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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsDecember 2016

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14 DE Admin. Code 612
The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol. This regulation is being amended to update drug and alcohol policy posting requirements.
Notice of the proposed regulation was published in the News Journal and the Delaware State News on October 1, 2016, in the form hereto attached as Exhibit "A". Comments were received from the Governor's Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities regarding: (1) minimum vs. uniform requirements for student conduct. The specific requirements of 14 Del.C. §122(b)(26) are addressed in 14 DE Admin. Code 614 and 616. No change was made to this portion of the regulation; (2) the suggested deletion of Section 4.1.7 referring to "the following penalties" as the language referred to was removed. The Department thanks the Councils for noting this unnecessary language, and notes such language was removed and the section was renumbered accordingly. Additionally, the definitions of "Suspension" and "Explusion" were removed as they are not specifically referenced in the regulation; (3) the suggested deletion of reference to a release of liability. The Department believes the concern is addressed in 4.2.1 and 4.2.2 and therefore no change was made to the regulation regarding release of liability; (4) suggesting there is some "tension" between Senate Bill 181 and disability-related laws. The Department is abiding by the requirements of the statute. No change was made to the regulation in this regard.
The Secretary finds that it is appropriate to amend 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol to update drug and alcohol policy posting requirements.
For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol attached hereto as Exhibit "B" is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.
The text of 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol amended hereby shall be in the form attached hereto as Exhibit "B", and said regulation shall be cited as 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol in the Administrative Code of Regulations for the Department of Education.
The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on November 17, 2016. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.
IT IS SO ORDERED the 17th day of November 2016.
Approved this 17th day of November 2016
State Board of Education
1.0 The Following Policy on the Possession, Use, or Distribution of Drugs and Alcohol Shall Apply to All Public School Districts and Charter Schools Purpose
1.1 2.1.1 The possession, use and/or distribution of aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike sSubstance and dDrug pParaphernalia are wrong and harmful to students and are prohibited within the sSchool eEnvironment, unless medically necessary.
1.2 2.1.2 Student lockers are the property of the school and may be subjected to search at any time with or without reasonable suspicion.
1.3 2.1.3 Student motor vehicle use to and in the sSchool eEnvironment is a privilege which may be extended by school districts or charter schools to students in exchange for their cooperation in the maintenance of a safe school atmosphere. Reasonable suspicion of a student's use, possession or distribution of aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike substance or dDrug pParaphernalia in the sSchool eEnvironment, may result in the student being asked to open an automobile in the sSchool eEnvironment to permit school authorities to look for such items. Failure to open any part of the motor vehicle on the request of school authorities may result in the police being called to conduct a search, and will result in loss of the privilege to bring the vehicle on campus.
1.4 2.1.4 All aAlcohol, dDrugs, dDrug lLike sSubstances, lLook aAlike sSubstances and dDrug pParaphernalia found in a student's possession shall be turned over to the principal or designee, and be made available, in the case of a medical emergency, for identification. All substances shall be sealed and documented, and, in the case of substances covered by 16 Del.C. Ch. 47, turned over to police as potential evidence.
23.0 The Following Definitions Shall Apply to This Policy and Will be Used in All District and Charter School Policies
The following definitions shall apply to this regulation, unless a specific regulation, statute or the context in which they are used clearly indicates otherwise, and shall apply to all public school districts and charter schools.
"Alcohol" shall means alcohol or any alcoholic liquor capable of being consumed by a human being, as defined in 4 Del.C. §101 including alcohol, spirits, wine and beer.
Designated Caregiver” means, pursuant to 16 Del.C. §4902A(5), a person who: is at least 21 years of age unless the person is the parent or legal guardian of a minor who is a qualifying patient; has agreed to assist with a patient's medical use of marijuana; has not been convicted of an excluded felony offense; and assists no more than 5 qualifying patients with their medical use of marijuana.
"Distribute", "Distributing" or "Distribution" shall means the transfer or attempted transfer of aAlcohol, a dDrug, a dDrug lLike sSubstance, or dDrug pParaphernalia to any other person with or without the exchange of money or other valuable consideration.
"Drug" shall means any controlled substance or counterfeit substance as defined in 16 Del.C. §4701 including, for example, narcotic dDrugs such as heroin or cocaine, amphetamines, anabolic steroids, and marijuana, and shall include any prescription substance which has been given to or prescribed for a person other than the student in whose possession it is found.
"Drug Like Substance" shall means any noncontrolled and nonprescription substance capable of producing a change in behavior or altering a state of mind or feeling, including, for example, some over the counter cough medicines, certain types of glue, caffeine pills and diet pills. The definition of dDrug lLike sSubstance does not include tobacco or tobacco products which are governed by 14 DE Admin. Code 877 Tobacco Policy.
"Drug Paraphernalia" shall means all equipment, products and materials as defined in 16 Del.C. §4701 including, for example, roach clips, miniature cocaine spoons and containers for packaging dDrugs.
["Expulsion" shall means exclusion from school for a period determined by the local district or charter school not to exceed the total number of student days. The process for readmission shall be determined by the local district or charter school. disciplinary action approved by the Board of Education resulting in a student being removed from the regular school program for a duration not to exceed the total number of student days in a school year. A student expelled without appropriate educational services shall be unenrolled from the district/charter during the term of the expulsion. Regardless of whether without or with services, including alternative placement, the expelled student is not eligible to enroll in any other Delaware public school during the period of the expulsion and until any reasonable terms of the expulsion are fulfilled.]
"Look Alike Substance" shall means any noncontrolled substance which is packaged so as to appear to be, or about which a student makes an express or implied representation that the substance is, a dDrug or a noncontrolled substance capable of producing a change in behavior or altering a state of mind or feeling. See 16 Del.C. §4752A.
Medical Marijuana Oil” means as defined in 16 Del.C. §4902A(10).
"Nonprescription Medication" shall means any over the counter medication; some of these medications may be a "dDrug lLike sSubstance."
"Possess" "Possessing" or "Possession" shall means that a student has on the student's person, in the student's belongings, or under the student's reasonable control by placement of and knowledge of the whereabouts of, aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike sSubstance, or dDrug pParaphernalia.
"Prescription Drugs Medication(s)" shall means any substance obtained directly from or pursuant to a valid prescription or order of a practitioner, as defined in 16 Del.C. §4701(24), while acting in the course of his or her professional practice, and which is specifically intended for the student in whose possession it is found.
Relative Caregiver means an individual who meets the criteria and requirements of 14 Del.C. §202 (f)(1).
"School Environment" shall means within or on school property, and at school sanctioned or supervised activities, including, for example, on school grounds, on school buses, at functions held on school grounds, at extra curricular activities held on and off school grounds, on field trips and at functions held at the school in the evening.
[Suspension” means, for the purposes of this regulation, disciplinary action approved by the principal or school discipline committee resulting in the student being removed from his regular school program for at least one (1) school day and not more than ten (10) consecutive school days. Student maintains enrollment in district/charter, but is excluded from all school activities including, but not limited to extracurricular sports/programs, field trips, and ceremonies. Student is not allowed on school property when suspension is out-of-school. A suspension requires initial due process procedures as outlined in Regulation 616.]
"Use" shall means that a student is reasonably known to have ingested, smoked or otherwise assimilated aAlcohol, a dDrug or a dDrug lLike sSubstance, or is reasonably found to be under the influence of such a substance.
34.0 Requirement of Each School District and Charter School to have a Policy.
4.1 Each school district and charter school shall have a policy on file and update it periodically. The policy shall Iinclude, as at a minimum, the following:
3.1 4.1.1 A system of notification of each student and of his/her their parent, guardian or Relative Caregiver at the beginning of the school year, of the state and district policies and regulations. In addition a system for the notification of each student and his/her their parent, guardian or Relative Caregiver whenever a student enrolls or re enrolls during the school year of the state and district policies and regulations.
3.2 4.1.2 A statement that state and district or charter school policies shall apply to all students, except that with respect to children with disabilities, applicable federal and state laws will be followed.
3.3 4.1.3 A written policy which sets out procedures for reporting incidents to police authorities, parents, guardians or Relative Caregivers and to the Department of Education, while maintaining confidentiality.
3.4 4.1.4 A written policy on how evidence is to be kept, stored and documented, so that the chain of custody is clearly established prior to giving such evidence over to the police.
3.5 4.1.5 A written policy on search and seizure.
3.6 4.1.6 A program of assistance for students with counseling and referral to services as needed.
[3.7 4.1.7 A discipline policy which contains, at a minimum, the following penalties for infractions of state, district, and charter school dDrug policies.]
3.8 4.1.[87] A policy in cases involving a dDrug lLike sSubstance or a lLook aAlike sSubstance for establishing that the student intended to use, possess or distribute the substance as a dDrug.
3.9 4.1.[98] A policy which establishes how pPrescription Medications and nNonprescription drugs Medications shall be handled in the sSchool eEnvironment and when they will be considered unauthorized and subject to these state and local policies.
3.10 4.1.[109] A policy which sets out the conditions for return after e[Expulsion expulsion] for aAlcohol or dDrug infractions.
3.11 4.2 Notwithstanding any of the foregoing to the contrary, all policies adopted by public school districts or charter schools relating to the possession or use of dDrugs shall permit a student's discretionary use and possession of an asthmatic quick relief inhaler ("Inhaler") with an individual prescription label, or an autoinjectable epinephrine with individual prescription label, or an insulin pump for continuous subcutaneous insulin infusion (“insulin pump”); provided, nevertheless, that the student uses the inhaler, or autoinjectable epinephrine, or an insulin pump pursuant to prescription or written direction from a state licensed health care practitioner; a copy of which shall be provided to the school district or charter school; and further provided that the parent(s) or legal custodian(s) of such student provide the school district or charter school with written authorization for the student to possess and use the inhaler, or autoinjectable epinephrine, or an insulin pump at such student's discretion or under the school nurse’s supervision, together with a form of release satisfactory to the school district or charter school releasing the school district or charter school and its employees from any and all liability resulting or arising from the student's discretionary use and possession of the inhaler, or autoinjectable epinephrine, or an insulin pump, and further provided that the school nurse may impose reasonable limitations or restrictions upon the student's use and possession of the inhaler, or autoinjectable epinephrine, or an insulin pump based upon the student's age, level of maturity, behavior, or other relevant considerations.
3.11.1 4.2.1 Parents or legal custodians shall not be required to provide or sign a form of release where the student's use and possession of an asthmatic quick relief inhaler, or autoinjectable epinephrine, or insulin pump is determined by the student's IEP or Section 504 Team to be necessary for the student's educational placement.
3.11.2 4.2.2 Except as provided for in a student's Section 504 Plan or IEP, the school nurse may not unilaterally impose limitations or restrictions on a student's use and possession of an asthmatic quick relief inhaler, or autoinjectable epinephrine, or an insulin pump if a Section 504 or IEP Team has determined the use of the medication is necessary for the student's educational placement.
(For students who use prescribed asthmatic quick relief inhalers, or autoinjectable epinephrine, or an insulin pump for continuous subcutaneous insulin therapy, see 14 DE Admin. Code 817, Administration of Medications and Treatments)
45.0 Reporting Requirements and Timelines
4.1 5.1 Each local school district and charter school shall have an electronic copy of its current possession, use and distribution of dDrugs and aAlcohol policy on file with the Department of Education.
4.2 5.2 When a local school district or charter school revises its possession, use, and distribution of dDrugs and aAlcohol policy, it shall provide an electronic copy notify the Department of Education of the revised policy to the Department within thirty (30]) days of the revision, even if the revision was made because of changes in Ffederal, state or local law, regulations, guidance or policies.
Last Updated: December 31 1969 19:00:00.
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