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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJuly 2014

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16 DE Admin. Code 4203
On April 1, 2014 (Volume 17, Issue 10), 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 April 30, 2014, after which time the DHSS would review information, factual evidence and public comment to the said proposed regulations.
First, DPH adds a new definition of “uninsured” as follows:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to leave the statement as is and due to the limited number of terms being defined, has determined not to include a definitions section. While the section appears to make no sense to the organization that submitted comments, the section does have meaning for the Agency and will be used to assist with determining eligibility for the program.
Second, the regulation limits authorization for treatment to a “physician”. See §§4.1.1, 4.2.1, and 11.2. DPH may wish to consider adding references to “advanced practice nurse”. See 24 Del.C. §1902(b)(1). Alternatively, DPH could adopt a generic term (e.g. “licensed health care professional” and add a definition of the term to cover physicians and advanced practice nurses.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to leave the term “physician”.
Third, in §3.1, the Division may wish to consider deletion of the extraneous “acting” in the second sentence.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has added to the sentence “acting on behalf of the applicant” to address this comment.
Fourth, in §3.1, the third sentence lists protected classes. It omits some classes. See Title 6 Del.C. §§4501, 4502(14), and 4503.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the sentence to include all of the following: race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity, or national origin of such persons.
Fifth, in §4.1.5.1, DPH should consider correcting the grammar. There should be parallel form in lists. In this section, some items begin with nouns and some items begin with verbs. See Delaware Administrative Code Drafting & Style Manual, §6.2.3.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the list to be of parallel form and all start with nouns.
Sixth, the regulation is inconsistent in the context of retroactivity. On the one hand, §4.2.4 authorizes 3 months of retroactive coverage for children with no analogous authorization for adults in §4.1. It’s unclear why 3-months retroactive coverage would be authorized for children but not adults. Moreover, 12 month retroactivity for children and adults is authorized by §12.7. The Division may wish to clarify its intention and adopt a uniform standard.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has removed the additional unneeded language under §4.2.4 related to children as retroactivity for both adults and children as covered under §12.7.
Seventh, the references to “inmate of a public institution... as used in the Delaware Medicaid program” do not provide much guidance. It would be preferable to provide a citation to 16 DE Admin Code 14120 for clarity and ease of reference.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the statement to refer to 16 DE Admin Code 14120.
Eighth, the Division is switching from a net income to a gross income standard for most forms of earned income. See §§5.3.5 and 5.3.6. This creates an anomaly since rental income (§5.3.11 and 5.3.12) is reduced by expenses to amount to net income. Obviously, it would be more consumer-oriented to continue to count net earned income.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to maintain the language as originally proposed. The allowance for expenses related to rental income and Roomer/Boarder income are directly related to operating expenses for such incomes. The same is allowed under §5.3.13 Self-Employment, whereby operating expenses are accounted for prior to a person submitting countable income to the IRS.
Ninth, the Division proposes to change the residency standard as follows:
6.1. A Delaware resident is an individual who lives in Delaware with the intention to remain permanently or for an indefinite period or where the individual is living and has entered into a job commitment, or seeking employment whether or not currently employed.
The deletion of “or for an indefinite period” is highly objectionable. Residency does not require an intention to remain in the State permanently. See 16 DE Admin Code 14110.5 -14110.8. See also 17 DE Reg. 386 (10/1/13). The term “or for an indefinite period” should be retained. DPH may wish to consult its assigned Attorney General for guidance.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined that the removal of the language follows the intent of the program as well as 16 DE Admin Code 14110.5 - 14110.8. 16 DE Admin Code 14110.5 -14110.8 states “intends to reside including without a fixed address”, this expressed intent is the same for the purposes of this program.
Tenth, the Division proposes the following deletion:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has removed the word “permanently” from 6.1
Eleventh, the Division proposes the following revision:
7.4 Failure to provide requested documentation may will result in denial or termination of eligibility.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency maintains that failure to provide requested documentation will result in denial or termination of eligibility. The Division partners with hospitals and cancer programs statewide to offer assistance to individuals who need assistance obtaining the required documentation.
Twelfth, the grammar in §9.3 could be improved. The reference to “regardless as to if the individual” is somewhat awkward. Consider substituting “regardless of whether the individual”.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has made the suggested revision.
Thirteenth, §11.2 recites as follows:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §10.2 and thus addresses that section. The Agency maintains that if eligibility is terminated, it may only be renewed for an individual who is diagnosed with a new primary cancer. The intent of this is further explained in §10.2, whereby it states that a person cannot receive program services for a recurrence of the same cancer.
Fourteenth, the Division could consider deletion of §112.8 since no one would ostensibly be affected by this section in 2014 or later.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §11.2 and thus addresses that section. The Agency has determined that §11.2 will remain in the regulation.
Fifteenth, in §10.1, the Division is modifying a reference to read “his/her”. The Delaware Administrative Code Drafting & Style Manual (§3.3.2.1) discourages use of “him/her” and similar references. It would also be preferable to revise the multiple references to “his/her” in §5.6.2 and the reference to “his or her” in §3.2.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §9.1, §5.6.2 and §3.2 and thus will address those sections. The Agency has replaced “his/her” and “him/her” with “his or her.
Sixteenth, appeal rights under §16.0 are meager and do not include even rudimentary due process. Compare Goss v. Lopez, 397 U.S. 254 (1970). Cf. Title 29 Del.C. §10121-10129. DHSS could consider applying 16 DE Admin Code 5000 to the program.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §15.0 and thus addresses that section. The Agency has determined that as the regulations for the program are clear and that the appeal process has worked for many years, no changes will be made to §15.0 at this time.
First, DPH adds a new definition of “uninsured” as follows:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to leave the statement as is and due to the limited number of terms being defined, has determined not to include a definitions section. While the section appears to make no sense to the organization that submitted comments, the section does have meaning for the Agency and will be used to assist with determining eligibility for the program.
Second, the regulation limits authorization for treatment to a “physician”. See §§4.1.1, 4.2.1, and 11.2. DPH may wish to consider adding references to “advanced practice nurse”. See 24 Del.C. §1902(b)(1). Alternatively, DPH could adopt a generic term (e.g. “licensed health care professional” and add a definition of the term to cover physicians and advanced practice nurses.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to leave the term “physician”.
Third, in §3.1, the Division may wish to consider deletion of the unnecessary “acting” in the second sentence.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has added to the sentence “acting on behalf of the applicant” to address this comment.
Fourth, in §3.1, the third sentence lists protected classes. Some classes have been omitted. See Title 6 Del.C. §§4501, 4502(14), and 4503.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the sentence to include all of the following: race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity, or national origin of such persons.
Fifth, in §4.1.5.1, DPH should consider correcting the grammar. There should be parallel form in lists. In this section, some items begin with nouns and some items begin with verbs. See Delaware Administrative Code Drafting & Style Manual, §6.2.3.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the list to be of parallel form and all start with nouns.
Sixth, the regulation is inconsistent in the context of retroactivity. On the one hand, §4.2.4 authorizes three months of retroactive coverage for children with no corresponding authorization for adults in §4.1. It’s unclear why three-months retroactive coverage would be authorized for children but not adults. Moreover, 12 month retroactivity for children and adults is authorized by §12.7. The Division may wish to clarify its intention and adopt a uniform standard.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has removed the additional unneeded language under §4.2.4 related to children as retroactivity for both adults and children as covered under §12.7.
Seventh, the references to “inmate of a public institution ... as used in the Delaware Medicaid program” do not provide much guidance. It would be preferable to provide a citation to 16 DE Admin Code 14120 for clarity and ease of reference.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has revised the statement to refer to 16 DE Admin Code 14120.
Eighth, the Division is switching from a net income to a gross income standard for most forms of earned income. See §§5.3.5 and 5.3.6. This creates an abnormality since rental income (§5.3.11 and 5.3.12) is reduced by expenses to amount to net income. Obviously, it would be more consumer-oriented to continue to count net earned income.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined to maintain the language as originally proposed. The allowance for expenses related to rental income and Roomer/Boarder income are directly related to operating expenses for such incomes. The same is allowed under §5.3.13 Self-Employment, whereby operating expenses are accounted for prior to a person submitting countable income to the IRS.
Ninth, the Division proposes to change the residency standard as follows:
6.1. A Delaware resident is an individual who lives in Delaware with the intention to remain permanently or for an indefinite period or where the individual is living and has entered into a job commitment, or seeking employment whether or not currently employed.
The deletion of “or for an indefinite period” is highly objectionable. Residency does not require an intention to remain in the State permanently. See 16 DE Admin Code 14110.5 -14110.8. See also 17 DE Reg. 386 (10/1/13). The term “or for an indefinite period” should be retained. DPH may wish to consult its assigned Attorney General for guidance.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has determined that the removal of the language follows the intent of the program as well as 16 DE Admin Code 14110.5 - 14110.8. 16 DE Admin Code 14110.5 -14110.8 states “intends to reside including without a fixed address”, this expressed intent is the same for the purposes of this program.
Tenth, the Division proposes the following deletion:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has removed the word “permanently” from 6.1
Eleventh, the Division proposes the following revision:
7.4 Failure to provide requested documentation may will result in denial or termination of eligibility.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency maintains that failure to provide requested documentation will result in denial or termination of eligibility. The Division partners with hospitals and cancer programs statewide to offer assistance to individuals who need assistance obtaining the required documentation.
Twelfth, Council would like to point out that although sections 9 through 15 have been re-numbered, the section headers have not been renumbered leading to “910.0 Changes In Circumstances And Personal Information”, “1011.0 Termination Of Eligibility” and continuing.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has moved the original section 9.0 to section 13.0 and renumbered the headers following this change. The Agency would like to thank the commenter for pointing out this error.
Thirteenth, the grammar in §9.3 could be improved. The reference to “regardless as to if the individual” is somewhat awkward. Consider substituting “regardless of whether the individual”.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency has made the suggested revision.
Fourteenth, in §10.1, the Division is modifying a reference to read “his/her”. The Delaware Administrative Code Drafting & Style Manual (§3.3.2.1) discourages use of “him/her” and similar references. It would also be preferable to revise the multiple references to “his/her” in §5.6.2 and the reference to “his or her” in §3.2.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §9.1, §5.6.2 and §3.2 and thus will address those sections. The Agency has replaced “his/her” and “him/her” with “his or her.
Fifteenth, §11.2 recites as follows:
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §10.2 and thus addresses that section. The Agency maintains that if eligibility is terminated, it may only be renewed for an individual who is diagnosed with a new primary cancer. The intent of this is further explained in §10.2, whereby it states that a person cannot receive program services for a recurrence of the same cancer.
Sixteenth, the Division could consider deletion of §12.8 since no one would ostensibly be affected by this section in 2014 or later.
Agency Response: The Agency appreciates and acknowledges these comments. There is not a section §12.8. The Agency believes the commenter was referring to §11.2 and thus addresses that section. The Agency has determined that §11.2 will remain in the regulation.
Seventeenth, appeal rights under §16.0 are limited and do not include even basic due process. Compare Goss v. Lopez, 397 U.S. 254 (1970). Cf. Title 29 Del.C. §10121-10129. DHSS could consider applying 16 DE Admin Code 5000 to the program.
Agency Response: The Agency appreciates and acknowledges these comments. The Agency believes the commenter was referring to §15.0 and thus addresses that section. The Agency has determined that as the regulations for the program are clear and that the appeal process has worked for many years, no changes will be made to §15.0 at this time.
1.1 The Cancer Treatment Program (CTP) is a program of Delaware Health and Social Services (DHSS), Division of Public Health (DPH) intended to provide medical insurance coverage to uninsured Delawareans for the treatment of cancer.
3.1 The application must be made in writing on the prescribed CTP form. An individual, agency, institution, guardian or other individual acting [on behalf of the applicant] can make this request for assistance for the applicant with his knowledge and consent. The CTP will consider an application without regard to race, color, age, sex, [marital status, creed, sexual orientation, gender identity,] disability, religion, national origin or political belief as per State and Federal law.
3.2 Each individual applying for the CTP is requested, but not required, to furnish his or her Social Security Number, if the individual has a Social Security Number.
4.1.4.1 Examples of health insurance include comprehensive, major medical and catastrophic plans, Veterans Affairs Medical Services, Correctional Healthcare Services, Medicare, and Medicaid.
4.1.5.1 Exemptions listed in the PPACA include: [applicant is] part of a religion opposed to acceptance of benefits from a health insurance policy; [are applicant is] an undocumented immigrant; [are applicant is] incarcerated; [applicant is] a member of an Indian tribe; [applicant’s] family income is below the threshold for filing a tax return; [have applicant is required] to pay more than 8% of household income for health insurance, after taking into account any employer contributions or tax credits.
4.1.57 Be over the age of 18 years.
4.1.68 Be diagnosed with any cancer on or after July 1, 2004, or be receiving benefits for the treatment diagnosis of colorectal cancer through the Division of Public Health’s Screening for Life program on June 30, 2004.
4.2.4 Be diagnosed with any cancer on or after July 1, 2004. [Coverage shall be retroactive up to 3 months prior to date of application, provided applicant meets medical requirements and applicant’s parent(s) or legal guardian(s) meet financial eligibility requirements under 5.1. In no case will the minor applicant be eligible for benefits under this program before July 1, 2004.]
4.3 An inmate of a public institution shall be ineligible for the CTP, provided that the benefits of the CTP are not otherwise provided in full or in part.
5.3.5 Wages – net gross amount after before deductions for taxes and FICA
5.3.6 Senior Community Service Employment – net gross amount after before deductions for taxes and FICA
5.3.67 Interest/Dividends – gross amount
5.3.78 Capital Gains – gross amount from capital gains on stocks, mutual funds, bonds.
5.3.89 Credit Life or Credit Disability Insurance Payments – as paid
5.3.910 Alimony – as paid
5.3.1011 Rental Income from entire dwelling – gross rent paid minus standard deduction of 20% for expenses
5.3.1112 Roomer/Boarder Income – gross room/board paid minus standard deduction of 10% for expenses
5.3.1213 Self Employment – countable income as reported to Internal Revenue Service (IRS)
5.3.1314 Unemployment Compensation - as paid gross amount before deductions for taxes and FICA
5.5.2 Unmarried couples who live together as husband and wife a married couple.
5.5.3 Couples will be considered as living together as husband and wife a married couple if:
5.5.3.2 They are recognized as husband and wife a married couple in the community; or,
5.6 In households that include a caretaker, the caretaker's children and other children that are the caretaker's responsibility, the caretaker's income and those of [his/her his or her] children are always budgeted together. The income of any other children in the home will be considered separately. In these situations, the separate budget groups can be combined to form a single family budget group only when the following conditions are met:
5.6.2 The caretaker chooses to have [his/her his or her] income and those of [his/her his or her] children considered with the income of any other people in the home.
6.1 A Delaware resident is an individual who lives in Delaware with the intention to remain [permanently] or for an indefinite period, or where the individual is living and has entered into a job commitment, or seeking employment whether or not currently employed.
6.3.32 Will not be denied to an institutionalized individual because the individual did not establish residence in the community prior to admission to an institution.
6.3.43 Will not be terminated due to temporary absence from the State, if the person intends to return when the purpose of the absence has been accomplished.
7.1 The CTP may will verify information related to eligibility. Verification may be verbal or written and may be obtained from an independent or collateral source.
7.4 Failure to provide requested documentation may will result in denial or termination of eligibility.
8.1 The CTP will dispose of each application by a finding of full eligibility, temporary eligibility or ineligibility, unless:
[910.0 Changes In Circumstances And Personal Information
910.1 Enrollees are responsible for notifying the CTP of all changes in his/her circumstances that could potentially affect eligibility for the CTP. Failure to do so may result in overpayments being processed and legal action taken to recover funds expended on his/her behalf during periods of ineligibility.
910.2 Enrollees are responsible for notifying the CTP of changes in the enrollee’s name, address and telephone number.]
10[1110].0 Termination Of Eligibility
[101110].1 Eligibility terminates:
[101110].1.1 When the enrollee attains other medical insurance, including Medicare, Medicaid, and the Medicaid Breast and Cervical Cancer treatment program as listed in 4.1.4.
[101110].1.2 When the enrollee is no longer receiving treatment for cancer as defined in 4.1.1.
[101110].1.3 When the enrollee no longer meets the technical or financial eligibility requirements.
[101110].1.4 When applicants provided temporary eligibility status fail to obtain health insurance coverage or satisfy the requirements to transition to full eligibility status.
[101110].1.45 Twenty-four months after the date that cancer treatment is initiated for each primary cancer diagnosis.
[101110].2 If eligibility is terminated, it may only be renewed for an individual who is diagnosed with a new primary cancer. An individual who has a recurrence of cancer for which coverage has been previously provided is not eligible for additional coverage. The determination of a new primary cancer or recurring cancer is made by the treating physician.
[101110].3 When temporary eligibility is terminated or a disposition of ineligibility is received, applicants may request a financial hardship waiver and submit to DHSS for review to determine if a significant financial hardship exists for the applicant.
[111211].0 Coverage And Benefits
[111211].1 Coverage is limited to the treatment of cancer as defined by DHSS.
[111211].2 There is no managed care enrollment.
[111211].3 Benefits will be paid at rates equivalent to Medicaid under a fee for service basis. If a Medicaid rate does not exist for the service provided, the CTP will determine a fair rate.
[111211].4 Benefits will only be paid when the provider of the cancer treatment services is a Delaware Medicaid Assistance Provider.
[111211].5 Benefits for patients enrolled prior to September 1, 2004 (or whatever date is established by DHSS as having an operational benefits management information system), may not be paid until after that date.
[111211].6 The CTP is the payer of last resort and will only provide benefits to the extent that they are not otherwise covered by another insurance plan.
[111211].7 Eligibility may be retroactive to the day that cancer treatment was initiated provided that the application is filed within one year of that day. In such circumstances, covered services will only be provided for the time period that the applicant is determined to have been eligible for the CTP.
[111211].8 In no case will eligibility be retroactive to a time period prior to July 1, 2004, except if the enrollee was receiving benefits for the treatment of colorectal cancer through the Division of Public Health’s Screening for Life program on June 30, 2004. If this exception occurs, eligibility will be retroactive only to the date the enrollee was receiving benefits for colorectal cancer treatment through the Screening for Life program.
[121312].0 Cancer Treatment Services Which Are Not Covered
[121312].1 The cost of nursing home or long-term care institutionalization is not covered. (The cost of cancer treatment services within a nursing home or long term care institution is a covered benefit.)
[121312].2 Services not related to the treatment of cancer as determined by DHSS are not covered.
[121312].3 Cancer treatment services for which the enrollee is eligible to receive by other health plans as listed in 4.1.4.2 are not covered.
1314.0 Changes In Program Services
1314.1 When changes in program services require adjustments of CTP benefits, the CTP will notify enrollees who have provided an accurate and current name, and address or telephone number.
1415.0 Confidentiality
1415.1 The CTP will maintain the confidentiality of application, claim, and related records as required by law.
1516.0 Review Of CTP Decisions
1516.1 Any individual who is dissatisfied with a CTP decision may request a review of that decision.
1516.2 Such request must be received by the CTP in writing within 30 days of the date of the decision in question.
1516.3 The CTP will issue the results of its review in writing. The review will be final and not subject to further appeal.
Last Updated: December 31 1969 19:00:00.
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