DEPARTMENT OF STATE

Division of Professional Regulation

1800 Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners

GENERAL NOTICE

ORDER

1800 Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners

On June 1, 2014, the Delaware Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration published proposed changes to its regulations in the Delaware Register of Regulations, Volume 17, Issue 12. The proposed rules would have added a continuing education requirement for licensees. The notice indicated that written comments would be accepted by the Board, 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 July 8, 2014 and continued on September 9, 2014 at regularly scheduled meetings of the Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration 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 as well as the verbal testimony from the two public hearings:

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.

Board Exhibit 3- Written public comments on the proposed Regulation.

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 many public comments provided to the Board at the two public hearings. There were comments both in favor and opposed to the proposal. Many of the comments in opposition to the proposal were based on cost, inconvenience, and the lack of articulated subject matter. Comments in favor of the proposal highlighted the value of being updated on code developments and the increased professionalism associated with a continuing education requirement.

3. The Board received written comments which were consistent with those received verbally.

4. Pursuant to 24 Del.C. §1806(a)(2) the Board has the statutory authority to promulgate rules and regulations clarifying specific statutory sections of its statute.

5. Having received and weighed the numerous public comments, the Board finds no reason to amend the regulations as proposed. The Board is convinced that the best approach is to continue to study and carefully examine the need for any eventual continuing education requirements.

DECISION AND ORDER CONCERNING THE REGULATIONS

NOW THEREFORE, pursuant to 24 Del.C. §1806(a)(2) and for the reasons set forth above, the Board does hereby ORDER that the regulations are not adopted and promulgated as set forth in the Delaware Register of Regulations on June 1, 2014. 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 proposed regulations are attached hereto as Exhibit A.

SO ORDERED this 13th day of January, 2015.

DELAWARE BOARD OF PLUMBING, HEATING, VENTILATION, AIR CONDITIONING AND REFRIGERATION

1800 Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners

1.1 Election of Officers. The Board will elect a President, Vice-President, and Secretary annually in May. In the event of a resignation, termination or departure of one of the officers, a replacement shall be elected at the next Board meeting or at a meeting called for that purpose.

1.2 Definitions - Words and terms defined in Title 24, Section 1802 of the Delaware Code are applicable to these regulations. The following additional words and terms, shall have the following meaning, unless the context clearly indicates otherwise:

“Certificate of Good Standing” means a certified statement of the applicant's disciplinary and complaint record as a license holder in another jurisdiction, which is sent directly from the other jurisdiction to the Board.

“Complete application” means the Division of Professional Regulation has received the application form, all supporting documents (including verifications of disciplinary record), and all required fees.

"Full-Time Employee" for purposes of supervision means any employee working a minimum of thirty hours per week, averaged over a period of one year, who regularly receives compensation from the entity providing services and receives a W-2 form annually from the entity providing services.

2.1 Pre-examination Requirements

2.1.1 Board approval is required before an applicant will be allowed to sit for the exam. To get Board approval, an applicant must complete and return an application form to the Board's office, showing that the applicant has two (2) years of verified experience under the supervision of a licensed plumber after having received a Journeyman’s Certificate in an apprenticeship program that meets or exceeds the Federal Bureau of Apprenticeship and Training Standard. Alternatively, the applicant can show seven (7) years of verified experience under the supervision of a licensed plumber if the applicant has successfully completed the series of state-approved tests offered in the Delaware technical high schools or other apprenticeship school.

2.1.2 Supporting documentation. The applicant shall present a copy of the Journeyman certificate or the applicant shall present proof of passing the series of state-approved tests offered in the Delaware technical high schools or other apprenticeship school. Verification of the required experience shall be by affidavit of the supervising licensed plumber on the form approved by the Board. If the applicant is unable to obtain an affidavit from the supervising licensed plumber, the tax form W-2 or the affidavit of the employer or officer of the employing company may be submitted as proof of experience at the discretion of the Board.

2.1.3 Disciplinary record. An applicant must also certify to the Board that he or she has not engaged in any of the acts that would be grounds for discipline of a licensee of the State of Delaware and that he or she does not have any disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where he or she has previously been or currently is licensed, or certified as a plumber. An applicant currently or previously licensed or certified in another jurisdiction shall provide the Board with certified statements from all other such jurisdictions verifying their disciplinary and complaint records.

2.1.4 Complete application. An application to sit for the examination is not considered complete until the Division of Professional Regulation has received the application form, all supporting documents (including verifications of disciplinary record) and all fees required by this section.

2.2 Licensure by Examination.

2.2.1 The exam will be offered four (4) times per year, once quarterly. No person shall be permitted to sit for the exam until he or she has completed the pre-examination requirements of Subsection 2.1 and received the Board's approval to take the exam.

2.2.2 Reexamination. Applicants who do not earn a passing score on the exam may retake it two (2) additional times, at the next regularly scheduled administrations, without further Board approval. An applicant who does not pass the exam after three (3) attempts must reapply to the Board for permission to retake the exam. Such applicants may not reapply until one (1) year has passed from the date he or she last took the exam.

2.3 Licensure by Reciprocity.

2.3.1 An applicant under this section must demonstrate that the standards for licensure of the state through which the applicant seeks reciprocity are equivalent to those of this State. Applicants must provide that state’s laws and regulations governing licensure to the Board.

3.1 Licensure by Examination - All applicants must submit complete applications. Only complete applications will be considered by the Board. Successful applicants must:

3.1.1 Pass the Board-approved HVACR exam - Applicants must have prior approval from the Board to take the exam. To get the Board's approval, an applicant must first meet all the requirements in regulations 3.1.2 through 3.1.5. The exam is offered four (4) times per year, once quarterly. A score of 70% or greater is required to pass the exam.

3.1.2 Document the required experience - The law contains different experience requirements for applicants with a Journeyman's Certificate and those without a Journeyman's Certificate, as described below:

3.1.2.1 Journeyman's Certificate - Applicants that have a Journeyman's Certificate from an apprenticeship program that meets or exceeds the Federal Bureau of Apprenticeship and Training Standard must include a copy of the Certificate with their application. These applicants must also document completion of two (2) years of post-apprenticeship HVACR experience under the direct supervision of a master HVACR licensee, master HVACR restricted licensee, or an individual holding a similar level of licensure in another state. Experience gained before receipt of the Journeyman's Certificate does not qualify and will not be counted toward fulfillment of the two (2) year requirement.

3.1.2.2 No Journeyman's Certificate - Applicants who do not possess a Journeyman's Certificate must document completion of seven (7) years of HVACR experience under the direct supervision of a master HVACR licensee, master HVACR restricted licensee, or an individual holding a similar level of licensure in another state.

Applicants without a Journeyman's Certificate must also pass the series of Board-approved apprenticeship equivalency exams (known as the “Bypass Exams”) before they will be approved to take the HVACR exam. Applicants must have prior approval from the Board to take the exam. Applicants will receive approval after they meet all the requirements in regulations 3.1.2 through 3.1.5. Applicants who pass the Bypass Exams are automatically approved to take the HVACR exam.

3.1.2.3 Proper Documentation of Experience - Documentation of the required experience shall be by affidavit of the applicant's supervisor. Applicants unable to obtain an affidavit from their supervisor may submit tax W-2 tax forms or affidavits of the employers or officer of their employing companies as alternative proof of experience. Alternative proof of experience is acceptable at the discretion of the Board. All affidavits must be on the affidavit form approved by the Board and available through the Board's office.

3.1.3 Provide a copy of their CFC Card - Document certification at the appropriate level for handling chlorofluorocarbons (COUGH’s) by a testing organization approved by the Environmental Protection Agency.

3.1.4 Truthfully attest in the affirmative that they:

3.1.4.1 have not received any administrative penalties regarding their provision of HVACR or HVACR restricted services;

3.1.4.2 do not have any disciplinary proceedings or unresolved complaints pending against them in any jurisdiction where they have previously been or are currently authorized to provide HVACR or HVACR restricted services;

3.1.4.3 do not have an impairment related to drug or alcohol use that would limit their ability to provide HVACR or HVACR restricted services in a manner that is not detrimental to the health, safety, or welfare of the public; and

3.1.4.4 do not have a criminal conviction, or any pending criminal charges, for any crime listed in or covered by Board regulation 8.0.

3.1.5 Provide Certificates of Good Standing - Applicants who have ever been licensed or certified by another jurisdiction (another state, the District of Columbia, or a U.S. territory) must contact the other jurisdiction and request a certified statement of the applicant's disciplinary and complaint record. All certified statements must be sent from other jurisdictions directly to the Board.

3.1.6 Reexamination - Applicants who do not pass the exam may retake it at the next two (2) regularly scheduled administrations without further Board approval. An applicant who does not pass the exam after these three (3) attempts may reapply for licensure but not until one (1) year after the date of the third exam.

3.2 Licensure by Reciprocity - An applicant for licensure by reciprocity must demonstrate that the standards for licensure of the state through which the applicant seeks reciprocity are equivalent to those of this State. Applicants must provide that state's HVACR licensure or certification laws and regulations to the Board.

7.1 A written report, signed by a complainant, alleging that a licensee may be chemically dependent or impaired is received by the chairperson of the regulatory Board, that chairperson shall immediately notify the Director of Professional Regulation or his/her designate of the report. If the Director of Professional Regulation receives the report, he/she shall immediately notify the chairperson of the regulatory Board, or that chairperson's designate or designates.

7.2 The chairperson of the regulatory Board or that chairperson's designate or designates shall, within 7 days of receipt of the report, contact the individual in question and inform him/her in writing of the report, provide the individual written information describing the Voluntary Treatment Option, and give him/her the opportunity to enter the Voluntary Treatment Option.

7.3 In order for the individual to participate in the Voluntary Treatment Option, he/she shall agree to submit to a voluntary drug and alcohol screening and evaluation at a specified laboratory or health care facility. This initial evaluation and screen shall take place within 30 days following notification to the professional by the participating Board chairperson or that chairperson's designate(s).

7.4 A regulated professional with chemical dependency or impairment due to addiction to drugs or alcohol may enter into the Voluntary Treatment Option and continue to practice, subject to any limitations on practice the participating Board chairperson or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate may, in consultation with the treating professional, deem necessary, only if such action will not endanger the public health, welfare or safety, and the regulated professional enters into an agreement with the Director of Professional Regulation or his/her designate and the chairperson of the participating Board or that chairperson's designate for a treatment plan and progresses satisfactorily in such treatment program and complies with all terms of that agreement. Treatment programs may be operated by professional Committees and Associations or other similar professional groups with the approval of the Director of Professional Regulation and the chairperson of the participating Board.

7.5 Failure to cooperate fully with the participating Board chairperson or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate in regard to the Voluntary Treatment Option or to comply with their requests for evaluations and screens may disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board chairperson or that chairperson's designate or designates shall cause to be activated an immediate investigation and institution of disciplinary proceedings, if appropriate, as outlined in section 7.8.

7.6 The Voluntary Treatment Option may require a regulated professional to enter into an agreement which includes, but is not limited to, the following provisions:

7.6.1 Entry of the regulated professional into a treatment program approved by the participating Board. Board approval shall not require that the regulated professional be identified to the Board. Treatment and evaluation functions must be performed by separate agencies to assure an unbiased assessment of the regulated professional's progress.

7.6.2 Consent to the treating professional of the approved treatment program to report on the progress of the regulated professional to the chairperson of the participating Board or to that chairperson's designate or designates or to the Director of the Division of Professional Regulation or his/her designate at such intervals as required by the chairperson of the participating Board or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate, and such person making such report will not be liable when such reports are made in good faith and without malice.

7.6.3 Consent of the regulated professional, in accordance with applicable law, to the release of any treatment information from anyone within the approved treatment program.

7.6.4 Agreement by the regulated professional to be personally responsible for all costs and charges associated with the Voluntary Treatment Option and treatment program(s). In addition, the Division of Professional Regulation may assess a fee to be paid by the regulated professional to cover administrative costs associated with the Voluntary Treatment Option. The amount of the fee imposed under this subparagraph shall approximate and reasonably reflect the costs necessary to defray the expenses of the participating Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board in addition to the administrative costs associated with the Voluntary Treatment Option.

7.6.5 Agreement by the regulated professional that failure to satisfactorily progress in such treatment program shall be reported to the participating Board's chairperson or his/her designate or designates or to the Director of the Division of Professional Regulation or his/ her designate by the treating professional who shall be immune from any liability for such reporting made in good faith and without malice.

7.6.6 Compliance by the regulated professional with any terms or restrictions placed on professional practice as outlined in the agreement under the Voluntary Treatment Option.

7.7 The regulated professional's records of participation in the Voluntary Treatment Option will not reflect disciplinary action and shall not be considered public records open to public inspection. However, the participating Board may consider such records in setting a disciplinary sanction in any future matter in which the regulated professional's chemical dependency or impairment is an issue.

7.8 The participating Board's chairperson, his/her designate or designates or the Director of the Division of Professional Regulation or his/her designate may, in consultation with the treating professional at any time during the Voluntary Treatment Option, restrict the practice of a chemically dependent or impaired professional if such action is deemed necessary to protect the public health, welfare or safety.

7.9 If practice is restricted, the regulated professional may apply for unrestricted licensure upon completion of the program.

7.10 Failure to enter into such agreement or to comply with the terms and make satisfactory progress in the treatment program shall disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board shall be notified and cause to be activated an immediate investigation and disciplinary proceedings as appropriate.

7.11 Any person who reports pursuant to this section in good faith and without malice shall be immune from any civil, criminal or disciplinary liability arising from such reports, and shall have his/her confidentiality protected if the matter is handled in a nondisciplinary matter.

7.12 Any regulated professional who complies with all of the terms and completes the Voluntary Treatment Option shall have his/her confidentiality protected unless otherwise specified in a participating Board's rules and regulations. In such an instance, the written agreement with the regulated professional shall include the potential for disclosure and specify those to whom such information may be disclosed.

8.1 Conviction of any of the following crimes, or of the attempt to commit or of a conspiracy to commit or conceal or of the solicitation to commit any of the following crimes, is deemed to be a crime substantially related to plumbing services or in the State of Delaware without regard to the place of conviction:

8.1.1 Reckless endangering in the first degree. 11 Del.C. §604

8.1.2 Assault in the second degree. 11 Del.C. §612

8.1.3 Assault in the first degree. 11 Del.C. §613

8.1.4 Manslaughter. 11 Del.C. §632

8.1.5 Murder by abuse or neglect in the second degree. 11 Del.C. §633

8.1.6 Murder by abuse or neglect in the first degree. 11 Del.C. §634

8.1.7 Murder in the second degree. 11 Del.C. §635

8.1.8 Murder in the first degree. 11 Del.C. §636

8.1.9 Unlawful sexual contact in the second degree. 11 Del.C. §768

8.1.10 Unlawful sexual contact in the first degree. 11 Del.C. §769

8.1.11 Rape in the fourth degree. 11 Del.C. §770

8.1.12 Rape in the third degree. 11 Del.C. §771

8.1.13 Rape in the second degree. 11 Del.C. §772

8.1.14 Rape in the first degree. 11 Del.C. §773

8.1.15 Sexual extortion. 11 Del.C. §776

8.1.16 Continuous sexual abuse of a child. 11 Del.C. §778

8.1.17 Kidnapping in the second degree. 11 Del.C. §783

8.1.18 Kidnapping in the first degree. 11 Del.C. §783A

8.1.19 Arson in the second degree. 11 Del.C. §802

8.1.20 Arson in the first degree. 11 Del.C. §803

8.1.21 Criminal mischief. 11 Del.C. §811

8.1.22 Burglary in the third degree. 11 Del.C. §824

8.1.23 Burglary in the second degree. 11 Del.C. §825

8.1.24 Burglary in the first degree. 11 Del.C. §826

8.1.25 Robbery in the second degree. 11 Del.C. §831

8.1.26 Robbery in the first degree. 11 Del.C. §832

8.1.27 Theft; lost or mislaid property; mistaken delivery. 11 Del.C. §842

8.1.28 Theft; false pretense. 11 Del.C. §843

8.1.29 Theft, false promise. 11 Del.C. §844

8.1.30 Theft of services. 11 Del.C. §845

8.1.31 Extortion. 11 Del.C. §846

8.1.32 Identity theft. 11 Del.C. §854

8.1.33 Forgery. 11 Del.C. §861

8.1.34 Falsifying business records. 11 Del.C. §871

8.1.35 Unlawful use of credit card. 11 Del.C. §903

8.1.36 Renderer and scanning devices. 11 Del.C. §903A

8.1.37 Insurance fraud. 11 Del.C. §913

8.1.38 Home improvement fraud. 11 Del.C. §916

8.1.39 New home construction fraud. 11 Del.C. §917

8.1.40 Dealing in children. 11 Del.C. §1100

8.1.41 Sexual exploitation of a child. 11 Del.C. §1108

8.1.42 Sexual solicitation of a child. 11 Del.C. §1112A

8.1.43 Perjury in the second degree. 11 Del.C. §1222

8.1.44 Perjury in the first degree. 11 Del.C. §1223

8.1.45 Aggravated harassment. 11 Del.C. §1312

8.1.46 Possession of a deadly weapon during commission of a felony. 11 Del.C. §1447

8.1.47 Possession of a firearm during commission of a felony. 11 Del.C. §1447A

8.1.48 Breaking and entering, etc., to place or remove equipment. 11 Del.C. §2410

8.2 Crimes substantially related to plumbing services shall be deemed to include any crimes under any federal law, state law, or valid town, city or county ordinance, that are substantially similar to the crimes identified in this rule.

9.1 Requirement

9.1.1 Continuing education (CE) is required of all licensees and shall be completed during the two year licensure period prior to the time of license renewal beginning with the 2016 renewal. Extra continuing education hours do not carry over to the next licensing period. Licensees will only get CE credit for their first attendance of CE courses during each licensing period. Licensees may retake a CE course in the same licensing period but will not receive additional CE credit.

9.2 Continuing Education Program Approval

9.2.1 Courses must be approved by the Board in order to qualify as CE. Approved courses appear on the website of the Division of Professional Regulation at www.dpr.delaware.gov. Licensees may also contact the Administrative Assistant of the Board at the Division of Professional Regulation to determine whether particular courses have been approved.

9.2.2 Courses shall be designed to maintain and enhance the knowledge and skills of licensees related to providing of plumbing or heating, ventilation, air-conditioning or refrigeration services.

9.2.3 Sponsors or licensees can obtain Board approval of courses at any time by completing a form approved by the Board and including a course outline with the number of classroom hours and the curriculum vitae or resume of the instructor. The course is approved only for the instructor or instructors included in the request for approval. Approval of courses is in the discretion of the Board.

9.2.4 The following topics are appropriate but not exclusive:

9.2.5 Sponsors or licensees seeking pre-approval should submit the request as at least 60 days before the CE course is being offered.

9.3 Hours Required

9.3.1 Licensees shall complete 6 hours of approved CE during each renewal period with the following exceptions:

9.3.1.1 A person licensed less than one year does not need to complete CE at the first renewal;

9.3.1.2 A person licensed one year but less than two years must submit 3 CE hours at the first renewal.

9.3.1.3 For plumbing licensees - 3 of the 6 CE hours required for renewal must be related to the International Plumbing and Fuel Gas Code. For HVAC&R licensees - 3 of the 6 CE hours required for renewal must be related to the International Mechanical and Fuel Gas Code. All licensees must complete an additional 3 CE hours related to safety, ethics or business practices.

9.4 Waiver of the CE Requirement

9.4.1 The Board may consider a waiver of CE requirements or acceptance of partial fulfillment based on the Board’s review of a written request with supporting documentation of hardship. A request for waiver must be submitted at least sixty days prior to the license renewal date.

9.5 Audit

9.5.1 Proof of continuing education is satisfied with an attestation by the licensee that he or she has satisfied the requirements of this Regulation.

9.5.2 Attestation may be completed electronically at the time of online renewal.

9.5.3 The licensee shall retain all certificates and other documented evidence of attendance at an approved continuing education program for a period of at least three years. Upon request, such documentation shall be made available to the Board for random audit and verification purposes.