DEPARTMENT OF EDUCATION

Office of the Secretary

Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b))

14 DE Admin. Code 612

PROPOSED

PUBLIC NOTICE

Education Impact Analysis Pursuant To 14 Del.C. Section 122(d)

612 Possession, Use or Distribution of Drugs and Alcohol

A. Type of Regulatory Action Required

Amendment to Existing Regulation

B. Synopsis of Subject Matter of the Regulation

The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 612 Possession, Use or Distribution of Drugs and Alcohol. This regulation is being amended to update definitions, include reference to an insulin pump and medical marijuana oil, and update drug and alcohol policy posting requirements and to clarify disciplinary penalties based on Regulation 616 (Uniform Due Process for Alternate Placement Meetings and Expulsion Hearings).

Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before November 7, 2016 to Tina Shockley, Education Associate, Department of Education, Regulatory Review, at 401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation may be viewed online at the Register of Regulation’s website, http://regulations.delaware.gov/services/current_issue.shtml, or obtained at the Department of Education, Finance Office located at the address listed above.

C. Impact Criteria

1. Will the amended regulation help improve student achievement as measured against state achievement standards? The amended regulation does not directly address student achievement.

2. Will the amended regulation help ensure that all students receive an equitable education? The amended regulation is intended to continue to help ensure all students receive an equitable education.

3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The amendments address students’ health and safety by helping to ensure that students who need medications have easy access to such medications. This regulation also establishes rules that seek to protect students from drugs in the school setting.

4. Will the amended regulation help to ensure that all students’ legal rights are respected? The amended regulation continues to help ensure that all student’s legal rights are respected.

5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? The amended regulation does not change the decision making at the local board and school level.

6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels? The amended regulation does not place any unnecessary reporting or administrative requirements on decision makers.

7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The decision making authority and accountability for addressing the subject to be regulated does not change because of the amendments.

8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies? The amendments are consistent with and not an impediment to the implementation of other state educational policies.

9. Is there a less burdensome method for addressing the purpose of the regulation? There is not a less burdensome method for addressing the purpose of the regulation.

10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no expected cost to implementing this amended regulation.

612 Possession, Use or Distribution of Drugs and Alcohol

1.0 The Following Policy on the Possession, Use, or Distribution of Drugs and Alcohol Shall Apply to All Public School Districts and Charter Schools Purpose

The purpose of this regulation is to outline the minimum requirements to be included in all public school district and charter school policies on the Possession, Use, or Distribution of Drugs and Alcohol.

2.0 General Provisions

2.1 The following provisions shall apply to all public school district and charter schools:

1.1 2.1.1 The possession, use and/or distribution of aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike sSubstance and dDrug pParaphernalia are wrong and harmful to students and are prohibited within the sSchool eEnvironment, unless medically necessary.

1.2 2.1.2 Student lockers are the property of the school and may be subjected to search at any time with or without reasonable suspicion.

1.3 2.1.3 Student motor vehicle use to and in the sSchool eEnvironment is a privilege which may be extended by school districts or charter schools to students in exchange for their cooperation in the maintenance of a safe school atmosphere. Reasonable suspicion of a student's use, possession or distribution of aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike substance or dDrug pParaphernalia in the sSchool eEnvironment, may result in the student being asked to open an automobile in the sSchool eEnvironment to permit school authorities to look for such items. Failure to open any part of the motor vehicle on the request of school authorities may result in the police being called to conduct a search, and will result in loss of the privilege to bring the vehicle on campus.

1.4 2.1.4 All aAlcohol, dDrugs, dDrug lLike sSubstances, lLook aAlike sSubstances and dDrug pParaphernalia found in a student's possession shall be turned over to the principal or designee, and be made available, in the case of a medical emergency, for identification. All substances shall be sealed and documented, and, in the case of substances covered by 16 Del.C. Ch. 47, turned over to police as potential evidence.

12 DE Reg. 781 (12/01/08)

23.0 The Following Definitions Shall Apply to This Policy and Will be Used in All District and Charter School Policies

The following definitions shall apply to this regulation, unless a specific regulation, statute or the context in which they are used clearly indicates otherwise, and shall apply to all public school districts and charter schools.

"Alcohol" shall means alcohol or any alcoholic liquor capable of being consumed by a human being, as defined in 4 Del.C. §101 including alcohol, spirits, wine and beer.

“Designated Caregiver” means, pursuant to 16 Del.C. §4902A(5), a person who: is at least 21 years of age unless the person is the parent or legal guardian of a minor who is a qualifying patient; has agreed to assist with a patient's medical use of marijuana; has not been convicted of an excluded felony offense; and assists no more than 5 qualifying patients with their medical use of marijuana.

"Distribute", "Distributing" or "Distribution" shall means the transfer or attempted transfer of aAlcohol, a dDrug, a dDrug lLike sSubstance, or dDrug pParaphernalia to any other person with or without the exchange of money or other valuable consideration.

"Drug" shall means any controlled substance or counterfeit substance as defined in 16 Del.C. §4701 including, for example, narcotic dDrugs such as heroin or cocaine, amphetamines, anabolic steroids, and marijuana, and shall include any prescription substance which has been given to or prescribed for a person other than the student in whose possession it is found.

"Drug Like Substance" shall means any noncontrolled and nonprescription substance capable of producing a change in behavior or altering a state of mind or feeling, including, for example, some over the counter cough medicines, certain types of glue, caffeine pills and diet pills. The definition of dDrug lLike sSubstance does not include tobacco or tobacco products which are governed by 14 DE Admin. Code 877 Tobacco Policy.

"Drug Paraphernalia" shall means all equipment, products and materials as defined in 16 Del.C. §4701 including, for example, roach clips, miniature cocaine spoons and containers for packaging dDrugs.

"Expulsion" shall means exclusion from school for a period determined by the local district or charter school not to exceed the total number of student days. The process for readmission shall be determined by the local district or charter school. disciplinary action approved by the Board of Education resulting in a student being removed from the regular school program for a duration not to exceed the total number of student days in a school year. A student expelled without appropriate educational services shall be unenrolled from the district/charter during the term of the expulsion. Regardless of whether without or with services, including alternative placement, the expelled student is not eligible to enroll in any other Delaware public school during the period of the expulsion and until any reasonable terms of the expulsion are fulfilled.

"Look Alike Substance" shall means any noncontrolled substance which is packaged so as to appear to be, or about which a student makes an express or implied representation that the substance is, a dDrug or a noncontrolled substance capable of producing a change in behavior or altering a state of mind or feeling. See 16 Del.C. §4752A.

“Medical Marijuana Oil” means as defined in 16 Del.C. §4902A(10).

"Nonprescription Medication" shall means any over the counter medication; some of these medications may be a "dDrug lLike sSubstance."

"Possess" "Possessing" or "Possession" shall means that a student has on the student's person, in the student's belongings, or under the student's reasonable control by placement of and knowledge of the whereabouts of, aAlcohol, a dDrug, a dDrug lLike sSubstance, a lLook aAlike sSubstance, or dDrug pParaphernalia.

"Prescription Drugs Medication(s)" shall means any substance obtained directly from or pursuant to a valid prescription or order of a practitioner, as defined in 16 Del.C. §4701(24), while acting in the course of his or her professional practice, and which is specifically intended for the student in whose possession it is found.

“Relative Caregiver” means an individual who meets the criteria and requirements of 14 Del.C. §202 (f)(1).

"School Environment" shall means within or on school property, and at school sanctioned or supervised activities, including, for example, on school grounds, on school buses, at functions held on school grounds, at extra curricular activities held on and off school grounds, on field trips and at functions held at the school in the evening.

“Suspension” means, for the purposes of this regulation, disciplinary action approved by the principal or school discipline committee resulting in the student being removed from his regular school program for at least one (1) school day and not more than ten (10) consecutive school days. Student maintains enrollment in district/charter, but is excluded from all school activities including, but not limited to extracurricular sports/programs, field trips, and ceremonies. Student is not allowed on school property when suspension is out-of-school. A suspension requires initial due process procedures as outlined in Regulation 616.

"Use" shall means that a student is reasonably known to have ingested, smoked or otherwise assimilated aAlcohol, a dDrug or a dDrug lLike sSubstance, or is reasonably found to be under the influence of such a substance.

12 DE Reg. 781 (12/01/08)

34.0 Requirement of Each School District and Charter School to have a Policy.

4.1 Each school district and charter school shall have a policy on file and update it periodically. The policy shall Iinclude, as at a minimum, the following:

3.1 4.1.1 A system of notification of each student and of his/her their parent, guardian or Relative Caregiver at the beginning of the school year, of the state and district policies and regulations. In addition a system for the notification of each student and his/her their parent, guardian or Relative Caregiver whenever a student enrolls or re enrolls during the school year of the state and district policies and regulations.

3.2 4.1.2 A statement that state and district or charter school policies shall apply to all students, except that with respect to children with disabilities, applicable federal and state laws will be followed.

3.3 4.1.3 A written policy which sets out procedures for reporting incidents to police authorities, parents, guardians or Relative Caregivers and to the Department of Education, while maintaining confidentiality.

3.4 4.1.4 A written policy on how evidence is to be kept, stored and documented, so that the chain of custody is clearly established prior to giving such evidence over to the police.

3.5 4.1.5 A written policy on search and seizure.

3.6 4.1.6 A program of assistance for students with counseling and referral to services as needed.

3.7 4.1.7 A discipline policy which contains, at a minimum, the following penalties for infractions of state, district, and charter school dDrug policies.

3.7.1 Use/Impairment: For a first offense, if a student is found to be only impaired and not in violation of any other policies, he/she shall be suspended for up to 10 days, or placed in an alternative setting for up to 10 days, depending upon the degree of impairment, the nature of the substance used, and other aggravating or mitigating factors. For a second or subsequent offense, a student may be expelled or placed in an alternative setting for the rest of the school year.

3.7.2 Possession of alcohol, a drug, a drug like substance, and/or a look alike substance, in an amount typical for personal use, and drug paraphernalia: For a first offense, the student shall be suspended for 5 to 10 days. For a second or subsequent offense, a student may be expelled for the rest of the school year or placed in an alternative setting for the rest of the school year.

3.7.3 Possession of a quantity of alcohol, a drug, a drug like substance, a look alike substance and drug paraphernalia in an amount which exceeds an amount typical for personal use, or distribution of the above named substances or paraphernalia: the student shall be suspended for 10 days, or placed in an alternative setting for 10 days. Depending on the nature of the substance, the quantity of the substance and/or other aggravating or mitigating factors, the student also may be expelled.

3.8 4.1.8 A policy in cases involving a dDrug lLike sSubstance or a lLook aAlike sSubstance for establishing that the student intended to use, possess or distribute the substance as a dDrug.

3.9 4.1.9 A policy which establishes how pPrescription Medications and nNonprescription drugs Medications shall be handled in the sSchool eEnvironment and when they will be considered unauthorized and subject to these state and local policies.

3.10 4.1.10 A policy which sets out the conditions for return after eExpulsion for aAlcohol or dDrug infractions.

3.11 4.2 Notwithstanding any of the foregoing to the contrary, all policies adopted by public school districts or charter schools relating to the possession or use of dDrugs shall permit a student's discretionary use and possession of an asthmatic quick relief inhaler ("Inhaler") with an individual prescription label, or an autoinjectable epinephrine with individual prescription label, or an insulin pump for continuous subcutaneous insulin infusion (“insulin pump”); provided, nevertheless, that the student uses the inhaler, or autoinjectable epinephrine, or an insulin pump pursuant to prescription or written direction from a state licensed health care practitioner; a copy of which shall be provided to the school district or charter school; and further provided that the parent(s) or legal custodian(s) of such student provide the school district or charter school with written authorization for the student to possess and use the inhaler, or autoinjectable epinephrine, or an insulin pump at such student's discretion or under the school nurse’s supervision, together with a form of release satisfactory to the school district or charter school releasing the school district or charter school and its employees from any and all liability resulting or arising from the student's discretionary use and possession of the inhaler, or autoinjectable epinephrine, or an insulin pump, and further provided that the school nurse may impose reasonable limitations or restrictions upon the student's use and possession of the inhaler, or autoinjectable epinephrine, or an insulin pump based upon the student's age, level of maturity, behavior, or other relevant considerations.

3.11.1 4.2.1 Parents or legal custodians shall not be required to provide or sign a form of release where the student's use and possession of an asthmatic quick relief inhaler, or autoinjectable epinephrine, or insulin pump is determined by the student's IEP or Section 504 Team to be necessary for the student's educational placement.

3.11.2 4.2.2 Except as provided for in a student's Section 504 Plan or IEP, the school nurse may not unilaterally impose limitations or restrictions on a student's use and possession of an asthmatic quick relief inhaler, or autoinjectable epinephrine, or an insulin pump if a Section 504 or IEP Team has determined the use of the medication is necessary for the student's educational placement.

(For students who use prescribed asthmatic quick relief inhalers, or autoinjectable epinephrine, or an insulin pump for continuous subcutaneous insulin therapy, see 14 DE Admin. Code 817, Administration of Medications and Treatments)

4.3 A Designated Caregiver may possess for the purpose of administering and may administer to a minor qualifying patient Medical Marijuana Oil in a school bus and on the grounds or property of the preschool, or primary or secondary school in which a minor qualifying patient is enrolled. The Designated Caregiver shall not be a school nurse or other school employee hired or contracted by a school unless he or she is a parent or legal guardian of the minor qualifying patient, and said parent or legal guardian possesses no more than the number of dose(s) prescribed per day of Medical Marijuana Oil which is kept at all times on their person.

12 DE Reg. 781 (12/01/08)

13 DE Reg. 1201 (03/01/10)

45.0 Reporting Requirements and Timelines

4.1 5.1 Each local school district and charter school shall have an electronic copy of its current possession, use and distribution of dDrugs and aAlcohol policy on file with the Department of Education.

4.2 5.2 When a local school district or charter school revises its possession, use, and distribution of dDrugs and aAlcohol policy, it shall provide an electronic copy notify the Department of Education of the revised policy to the Department within thirty (30]) days of the revision, even if the revision was made because of changes in Ffederal, state or local law, regulations, guidance or policies.