperactivity and irrational 
behavior, it doesn't do anything. In the past when we did try antipsychiatric medication at one time in his life when 
he was younger, all that did was it made him aphasic and subject to fall, behaviors continue. So nothing really, 
really helps. And I don't know if at some time I might be pressed that he be prescribed medical marijuana to help 
quiet him if the cyclical behaviors continue over a long period of time, just for his own safety and also the safety of 
the staff who monitor his safety and behaviors, his daily needs. And when he's real excitable, like doing his daily 
showering and daily activities, he -- it's just difficult to handle. I don't know if it's something -- that it's a natural 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

substance and it might be better than the chemicals that are out there. I have to rely on his reaction to taking any 
medications or foods or anything because he does not speak to let me know how he feels. It's mostly facial 
expressions or his --like his behavior on trying something new. 

MMP Response: 

Thank you for your comments. 

The public comment period for the regulatory revisions was open from August 1, 2015 through September 5, 
2015. The comment period for the Petition to Add a Qualifying Condition was open from July 20, 2015 through 
October 9, 2015. Comments received on these proposals did not result in substantive changes. 

Verifying documents are attached to the Hearing Officer's record. The regulation has been approved by the 
Delaware Attorney General's office and the Cabinet Secretary of DHSS. 

FINDINGS OF FACT: 

Changes made to the regulations based on the comments received are detailed in the summary of evidence. 
The Department finds that the proposed regulations, as set forth in the attached copy should be adopted in the best 
interest of the general public of the State of Delaware. 

THEREFORE, IT IS ORDERED, that the proposed State of Delaware Medical Marijuana Code 4470 is 
adopted and shall become effective November 11, 2015, after publication of the final regulation in the Delaware 
Register of Regulations. 

Rita M. Landgraf, Secretary 

4470 State of Delaware Medical Marijuana Code 

(Break in Continuity of Sections) 

2.0 
Definitions 
The following words and terms, when used in these Regulations, should have the following meaning, 
unless the context clearly indicates otherwise: 

(Break in Continuity Within Section) 

“Debilitating medical condition” means one or more of the following: 

(a) 
cancer, positive status for human immunodeficiency virus (HIV), acquired immune deficiency 
syndrome (AIDS), decompensated cirrhosis (hepatitis C), amyotrophic lateral sclerosis 
(ALS or Lou Gehrig’s Disease), post-traumatic stress disorder (PTSD), intractable 
epilepsy, [autism with self-injurious or aggressive behavior,] and agitation of 
Alzheimer’s disease or the treatment of these conditions; 
(Break in Continuity Within Section) 

"Responsible Party" means the parent or legal guardian with responsibility and decision-making 
capability for a qualifying patient or applicant. The Responsible Party will have primary responsibility 
for purchase, handling and dispensing of the medical marijuana products for the person under [their 
the Responsible Party’s] charge. 

(Break in Continuity Within Section) 

3.0 
Qualifying Patient Identification Card Application Requirements 
(Break in Continuity Within Section) 

3.3 If the qualifying patient is under the charge of a Responsible Party as defined in these regulations: 
(Break in Continuity Within Section) 

3.3.3 
[If the patient is under the age of 18, the The] physician must be a pediatric neurologist, 
pediatric gastroenterologist, pediatric oncologist or pediatric palliative care specialist and certify 
that: 
3.3.3.1 The qualifying patient has intractable epilepsy; or 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

3.3.3.2 
The qualifying patient has a chronic or debilitating disease or medical condition where 
[they have the patient has] failed treatment involving 1 or more of the following 
symptoms: cachexia or wasting syndrome; intractable nausea; [seizures;] severe, painful 
and persistent muscle spasms. 
3.3.4 
Patients under the age of 18 will have distinctive identifying banner on their patient identification 
card limiting the patient to marijuana oil purchases only. 
3.3.5 
Responsible [Party's Parties] for qualifying patients under the age of 18 will be issued an 
identification card with the same 10-digit alphanumeric identifier provided on the patient card 
issued to the minor in question. 
(Break in Continuity of Sections) 

5.0 
Registry Identification Cards 
5.3 
Supplemental requirement: 
5.3.8 
When a registered qualifying pediatric patient [passes their 18th birthday, they attains 18 years 
of age, the patient] may request a new patient card releasing them from the pediatric restrictions. 
The new patient ID Card will be issued at the card replacement cost $20 and maintain the original 
expiration date. 
(Break in Continuity of Sections) 

*Please note that no additional changes were made to the regulation as originally proposed and published 
in the August 2015 issue of the Register at page 116 (19 DE Reg. 116). Therefore, the final regulation is not 
being republished here in its entirety. A copy of the final regulation is available at: 

4470 State of Delaware Medical Marijuana Code 

DEPARTMENT OF INSURANCE 

OFFICE OF THE COMMISSIONER 

Statutory Authority: 18 Delaware Code, Sections 311, 2741; 21 Delaware Code, Section 
2118(o) 
(18 Del.C. §§311 and 2741; 21 Del.C. §2118(o)) 
18 DE Admin. Code 606 


ORDER 
Docket No. 2464-2015 


606 Proof of Automobile Insurance 


Proposed amended Department of Insurance Regulation 606 relating to Proof of Automobile Insurance 
[Formerly Regulation 31] was published in the Delaware Register of Regulations on September 1, 2015. The 
comment period remained open until September 30, 2015. There was no public hearing on proposed amended 
Regulation 606. Public notice of the proposed amended Regulation 606 was published in the Register of 
Regulations in conformity with Delaware law. 

SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED 

No comments were received on the proposed amended Regulation 606, with no additional amendments being 
suggested. No changes are being made to the proposed amended Regulation 606. 

FINDINGS OF FACT 

Based on Delaware law and the record in this docket, I make the following findings of fact: 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

1. 
18 Del.C. §§311 and 2741 require a regulation to set forth rules and procedural requirements which 
the Commissioner deems necessary to carry out the provisions of the Code. 
2. 
The requirements of proposed amended Regulation 606 best serve the interests of the public and of 
insurers and comply with Delaware law. 
DECISION AND EFFECTIVE DATE 

Based on the provisions of 18 Del.C. §§311 and 2741; 21 Del.C. §2118(o); and 29 Del.C. Ch. 101, and the 
record in this docket, I hereby adopt proposed amended Regulation 606 as may more fully and at large appear in 
the version attached hereto to be effective 10 days after being published as final. 

TEXT AND CITATION 

The text of proposed Regulation 606 last appeared in the Register of Regulations Vol. 19, Issue 3, pages 173


175. 
IT IS SO ORDERED this 11th day of November, 2015. 

Karen Weldin Stewart, CIR-ML 

Insurance Commissioner 

*Please note that no changes were made to the regulation as originally proposed and published in the 
September 2015 issue of the Register at page 173 (19 DE Reg. 173). Therefore, the final regulation is not 
being republished. A copy of the final regulation is available at: 

606 Proof of Automobile Insurance 

DEPARTMENT OF LABOR 

DIVISION OF INDUSTRIAL AFFAIRS 

OFFICE OF LABOR LAW ENFORCEMENT 
Statutory Authority: 29 Delaware Code, Section 6960 (29 Del.C. §6960) 
19 DE Admin. Code 1322 


ORDER 

1322 Prevailing Wage Regulations 

NATURE OF THE PROCEEDINGS: 

Pursuant to its authority under 29 Del.C. §10111(1), the Delaware Division of Industrial Affairs of the State of 
Delaware, Department of Labor (“the Department”) proposed to amend its prevailing wage regulations. The 
Department’s purpose in proposing these amendments was to bring its regulations into legal conformity with recent 
statutory changes to the Prevailing Wage Law, 29 Del.C. §6960. The Department’s proceedings to adopt its 
regulations were initiated pursuant to 29 Del.C. §10113(b)(5), with authority prescribed by 29 Del.C. §6960. These 
regulations are exempt from the standard Administrative Procedures Act process and may therefore be adopted 
informally. 

FINDINGS OF FACT: 

The Department finds that these changes are exempt from the procedural requirements of the Administrative 
Procedures Act (Title 29 Chapter 101). 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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ORDER: 

AND NOW this 1st day of November, 2015, it is hereby ordered that: 

1. 
The proposed amendments to the Division’s regulations are adopted; 
2. 
The text of the regulations shall be in the form attached hereto; 
3. 
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(e); and 
4. 
The Division reserves to itself the authority to issue such order and further orders in this matter as may 
be just and proper. 
IT IS ORDERED. 

John J. McMahon Jr., Secretary of Labor 

*Please Note: Due to the size of the final regulation, it is not being published here. A copy of the regulation 
is available at: 

1322 Prevailing Wage Regulations 

DIVISION OF INDUSTRIAL AFFAIRS 

OFFICE OF WORKERS’ COMPENSATION 
Statutory Authority: 19 Delaware Code, Section 2322B(19 Del.C. §§2322B) 
19 DE Admin. Code 1341 


ORDER 

1341 Workers’ Compensation Regulations 

A public meeting was held on September 21, 2015, by the Department of Labor to receive public comments 
relating to revised sections of the Fee Schedule Instructions and Guidelines. The members of the Workers' 
Compensation Oversight Panel ("Panel"), signed below, recommend the Secretary of Labor adopt this proposal as 
it was published in the Register of Regulations, Volume 19, Issue 3 (September 2015). 

SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED 

Exhibits Admitted Prior to and During the Public Meeting: 

Exhibit 1 -News Journal, Affidavit of publication of notice of public meeting. 

Exhibit 2 -Delaware State News, Affidavit of publication of notice of public meeting. 

Exhibit 3 - State of Delaware Public Meeting Calendar electronic posting of today's meeting. 

After the Panel concluded with their introductions, the public was invited to share their comments. 

Joseph Lee with Reed Elsevier encouraged the Panel to consider his company as a provider of Average 
Wholesale Price information. 

The Panel agreed to submit and recommend for adoption by the Delaware Department of Labor the revisions 
to the Fee Schedule Instructions and Guidelines. 

RECOMMENDED FINDINGS OF FACT WITH RESPECT TO THE EVIDENCE AND INFORMATION 

The Panel is persuaded that the proposals are consistent with administrating the statutory directives in the 
workers' compensation law. In 2013, the Administrative Procedures Act changed to extend the public comment 
period 15 days past the date of the public meeting, which is October 6, 2015. Any further public comment received 
between September 21, 2015 and October 6, 2015, is included in the attached addendum, along with an e-mail 
reaffirmation from each Panel member present at the September 21, 2015, public meeting. If no further public 
comment was received, no addendum will exist. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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RECOMMENDATION 

The proposals are respectfully submitted to the Secretary of Labor for consideration with a recommendation for 
adoption this 21st day of September, 2015. 

WORKERS' COMPENSATION OVERSIGHT PANEL 

A. Richard Heffron, Chair Hardy Drane 
Joseph J. Rhoades, Esq., Vice Chair Matthew Eppley, M.D. (absent) 
Secretary John J. McMahon, Jr. Anthony Frabizzio, Esq. 
Barry Bakst, D.O Karen Jacobs, Esq. 
Theodore W. Becker, Jr. (absent) Christopher Kenny, Esq. (absent) 
Douglas R. Briggs, D.C. Samuel Lathem (absent) 
Glenn P. Brown, MMSC, PT (absent) Bruce Rudin, M.D. 
Edward Capodanno Sajjad Savul, M.D. (absent) 
John Casey, Jr. (absent) Theresa Smith 
N. Lee Dotson Wayne Smith 
James Downing, M.D. (absent) Joseph J. Straight, M.D. (absent) 
DECISION AND EFFECTIVE DATE 

Having reviewed and considered the record and recommendations of members of the Workers' Compensation 
Oversight Panel to adopt revisions of the Fee Schedule Instructions and Guidelines, the revisions are hereby 
adopted by the Delaware Department of Labor and made effective January 31, 2016. 

TEXT AND CITATION 

The proposed Fee Schedule Instructions and Guidelines notice appeared in the Register of Regulations, 
Volume 19, Issue 3 (September 1, 2015). The Fee Schedule Instructions and Guidelines are available from the 
Department of Labor, Division of Industrial Affairs, Office of Workers' Compensation or on the Register of 
Regulations web site at 

http://regulations.delaware.gov/register/november2015/final/19%20DE%20Reg%20416%2011-01-15.htm. 

John McMahon, Secretary of Labor 

DEPARTMENT OF LABOR 

1341 Workers’ Compensation Regulations 

(Break in Continuity of Sections) 

4.0 Workers' Compensation Health Care Payment Rates for Physicians, Other Qualified Health Care 
Professionals, Hospitals and Hospital Outpatient Facilities, as well as Ambulatory Surgery Centers (the 
"Fee Schedule"). Instructions and Guidelines 
(Break in Continuity Within Section) 

4.20 Anesthesia 
4.20.1 Introduction 
4.20.1.1 
Anesthesia services provided to employees pursuant to 19 Del.C. §2322B(3) shall be paid 
at a unit charge of one hundred dollars ($100.00) per unit in geozip 197-198 and seventy-
six dollars ($76.00) per unit in geozip 199, with an annual CPI-U adjustment as referenced 
in 19 Del.C. §2322B(5). The formula to calculate anesthesia services provided to 
employees pursuant to 19 Del.C. §2322B(7) shall be as follows: CMS base units + time 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

unit[e]s + physical status modifier + qualifying circumstances multiplied by the Conversion 
Factor. 

*Please note that no additional changes were made to the regulation as originally proposed and published 
in the September 2015 issue of the Register at page 175 (19 DE Reg. 175). Therefore, the final regulation is 
not being republished here in its entirety. A copy of the final regulation is available at: 

1341 Workers’ Compensation Regulations 

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL 
CONTROL 


DIVISION OF WASTE AND HAZARDOUS SUBSTANCES 

Statutory Authority: 7 Delaware Code, Chapter 60; (7 Del.C., Ch. 60) 
7 DE Admin. Code 1301 

Secretary's Order No.: 2015-WH-0014 

1301 Regulations Governing Solid Waste 

Date of Issuance: September 18, 2015 
Effective Date of the Amendment: January 1, 2016 


Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control 
("Department" or "DNREC") pursuant to 7 Del.C. §§6006, 6010, and 7 Del.C. §§6301 et seq., and any other 
relevant authority, the following findings of fact based on the record, reasons and conclusions are entered as an 
Order of the Secretary in the above-referenced regulatory proceeding. 

Background, Procedural History and Findings of Fact 

This Order relates to proposed regulation Amendments to 7 DE Admin. Code 1301, Delaware Regulations 
Governing Solid Waste ("DRGSW"), to wit: Scrap Tire Facility Management Provisions. The Department's Division 
of Waste and Hazardous Substances, Solid and Hazardous Waste Management Section ("SHWMS"), has 
conducted this regulatory development process consistent with the requirements of 29 Del.C. Chapter 101, and 
has commenced said process with Start Action Notice 2011-13 dated September 28, 2011. 

The Department published its initial proposed regulation Amendments in the January 1, 2015 Delaware 
Register of Regulations. The Department then held a public hearing on February 9, 2015. Consistent with 29 
Del.C. §10118(a), the public hearing record remained open for public comment through February 24, 2015. 

The purpose of this proposed regulatory promulgation is to adopt as final the aforementioned proposed 
Amendments to existing DRGSW to enable the Department to provide greater environmental protection and to 
reduce human health risks. Specifically, the proposed action will allow DNREC to have oversight on the 
management of scrap tires, including, but not limited to, the amount of tires allowed to be accumulated in one area, 
siting restrictions, and mosquito control. 

The aforementioned proposed Amendments were presented and thoroughly vetted by the Department at the 
public hearing on February 9, 2015, at which time the SHWMS provided an exhaustive review of the proposed 
regulation amendments, addressing (1) the Department's reasoning for promulgation of these proposed 
Amendments; (2) the persons affected by these proposed Amendments; and (3) the particulars of the proposed 
Amendments, including a thorough discussion of all definitions and processes set forth therein. Members of the 
public attended the hearing on February 9, 2015, and comment was received by the Department with regard to this 
proposed regulatory promulgation. It should also be noted that all proper notification and noticing requirements 
concerning this matter were met by the Department. Proper notice of the hearing was provided as required by law. 

Subsequent to the public hearing on February 9, 2015, and based on public comments received by the 
Department in this matter, the proposed regulatory Amendments were revised from the original Amendments 
initially published on January 1, 2015. These revisions to the original Amendments were done to clarify the 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

application of the proposed rule to the affected regulated community, and to provide enhanced understanding of 
the regulation to the public. These revisions do not constitute a substantive change to the proposed regulatory 
language, and therefore no re-noticing of the revised proposed regulatory language by the Department is 
necessary in this matter. 

It should also be noted that several months have passed since the hearing record closed with respect to public 
comment received in this matter. During the exhaustive review subsequently performed by the Department's 
Division of Waste and Hazardous Substances' Solid and Hazardous Waste Management Section, it was 
discovered that proper enforcement of these proposed regulations would necessitate additional staff. Thus, final 
promulgation of these regulations was temporarily delayed until such time as additional SHWMS staff was hired, to 
ensure that the Department had a proper mechanism in place for enforcement of these regulations to be possible. 

The Department's presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer's Report dated August 26, 
2015 ("Report"). The Report documents the proper completion of the required regulatory amendment process, 
establishes the record, and recommends the adoption of the proposed revised regulatory Amendments as 
attached to the Report as Appendix "A". 

Reasons and Conclusions 

Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I 
find that the proposed revised regulatory Amendments to 7 DE Admin. Code 1301: Delaware Regulations 
Governing Solid Waste, to wit: Scrap Tire Facility Management Provisions, are well-supported. Therefore, the 
recommendations of the Hearing Officer are hereby adopted, and I direct that the proposed revised regulatory 
Amendments be promulgated as final. 

I find that the Department's experts in the Division of Waste and Hazardous Substances, Solid and Hazardous 
Waste Management Section, fully developed the record to support adoption of these revised regulatory 
Amendments. The adoption of these revised regulatory Amendments will allow Delaware to (1) have oversight on 
the management of scrap tires, including, but not limited to, the power to limit the amount of tires allowed to be 
accumulated in one area; (2) provide environmental and human health protection via siting restrictions and 
mosquito control; and (3) provide a mechanism for enforcement when necessary. 

In conclusion, the following reasons and conclusions are entered: 

1. 
The Department has the statutory basis and legal authority to act with regard to the proposed 
amendments to 7 DE Admin. Code 1301, pursuant to 7 Del.C., Chapters 60 and 63; 
2. 
The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C., Chapter 60, to issue 
an Order adopting these proposed revised regulatory amendments as final; 
3. 
The Department provided adequate public notice of the proposed regulatory amendments and all 
proceedings in a manner required by the law and regulations, provided the public with an adequate 
opportunity to comment on the proposed regulatory amendments, including at the time of the public 
hearing held on February 9, 2015, and held the record open through close of business on February 24, 
2015, consistent with 29 Del.C. §10118(a), in order to consider public comment on these proposed 
regulatory amendments before making any final decision; 
4. 
The Department's Hearing Officer's Report, including its established record and the recommended 
proposed revised regulatory Amendments as set forth in Appendix "A", are hereby adopted to provide 
additional reasons and findings for this Order; 
5. 
Promulgation of the proposed revised regulatory amendments to 7 DE Admin. Code 1301: Delaware 
Regulations Governing Solid Waste, to wit: Scrap Tire Facility Management Provisions, will enable the 
Department's SHWMS to (1) have oversight on the management of scrap tires, including, but not 
limited to, the power to limit the amount of tires allowed to be accumulated in one area; (2) provide 
environmental and human health protection via siting restrictions and mosquito control; and (3) provide 
a mechanism for enforcement when necessary; 
6. 
The Department has reviewed these proposed revised regulatory amendments in the light of the 
Regulatory Flexibility Act, consistent with 29 Del.C. Ch. 104, and believes the same to be lawful, 
feasible and desirable, and that the recommendations as proposed should be applicable to all 
Delaware citizens equally; 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

7. 
The Department's proposed regulatory amendments, as published in the January 1, 2015 Delaware 
Register of Regulations, and as revised and set forth in Appendix "A" hereto, are adequately 
supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. 
Consequently, they are approved as final regulatory amendments, which shall go into effect twenty 
days after their publication in the next available issue of the Delaware Register of Regulations; and 
8. 
The Department shall submit this Order approving as final the proposed revised Amendments to 7 DE 
Admin. Code 1301: Delaware Regulations Governing Solid Waste, to wit: Scrap Tire Facility 
Management Provisions, to the Delaware Register of Regulations for publication in its next available 
issue, and provide such other notice as the law and regulation require and the Department determines 
is appropriate. 
David S. Small, Secretary 

1301 Regulations Governing Solid Waste 

(Break in Continuity of Sections) 

3.0 
Definitions 
The following words, phrases, and terms as used in these regulations have the meanings given below: 

(Break in Continuity Within Section) 

“[Enclosed by a] Building” means a permanent fixed structure [with surrounded on all sides by] 
four solid walls, a structurally sound roof, and an impermeable floor[, with no permanent openings]. 

(Break in Continuity Within Section) 

[“Enclosed” means surrounded on all sides by walls, a roof, and a floor, with no significant 
openings.] 

(Break in Continuity Within Section) 

"Refuse" means any putrescible or nonputrescible solid waste, except human excreta, but including 
garbage, rubbish, ashes, street cleanings, dead animals, scrap tire[(s)], offal and solid agricultural, 
commercial, industrial, hazardous and institutional wastes, and construction wastes. 

(Break in Continuity Within Section) 

"Setback" means the area between the actual disposal area and the property line which can be used 
for construction of environmental control systems such as runoff diversion ditches, monitoring wells, or 
scales; for scrap tire facilities, “setback” means the minimum amount of distance required between the 
[most outer edge of the] scrap tire facility and another object [such as including, but not limited 
to,] a property line, public roads, wells, etc. 

(Break in Continuity Within Section) 

4.0 
Permit Requirements And Administrative Procedures 
4.1 
General Provisions 
(Break in Continuity Within Section) 

4.1.5 
Duration of permit 
A permit will be issued for a specific duration which will be determined by the Department. 
4.1.5.1 
Solid waste facility operating permits (landfills, resource recovery facilities, transfer 
stations, incinerators, [and] scrap tire facilities) shall not be issued for periods greater than 
10 years. 
(Break in Continuity of Sections) 

12.0 
Scrap Tire Facilities 
12.1 
Scope and Applicability 
12.1.1 
This section applies to new and existing areas established for scrap tires that are associated with 
a qualifying business. A qualifying business is a business that generates and accumulates scrap 
tires but whose primary purpose is not to accumulate scrap tires [(defined as no more than 1/3 of 
all tires on-site meeting the definition of a scrap tire)]. Examples of qualifying businesses may 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

include [but are not limited to]: tire retreading businesses; automobile graveyards or junkyards; 
local and state governmental agencies and/or facilities such as county maintenance, police, and 
fire; military institutions and/or facilities; farmers; and other automotive businesses. This section 
does not apply to owner/operators who have a current and valid resource recovery facility permit 
(or other approval issued pursuant to these regulations) that addresses scrap tire management. 
This section also does not apply to persons who are registered with, and actively participating in, 
the Scrap Tire Management Program, administered by the Department. [Note that all] [All] 
transporters must comply with any applicable provisions in Section 7.0[.][ and that] [All] scrap tire 
facilities whose primary purpose is to accumulate scrap tires [(defined as no more than 1/3 of all 
tires on-site meeting the definition of a scrap tire)] must comply with any applicable provisions 
in Section 10.0. 

(Break in Continuity Within Section) 

12.3 
[Transition Provisions Implementation Date] 
12.3.1 
[No later than 90 days after the effective date of these regulations, all Group 1 scrap tire 
facilities must obtain a permit issued by the Department pursuant to these regulations and 
comply with these regulations. The permit can be requested by completing a Departmental 
"Scrap Tire Facility Permit Form" and submitting the appropriate documentation. Each 
scrap tire facility in existence prior to the effective date of these regulations must apply for 
a permit issued by the Department pursuant to these regulations no later than 90 days for 
Group 1 and 180 days for Group 2 and comply with these regulations.] 
12.3.2 
[No later than 180 days after the effective date of these regulations, all Group 2 scrap tire 
facilities must obtain a permit issued by the Department pursuant to these regulations and 
comply with these regulations. The permit can be requested by completing a Departmental 
"Scrap Tire Facility Permit Form" and submitting the appropriate documentation. A scrap 
tire facility may exist and/or operate past that date only under the terms of a written 
agreement with the Department which establishes a reasonable schedule for bringing the 
scrap tire facility into compliance with these regulations. Each scrap tire facility created 
after the effective date of these regulations must comply with subsection 4.1.1.3 of these 
regulations.] 
(Break in Continuity Within Section) 

12.8 
Financial Assurance (Required only for Group 2) 
12.8.1 
The owner/operator must obtain and retain a minimum of $10,000 financial assurance. Financial 
assurance is not required if the owner/operator can demonstrate a current, valid contract or other 
legal documentation with an approved TSDRF that requires the owner/operator to pay the cost of 
removing the scrap tires prior to delivery of a trailer where the scrap tires will be accumulated. 
Failure to obtain financial assurance will result in denial of issuance of a permit, which will cause 
the owner/operator to be in violation of these regulations. Failure to [retain maintain] financial 
assurance will result in revocation of the permit, which will cause the owner/operator to be violation 
of these regulations. 
(Break in Continuity Within Section) 

12.10 
Notification of Closure/Closure 
(Break in Continuity Within Section) 

12.10.4 [At a minimum, the The] owner/operator must remove all scrap tires from the facility. All scrap 
tires must be properly transported to an authorized [treatment, storage, disposal, or recycling 
facility (TSDRF) TSDRF]. Documentation demonstrating delivery (e.g., tolling agreement, letter of 
acceptance, manifest or other documentation deemed acceptable by the Department) to the 
TSDRF must be kept for a period of at least three years and all documentation must be available 
for inspection by the Department upon request. 
(Break in Continuity Within Section) 

12.11 
All other scrap tire facilities 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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12.11.1 All other scrap tire facilities not complying with the requirements of Group 1 or Group 2 or owner/ 
operators who do not have a current and valid resource recovery facility permit (or other approval 
issued pursuant to these regulations) that addresses scrap tire management; or persons who are 
not registered with, and actively participating in, the Scrap Tire Management Program are 
prohibited and all scrap tires must be removed in accordance with this subsection and the facility 
shall be closed in a manner that will eliminate the need for further maintenance of the facility. The 
following conditions apply: 
12.11.1.1 
The owner/operator must submit to the Department within [15 30] days [of noncompliance 
with these regulations]: 
(Break in Continuity Within Section) 

12.11.1.3 
[At a minimum, the The] owner/operator must remove all scrap tires from the facility. All 
scrap tires must be properly transported to an authorized treatment, storage, disposal, or 
recycling facility (TSDRF). Documentation demonstrating delivery (e.g., tolling agreement, 
letter of acceptance, manifest or other documentation deemed acceptable by the 
Department) to the TSDRF must be kept for a period of at least three years and all 
documentation must be available for inspection by the Department upon request. 
*Please note that no additional changes were made to the regulation as originally proposed and published 
in the January 2015 issue of the Register at page 530 (18 DE Reg. 530). Therefore, the final regulation is not 
being republished here in its entirety. A copy of the final regulation is available at: 

1301 Regulations Governing Solid Waste 

DIVISION OF WASTE AND HAZARDOUS SUBSTANCES 

Statutory Authority: 7 Delaware Code, Chapter 60; (7 Del.C., Ch. 60) 
7 DE Admin. Code 1301 

Secretary's Order No.: 2015-WH-0039 

1301 Regulations Governing Solid Waste 

Date of Issuance: October 15, 2015 
Effective Date of the Amendment: November 21, 2015 


Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control 
("Department" or "DNREC") pursuant to 7 Del.C. §§6006, 6010, and 7 Del.C. §§6301 et seq., and any other 
relevant authority, the following findings of fact based on the record, reasons and conclusions are entered as an 
Order of the Secretary in the above-referenced regulatory proceeding. 

Background, Procedural History and Findings of Fact 

This Order relates to proposed regulation Amendments to 7 DE Admin. Code 1301, Delaware Regulations 
Governing Solid Waste ("DRGSW"). The Department's Division of Waste and Hazardous Substances, Solid and 
Hazardous Waste Management Section ("SHWMS"), has conducted this regulatory development process 
consistent with the requirements of 29 Del.C. Chapter 101, and has commenced said process with Start Action 
Notice 2014-11 dated December 11, 2014. 

The Department published its initial proposed regulation Amendments in the February 1, 2015 Delaware 
Register of Regulations. The Department then held a public hearing on February 26, 2015. Consistent with 29 
Del.C. §10118(a), the public hearing record remained open for public comment through March 13, 2015. 

The purpose of this proposed regulatory promulgation is to adopt as final the aforementioned proposed 
Amendments to existing DRGSW to enable the Department to provide greater environmental protection and to 
reduce human health risks. The aforementioned proposed Amendments were presented and thoroughly vetted by 
the Department at the public hearing on February 26, 2015, at which time the SHWMS provided an exhaustive 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

review of the proposed regulation Amendments, addressing (1) the Department's reasoning for promulgation of 
these proposed Amendments; (2) the persons affected by these proposed Amendments; and (3) the particulars of 
the proposed Amendments, including a thorough discussion of all definitions and processes set forth therein. 
Members of the public attended the hearing on February 26, 2015, and comment was received by the Department 
with regard to this proposed regulatory promulgation. It should also be noted that all proper notification and noticing 
requirements concerning this matter were met by the Department. Proper notice of the hearing was provided as 
required by law. 

Subsequent to the public hearing on February 26, 2015, the Department fully responded to each individual 
comment received from the public with regard to this proposed regulatory promulgation. The Department's 
presiding hearing officer, Lisa A. Vest, then prepared a Hearing Officer's Report dated October 2, 2015 ("Report"). 
The Report documents the proper completion of the required regulatory amendment process, establishes the 
record, and recommends the adoption of the proposed regulatory Amendments as attached to the Report as 
Appendix "A". 

Reasons and Conclusions 

Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I 
find that the proposed regulatory Amendments to 7 DE Admin. Code 1301: Delaware Regulations Governing Solid 
Waste are well-supported. Therefore, the recommendations of the Hearing Officer are hereby adopted, and I direct 
that the proposed regulatory Amendments be promulgated as final. 

I find that the Department's experts in the Division of Waste and Hazardous Substances, Solid and Hazardous 
Waste Management Section, fully developed the record to support adoption of these regulatory Amendments. The 
adoption of these regulatory Amendments will allow Delaware to (1) provide greater environmental protection and 
reduce human health risks; (2) increase enforceability and oversight available to the Department; (3) to ease the 
regulatory burden for small businesses generating only a small amount of infectious waste by modification of the 
existing infectious waste regulations with regard to allowing sharps to be transported without a transporter permit if 
certain conditions are met; and (4) provide greater consistency and fairness, as well as additional clarity (due to the 
correction of current clerical error) to the regulated community. 

In conclusion, the following reasons and conclusions are entered: 

1. 
The Department has the statutory basis and legal authority to act with regard to the proposed 
Amendments to 7 DE Admin. Code 1301, pursuant to 7 Del. C., Chapters 60 and 63; 
2. 
The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C., Chapter 60, to issue 
an Order adopting these proposed regulatory Amendments as final; 
3. 
The Department provided adequate public notice of the proposed regulatory Amendments and all 
proceedings in a manner required by the law and regulations, provided the public with an adequate 
opportunity to comment on the proposed regulatory Amendments, including at the time of the public 
hearing held on February 26, 2015, and held the record open through close of business on March 13, 
2015, consistent with 29 Del.C. §10118(a), in order to consider public comment on these proposed 
regulatory Amendments before making any final decision; 
4. 
The Department's Hearing Officer's Report, including its established record and the recommended 
proposed regulatory Amendments as set forth in Appendix "A", are hereby adopted to provide 
additional reasons and findings for this Order; 
5. 
Promulgation of the proposed regulatory amendments to 7 DE Admin. Code 1301: Delaware 
Regulations Governing Solid Waste, will enable the Department's SHWMS to (1) provide greater 
environmental protection and reduce human health risks; (2) increase enforceability and oversight 
available to the Department; (3) to ease the regulatory burden for small businesses generating only a 
small amount of infectious waste by modification of the existing infectious waste regulations with 
regard to allowing sharps to be transported without a transporter permit if certain conditions are met; 
and (4) provide greater consistency and fairness, as well as additional clarity (due to the correction of 
current clerical error) to the regulated community; 
6. 
The Department has reviewed these proposed regulatory Amendments in the light of the Regulatory 
Flexibility Act, consistent with 29 Del.C. Ch. 104, and believes the same to be lawful, feasible and 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

desirable, and that the recommendations as proposed should be applicable to all Delaware citizens 
equally; 

7. 
The Department's proposed regulatory Amendments, as published in the February 1, 2015 Delaware 
Register of Regulations, and as set forth in Appendix "A" hereto, are adequately supported, are not 
arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they 
are approved as final regulatory Amendments, which shall go into effect twenty days after their 
publication in the next available issue of the Delaware Register of Regulations; and 
8. 
The Department shall submit this Order approving as final the proposed Amendments to 7 DE Admin. 
Code 1301: Delaware Regulations Governing Solid Waste, to the Delaware Register of Regulations 
for publication in its next available issue, and provide such other notice as the law and regulation 
require and the Department determines is appropriate. 
David S. Small, Secretary 

1301 Regulations Governing Solid Waste 

(Break in Continuity of Sections) 

2.0 
Scope and Applicability 
(Break in Continuity Within Section) 

2.5 
Composting And Recycling Approvals Permits 
2.5.1 
Composting Approvals Permits 
Other than individual household composting, all other composting operations must obtain written 
approval a permit from the Department prior to commencing a composting operation. To obtain an 
approval permit, a person must submit [an application provided by the Department, including, 
but not limited to,] the following information [to the Department]: 
2.5.1.1 
A written plan of operation demonstrating to the Department that the requestor of the 
approval permit and the person responsible for operating the composting facility 
understand and will apply the principles and proper methods of composting. The plan of 
operation must also demonstrate that the composting facility will be operated in a manner 
that will not pose a threat to human health and the environment; and 
2.5.1.2 
A written statement explaining how the applicant intends to use the compost. 
2.5.2 
Recycling Approvals Permits 
Recycling solid waste into specific market applications requires written approval a permit prior to 
commencing this activity. To obtain an approval permit, a person must submit [an application 
provided by the Department, including, but not limited to,] the following information [to the 
Department]: 
(Break in Continuity of Sections) 

11.0 
Special Wastes Management Part 1- Infectious Waste 
(Break in Continuity Within Section) 

11.14 
Transporter Requirements. All transporters of infectious waste must be in compliance with all 
applicable federal and state regulations and codes. No person shall transport solid waste, including 
infectious waste, without first having obtained a permit from the Department, unless specifically 
exempted by these Regulations. Refer to Section 7 of these Regulations, TRANSPORTERS. 
Exemption: [Transporters of solely sharps do not need to obtain a solid waste transporter 
permit The United States Postal Service (USPS) and the United Parcel Service (UPS) may 
transport solely sharps without obtaining a solid waste transporter permit], provided that: the 
transporter follows, at a minimum, all Department of Transportation requirements; the sharps being 
transported are only generated by a Small Quantity Generator of infectious waste [who has obtained 
prior written approval from the Department to utilize this exemption]; the total shipment per 
generator does not exceed 35 pounds by weight; [and] the shipment is documented by a manifest or 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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other shipping record illustrating receipt at an appropriate disposal facility[; and the transporter has 
prior written approval from the Department]. 

*Please note that no additional changes were made to the regulation as originally proposed and published 
in the February 2015 issue of the Register at page 629 (18 DE Reg. 629). Therefore, the final regulation is 
not being republished here in its entirety. A copy of the final regulation is available at: 

1301 Regulations Governing Solid Waste 

DEPARTMENT OF SAFETY AND HOMELAND SECURITY 

DIVISION OF STATE POLICE 

2400 BOARD OF EXAMINERS OF CONSTABLES 
Statutory Authority: 10 Delaware Code, Chapter 27 (10 Del.C. Ch. 27) 
24 DE Admin. Code 2400 


ORDER 

2400 Board of Examiners of Constables 

Pursuant to the Guidelines in 29 Del.C. §10118(a)(1)-(7), the Board of Examiners of Constables ("Board") 
hereby issues this Order. Following notice and a public hearing on the proposed adoption of amendments to: 

• Rule 3.0 Criminal Offenses, and 
• Rule 5.0 Firearms Policy 
the Board makes the following Findings and Conclusions: 
Summary of Evidence and Information Submitted 

1. The Board did not receive written evidence or information pertaining to the proposed adoption. 
2. The Board expressed its desire to adopt the amendment to: 
• Give the definitions of moral turpitude, and 
• Define the training requirements and add another weapon 
Findings of Fact 

3. The public was given notice and the opportunity to provide the Board with comments, in writing and by oral 
testimony, on the proposed amendments. The written comments and oral testimony received are described in 
paragraph 1. 
4. The Board finds that the adoption of this rule will: 
• Give the definitions of moral turpitude, and 
• Define the training requirements and add another weapon 
5. The Board finds that the adoption will have no adverse impact on the public. 
6. The Board finds that the amendment is well written and describes its intent to adopt the rule to 
• Give the definitions of moral turpitude, and 
• Define the training requirements and add another weapon 
Conclusion 

7. The proposed rule was published by the Board in accord with the statutory duties and authority as set forth 
in 10 Del.C. §2701 et seq. and, in particular, 10 Del.C. §2702(b). 
8. The Board deems this adoption necessary and expedient to the full and official performance of its duties 
under 10 Del.C. §2701 et. seq. 
9. The Board concludes that the adoption of this rule will be in the best interests of the citizens of the State of 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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Delaware. 

10. The Board therefore adopts this amendment pursuant to 10 Del.C. §2702(b) and guidelines of 29 Del.C. 
§10118 of the Administrative Procedures Act. See, Strauss v. Silverman, Del. Supr., 399 A.2d 192 (1979). 
11. This adopted rule replaces in its entirety any former rule or regulation heretofore promulgated by the 
Board. 
12. The effective date of this Order shall be November 11, 2015. 
13. Attached hereto and incorporated herein this order is the amended rule marked as exhibit A and executed 
simultaneously by the Board on the 24th day of September 2015. 
BOARD OF EXAMINERS OF CONSTABLES: 

Chief William E. Bryson Captain Douglas Merrill 
Ralph K. Durstein, III, Esquire Mr. John F. Tharan 
Lt. Colonel Monroe B. Hudson, Jr. 

2400 Board of Examiners of Constables 

(Break in Continuity of Sections) 

5.0 Firearm’s Policy 
(Break in Continuity Within Section) 

5.67 All individuals must qualify meet the minimum qualifications set forth in [subsection] 5.3 with the 
same make/model/caliber of weapon that he/she will carry. 
*Please note that no additional changes were made to the regulation as originally proposed and published 
in the June 2015 issue of the Register at page 953 (18 DE Reg. 953). Therefore, the final regulation is not 
being republished here in its entirety. A copy of the final regulation is available at: 

2400 Board of Examiners of Constables 

DIVISION OF STATE POLICE 

2400 BOARD OF EXAMINERS OF CONSTABLES 
Statutory Authority: 10 Delaware Code, Chapter 27 (10 Del.C. Ch. 27) 
24 DE Admin. Code 2400 


ORDER 

2400 Board of Examiners of Constables 

This Order is exempt pursuant to 29 Del.C. §10113 of the Administrative Procedures Act. 

Pursuant to the Guidelines in 29 Del.C. §10118(a)(1)-(7), the Board of Examiners of Constables ("Board") 
hereby issues this Order. The Board makes the following Findings and Conclusions: 

Summary of Evidence and Information Submitted 

1. The Board expressed its desire to adopt the amendment to change the name of the weapon to follow 
guidelines. 
Findings of Fact 

2. The Board finds that the adoption of this rule to change the name of the weapon to follow guidelines will 
have no adverse impact on the public. 
3. The Board finds that the amendment is well written and describes its intent to adopt the rule to change the 
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FINAL REGULATIONS 

name of the weapon to follow guidelines. 

4. The Board finds that the adoption will have no adverse impact on the public. 
5. The Board finds that the amendment is well written and describes its intent to adopt the rule to change the 
name of the weapon to follow guidelines. 
Conclusion 

6. The Board deems this adoption necessary and expedient to the full and official performance of its duties 
under 10 Del.C. §2701 et. seq. 
7. The Board concludes that the adoption of this rule will be in the best interests of the citizens of the State of 
Delaware. 
8. The Board therefore adopts this amendment pursuant to 10 Del.C. §2702(b) and guidelines of 29 Del.C. 
§10118 of the Administrative Procedures Act. See, Strauss v. Silverman, Del. Supr., 399 A.2d 192 (1979). 
9. This adopted rule replaces in its entirety any former rule or regulation heretofore promulgated by the 
Board. 
10. The effective date of this Order shall be November 11, 2015. 
11. Attached hereto and incorporated herein this order is the amended rule marked as exhibit A and executed 
simultaneously by the Board on the 24th day of September 2015. 
BOARD OF EXAMINERS OF CONSTABLES: 

Chief William E. Bryson Captain Douglas Merrill 
Ralph K. Durstein, III, Esquire Mr. John F. Tharan 
Lt. Colonel Monroe B. Hudson, Jr. 


2400 Board of Examiners of Constables 

(Break in Continuity of Sections) 

7.0 
Electronic Control Device (ECD) Conducted Electrical Weapon (CEW) 
7.1 
In order for a constable to carry/use an electronic control device (ECD) conducted electrical weapon 
(CEW), he/she must complete a training program approved by the Board and all certifications or re-
certifications must be on file with the Professional Licensing Section. 
7.2 
ECD CEW Instructors 
7.2.1 
All ECD CEW instructors must be approved by the Professional Licensing Section before they are 
authorized to instruct or qualify individuals licensed under 10 Del.C. Ch. 27. 
*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

2400 Board of Examiners of Constables 

DEPARTMENT OF STATE 

DIVISION OF PROFESSIONAL REGULATION 

Statutory Authority: 24 Delaware Code, Section 506(a)(1) (24 Del.C. §506(a)(1)) 
24 DE Admin. Code 500 

ORDER 

500 Board of Podiatry 

Pursuant to 29 Del.C. §10113(b)(5) and 24 Del.C. §506(a)(1), the Delaware Board of Podiatry issues this 
Order adopting the below amendments to the Board's regulations. Specifically, pursuant to 29 Del.C. §10113(b)(5), 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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Regulations 2.5 through 2.5.7.3 must be deleted and Regulation 4.2.3 must be amended to make the Board's 
regulations consistent with newly adopted statutory changes in Title 24, Chapter 5 of the Delaware Code. These 
changes do not otherwise alter the substance of the regulations. 

SUMMARY OF THE EVIDENCE 

1. 
Rules 2.5 through 2.5.7.3 specifically describe the now obsolete Delaware podiatric preceptorship 
program as follows: 
2.5 
Preceptorship Program. 
2.5.1 
Pursuant to 24 Del.C. §508(a)(2), each and every applicant for licensure by examination who 
has not satisfactorily completed an APMA approved hospital residency program shall complete a 
one year preceptorship, during which time the applicant's clinical abilities and skills shall be under 
the observation and supervision of a preceptor, who shall be a Delaware licensed podiatrist, who 
has received the prior written approval of the Board to supervise the preceptorship of one or more 
candidates for licensure. 
2.5.2 
Preceptorships shall run for twelve (12) months. 
2.5.3 
A candidate for the preceptorship program shall submit his or her curriculum vitae, certified 
transcripts from podiatric medical school(s) showing confirmation of "Doctor of Podiatric Medicine" 
degree, and evidence of passing scores on National Board Examinations Part I and Part II, before 
the Board may approve his or her admission to the preceptorship program. 
2.5.4 
The Board shall, by letter, notify each applicant who has submitted all required documentation 
of his or her admission to the preceptorship program. 
2.5.5 
Following receipt by an applicant of notice of his or her admission to the preceptorship 
program, it shall be the responsibility of the applicant to apply to a licensed practitioner for a twelve 
(12) month preceptorship with that practitioner. It shall be the responsibility of the Board, in 
connection with the above-described preceptorship requirements to approve and certify all 
preceptors; and approve and certify all preceptorship programs and evaluations. 
2.5.6 
The preceptor shall provide professional liability (malpractice) coverage for candidates for 
whom they are the preceptor at all times during the preceptorship. 
2.5.7 
During the course of each twelve (12) month preceptorship, each candidate shall be evaluated 
by the preceptor (primary clinical observer) for whom he or she is working. The preceptorship shall 
pattern itself after and ensure exposure to all areas covered by the CPME standards for Rotating 
Podiatric Residency (RPR) Sections 21.0 through 21.6, and the candidate shall be evaluated in 
those areas. 
Each candidate shall be evaluated during the twelve (12) month preceptorship by one 
other licensed practitioner (secondary clinical observer) approved by the Board in the 
following areas: podiatric medicine, physical examination and the basic application of 
podiatric principles. The primary observer shall submit his observations in the form of a 
letter addressed to the Board. The primary observer shall report to the Board every three 

(3) months. The letter shall include an evaluation covering the prescribed subjects above. 
The secondary observer shall submit a similar appropriate report by letter to the Board, 
accompanied by evaluations covering the prescribed subjects. 
2.5.7.1 
In the event that the primary observer has been unable to expose the candidate to any 
required category of evaluation, he or she shall advise the secondary observer of this 
fact, and shall include the fact in his quarterly report to the Board. 
2.5.7.2 
In the event that a preceptorship candidate receives a negative or deficient evaluation 
from his or her preceptor, in two or less of the above-described categories of 
evaluation, the Board shall allow the applicant to correct the deficiency or deficiencies 
by attendance at and completion of a course or program in each said deficient area. 
Said program or course shall have prior written approval by the Board. Upon 
successful completion of all such approved programs, the Board shall forthwith issue 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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to the candidate a letter indicating that he or she may proceed with his preceptorship 
program. 

2.5.7.3 
In the event that a preceptorship candidate receives a negative or deficient evaluation 
from his or her preceptor, in more than two of the above-described categories of 
evaluation, the candidate may request another Delaware licensed podiatrist to 
independently evaluate the candidate's competency in those areas and report to the 
Board. The Board will review all evaluations and make a determination as to the 
status of the preceptorship. 
2. 
The Board now deletes all of the above regulations as the preceptorship has been statutorily 
eliminated. 
3. 
In addition, Rule 4.2.3 now states: 
Satisfactory completion of a hospital residency program approved by the American Podiatric 
Medical Association (APMA), or completion of an approved preceptorship program in the office of 
a podiatrist, licensed in the state in which the applicant is licensed or certified, for a period of one 
year. 

4. 
The Board makes the following change to this regulation (removals are stricken through): 
Satisfactory completion of a hospital residency program approved by the American Podiatric 
Medical Association (APMA), or completion of an approved preceptorship program in the office of 
a podiatrist, licensed in the state in which the applicant is licensed or certified, for a period of one 
year. 

5. 
The effective date of this Order will be ten (10) days from the publication of this Order in the Register of 
Regulations on November 1, 2015. 
SO ORDERED this 7th day of October, 2015: 

BY THE DELAWARE BOARD OF PODIATRY: 

Dr. James D. Bray, President 
Dr. Harold Gruber 
Amy Kratz, Public Member 
Teresa Wilson, Public Member 


500 Board of Podiatry 

(Break in Continuity of Sections) 

2.0 
Application And Licensing Requirements 
(Break in Continuity Within Section) 

2.5 
Preceptorship Program. 
2.5.1 
Pursuant to 24 Del.C. §508(a)(2), each and every applicant for licensure by examination who has 
not satisfactorily completed an APMA approved hospital residency program shall complete a one 
year preceptorship, during which time the applicant’s clinical abilities and skills shall be under the 
observation and supervision of a preceptor, who shall be a Delaware licensed podiatrist, who has 
received the prior written approval of the Board to supervise the preceptorship of one or more 
candidates for licensure. 
2.5.2 
Preceptorships shall run for twelve (12) months. 
2.5.3 
A candidate for the preceptorship program shall submit his or her curriculum vitae, certified 
transcripts from podiatric medical school(s) showing confirmation of “Doctor of Podiatric Medicine” 
degree, and evidence of passing scores on National Board Examinations Part I and Part II, before 
the Board may approve his or her admission to the preceptorship program. 
2.5.4 
The Board shall, by letter, notify each applicant who has submitted all required documentation of 
his or her admission to the preceptorship program. 
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2.5.5 
Following receipt by an applicant of notice of his or her admission to the preceptorship program, it 
shall be the responsibility of the applicant to apply to a licensed practitioner for a twelve (12) month 
preceptorship with that practitioner. It shall be the responsibility of the Board, in connection with 
the above-described preceptorship requirements to approve and certify all preceptors; and 
approve and certify all preceptorship programs and evaluations. 
2.5.6 
The preceptor shall provide professional liability (malpractice) coverage for candidates for whom 
they are the preceptor at all times during the preceptorship. 
2.5.7 
During the course of each twelve (12) month preceptorship, each candidate shall be evaluated by 
the preceptor (primary clinical observer) for whom he or she is working. The preceptorship shall 
pattern itself after and ensure exposure to all areas covered by the CPME standards for Rotating 
Podiatric Residency (RPR) Sections 21.0 through 21.6, and the candidate shall be evaluated in 
those areas. 
Each candidate shall be evaluated during the twelve (12) month preceptorship by one other 
licensed practitioner (secondary clinical observer) approved by the Board in the following areas: 
podiatric medicine, physical examination and the basic application of podiatric principles. The 
primary observer shall submit his observations in the form of a letter addressed to the Board. The 
primary observer shall report to the Board every three (3) months. The letter shall include an 
evaluation covering the prescribed subjects above. The secondary observer shall submit a similar 
appropriate report by letter to the Board, accompanied by evaluations covering the prescribed 
subjects. 

2.5.7.1 
In the event that the primary observer has been unable to expose the candidate to any 
required category of evaluation, he or she shall advise the secondary observer of this fact, 
and shall include the fact in his quarterly report to the Board. 
2.5.7.2 
In the event that a preceptorship candidate receives a negative or deficient evaluation 
from his or her preceptor, in two or less of the above-described categories of evaluation, 
the Board shall allow the applicant to correct the deficiency or deficiencies by attendance 
at and completion of a course or program in each said deficient area. Said program or 
course shall have prior written approval by the Board. Upon successful completion of all 
such approved programs, the Board shall forthwith issue to the candidate a letter 
indicating that he or she may proceed with his preceptorship program. 
2.5.7.3 
In the event that a preceptorship candidate receives a negative or deficient evaluation 
from his or her preceptor, in more than two of the above-described categories of 
evaluation, the candidate may request another Delaware licensed podiatrist to 
independently evaluate the candidate’s competency in those areas and report to the 
Board. The Board will review all evaluations and make a determination as to the status of 
the preceptorship. 
Statutory authority: 24 Del.C. §§508(a)(2) 

(Break in Continuity of Sections) 

4.0 
Reciprocity 
(Break in Continuity Within Section) 

4.2 
Requirements for registration and certification, as they relate to states other than Delaware, are 
deemed by the Board to be substantially similar to those of the State of Delaware when said 
requirements include: 
4.2.1 
Satisfactory completion of a degree of Doctor of Podiatric Medicine or its equivalent from a school 
currently accredited by the APMA or its successor; 
4.2.2 
Satisfactory completion of the NBPME Part I, Part II and PMLexis examinations, with at least the 
minimum passing score recommended by the testing service providing the examination; and; 
4.2.3 
Satisfactory completion of a hospital residency program approved by the American Podiatric 
Medical Association (APMA), or completion of an approved preceptorship program in the office of 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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a podiatrist, licensed in the state in which the applicant is licensed or certified, for a period of one 
year. 

*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

500 Board of Podiatry 

DIVISION OF PROFESSIONAL REGULATION 

1100 BOARD OF DENTISTRY AND DENTAL HYGIENE 
Statutory Authority: 24 Delaware Code, Section 1106(a)(1) (24 Del.C. §1106(a)(1)) 
24 DE Admin. Code 1100 


ORDER 

1100 Board of Dentistry and Dental Hygiene 

On May 1, 2015, the Delaware Board of Dentistry and Dental Hygiene published proposed changes to its 
regulations in the Delaware Register of Regulations, Volume 18, Issue 11. This notice further indicated that written 
comments would be accepted by the Board for thirty days, a public hearing would be held, and written comments 
would be accepted for fifteen days thereafter. After due notice in the Register of Regulations and two Delaware 
newspapers, a public hearing was held on June 18, 2015 at a regularly scheduled meeting of the Delaware Board 
of Dentistry and Dental Hygiene to receive verbal comments regarding the Board's proposed amendments to its 
regulations. 

SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED 

At the time of the deliberations, the Board considered the following documents: 

Board Exhibit 1 - Affidavit of publication of the public hearing notice in the News Journal; and 

Board Exhibit 2 -Affidavit of publication of the public hearing notice in the Delaware State News. 

There was no verbal testimony given at the public hearing on June 18, 2015. No written comments were 
received by the Board during the initial thirty day public comment period; nor were any written comments received 
after the public hearing during the fifteen day 29 Del.C. §10118(a) second public comment period. 

FINDINGS OF FACT AND CONCLUSIONS 

1. The public was given notice and an opportunity to provide the Board with comments in writing and by 
testimony at the public hearing on the proposed amendments to the Board's regulations. 
2. There were no public comments provided to the Board during the two written public comment periods, or 
the public hearing. 
3. Pursuant to 24 Del.C. §1106(a)(1) the Board has statutory authority to promulgate rules and regulations 
clarifying specific statutory sections of its statute. 
4. The proposed changes to the Board's regulations, at 10.0, et. seq. seek to clarify the bases and 
procedures for appeals to the dental and dental hygiene clinical examinations. 
5. The public was given notice and an opportunity to provide the Board with comments in writing and by 
testimony at the public hearing on the proposed changes to the Board's rules and regulations. 
6. Having received no public comments, the Board finds no reason to amend the regulations as proposed. 
DECISION AND ORDER CONCERNING THE REGULATIONS 

NOW THEREFORE, pursuant to 24 Del.C. §1106(a)(1) and for the reasons set forth above, the Board of 
Dentistry and Dental Hygiene does hereby ORDER that the regulations be, adopted and promulgated as set forth 

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in the Delaware Register of Regulations on November 1, 2015. The effective date of this Order is ten days from the 
date of its publication in the Delaware Register of Regulations, pursuant to 29 Del.C. §10118(g). 

The new regulations are attached hereto as Exhibit A. 

SO ORDERED this 15th day of October, 2015. 

BOARD OF DENTISTRY AND DENTAL HYGIENE: 

Brian McAllister, DDS, President Bruce Mathews, DDS (absent) 

Lucinda Bunting, DDS, Secretary Thomas A. Mercer, DMD 

Carol Argo, RDH Rumiko Nelson, RDH, Hygiene Advisory 

Rozi Berberian, Public Member Buffy Parker, RDH, Hygiene Advisory 

Debra Bruhl, RH, Hygiene Advisory (absent) Mary Trinkle, RDH, Hygiene Advisory 

June Ewing, Public Member Sharon Welsh, DDS 

Nathaniel Gibbs, Public Member 

*Please note that no changes were made to the regulation as originally proposed and published in the May 
2015 issue of the Register at page 849 (18 DE Reg. 849). Therefore, the final regulation is not being 
republished. A copy of the final regulation is available at: 

1100 Board of Dentistry and Dental Hygiene 

DIVISION OF PROFESSIONAL REGULATION 

1900 BOARD OF NURSING 
Statutory Authority: 24 Delaware Code, Section 1904(c) (24 Del.C. §1904(c)) 
24 DE Admin. Code 1900 


ORDER 

1900 Board of Nursing 

The Delaware Board of Nursing pursuant to 24 Del.C. §1904(c), proposed to revise Regulations 2.1, 2.4.1.7, 
3.0, 4.0, 5.0, and 9.4.5.1. The proposed change at 2.1 adds definition to the nursing regulations regarding nursing 
competency and standards. The proposed change at 2.4.1.7 revises the Board’s regulations approved nursing 
education programs and such programs acceptable curricula. The proposed changes at 3.0 and 4.0 offer updates 
to the Board’s refresher course or supervised practice requirement for nurses who seek to apply for endorsement 
or reinstatement of licensure and have not been actively employed over the past five years. The proposed changes 
at 5.0, et. seq. seek to bring the nursing regulations into line with a recent statutory change addressing the limited 
lay administration of medications, and the proposed change at 9.4.5.1 eliminates a Board requirement that 
continuing education programs keep a record of participants’ social security numbers. 

SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED 

Following publication in the Delaware Register of Regulations on August 1, 2015 a public hearing was held on 
September 9, 2015. Written comment periods were held open for thirty days, and an additional fifteen days 
following the public hearing. At the hearing, the Board accepted as evidence and marked as the Board’s Exhibits 1 
and 2 documentation of publication of the notice of the public hearing in the News Journal and the Delaware State 
News. The Board further marked as Board Exhibit 3 a letter dated August 26, 2015 from the Delaware State 
Council for Persons with Disabilities commenting upon the proposed regulatory changes, and a letter dated August 
31, 2015 from the Governor’s Advisory Council for Exceptional Citizens as Board Exhibit 4. 

At the time of the deliberations, the Board considered the following documents: 

Board Exhibit 1 – Affidavit of publication of the public hearing notice in the News Journal; 

Board Exhibit 2 – Affidavit of publication of the public hearing notice in the Delaware State News; 

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Board Exhibit 3 – August 26, 2015 letter from the Delaware State Council for Persons with Disabilities 
(DSCPD) stating that the Board should consider allowing nurses to work in setting beyond long term care facilities 
for supervised practice plans; the Board should include non-prescription drug administration in section 5 of the 
regulations; and the Board should consider clarifying how many medication errors LLAM trained unlicensed 
assistive personnel may commit before being required to retake the training program; and 

Board Exhibit 4 – August 31, 2015 letter from the Governor’s Advisory Council for Exceptional Citizens 
(GACEC) restating the concerns raised by the DSCPD. 

There was no verbal testimony given at the public hearing on September 9, 2015. No written comments were 
received by the Board after the public hearing during the fifteen day 29 Del.C. §10118(a) second public comment 
period. 

FINDINGS OF FACT AND CONCLUSIONS 

1. The public was given notice and an opportunity to provide the Board with comments in writing and by 
testimony at the public hearing on the proposed amendments to the Board’s regulations. 
2. The SCPD and GACEC’s first public comment stated that the Board should consider broadening the 
eligible facilities or settings for a nurse to complete a supervised practice plan. 
3. The Board did not disagree with this comment and noted that such an expansion is allowed by the statute 
and will be discussed by the Board’s Rules and Regulations Committee in the near future. While the Board 
generally agreed with the comments, it did not see either comment as a basis to change the currently proposed 
regulation 4.2.1 and thus mandate that the Board begin the regulation promulgation process anew. 
4. The SCPD and GACEC’s second comment recommended that the Board add “nonprescription” to 
proposed regulation 5.2.1 in order to comply with the recently added statutory provisions at 24 Del.C. §§1902(h) 
and 1932(a). 
5. The Board noted that the reference to prescription in regulation 5.2.1 refers to the fact that in order to 
administer either an over the counter or prescription medication in an eligible facility, a UAP must have a doctor’s 
order/prescription. As such, the Board voted to move forward with the regulation as proposed, but noted that the 
LLAM Committee will discuss whether this language should be clarified through future regulation changes. 
6. The SCPD and GACEC’s third comment expressed confusion that the regulations indicate at 5.5.2 that a 
UAP must repeat the LLAM training program after two errors, but at 5.4.2 state that the UAPs may renew their 
status by demonstrating no errors. 
7. The Board pointed out that proposed regulation 5.4.2 refers to errors in the LLAM training program, not 
errors in medication administration after completion of the training program. As such, the Board agreed that no 
changes were needed in response to these comments. 
8. The SCPD and GACEC’s fourth comment recommended that the Board not require UAPs to re-take the 
training program every year. 
9. The Board disagreed with this comment, particularly as UAPs are unlicensed individuals. As such, the 
Board believes it is of great importance that such individuals repeatedly establish that they are competent to 
administer medications through an annual renewal and testing process. 
10. Pursuant to 24 Del.C. §1906(a)(1) the Board has statutory authority to promulgate rules and regulations 
clarifying specific statutory sections of its statute. 
11. The proposed change at 2.1 adds definition to the nursing regulations regarding nursing competency and 
standards. The proposed change at 2.4.1.7 revises the Board’s regulations approved nursing education programs 
and such programs acceptable curricula. The proposed changes at 3.0 and 4.0 offer updates to the Board’s 
refresher course or supervised practice requirement for nurses who seek to apply for endorsement or 
reinstatement of licensure and have not been actively employed over the past five years. The proposed changes at 
5.0, et. seq. seek to bring the nursing regulations into line with a recent statutory change addressing the limited lay 
administration of medications, and the proposed change at 9.4.5.1 eliminates a Board requirement that continuing 
education programs keep a record of participants’ social security numbers. 
12. The public was given notice and an opportunity to provide the Board with comments in writing and by 
testimony at the public hearing on the proposed changes to the Board’s rules and regulations. 
13. For the reasons stated above, the Board finds no reason to amend the regulations as proposed. 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

DECISION AND ORDER CONCERNING THE REGULATIONS 

Having found that the proposed changes to the regulations are necessary as outlined herein, the Board finds 
that the regulations shall be adopted as final in the form as proposed. The exact text of the regulations, as 
amended, are attached to this order as Exhibit A. These changes will become effective ten days following 
publication of this order in the Delaware Register of Regulations on November 1, 2015. 

IT IS SO ORDERED this 14th day of October, 2015 by the Delaware Board of Nursing. 
Robert Contino, RN, President Raymond Moore, Public Member (absent) 
Pam Tyranski, RN, Vice-President (absent) Madelyn Nellius, Public Member 
Kathy L. Bradley, LPN David Salati, RN 
George Brown, Public Member Harland Sanders, Jr., Public Member 
Linda Darling, RN Victoria Udealer, RN 
Valerie Devereaux, DNP, MSN, RN Megan Williams, APN 
Dianne Halpern, RN 


*Please note that no changes were made to the regulation as originally proposed and published in the 
August 2015 issue of the Register at page 125 (19 DE Reg. 125). Therefore, the final regulation is not being 
republished. A copy of the final regulation is available at: 

1900 Board of Nursing 

PUBLIC SERVICE COMMISSION 

Statutory Authority: 29 Delaware Code, Section 103(3) (3 Del.C. §103(b)) 
8 DE Admin. Code 1202 

ORDER NO. 8790 

IN THE MATTER OF THE ADOPTION OF RULES AND | 
REGULATIONS GOVERNING THE PROCEDURE | 
FOR INSPECTION AND COPYING OF PUBLIC | 
RECORDS UNDER THE FREEDOM OF | PSC REGULATION DOCKET NO. 62 
INFORMATION ACT, 29 Del.C., §§10001-10006 | 
(OPENED AUGUST 17, 2010; REOPENED MAY 10, | 
2011; REOPENED NOVEMBER 8, 2011) | 

1202 Policies and Procedures Regarding FOIA Requests 

AND NOW, this 22nd day of September, 2015, in accordance with 26 Del.C. §209(a)(1) and 29 Del.C. 
§§10113(b) and 10003(b), for the reasons stated below, this ORDER is adopted to amend the regulations of Public 
Service Commission (“Commission”) setting forth the Policies and Procedures regarding requests under the 
Delaware Freedom of Information Act (“FOIA”). 

NATURE OF PROCEEDINGS 

1. On October 20, 2011, the Governor of the State of Delaware signed Executive Order Number 31 which 
directed each executive branch agency to implement and promulgate uniform FOIA policies in substantial 
compliance with the form attached to the Executive Order. In accordance with Executive Order Number 31, 26 
Del.C. §209(a)(1), and 29 Del.C. §10113(b)(1), the Commission repealed its prior regulations and adopted new 
final regulations governing the policies and procedures regarding FOIA requests in Order No. 8082, dated 
December 20, 2011. These regulations were published in the Delaware Register of Regulations on January 1, 
2012, and became effective ten days from the date of publication in the Delaware Register of Regulations, in 
DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


FINAL REGULATIONS 

accordance with 29 Del.C. §10118(g). 

2. Pursuant to 78 Del. Laws, c. 382, §1, 29 Del.C. §10002 of Delaware’s FOIA statute was amended, 
effective August 1, 2012. As a result, certain subsections incorporated by the Commission’s regulations were 
renumbered. 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

3. The Commission has statutory authority to promulgate regulations pursuant to 26 Del.C. §209(a)(1). 
4. Pursuant to 29 Del.C. §10113(b), regulations describing an agency’s procedures for obtaining information, 
nonsubstantive changes in existing regulations that correct technical errors, and amendments to existing 
regulations that make them consistent with changes in basic law but which do not otherwise alter the substance of 
the regulations are exempted from the notice and public comment requirements of 29 Del.C. Ch. 101. 
NOW, THEREFORE, IT IS HEREBY ORDERED BY THE AFFIRMATIVE VOTE 
OF NOT FEWER THAN THREE COMMISSIONERS: 


5. Under the statutory authority and for the reasons set forth in the body of this Order, the Commission does 
hereby ORDER that the regulations attached as Exhibit “A” be, and that they hereby are, adopted and promulgated 
as set forth below to make certain technical corrections consistent with the amendments of 78 Del. Laws, c. 382, 
§1. 
6. That, pursuant to 29 Del.C. §§1133 and 10115(a), the Secretary shall transmit to the Registrar of 
Regulations for publication in the Delaware Register of Regulations a copy of this Order. 
7. That 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). 
8. That the Commission reserves the jurisdiction and authority to enter such further Orders in this matter as 
may be deemed necessary or proper. 
BY ORDER OF THE COMMISSION: 

Dallas Winslow, Chair 
Joann T. Conaway, Commissioner 
Harold B. Gray, Commissioner 

K. F. Drexler, Commissioner 
Mike Karia, Commissioner 
ATTEST: 
Donna Nickerson, Secretary 


1202 Policies and Procedures Regarding FOIA Requests 

(Break in Continuity of Sections) 

3.0 
Records Request, Response Procedures and Access 
(Break in Continuity Within Section) 

3.7 
Review by Commission 
3.7.1 
Prior to disclosure, records may be reviewed by the Commission to ensure that those records or 
portions of records deemed non-public may be removed pursuant to 29 Del.C. §10002(gl) or any 
other applicable provision of law. In reviewing the records, all documents shall be considered 
Public Records unless subject to one of the exceptions set forth in 29 Del.C. §10002(gl) or any 
other applicable provision of law. Nothing herein shall prohibit the Commission from disclosing or 
permitting access to Public Records if the Commission determines to disclose such records, 
except where such disclosure or access is otherwise prohibited by law or regulation. 
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FINAL REGULATIONS 

3.8 
Hours of Review 
3.8.1 
The Commission shall provide reasonable access for reviewing Public Records during its regular 
business hours. 
(Break in Continuity of Sections) 

6.0 
Agency-Specific Provisions. 
(Break in Continuity Within Section) 

6.2 
Records identified as non-public pursuant to 29 Del.C. §10002(gl) shall not be produced in response 
to a FOIA Request. In addition, the following procedures shall apply to requests seeking records that 
the Commission believes are non-public because they are Third Party Confidential Records: 
*Please Note: As the rest of the sections were not amended, they are not being published. A copy of the 
regulation is available at: 

1202 Policies and Procedures Regarding FOIA Requests 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


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DELAWARE RIVER BASIN COMMISSION 

PUBLIC NOTICE 

The Delaware River Basin Commission will hold a public hearing on Tuesday, November 10, 2015 beginning 
at 1:30 p.m. A business meeting will be held the following month on Wednesday, December 9, 2015 beginning at 

10:30 a.m. The hearing and meeting are open to the public and will be held at the Washington Crossing Historic 
Park Visitor Center, 1112 River Road, Washington Crossing, Pennsylvania. For more information, visit the DRBC 
web site at www.drbc.net or contact Pamela M. Bush, Commission Secretary and Assistant General Counsel, at 
609-883-9500 extension 203. 
DEPARTMENT OF AGRICULTURE 

THOROUGHBRED RACING COMMISSION 

PUBLIC NOTICE 

1001 Thoroughbred Racing Rules and Regulations 

The Thoroughbred Racing Commission proposes to amend its Regulations adopted in accordance with Title 3, 
Chapter 101. The purpose of the amended regulations is to adopt the ARCI Endogenous, Dietary, or 
Environmental Substances Schedule. Other regulations issued by the Thoroughbred Racing Commission are not 
affected by this proposal. The Thoroughbred Racing Commission is issuing these proposed regulations in 
accordance with Title 3 of the Delaware Code. This notice is issued pursuant to the requirements of Chapter 101 of 
Title 29 of the Delaware Code. 

A copy of the proposed regulations is being published in the November 1, 2015 edition of the Delaware 
Register of Regulations. A copy is also on file in the office of the Thoroughbred Racing Commission, 777 Delaware 
Park Boulevard, Wilmington, Delaware 19804 and is available for inspection during regular office hours. Copies are 
also published online at the Register of Regulations website: http://regulations.delaware.gov/services/ 
current_issue.shtml. 

Interested parties may offer written comments on the proposed regulations or submit written suggestions, data, 
briefs or other materials to the Thoroughbred Racing Commission at the above address as to whether these 
proposed regulations should be adopted, rejected or modified. Pursuant to 29 Del.C. §10118(a), public comments 
must be received on or before December 1, 2015. Written materials submitted will be available for inspection at the 
above address. 

On or after December 1, 2015, following review of the public comment, the Thoroughbred Racing Commission 
will determine whether to amend its regulations by adopting the proposed changes to rule 15.1.3.1.3 relating to the 
ARCI Endogenous, Dietary or Environmental Substances Schedule or make additional changes because of the 
public comments received. 

DEPARTMENT OF EDUCATION 

PUBLIC NOTICE 

The State Board of Education will hold its monthly meeting on Thursday, November 19, 2015 at 1:00 p.m. in the 
Townsend Building, Dover, Delaware. 

DEPARTMENT OF HEALTH AND SOCIAL SERVICES 

DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

PUBLIC NOTICE 

Pharmaceutical Services Reimbursement – 340B Drug Products 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware 
Code), 42 U.S.C., §1902(a)(13)(A) of the Social Security Act, 42 CFR §447.205, and under the authority of Title 31 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CALENDAR OF EVENTS/HEARING NOTICES 

of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of 
Medicaid and Medical Assistance (DMMA) is proposing to amend the Delaware Title XIX Medicaid State Plan 
regarding Pharmaceutical Services, specifically, to clarify reimbursement methodology for entities that purchase 
340B drug products. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. 

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 MEDICAID AND MEDICAL ASSISTANCE 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services -Mental Health Services 

In compliance with the State's Administrative Procedures Act (APA -Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, specifically, coverage and reimbursement methodologies for rehabilitative mental 
health services. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: EPSDT 

– Mental Health Services. 
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 MEDICAID AND MEDICAL ASSISTANCE 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services - Substance Use Disorder 

Services 

In compliance with the State's Administrative Procedures Act (APA -Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, specifically, coverage and reimbursement methodologies for Medicaid rehabilitative 
substance use disorder services. 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: EPSDT 

– Substance Use Disorder Services. 
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. 

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DIVISION OF MEDICAID AND MEDICAL ASSISTANCE 

PUBLIC NOTICE 

Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services - Inpatient Psychiatric Hospital 

Services for Individuals under Age 21 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware 
Code), 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, 
Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing 
to amend the Delaware Title XIX Medicaid State Plan regarding Early and Periodic Screening, Diagnosis, and 
Treatment (EPSDT) Services, addressing Inpatient Psychiatric Hospital Services for Individuals under Age 21, 
specifically, coverage and reimbursement methodology for psychiatric residential treatment facilities (PRTFs). 

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 Glyne Williams, Planning, Policy and 
Quality Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, 
Delaware 19720-0906 or by fax to 302-255-4425 by December 1, 2015. Please identify in the subject line: Inpatient 
Psychiatric Hospital Services for Individuals under Age 21. 

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 PUBLIC HEALTH 

PUBLIC NOTICE 

4304 Medical Orders for Life-Sustaining Treatment or Pre-Hospital Advance Care Directives 

Division of Public Health, Department of Health and Social Services, is proposing to repeal and replace 
regulations for Delaware Medical Orders Scope of Treatment (DMOST). The purpose of replacing existing 
regulation with the proposed regulations is to improve the quality of care people receive at the end of life by 
translating patient/resident goals and preferences into medical orders. The proposed regulations will set 
requirements for use of DMOST forms, provide guidance in the use of the forms and formalize the DMOST form 
itself. On November 1, 2015, DPH plans to publish as proposed the new regulations, and hold them out for public 
comment per Delaware law. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Friday, December 4, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

DIVISION OF PUBLIC HEALTH 

PUBLIC NOTICE 

4406 Home Health Agencies--Aide Only (Licensure) 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 
Services, is proposing revisions to the regulations governing Home Health Care Agencies - Aide Only (4406). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CALENDAR OF EVENTS/HEARING NOTICES 

nursing facilities and hospitals. This change will allow patients to receive the services necessary to safely achieve 
their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

DIVISION OF PUBLIC HEALTH 

PUBLIC NOTICE 

4410 Skilled Home Health Agencies (Licensure) 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 
Services, is proposing revisions to the regulations governing Home Health Care Agencies - Skilled (4410). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 
nursing facilities and hospitals. This change will allow patients to receive the services necessary to safely achieve 
their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

DIVISION OF PUBLIC HEALTH 

PUBLIC NOTICE 

4469 Personal Assistance Services Agencies 

Health Systems Protection Section (HSP), Division of Public Health, Department of Health and Social 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015 


CALENDAR OF EVENTS/HEARING NOTICES 

Services, is proposing revisions to the regulations governing Personal Assistance Service Agencies (4469). One 
purpose of the amendments to these regulations is to allow for the provision of services by these agencies in 
nursing facilities and hospitals. This change will allow consumers to receive the services necessary to safely 
achieve their highest level of independence and optimal quality of life while residing in their own home or during a 
necessary hospitalization. In addition, amendments were made to update the requirements to ensure patients 
receive safe and quality care. On November 1, 2015, HSP plans to publish as proposed the amended regulations, 
and hold them out for public comment per Delaware law. 

A public hearing will be held on Wednesday, December 2, 2015 at 2:00 p.m. in the First Floor Conference 
Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. 

Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware 
Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public 
Health at (302) 744-4951. 

Any person who wishes to make written suggestions, testimony, briefs or other written materials concerning 
the proposed regulations must submit same to Jamie Mack by Thursday, December 17, 2015, at: 

Jamie Mack 

Division of Public Health 

417 Federal Street 

Dover, DE 19901 

Email: jamie.mack@state.de.us 

Phone: (302) 744-4951 

DEPARTMENT OF INSURANCE 

OFFICE OF THE COMMISSIONER 

PUBLIC NOTICE 

1801 Registration of Insurance Holding Companies 

INSURANCE COMMISSIONER KAREN WELDIN STEWART hereby gives notice of proposed amended 
Department of Insurance Regulation 1801 relating to Registration of Insurance Holding Companies [Formerly 
Regulation 13]. The docket number for this proposed AMENDED regulation is 2969-2015. 

The proposed amended regulation is being submitted to maintain accreditation and replaces the current 
regulation with the updated National Association of Insurance Commissioners (NAIC) Model Insurance Holding 
Company System Model Regulation With Reporting Forms And Instruction, to support the Insurance Holding 
Company System Regulatory Act. The Delaware Code authority for the change is 18 Del.C. §311 and Ch. 50, and 
29 Del.C. Ch. 101. 

The Department of Insurance does not plan to hold a public hearing on the proposed amended regulation. The 
proposed amended regulation appears below and can also be viewed at the Delaware Insurance Commissioner's 
website at: 

www.delawareinsurance.gov/departments/documents/ProposedRegs/ProposedRegs.shtml 

Any person can file written comments, suggestions, briefs, and compilations of data or other materials 
concerning the proposed amendment. Any written submission in response to this notice and relevant to the 
proposed regulation must be received by the Department of Insurance no later than 4:30 p.m. EST, Tuesday, 
December 1, 2015. Any such requests should be directed to: 

Regulatory Specialist Rhonda West 

Delaware Department of Insurance 

841 Silver Lake Boulevard 

Dover, DE 19904 

Phone: (302) 674-7379 / Fax: (302) 739-5566 

Email: rhonda.west@state.de.us 

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DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL 
CONTROL 


DIVISION OF ENERGY AND CLIMATE 

102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 

PUBLIC NOTICE 

The purpose of this action is to propose rules to govern how the Director of the Division of Energy & Climate 
(Director) and the Division of Energy & Climate (Division) administer their obligations under 26 Del.C. §354(i) & (j). 
The statute directs when and whether the Director may institute a freeze on the implementation of Delaware's 
Renewable Energy Portfolio Standards as provided for in 26 Del.C. §354(a). 

Start Action Notice 2012-03 initiating this rule making process was issued April 16, 2012. 

This proposed regulation replaces the regulation posted in the Register on October 1, 2015, which contained 
significant typographical errors. 

The hearing record on 102 Implementation of Renewable Energy Portfolio Standards Cost Cap Provisions 
(Proposed Rules to Implement 26 Del.C. §354(i) & (j)) will open November 1, 2015 and will close December 8, 
2015 at 4:30 PM. 

Individuals may submit written comments regarding the proposed changes via e-mail to Lisa.Vest@state.de.us 
or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901 (302) 739-9042. 
However, any comments submitted in response to the regulation posted in the October 1, 2015 Register will be 
considered to be part of the record. 

The public hearing scheduled for November 3, 2015, starting at 6:00 p.m. in the DNREC Auditorium, 89 Kings 
Highway, Dover, DE 19901 has been cancelled and rescheduled for November 23, 2015 as noted below. 

A public hearing on the proposed amendment will be held on November 23, 2015 beginning at 6:00 p.m. in the 
Public Service Commission Hearing Room, 861 Silver Lake Blvd., Dover, DE, 19904. 

DIVISION OF FISH AND WILDLIFE 

3542 Tilefish 

PUBLIC NOTICE 

The Department of Natural Resources & Environmental Control (DNREC) initiated the development of regulations 
pertaining to Tilefish at the request of the Mid-Atlantic Fishery Management Council (MAFMC) and based on guidance 
from Delaware’s Advisory Council on Tidal Finfisheries. Two management options were presented to the public in 
proposed form (18 DE Reg. 951 (06/01/15)) and a public hearing on the matter was held June 24, 2015 at 6:00 PM in 
the DNREC Auditorium, Dover, DE. Both management options included a commercial trip limit of 300 pounds and a 
recreational possession limit of no more than seven fish per person; however, one option limited the new regulation to 
Blueline Tilefish (Caulolatilus microps) and one option applied the regulation more broadly (as in Maryland and 
Virginia) to include both Blueline and Golden Tilefish (Lopholatilus chamaelonticeps). The hearing record was closed 
on July 9, 2015. Following careful consideration of the hearing record, the Department has opted to adopt a Tilefish 
regulation that affords protections to both Blueline Tilefish and Golden Tilefish (Option 2). Additionally, to provide 
greater understanding to the regulated community, the Department proposes to clarify that the term “possess” pertains 
to individuals “aboard a vessel”. 

No additional hearing will be held; the Department will receive written comment through November 30, 2015. 
Individuals may submit written comments regarding the proposed clarification to 7 DE Admin. Code 3542 via email 
to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, 
DE 19901 (302) 739-9042. 

DIVISION OF WASTE AND HAZARDOUS SUBSTANCES 

TANK MANAGEMENT BRANCH 
1351 Underground Storage Tank Systems 


PUBLIC NOTICE 

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CALENDAR OF EVENTS/HEARING NOTICES 

DNREC is taking action to clarify several issues concerning cleanup liability associated with releases from 
underground storage tanks resulting from the amendment of 7 Delaware Code Chapter 74, Delaware’s 
Underground Storage Tank Act in October 2014. These changes clarify when the Department will require a 
responsible party to perform additional corrective actions following the Department issuing a No Further Action 
letter. Also, the changes establish an All Appropriate Inquiry Standard for residential properties that if completed 
would exempt a purchaser from liability associated with the cleanup of a release from an underground storage tank 
discovered after they purchased the property. 

The hearing record on the proposed amendments to 7 DE Admin Code §1351 Underground Storage Tank 
Regulations will be open November 1, 2015. Individuals may submit written comments regarding the proposed 
changes via e-mail to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings 
Highway, Dover, DE 19901 (302) 739-9042. A public hearing on the proposed amendments will be held on 
December 1, 2015 beginning at 6:00 PM in the DNREC New Castle Office, located at 391 Lukens Drive, New 
Castle DE 19720. 

DEPARTMENT OF SAFETY AND HOMELAND SECURITY 

DIVISION OF STATE POLICE 

2400 BOARD OF EXAMINERS OF CONSTABLES 

PUBLIC NOTICE 

Notice is hereby given that the Board of Examiners of Constables, in accordance with 10 Del.C. Ch. 27 
proposes to amend/adopt Rules: 4.0 – Badges & Vehicle Markings – requires all badges and vehicle markings to 
be approved by the Board, and; 9.0 – Minimum Training Standards & In-Service Training – clarifies the 
requirements for the training standards and continuing education through in-service. If you wish to view these 
amendments/adoptions, contact Ms. Peggy Anderson at 302-672-5304. Any persons wishing to present views may 
submit them in writing, by December 1, 2015, to Delaware State Police, Professional Licensing, P.O. Box 430, 
Dover, DE 19903. The Board will hold the annual meeting on Thursday, December 10, 2015, Tatnall Building, 150 
Martin L. King, Jr. Boulevard South, Room 112, Dover, DE. 

OFFICE OF THE ALCOHOLIC BEVERAGE CONTROL COMMISSIONER 

PUBLIC NOTICE 

Alcoholic Beverage Control Regulations 

The Office of the Alcoholic Beverage Control Commissioner intends to amend Title 4 of the Delaware 
Administrative Code by revising the existing regulations to reflect the current regulatory environment. These 
amendments will update the regulations to control the manner of the sale of alcoholic beverages to protect the 
public safety and insure that the sales are in the best interest of the public. 

These proposed amendments were previously published in September 2014 and have not been changed 
since that date. Any comments regarding the previously proposed amendments made: 

a) at the hearings, 

b) in writing with delivery to this Office, and 

c) electronically sent to this Office 

will be considered and there is no necessity of repeating these comments. 

Should you desire to make additional comments, written comments will be accepted until close of business on 
December 2, 2015. Written comments should be submitted to Lauren Shinault, Regulation Review, Office of the 
Alcoholic Beverage Control Commissioner, Carvel Building 3rd Floor, 820 N. French Street, Wilmington, Delaware 
19801 or electronically to OABCCrulescomments@state.de.us. A copy of these regulations may be viewed at the 
above address. 

DELAWARE REGISTER OF REGULATIONS, VOL. 19, ISSUE 5, SUNDAY, NOVEMBER 1, 2015