DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Statutory Authority: 16 Delaware Code,
Chapter 26A, Section 2631 (16 Del.C. §2631)
ORDER
4108 Hearing Aid Loan Bank Program
Nature Of The Proceedings:
Delaware Health and Social Services (“DHSS”) initiated proceedings to adopt State of Delaware Hearing Aid Loan Bank Program Regulations. The DHSS proceedings to adopt regulations were initiated pursuant to 29 Delaware Code Chapter 101 and authority as prescribed by 16 Delaware Code, Chapter 26A, Section 2631.
On March 1, 2004 (Volume 7, Issue 9), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Delaware Code Section 10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by March 31, 2004, or be presented at a public hearing on March 24, 2004, after which time DHSS would review information, factual evidence and public comment to the said proposed regulations.
Verbal and written comments were received during the public comment period and evaluated. The results of that evaluation are summarized in the accompanying “Summary of Evidence.”
Findings Of Fact:
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. The proposed regulations include minor modifications from those published in the March 1, 2004, Register of Regulations, based on comments received during the public comment period. These modifications are deemed not to be substantive in nature.
THEREFORE, IT IS ORDERED, that the proposed State of Delaware Hearing Aid Loan Bank Program Regulations are adopted and shall become effective June 10, 2004, after publication of the final regulation in the Delaware Register of Regulations.
Vincent P. Meconi, Secretary, 5/17/2004
Summary Of Evidence
A public hearing was held on March 24, 2004 at 9:30 a.m. in the Third Floor Conference Room of the Jesse Cooper Building located on Federal and Water Streets, Dover, Delaware before David P. Walton, Hearing Officer. The purpose of the hearing was to discuss the proposed amendments to the Department of Health and Social Services (DHSS) Hearing Aid Loan Bank Program Regulations. Announcements regarding the public hearing were published in the Delaware State News, the News Journal and the Delaware Register of Regulations in accordance with Delaware Law. JoAnn Baker from Community Health Care Access (CHCA) Section of the Division of Public Health (DPH) made the agency’s presentation. Attendees were allowed and encouraged to discuss and ask questions regarding the proposed regulations. Two individuals gave testimony at the hearing and three letters were received commenting on the proposed Regulations. All comments were received during the public comment period (March 1 through March 31, 2004). Organizations that commented included:
• Delaware Developmental Disabilities Council
• State Council for Persons with Disabilities
• Governor’s Advisory Council for Exceptional Citizens
• Delaware Infant Hearing Assessment and Intervention Program
• Delaware State School for the Deaf
All public comments and the DHSS (Agency) responses are as follows:
Section 3.1.4: This section requires a parent with private insurance to obtain an actual denial letter. This requirement could cause an unnecessary delay and is overly restrictive considering a parent could produce a benefits package description excluding hearing aid coverage, which should be acceptable. Additionally, an audiologist may have sought preauthorization which was rejected by phone without issuance of a formal letter. It is recommended that the requirement to produce a denial letter be deleted from this section. By deleting this phrase, this section will also be co-terminus with Section 3.3.1.
Agency Response: Although Section 3.1.4 of the Regulation requires an insurance company denial letter, the lack of such a denial letter upon application for a hearing aid will not in an of itself delay the loaning of a hearing aid to an eligible child in need.
Section 3.2.4: This section requires the donee to, “be responsible for any damage to or loss of the hearing aid”. As the parent of a child with an orthodontic retainer will attest, kids can be expected to misplace or lose valuable items. To expect a 1-2 year old toddler to display adult prudence and care of a hearing aid defies reality. The section essentially makes the donee an “insurer” of the device, responsible for damage or loss regardless of the exercise of care by the parent/donee. Since only parents without the ability to pay for a hearing aid are eligible for the program, it is doubtful that the parent or guardian will have the ability to repay for a lost or damaged hearing aid. Recommend this provision either be deleted or amended to read, “ . . . be responsible for any damage to or loss of the hearing aid, apart from normal wear and tear, due to the intentional or gross negligence of the parent or guardian . . .”.
Agency Response: Based on this comment and after careful review of Section 3.2.4, the Agency amended this section as recommended by this comment. Additionally, as part of this program the Agency will consider insurance coverage for the hearing aids.
Section 3.3.3: This section of the Regulation creates an additional “hurdle” for a parent seeking an extension of the 6 month initial loan by requiring “proof of making reasonable efforts to obtain immediate access to another hearing aid, such as pursuing insurance coverage for hearing aids or pursuing alternate financial assistance to cover the hearing aid.” If a parent does not have Medicaid, CHIP, or private insurance coverage and is poor, that should suffice. The State should not require the parent to prove exhaustion of charitable institutions (Church; Lion’s Club; Delaware PVA; Needy Family Fund) or bank loans. Recommend deletion of this provision.
Agency Response: The requirement that the parent or guardian is making reasonable efforts to obtain access to another hearing aid is established in law [16 Del.C., Chapter 26A, Section 2630(b)(3)]. It is not the intention of the Agency to create an additional hurdle or require the parent or guardian to exhaust all charitable organizations for donations. The Hearing Aid Loan Bank Program is a temporary loaner program and as such the Program Manager will actively assist parents and guardians with their search to obtain a permanent hearing aid.
The age of eligibility needs to be clarified. Some regulations contemplate eligibility for children “under the age of (3) years”[Section 2.0 “Eligible Child” Definition; Section 3.1]. We read this as meaning up to the child’s third birthday, i.e., “under” age 3. However, Section 3.3.4 permits up to 2 extensions “during the third year of life” suggesting potential loan periods up to the fourth birthday. If that is the intent, it is recommended that the Agency amend the definition of “Eligible Child” in Section 2.0 to read:
“Eligible Child” means a child who is a resident of the State, identified by a licensed audiologist as having a hearing impairment, has no immediate access to a hearing aid, and is either under the age of three (3) years or qualifies for an extension up to age four (4) consistent with Section 3.3.4.
Agency Response: An “Eligible child” is defined in 16 Del.C., Section 2627(c)(4) as under the age of 3 years. The Agency does not have the authority to go beyond that definition when determining initial eligibility. However, the law does provide the Agency with some latitude when it comes to extending the original loan period [16 Del.C., Section 2630(b)]. In Section 3.1.4 of the Regulation, the Agency is not suggesting loan period extensions up to age 4, it is merely placing a reasonable limit on hearing aid loan extensions.
Section 4.0: What is the purpose of including this section in these Regulations? If this is a supplement to Section 3.2.4, a parent whose child lost a hearing aid would ostensibly be compelled to both pay for the hearing aid and pay a fine of up to $1,000.00. In combination, this certainly has an “in terrorem” effect which should deter any logical person from using this program.
Agency Response: The Agency has a responsibility to be a good steward of taxpayer’s money and as such must clearly specify consequences to those who choose to disregard rules established for the benefit of those in need. Section 4.0 of the Regulation is not supplement to Section 3.2.4 or meant to have an “in terrorem” effect as suggested in this comment. Additionally, Section 3.2.4 of the Regulations has been amended to only make the parent or guardian responsible for damage or loss of the hearing aid due to the intentional or gross negligence of the parent or guardian.
Section 3.2.4: Rather than making the parent or guardian responsible for damage or loss of the hearing aid (total cost), recommend the Division of Public Health carry additional loss and damage insurance on the hearing aid and make the parent or guardian responsible for the deductible for that insurance. The deductible would be less costly and more reasonable than making the parent or guardian responsible for the cost of the hearing aid.
Agency Response: The Agency amended Section 3.2.4 of the Regulation based on a previous comment, making the parent or guardian only responsible for damage or loss as a result of intentional or gross negligence of the parent or guardian. The Agency will consider additional insurance coverage as suggested in this comment.
In addition to the comments listed above there was a general comment commending the Agency, legislators and all those involved for establishing such a program.
The public comment period was open from March 1, 2004 to March 31, 2004.
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.
108 Hearing Aid Loan Bank Program Regulations
1.0 Purpose
1.1 The program is established for the purpose of lending hearing aids on a temporary basis to a parent or legal guardian of an eligible child to ensure that children under the age of three (3) years will have maximum auditory input during the critical period of language learning.
2.0 Definitions
2.1 The following words shall have the meanings indicated:
"Director" means the Director or designee of the Division of Public Health, Department of Health and Social Services.
"Division" means the Division of Public Health, Department of Health and Social Services.
"Eligible Child" means a child who is a resident of the State, identified by a licensed audiologist as having a hearing impairment, has no immediate access to a hearing aid, and is under the age of three (3) years.
"Licensed Audiologist" means an individual who is licensed to practice audiology under Chapter 37 of Title 24 of this Code.
"Loan Bank" means hearing aid loan bank.
“Loan Period” means time periods to include initial (up to six months) and extension for additional three month periods, with required documentation.
"Program" means the Hearing Aid Loan Bank Program.
"Program Manager" means the program manager of the Hearing Aid Loan Bank Program.
3.0 Eligibility
3.1 A child under three (3) years of age is eligible if confirmed through:
3.1.1 A prescription from a licensed audiologist;
3.1.2 Birth certificate or other documentation for proof of age;
3.1.3 Address of residence to document Delaware residency;
3.1.4 No immediate access to another hearing aid under Medicaid, the State children’s health program or private insurance, as per insurance denial letters; and
3.1.5 Proof of the parent or legal guardian’s inability to pay for the hearing aid based on:
3.1.5.1 Proof of family income by review of three of the most recent consecutive pay stubs for each parent or legal guardian, using the Federal Poverty Guidelines as the reference. If such pay stubs are not available, documents as approved by program manager must be submitted.
3.1.5.2 Documentation of insurance coverage, and/or medical assistance status.
3.2 A parent or legal guardian who borrows a hearing aid for an eligible child shall:
3.2.1 be the custodian of the hearing aid;
3.2.2 return the hearing aid immediately to the loan bank upon the expiration of the loan period or receipt of a suitable permanent hearing aid, whichever occurs first;
3.2.3 be responsible for the proper care and use of the hearing aid;
3.2.4 be responsible for any damage to or loss of the hearing aid[, apart from normal wear and tear, due to the intentional or gross negligence of the parent or guardian]; and
3.2.5 sign a written agreement provided by the program manager that states the term and conditions of the loan.
3.3 For a child to be eligible for one or more extensions of the initial six month loan period, a parent or the guardian of the child must show:
3.3.1 That there is no immediate access to another hearing aid under Medicaid, the State children’s health program or private insurance;
3.3.2 The child’s parent or legal guardian currently does not have the financial means to obtain immediate access to another hearing aid; and
3.3.3 Proof of making reasonable efforts to obtain immediate access to another hearing aid, such as pursuing insurance coverage for hearing aids or pursuing alternate financial assistance to cover the hearing aid; and
3.3.4 Has met initial eligibility criteria prior to age three; not to exceed two extensions during the third year of life.
4.0 Penalty for Non-Compliance
Under the Authority granted to the Department of Health and Social Services in 16 Del. C. Section 107, "whoever refuses, fails or neglects to perform the duties required under this chapter, or violates, neglects or fails to comply with the duly adopted regulations or orders of the Department of Health and Social Services, shall be fined not less than $100 and not more than $1,000, together with costs, unless otherwise provided by law."