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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMarch 2013

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19 DE Admin. Code 2007
Pursuant to 29 Del.C., §5256, the State Employee Benefits Committee (SEBC), is amending the rules and regulations for the general administration of the Disability Insurance Program (DIP) established pursuant to Title 29, Chapter 52A of the Delaware Code. The revisions become effective March 1, 2013 and clarify provisions of the program that are currently in force.
Base Rate of Compensation” means the employee’s usual rate of pay, including hazardous duty pay if applicable. Base Rate of Compensation does not include commissions, bonuses, shift differential pay, overtime pay or any other fringe benefit or extra compensation.
Claimant” means a person enrolled in the DIP who applies for STD and/or LTD benefits and/or an extension of STD and/or LTD benefits or who is receiving or has received STD and/or LTD benefits.
Committee” means the State Employee Benefits Committee (SEBC)
Creditable Compensation” as defined in 29 Del.C. §5251(c), shall mean the base rate of compensation that the employee received on the last day of employment before the employee developed a disability.
“Employing Organization” shall mean the agency, school district, charter school, institution of higher education or court system employing claimants in a position covered by the Delaware State Employees Pension Plan pursuant to 29 Del.C. Chapter 55 who are U.S. citizens or U.S. residents actively at work for one full day on or after January 1, 2006.
Essential Duty” means a duty that is substantial, not incidental; is fundamental or inherent to the occupation; and cannot be reasonably omitted or changed. To be at work for the number of hours in the employee’s regularly scheduled workweek is also an essential duty. Any occupation means an occupation for which the employee is qualified by education, training or experience.
Medical Care” is received when a physician is consulted or medical advice is given or treatment is recommended, prescribed by, or received from a physician. Treatment includes, but is not limited to, medical examinations, tests, attendance or observations and use of drugs, medicines, medical services or equipment.
Member” means a person enrolled in or was previously enrolled in the DIP.
Pre-Disability Base Pay” shall mean the compensation paid to the employee on the last day of employment before the employee developed a disability.
Pre-Existing Condition” means any accidental bodily injury, sickness, mental illness, pregnancy, or episode of substance abuse or any manifestations, symptoms, findings, or aggravations related to or resulting from such accidental bodily injury, sickness, mental condition, pregnancy or substance abuse for which the employee received medical care during the 3 month period that ends the day before:
Return to Work (RTW) Coordinator” means the person selected by the Office of Management and Budget to assist individuals enrolled or previously enrolled in the DIP who expect to be out of work due to a disability in their transition back to work. Return To Work assistance may be requested by an employee, previously employed individual and/or by an employing organization. The RTW Coordinator may also consult with the individual’s health care provider(s) to acquire and/or clarify a claimant’s restrictions and/or limitations if applicable, to facilitate a safe return to the workplace.
3.1 Pursuant to the authority vested in the State Employee Benefits Committee (SEBC) by 29 Del.C. §5210(4), §9602(b) (4) and §5255, the SEBC adopts these eligibility and coverage rules for the State of Delaware’s Disability Insurance Program (DIP). In the event of conflict between these rules and the Delaware Code, the Delaware Code takes precedence over these rules. DIP is comprised of a Short Term Disability (STD) program and a Long Term Disability (LTD) program. The Rules and Regulations contained herein are to be used in conjunction with the Short Term Disability (STD) and Long Term Disability (LTD) benefit booklets displayed on the Statewide Benefits Office website at http://www.ben.omb.delaware.gov/disability/index.shtml.
3.2.4 Pursuant to 29 Del.C. §5251(e), a retired Delaware State Police Trooper employed in a pension covered position in the Delaware State Employees’ Pension Plan on or after July 1, 2008.
3.6 In accordance with 29 Del.C. §5252, the State shall pay all premium or subscription charges for the full cost of providing coverage for the DIP.
4.1 Pursuant to 29 Del.C. §5253(a), Participating employees shall be eligible to utilize earned sick leave for absences due to accident, illness, or injury for periods before disability benefits commence under this chapter, such that the participating employee receives 100% of creditable compensation for such periods, not to exceed the employee’s sick leave balance.
4.2 Pursuant to 29 Del.C. §5253(b)(1), STD benefits for participating employees shall commence upon the exhaustion of the calendar day elimination period. The elimination period shall begin on the first day following the onset of the participating employee’s physical or mental incapacity. The calendar day elimination period does not have to be satisfied consecutively however, if an employee returns to work for one day or less during the calendar day elimination period, but cannot continue to work thereafter, the period worked shall not be considered to have interrupted the calendar day elimination period.
4.3 Pursuant to 29 Del.C. §5253(b)(1), the calendar day elimination period must commence and conclude within normal working periods for employees who work less than 12 months per calendar year. “Normal working periods” are the scheduled working days of the participating employee.
4.4 Pursuant to 29 Del.C. §5253(b)(5), if a participating employee returns to the employee’s position on a full time basis for 15 consecutive calendar days or longer, any succeeding period of disability for which the participating employee shall become eligible shall constitute a new period of STD with a corresponding calendar day elimination period.
5.1 Pursuant to 29 Del.C. §5253(b)(7), once an employee exhausts their elimination period, the employee will be deemed to have applied for benefits under this section and shall not be eligible to utilize paid leave in lieu of application for STD.
5.2 All employees enrolled in DIP who expect to be out of work for the length of the calendar day elimination period are required to file a STD claim in a complete and timely manner, even if the employee applied for and/or is receiving Workers’ Compensation (WC) benefits or Other Income Benefits defined in the STD benefits booklet per Delaware Code. Hazardous duty employees injured in the line of duty, who are employed by the Department of Corrections (or its successor agency), the Delaware Psychiatric Center (or its successor agency) who are assigned to programs for the criminally insane, the Department of Services for Children, Youth and Their Families who are assigned to work in the Division of Youth Rehabilitative Services facilities, state law-enforcement officers in the performance of their duties including state employees serving in response to imminent danger of hazardous waste material, including but not limited to the SERT Team are required to file an STD claim in a complete and timely manner if they expect to be out of work for the length of the calendar day elimination period. The employing organization must provide the appropriate monthly hazardous duty amount (i.e., Level A, Level B or Level A1) to the DIP insurance carrier and/or administrator within 24 hours of receiving notice of the employee’s STD claim by the DIP insurance carrier and/or administrator.
5.4 Employees must contact their physician(s) to authorize the release of medical information required by the Return to Work (RTW) Coordinator and/or the DIP insurance carrier and/or third party administrator (Administrator) selected to administer and/or insure the program by the SEBC pursuant to 29 Del.C. §5254. It is the employee’s responsibility to be sure that his or her medical documentation is submitted to the DIP insurance carrier and/or Administrator and the RTW Coordinator in a complete and timely manner throughout the duration of the disability as requested. Employees are required to take any and all action necessary in a timely manner to maintain their claim in an approved status throughout the period of disability.
6.3.1 IMPORTANT NOTE: Weekly earnings means the employee’s usual base rate of pay, not including commissions, bonuses, shift differential pay, overtime pay or any other fringe benefit or extra compensation. If disabled, weekly earnings will be the rate in effect on the last day as an active full-time employee before becoming totally disabled.
8.3 STD benefits shall be payable at a rate of up to 75% of the participating employee’s creditable compensation not to exceed the plan maximum during the period the employee has a disability.
8.4 Pursuant to 29 Del.C. §5253(b)(3), creditable compensation during periods an employee receives STD benefits shall include general salary increases awarded or reductions in salary instituted during the period of Short Term disability coverage.
IMPORTANT NOTE: Other Income Benefits also mean any payments that are made to the employee, the employee’s family, or to a third party on behalf of the employee, pursuant to any:
8.13 If while receiving STD benefits an employee should experience a disability due to a new disability, the 182nd calendar day associated with the first disability will not be extended and the plan’s exclusions will apply to the new disability. The employee is immediately required to report the new disability to their supervisor, Human Resource office and to the DIP insurance carrier and/or Administrator.
9.0 Leaves (Merit Agencies Only)
9.1.1 Provided the employee files their STD claim no later than the 15th calendar day from the date of disability and abides by the employing organization’s policy and procedures regarding attendance and calling out absent, the employee may continue to use available sick and/or annual leave to be paid until the STD claim is approved, if not approved by the exhaustion of the STD calendar day elimination period.
9.1.2 Pursuant to 29 Del.C. §5253(b)(4), an employee may utilize annual, sick, compensatory, or donated leave to supplement STD benefits to equal 100% of pre-disability base pay for a maximum benefit period of 182 calendar days.
9.1.3 Employees applying for STD benefits must also apply for the Family Medical Leave Act (FMLA).
9.1.4 Donated leave may be used to pay employees during the calendar day STD elimination period. However, regardless of whether a claim was filed with the DIP insurance carrier and/or Administrator, donated leave is not to continue following the calendar day elimination period until the employee’s STD claim is in an approved status. Upon approval of the employee’s STD claim, the employing organization may apply donated leave retroactively to supplement the STD benefit payment.
9.1.5 Employees on FMLA and/or donated leave must comply with the rules that apply to those programs.
9.1.6 If an employee is otherwise eligible for holiday pay or a paid leave other than identified in 29 Del.C. §5253(b)(4), the employee will be granted 100% pay on the day in question without a residual. All leave supplements will be calculated on a per pay basis.
9.1.7 Employees on approved STD may choose to use accrued leave earned each month in its entirety or to save the accrual for payout upon the commencement of LTD or service pension. Leave rules for FMLA and donated leave take precedence.
9.1.7.1 Employees who exhaust leave accrual each month will accrue leave at 100% for the given month.
9.1.7.2 Employees who decide to save their leave accrual will accrue leave at 75% for the given month.
9.1.8 If the employee is in a “no pay” status during the STD elimination period, leave accrual stops. The employee should receive leave accrual prorated for the portion of the month last worked and a prorated amount of leave for the portion of the month in which STD benefits were received.
9.1.9 Employees remain subject to the provisions of Merit Rule 5.2.4 regarding leave carryover.
9.1.10 Upon the exhaustion of the maximum STD benefit period, any employee, except those entitled to hazardous duty pay as defined in 29 Del.C. §5933(c), shall no longer be an employee of the State or any of its political subdivisions provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible. Employees entitled to hazardous duty pay as defined in 29 Del.C. §5933(c) who exhaust the maximum short term disability benefit period shall no longer be an employee of the State or any of its political subdivisions at the end of their entitlement to hazardous duty pay provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible. The employee has two options with respect to remaining accrued leave.
9.1.10.1 Escrow Leave. Prior to the commencement of LTD benefits, the employee may make written request to the employing organization to escrow accrued annual and sick leave for a maximum period of six months. If the member returns to full-time State employment in a benefit eligible position for 30 calendar days within the 6 month escrow period, the member’s leave balances will be restored. If the member does not return to State employment in a benefit eligible position, the escrowed leave will be paid to the member based on the rules in place by the member’s former employing organization.
9.1.10.2 Payout of Leave. Upon the commencement of LTD benefits, the employee shall be eligible to receive a payout of accrued leave based on the rules in place by the employing organization. If the member is subsequently rehired or reinstated by the State of Delaware into a benefit eligible position, the member’s leave balance will be zero on the date of rehire or reinstatement.
9.1.11 Employees who supplement the STD benefit payment with annual, sick, compensatory or donated leave may defer any portion of the supplement into the Deferred Compensation program. Employees may not defer any portion of the STD benefit payment to the Deferred Compensation program.
9.2 Non Merit Employees
10.1.5 Upon the exhaustion of the maximum STD benefit period, any employee, except those entitled to hazardous duty pay as defined in 29 Del.C. §5933(c), shall no longer be an employee of the State or any of its political subdivisions provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible. Employees entitled to hazardous duty pay as defined in 29 Del.C. §5933(c) who exhaust the maximum short term disability benefit period shall no longer be an employee of the State or any of its political subdivisions at the end of their entitlement to hazardous duty pay provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible.
11.2 Pursuant to 29 Del.C. §5258, within 90 days of the postmark date of the carrier’s written notice of its determination regarding STD benefits, a claimant may appeal any determination of disability benefits by filing a written petition setting forth with particularity the grounds for appeal with the DIP insurance carrier and/or Administrator. The DIP insurance carrier and/or Administrator has the authority to reverse all or any part of its initial STD benefit determination and shall notify the claimant, the employing organization and the Statewide Benefits Office in writing by certified mail, return receipt requested within 10 days of the determination.
11.3 Pursuant to 29 Del.C. §5258, within 20 days of the postmark date of the DIP insurance carrier and/or Administrator’s determination of benefits being appealed, a claimant may file a second level appeal by filing a written petition setting forth with particularity the grounds for second appeal to the Appeals Administrator at the Statewide Benefits Office, who shall conduct an informal review, and who shall have the authority to reverse all or any part of the decision of the DIP insurance carrier and/or Administrator to deny benefits. The claimant’s written appeal should be addressed and mailed to:
11.4 Pursuant to 29 Del.C. §5258, if the Appeals Administrator affirms the DIP insurance carrier and/or Administrator’s decision to deny disability benefits or any part thereof, a claimant may file an appeal to the SEBC within 20 days of the postmark date of the notice of the determination from the Appeals Administrator by filing a written petition with the SEBC setting forth with particularity the grounds for the appeal. The claimant’s written appeal should be addressed and mailed to:
11.5 Pursuant to 29 Del.C. §5258, within 30 days of the postmark date of the Committee’s determination to deny benefits on appeal, a claimant may file a final action to Superior Court. The appeal shall be on the record.
12.4 Pursuant to 29 Del.C., §5933(c), hazardous duty employees injured while performing a hazardous duty assignment and whose injuries arose out of and in the course of performing hazardous duty are entitled to a 12 month salary supplement. Employees entitled to hazardous duty pay as defined in 29 Del.C., §5933(c) who exhaust the maximum short term disability benefit period shall no longer be an employee of the State or any of its political subdivisions at the end of their entitlement to hazardous duty pay provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible. See subsection 9.1.10 and 9.2.4 for a complete description.
15.6 Pursuant to 29 Del.C. §5524(d), DIP participants vested in the Delaware State Employees’ Pension Plan as of December 31, 2005 may be enrolled in the disability pension plan upon the exhaustion of LTD benefits due to mental condition and/or substance abuse. Members will be mailed an authorization form to complete and return to the DIP insurance carrier and/or Administrator. Upon receipt, the DIP insurance carrier and/or Administrator will send a copy of the member’s disability file to the Pension Office for processing.
16.3 As defined in 29 Del.C. §5253(c)(3), LTD benefits shall not include general salary increases during the period of long term disability. LTD benefits may be increased annually by an amount approved by the State Employee Benefits Committee (SEBC).
IMPORTANT NOTE: Other Income Benefits also mean any payments that are made to the claimant, the claimant’s family, or to a third party on behalf of the claimant, pursuant to any:
19.1.2 Employees receiving STD benefits under 29 Del.C. §5253(b) will be treated as “regular officers and employees” under these regulations and are eligible for enrollment in the Group Health Insurance Program with State Share contributions, as applicable. STD beneficiaries are subject to the Group Health Insurance Program Eligibility and Enrollment Rules.
19.2.3 LTD claimants receiving benefits under 29 Del.C. §5253(c) will be treated as “eligible pensioners” and are eligible for enrollment in the Group Health Insurance Program with State Share contributions, as applicable. LTD beneficiaries are subject to the Group Health Insurance Plan Eligibility and Enrollment Rules.
19.3 20.0 Return To Work (RTW)
20.1 Pursuant to 29 Del.C., §5256(5), a contract exists between the Committee and the Statewide Benefits Office for the purpose of the administration of the DIP, including but not limited to determination of an individual’s ability to return to work by the RTW Coordinator pursuant to 29 Del.C., §5257(b).
19.3.1 20.1.1 Short Term Disability – Return To Work (RTW)
19.3.1.1 20.1.1.1 Pursuant to 29 Del.C. §5257(a), once an employee has been determined to have the ability to return to employment by the Committee, the employee will receive the following assistance:
19.3.1.1.1 20.1.1.1.1 Merit employees may be placed in any vacant merit position, for which they qualify, by the Office of Management and Budget.
19.3.1.1.2 20.1.1.1.2 Nonmerit state employees, and employees from nonstate employers will be placed by that employer into a vacant position within their respective employing organization for which the employee qualifies.
19.3.1.2 20.1.1.2 The employee must have a RTW Authorization from his/her attending physician to be permitted to return to work. Authorization forms may be obtained from the RTW Coordinator in the Statewide Benefits Office or from the employing organization if a specific form is required. A RTW Authorization is required PRIOR to the employee’s first day back to work.
19.3.1.3 20.1.1.3 Return to work assistance for employees enrolled in DIP who expect to be out of work for less than the STD calendar day elimination period are eligible to utilize the services of the RTW Coordinator from the Statewide Benefits Office.
19.3.1.4 20.1.1.4 There is a Return to Work process that shall be followed to assess and plan for keeping or returning an employee with a disability to work. The return to work process for all employing organizations shall be as follows:
19.3.1.4.1 20.1.1.4.1 Same job, same employer
19.3.1.4.2 20.1.1.4.2 Same job with modifications, same employer
19.3.1.4.3 20.1.1.4.3 Same job, different employer
19.3.1.4.4 20.1.1.4.4 Same job with modifications, different employer
19.3.1.4.5 20.1.1.4.5 Different job, same employer
19.3.1.4.6 20.1.1.4.6 Different job, different employer
19.3.1.4.7 20.1.1.4.7 Retraining and Education
19.3.1.5 20.1.1.5 The employee is eligible to receive assistance from the RTW Coordinator and the employing organization if temporary restrictions and limitations prevent an employee from performing his/her job at full capacity or should an assistive device be necessary. The employee will return to modified, transitional, or full duty work as soon as approved to do so by a medical provider as well as with the approval of the employing organization.
19.3.1.6 20.1.1.6 If the employing organization is not able to accommodate the employee with temporary restrictions or limitations, the employing organization must notify the RTW Coordinator stating the reason the accommodation cannot be granted. Once an employee has been released to modified duty or regular work, the employee is required to return to work at such time that the employing organization is able to accommodate the restrictions or limitations. Employees should work closely with the RTW Coordinator and the employing organization if modified duty is being requested.
19.3.1.7 20.1.1.7 When looking for options beyond the employee’s own job, the RTW Coordinator and employing organization shall consider the employee’s abilities, anticipated absence duration, training and experience. If placement cannot be accommodated, the employing organization must provide a written explanation to the RTW Coordinator.
19.3.1.8 20.1.1.8 If the employing organization is not able to accommodate the employee’s restrictions so that he/she may return to work, the employee may be eligible for a continuation of STD benefits provided the employee is still unable to perform the essential duties of their own occupation.
19.3.1.9 20.1.1.9 If the employing organization agrees to accommodate the temporary restrictions or limitations recommended by the employee’s medical provider while recovering from disability and the employee refuses to return to work, benefits may be discontinued.
19.3.1.10 20.1.1.10 When appropriate, the RTW Coordinator may refer employees to the Division of Vocational Rehabilitation when it has been determined by a medical professional that an employee will no longer have the ability to perform the essential functions of the position on a permanent basis.
19.3.1.11 20.1.1.11 When assigned to a rehabilitation program, the employee is required to maintain a treatment schedule corresponding to medical restrictions and/or normal working hours as designed by the location.
19.4 21.0 Long Term Disability (RTW)
19.4.1 21.1 Pursuant to 29 Del.C. §5257(b), once an individual has been determined to have the ability to return to employment by the committee, the individual will receive the following assistance:
19.4.1.1 21.1.1 Former merit employees enrolled in and previously deemed eligible for the Long-Term Disability Program may, when available and appropriate, be placed by the Office of Management and Budget in any merit position, for which they qualify without a certification list, as long as the paygrade does not exceed their paygrade at the time of their acceptance into and eligibility for the Short-Term Disability Program. Exceptions to the paygrade limitation may be made for vacancies for which a documented shortage of qualified applicants exists.
19.4.1.2 21.1.2 Former non-merit employees enrolled in and previously deemed eligible for the Long-Term Disability Program will be placed by their previous employer into a vacant position within their respective agency for which they qualify.
19.4.2 21.2 Individuals previously employed in a Merit position, must contact the RTW Coordinator at the Statewide Benefits Office within 15 days of their release to return to work and/or the termination of their LTD benefit.
19.4.3 21.3 Former Merit employees with documented performance/conduct issues prior to their disability may be determined ineligible for placement or RTW assistance. Refer to subsection 19.3.1.4 20.1.1.4 for the return to work process.
19.4.4 21.4 Former Merit employees who are returning to State employment from an approved LTD claim are subject to Merit Rule 9.5 which states “Upon reinstatement, employees who left the Merit System shall be required to serve an initial probation period.”
19.4.5 21.5 When an individual is rehired from LTD into a Merit position on a reduced work schedule and the reduced work schedule is expected and/or exceeds 30 calendar days, the employee should be considered permanent part-time for the purposes of holiday pay and leave accruals which shall be pro-rated based on scheduled hours. The status of permanent part-time will continue until such time as the employee is released to work for a normal work week of 37.5 or 40 hours.
19.4.6 21.6 Individuals formerly employed by a school district, charter school, institution of higher education or other nonmerit employing organization, should contact their former Human Resource department for assistance in placement.
19.4.7 21.7 When returning to work from LTD, former merit employees will be considered a new hire. Once rehired, the employee will accrue leave (vacation/sick) at the same rate as when the previous employment terminated.
19.4.8 21.8 If an LTD beneficiary is offered a position for which the employee is qualified and the employee declines the position, RTW assistance will terminate.
Last Updated: December 31 1969 19:00:00.
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