DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Substance Abuse and Mental Health

PROPOSED

PUBLIC NOTICE

6003 DUI Programs

In compliance with the Administrative Procedures Act (29 Del. C. Ch. 101) and under the authority of 21 Del. C. § 4177D, the State of Delaware Department of Health and Social Service's Division of Substance Abuse and Mental Health ("the Division") is proposing regulations governing driving under the influence programs ("DUI programs").

A person may make suggestions or provide compilations of data, testimony, briefs, or other materials concerning the Division's proposal by written submission to the Community Behavioral Health Bureau, Division of Substance Abuse and Mental Health. The Division will receive submissions made before 4:30 p.m. on December 1, 2021, by mail to 1901 North DuPont Highway, New Castle, DE 19720-0906, by fax to (302) 255-4427, and by email to david.okeke@delaware.gov. Please identify in the subject line: 6003 DUI Regulations.

The Division's determination to adopt this proposal will include analysis and consideration of submissions received.

SUMMARY

This notice's purpose is to advise the public that the Division is proposing regulations governing DUI programs.

Statutory Authority

21 Del. C. § 4177D authorizes the Division to promulgate regulations related to driving under the influence programs and issue this proposal.

Background

Enacted in 2018, 81 Del. Laws Ch. 331 amended 21 Del. C. § 4177D by transferring "the responsibilities relating to courses of instruction and programs of rehabilitation for persons whose drivers' licenses have been revoked for driving while under the influence of alcohol or drugs or both" from the Office of Highway Safety to the Division. Additionally, 21 Del. C. § 4177D requires the Division to adopt a schedule of fees for these courses and programs.

Summary of the Proposal

The proposed regulation ("the regulation") seeks to establish requirements and provide clear guidance to programs providing screening and referral, education, or treatment services to individuals whose driver's license the Department of Transportation has revoked for driving under the influence ("participants"). Except for participants in the Court of Common Pleas Driving Under the Influence Treatment Program, the regulation applies to all programs and participants.

The regulation establishes all of the following:

Fiscal Impact

The Division anticipates the regulation will have a de minimus fiscal impact on programs. However, the Division acknowledges that the regulation represents a significant fiscal impact for participants. The regulation sets the maximum allowable fees that a program may charge a participant for services. In determining these limits, the Division attempted to balance the interests of both programs and participants.

The Office of Highway Safety set the current schedule of fees in 2011.

*This level of treatment program does not currently exist, so the Division approximated a current fee by extrapolating the current hourly fee for a 16-hour treatment program.

Under 21 Del. C. § 4177D, "the schedule of fees may not exceed the maximum fine imposed." The Division interprets this provision to mean that the total amount of fees a program charges to a participant must not exceed the maximum fine authorized under 21 Del. C. § 4177D. The Division believes this is a reasonable interpretation as under the current fee schedule. Currently, for example, a first-time DUI offender fined the minimum of $500 by a court who a program referred to treatment would pay a total fee of at least $850 ($100 for screening and referral plus $750 for treatment), which is $350 more than the fine imposed by the court.

* For 4th and subsequent DUIs, a participant would complete a program while imprisoned and not participate in a program subject to the regulation.

In setting fees in the regulation, the Division considered the current fees, the cost to programs, national comparisons, the ability of participants to pay, and the medical services component of the medical care index (MCI). The MCI is one of eight major groups in the U.S. Bureau of Labor Statistics' Consumer Price Index, which measures the average change over time in the prices paid by urban consumers for a market basket of consumer goods and services.

After careful consideration and consultation with programs, the Division set the fee for treatment at the current rate plus the increase in the medical services component of the MCI over the past decade. The Division felt that the current fees for screening and referral and educational services were initially set too low and raised these fees slightly above the medical services component of the MCI over the past decade.

The Division believes that these fees are necessary to ensure that providing these services remains a financially viable venture for programs. However, the Division is sympathetic to the concern of the financial burden imposed on participants. The Division recognizes that a great deal of discussion occurs related to the fees charged to criminal defendants. Some of them commit additional violations or face imprisonment due to their inability to pay. Furthermore, the Division believes that access to treatment is crucial for all Delawareans regardless of the circumstances under which they participate.

While the Division is supportive of a sliding scale fee based on the participant’s ability to pay, the Division is unable to implement such a system as it lacks a funding source to reimburse programs the difference and the administrative capacity to determine financial eligibility for all participants.

6003 DUI Programs

The Division of Substance Abuse and Mental Health within the Department of Health and Social Services promulgates this regulation under the authority of 21 Del.C. §4177D.

The following words and terms, when used in this regulation, have the following meaning unless the context clearly indicates otherwise:

"Activity" means a program's appointment, class, meeting, or session with at least one participant.

"Blood alcohol concentration" or "BAC" means the grams of alcohol per 100 milliliters of blood or 210 liters of breath in a sample taken from a participant during a chemical test.

"Chemical test" means as defined under 21 Del.C. §4177.

"Defamatory language" means language that is defamatory towards a person or group based on age, creed, disability, familial status, ethnicity, gender, gender identity, national origin, sexual orientation, race, religion, or other protected classification.

"Division" means the Division of Substance Abuse and Mental Health.

"Driving under the influence" or "DUI" means a violation subject to punishment under 21 Del.C. §§4177, 4177B, 4177L, 4177M, or 23 Del.C. §§2305(2), 2305(3), or 2305(4).

"Drugs" means as defined under 21 Del.C. §4177.

"Governing body" means an individual, board, or other entity with ultimate responsibility for the management, operation, and control of a program.

"Instructor" means an employee of a program presenting educational classes to participants.

"License" means a license granted by the Division to provide substance use disorder treatment.

"Nonresident" means an individual that is not a resident of the State of Delaware.

"Participant" means an individual, 18 years or older, subject to 21 Del.C. §4177D or 23 Del.C. §2305(8).

"Program" means an entity providing services.

"Resident" means an individual living or attending school in Delaware or living within one hour’s travel time of Delaware.

"Services" means screening and referral, educational, or treatment services.

This regulation adopts rules and fees for programs providing services to participants.

4.1 Except as otherwise provided under subsection 4.2 of this regulation, this regulation applies to programs and participants.

4.2 This regulation does not apply to the Court of Common Pleas Driving Under the Influence Treatment Program or the Program's participants.

5.1 A program may provide services if the program meets all of the following requirements:

5.1.1 The program is licensed by the Division to provide treatment for substance use disorder.

5.1.2 The program is authorized by the Division to provide services for substance use disorder.

5.1.3 The program is contracted by the Division to provide services for substance use disorder.

5.2 The Division may authorize and contract with a program to provide one or more of the following service types:

5.2.1 Screening and referral.

5.2.2 Education.

5.2.3 Treatment.

5.3 A program must comply with the requirements of the program's license and other requirements issued by the Division.

5.4 A program's governing body must designate a program director responsible for the program's daily operation and administration. The program director must be a licensed chemical dependency professional.

5.5 A program must have written rules and policies for at least the following:

5.5.1 Protection of participant rights including informed consent.

5.5.2 Submission of grievances and appeals of program decisions.

5.5.3 Confidentiality of participant records.

5.5.4 Participant conduct.

5.5.5 Attendance, including requesting and excusing absences.

5.5.6 Leaves of absence.

5.5.7 Rescheduling activities.

5.5.8 Payments to the program.

5.6 A program must maintain a record for each participant.

6.1 A participant must comply with rules and policies adopted by a program and the requirements of this regulation.

6.2 Whenever participating in a program, a participant must do all of the following:

6.2.1 Be respectful of staff and other participants.

6.2.2 Attend scheduled program activities.

6.2.3 Pass required urine drug screenings.

6.2.4 Actively participate during program activities.

6.2.5 Dress and groom in a manner that falls within generally accepted definitions of neatness and cleanliness.

6.3 A participant must not do any of the following:

6.3.1 Engage in aggressive, hostile, harassing, threatening, or violent behavior.

6.3.2 Act in a manner that endangers the health and safety of staff or other participants.

6.3.3 Be disruptive or distracting.

6.3.4 Communicate using profanity or defamatory language.

6.3.5 Commit a criminal or traffic offense.

6.3.6 Except for prescribed medication taken according to a prescription, use or consume alcohol or drugs.

7.1 Whenever a program schedules a participant to attend an activity, the program must provide the participant with notice at least five days before the activity. The notice must include the activity's start time and location. A program providing a participant with a schedule of all the participant's scheduled activities fulfills the requirements under this subsection.

7.2 To successfully attend an activity, a participant must do all of the following:

7.2.1 Arrive before the activity starts.

7.2.2 Sign in on the form provided.

7.2.3 Be present for the entirety of the activity.

7.2.4 Actively participate.

7.3 Except if excused, a participant is absent from an activity whenever the participant does not attend an activity.

7.4 A participant's absence is excused from an activity whenever any of the following occurs:

7.4.1 The participant notifies a program during regular business hours at least 24 hours before the start of an activity they are unable to attend and requests a pre-arranged absence.

7.4.2 The participant's absence is due to events that are wholly beyond the participant's control, or the participant otherwise demonstrates good cause.

7.4.3 The activity does not begin less than one hour after the scheduled start time.

7.4.4 The program cancels the activity.

7.5 A participant may request that a program excuse an absence. The program may request reasonable documentation to support the participant's request.

7.6 If a participant is absent or excused, the participant must make up the missed activity no more than seven days after the initially scheduled date. If the participant fails to make up the missed activity, the absence counts towards the participant's limit.

7.7 A participant is allowed one absence from a screening and referral activity and two absences from an educational or treatment activity.

7.8 Except if a program grants a participant a leave of absence, the program may dismiss the participant from the program whenever a participant does not attend an activity for 21 consecutive days.

7.9 A participant may request a leave of absence from a program. The program may grant the participant's request if the participant does all of the following:

7.9.1 Requests the leave in advance.

7.9.2 Demonstrates good cause.

7.9.3 Provides reasonable documentation to support the request.

7.9.4 The program's director approves the request.

8.1 As used in this section, "program" means a program providing screening and referral services.

8.2 Except if a program screens a participant, a program must not refer a participant to an educational course or treatment services.

8.3 A participant must contact a program to schedule a screening appointment. During the appointment, the program must screen the participant using a Division-approved standardized tool. After screening the participant, the program must complete a screening report for the participant in the manner authorized by the Division.

8.4 Subject to Section 9.0 of this regulation, a program must refer a participant for appropriate services after completing a screening report.

8.5 A program may screen a participant remotely.

9.1 A program must refer a participant younger than 18 years to a treatment program approved by the Department of Services for Children, Youth, and Their Families.

9.2 A program must refer a participant to a program for educational services whenever all of the following conditions exist:

9.2.1 The participant's DUI is the participant's first.

9.2.2 The participant's BAC was less than .15.

9.2.3 The participant's screening report identifies a low risk of substance use disorder.

9.3 A program must refer a participant to a program for Level 1 treatment services whenever all of the following conditions exist:

9.3.1 The participant's DUI is the participant's first.

9.3.2 The participant's BAC was less than .15.

9.3.3 The participant's screening report identifies a moderate or higher risk of substance use disorder.

9.4 A program must refer a participant to a program for Level 2 treatment services whenever one of the following conditions exist:

9.4.1 The participant's DUI is the participant's first and any of the following conditions exist:

9.4.1.1 The participant's BAC was .15 or more.

9.4.1.2 The participant refused to submit to a chemical test.

9.4.2 The participant's DUI is the participant's second within 10 years and the participant's BAC was .15 or less.

9.4.3 The participant's DUI is the participant's first DUI or second DUI within 10 years and the participant's DUI involved the use of drugs.

9.5 A program must refer a participant to a program for Level 3 treatment services whenever all of the following conditions exist:

9.5.1 The participant's DUI is the participant's second within 10 years.

9.5.2 Any of the following conditions exist:

9.5.2.1 The participant's BAC was .15 or more.

9.5.2.2 The participant refused to submit to a chemical test.

9.6 Whenever a participant does not meet the criteria under subsections 9.2 through 9.5 of this regulation, a program must refer the participant for appropriate treatment services based on the participant's risk of substance use disorder identified in the participant's screening report.

9.7 Whenever a participant's screening report indicates co-occurring mental health or medical conditions, a program must provide the participant with a referral to appropriate services.

10.1 As used in this section, "program" means a program providing educational services.

10.2 A program must adopt a curriculum approved by the Division.

10.3 A program must present an educational course that consists of 16 hours of instruction.

10.4 An instructor presenting a class must have all of the following:

10.4.1 Necessary training or certification on the curriculum.

10.4.2 Relevant knowledge of the criminal justice system.

10.4.3 Training or experience as an instructor.

10.5 A program's director shall review and approve each instructor's qualifications.

11.1 As used in this section, "program" means a program providing treatment services.

11.2 A program must provide treatment services per the program's license and by a licensed chemical dependency professional.

11.3 Before providing treatment services to a participant, a program must assess the participant using standardized, evidence-based instruments approved by the Division.

11.4 After a participant's assessment, a program must create a written, individualized, and outcome-oriented treatment plan for the participant. The plan must do at least the following:

11.4.1 Identify and respond to the evidence and determinations arising from the participant's assessment.

11.4.2 State the specific interventions recommended by the program and the evidence supporting the interventions.

11.4.3 State the requirements and expectations for the participant's satisfactory completion of treatment.

11.4.4 State the consequences for the participant for failing to complete treatment.

11.5 A program must treat a participant according to the participant's treatment plan.

11.6 A program must require a participant receiving Level 2 or 3 treatment services to submit to urine drug screenings as part of the participant's treatment plan. Subject to the Division's approval, a program administering urine drug screenings must adopt written policies and procedures for conducting the screenings.

12.1 A program may grant a certificate of completion to a participant receiving education services whenever the participant does all of the following:

12.1.1 Attends 16 hours of educational activities.

12.1.2 Attends a meeting of a mutual-help group.

12.1.3 Has a DUI avoidance plan approved by an instructor.

12.1.4 Pays the required fees.

12.2 A program may grant a certificate of completion to a participant receiving Level 1 or 2 treatment services whenever the participant satisfies the requirements of their treatment plan, attends 16 hours of treatment activities, and pays the fees required by the program.

12.3 A program may grant a certificate of completion to a participant receiving Level 3 treatment services whenever the participant satisfies the requirements of their treatment plan, attends 27 hours of treatment activities, and pays the fees required by the program.

12.4 A program may grant a certificate of completion to a nonresident participant if the participant substantially satisfies the requirements of this section in their home state. Subject to the Division's approval, the program must establish policies and procedures to assist a nonresident participant satisfactorily in complying with the requirements of this section.

13.1 Except as authorized under this section, a program may not charge a participant a fee.

13.2 A program may charge a participant any of the following administrative fees:

13.2.1 $50 or less per absence.

13.2.2 $30 or less for a late payment.

13.3 An education or treatment program may charge a participant any of the following administrative fees:

13.3.1 $150 or less for supervision and processing of a nonresident.

13.3.2 $50 or less for processing the participant's transfer to another program.

13.3.3 $50 or less for reinstating the participant after the participant's dismissal.

13.3.4 $50 or less for materials.

13.4 A program may charge a participant any of the following service fees:

13.4.1 $150 or less for screening and referral services.

13.4.2 $35 or less per urine drug screen.

13.5 An education program may charge a participant a total program fee of $400 or less for 16-hours of education activities.

13.6 A treatment program may charge a participant a total program fee of $1,000 or less for 16-hours of Level 1 or 2 treatment activities.

13.7 A treatment program may charge a participant a total program fee of $1,700 or less for 27-hours of Level 3 treatment activities.

13.8 If a program excuses a participant's absence, the program may not charge the participant a fee under subsections 13.2.1 or 13.2.2 of this regulation.

13.9 A program fee charged by a program under subsections 13.6 or 13.7 of this regulation is subject to the Department and Division's policies and the program's contractual agreements with the State.

13.10 A participant is responsible for paying fees charged by a program.

13.11 A program must provide participants with a receipt at the time of payment and maintain a record of payments made by participants. A program must provide a copy of the record to the Division upon request.

13.12 A program must accept participant payments made via cash, cashier's check, certified check, money order, or a third-party payer. A program may accept participant payments made via credit card, debit card, or personal check.

13.13 A program may require payment before providing services.

13.14 A program may establish payment agreements with participants.

14.1 A participant commits a violation whenever the participant does not comply with the requirements of Section 6.0 of this regulation or exceeds the allowed number of absences under subsection 7.7 of this regulation. Each absence beyond the permitted number of absences counts as a new violation. A program may determine that a participant has committed multiple violations as part of one incident.

14.2 Whenever a participant commits a violation, a program may impose sanctions on the participant.

14.3 A participant is subject to disqualification from receiving services under this regulation whenever the participant does any of the following:

14.3.1 Commits three or more violations.

14.3.2 Commits a criminal or traffic offense.

14.3.3 Threatens or engages in violence.

14.3.4 Acts in a manner that the program believes requires the participant's disqualification.

14.4 A program must maintain a record of a participant's violations.

14.5 Whenever a program determines that a participant commits a violation, the program must inform the participant in writing. A violation constitutes an adverse action.

14.6 If a program disqualifies a participant, the program must notify the participant, the Division, and the court.

14.7 Whenever a program disqualifies a participant, the participant may not participate in activities under this regulation.

14.8 A participant may appeal a violation or disqualification under Section 15.0 of this regulation.

15.1 Whenever a program takes adverse action against a participant, the participant may appeal the adverse action to the program's director by submitting a written request on the form approved by the Division no more than 10 days after receiving written notice of the adverse action from the program.

15.2 Except if submitted according to subsection 15.1 of this regulation, a program must not consider an appeal.

15.3 A program director must review an appeal no more than five days after receiving the appeal. The program director's review must be based on the form submitted under subsection 15.1 of this regulation and contemporaneous documentation and records. A program is not required to conduct a hearing.

15.4 No more than 10 days after receiving an appeal, and after conducting a review under subsection 15.3 of this regulation, a program director must issue a written decision that contains at least the following:

15.4.1 A concise statement of the adverse action.

15.4.2 A concise statement of the appeal.

15.4.3 If applicable, a summary of the evidence.

15.4.4 The decision of the program director to take one of the following actions:

15.4.4.1 Dismiss the appeal.

15.4.4.2 Grant the appeal.

15.4.4.3 Partially grant the appeal and modify the adverse action.

15.5 Notice of a decision issued under subsection 15.4 of this regulation must be given to a participant. The notice must include a copy of the written decision. A program must maintain a copy of a decision.

15.6 If a program director does not issue a decision within the time provided under subsection 15.4 of this regulation, the appeal is automatically granted and the adverse action is void.

15.7 A participant may appeal a program director's decision by submitting a written request on the form approved by the Division no more than 10 days after receiving notice of the decision under subsection 15.5 of this regulation.

15.8 Except if submitted according to subsection 15.7 of this regulation, the Division must not consider an appeal.

15.9 The Division Director shall appoint a review committee consisting of three Division staff to consider appeals made under subsection 15.7 of this regulation. The committee must meet at least monthly.

15.10 The committee's members must review the available record. The Division is not required to conduct a hearing. At the meeting, the committee must, by majority vote, make one of the following determinations:

15.10.1 To dismiss the appeal.

15.10.2 To grant the appeal.

15.10.3 To partially grant the appeal and modify the adverse action.

15.11 The Division must notify the participant and the program in writing of the review committee's determination under subsection 15.10 of this regulation.

15.12 The determination of the review committee is final.