Delaware Register
of
Regulations
Issue Date:
Volume 5
IN THIS ISSUE:
Regulations:
Emergency
Proposed
Final
Governor
Appointments
Calendar of Events &
Hearing Notices
January 1, 2002
Pages 1325 - 1543 Issue 7 -
Pursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of the Register contains
all documents required to be published, and received, on or before December 15, 2001.
INFORMATION ABOUT THE DELAWARE 1326 REGISTER OF REGULATIONS
DELAWARE REGISTER OF REGULATIONS
The Delaware Register of Regulations is an
official State publication established by authority
of 69 Del. Laws, c. 107 and is published on the
first of each month throughout the year.
The Delaware Register will publish any
regulations that are proposed to be adopted,
amended or repealed and any emergency
regulations promulgated.
The Register will also publish some or all of
the following information:
• Governor's Executive Orders
• Governor's Appointments
• Attorney General's Opinions in full text
• Agency Hearing and Meeting Notices
• Other documents considered to be in the
public interest.
CITATION TO THE
DELAWARE REGISTER
The Delaware Register of Regulations is
cited by volume, issue, page number and date. An
example would be:
4 DE Reg. 769 - 775 (11/1/00)
Refers to Volume 4, pages 769 - 775 of the
Delaware Register issued on November 1, 2000.
SUBSCRIPTION INFORMATION
The cost of a yearly subscription (12 issues)
for the Delaware Register of Regulations is
$120.00. Single copies are available at a cost of
$12.00 per issue, including postage. For more
information contact the Division of Research at
302-744-4114 or 1-800-282-8545 in Delaware.
CITIZEN PARTICIPATION IN THE
REGULATORY PROCESS
Delaware citizens and other interested parties
may participate in the process by which
administrative regulations are adopted, amended
or repealed, and may initiate the process by which
the validity and applicability of regulations is
determined.
Under 29 Del.C. §10115 whenever an
agency proposes to formulate, adopt, amend or
repeal a regulation, it shall file notice and full text
of such proposals, together with copies of the
existing regulation being adopted, amended or
repealed, with the Registrar for publication in the
Register of Regulations pursuant to §1134 of this
title. The notice shall describe the nature of the
proceedings including a brief synopsis of the
subject, substance, issues, possible terms of the
agency action, a reference to the legal authority of
the agency to act, and reference to any other
regulations that may be impacted or affected by
the proposal, and shall state the manner in which
persons may present their views; if in writing, of
the place to which and the final date by which such
views may be submitted; or if at a public hearing,
the date, time and place of the hearing. If a public
hearing is to be held, such public hearing shall not
be scheduled less than 20 days following
publication of notice of the proposal in the
Register of Regulations. If a public hearing will
be held on the proposal, notice of the time, date,
place and a summary of the nature of the proposal
shall also be published in at least 2 Delaware
newspapers of general circulation. The notice
shall also be mailed to all persons who have made
timely written requests of the agency for advance
notice of its regulation-making proceedings.
The opportunity for public comment shall be
held open for a minimum of 30 days after the
proposal is published in the Register of
Regulations. At the conclusion of all hearings and
after receipt, within the time allowed, of all written
materials, upon all the testimonial and written
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
INFORMATION ABOUT THE DELAWARE 1327
REGISTER OF REGULATIONS
evidence and information submitted, together with
summaries of the evidence and information by
subordinates, the agency shall determine whether
a regulation should be adopted, amended or
repealed and shall issue its conclusion in an order
which shall include: (1) A brief summary of the
evidence and information submitted; (2) A brief
summary of its findings of fact with respect to the
evidence and information, except where a rule of
procedure is being adopted or amended; (3) A
decision to adopt, amend or repeal a regulation or
to take no action and the decision shall be
supported by its findings on the evidence and
information received; (4) The exact text and
citation of such regulation adopted, amended or
repealed; (5) The effective date of the order; (6)
Any other findings or conclusions required by the
law under which the agency has authority to act;
and (7) The signature of at least a quorum of the
agency members.
The effective date of an order which adopts,
amends or repeals a regulation shall be not less
than 10 days from the date the order adopting,
amending or repealing a regulation has been published
in its final form in the Register of Regulations,
unless such adoption, amendment or repeal
qualifies as an emergency under §10119.
Any person aggrieved by and claiming the
unlawfulness of any regulation may bring an
action in the Court for declaratory relief.
No action of an agency with respect to the
making or consideration of a proposed adoption,
amendment or repeal of a regulation shall be subject
to review until final agency action on the proposal
has been taken.
When any regulation is the subject of an
enforcement action in the Court, the lawfulness of
such regulation may be reviewed by the Court as a
defense in the action.
Except as provided in the preceding section,
no judicial review of a regulation is available
unless a complaint therefor is filed in the Court
within 30 days of the day the agency order with
respect to the regulation was published in the
Register of Regulations.
CLOSING DATES AND ISSUE DATES
FOR THE DELAWARE REGISTER
OF REGULATIONS
ISSUE CLOSING CLOSING
DATE DATE TIME
FEBRUARY 1 JANUARY 15 4:30 P.M.
MARCH 1 FEBRUARY 15 4:30 P.M.
APRIL 1 MARCH 15 4:30 P.M.
MAY 1 APRIL 15 4:30 P.M.
JUNE 1 MAY 15 4:30 P.M.
DIVISION OF RESEARCH STAFF:
Walter G. Feindt, Deputy Director; Judi
Abbott, Secretary; Sandra F. Clark,
Administrative Assistant; Jeffrey W. Hague,
Registrar of Regulations; Maryanne McGonegal,
Research Analyst; Ruth Ann Melson, Legislative
Librarian; Deborah J. Messina, Print Shop
Supervisor; Alex W. Mull, Assistant Registrar;
Deborah A. Porter, Administrative Assistant;
Barbara Ryan, Public Information Clerk; Ted
Segletes, Paralegal; Don Sellers, Printer; Thom
Shiels, Legislative Attorney; Alice W. Stark,
Legislative Attorney; Mary Jane Starkey, Senior
Secretary; Marvin L. Stayton, Printer; Rochelle
Yerkes, Senior Secretary.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE ISSUE 7, TUESDAY, JANUARY 1, 2002
1328 TABLE OF CONTENTS
Cumulative Tables................................................. .......1330
EMERGENCY
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF PUBLIC HEALTH
Regulation Governing the Care and Transportation
of the Dead, Section 6 Preparation of Bodies
Dead of Certain Diseases .............................. .......1337
PROPOSED
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
3000 Board of Professional Counselors of
Mental Health................................................ .......1340
DEPARTMENT OF AGRICULTURE
FOOD PRODUCTS INSPECTION SECTION
Food Products Inspection ..................................... .......1345
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Regulations for Training and Qualifications
for Nursing Assistants and Certified
Nursing Assistants......................................... .......1346
DIVISION OF SOCIAL SERVICES
DSSM 9085 Reporting Changes ......................... .......1356
DEPARTMENT OF TRANSPORTATION
Regulations for Outdoor Advertising ................... .......1357
FINAL
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
2900 Real Estate Commission.............................. .......1387
2925 Real Estate Commission, Education ........... .......1395
3300 Board of Veterinary Medicine ..................... ...... 1400
5300 Board of Massage and Bodywork................ ...... 1409
PUBLIC SERVICE COMMISSION
Reg. Docket No.13, Rules & Regulations
Governing Minimum Standards for Service
Provided by Public Water Companies........... ...... 1414
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
Delaware State Lottery Office
Video Lottery Regulation 5.0 Technology
Providers: Contracts; Requirements; Duties . ...... 1417
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Training & Qualifications for Nursing Assistants
& Certified Nursing Assistants...................... ...... 1420
DIVISION OF PUBLIC HEALTH
Managed Care Organizations, Applications
& Operation of............................................... ...... 1435
Health Systems Protection Section
Uniform Controlled Substance Regulation No. 4. ...... 1460
DIVISION OF SOCIAL SERVICES
DSSM 9060, Income Deductions.......................... ...... 1465
DSSM 11004.7 Child Care Fee............................. ...... 1467
DSSM 20620.1, Personal Needs.......................... ...... 1469
DEPARTMENT OF INSURANCE
Regulation 85, Valuation of Life Insurance Policies . 1470
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Air Quality Management Section
Reg. No. 24, Sec. 2, Definitions. .......................... ...... 1478
Sec. 26, Stage I Vapor Recovery.................... ...... 1482
Sec. 36, Stage II Vapor Recovery.................. ...... 1484
Reg. 41, Section 2, Consumer Products................. ...... 1497
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
TABLE OF CONTENTS 1329
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF STATE POLICE
Bounty Hunter/Bail Enforcement Agents ............ .......1523
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Energy Alternatives Program ............................... ....... 1529
GOVERNOR
Appointments........................................................ .......1539
CALENDAR OF EVENTS/HEARING
NOTICES
Board of Professional Counselors of
Mental Health, Notice of Public Hearing....... .......1542
Dept. of Agriculture, Food Products
Inspection, Notice of Public Hearing............. .......1542
Health & Social Services, Div. of Long Term Care,
Regulations for Training and Qualifications for
Nursing Assistants and Certified Nursing
Assistants, Notice of Public Hearing ............ .......1542
Div. of Social Services, 9085 Reporting Changes,
Notice of Public Comment Period................. .......1543
DELDOT, Regulations for Outdoor Advertising, Notice of
Public Hearing............................................... .......1543
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1330 CUMULATIVE TABLES
The table printed below lists the regulations that have been proposed, adopted, amended or repealed
in the preceding issues of the current volume of the Delaware Register of Regulations.
The regulations are listed alphabetically by the promulgating agency, followed by a citation to that
issue of the Register in which the regulation was published. Proposed regulations are designated with
(Prop.); Final regulations are designated with (Final); Emergency regulations are designated with
(Emer.); and regulations that have been repealed are designated with (Rep.).
DELAWARE SOLID WASTE AUTHORITY
Regulations of the Delaware Solid Waste Authority............................................................. .......5 DE Reg. 100 (Final)
Differential Disposal Fee Program......................................................................................... .......5 DE Reg. 115 (Final)
Statewide Solid Waste Management...................................................................................... .......5 DE Reg. 117 (Final)
DELAWARE STATE FIRE PREVENTION COMMISSION
Criminal History Records Check Policy................................................................................ .......5 DE Reg. 1006 (Prop.)
DEPARTMENT OF ADMINISTRATIVE SERVICES
Division of Professional Regulation (TITLE 24 DELAWARE ADMINISTRATIVE CODE)
100 Board of Accountancy......................................................................................... .......5 DE Reg. 6 (Prop.)
5 DE Reg. 119 (Final)
5 DE Reg. 687 (Prop.)
200 Board of Landscape Architecture........................................................................ .......5 DE Reg. 446 (Final)
5 DE Reg. 821 (Final)
1100 Board of Dental Examiners................................................................................. .......5 DE Reg. 1251 (Final)
1900 Board of Nursing, Joint Practice Committee, Advanced Practice Nurses........... .......5 DE Reg. 1009 (Prop.)
2900 Real Estate Commission...................................................................................... .......5 DE Reg. 231 (Prop.)
5 DE Reg. 697 (Prop.)
5 DE Reg. 1070 (Final)
2925 Real Estate Commission, Education Guidelines................................................. .......5 DE Reg. 238 (Prop.)
5 DE Reg. 705 (Prop.)
5 DE Reg. 1071 (Final)
5 DE Reg. 1187 (Prop.)
3000 Board of Professional Counselors of Mental Health........................................... .......5 DE Reg. 452 (Final)
3100 Board of Funeral Services................................................................................... .......5 DE Reg. 606 (Final)
3300 Board of Veterinary Medicine............................................................................. .......5 DE Reg. 709 (Prop.)
5 DE Reg. 999 (Errata)
3500 Board of Examiners of Psychologists.................................................................. .......5 DE Reg. 612 (Final)
3900 Board of Clinical Social Work Examiners........................................................... .......5 DE Reg. 1072 (Final)
5100 Board of Cosmetology and Barbering................................................................. .......5 DE Reg. 243 (Prop.)
5 DE Reg. 1260 (Final)
5300 Board of Massage and Bodywork....................................................................... .......5 DE Reg. 16 (Prop.)
5 DE Reg. 717 (Prop.)
5 DE Reg. 827 (Final)
Public Service Commission
Delaware PSC's Rules for the Provision of Telecommunications Services, Docket
Nos. 10 & 45, Proposed Amendments..................................................................... .......5 DE Reg. 435 (Prop.)
5 DE Reg. 1265 (Final)
Reg. Docket No. 13, Rules & Regulations Governing Minimum Standards for
Service Provided by Public Water Companies........................................................ .......5 DE Reg. 722 (Prop.)
Water Utilities, Proposed Regulations Governing, Including the Commission's Jurisdiction to
Grant and Revoke Certificates of Public Convenience & Necessity Subject to the
Jurisdiction of the PSC............................................................................................ .......5 DE Reg. 212 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
CUMULATIVE TABLES 1331
DEPARTMENT OF AGRICULTURE
Aquaculture Regulations ...................................................................................................... .......5 DE Reg. 1192 (Prop.)
Delaware Standardbred Breeders' Fund Program................................................................. .......5 DE Reg. 1274 (Final)
Harness Racing Commission
Rule 1, Required Days Off.............................................................................................. .......5 DE Reg. 247 (Prop.)
5 DE Reg. 832 (Final)
Rule 3.0, State Steward/Judges....................................................................................... .......5 DE Reg. 250 (Prop.)
5 DE Reg. 835 (Final)
Rule 4.0, Associations.................................................................................................... .......5 DE Reg. 252 (Prop.)
5 DE Reg. 837 (Final)
Rule 5, Owners... ...................................................................................................... .......5 DE Reg. 253 (Prop.)
5 DE Reg. 838 (Final)
Rule 6.0, Types of Races................................................................................................. .......5 DE Reg. 1196 (Prop.)
Rule 7, Rules of the Race................................................................................................ .......5 DE Reg. 255 (Prop.)
5 DE Reg. 841 (Final)
Rule 8, Medications and Foreign Substances................................................................. .......5 DE Reg. 258 (Prop.)
5 DE Reg. 843 (Final)
Rule 8.0, Veterinary Practices, Equine Health Medication............................................. .......5 DE Reg. 1196 (Prop.)
Plant Industries Section
Grain Inspection and Certification Regulations.............................................................. .......5 DE Reg. 458 (Final)
Thoroughbed Racing Commission
Rule 13.0, Claiming Races............................................................................................. .......5 DE Reg. 1214 (Prop.)
Rule 13.01, Owners Entitled........................................................................................... .......5 DE Reg. 21 (Prop.)
5 DE Reg. 849 (Final)
DEPARTMENT OF EDUCATION
101 Delaware Student Testing Program......................................................................... .......5 DE Reg. 23 (Prop.)
5 DE Reg. 620 (Final)
103 School Accountability for Academic Performance................................................. .......5 DE Reg. 724 (Prop.)
5 DE Reg. 1281 (Final)
201 School Shared Decision-making Transition Planning Grants................................. .......5 DE Reg. 1017 (Prop.)
205 District Shared Decision-making Transition Planning Grants................................ .......5 DE Reg. 1017 (Prop.)
210 Approval of School Improvement Grants................................................................ .......5 DE Reg. 1017 (Prop.)
260 General Appeal Procedures for the Child and Adult Care Food Programs
of the United States Department of Agriculture.................................................. .......5 DE Reg. 461 (Final)
303 Certification Administrative - Assistant Superintendent for Business.................... .......5 DE Reg. 263 (Rep.)
5 DE Reg. 851 (Final)
315 Certification Manager Of School Bus Transportation............................................. .......5 DE Reg. 264 (Rep.)
5 DE Reg. 853 (Final)
316 Certification Supervisor Of School Bus Transportation.......................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 853 (Final)
317 Certification School Business Manager................................................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 853 (Final)
318 Certification Manager Of School Food Service Programs...................................... .......5 DE Reg. 265 (Rep.)
5 DE Reg. 854 (Final)
319 Certification Supervisor Of School Food Service Programs................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 854 (Final)
5 DE Reg. 1000 (Errata)
359 Certification Audiology........................................................................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 855 (Final)
366 Certification School Occupational Therapist........................................................... .......5 DE Reg. 266 (Rep.)
5 DE Reg. 855 (Final)
367 Certification School Physical Therapist.................................................................. .......5 DE Reg. 267 (Rep.)
5 DE Reg. 855 (Final)
369 Certification Speech Language Pathologist 5 DE Reg. 855 (Final)
398 Degree Granting Institutions of Higher Education.................................................. .......5 DE Reg. 270 (Prop.)
5 DE Reg. 859 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1332 CUMULATIVE TABLES
501 State Content Standards........................................................................................... .......5 DE Reg. 276 (Prop.)
5 DE Reg. 865 (Final)
515 High School Diplomas and Record of Performance................................................ .......5 DE Reg. 28 (Prop.)
5 DE Reg. 625 (Final)
701 Unit Count... ...................................................................................................... .......5 DE Reg. 29 (Prop.)
5 DE Reg. 627 (Final)
745 Criminal Background Checks for Public Education Employees............................. .......5 DE Reg. 280 (Prop.)
5 DE Reg. 869 (Final)
828 Assistance with Medications on Field Trips............................................................ .......5 DE Reg. 284 (Prop.)
5 DE Reg. 873 (Final)
5 DE Reg. 1216 (Prop.)
910 General Educational Development.......................................................................... .......5 DE Reg. 1285 (Final)
915 James H. Groves High School................................................................................. .......5 DE Reg. 1285 (Final)
925 Children with Disabilities........................................................................................ .......5 DE Reg. 286 (Prop.)
5 DE Reg. 874 (Final)
1102 Standards for School Bus Chassis and Bodies Placed in Production
on or after March 1, 2002.................................................................................... .......5 DE Reg. 290 (Prop.)
5 DE Reg. 879 (Final)
1535 (formerly 305) Certification Administrative - Administrative Assistant................ .......5 DE Reg. 268 (Prop.)
5 DE Reg. 856 (Final)
1536 (formerly 306) Certification Administrative - Director........................................... .......5 DE Reg. 268 (Prop.)
5 DE Reg. 857 (Final)
1538 (formerly 308) Certification Administrative - Supervisor....................................... .......5 DE Reg. 269 (Prop.)
5 DE Reg. 858 (Final)
1584 (formerly 384) Permits - School, Classroom Aides and Autistic Residential
Child Care Specialists.......................................................................................... .......5 DE Reg. 270 (Prop.)
5 DE Reg. 859 (Final)
State Board of Education Procedures Manual....................................................................... .......5 DE Reg. 880 (Final)
DEPARTMENT OF FINANCE
Division of Revenue
Delaware State Lottery Office
Video Lottery Regulations 5.0, 7.0 and 14.0........................................................... .......5 DE Reg. 728 (Prop.)
5 DE Reg. 1286 (Final)
Video Lottery Regulation 5.0 Technology Providers:
Contracts; Requirements; Duties......................................................................... .......5 DE Reg. 1019 (Prop.)
DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Division of Long Term Care
Longterm Protection
Delaware Adult Abuse Registry.............................................................................. .......5 DE Reg. 515 (Prop.)
5 DE Reg. 1073 (Final)
Group Home Facilities for Persons with Aids......................................................... .......5 DE Reg. 520 (Prop.)
5 DE Reg. 1079 (Final)
Training & Qualifications for Nursing Assistants & Certified Nursing Assistants. .......5 DE Reg. 733 (Prop.)
Division of Public Health
Body Art Establishments, Regulations Governing......................................................... .......5 DE Reg. 319 (Prop.)
Control of Communicable and Other Disease Conditions.............................................. .......5 DE Reg. 156 (Final)
Cosmetology and Barbering Establishments, Regulations Governing........................... .......5 DE Reg. 311 (Prop.)
5 DE Reg. 1291 (Final)
Managed Care Organizations (MCO)............................................................................. .......5 DE Reg. 130 (Final)
Managed Care Organizations, Application & Operation of........................................... .......5 DE Reg. 1025 (Prop.)
Non-Nurse Midwife Regulations.................................................................................... .......5 DE Reg. 1021 (Prop.)
Public Drinking Water Systems, Rules and Regulations Governing.............................. .......5 DE Reg. 630 (Final)
Trauma System Rules & Regulations............................................................................. .......5 DE Reg. 32 (Prop.)
5 DE Reg. 632 (Final)
Uniform Controlled Substances Act, Rescheduling of Dronabinol................................ .......5 DE Reg. 747 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
CUMULATIVE TABLES 1333
Uniform Controlled Substance Regulation No. 4........................................................... .......5 DE Reg. 750 (Prop.)
Office of Drinking Water
Public Drinking Water Systems, Regulations Governing........................................ .......5 DE Reg. 1237 (Prop.)
Office of Emergency Medical Services
Air Medical Ambulance Services Regulations........................................................ .......5 DE Reg. 1217 (Prop.)
Division of Social Services
2002 Case Closures and Address Changes................................................................... .......5 DE Reg. 327 (Prop.)
5 DE Reg. 893 (Final)
2015-2019 A Better Chance & General Assistance Program........................................ .......5 DE Reg. 181 (Final)
4005.3Step-Parent Income in the ABC Program............................................................ .......5 DE Reg. 644 (Final)
7002 Food Stamp Claims............................................................................................. .......5 DE Reg. 174 (Final)
7004 Collection & Management of Food Stamp Claims............................................. .......5 DE Reg. 177 (Final)
7004.3Collection and Management of Food Stamp Claims........................................... .......5 DE Reg. 359 (Prop.)
5 DE Reg. 929 (Final)
5 DE Reg. 1001 (Errata)
7005 Terminating and Writing Off Claims................................................................... .......5 DE Reg. 181 (Final)
9060 Income Deductions.............................................................................................. .......5 DE Reg. 1001 (Emer.)
5 DE Reg. 1046 (Prop.)
9089 DABC and/or GA Food Stamp Households........................................................ .......5 DE Reg. 535 (Prop.)
5 DE Reg. 1094 (Final)
13402 A Better Chance Welfare Reform Program......................................................... .......5 DE Reg. 183 (Final)
13403 AFDC Applicants With a Budgeted Need of Less Than $10.............................. .......5 DE Reg. 184 (Final)
11004.7 Child Care Fee................................................................................................. .......5 DE Reg. 755 (Prop.)
14110.8.1Prohibitions .................................................................................................... .......5 DE Reg. 184 (Final)
14300 Citizenship and Alienage..................................................................................... .......5 DE Reg. 184 (Final)
14900 Enrollment in Managed Care............................................................................... .......5 DE Reg. 185 (Final)
15110.1Medicaid Eligibility........................................................................................... .......5 DE Reg. 185 (Final)
15200 Transitional Medicaid.......................................................................................... .......5 DE Reg. 185 (Final)
16100.1.2Initial Eligibility Determination...................................................................... .......5 DE Reg. 186 (Final)
16230.1.4Deducations from Earned Income.................................................................. .......5 DE Reg. 187 (Final)
16500.1Eligibility Requirements.................................................................................... .......5 DE Reg. 187 (Final)
17170 Sec. 4913, Disabled Children.............................................................................. .......5 DE Reg. 1096 (Final)
17200 Disabled Children, New 25000 Children's Community Alternative
Disability Program (CCADP).............................................................................. .......5 DE Reg. 536 (Prop.)
5 DE Reg. 1097 (Final)
18100.2Alien Status ...................................................................................................... .......5 DE Reg. 187 (Final)
20620.1Personal Needs................................................................................................... .......5 DE Reg. 1004 (Emer.)
5 DE Reg. 1049 (Prop.)
Eligibility of Inmates & Eligibility of the Breast & Cervical Cancer Group................. .......5 DE Reg. 359 (Prop.)
5 DE Reg. 925 (Final)
Food Stamp Program, Noncitizen Eligibility & Certification Provisions of
PL-104-193.. ...................................................................................................... .......5 DE Reg. 328 (Prop.)
5 DE Reg. 894 (Final)
Reimbursement Methodology for Federally Qualified Health Centers (FQHCs).......... .......5 DE Reg. 173 (Final)
DEPARTMENT OF INSURANCE
Reg. No. 10, Arbitration of Automobile and Homeowner's Insurance Claims..................... .......5 DE Reg. 1238 (Prop.)
Reg. No. 11, Arbitration of Health Insurance Claims and Internal Review
Processes of Medical Insurance Carriers........................................................................ .......5 DE Reg. 1242 (Prop.)
Reg. No. 81, Prompt Payment of Settled Claims................................................................... .......5 DE Reg. 645 (Final)
Reg. No. 84, Privacy of Consumer Financial & Health Information..................................... .......5 DE Reg. 188 (Final)
Reg. No. 85, Valuation of Life Insurance Policies................................................................. .......5 DE Reg. 1049 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1334 CUMULATIVE TABLES
DEPARTMENT OF LABOR
Division of Employment & Training
Council on Apprenticeship and Training
Delaware Apprenticeship and Training Law, Section 106.5................................... .......5 DE Reg. 204 (Final)
Office of Labor Law Enforcement
Prevailing Wage Regulations................................................................................... .......5 DE Reg. 205 (Final)
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Regulations Governing Delaware's Coastal Zone................................................................. .......5 DE Reg. 930 (Final)
Division of Air & Waste Management
Regulations Governing Hazardous Substance Cleanup.................................................. .......5 DE Reg. 1249 (Prop.)
Regulation 24, Section 2, Definitions............................................................................. .......5 DE Reg. 541 (Prop.)
Regulation 24, Section 11, Mobile Equipment Repair & Refinishing............................ .......5 DE Reg. 363 (Prop.)
5 DE Reg. 1101 (Final)
Regulation 24, Section 26, Stage I Vapor Recovery....................................................... .......5 DE Reg. 545 (Prop.)
Regulation 24, Section 33, Solvent Metal Cleaning....................................................... .......5 DE Reg. 367 (Prop.)
5 DE Reg. 1106 (Final)
Regulation 24, Section 36, Stage II Vapor Recovery..................................................... .......5 DE Reg. 547 (Prop.)
Regulation 24, Section 46, Lightering Operations......................................................... .......5 DE Reg. 379 (Prop.)
Regulation 31, Low Enhanced Inspection and Maintenance Program........................... .......5 DE Reg. 44 (Prop.)
5 DE Reg. 940 (Final)
Regulation 38, Subpart T, Emission Standards for Halogenated Solvent Cleaning....... .......5 DE Reg. 383 (Prop.)
5 DE Reg. 1118 (Final)
Regulation 41, Section 1, Architectural and Industrial Maintenance Coatings.............. .......5 DE Reg. 389 (Prop.)
Regulation 41, Section 2, Consumer Products............................................................... .......5 DE Reg. 560 (Prop.)
Regulation 41, Section 3, Portable Fuel Containers....................................................... .......5 DE Reg. 398 (Prop.)
5 DE Reg. 1125 (Final)
Regulation 42, Section 1, Control of NOx Emissions from Industrial Boilers.............. .......5 DE Reg. 400 (Prop.)
5 DE Reg. 1299 (Final)
Regulation 43, Not To Exceed California Heavy Duty Diesel Engine Standards.......... .......5 DE Reg. 756 (Prop.)
5 DE Reg. 1302 (Final)
Division of Fish & Wildlife
Shellfish Regulation Nos. S-7(b), S-9, S-11, S-13 and S-37, Repeal of........................ .......5 DE Reg. 403 (Prop.)
5 DE Reg. 496 (Errata)
5 DE Reg. 972 (Final)
Shellfish Regulation No. S-55-A, Horseshoe Crab Dredge Permit Lottery................... .......5 DE Reg. 1128 (Final)
Shellfish Regulation Nos. S-63, S-65, S-67, S-69, S-71, S-73 and S-75 (Proposed)..... .......5 DE Reg. 496 (Errata)
5 DE Reg. 972 (Final)
Tidal Finfish Regulation No. 4, Summer Flounder Size Limits; Possession
Limits; Seasons ...................................................................................................... .......5 DE Reg. 462 (Final)
Division of Water Resources
Regulations Governing the Design, Installation and Operation of On-Site
Wastewater Treatment and Disposal Systems......................................................... .......5 DE Reg. 760 (Prop.)
Regulations for Licensing Operators of Wastewater Facilities....................................... .......5 DE Reg. 1307 (Final)
Total Maximum Daily Load (TMDL) for the Murderkill River Watershed, Delaware.. .......5 DE Reg. 404 (Prop.)
5 DE Reg. 1305 (Final)
Total Maximum Daily Load (TMDL) for Nutrients in the Appoquinimink Watershed. .......5 DE Reg. 1056 (Prop.)
DEPARTMENT OF PUBLIC SAFETY
Divison of Boiler Safety
Boiler Safety, Rules & Regulations................................................................................ .......5 DE Reg. 584 (Prop.)
5 DE Reg. 1128 (Final)
Division of Highway Safety
Policy Regulation Number 91, Ignition Interlock Device Installation, Removal,
and Monthly Monitoring and Calibration Fees....................................................... .......5 DE Reg. 1058 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
CUMULATIVE TABLES 1335
Division of State Police
Bounty Hunter/Bail Enforcement Agents....................................................................... .......5 DE Reg. 1059 (Prop.)
DEPARTMENT OF STATE
Division of Historical & Cultural Affairs
Historic Preservation Tax Credit, Regulations Governing............................................. .......5 DE Reg. 405 (Prop.)
Office of the State Banking Commissioner
Reg. No. 5.1101(f).0001 Election to Be Treated for Tax Purposes as a Subsidiary
Corporation of a Delaware Chartered Banking Organization or Trust Company,
National Bank Having its Principal Office in Delaware, or Out-of-state Bank
That Operates a Resulting Branch in Delaware....................................................... .......5 DE Reg. 77 (Prop.)
5 DE Reg. 647 (Final)
Reg. No. 5.1101etal.0002, Instructions for Preparation of Franchise Tax...................... .......5 DE Reg. 79 (Prop.)
5 DE Reg. 649 (Final)
Reg. No. 5.1101etal.0003, Estimated Franchise Tax Report.......................................... .......5 DE Reg. 82 (Prop.)
5 DE Reg. 652 (Final)
Reg. No. 5.1101etal.0004, Final Franchise Tax Report ................................................. .......5 DE Reg. 83 (Prop.)
5 DE Reg. 654 (Final)
Reg. No. 5.1101etal.0005, Instructions for Preparation of Franchise Tax for Federal
Savings Banks Not Headquartered in this State but Maintaining Branches
in this State.. ...................................................................................................... .......5 DE Reg. 85 (Prop.)
5 DE Reg. 656 (Final)
Reg. No. 5.1101etal.0006, Estimated Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 88 (Prop.)
5 DE Reg. 659 (Final)
Reg. No. 5.1101etal.0007, Final Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 89 (Prop.)
5 DE Reg. 660 (Final)
Reg. No. 5.1101etal.0009, Instructions for Preparation of Franchise Tax for Resulting
Branches in this State of Out-of-State Banks.......................................................... .......5 DE Reg. 90 (Prop.)
5 DE Reg. 661 (Final)
Reg. No. 5.1101etal.0010, Estimated Franchise Tax Report for Resulting Branches in
this State of Out-of-State Banks.............................................................................. .......5 DE Reg. 94 (Prop.)
5 DE Reg. 665 (Final)
Reg. No. 5.1101etal.0011, Final Franchise Tax Report for Resulting Branches in this
State of Out-of-State Banks..................................................................................... .......5 DE Reg. 96 (Prop.)
5 DE Reg. 667 (Final)
Reg. No. 5.1105.0008, Instructions for Calculation of Employment Tax Credits.......... .......5 DE Reg. 98 (Prop.)
5 DE Reg. 669 (Final)
DEPARTMENT OF TRANSPORTATION
Outdoor Advertising, Rules & Regulations........................................................................... .......5 DE Reg. 410 (Prop.)
State Scenic and Historic Highways Program....................................................................... .......5 DE Reg. 595 (Prop.)
5 DE Reg. 1129 (Final)
EXECUTIVE DEPARTMENT
Governor's Office
Appointments and Nominations..................................................................................... .......5 DE Reg. 218
5 DE Reg. 465
5 DE Reg. 1156
5 DE Reg. 1320
Executive Order No. 18, Delaware Spatial Data I-Team 5 DE Reg. 671
Executive Order No. 19, Delaware State Police 5 DE Reg. 976
Executive Order No. 20, State Employees' Charitable Campaign 5 DE Reg. 976
Executive Order No. 21, Establishment of Early Care & Education Council 5 DE Reg. 1318
Executive Order No. 22, Building Safety 5 DE Reg. 1319
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1336 CUMULATIVE TABLES
Declaration Of Limited State Of Emergency In New Castle County, Delaware 5 DE Reg. 672
Termination Of Limited State Of Emergency in New Castle County, Delaware 5 DE Reg. 672
Delaware Economic Development Office
Direct Grants Program.................................................................................................... .......5 DE Reg. 512 (Prop.)
5 DE Reg. 817 (Prop.)
5 DE Reg. 1312 (Final)
Energy Alternative Program........................................................................................... .......5 DE Reg. 1062 (Prop.)
Matching Funds Program................................................................................................ .......5 DE Reg. 514 (Prop.)
5 DE Reg. 818 (Prop.)
Matching Grants Program............................................................................................... .......5 DE Reg. 1315 (Final)
Regulation No. 5, Procedures Governing the Delaware Strategic Fund......................... .......5 DE Reg. 499 (Prop.)
5 DE Reg. 1141 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
EMERGENCY REGULATIONS 1337
Symbol Key
Roman type indicates the text existing prior to the emergency regulation being promulgated. Italic type indicates new
text. Language which is striken through indicates text being deleted.
Emergency Regulations
Under 29 Del.C. §10119, if an agency determines that an imminent peril to the public health, safety or welfare requires
the adoption, amendment or repeal of a regulation with less than the notice required by 29 Del.C. §10115, then the following
rules shall apply: (1) The agency may proceed to act without prior notice or hearing or upon any abbreviated notice and
hearing that it finds practicable; (2) The order adopting, amending or repealing a regulation shall state in writing the reasons
for the agency's determination that such emergency action is necessary; (3) the order effecting such action may be effective
for a period of not longer than 120 days and may be renewed once for a period not exceeding 60 days; (4) When such an order
is issued without any of the public procedures otherwise required or authorized by Chapter 101 of Title 29, the agency shall
state as part of the order that it will receive, consider and respond to petitions by any interested person for the reconsideration
or revision thereof; and (5) The agency shall submit a copy of the emergency order to the Registrar for publication in the next
issue of the Register of Regulations.
DEPARTMENT OF HEALTH AND THEREFORE, IT IS ORDERED, that the proposed
SOCIAL SERVICES revision to the regulation be adopted on an emergency basis
without prior notice or hearing, and shall become effective
DIVISION OF PUBLIC HEALTH immediately.
Statutory Authority: 16 Delaware Code,
Section 3103 (16 Del.C. §3103) Vincent P. Meconi,
Secretary
Nature of the Proceedings
12.14.2001
The Delaware Department of Health and Social
Services ("Department") has determined that a threat to the
public welfare exists if revision to the Regulation Governing Section 6. Preparation Of Bodies Dead Of Certain Diseases
the Care and Transportation of the Dead, Section 6
Preparation of Bodies Dead of Certain Diseases, is not In the preparation for burial of the body of any person
implemented without prior notice or hearing. Failure to who has died of smallpox, plague, anthrax, or other diseases
update this Section will result in unnecessary health risk to which the State Board of Health may specify, it shall be the
mortuary workers and the general public due to improper duty of the funeral director or person acting as such to
handling and preparation of a dead body as a result of accomplish the following:
smallpox, plague, anthrax or other diseases caused by a. To wash the surface of the body with an approved
terrorist events. germicidal solution.
b. To effectively plug all body orifices immediately.
Nature of Proposed Revisions c. To embalm by arterial and cavity injection with an
approved disinfectant fluid. No preparation containing
(Revisions indicated by underlined type and strike arsenic shall be used for this purpose.
through):
It shall be the duty of every funeral director engaged for
or in charge of the preparation and burial of the body of a
Findings of Fact person who died of smallpox, plague, anthrax, or other
disease which the State Board of Health may specify, or of
The Department finds that these changes should be the bringing of the dead body of any such person to
made in the best interest of the general public of the State of Delaware, to give immediate notice thereof to the State
Delaware. The Department will receive, consider, and Board of Health. No burial, cremation or transit permit for
respond to petitions by any interested person for the the body of any person who has died of these diseases shall
reconsideration or revision thereof. be granted by telephone, but must be obtained in accordance
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1338 EMERGENCY REGULATIONS
with those regulations. Such body shall be immediately
placed in a metal lined coffin or casket and the same shall be
immediately and permanently sealed by the funeral director.
If metal linings for coffins or caskets are unobtainable, the
casket is to be constructed so as to not allow any seepage
whatsoever therefrom and it is to be sealed as hereinbefore
directed.
If it is desired to cremate the body of a person who has
died of smallpox, plaque, anthrax, or other diseases which
the State Board of Health may specify, the casket need not
be metal lined, but must be sealed as herein provided and
removed to the crematory for immediate cremation. It shall
be unlawful to invite or permit any person or persons other
than the members of the immediate family on the premises
where such deceased person has died of said diseases of
where the body of such person has been held or prepared for
burial. In the case of a person who has died of smallpox,
plague, anthrax, or other diseases which the State Board of
Health may specify, no public funeral shall be permitted.
Section 6. Preparation, Transport, and Disposal of Bodies
Dead of Designated High-risk Diseases.
The Director of the Division of Public Health or
Designee shall designate communicable diseases determined
to be high-risk from the point of view of handling after
death. Currently designated diseases include Anthrax,
Smallpox, Plague, and the various Hemorrhagic Fevers.
Should death occur before a definitive diagnosis can be
made and when there is even the remote suspicion of one of
these illnesses, the physician or hospital should consult with
the Chief Medical Examiner or the Division Director.
Should it be necessary to hold a body for longer than six
hours pending completion of definitive diagnostic work, the
body should be sealed immediately following the taking of
such specimens as may be needed. The sealing should be
completed as described in Preparation a. (below) and held
in isolation (refrigerated when possible) pending removal.
Otherwise, removal, transport, and cremation should
proceed as prescribed by these regulations.
Whenever death occurs from a designated high-risk
disease, immediate notification shall be provided by the
reporting physician, other provider, or the hospital to the
Division of Public Health, the family, and the funeral
director who will have responsibility to handle, transport, or
dispose of said body. These reports may be made by fax,
telephone, or electronic mail. After hours, the Division of
Public Health emergency line is (302) 739-4700.
The Chief Medical Examiner, hospital or funeral
director shall ensure that anyone handling a body so
designated shall follow strict universal precautions in a
manner that minimizes contact between the body, other
persons, and the environment. Detailed explanation of
universal precautions required can be found in the
Occupational Safety and Health Administration (OSHA)
Regulations, 29 CFR, Part 1910.1030, Bloodborne
Pathogens and any updates thereto. These regulations can be
found at the OSHA website: (www.osha.gov) or by
contacting the Office of Vital Statistics, Division of Public
Health.
Preparation:
a. The body shall be wrapped in a sheet saturated with a
suitable disinfectant. This may be concentrated commercial
disinfectant approved for such purpose or it may be
embalming powder or high index cavity fluid. This shall be
followed by enclosure in a heavy-duty impervious bag
designed for such purpose to assure against leakage.
b. For transport the body prepared as in "a." shall be
placed in a suitable firm container such as a "cremation
container" in which case it shall be cremated therein or it
may be transported in a temporary firm protective container
from which it may be removed for cremation.
c. For burial or other exempted disposition, the body
shall be enclosed in a metal casket liner or a casket that is
constructed so as to not allow any seepage whatsoever
therefrom and is to be sealed. Burial must be at a depth of at
least 2 meters.
Labeling:
It will be the responsibility of the funeral director to
ensure that there are attached to the body and its containers
in several visible places labels bearing in prominent legible
letters the words, "This body is infected with a designated
high-risk disease specified by the Division of Public Health
and must be handled and transported in accordance with the
precautions required by these regulations".
Handling:
Neither embalming nor autopsy shall be performed on
such bodies unless specifically authorized by the Chief
Medical Examiner or designee.
Transport:
Transport of a body so designated must be under the
conditions described above with the addition that the body
must be protected in such a way as to assure that it shall not
become uncovered in any reasonably foreseeable accident.
Transport out of state shall be prohibited unless approved by
the Director of Public Health or designee and the receiving
jurisdiction.
Removal:
A body may be removed from the firm protective
container in which it was transported once it has reached the
funeral home or crematory where the body shall be prepared
for cremation or other disposition if authorized. Such
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
EMERGENCY REGULATIONS 1339
container used exclusively for transport may be re-used
following suitable disinfection.
Services:
No viewing of the body or public services in the
presence of the body shall be permitted.
Cremation is the disposal method of choice for any
designated high-risk communicable disease. If burial is
permitted as an exception, it must be promptly performed
and the body must remain sealed as described above
throughout the burial process.
The Director of Public Health or designee upon request
may waive any requirement of these regulations in order to
accommodate religious or traditional practices if he or she is
satisfied that the proposed practices present no substantial
additional risk to any person or the environment.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1340 PROPOSED REGULATIONS
Symbol Key
Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text.
Language which is stricken through indicates text being deleted.
Proposed Regulations
Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file
notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with
the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature
of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference
to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the
proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final
date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public
hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the
proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a
summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation; The
notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its
regulation-making proceedings.
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF PROFESSIONAL COUNSELORS OF
MENTAL HEALTH
24 DE Admin. Code 3000
Statutory Authority: 24 Delaware Code,
Section 3006(a)(1), (24 Del.C. §3006(a)(1))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 3006(a)(1), the Delaware
Board of Professional Counselors of Mental Health proposes
to revise its Rules and Regulations. The proposed revisions
delete the International Christian Institute Certification
Board and Commission on Rehabilitation Counselor
Certification Board as national mental health specialty
certifying organizations automatically considered acceptable
by the Board for purposes of initial licensure and renewal of
licenses. Substantive changes include inserting a new rule
that permits licensees to maintain membership in the
certifying organization acceptable to the Board at the time of
their initial licensure for purposes of renewal of their license
notwithstanding that such organization is no longer deemed
acceptable by the Board for failing to meet certain criteria.
A public hearing will be held on the proposed Rules and
Regulations on Friday, February 1, 2002 at 3:30 p.m., in the
Second Floor Conference Room A of the Cannon Building,
861 Silver Lake Boulevard, Dover, Delaware, 19904. The
Board will receive and consider input in writing from any
person on the proposed Rules and Regulations. Any written
comments should be submitted to the Board in care of Gayle
Franzolino at the above address. The final date to submit
written comments shall be at the above scheduled public
hearing. Anyone wishing to obtain a copy of the proposed
Rules and Regulations or to make comments at the public
hearing should notify Gayle Franzolino at the above address
by calling (302) 744-4520.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
1.0 Meetings and Elections
2.0 Licensure by Certification
3.0 Licensure by Reciprocity
4.0 Licensure of Associate Counselors of Mental
Health
5.0 Application and Fee, Affidavit and Time Limit
6.0 Renewal of Licensure
7.0 Ethics
8.0 Return to Active Status
9.0 Disciplinary Proceedings and Hearings
10.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
1.0 Meetings and Elections
1.1 Meetings - Regular meetings of the Board shall be
held on a monthly basis as needed, at least in June and
December, at a time and place designated by the Board.
1.2 Election of Officers - The Board shall elect officers
annually at the regular December meeting.
Statutory authority: 24 Del.C. §3004
2.0 Licensure by Certification
Applicants for LPCMH licensure by certification shall
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1341
fulfill the following requirements:
2.1 Certification - The applicant shall be certified by
NBCC as a National Certified Counselor (NCC), by
ACMHC as a Certified Clinical Mental Health Counselor
(CCMHC), or by a certifying organization acceptable to the
Board.
2.2 Certifying Organization - Certifying organizations
acceptable to the Board shall include the National Board for
Certified Counselors, Inc. (NBCC), Academy of Clinical
Mental Health Counselors (ACMHC), formerly the National
Academy for Certified Clinical Mental Health Counselors
(NACCMHC), International Christian Institute Certification
Board, Commission on Rehabilitation Counselor
Certification Board, and other certifying organizations that
meet all of the following criteria:
2.2.1 The organization shall be a national
professional mental health organization recognized as setting
national standards of clinical competency.
2.2.2 The organization shall require the applicant
to take a standardized examination designed to test his/her
understanding of the principles involved in the mental health
specialty for which he/she is being certified. Certification
shall be based upon the applicant's attaining the minimum
passing score set by the organization.
2.2.3 The organization shall prescribe a code of
ethics substantially equivalent to that of the NBCC.
2.2.4 The organization shall require the minimum
of a master's degree in the counseling or behavioral science
field. This certification shall be verified by the "NBCC
Certification Form," the "ACMHC Certification Form" or
the "Certifying Organization Certification Form," submitted
directly to the Board by the certifying organization.
2.2.5 Individuals licensed prior to the effective date
of this Rule may maintain certification or membership in the
certifying organization acceptable to the Board at the time of
their initial licensure in order to qualify for renewal of their
license notwithstanding that such certifying organization is
no longer deemed acceptable to the Board for failure to meet
the criteria of this Rule.
2.3 Graduate Transcript - The applicant's master's
degree in a counseling or behavioral science field, required
by his/her certifying organization for certification, shall be
documented by an official transcript submitted directly to the
Board by the accredited educational institution granting the
degree.
2.4 Professional Counseling Experience - Professional
Counseling experience shall be defined as the accumulation
of hours spent providing mental health counseling services
in a professional mental health clinical counseling setting,
including face-to-face interaction with clients and other
matters directly related to the treatment of clients.
2.4.1 Designated Objective Agent - For purposes
of professional counseling experience obtained through selfemployment,
a designated objective agent shall be a
professional colleague, supervisor or other individual with
personal knowledge of the extent of the professional practice
of the applicant, who certifies or attests to such professional
practice. Under no circumstances shall a spouse, former
spouse, parent, step-parent, grand-parent, child, step-child,
sibling, aunt, uncle, cousin or in-law of the applicant be
acceptable as a designated objective agent.
2.4.2 Thirty (30) graduate semester hours or more
attained beyond the master's degree, may be substituted for
up to 1,600 hours of the required clinical experience,
provided that hours are clearly related to the field of
counseling and are acceptable to the Board. Graduate credit
hours shall be verified by an official transcript submitted
directly to the Board by the accredited educational institution
at which the course work was done.
2.4.3 Supervised clinical experience or postmaster's
degree alternative shall be verified by the
"Professional Experience Reference Form" and/or the
"Verification of Self Employment" form.
2.5 Supervised Professional Counseling Experience -
Supervised professional counseling experience shall be the
accumulation of hours spent providing mental health
counseling services while under the supervision of an
approved clinical supervisor. Supervised professional
counseling experience acceptable to the Board shall be
defined as follows:
2.5.1 Supervised professional counseling
experience shall consist of 1,600 hours of clinical
experience, directly supervised by a LPCMH. Where direct
supervision by a LPCMH is not available, a licensed clinical
social worker, licensed psychologist or licensed physician
specializing in psychiatry may supervise the applicant.
2.5.2 Direct Supervision - 1600 hours of direct
supervision acceptable to the Board, for purposes of
§3008(a)(2) shall mean supervision overseeing the
supervisee's application of clinical counseling principles,
methods or procedures to assist individuals in achieving
more effective personal and social adjustment. At least 100
of the 1600 hours of supervision shall consist of face to face
consultation between the supervisor and the supervisee.
Direct supervision may take place in individual and/or group
settings, defined as follows:
2.5.2.1 Individual Supervision - Individual
supervision shall consist of one-to-one, face-to-face
meetings between supervisor and supervisee.
2.5.2.2 Group Supervision - Group
supervision shall consist of face-to-face meetings between
supervisor and no more than six (6) supervisees.
2.5.2.3 Supervisory Setting - No more than
forty (40) hours of group supervision shall be acceptable
toward the 100-hour requirement. The entire 100-hour
requirement may be fulfilled by individual supervision.
2.5.3 Supervision shall be verified by the "Direct
Supervision Reference Form," submitted directly to the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1342 PROPOSED REGULATIONS
Board by the approved clinical supervisor.
Statutory authority: 24 Del.C. §3008.
See 4 DE Reg. 970 (12/1/00)
3.0 Licensure by Reciprocity
Applicants for LPCMH licensure by reciprocity
(i.e., those requesting licensure based upon active licensure
status in another state) shall meet the following
requirements:
3.1 Proof of Licensure Status - The applicant shall hold
an active professional counseling license in good standing
from another state. Verification of licensure status shall be
submitted directly to the Board by that state on the
"Verification of Licensure or Certification from Another
State" form.
3.2 Notarized Statement of Prior Licensing
Jurisdictions - The applicant shall submit a notarized
statement listing all licensing jurisdictions in which he/she
formerly practiced and a signed "Release of Information"
granting the Board permission to contact said jurisdictions
for verification of disciplinary history and current status.
3.3 Determination of Substantial Similarity of
Licensing Standards- The applicant shall submit a copy of
the statute and rules of licensure from the state issuing his/
her license. The burden of proof is upon the applicant to
demonstrate that the statute and rules of the licensing state
are at least equivalent to the educational, experience and
supervision requirements set forth in Title 24, Delaware
Code, Chapter 30. Based upon the information presented,
the Board shall make a determination regarding whether the
licensing requirements of the applicant's licensing state are
substantially similar to those of Delaware.
3.4 LACMH Option - If the Board determines that the
requirements of the applicant's licensing state are not
equivalent with regard only to the experience requirements
of §3008(a)(2), the applicant shall be eligible for licensure as
a LACMH, in which case he/she shall have four (4) years to
complete the supervision requirements of §3008(a)(2). The
applicant shall be given full credit for such properly
documented experience and/or supervised experience as was
required for licensure in his/her licensing state.
Statutory authority: 24 Del.C. §§3010.
See 4 DE Reg. 970 (12/1/00)
4.0 Licensure of Associate Counselors of Mental Health
4.1 Written Plan - The applicant shall submit a written
plan for supervised professional experience, on the "Written
Plan for Professional Counseling Experience and
Supervision" form, supplied by the Board, and signed by the
approved professional supervisor.
Statutory authority: 24 Del.C. §3009.
See 4 DE Reg. 970 (12/1/00)
5.0 Application and Fee, Affidavit and Time Limit
When applying for licensure, the applicant shall
complete the following:
5.1 Application and Fee - The applicant shall submit a
completed "Application for Licensure," accompanied by a
non-refundable application fee.
5.2 Affidavit - The applicant shall submit a signed,
notarized "Affidavit," affirming the following:
5.2.1 that he/she has not violated any rule or
regulation set forth by the Delaware Board of Professional
Counselors of Mental Health;
5.2.2 that he/she has not been the recipient of any
administrative penalties from any jurisdiction in connection
with licensure, registration or certification as a mental health
provider,
5.2.3 that he/she does not have any impairment
related to drugs, alcohol or a finding of mental incompetence
by a physician that would limit the applicant's ability to
safely act as a LPCMH or LACMH,
5.2.4 that he/she has not been convicted of any
felony and that he/she does not have any criminal conviction
or pending criminal charge, whether felony or misdemeanor,
which is substantially related to fitness to practice as a
mental health provider; and
5.2.5 that the applicant has not been penalized for
any willful violation of any code of ethics or professional
mental health counseling standard.
5.3 Time Limit for Completion of Application - Any
application not completed within one (1) year shall be
considered null and void.
Statutory authority: 24 Del.C. §§3008, 3009, 3010.
See 4 DE Reg. 970 (12/1/00)
6.0 Renewal of Licensure
6.1 Renewal Date - The LPCMH license shall be
renewable biennially on September 30 of even-numbered
years, beginning with September 30, 1994.
6.2 Requirements for Renewal - Requirements for
licensure renewal are as follows:
6.2.1 Certification - The candidate for renewal
shall hold current certification in good standing as of the date
of licensure renewal in NBCC, ACMHC or other certifying
organization acceptable to the Board. This certification shall
be verified by the appropriate "Verification of Certification
Form," submitted directly to the Board by the certifying
organization.
6.2.2 Continuing Education
6.2.2.1 Requirement - The candidate for
renewal shall have completed no less than forty (40) clock
hours of acceptable continuing education per two (2) year
licensure renewal period. Continuing education
requirements for initial licensure periods of less than two (2)
years shall be prorated.
6.2.2.2 Acceptable Continuing Education -
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1343
Acceptable continuing education shall include the following:
6.2.2.2.1 Continuing education hours
approved by a national mental health organization, such as
NBCC, ACMHC, APA, shall be acceptable. Other training
programs may apply for continuing education oriented
towards enhancement, knowledge and practice of
counseling. Hours are to be documented by a certificate
signed by the presenter, or by designated official of the
sponsoring organization.
6.2.2.2.2 Academic course work, and
presentation of original papers providing training and
clinical supervision may be applied for up to twenty (20)
clock hours of the continuing education requirement. These
hours are to be documented by an official transcript,
syllabus, or a copy of the published paper presented.
Under no circumstances, may there be
less than twenty (20) hours of face-to-face participation in
continuing education as outlined above.
6.2.2.3 Make-Up of Disallowed Hours - In the
event that the Board disallows certain continuing education
clock hours, the candidate for renewal shall have three (3)
months after the licensure renewal date to complete the
balance of acceptable continuing education hours required.
6.2.3 Hardship. The Board shall have the authority
to make exceptions to the continuing education
requirements, in its discretion, upon a showing of good
cause. "Good Cause" may include, but is not necessarily
limited to, disability, illness, military service, extended
absence from the jurisdiction and exceptional family
responsibilities. Request for hardship consideration must be
submitted to the Board in writing prior to the end of the
licensing period, along with payment of the appropriate
renewal fee. A license shall be renewed upon approval of
the hardship extension by the Board, but the license shall be
subject to revocation if the licensee does not comply with the
terms of the hardship exception established by the Board.
6.2.4 Verification - Verification of continuing
education hours shall be by the "Continuing Education Form
for Licensed Professional Mental Health Counselors," with
appropriate documentation for each item listed attached to
the form.
6.2.5 Fees - The candidate for renewal shall make
payment of a renewal fee in an amount prescribed by the
Division of Professional Regulation for that licensure
renewal period. A fifty percent (50%) late charge shall be
imposed upon any fee paid after the renewal date.
6.2.6 It shall be the responsibility of all licensees to
keep the Division informed of any change of address.
Renewal applications will be sent to the last address on file
with the Division.
Statutory authority: 24 Del.C. §§3006(a)(5), 3012.
See 4 DE Reg. 970 (12/1/00)
See 5 DE Reg. 452 (8/1/01)
7.0 Ethics
7.1 The Board hereby adopts the current version of
National Board for Certified Counselors Code of Ethics
("Code").
7.2 The practice of all persons licensed as an LPCMH
or LAMCH shall conform to the principles of the Code.
Violation of the Code shall constitute grounds for discipline.
Statutory authority: 24 Del.C. §§3006(b), 3013.
See 4 DE Reg. 970 (12/1/00)
8.0 Return to Active Status
8.1 Return to Active Status - Return to active status
from inactive status shall be granted upon fulfillment of the
following requirements:
8.1.1 Written Request - Written request to the
Board requesting return to active status.
8.1.2 Certification - Current certification in good
standing, as of the date of the request for return to active
status, in NBCC, ACMHC or other certifying organization.
8.1.3 Continuing Education - Completion of forty
(40) hours of acceptable continuing education, obtained
within the two (2) year period prior to the request for return
to active status.
8.1.4 Fee - Payment of the current fee for licensure
renewal. No late fee shall be assessed for return to active
status.
Statutory authority: 24 Del.C. §30012(d).
9.0 Disciplinary Proceedings and Hearings
9.1 Disciplinary proceedings against any licensee may
be initiated by an aggrieved person by submitting a
complaint in writing to the Director of the Division of
Professional Regulation as specified in 29 Del. C.
§8807(h)(1)-(3).
9.1.1 A copy of the written complaint shall be
forwarded to the administrative assistant for the Board. At
the next regularly scheduled Board meeting, a contact person
for the Board shall be appointed and a copy of the written
complaint given to that person.
9.1.2 The contact person appointed by the Board
shall maintain strict confidentiality with respect to the
contents of the complaint and shall not discuss the matter
with other Board members or with the public. The contact
person shall maintain contact with the investigator or deputy
attorney general assigned to the case regarding the progress
of the investigation.
9.1.3 In the instance when the case is being closed
by the Division, the contact person shall report the facts and
conclusions to the Board without revealing the identities of
the parties involved. No vote of the Board is necessary to
close the case.
9.1.4 If a hearing has been requested by the Deputy
Attorney General, a copy of these Rules and Regulations
shall be provided to the respondent upon request. The notice
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1344 PROPOSED REGULATIONS
of hearing shall fully comply with 29 Del. C. Sec. 10122 and
10131 pertaining to the requirements of the notice of
proceedings. All notices shall be sent to the respondent's
address as reflected in the Board's records.
9.1.5 At any disciplinary hearing, the respondent
shall have the right to appear in person or be represented by
counsel, or both. The Respondent shall have the right to
produce evidence and witnesses on his or her behalf and to
cross examine witnesses. The Respondent shall be entitled to
the issuance of subpoenas to compel the attendance of
witnesses and the production of documents on his or her
behalf.
9.1.6 No less than 10 days prior to the date set for a
disciplinary hearing, the Department of Justice and the
respondent shall submit to the Board and to each other, a list
of the witnesses they intend to call at the hearing. Witnesses
not listed shall be permitted to testify only upon a showing of
reasonable cause for such omission.
9.1.7 If the respondent fails to appear at a
disciplinary hearing after receiving the notice required by 29
Del.C. §10122 and 10131, the Board may proceed to hear
and determine the validity of the charges against the
respondent.
Statutory authority: 24 Del.C. §§3013 and 3016; 29
Del.C. §§10111, 10122 and 10131
9.2. Hearing procedures
9.2.1 The Board may administer oaths, take
testimony, hear proofs and receive exhibits into evidence at
any hearing. All testimony at any hearing shall be under
oath.
9.2.2 Strict rules of evidence shall not apply. All
evidence having probative value commonly accepted by
reasonably prudent people in the conduct of their affairs
shall be admitted.
9.2.3 An attorney representing a party in a hearing
or matter before the Board shall notify the Board of the
representation in writing as soon as practicable.
9.2.4 Requests for postponements of any matter
scheduled before the Board shall be submitted to the Board's
office in writing no less than three (3) days before the date
scheduled for the hearing. Absent a showing of exceptional
hardship, there shall be a maximum of one postponement
allowed to each party to any hearing.
9.2.5 A complaint shall be deemed to "have
merit" and the Board may impose disciplinary sanctions
against the licensee if at least four members of the Board
find, by a preponderance of the evidence, that the respondent
has committed the act(s) of which he or she is accused and
that those act(s) constitute grounds for discipline pursuant to
24 Del.C. §515.
9.2.6 Any decision by the Board to suspend or
revoke a license shall be made public by publishing notice of
the suspension or revocation in at least two (2) Delaware
newspapers of general circulation. Such publication shall
take place following the Board's execution of the final order.
Statutory authority: 24 Del.C. §§3004, 3013, 3015,
3016; 29 Del.C. §§10111
See 4 DE Reg. 970 (12/1/00)
10.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
10.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
10.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
10.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
10.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
10.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1345
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
10.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
10.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
10.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
10.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
10.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
10.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
10.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
10.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
10.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
10.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
10.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
10.11 Any person who reports pursuant to this section
in good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
10.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
DEPARTMENT OF AGRICULTURE
FOOD PRODUCTS INSPECTION SECTION
Statutory Authority: 3 Delaware Code,
Section 8708(8) ( 3 Del.C. §8708(8))
NOTICE
The Delaware Department of Agriculture, Food
Products Inspection Section is proposing to amend its
regulations concerning the rules of practice that apply to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1346 PROPOSED REGULATIONS
agency enforcement actions by bringing them into the
conformity with federal law. The Department is proposing
to define each type of enforcement action that it may take,
the conditions under which it likely to take each of these
actions, and the procedures it will follow in doing so.
These proposed amendments are part of the
Department's ongoing effort to consolidate, streamline, and
clarify the meat and poultry product inspection regulations.
To that end, the Department is proposing to adopt by
reference, in their entirety, the federal regulations published
in the Federal Register at Volume 64, Number 228, dated
November 29, 1999, amending the Code of Federal
Regulations at 9 CFR Sections 304, 305, 327, 335, 381 and
adding a new Part 500 which became effective January 25,
2000.
The proposed amendments to the regulations will be
considered at a public hearing scheduled for February 15,
2002 at 1:00 p.m. at the Department of Agriculture Building
in Conference Room 1, located at 2320 South DuPont
Highway, Dover, Delaware. Interested persons are invited
to attend and make comments. Comments concerning the
proposed amendments to the regulations can be submitted in
writing to H. D. Shockley for consideration by the
Department at the public hearing.
Copies of the relevant portions of the Code of Federal
Regulations and the Federal Register may be obtained by
contacting the Superintendent of Documents, U. S.
Government Printing Office, Washington, D. C. 20402-
9328. For more information, or to request accommodations
for disabilities, contact Debbie Whitmore by calling (302)
698-4505.
AUTHORITY
These proposed amendments to regulations governing
food product inspection are promulgated pursuant to the
Department's authority set forth in Section 8708(a) of Title 3
of the Delaware Code.
PURPOSE
The purpose of these proposed amendments to
regulations is to consolidate, streamline, and clarify the meat
and poultry product inspection regulations thereby insuring
that Department enforcement actions are fair by identifying
the situations that may lead to such actions.
SUBSTANTIVE PROVISIONS
The Department incorporates by reference herein, in its
entirety, the language found at page 66545 of the Federal
Register at Volume 64, Number 228, beginning with the
heading "Part 304-Application for Inspection; Grant of
Inspection" and ending at page 66547 at the end of Section
500.8(c).
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Statutory Authority: 16 Delaware Code,
Sections 3001A-3006A (16 Del.C. §§3001A-
3006A)
Regulations for Training and Qualifications for Nursing
Assistants and Certified Nursing Assistants
Public Notice
The Department of Health and Social Services (DHSS),
Division of Long Term Care Residents Protection, has
prepared six (6) revised draft regulations governing training
and qualifications for nursing assistants and certified nursing
assistants as required in 16 Del. C., Chapter 30A. The
remainder of the regulations addressing certified nursing
assistant training, the composition of the certified nursing
assistant training course and curriculum, the mandatory
orientation period and senior certified nursing assistant
certification appear as final regulations in the January 1,
2002 Register of Regulations. The following six (6) draft
regulations, revised after the November 8 public hearing,
will be the subject of a further public hearing: Regulations
69.111, 69.301E, 69.301F, 69.303D5g, 69.303D6, 69.600B.
Regulation 69.502A5 is deleted.
Invitation For Public Comment
A Public Hearing Will Be Held As Follows:
Wednesday, February 6, 2002
9:00 AM
Room 301, Main Building
Herman Holloway Campus
1901 N. DuPont Highway
New Castle
For clarification or directions, please call Gina
Loughery at 302-577-6661.
Written comments are also invited on these proposed
revised regulations and should be sent to the following
address:
Elise MacEwen
Division of Long Term Care Residents Protection
3 Mill Road, Suite 308
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1347
Wilmington, DE 19806
The last time to submit written comments will be at the
public hearing February 6, 2002.
The Regulations currently in place are being replaced in
their entirety by the final regulations printed in the January
Register of Regulations and the six (6) revised draft
regulations being submitted for publication on January 1,
2002.
SECTION 69.100 - DEFINITIONS
69.101 Advanced Practice Nurse- shall mean an
individual whose education and licensure meet the criteria
outlined in 24 Del., C. Chapter 19 and who is certified in at
least one of the following specialty areas: (1) Adult nurse
practitioner; (2) Gerontological clinical nurse specialist; (3)
Gerontological nurse practitioner; (4) Psychiatric/mental
health clinical nurse specialist; (5) Family nurse practitioner.
69.102 Assisted Living Facility - Assisted living
facility is a residential arrangement for fee licensed pursuant
to 16 Del. C., Chapter 11.
69.103 Certified Nursing Assistant (CNA) - a duly
certified individual under the supervision of a licensed nurse,
who provides care which does not require the judgment and
skills of a licensed nurse. The care may include, but is not
limited to, the following: bathing, dressing, grooming,
toileting, ambulating, transferring and feeding, observing
and reporting the general well-being of the person(s) to
whom they are providing care.
69.104 Department - the Department of Health and
Social Services.
69.105 Division- the Division of Long Term Care
Residents Protection.
69.106 Intermediate Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for intermediate care beds.
69.107 Licensed Nurse - shall mean a licensed
practical nurse, registered nurse and/or advanced practice
nurse whose education and licensure meet the criteria in 24
Del. C., Chapter 19.
69.108 Licensed Practical Nurse (LPN) - a nurse who
is licensed as a practical nurse in Delaware or whose license
is recognized to practice in the State of Delaware, and who
may supervise LPN's, CNA's, NA's and other unlicensed
personnel.
69.109 Nursing Assistant (NA) - an individual who
has completed the requisite training to become a Certified
Nursing Assistant but is awaiting certification.
69.110 Nursing Services Direct Caregivers- those
individuals, as defined in 16 Del. C., Section 1161(e),
assigned to the direct care of nursing facility residents.
69.111 Personal Care Services - those health related
services that include supervision of, and direct assistance to,
individuals in their activities of daily living.
69.112 Physician - a physician licensed to practice in
the State of Delaware.
69.113 Registered Nurse (RN) - a nurse who is a
graduate of an approved school of professional nursing and
who is licensed in Delaware or whose license is recognized
to practice in the State of Delaware.
69.114 Rehabilitation - the restoration or maintenance
of an ill or injured person to self-sufficiency at his or her
highest attainable level.
69.115 Resident - a person admitted to a nursing
facility or similar facility licensed pursuant to 16 Del. C.,
Chapter 11.
69.116 Restraint - "physical restraints" are defined as
any manual method or physical or mechanical device,
material or equipment attached or adjacent to the resident's
body that the individual cannot remove easily which restricts
freedom of movement or normal access to one's body.
"Chemical restraints" are defined as a psychopharmacologic
drug that is used for discipline or convenience and not
required to treat medical symptoms.
69.117 Senior Certified Nursing Assistant - a
Certified Nursing Assistant who has met the requirements
and training specified in Section 4 of these regulations.
69.118 Skilled Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for skilled care beds.
69.119 Student - a person enrolled in a course offering
certification as a CNA.
69.120 Supervision - direct oversight and inspection of
the act of accomplishing a function or activity.
SECTION 69.200 - GENERAL TRAINING
REQUIREMENTS AND COMPETENCY TEST
Each Nursing Assistant/Certified Nursing Assistant
employed by any nursing facility either as contract/agency or
facility staff shall be required to meet the following:
69.201 An individual shall complete a nursing
assistant training course approved by the Department on the
recommendation of the CNA Training Curriculum
Committee. The Committee shall consist of individuals with
experience in the knowledge and skills required of CNAs.
69.202 Nursing Assistants are required to pass a
competency test provided by the Department or by a
contractor approved by the Department.
69.203 Nursing Assistants shall take the competency
test within 30 days of completion of an approved program or
when the nearest testing location is available to the nursing
assistant, whichever is later. Nursing assistants who fail to
obtain a passing score may repeat the test two additional
times, but must obtain certification within 90 days of
program completion. Nursing assistants who fail to obtain a
passing score after testing three times must repeat the CNA
training program before retaking the test, or they cannot
continue to work as a nursing assistant.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1348 PROPOSED REGULATIONS
69.204 A Certified Nursing Assistant must perform at
least 64 hours of nursing related services in a health care
setting during each 24-month certification period in order to
qualify for recertification. A certified nursing assistant who
does not perform at least 64 hours of nursing related services
in a certification period must complete and pass a new
training course and competency test, or competency test.
69.205 A Certified Nursing Assistant trained and
certified outside the State of Delaware shall be deemed
qualified to meet the Department's requirements based on a
current certificate from the jurisdiction where he/she
presently practices, documentation of the equivalent of one
year of full-time experience as a certified nursing assistant
and verification that he/she is in good standing on that
jurisdiction's Registry.
69.206 Employees hired as Nursing Assistants/
Certified Nursing Assistants who are currently enrolled in a
nursing program and have satisfactorily completed a
Fundamentals/Basic Nursing course with a clinical
component will be deemed to meet the training
requirements. These individuals will be approved to take the
competency test upon submission of a letter from their
school of nursing attesting to current enrollment status and
satisfactory course completion as described.
69.207 For the purpose of calculating minimum
staffing levels, any individual who has completed all of the
classroom training and half of the clinical training in a
facility sponsored training program may be considered as a
member of such facility's staff while undergoing the last
37.5 hours of clinical training at such facility.
SECTION 69.300 - CNA TRAINING PROGRAM
REQUIREMENTS
69.301 General
To obtain approval, the curriculum content for
the Certified Nursing Assistant training programs shall meet
each of the following requirements:
A. The curriculum shall include material that will
provide a basic level of both knowledge and demonstrable
skills for each individual completing the program.
B. The program shall be a minimum of 150 hours
in length, divided equally between clinical skills training and
classroom instruction. Additional hours may be in either of
these areas or both.
C. Classroom instruction and demonstrated
proficiency in each skill shall be completed prior to students'
performing direct resident care. Programs shall maintain
documentation of required skills that each student has
successfully demonstrated to the RN instructor.
D. Classroom ratios of student to RN instructor
shall not exceed 24:1. Clinical and laboratory ratios of
student to instructor shall not exceed 8:1.
E. The RN instructor shall directly supervise
students at all times during clinical instruction. Students
shall remain in visual contact with a licensed
nurse in the clinical setting while performing any skills for
which they have not yet demonstrated and the program has
documented proficiency.
F. Programs must notify the Division in writing
(which may be faxed) when permanent and/or substantial
changes to the program or the program's
personnel are made. Examples of substantial changes
include, but are not limited to, instructor(s), clinical or
classroom site, major revision of course
structure, change in textbook.
69.302 Equipment
All programs shall have available at a
minimum the following equipment:
A. Audio/Visual (Overhead projector and/or TV
with VCR)
B. Teaching Mannequin, Adult, for catheter and
perineal care
C. Hospital Bed
D. Bedpan/Urinal
E. Bedside commode
F. Wheelchair
G. Scale
H. Overbed Table
I. Sphygmomanometer
J. Stethoscope
K. Resident Gowns
L. Thermometers, Glass and Electronic
M. Crutches
N. Canes (Variety)
O. Walker
P. Miscellaneous Supplies: i.e., Bandages,
Compresses, Heating Pad, Hearing Aid, Dentures,
Toothbrushes, Razors.
Q. Foley Catheter Drainage Bag
R. Hydraulic Lift
S. Adaptive eating utensils/equipment
69.303 Curriculum Content
The following material identifies the minimum
competencies that the curriculum content shall develop.
Nursing assistants being prepared to work in skilled,
intermediate, or assisted living facilities either as direct or
contract staff shall master each competency. All
demonstrable competencies for each student must be
documented as mastered by the RN instructor in order for a
student to qualify as successfully having completed that
section of programming.
A. THE NURSING ASSISTANT ROLE AND
FUNCTION
Introduces the characteristics of an effective
nursing assistant: personal attributes, on-the-job conduct,
appearance, grooming, health and ethical behavior. Also
presented are the responsibilities of the nursing assistant as a
member of the resident care team. Legal aspects of resident
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1349
care and resident rights are presented. Relevant Federal and
State statutes are also reviewed.
Competencies:
(1) Function as a nursing assistant within the
standards described below:
a. Define the role and functions of the
nursing assistant and provide awareness of the legal
limitations of being a nursing assistant.
b. Recognize the responsibilities of the
nursing assistant as a member of the health care team.
Understand the relevant State and Federal regulations for
long term care and legalities of reporting and documenting
incidents and accidents.
c. Understand the role of Long Term
Care advocates, investigators and surveyors.
d. Identify the "chain of command" in
the organizational structure of the health care agency.
e. Maintain personal hygiene and exhibit
dress practices which meet professional standards.
f. Recognize the importance of
punctuality and commitment to the job.
g. Differentiate between ethical and
unethical behavior on the job.
h. Understand the role, responsibility
and functional limitations of the nursing assistant.
(2) Demonstrate behavior that maintains
resident's rights.
a. Provide privacy and maintenance of
confidentiality.
b. Promote the resident's right to make
personal choices to accommodate individual needs.
c. Give assistance in resolving
grievances.
d. Provide needed assistance in going to
and participating in resident and family groups and other
activities.
e. Maintain care and security of
resident's personal possessions as per the resident's desires.
f. Provide care which ensures that the
residents are free from abuse, mistreatment, neglect or
financial exploitation and report any instances of such poor
care to the Division of Long Term Care Residents
Protection. Discuss the psychological impact of abuse,
neglect, mistreatment, misappropriation of property of
residents and/or financial exploitation.
g. Maintain the resident's environment
and care through appropriate nursing assistant behavior so as
to keep the resident free from physical and chemical
restraints.
h. Discuss the potential negative
outcomes of physical restraints, including side rails.
B. ENVIRONMENTAL NEEDS OF THE
RESIDENT
Key Concepts: Introduces the nursing assistant to
the need to keep residents safe from injury and infection in
the long-term care setting. The nursing assistant is taught
why and how to use infection control and isolation
techniques. Safety through prevention of fires and accidents,
and emergency procedures for fire and other disasters are
presented.
Competencies:
(1) Apply the basic principles of infection
control.
a. Identify how diseases are transmitted
and understand concepts of infection prevention.
b. Demonstrate proper hand washing
technique.
c. Demonstrate appropriate aseptic
techniques in the performance of normal duties and
understand the role of basic cleaning, disinfecting, and
sterilization tasks.
d. Demonstrate proper isolation and
safety techniques in the care of the infectious resident and
proper handling and disposal of contaminated materials.
(2) Assist with basic emergency procedures.
a. Follow safety and emergency
procedures.
b. Identify safety measures that prevent
accidents to residents.
c. Recognize signs when a resident is
choking or may have an obstructed airway.
d. Assist with clearing obstructed
airway.
e. Call for help when encountering
convulsive disorders, loss of consciousness, shock,
hemorrhage, and assist the resident until professional help
arrives.
f. Follow disaster procedures.
g. Report emergencies accurately and
immediately.
h. Identify potential fire hazards.
(3) Provide a safe, clean environment.
a. Identify the resident's need for a clean
and comfortable environment. Describe types of common
accidents in the nursing home and their preventive measures.
Be aware of the impact of environmental factors on the
resident in all areas including but not limited to light and
noise levels.
b. Report unsafe conditions to
appropriate supervisor. Use the nurse call system
effectively.
c. Report evidence of pests to
appropriate supervisory personnel.
d. Report nonfunctioning equipment to
appropriate supervisory/charge personnel.
e. Prepare soiled linen for laundry.
f. Make arrangement of furniture and
equipment for the resident's convenience and to keep
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1350 PROPOSED REGULATIONS
environment safe.
C. PSYCHOSOCIAL NEEDS OF THE
RESIDENT
Key Concepts: Focus is placed on the diverse
social, emotional, recreational and spiritual needs of
residents in a long term care setting. The curriculum shall
describe some of the physical, mental, and emotional
changes associated with aging and institutionalization, and
present ways in which the nursing assistant may effectively
communicate with residents and their families.
Competencies:
(1) Demonstrate basic skills by identifying the
psychosocial characteristics of the populations being served
in the nursing facility including persons with mental
retardation, mental illness and persons with dementia,
Alzheimer's disease, developmental disabilities and other
related disorders.
a. Indicate the ways to meet the
resident's basic human needs for life and mental well being.
b. Modify his/her own behavior in
response to resident's behavior. Respect the resident's
beliefs recognizing cultural differences in holidays,
spirituality, clothing, foods and medical treatments.
c. Identify methods to ensure that the
resident may fulfill his/her maximum potential within the
normal aging process.
d. Provide training in, and the
opportunity for, self-care according to the resident's
capabilities.
e. Demonstrate principles of behavior
management by reinforcing appropriate behavior and
reducing or eliminating inappropriate behavior.
f. Demonstrate skills which allow the
resident to make personal choices and promote the resident's
dignity.
g. Utilize resident's family as a source of
emotional support and recognize the family's need for
emotional support.
h. Recognize how age, illness and
disability affect memory, sexuality, mood and behavior,
including wandering.
i. Describe aggressive and wandering
behavior; recognize responsibility of staff related to
wanderers and aggressive residents.
j. Discuss how appropriate activities are
beneficial to residents with cognitive impairments.
k. Recognize and utilize augmentative
communication devices and methods of nonverbal
communication.
(2) Demonstrate appropriate and effective
communication skills.
a. Demonstrate effective verbal and
nonverbal communications in keeping with the nursing
assistant's role with residents, their families and staff.
b. Observe by using the senses of sight,
hearing, touch and smell to report resident behavior to the
licensed nurse.
c. Document observations using
appropriate terms and participate in the care planning
process.
d. Recognize the importance of
maintaining the resident's record accurately and completely.
e. Communicate with residents
according to their state of development. Identify barriers to
effective communication. Recognize the importance of
listening to residents.
f. Participate in sensitivity training in
order to understand needs of residents with physical or
cognitive impairments.
D. PHYSICAL NEEDS OF THE RESIDENT
Key Concepts: Presents the basic skills which
nursing assistants use in the physical care of residents. The
nursing assistant will learn basic facts about body systems
and what is needed to promote good functioning. The
nursing assistant will learn to provide physical care to
residents safely and to keep the resident nourished, hydrated,
clean, dry and comfortable. The nursing assistant will also
learn to make observations regarding residents and to record
and/or report observations. The nursing assistant will be
introduced to the basics of range of motion and learn to
integrate range of motion into routine personal care
activities.
Competencies:
(1) Apply the principles of basic nutrition in
the preparation and serving of meals.
a. Incorporate principles of nutrition and
hydration in assisting residents at meals.
b. Understand basic physiology of
nutrition and hydration.
c. Understand basic physiology of
malnutrition and dehydration.
d. Identify risk factors for poor
nutritional status in the elderly:
i. compromised skin integrity
ii. underweight or overweight
iii. therapeutic or mechanically
altered diet
iv. poor dental status
v. drug-nutrient interactions
vi. acute/chronic disease
vii. depression or confusion
viii. decreased appetite
e. Recognize how the aging process
affects digestion.
f. Accurately calculate and document
meal intake and report inadequate intake or changes in
normal intake.
g. Accurately calculate and document
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1351
fluid intake and report inadequate intake or changes in
normal intake.
h. Recognize and report signs and
symptoms of malnutrition and dehydration.
i. Understand concepts of therapeutic
diets including dysphagia diets and the related risks
associated with dysphagia including aspiration and
aspiration pneumonia.
j Incorporate food service principles
into meal delivery including:
i. distributing meals as quickly as
possible when they arrive from the kitchen to maintain food
temperature.
ii. assisting residents with meal setup
if needed (i.e., opening packets or cartons, buttering bread
if desired).
iii. serving meals to all residents
seated together at the same time.
iv. offering appropriate substitutions
if the residents don't like what they have received.
k. Utilize tray card or other mechanism
to ensure the resident is served his/her prescribed diet and
identify who to notify if a resident receives the wrong diet.
l. Demonstrate understanding of how to
read menus.
m. Assist residents who are unable to
feed themselves.
n. Demonstrate techniques for feeding
someone who:
i. bites down on utensils
ii. can't or won't chew
iii. holds food in mouth
iv. pockets food in cheek
v. has poor lip closure
vi. has missing or no teeth
vii. has ill fitting dentures
viii. has a protruding tongue or tongue
thrust
ix. will not open mouth
o. Demonstrate proper positioning of
residents at mealtime.
p. Demonstrate skills for feeding
residents who:
i. are cognitively impaired
ii. have swallowing difficulty
iii. have sensory problems
iv. have physical deformities
q. Demonstrate positioning techniques
for residents who:
i. have poor sitting balance
ii. must take meals in bed
iii. fall forward when seated
iv. lean to one side
v. have poor neck control
vi. have physical deformities
r. Demonstrate use of assistive devices.
s. Identify signs and symptoms that
require alerting a nurse, including:
i. difficulty swallowing or chewing
ii. coughing when swallowing
liquids
iii. refusal of meal
iv. choking on food or fluids
v. excessive drooling
vi. vomiting while eating
vii. significant change in vital signs
t. Incorporate principles of a pleasant
dining environment when assisting residents at mealtime
including ensuring adequate lighting and eliminating
background noise.
u. Demonstrate positive interaction with
residents recognizing individual resident needs.
v. Ensure residents are dressed
appropriately.
w. Allow residents to eat at their own
pace.
x. Encourage independence and assist as
needed.
y. Recognize and report as appropriate
the risk factors and signs and symptoms of malnutrition,
dehydration and fluid overload.
z. . Accurately calculate and document
intake and output including meal percentages and fluids.
(2) Demonstrate understanding of basic
anatomy and physiology in the following areas:
a. Respiratory system
b. Circulatory system
c. Digestive system
d. Urinary system
e. Musculoskeletal system
f. Endocrine system
g. Nervous system
h. Integumentary system
i. Sensory system
j. Reproductive system
(3) Recognize abnormal signs and symptoms
of common illness and conditions. Examples are:
a. Respiratory infection - Report
coughing, sneezing, elevated temperatures.
b. Diabetes - Report excessive thirst,
frequent urination, change in urine output, drowsiness,
excessive perspiration and headache. Understand the
healing process as it relates to diabetes.
c. Urinary tract infection - Report
frequent urination, burning or pain on urination, elevated
temperature, change in amount and color of urine, blood or
sediment in urine and strong odors.
d. Cardiovascular conditions - Report
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1352 PROPOSED REGULATIONS
shortness of breath, chest pain, blue color to lips, indigestion,
sweating, change in pulse, edema of the feet or legs.
e. Cerebral vascular conditions - Report
dizziness, changes in vision such as seeing double, change
in blood pressure, numbness in any part of the body, or
inability to move arm or leg.
f. Skin conditions - Report break in
skin, discoloration such as redness, black and blue areas,
rash, itching.
g. Gastrointestinal conditions - Report
nausea, vomiting, pain, inability to swallow, bowel
movement changes such as color, diarrhea, and constipation.
h. Infectious diseases.
(4) Provide personal care and basic nursing
skills as directed by the licensed nurse in the appropriate
licensed entity.
a. Provide for resident's privacy and
dignity when providing personal care.
b. Assist the resident to dress and
undress.
c. Assist the resident with bathing and
personal grooming.
d. Observe and report condition of the
skin.
e. Assist the resident with oral hygiene,
including prosthetic devices.
f. Administer oral hygiene for the
unconscious resident.
g. Demonstrate measures to prevent
decubitus ulcers, i.e., positioning, turning and applying heel
and elbow protectors.
h. Assist the resident in using the
bathroom. Understand consequences of not assisting
resident to the bathroom.
i. Assist the resident in using a bedside
commode, urinal and bedpan.
j. Demonstrate proper bed making
procedures for occupied and unoccupied beds.
k. Feed residents oral table foods in an
appropriate manner. Demonstrate proper positioning of
residents who receive tube feeding.
l. Distribute nourishment and water.
m. Accurately measure and record with a
variety of commonly used devices:
i. Blood pressure
ii. Height and weight
iii. Temperature, pulse, respiration
n. Assist the resident with shaving.
o. Shampoo and groom hair.
p. Provide basic care of toenails unless
medically contraindicated.
q. Provide basic care of fingernails
unless medically contraindicated.
r. Demonstrate proper catheter care.
s. Demonstrate proper perineal care.
t. Assist the licensed nurse with a
physical examination.
u. Apply a non-sterile dressing properly.
v. Apply non-sterile compresses and
soaks properly and safely.
w. Apply cold and/or heat applications
properly and safely.
x. Demonstrate how to properly apply
elastic stockings.
y. Demonstrate proper application of
physical restraints including side rails.
(5) Demonstrate skills which incorporate
principles of restorative care under the direction of a licensed
nurse.
a. Assist the resident in bowel and
bladder training.
b. Provide enemas within the scope of
duties of the nurse assistant.
c. Assist the resident in activities of
daily living and encourage self-help activities.
d. Assist the resident with ambulation
aids, i.e., cane, quadcane, walker, crutches, wheelchair and
transfer aids, i.e., hydraulic lifts.
e. Perform range of motion exercise as
instructed by the physical therapist or the licensed nurse.
f. Assist in care and use of prosthetic
devices.
g. Assist the resident while using proper
body mechanics.
h. Assist the resident with dangling,
standing and walking.
i. Demonstrate proper turning and/or
positioning both in bed and in a chair.
j. Demonstrate proper technique of
transferring resident from low and high bed to chair.
(6) Demonstrate safety and emergency
procedures including proficiency in the Heimlich maneuver
and certification in cardiopulmonary
resuscitation (CPR).
(7) Provide care to resident when death is
imminent.
a. Discuss own feelings and attitude
about death.
b. Explain how culture and religion
influence a person's attitude toward death.
c. Discuss the role of the CNA, the
resident's family and significant others involved in the dying
process.
d. Discuss the stages of death and dying
and the role of the nurse assistant.
e. Provide care, if appropriate, to the
resident's body after death.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1353
SECTION 69.400 - MANDATORY ORIENTATION
PERIOD
69.401 - SKILLED AND INTERMEDIATE CARE
FACILITIES
A. GENERAL REQUIREMENTS
(1) All Nursing Assistants hired to work in a
skilled or intermediate care facility, after completing 150
hours of training, shall undergo a minimum of 80 hours of
orientation at least 40 of which shall be clinical. An
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training, sponsored by the
facility where the Nursing Assistant will be employed
immediately thereafter, shall only be required to complete
additional facility specific orientation of 40 hours in the
same facility.
(2) All Certified Nursing Assistants hired to
work in a skilled or intermediate care facility shall undergo a
minimum of 80 hours of orientation; at least 40 of which
shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
a facility employee for purposes of satisfying the minimum
facility staffing requirements.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication (including the facility
chain of command) and documentation requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including scales, lifts, special beds and tubs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
(a.) Role and function of the
CNA/NA
(b.) Resident rights/abuse
reporting
(c.) Safety and body mechanics:
transfer techniques
(d.) Vital signs
(e.) Psychosocial needs
(f.) Facility policies and
procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care, including foot
and nail care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skills
69.402 - ASSISTED LIVING FACILITIES
A. GENERAL REQUIREMENTS
(1) Nursing Assistants hired to work in an
assisted living facility, after completing 150 hours of
instruction, shall undergo a minimum 64 hours of
orientation, at least 24 of which shall be clinical. An
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training in a training
program sponsored by the facility where the Nursing
Assistant will be employed immediately thereafter shall only
be required to complete an additional 32 hours of facility
specific orientation in the same facility.
(2) Certified Nursing Assistants hired to work
in an assisted living facility shall undergo a minimum of 64
hours of orientation at least 24 of which shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1354 PROPOSED REGULATIONS
a facility employee for purposes of satisfying the minimum
facility staffing requirements as set forth by the Department.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including but not limited to scales, lifts, and
wheelchairs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
h. Role and function of the CNA/NA
i. Resident rights/abuse reporting
j. Safety and body mechanics: transfer
techniques
k. Vital signs
l. Psychosocial needs
m. Facility policies and procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skill
69.403 - TEMPORARY AGENCIES
A. GENERAL REQUIREMENTS
(1) All Certified Nursing Assistants employed
by temporary agencies and placed in a facility in which they
have not worked within the previous six (6) months shall
undergo a minimum of two (2) hours of orientation prior to
beginning their first shift at the facility.
(2) Any Certified Nursing Assistant employed
by a temporary agency and undergoing orientation shall not
be considered a facility employee for purposes of satisfying
the minimum facility staffing requirements.
(3) Nursing Assistants employed by a
temporary agency must be certified prior to placement in any
nursing home.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory two-hour orientation
program shall include but is not limited to a review and
written instruction on the following material by a licensed
nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies including but not limited to scales, lifts, special beds
and tubs
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
SECTION 69.500 - VOLUNTARY SENIOR
CERTIFIED NURSING ASSISTANT
CERTIFICATION
69.501 - TRAINING REQUIREMENTS AND
COMPETENCY TEST
Any Certified Nursing Assistant may pursue
designation as a Senior Certified Nursing Assistant and shall
be so designated if such individual meets the following
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1355
minimum requirements:
A. Has been a Certified Nursing Assistant for
a minimum of three years, in good standing with no adverse
findings entered on the Nurse Aide Registry;
B. Has successfully completed an additional
50 hours of advanced training in a program approved by the
Department;
C. Has passed a competency test provided by
the Department or by a contractor approved by the
Department.
69.502 - VOLUNTARY SENIOR CNA
CURRICULUM
The Senior CNA program must meet the same
requirements as those specified in Section 2 of these
regulations in terms of classroom ratios of students to
instructors. The Senior CNA curriculum must meet the
following minimum course content, which will provide an
advanced level of knowledge and demonstrable skills. All
demonstrable competencies shall be documented by the RN
instructor.
A. LEADERSHIP TRAINING AND
MENTORING SKILLS
Key Concepts: Senior Certified Nursing Assistants
will learn how to teach new Nursing Assistants standards of
care. Senior CNAs will learn how to be a role model and
preceptor for new Nursing Assistants and CNAs. Senior
CNAs will learn how prepare assignments, conduct team
meetings and resolve conflicts.
Competencies: Function effectively as a team
leader and mentor/preceptor within the facility.
(1) Define the role and functions of an
effective team leader and mentor.
(2) Identify principles of adult learning.
(3) Recognize various learning styles and
communication barriers.
(4) Assess learner knowledge.
(5) Supervise, evaluate and act as a preceptor
for the Nursing Assistant and Certified Nursing Assistant
during orientation.
(6) Demonstrate effective communication
techniques.
(7) Recognize the importance of teamwork.
(8) Actively participate in resident care plan
and team meetings.
(9) Identify strategies for conflict
management.
(10) Learn how to prepare assignments, assist
with scheduling and other administrative duties.
B. DEMENTIA TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of Alzheimer's Disease and related dementias.
The senior CNA will gain the skills necessary to effectively
care for residents exhibiting signs and symptoms of
dementia. The senior CNA will act as a role model and
resource person for other CNAs.
Competencies: Demonstrate appropriate skills and
techniques necessary to provide care to residents exhibiting
signs and symptoms of dementia.
(1) Recognize signs and symptoms of
Alzheimer's Disease and related disorders.
(2) Identify types of dementias.
(3) Discuss methods for managing difficult
behavior.
(4) Demonstrate effective communication
techniques.
(5) Recognize specific issues that arise in
providing care to persons with Alzheimer's Disease and
other memory loss conditions and appropriate interventions
for dealing with these problems including, but not limited to,
agitation, combativeness, sundown syndrome, wandering.
C. ADVANCED GERIATRIC NURSING
ASSISTANT TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of anatomy and physiology with emphasis on the
effects of aging. The senior CNA will effectively carry out
restorative nursing skills as specified in the resident's plan of
care.
Competencies:
(1) Verbalize understanding of anatomy,
physiology and pathophysiology of common disorders of the
elderly.
a. Describe the effects of aging on the
various organs and systems within the body.
b. Describe signs and symptoms of
common disorders.
c. Describe the pathophysiology of
common disorders.
d. Identify measures to assist residents
with common medical problems (e.g., promoting
oxygenation in residents with breathing problems).
e. Observe, report and document
condition changes using appropriate medical terminology.
f. Recognize basic medical emergencies
and how to respond appropriately.
(2) Maintain or improve resident mobility and
the resident's ability to perform activities of daily living.
Understand the reasons for rehabilitation (physiologically),
reasons for, and benefits of Restorative Nursing and be able
to demonstrate the same.
a. Assist the resident with exercise
routine as specified in his/her care plan.
b. Carry out special rehabilitation
procedures as ordered including working with the visually
impaired, special feeding skills/devices, splints, ambulatory
devices and prostheses.
c. Identify ways to prevent contractures.
d. Effectively communicate with the
Rehabilitation Department.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1356 PROPOSED REGULATIONS
SECTION 69.600 - SENIOR CNA TRAINING
PROGRAM INSTRUCTORS
A. The Primary Instructor is an individual
responsible for the overall coordination and implementation
of the senior certified nursing assistant training program.
The primary instructor is present and available during
clinical training. The primary instructor and all who serve as
instructors in the program must meet the following
qualifications:
(1) RN licensure in the State of Delaware.
(2) Three (3) years nursing experience in
caring for the elderly or chronically ill of any age.
(3) Instructors shall demonstrate:
a. Successful completion of "Train-the-
Trainer" program which provides preparation in teaching
adult learners principles of effective teaching and teaching
methodologies or;
b. Successful completion of a college
level course of at least one semester in length, that was
related to education and the principles of adult learning.
(4) Waiver of the Train-the-Trainer and the
college level education course requirement is made for those
nurses who demonstrate at least one (1) year of continuous
teaching experience at the nursing assistant or LPN or RN
program level.
B. Program Trainer(s) may provide assistance to
instructors as resource personnel from the health field. They
may provide instruction in their area(s) of expertise.
(1) Trainers shall be registered nurses,
licensed practical nurses, pharmacists, dietitians, social
workers, physical, speech or occupational therapists,
environmental/fire safety specialists, activity directors, or
other licensed health care professionals.
(2) One (1) year of current experience in
caring for the elderly or have equivalent experience.
(3) Trainers shall be licensed or certified in
their field, where applicable.
SECTION 69.700 - TRAIN-THE-TRAINER
PROGRAM REQUIREMENTS
Each train-the-trainer program shall ensure that an RN
designated as primary instructor meets the following
minimum requirements:
69.701 TRAINING COURSE CONTENT
A. Role of Trainer
B. Communication techniques
C. Demonstration skills
D. Teaching a process
E. Teaching techniques
F. Training techniques
G. Developing a formal training plan
69.702 COURSE MANAGEMENT
INFORMATION
A. Training time shall consist of sixteen minimum
hours.
B. The train-the-trainer instructor must have
formal educational preparation or experience with skills of
adult learning.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Public Notice
Division of Social Services
Food Stamp Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Food Stamp
Program is proposing to implement a policy change to the
Division of Social Services Manual, Section 9085. This
change is based on the option and waiver of 7 CFR
273.12(a)(1)(i) through (vi).
Summary of Change
• The option allows DSS to require households with
earned income to only report a change of income
when the total monthly gross income exceeds 130%
of the Federal Poverty Level (FPL) during a sixmonth
certification period.
• The waiver allows DSS to make changes on all
reported changes, not just those that increase the
benefits.
• The six-month reporting option in strongly being
encouraged by Food and Nutrition Service (FNS).
The waiver approval will allow DSS to take the
option.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by January 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1357
Revision
DSSM 9085 Reporting Changes
Certified households are required to report the following
changes in circumstances:
Reporting requirements for households with countable
earned income and six-month certification periods:
Households are required to only report income
changes when the monthly income exceeds 130 percent of
the poverty income guideline for the household size that
existed at the time of certification or recertification.
When a household's monthly income exceeds the
130 percent of the poverty income guideline, the household
is required to report that change within ten days after the end
of the month that the household determines the income is
over the 130 percent amount.
Households will not have to report any changes in
household composition, residence and resulting changes in
shelter costs, acquisition of non-excluded licensed vehicles,
when liquid resources exceed $2,000, and changes in the
legal child support obligation.
Additional reporting requirement for ABAWD
individuals:
Adults living in a home without any minor children,
who are getting food stamps because they are working over
20 hours a week, must report when they start working less
than 20 hours per week.
Reporting requirements for households without countable
earned income:
• Changes in the sources of or in the amount of gross
unearned income of more than $25, except changes
in the public assistance grants. Since DSS has prior
knowledge of all changes in the public assistance
grants, action shall be taken on the DSS
information. Changes reported in person or by
telephone are to be acted upon in the same manner
as those reported on the change report form.
Changes in the amount of gross earned income will be
reported as follows:
a) New source of employment, or
b) Changes in the hourly rate or salary of current
employment, or
c) Changes in employment status from part-time to fulltime
or full-time to part-time.
• All changes in household composition, such as the
addition or loss of a household member;
• Changes in residence and the resulting changes in
shelter costs;
• The acquisition of a licensed vehicle not fully
excludable under DSSM 9051 ;
• When cash on hand, stocks, bonds, and money in a
bank account or savings institution reach or exceed
a total of $2,000;
• Changes in the legal obligation to pay child
support; and
• Changes in work hours that bring an ABAWD
individual below 20 hours per week, averaged
monthly.
Certified households must report changes within ten
(10) days of the date the change becomes known to the
household.
An applying household must report all changes related
to its food stamp eligibility and benefits at the certification
interview. Changes, as provided in this Section, which occur
after the interview but before the date of the notice of
eligibility, must be reported by the household within ten (10)
days of the date of the notice.
Only the reporting requirements in this Section and no
other reporting requirements can be imposed by the
Division.
DEPARTMENT OF
TRANSPORTATION
Statutory Authority: 17 Delaware Code,
Chapter 11 (17 Del.C. Ch. 11)
Regulations for Outdoor Advertising
Nature of the Proceedings:
The Department of Transportation initiated proceedings
to update its "Delaware Department of Transportation Rules
and Regulations of Outdoor Advertising" as issued in 1975.
The proposed re-written regulations were published in the
August 1, 2001 issue of the Delaware Register of
Regulations. Written comments were requested and
accepted through October 1, 2001.
The Department received and evaluated nine letters that
set out a wide range of comments. The results of the
evaluation are summarized below. The Department revised
the draft regulations as a result of the comments received and
is presenting the revised draft here, along with the original
1975 regulations for comparison. The Department invites
written comments on the current draft until February 1,
2002. Comments should be sent to:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1358 PROPOSED REGULATIONS
William F. Smith, III
Department of Transportation
Field Services
P.O. Box 778
Dover, DE 19903
Summary of Evidence/Findings of Fact
COMMENT 1: Outdoor advertising signs that were
designated on-premise and displayed advertising messages
for on-premise activities using electronic message signs
were previously allowed under the Del Code. Since this was
the case those sign owners that argued this point should be
omitted from these revised regulations. A provision for "a
grandfather clause" should be introduced into regulations to
accommodate sign owners that are mentioned above.
RESPONSE: The Department of Transportation is
given authority to regulate Outdoor Advertising by Chapter
11 of Title 17 of the Delaware Code. The Department's
current regulations do not authorize the use of "electromechanical
variable message" signs, except for official use
and public service messages, such as time, date and
temperature, and also as described under the circumstances
described in response to Comment 2, below. Since the use of
electro-mechanical variable message signs was excluded in
the 1975 regulations, such signs that have been erected since
1975 are considered to have been in noncompliance with the
Department's regulations. Therefore, consideration cannot
be given to a "grandfather clause" that will exclude them
from regulations now being proposed.
COMMENT 2: 17 Del. C. Section 1110 [(b)](3) notes
that zoned and unzoned commercial and industrial areas may
not have signs which contain, include or are illuminated by
flashing, intermittent or moving light or lights, except those
giving public service information such as weather,
temperature, time and date. How can State code not permit
this sign and the proposed DelDOT regulations give
consideration to regulating this type of sign?
RESPONSE: The comment's basic premise is
incorrect, though understandably so, given the complex
wording and structure of 17 Del.C. Chapter 11.
The first sentence of Section 1110, in Subchapter I,
exempts from coverage signs that "advertis[e] the sale or
lease of the property on which they are located, or activities
conducted thereon...." Therefore, the restrictions later set
forth in Section 1110(b)(3) do not apply to such signs.
However, even these signs are subject to the provisions of
Subchapter II of Chapter 11, if they are within the controlled
areas adjacent to the highways of the primary system (now
the National Highway System). Under Section 1121 in
Subchapter II, such signs are subject to the regulations
promulgated by the Department under Section 1103, thus
referring back to the lighting restrictions in the current
regulations.
Accordingly, signs with such devices can be used, but
only if they are not located in controlled areas adjacent to the
primary road network, which makes them subject to
Subchapter II's provisions. In addition, the signs' content is
limited to advertising the sale or lease of the property on
which they are located, or activities conducted thereon.
In addition, 17 Del.C. Section 1110's restrictions are
taken directly from a DelDOT and FHWA agreement
entitled 'Agreement for Carrying Out National Policy
Relative to Control of Outdoor Advertising in Areas
Adjacent to the National System of Interstate and Defense
Highways and the Federal-Aid Primary System.' The
Department entered into this agreement with FHWA on May
1, 1968, pursuant to 23 U.S.C. Section 131 and the State's
own enactment of Subchapter II of 17 Del.C. Chapter 11.
The agreement was directed toward regulation of offpremise
signs used for outdoor advertising. The Federal
statute was amended in 1978 at Section 131(c)(3) to allow
the Department to approve the use of electro-mechancial
variable message signs for display of on-premise activities
adjacent to the primary system, if the signs met established
State test criteria for on-premise activities and if messages
were displayed at reasonable intervals. However, 17 Del.C.
Chapter 11 was not also amended to give this authority to the
Department under the applicable state law. The
Department's proposed regulations for outdoor advertising
are now consistent with the current limitations of Chapter
11.
COMMENT 3: Spacing of one mile between electromechanical
variable message signs is excessively restrictive.
RESPONSE: This distance is recommended to insure
that the pleasant surroundings and vistas of "Livable
Delaware" are not rapidly filled with electro-mechanical
advertising signs that are viewed to be somewhat obtrusive
by some Delaware residents. This regulation will apply
along all applicable state maintained roadways on which the
Department is authorized to control outdoor advertising.
COMMENT 4: Spacing of one mile between electromechanical
variable message signs with a State permit
going to the first approved applicant will result in limited use
of above signs and possibly deny a competitor the use of the
same type of advertising if businesses offering the same
services or products are within a distance of one mile from
one another. Since these are not off-premise signs but onpremise
signs then each business should have the right to use
an approved sign to advertise on-premise activities on their
property.
RESPONSE: See response to Comment 3.
COMMENT 5: Spacing between electro-mechanical
variable message signs and static message signs is not
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1359
necessarily appropriate.
RESPONSE: Spacing imposed in the revised
regulations for distances between an electro-mechanical
variable message sign and a static sign is the same as that
between two static message signs and follows FHWA
guidelines.
COMMENT 6: Confusion exists between spacing
requirements between electro-mechanical variable message
signs and other on premise signs.
RESPONSE: See response to Comment 5.
COMMENT 7: Time for message display is too long.
RESPONSE: The time for a complete message to be
displayed has been changed from a minimum of 60 seconds
as in the regulations printed in the Delaware Register in
August 1, 2001 to a minimum of 30 seconds. This makes the
time consistent with the time set by the City of Dover in its
recent regulations, which were enacted after an extensive
review.
COMMENT 8: Time for message display and time
interval between message display is not needed or should be
reduced to 0.5 seconds.
RESPONSE: The interval required for message
changes remains at 2 seconds or less as stated in the August
1, 2001 publication. This timing has been reviewed by the
Department of Transportation and FHWA, and is considered
not to create traffic safety problems.
COMMENT 9: Term "nondistractive" is vague - i.e.
message changes must be accomplished by "nondistractive"
means.
RESPONSE: This term has been deleted from the text
of the document printed below.
COMMENT 10: Definition of "complete message"
needs to be further clarified to reduce misunderstanding by
advertisers.
RESPONSE: This comment was incorporated into the
text of the document printed below.
COMMENT 11: Add definition for "decorative
subdivision" sign and specify criteria that is acceptable.
RESPONSE: This comment was incorporated into the
text of the document printed below.
COMMENT 12: Improve item 1.13, II, I (Spacing),
item 6 for clarity by adding "same side of the roadway."
RESPONSE: This comment was incorporated into the
text of the document printed below.
COMMENT 13: Add definition for "message content"
so there is no misunderstanding by advertisers on what is
permitted and what is specifically not permitted.
RESPONSE: This comment was incorporated into the
text of the document printed below.
COMMENT 14: Add provision for action to be taken
by DelDOT upon failure of sign owner to renew sign permit
by paying his or her annual permit fee.
RESPONSE: This comment was incorporated into the
text of the document printed below.
COMMENT 15: Clarification needed regarding
jurisdiction of towns/cities vs. DelDOT, and the process for
Certification of Political Subdivisions.
RESPONSE: The Department promulgates regulations
for outdoor advertising on Interstate Highways, Primary
System Highways, and, outside of the boundaries of
incorporated municipalities, all other state maintained
roadways within the State of Delaware. Within the
boundaries of incorporated municipalities, the Department,
as directed by 17 Del.C. Sections 1102 and 1103, does not
assert regulatory authority over outdoor advertising on
roadways that are not interstates, primaries or toll roads.
Counties and municipalities may also regulate outdoor
advertising, but the more restrictive regulation will apply.
"Certification of Political Subdivisions" is a process
whereby the state certifies to the administrator, the FWHA,
that the political subdivision has met all criteria to regulate
outdoor advertising as established by the FWHA. The
intention of certification is generally recognized to be used
by larger cities than exist in Delaware.
COMMENT 16: Condense prohibitions into one
section entitled "General Prohibitions"
RESPONSE: The organization of the regulations was
kept the same to enable comparison to the 1975 version.
COMMENT 17: Correct typographical error "oving"
for moving.
RESPONSE: This correction was made in the
document printed below.
COMMENT 18: Broaden criteria for subdivision signs
to include design, submission of plan requirements,
ownership, maintenance provisions, review and approval
process.
RESPONSE: This was a good suggestion, and may be
considered for a future revision.
COMMENT 19: Increase height limit from 15' for
electro-mechanical variable message signs to some
undefined higher limit, increase size of face to some
undefined limit in excess of 150 sq. ft.
RESPONSE: The 15-foot limit of height or length is
intended to preclude the erection of long, narrow "ticker-
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1360 PROPOSED REGULATIONS
tape" or "streamer" type signs. The face limit of 150 square
feet is based on the model of the City of Dover's sign
ordinance, but increased from the City's 100 square foot
limit for electronic variable message signs to 150 square
feet, to allow greater visibility of advertising on roadways
with higher speed limits outside of municipal boundaries
than within.
COMMENT 20: Introduce an appeals process into
regulations where applicants can seek relief from the strict
application of the regulations in cases where legitimate
hardships can be demonstrated. Establish criteria for
legitimate hardship. Incorporate into appeals process a
mechanism for resolution of differences in interpretation of
the meaning of any portion of the regulations.
RESPONSE: Any party who feels disadvantaged by
the Department's application of these regulations has the
option to address a written appeal to the Secretary of the
Department of Transportation.
COMMENT 21: Add exempted signs section, i.e.
signs that are not regulated by DelDOT outdoor advertising
regulations.
RESPONSE: All outdoor advertising signs in the
State, with the exception of official signs, are subject to
regulation by The Department, and require either a letter of
permission or a permit. Official signs require approval of
the Department before they can be erected.
COMMENT 22: Reconstruct part 'B' of rule 1.05 to
specify that the controlled areas of State maintained
roadways that are neither interstates or primaries are also
within line of sight, or within 660 feet when in
municipalities. Technical correction that eliminates an
apparent contradiction between rules 1.02 and 1.05.
RESPONSE: This was an error in the 1975 version of
the Regulations and has been corrected in the text of the
document printed below.
Delaware Department of Transportation
CHAPTER
SECTION 1.00 ..... OUTDOOR ADVERTISING
PARAGRAPH
1.0.1 - AUTHORITY
1.02 - APPLICABILITY
1.03 - PURPOSE
1.04 - DEFINITIONS
1.05 - STATUTORY REQUIREMENTS
1.06 - STANDARDS FOR DIRECTIONAL SIGNS
1.07- STANDARDS FOR OFFICIAL SIGNS AND
NOTICES
1.08 - STANDARDS FOR PUBLIC UTILITY AND
RAILROAD SIGNS
1.09 - STANDARDS FOR SERVICE CLUB AND
RELIGIOUS NOTICES
1.10 - STANDARDS FOR PUBLIC SERVICE SIGNS
1.11 - STANDARDS FOR ON PREMISE SIGNS
1.12 - STANDARDS FOR AGRI-PRODUCE SIGNS
1.13 - STANDARDS FOR OUTDOOR ADVERTISING
SIGNS
1.14 - BONDING REQUIREMENTS
1.15 - MAINTENANCE OF SIGNS
1.16 - DESTRUCTION OF TREES
1.17 - PERMITS AND FEES
1.18 - CERTIFICATION OF POLITICAL SUBDIVISIONS
1.19 POLITICAL SUBDIVISION REGULATIONS
1.20 PENALTIES
1.21 SEPARABILITY
SECTION I - OUTDOOR ADVERTISING AUTHORITY
1.01 - AUTHORITY
A. The following rules and regulations are issued under
the authority granted to the Department by Section 1104,
Subchapter 1, Chapter 11, Title 17 of the Delaware Code.
B. The Department of Highways and Transportation
shall have overall jurisdiction and control throughout the
State subject to the certification process for political
subdivisions as defined under paragraph 1.18 following.
Within the Department, the responsibility for administration
of the program shall rest with the Roadside Control Section
in the Division f Highways.
C. All interpretations will be made by the Secretary of
the Department of Highways and Transportation and his
decision will be final except in those cases where a point of
law is raised.
1.02 - APPLICABILITY
A. The following rules and regulations apply to all
outdoor advertising or outdoor advertising signs which are
erected and maintained within 660 feet of the nearest edge of
the right-of-way of any State maintained highway in this
State and which are visible from the main traveled way of
such systems.
B. These rules and regulations shall become effective
upon approval by the Secretary of the Department of
Transportation.
1.03 - PURPOSE
A. Under Section 1101, Subchapter 1, Chapter 11, Title
17 of the Delaware Code: the General Assembly has
declared that it is in the public's interest to control the
erection and maintenance of outdoor advertising signs,
displays, and devices in areas adjacent to the Inter-state and
Primary systems in order to protect the public investment in
such highways.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1361
B. The General Assembly by enactment of Section
1104, Subchapter 1, Chapter 11, Title 17 of the Code
directed the Department to enforce the provisions of Chapter
11 and to issue regulations to implement the policy and
accomplish the purpose of the Chapter.
C. The following rules and regulations are issued in
response to that directive and to clarify and implement the
Department's policy regarding the control of outdoor
advertising.
1.04 - DEFINITIONS
A. For the purpose of this Section, the following
definitions shall apply:
1. "Outdoor Advertising" or "Outdoor Advertising
Signs" shall mean and shall include any outdoor sign, light,
display, device, figure, painting, drawing, message, placard,
poster, billborad, or other thing which is designed, intended,
or used to advertise or inform, any part of the advertising or
informative contents of which is visible from any place on
the main traveled way of the Interstate or Federal-aid
primary highway.
2. "Interstate System" means that portion of the
National System of Interstate and Defense Highways located
within the State of Delaware officially designated as such, or
as may hereafter be designated as such, by the Department
and approved by the Secretary of Transportation of the
United States pursuant to the provisions of Title 23, United
States Code.
4. "A controlled area" shall mean, and "controlled
areas" shall include any area inside the boundaries of the
State of Delaware which is adjacent to and within 660 feet of
the edge of the right-of-way of a highway of the Interstate
System or the Primary System. and after July 1, 1975 beyond
660 feet.
5. "State law" means a State constitutional
provision or statute, or an ordinance, rule, or regulation
enacted or adopted by a state agency or political subdivision
of a State pursuant to a State constitution or statute.
6. "Safety rest areas" means an area or site
established and maintained within or adjacent to the right-ofway
by or under public supervision or control, for the
convenience of the traveling public.
7. "Sign Panels" means one sign facing.
8. "Department" means the Department of
Highways and Transportation.
9. "Division" means the Division of Highways
under the Department of Highways and Transportation.
10. "Section" means the Roadside Control Section
under the Division of Highways.
11. "Nonconforming Sign" is one which was
lawfully-erected, but which does not comply with the
provisions of the Laws of the State of Delaware or State
regulations passed at a later date or which later fails to
comply with such law or regulations due to changed
conditions.
12. "Illegal Sign" means any sign which was
erected and/or maintained in violation of the Delaware Law.
13. "Illuminated Sign" means any sign that is
lighted internally or externally and shall be defined as
illuminated whether or not the light is attached directly to the
sign structure.
14. "Centerline of the highway' means (1) a line
equidistant from the edges of the median separating the
main-traveled ways of a divided highway, or (2) the
centerline of the main-traveled way of a nondivided
highway, or (3) the centerline of each of the main-traveled
ways of a divided highway separated by more than the
normal median width or constructed on independent
alignment.
15. "Main-traveled way" means the traveled way of
a highway on which through traffic is carried. in the case of a
divided highway, the traveled way of each of the separated
roadways for traffic in opposite directions is a main-traveled
way. It does not include such facilities as frontage roads,
turning roadways, or parking areas.
16. "Scenic area" means any area of particular
scenic beauty or historical significance as determined by the
Federal, State, or local officials having jurisdiction thereof,
and includes interests in land which have been acquired for
the restoration, preservation, and enhancement of scenic
beauty.
17. "Parkland" means any publicly owned land
which is designated or used as a public park, recreation area,
wildlife or waterfowl refuge or historic site.
18. "Legible" means capable of being read without
visual aid by a person of normal visual acuity.
19. "Maintain" means to allow to exist.
20. "Freeway" means a divided arterial highway for
through traffic with full control of access.
21. "Abandoned Sign" means any sign in which the
owner has not demonstrated an interest by maintaining it in
good condition.
22. "Zoned commercial or industrial areas" means
those areas. which are zoned for business, industry,
commerce or trade pursuant to a State regulation or local
zoning ordinance.
23. "Lease (license, contract, or easement)" means
an agreement in writing, by which possession or use of land
or interests therein is given by the owner to another person
for a specified period of time.
24. "Directional and other official signs and
notices" shall mean and include only official signs and
notices, public utility signs, service club and religious
notices, public service signs, and directional signs.
25. "Official signs and notices" means sign's and
notices erected and maintained by public officers or public
agencies within their territorial or zoning jurisdiction and
pursuant to and in accordance with direction or authorization
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1362 PROPOSED REGULATIONS
contained in Federal, State or local law for the purposes of
carrying out an official duty or responsibility or historical
marker. authorized by State law and erected by State or local
government agencies or nonprofit historical societies may be
considered official.signs.
26. "Public utility signs" means warning signs,
informational signs, notices, or marker which are
customarily erected and maintained by publicly or privately
owned public utilities, as essential to their operations.
27. "Service club and religious notices" means
signs and notices, whose erection is authorized by law,
relating to meetings of nonprofit service clubs or charitable
associations, or religious-services.
28. "Public service signs" means signs located on
school bus stop shelters.
29. "Directional signs" means signs containing.
directional information about public places owned or
operated by Federal, State or local governments or their
agencies; publicly or privately owned natural phenomena,
historic, cultural, scientific, educational, and religious sites;
areas of-natural scenic beauty, and areas which are naturally
suited for outdoor recreation, deemed to be in the interest of
the traveling public.
30. "On premises signs" shall mean those signs,
displays and devices advertising the sale or lease of property
upon which they are located and those signs, displays, and
devices advertising activities conducted on the property on
which they are located.
31. "Double-faced, back-to-back, or V-type signs"
shall mean those configurations of multiple sign structures as
those terms are commonly understood, except that in no
instance shall these terms include two or more signs which
are not in the same ownership, which are not physically
contiguous, or which are not connected by the same structure
or crossbracing, or in the case of back-to-back or "V"-type
signs located less than 15 feet apart at their nearest points.
32. "Agri-produce signs" shall mean those signslocated
on the property of a farmer indicating the sale of
seasonal agricultural products.
33. "Information Center" means an area or site
established and maintained at a safety rest area for the
purpose of providing information to the public of places of
interest within the State and other information the
Department deems desirable.
34. "Erect" means to construct, build, raise,
assemble, place, affix, attach, create, paint, draw, or in. any
other way bring into being or establish, but it shall not
include any of the foregoing activities when performed as-an
incident to the change of advertising message or customary
maintenance of a sign or sign structure.
35. "Commercial or industrial activities for
purposes of unzoned commercial or industrial areas" means
those activities generally recognized as commercial or
industrial by zoning authorities within the State of Delaware,
except that none of the following activities shall be
considered commercial or industrial:
(a) Outdoor Advertising structures.
(b) Forestry, ranching, grazing, and farming
including, but not limited to, wayside fresh produce stands.
(c) Transient or temporary activities.
(d) Activities more than 660 feet from the
nearest edge of the right-of-way along the Interstate and
Federal Aid Primary Route.
(e) Activities conducted in buildings
principally used as a residence.
(f) Railroad tracks and minor sidings.
(g) Activities not visible from the maintraveled
way.
36. "Customary maintenance" means the action
necessary to keep a sign in good condition by (1)
replacement of parts damaged or worn by age and (2)
painting of areas exposed to the weather as the major portion
of the sign, but shall not include either maintenance which
would be necessary for signs over 50% damaged (except Act
of God circumstances) or in 50% disrepair or maintenance
which would increase the size or monetary value of the sign.
37. "Free standing sign" means any sign not
attached or affixed to a building for its principal means of
support.
38. "Political subdivision" means any municipal or
county government duly established under the provisions of
the Delaware Code.
39. "Sign facing" means, a single sign message
separated from other sign facings by border or trim.
1. 05 - STATUTORY REQUIREMENTS
A. Section 1121, Chapter 11, Title 17 of the Delaware
Code provides that signs within 660 feet of the nearest edge
of the right of way and visible from the main traveled way of
the Interstate and Primary system shall be limited to the
following types:
1. Directional and other official signs and notices
which shall include only official signs and notices, public
utility signs, service club and religious notices, public
service signs, and directional signs.
2. On Premise signs which shall include only:
(a) Those signs, displays and devices
advertising the sale or lease of the real property upon which
they are located, and
(b) Those signs, displays and devices
advertising activities conducted on the real property upon
which they are located.
3. Signs, displays, and devices located in the
controlled areas adjacent to highways of the Interstate and
Primary systems which are zoned industrial and commercial
under authority of State Law.
B. For ease of operation, the aforementioned limitations
shall be applicable to all other highway systems with the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1363
approval of these rules and regulations.
1.06 STANDARDS FOR DIRECTIONAL SIGNS
A. General: Permits as mentioned in Paragraph 1.17 of
these-regulations will not be required for directional signs.
1. A sign shall only be erected after first securing
approval of the Department. Requests for approval to erect a
directional sign shall be in writing directed to the
Department for the attention of the Manager of the Roadside
Control Section. All requests shall be processed in accord
with procedures promulgated by the Department.
2. The following directional signs are prohibited:
(a) Signs advertising activities that are illegal
under Federal or State laws or regulations in effect at the
location of those signs or at the location of the activity.
(b) Signs located in such a manner as to
obscure or otherwise interfere with the effectiveness of an
official traffic sign, signal, or device, or obstruct or interfere
with the driver's view of approaching, merging, or
intersection traffic.
(c) Signs which are erected or maintained upon
trees or utility poles or painted or drawn upon rocks or other
natural features.
(d) obsolete signs.
(e) Signs which are structurally unsafe or in
disrepair.
(f) Signs which move or have any animated or
moving parts.
(g) signs located in rest areas, parklands or
scenic areas.
(h) Signs not in conformance with applicable
wind pressure requirements determined by adopted-local
building code or 25 pounds per square-foot.
(i) Signs for privately owned facilities unless
such facilities are determined to be eligible for signing under
the criteria and methods described in subparagraph F of this
section.
B. Size
1. The following limits shall apply to directional
signs:
(a) Maximum area ... 150 square feet
(b) Maximum height ... 20 feet
(c) Maximum length ... 20 feet
2. All dimensions include border and trim, but
exclude supports.
C. Lighting
1. Signs may be illuminated, subject to the
following:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or Primary
system highway or which are of such intensity or brilliance
as to impair the vision of the driver of any motor vehicle, or
which otherwise interfere with any driver's operation of a
motor vehicle are prohibited.
(c ) No sign may be so illuminated as to
interfere with the effectiveness of or obscure an official
traffic sign, device or signal.
D. Spacing
1. Each location of a directional sign must be
approved by the Department.
2. A directional sign must be located beyond 2,000
feet of an interchange, or intersection at grade along the
Interstate System or other freeways (measured along the
Interstate or freeway from the nearest point of the beginning
or ending of pavement widening at the exit from or entrance
to the main-traveled way), unless erected by the Division.
3. A directional sign shall be located beyond 2,000
feet of a rest area, parkland, or scenic area, unless erected by
the Division.
4.
(a) Two directional signs facing the same
direction of travel shall be placed more than 1 mile apart;
(b) A maximum of three directional signs
pertaining to the same activity and facing the same direction
of travel may be erected along a single route approaching the
activity;
(c) Signs located adjacent to the Interstate
System shall be within 75 air miles of the activity; and
(d) Signs located adjacent to the Primary
system shall be within 50 air miles of the activity.
5. In determining the distance between signs facing
in the same direction and those within a seventy-five air mile
radius, signs. beyond the 660' limit shall not be considered.
6. Signs legally in place within the 660' controlled
area shall be considered as though it were a sign erected
under these regulations.
E. Message Content
1. The message of directional signs shall be limited
to the identification of the attraction or activity and
directional information useful to the traveler in locating the
attraction, such as mileage, route numbers, or exit numbers.
Descriptive words or phrases, and pictorial or photographic
representations of the activity or its environs are prohibited.
F. Criteria for Eligibility
1. The criteria for determining whether or not a
privately owned facility is eligible for directional signing
shall be that criteria presently utilized or hereafter adopted
by one of the existing State agencies where primary purpose
is the control and administration of the type of specific
unique phenomena or site for which a directional sign
application may be made.
2. A determination by the State agency to which a
request is referred as to whether or not a privately owned
facility is eligible for directional signing will be binding on
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1364 PROPOSED REGULATIONS
the Department.
G. Eligible Activities
1. Privately owned activities or attractions eligible
for directional signing shall be limited to the following:
natural phenomena; scenic attractions; historic, educational,
cultural, scientific, and religious sites; and outdoor
recreational areas any of which must be nationally or
regionally known, and of outstanding interest to the traveling
public as determined by the appropriate State agency
authority.
1.07 STANDARDS FOR OFFICIAL SIGNS AND
NOTICES
A. General
1. Permits as defined in section 1.17 of these
Regulations will not be required for official signs and
notices. An Official sign or notice shall be erected however,
only after first securing approval of the Department.
Requests for approval to erect such signs shall be made and
processed in the same manner as for directional signs (See
paragraph 1.06).
B. Official signs and notices shall be limited to the
following:
1. Signs and notices erected and maintained by
public officers or public agencies within their territorial or
zoning jurisdiction and pursuant to and in accordance with
direction or authorization by Federal, State or local law for
the purposes of carrying out an official duty or responsibility
and
2. Historical markers authorized by State law and
erected by State or local government agencies or nonprofit
historical societies.
C. The following signs are prohibited:
1. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with the
driver's 'view of approaching, merging, or intersection
traffic.
2. Signs which are erected or maintained upon
trees or utility poles or painted or drawn upon rocks or other
natural features.
3. Obsolete signs.
4. Signs which are structurally unsafe or in
disrepair.
D. Size
1. The following limits are applicable to official
signs and notices:
(a) Maximum area ... 15 square feet
(b) Maximum height ... 5 feet
(c) Maximum length ... 5 feet
2. All dimensions shall include border and trim but
shall exclude supports.
E. Lighting
1. Signs may be illuminated, subject to the
following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent or moving light or
lights are prohibited, except those giving public service
information.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
highway or which are of such intensity or brilliance as to
cause glare or to impair the vision of the driver of any motor
vehicle or which otherwise interfere with any driver's
operation of a motor vehicle are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of or obscure an official traffic sign, device, or
signal are prohibited.
F. Spacing
1. Each location of official sign or notice sign must
be approved by the Department.
2. An Official sign or notice, except when erected
by the Division, shall be located beyond 2,000 feet of an
interchange, or intersection at grade along the Interstate
System or other freeways (measured along the interstate or
freeway from the nearest point of the beginning or ending of
pavement widening at the exit from or entrance to the maintraveled
way).
3. An official sign or notice, except when erected
by the Division, shall be located beyond 2,000 feet of a rest
area, parkland, or scenic area.
1.08 STANDARDS FOR PUBLIC UTILITY AND
RAILROAD SIGNS
A. General
1. The erection of a public utility or railroad sign
may be under taken without Department approval. Such
signs will, however, be limited to warning signs,
informational signs, and notices or markers which are
customarily erected and maintained by .publicly or privately
owned public utilities or railroads as essential to their
operation.
B. Size
1. The following limits are applicable to public
utility and railroad signs:
(a) maximum area... 4 square feet
(b) Maximum height ... 4 feet
(c) Maximum length ... 4 feet
2. All dimensions include border and trim but
exclude supports.
C. Lighting
1. Signs may be illuminated, subject to the
following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent or moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1365
any portion of the traveled way of an Interstate or Primary
highway or which are of such intensity or brilliance as to
cause glare or to impair the vision of the driver of any motor
vehicle, or which otherwise interfere with any driver's
operation of a motor vehicle are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of or obscure an official traffic sign, device, or
signal are prohibited.
D. Spacing
1. The number and spacing of public utility and
railroad signs shall be limited to those customarily erected
and maintained as essential to the operation of a particular
utility or railroad.
1.09 STANDARDS FOR SERVICE CLUB AND
RELIGIOUS NOTICES
A. General
1. service club or religious notices shall be erected
or maintained only after first securing approval from the
Department. Applications shall be made and processed in
accord with procedures promulgated by the Department.
Service club and religious signs shall be limited to the
following:
(a) Signs and notices relating to meetings of
nonprofit service clubs.
(b) Signs and notices of charitable associations.
(c) Signs and notices stating place and time of
religious services.
2. The following signs are expressly prohibited:
(a) Signs located in such a manner as to
obscure or otherwise interfere with the effectiveness of an
official traffic sign, signal, or device, or obstruct or interfere
with the driver's view of approaching, merging, or
intersecting traffic.
(b) Signs which are erected or maintained upon
trees or utility poles or painted or drawn upon rocks or other
natural features.
(c) Obsolete signs.
(d) Signs-which are structurally unsafe or in
disrepair.
(e) Signs which move or have any animated or
moving parts.
(f) Signs located in rest areas, parklands or
scenic areas.
(g) Signs not in conformance with applicable
wind pressure requirements.
B. Size
1. The following limits are applicable to service
club religious notices:
(a) Maximum area ...4 square feet
(b) Maximum height ... 2 feet
(c) Maximum length ... 2 feet
C. Lighting
1. Illumination of service club and religious notices
is prohibited
D. Spacing
1. A sign may be placed on a major route entering
the vicinity of the involved activity but must be located
within one-half mile of the meeting place.
E. Number
1. Total number of service club and religious
notices to a particular locale shall not exceed two.
1.10.- STANDARDS FOR PUBLIC SERVICE SIGNS
A. General
1. Public service sign shall be erected or maintained
without first securing a permit from the Department as
required by these regulations. Applications for permits shall
be processed in accord with procedures promulgated by the
Department. A certification by the Department of Public
instruction that each shelter on which signs are or are to be
erected is needed to provide shelter for students at that
location shall accompany each application. Applications
and approval shall be processed in accord with procedures
promulgated by the Department.
B. Public Service signs shall be limited to the following:
1. Signs which identify the donor, sponsor, or
contributors of the shelter an which the sign is erected, and
or
2. Which contain safety slogans or messages which
shall occupy not less than 60 percent of the area of the sign
and
3. Which contain no other message.
C. Size
1. Public service sign shall not exceed 30 square
feet in area.
D. Lighting
1. Lighting of public service signs is prohibited.
E. Spacing
1. Only two public service signs shall be permitted
at any one location. Signs will only be approved for a shelter
provided it does not in any way obscure or otherwise
interfere with the effectiveness of an official traffic sign,
signal, or device, or which obstructs or interferes with the
driver's view of approaching, merging, or intersection traffic,
or which interferes with the safe and free flow of traffic in
any way.
1.11 - STANDARDS FOR ON PREMIISE SIGNS
A. General
1. Section 1114, Subchapter 1, Chapter 11, Title 17
of the Delaware Code exempts on premise signs from all
provisions of subchapter 1, except that such signs shall be
subject to the Rules and Regulations adopted by the
Department as required by Section 1104 of Subchapter 1,
Chapter 11 of Title 17. Consistent with the stated policy of
Chapter 11 of Title 17 for protecting the public's investment
in highways and enhancing the natural scenic beauty, the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1366 PROPOSED REGULATIONS
following shall apply to all on premise signs within the
controlled area.
B. Eligibility
1. A sign display, or device shall be considered an
on premise sign if:
(a) It is located on the same premises as the
activity or property advertised and
(b) It has as its purpose the identification of the
activity conducted on the premises or Advertises the sale or
lease of the property on which it is located.
(c) meets the size requirement as specified by
law.
C. Premise Test
1. As used in these regulations, the premises on
which an activity is conducted shall be the land occupied by
the building or other physical uses that are necessary or
customarily incident to the activity including such open
spaces as are arranged and designed to be used in connection
with such buildings or uses.
2. The following will not be considered to be a part
of the premises on which an activity is conducted and any
signs located an such land will be considered "off premise'
advertising:
(a) Any lands not used as an integral part of the
principal activity, or
(b) Any land used for a separate purpose
unrelated to the advertised activity, or
(c) Any land at some distance from the
principal activity, and in closer proximity to the highway
than the principal activity, and developed or used only in the
area of the sign site, or between the sign site and the
principal activity, and occupied solely by structures or uses
only incidental to the principal, activity, and which serve no
reasonable purpose other than to. qualify the land for signing
purposes, or
(d) Any configuration of land which is such
that it cannot be put to any reasonable use related to the
Principal activity other than for signing purposes, or
(e) Any land which is nonbuildable, such as
swamp, marsh or other wetland, or
(f) Any land which is common or private
roadway or held by easement or other lesser interest than the
premises where the advertised activity is located,
(g) With the exception of agri-produce signs,
any land in excess of 50 feet from the principal activity or
accessory uses.
D. Purpose Test
1. The following signs, displays, and devices shall
be considered as having as their purpose, (1) the
identification of the activity located on the premises or its
products or services, or (2) the sale or lease of the property
on which the sign is located:
(a) Any sign which consists solely of the name
of the establishment.
(b) Any sign which identifies the
establishments principal or accessory products or services
offered on the premises.
(c) Any sign which has no message content
other than for sale or lease.
2. Signs in the following categories shall be
considered as not fulfilling requirements and shall be treated
as "off premise" advertising:
(a) A sign which brings rental income to the
property owner, or
(b) Which consists principally of brand or trade
name advertising, or
(c) Which advertises a product only incidental
to the principal activity, or
(d) Which advertises, in addition to the
activities conducted on the premises, activities not
conducted an the premises, or
(e) One which in addition to the sale or lease
aspects of the property advertises any product or service not
located upon and unrelated to the business of selling or
leasing the land on which the sign is located.
E. Applications
1. A permit shall not be required for an "on
premise" sign. Any such sign shall be erected, however, only
after first securing written approval of the Department.
Application for permission to erect on premise signs shall be
made and processed in the same manner as applications for
directional signs. (See Section 1.06). Such signs may be
either free standing or attached to buildings providing they
meet the requirements of this section.
F. The following "on premise" signs are prohibited:
1. Signs advertising activities that are illegal under
Federal and State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with the
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon trees
or utility poles or painted or drawn upon rocks or other
natural features.
4. obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs which move or have any animated or
moving parts.
7. Signs not in conformance with-applicable wind
pressure requirements determined by adopted local building
code or 25 pounds per square foot.
G. Size
1. A sign either attached or free standing erected or
maintained upon property to identify a business conducted
thereon shall not exceed 30 square feet in area.
2. A sign advertising the sale or lease of property
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1367
shall not exceed 6 square feet in area.
3. All measurements shall include border and trim
but shall exclude supports.
H. Lighting
1. On premise signs may be illuminated subject to
the following:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or, moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or Primary
system highway or which are of such intensity or brilliance
as to cause glare or to impair the vision of the driver of any
vehicle, or which otherwise interfere with any driver's
operation of a motor vehicle are prohibited.
(c) A sign may be so illuminated provided it
does not interfere with the effectiveness of or obscure an
official traffic sign, device, or signal.
I. Spacing
1. Spacing requirements shall not apply to "on
premise" signs except that a maximum of 10 business signs
shall be allowed at any one location with a combined total of
500 square feet.
2. Free standing signs shall be limited to two per
highway and shall be permitted only along the highway or
highways to which access has been provided.
3. For sale or lease signs shall be limited to a total
of two for any one property.
4. Distance shall be measured from the edge of-the
right-of-way horizontally along a line perpendicular to the
centerline of the highway.
J. Subdivision Signs
1. Subdivision signs which basically indicate the
name of the individual suburban community are, for the
purposes of these rules and regulations, considered a type of
on premise signs and are allowable provided
(a) They are erected within the subdivision
limits,
(b) The prime intent is identification
(c) They have received prior approval from the
Division and
(d) They meet all eligibility tests specified in
this paragraph.
1.12 - STANDARDS FOR AGRI-PRODUCE SIGNS
A. General
1. Agri-produce signs shall not be allowed to be
erected on the Interstate system unless it meets fully the
requirements for "on premise" signs as set out in Section
1.11 of these regulations.
2. On other systems, agri-produce signs shall be
considered as "on premise" signs and shall be subject to the
same requirements and conditions as described for "on
premise" signs in Section 1.11 of these regulations with the
following exceptions:
(a) Free standing agri-produce signs shall be
allowed to remain erected only during the seasonal period
from May 1 through September 30. During the off season
signs of this type shall be removed.
(b) Free standing signs may be located more
than 50 feet but no more that 500 feet from the activity and
an the same property as the activity being conducted.
B. Size
1. The following limits are applicable to agriproduce
signs:
(a) Maximum area... 30 square feet
(b) Maximum height ... 8 feet
(c) Maximum length ... 8 feet
(d) Total sign area allowable per site ... 100
square feet (maximum)
C. Lighting
1. Signs may be illuminated, subject to the
following:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or Primary
highway or which are of such intensity or brilliance as to
cause glare or to impair the vision of the driver of any motor
vehicle, or which otherwise interfere with any driver's
operation of a motor vehicle is prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of or obscure an official traffic sign, device, or
signal are prohibited.
D. Spacing
1. Each location of an agri-produce sign must
be approved by the Department and shall receive written
approval prior to erection of any signs.
2. Each sign must be located within 500 feet of
the activity, on the same property and same side of highway
as the activity.
E. Number
1. Each location may have a variable number of
agri-produce signs necessary for the individual. site provided
total site sign area allowable is not exceeded. Each
application must be made to the Department and directed to
the attention of the Manager of the Roadside Control
Section. Applications will be processed in accordance with
procedures promulgated by the Department.
F. Safety of traveling public
1. At all times the Division must give prime
consideration to the safety of the traveling public and if at
any time an unsafe condition should arise, the Department
shall advise the location owner of certain positive steps
which must be undertaken within a specified duration of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1368 PROPOSED REGULATIONS
time. Failure to comply with the required improvements will
result in suspension of the approval and removal of the sign
until such time that corrective measures have been
implemented.
1.13 - STANDARDS FOR OUTDOOR ADVERTISING
SIGNS, DISPLAYS, AND DEVICES IN AREAS ZONED
INDUSTRIAL OR COMMERCIAL WITHIN THE
CONTROLLED AREA
A. General
1. Except as otherwise provided in these
regulations, no signs, displays, or devices will be permitted
to be erected or maintained unless it is within an area zoned
as commercial or industrial under authority of State law.
Permits shall be required for all such signs. Applications and
permits shall be processed in accordance with procedures
promulgated by the Department.
2. In zoned commercial and industrial areas where
the locality had regulations governing the size, spacing, and
lighting of signs, such regulations shall control and govern.
3. Signs, displays, and devices erected and
maintained within all other zoned industrial and commercial
areas shall be subject to the following conditions and
requirements.
B. The following signs shall be prohibited:
1. Signs advertising activities that are illegal under
Federal or State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with the
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon trees
or painted or drawn upon rocks or other natural features.
4. Obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs not in conformance with applicable wind
pressure requirements determined by adopted local building
code or 25 pounds per square foot, whichever is greater.
C. Size
1. The maximum area for any outdoor advertising
sign facing shall be 1,200 square feet with a maximum
height of 25 feet and a maximum length of 60 feet.
2. The area shall be measured by the smallest
square, rectangle, triangle, circle, or combination thereof
which will encompass the entire sign.
3. All dimensions shall include border and trim but
shall exclude supports.
4. A sign structure may contain one or two signs per
facing and two sign facings may be placed back to back or
V-type at one location but in no event shall the total area of
any facing exceed 1,200 square feet.
5. A sign which exceeds 600 square feet in area
may not be on the same sign facing with any other sign.
D. Lighting
1. Signs may be illuminated, subject to the
following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or moving light-or
lights are. prohibited, except those giving public service
information.
(b) Signs which are not effectively shielded as
to prevent beams or rays of light from being directed at any
portion of the traveled ways of any highway and which are
of such intensity or brilliance as to cause glare or to impair
the vision of a driver of.any motor vehicle, or which
otherwise interferes with any driver's operation of a motor
vehicle are prohibited:
(c) Signs so illuminated as to interfere with the
effectiveness of, or obstructs an official traffic sign, device,
or signal is prohibited.
(d) All such lighting shall be subject to any
other provisions relating to lighting of signs presently
applicable to all highways under the jurisdiction of the
Department.
E. Spacing
1. For Interstate and controlled access highways,
the structure for outdoor advertising sign shall be at least 500
feet from any similar structure.
2. For non-controlled access highways, outside
incorporated areas, the structure for any sign shall be at least
300 feet from any similar structure. For non-controlled
access highways within incorporated areas, the structure for
any sign shall be at least 100 feet from any similar structure.
3. when structures are separated by building or
other obstructions in such a manner that only one sign facing
located within the above spacing distances is visible from the
highway at one time, variances may upon application be
granted by the Department.
4. The minimum distance between structures shall I
be measured along the nearest edge of the pavement between
points directly-opposite the signs along each side of the
highway and is applicable only to structures located on the
same side of the highway.
5. outside incorporated areas outdoor advertising
signs shall be located 500 feet (minimum from any
interchange, intersection, at grade, safety rest area or
information center (measured along the Interstate or freeway
from the beginning or ending of pavement widening at the
exit or entrance to the main traveled way)).
6. Except for roof signs, wall signs and free
standing signs against the wall of a building, no ground signs
shall be placed within 35 feet of either highway right of way
at an intersection where they converge, unless the base of
such sign is at least 8 feet above ground level or road bed,
whichever is higher.
7. Official and "on premise" signs, as defined in-
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1369
these regulations shall not be counted nor shall
measurements be made from them for purposes of
determining compliance with spacing requirements.
F. Non-Conforming Signs
1. Legally erected signs found not to be in
compliance with the spacing requirements of this section
shall be determined to be a non-conforming sign and shall be
purchased as provided by State law and in accord with
Policy and Procedures developed and adopted by the
Department.
2. In any instance where it is found that two or more
signs do not meet spacing requirement, the date of the
issuance of the original permit shall control with the older
being allowed to remain.
G. Control by Political Subdivisions
1. At Any time that a political subdivision adopts
comprehensive zoning that provides for and enforces
regulation of size lighting and spacing of signs in
commercial and industrial zones and applies for and is
certified by the Department under the provisions of Section
1.18 of these regulations, control shall pass to such political
subdivision.
1.14 - BONDING REQUIREMENTS
A. Any non-resident or foreign corporation engaged in
the business of outdoor advertising shall be granted a permit
for the posting or display of any advertisement or the
erection, use or maintenance of any advertising structure,
only after such persons shall have furnished and filed with
the Roadside Control Section a bond payable to the State of
Delaware with surety approved by the Department, and in
the sum of $5,000.00, conditioned that said individual
company or corporation fulfills all the requirements of
law and regulations and orders of the Department relating to
the display of advertisements or the erection of advertising
structures. Such bond shall remain in full force and effect
until such obligations of such licensee to the State are
satisfied.
1.15 - MAINTENANCE OF SIGNS
A. General
1. All signs within the controlled areas shall be
maintained in a good state of repair at all times. When any
sign is damaged or falls into disrepair to the extent that
obvious repairs are needed, the owner shall be notified by
Certified Mail to make all necessary and allowable repairs. If
the sign is not repaired, rebuilt, or removed within six
months of said notification the applicable sign permit shall
lapse and become null and void in these cases where permits
are not required, such signs will be considered as being
abandoned and will be removed by the Department.
B. Alterations
1. The size and shape of signs may be altered
during repair with the exception of non-conforming signs
providing that:
(a) At least ten working days prior to beginning
of alterations written notice is furnished the Department
fully defining the nature and extent of the proposed
alterations.
(b) Alterations do not exceed permit limits and
(c) Other requirements of these regulations are
met.
C. Relocation of Signs
1. With the exception-on non-conforming signs,
signs may be relocated provided they meet all criteria and
requirements of these regulations. Any sign moved to a new
location will require a new permit and permit number and
will be considered and processed as a new sign.
D. Maintenance of Non-conforming Signs
1. General
(a) Non-conforming signs may be maintained
or rebuilt when destroyed by vandalism or by acts of God
providing they are rebuilt to substantially be the same as they
are in existence an June 30, 1970. Such signs may continue
as long as they are not abandoned, destroyed or
discontinued.
2. Discontinued signs
(a) A non-conforming sign which has
displayed obsolete or damaged advertising matter or has not
displayed advertising matter. for a period of six months
subsequent to receipt of written notice from the Department
shall be considered as a discontinued sign and shall be
required to be removed by the owner without compensation.
3. Abandoned signs
(a) Non-conforming signs which are in need of
substantial repair either to the face or support structure and
are not repaired within a period of six months after receipt of
written notice from the Department shall be considered as an
abandoned sign and shall be required to be removed by the
owner without compensation.
4. Destroyed signs
(a) Non-conforming signs which have been
damaged, except--by vandalism or by Acts of God, to the
extent that the cost of reconstructing the sign exceeds 50% of
the sign if it were constructed new shall be considered as
being destroyed and shall be required to be removed by the
owner without compensation.
5. Owners Liability
(a) Any signs listed in subparagraph 2, 3 and 4
of this paragraph removed by Division personnel, the sign
owners shall be responsible for all costs incurred.
1.16 - DESTRUCTION OF TREES
A. General
1. In no case will the destruction of trees or shrubs
within the right of way of any highway for the purpose of
increasing or enhancing the visibility of an outdoor
advertising sign be allowed.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1370 PROPOSED REGULATIONS
B. Penalties
1. Persons who undertake such action will be
(a) Subject to possible criminal prosecution
and
(b) Have the permit for the involved sign
revoked and
(c) Responsible for any corrective action
relative to the trees and shrubs deemed necessary by the
Department.
1.17 PERMITS AND FEES
A. General
1. Section 1105, Subchapter 1, Chapter 11, Title 17
of the Delaware Code includes provisions for:
(a) The Department to issue and renew permits
for each sign for a period of at least one year for the erection
and maintenance of outdoor advertising signs, displays, and
devices, and
(b) The Department to establish and collect
fees for the issuance of permits and renewals thereof in an
amount deemed necessary to defray the costs of this
operation.
B. Duration of Permits
1. Each permit shall be valid for the period
beginning January 1 and ending December 31 of each
calendar year.
2. Permits granted during any month of the year
shall expire oh December 31 of the same calendar year.
C. Fees
1. Each calendar year the Department shall review
its administrative costs and the number of signs and
determine the adequacy of present permit fees to defray the
involved costs.
2. When a change in fee is necessary, the new fee
shall become effective for all new permits immediately upon
receipt of Department approval and for renewals on January
1 of the next calendar year following approval.
3. The fee for a portion of the calendar year will be
the same as determined necessary for the entire calendar
year.
4. The Department shall notify all interested parties
of any change in fee.
1.18 - CERTIFICATION OF POLITICAL SUBDIVISIONS
A. General
1. Subsection (a) of Section 1103, Subchaptar 1,
Chapter 11, Title 17 of the Delaware Code provides for the
Department to certify a political subdivision as having
effective control when such political subdivision has
established and is enforcing regulations as to the size,
spacing, and lighting of outdoor advertising signs, displays
and devices in zoned commercial and industrial areas within
its zoning jurisdiction.
2. Until such time as a political subdivision has
been certified by the Department, full responsibility for the
control of outdoor advertising within the controlled area
shall remain with the Department. Upon certification, the
authority and responsibility for the control of outdoor
advertising shall pass to the political subdivision. A certified
political subdivision shall implement control and
surveillance procedures and maintain such records as may be
necessary to assure compliance with its regulations.
3. The Department shall have the right to inspect
any certified subdivisions procedures and records and if it is
found that a subdivision's regulations are not being enforced,
shall after 30 days written notice, resume full authority and
responsibility for control of outdoor advertising in the
controlled area.
4. Applications for certification shall be initiated by
political subdivisions and shall be in writing addressed to the
Secretary of the Department. Applications shall be processed
in accordance with procedures promulgated by the
Department.
5. The authority and responsibility for the control
and regulation of directional and other official signs and
notices as described in these regulations shall remain with
the Department.
1.19 - POLITICAL SUBDIVISION REGULATIONS
A. A political subdivision of the State of Delaware may
establish and maintain standards which are more restrictive
with respect to certain signs than the standards in these rules
and regulations.
1.20 - PENALTIES
A. Whoever violates the provisions of these regulations
shall be fined not less than $10.00 nor more than $50.00.
B. Each day that a violation is allowed to continue
beyond the legal notice shall be considered a separate
offense.
1.21 - SEPARABILITY
A. The various paragraphs of these rules and regulations
are declared to be separable and should any word, phrase,
sentence or portion be declared invalid, the remaining
portions shall not be affected, but shall remain in full force
and effect.
Outdoor Advertising Regulations
1.01 - Authority
1.02 - Applicability
1.03 - Purpose
1.04 - Definitions
1.05 - Statutory Requirements
1.06 - Standards For Directional Signs
1.07 - Standards For Official Signs And Notices
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PROPOSED REGULATIONS 1371
1.08 - Standards For Public Utility And Railroad Signs
1.09 - Standards For Service Club And Religious Notices
1.10 - Standards For Public Service Signs
1.11 - Standards For Signs Requiring A Letter Of Permission
From The State
1.12 - Standards For Agri-produce Signs
1.13 - Standards For Signs Requiring A State Outdoor
Advertising Permit
1.14 - Bonding Requirements
1.15 - Maintenance Of Signs
1.16 - Destruction Of Trees
1.17 - Permits And Fees
1.18 - Certification Of Political Subdivisions
1.19 - Political Subdivision Regulations
1.20 - Penalties
1.21 - Severability
1.01 - Authority
A. The following regulations are issued under the
authority granted to the Department by Title 17 DE Code,
Chapter 11, Subchapter I, Section 1103 (a) (2).
B. The Department of Transportation shall have overall
jurisdiction and control throughout the State subject to the
zoning process; the certification of political subdivisions;
and the boundaries of incorporated municipalities and
defined urban areas as provided in Title 17 DE Code,
Chapter 11, Subchapter I, Sections 1102 (4) and (14); 1103
(c); and 1110 (b) (2) b. 2. and c. 1. and 2. and (4); and
Subchapter II, Section 1121 (4); and Subchapter III, section
1131. Within the Department, the responsibility for
administration of the program shall rest with the Field
Services Section of the Division of Highway Operations.
C. All interpretations will be made by the Secretary of
the Department of Transportation of the State of Delaware,
and his or her decisions will be final except in those cases
where a point of law is raised.
D. With the approval of the Secretary of the
Department of Transportation of the State of Delaware, these
regulations shall become effective on 01 March, 2002.
1.02 - Applicability
A. The following regulations shall apply to all outdoor
advertising or outdoor advertising signs which are and shall
be erected and maintained within sight of the nearest edge of
the right-of-way (or within 660 feet, if within a defined
urban area) of any State-maintained roadway in this State
that is part of the Interstate or federal-aid primary systems,
and which are visible from the main traveled way of any
such roadway, as established by Title 17 DE Code, Chapter
11, Subchapter I, Section 1102 (b) (1) and (4); and as further
provided in Subchapter II, Section 1121.
B. The following regulations shall also apply to all
outdoor advertising or outdoor advertising signs which are or
shall be erected and maintained within sight of the nearest
edge of the right-of-way (or within 660 feet, if within a
defined urban area) of any State-maintained roadway in this
State that is a limited-access State toll road, and which are
visible from the main traveled way of any such roadway, as
established by Title 17 DE Code, chapter 11, subchapter III,
section 1131.
C. In order to provide equal and consistent protections
and opportunities for all citizens of this State, the following
regulations shall also apply to all outdoor advertising or
outdoor advertising signs which are and shall be erected and
maintained within sight of the nearest edge of the right-ofway
(or within 660 feet, if within a defined urban area) of
any State-maintained roadway in this State that is not a
limited-access State toll road nor part of the Interstate or
federal-aid primary systems in this State, and which are
visible from the main traveled way of any such roadway,
except that such controlled areas shall not be established, nor
shall the State regulate such advertising and signs adjacent to
the rights-of-way of such roadways that are within the
boundaries of incorporated municipalities of the State of
Delaware, as established by Title 17 DE Code, Chapter 11,
Subchapter I, Section 1103 (c).
1.03 - Purpose
A. In Section 1101, Subchapter I, Chapter 11, Title 17
of the Delaware Code, the General Assembly has
established that it is in the public's interest to control the
erection and maintenance of outdoor advertising signs,
displays, and devices in areas adjacent to the Interstate and
primary systems in order to protect the public investment in
such highways.
B. The General Assembly, by enactment of Section
1103, Subchapter I, Chapter 11, Title 17 of the Delaware
Code, has directed the Department to enforce the provisions
of Chapter 11 and to issue regulations to implement the
policy and accomplish the purposes of the Chapter.
C. The following regulations are issued in response to
that directive and to clarify and implement the Department's
policy regarding the control of outdoor advertising.
1.04 - Definitions
A. For the purposes of these regulations, the following
definitions shall apply:
1. "Outdoor advertising" or "outdoor advertising
signs" or "sign" shall mean and shall include any outdoor
sign, light, display, device, figure, painting, drawing,
message, placard, poster, billboard, or other thing which is
designed, intended, or used to advertise or inform, any part
of the advertising or informative contents of which is visible
from any place on the main traveled way of an Interstate or
Federal-aid primary highway, or any other State-maintained
roadway.
2. "Interstate system" means that portion of the
National System of Interstate and Defense Highways located
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1372 PROPOSED REGULATIONS
within the State of Delaware and officially designated as
such, or as may hereafter be designated as such by the
Department and approved by the Secretary of Transportation
of the United States pursuant to the provisions of Title 23,
United States Code.
3. "Primary system" means that portion of
connected main highways of this State officially designated
as such as of June 1, 1991, and any roads of the National
Highway System as are now or may hereafter be designated
as such by the Department and approved by the Secretary of
Transportation of the United States, pursuant to Title 23,
United States Code.
4. A "controlled area" shall mean, and "controlled
areas" shall include, any area inside the boundaries of the
State of Delaware that is within sight of an edge of a rightof-
way of any State-maintained roadway, or, if within an
urban area (as defined in 23 US Code 101 [a] ), within 660
feet of an edge of a right-of-way of any State-maintained
roadway, except that controlled areas shall not be established
adjacent to the rights-of-way of roadways that are not
limited-access State toll roads or parts of the Interstate or
federal-aid primary systems, where such roadways are
within the boundaries of incorporated municipalities of the
State of Delaware, as established by Title 17 DE Code,
Chapter 11, Subchapter I, Section 1103 (c).
5. "State law" or "Delaware law" means a State
constitutional provision or statute; or an ordinance, rule, or
regulation enacted or adopted by a State agency or political
subdivision of a State pursuant to a State constitutional
provision or statute.
6. "Safety rest area" means an area or site
established and maintained within or adjacent to a right-ofway,
by or under public supervision or control, for the
convenience of the traveling public.
7. "Sign panel" or "panel" means a single
advertising message on a rigid medium, physically
and / or visually separate from other such messages by edges
of materials or visual borders
or boundaries; trim; etc.
8. "Department" means the Department of
Transportation of the State of Delaware.
9. "Division" means the Division of Highway
Operations under the Department of Transportation.
10. "Section" means the Field Services Section
under the Division of Highway Operations.
11. "Nonconforming sign" is one which was
lawfully erected, but which does not comply with the
provisions of the laws of the State of Delaware or State
regulations enacted at a later date, or which later fails to
comply with such laws or regulations due to changed
conditions.
12. "Illegal sign" means any sign which was
erected and / or is maintained in violation of Delaware law.
13. "Illuminated sign" means any sign that is
lighted internally or externally, and shall be defined as
illuminated whether or not the light is attached to the sign
structure.
14. "Centerline of the highway" means (1) a line
equidistant from the edges of a median separating the main
traveled ways of a divided highway; or (2) the centerline of
the main traveled way of a nondivided highway; or (3) the
centerline of each of the main traveled ways of a divided
highway separated by more than the normal median width or
constructed on independent alignment.
15. "Main traveled way" means the traveled way of
a highway on which through-traffic is carried. In the case of
a divided highway, the traveled way of each of the separated
roadways for traffic in opposite directions is a main traveled
way. It does not include such facilities as frontage roads,
turning roadways, or parking areas.
16. "Scenic area" means any area of particular
scenic beauty or historical significance as determined by the
Federal, State, or local officials having jurisdiction thereof,
and includes interests in lands which have been acquired for
the restoration, preservation, and enhancement of scenic
beauty.
17. "Parkland" means any publicly owned land
which is designated or used as a public park, recreation area,
wildlife or waterfowl refuge, or historic site.
18. "Legible" means capable of being read without
visual aid by a person of normal visual acuity.
19. "Maintain" means to allow to exist.
20. "Freeway" means a divided arterial highway
for through-traffic, with full control of access.
21. "Abandoned sign" means any sign in which the
owner has not demonstrated an interest by maintaining it in
good condition.
22. "Zoned commercial or industrial areas" means
those areas which are zoned for business, industry,
commerce or trade pursuant to a State regulation or local
zoning ordinance.
23. "Lease (license, contract, or easement)" means
an agreement in writing by which possession or use of land
or interests therein is given by the owner to another person
for a specified period of time.
24. "Official signs and notices" means signs and
notices erected and maintained by public officers or public
agencies within their territorial or zoning jurisdiction,
pursuant to and in accordance with direction or authorization
contained in Federal, State or local law, for the purposes of
carrying out an official duty or responsibility. Historical
markers authorized by State law and erected by State or local
government agencies or nonprofit historical societies may be
considered official signs.
25. "Public utility and railroad signs" means
warning signs, informational signs, notices or markers which
are customarily erected and maintained by publicly or
privately owned public utilities or railroads as essential to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1373
their operations.
26. "Service club and religious notices" means
signs and notices which relate to meetings of nonprofit
service clubs or charitable associations, or religious services.
27. "Public service signs" means signs located on
school bus stop shelters.
28. "Directional signs" means signs containing
directional information about public places owned or
operated by Federal, State or local governments or their
agencies; publicly or privately owned natural phenomena;
historic, cultural, scientific, educational, or religious sites;
areas of natural scenic beauty; and areas which are naturally
suited for outdoor recreation; for which such signs are
deemed to be in the interest of the traveling public.
29. "On-premises signs" means those signs,
displays and devices advertising the sale or lease of property
upon which they are located; or those signs, displays, and
devices advertising activities conducted on the property on
which they are located.
30. "Double-faced; back-to-back; and V-type
signs" shall mean those configurations of multiple sign
structures as those terms are commonly understood, except
that in no instance shall these terms include two or more
signs which are not (1) in the same ownership; (2) physically
contiguous; (3) connected by the same structure or
crossbracing; or (4) in the case of back-to-back or V-type
signs, less than 15 feet apart at their nearest points.
31. "Agri-produce signs" means those signs located
on the property of a farmer, indicating the sale of seasonal
agricultural products.
32. "Information center" means an area or site
established and maintained at a safety rest area for the
purpose of providing information to the public about places
of interest within the State, and other information the
Department deems desirable.
33. "Erect" means to construct, build, raise,
assemble, place, affix, attach, create, paint, draw, or in any
other way bring into being or establish, but it shall not
include any of the foregoing activities when performed as an
incident to the non-electro-mechanical change of advertising
message or customary maintenance of a sign or sign
structure.
34. "Commercial or industrial activities for
purposes of unzoned commercial or industrial areas" means
those activities generally recognized as commercial or
industrial by zoning authorities within the State of Delaware,
except that none of the following activities shall be
considered commercial or industrial:
(a) Outdoor advertising structures.
(b) Forestry, ranching, grazing, and farming
including, but not limited to, wayside fresh
produce stands.
(c) Transient or temporary activities.
(d) Activities more than 600 feet from the
nearest edge of the right-of-way along Interstate and
Federal-aid primary routes and all other State-maintained
roadways.
(e) Activities conducted in buildings
principally used as residences.
(f) Railroad tracks and minor sidings.
(g) Activities not visible from the main
traveled way.
35. "Customary maintenance" means the action
necessary to keep a sign in good condition by (1)
replacement of parts damaged or worn by age, or (2)
painting of areas exposed to the weather (as the major
portion of the sign); but shall not include either (a)
maintenance which would be necessary for signs over 50%
damaged (except by vandalism or Act of God circumstances)
or in 50% disrepair, or (b) maintenance which would
increase the size or monetary value of the sign.
36. "Free-standing sign" means any sign not
attached or affixed to a building for its principal means of
support.
37. "Political subdivision" means any municipal or
county government duly established under the provisions of
the Delaware Code.
38. "Sign facing" or "face" means a side (such as
"the front" or "the back" or "the north-facing side") of a sign,
to or upon which one or more sign panels are or may be
affixed or attached.
39. "Electro-mechanical variable-message sign"
means a sign that displays different messages, one at a time,
within defined time intervals, and that changes messages by
mechanical and / or electrical means.
40. "Static-message sign" means a sign that
displays a message that does not change except by
replacement, re-painting, or similar means.
41. "Time of message display" means the length of
time that a single message is displayed by an electromechanical
variable-message sign.
42. "Time interval between messages" means the
time interval required for one message on an electromechanical
variable-message sign to finish changing to a
different message.
43. "Urban area" or "urban boundaries" is as
defined in 23 U.S.C. 101 (a).
44. "Manually-changeable-message sign" means a
sign, the message of which can be
changed (such as by the replacement of individual letters) by
hand (or with the assistance of a hand-operated tool), and
only by hand.
45. "Obsolete" means a sign that identifies or
advertises a business or other entity that has relocated or no
longer exists, or products or services that are no longer
available, or events or activities that have transpired.
46. "State" means the State of Delaware.
47. "Complete message" means a message that
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1374 PROPOSED REGULATIONS
communicates a complete idea or concept, and not one
which suggests or implies that more information will be
displayed, subsequent to that which is currently being
displayed (as by an electro-mechanical variable-message
sign) that will complete or continue a message begun by the
current display.
48. "Decorative subdivision entrance signs" are
those signs, free-standing or attached to a decorative
structure (such as, but not limited to, a decorative gate or
headwall), that identify a residential housing subdivision,
and that have no other message or content than the name of
the subdivision.
1.05 - Statutory Requirements
A. Section 1121, Subchapter II, Chapter 11, Title 17 of
the Delaware Code provides that signs, displays or devices
within the controlled area and visible from the main traveled
way of the Interstate and primary systems shall be limited to
the following types:
1. Official signs and notices; public utility and
railroad signs; service club and religious notices; public
service signs; and directional signs.
2. Those signs, displays and devices advertising the
sale or lease of the real property upon which they are
located.
3. Those signs, displays and devices advertising
activities conducted on the real property upon which they are
located.
4. Signs, displays, and devices located either (1) in
controlled areas adjacent to the Interstate system and within
the boundaries of incorporated municipalities, as such
boundaries existed on September 21, 1959, wherein the use
of real property is subject to municipal regulations and
control, which are zoned industrial and commercial; or (2) in
other controlled areas adjacent to the Interstate system zoned
industrial or commercial which were zoned industrial or
commercial as of September 21, 1959.
5. Signs, displays and devices located in controlled
areas adjacent to highways of the primary system which are
zoned industrial or commercial.
6. Signs, displays and devices located in unzoned
commercial and industrial controlled areas adjacent to
highways of the primary system and defined by regulations
to be promulgated by the Department.
7. Any school bus waiting shelter displaying a sign
provided such sign does not exceed 32 square feet in area
and with a limit of 2 signs per shelter at its present location.
Should the Department of Education determine that there is
no longer a need for a waiting shelter at its present location,
the exemption provided by this paragraph shall then
terminate.
B. As per rule 1.02 ("Applicability"), part 'C,' the
limitations established by this rule (1.05) shall also apply
within the controlled areas of all other State-maintained
roadways, except that controlled areas shall not be
established, nor shall outdoor advertising or outdoor
advertising signs be regulated by the State, adjacent to the
rights-of-way of roadways that are not limited-access State
toll roads or parts of the Interstate or federal-aid primary
systems, where such roadways are within the boundaries of
incorporated municipalities of the State of Delaware, as
established by Title 17 DE Code, Chapter 11, Subchapter I,
Section 1103 (c).
1.06 - Standards For Directional Signs
A. General: Permits as described in section 1.17 of
these regulations shall not be required for directional signs.
1. A directional sign shall be erected only after
first securing the written approval of the Department.
Requests for approval to erect a directional sign shall be in
writing, directed to the Department for the attention of the
Manager of the Roadside Control Section. All requests shall
be processed in accordance with procedures promulgated by
the Department.
2. The following directional signs are prohibited:
(a) Signs advertising activities that are illegal
under Federal or State laws or regulations in effect at the
location of those signs or at the location of the activity.
(b) Signs located in such a manner as to
obscure or otherwise interfere with the effectiveness of an
official traffic sign, signal, or device; or to obstruct or
interfere with a driver's view of approaching, merging, or
intersecting traffic.
(c) Signs which are erected or maintained
upon trees or utility poles, or are attached to or painted or
drawn upon rocks or other natural features.
(d) Obsolete signs.
(e) Signs which are structurally unsafe or in
disrepair.
(f) Signs which move or have any animated or
moving parts.
(g) Signs located in rest areas, parklands or
scenic areas.
(h) Signs not in conformance with applicable
wind pressure requirements as specified by adopted local
building code, or 25 pounds per square foot (whichever is
greater).
(i) Signs for privately owned facilities unless
such facilities are determined to be eligible for signing under
the criteria and methods described in part 'F' of this section
(1.06).
B. Size
1. The following limits shall apply to directional
signs:
(a) Maximum area: 150 square feet
(b) Maximum height: 20 feet
(c) Maximum length: 20 feet
2. All dimensions shall include border and trim but
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1375
shall exclude supports.
C. Lighting
1. Directional signs may be illuminated, subject to
the following:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
system highway or any other State-maintained roadway, or
which are of such intensity or brilliance as to impair the
vision of a driver of a motor vehicle, or which otherwise
interfere with a driver's operation of a motor vehicle, are
prohibited.
(c ) No sign may be so illuminated as to
interfere with the effectiveness of, or obscure, an official
traffic sign, device or signal.
D. Spacing
1. Each location of a directional sign must be
approved by the Department.
2. A directional sign must be located beyond 2,000
feet of an interchange or intersection at grade along the
Interstate system or other freeways (measured along the
Interstate or freeway from the nearest point of the beginning
or ending of pavement widening at the exit from or entrance
to the main traveled way), unless erected by the Department.
3. A directional sign must be located beyond 2,000
feet of a rest area, parkland, or scenic area (measured as for
an interchange or intersection at grade, as described above),
unless erected by the Department.
4. Number and mileage requirements
(a) Directional signs facing the same direction
of travel must be placed more than 1 mile apart.
(b) A maximum of three directional signs
pertaining to the same activity and facing the same direction
of travel may be erected along a single route approaching the
activity.
(c) Signs located adjacent to the Interstate
system must be within 75 air miles of the activity.
(d) Signs located adjacent to the primary
system must be within 50 air miles of the activity.
5. In determining the distance between signs facing
in the same direction, and those within a seventy-five air
mile radius, signs beyond the controlled area shall not be
considered.
6. Signs legally in place within the controlled area
shall be considered as though they were erected under these
regulations.
E. Message content
1. The message of directional signs shall be limited
to the identification of the attraction or activity and
directional information useful to the traveler in locating the
attraction, such as mileage, route numbers, or exit numbers.
Descriptive words or phrases, or pictorial or photographic
representations of the activity or its environs, are prohibited.
F. Criteria for eligibility
1. The criteria for determining whether or not a
privately owned facility is eligible for directional signing
shall be that criteria presently utilized or hereafter adopted
by one of the existing State agencies where primary purpose
is the control and administration of the type of specific
unique phenomena or site for which a directional sign
application may be made.
2. A determination by the State agency to which a
request is referred as to whether or not a privately owned
facility is eligible for directional signing shall be binding on
the Department.
G. Eligible activities
1. Privately owned activities or attractions eligible
for directional signing shall be limited to the following:
natural phenomena; scenic attractions; historic, educational,
cultural, scientific, and religious sites; and outdoor
recreational areas, any of which must be nationally or
regionally known, and of outstanding interest to the traveling
public, as determined by the appropriate State agency
authority.
1.07 - Standards For Official Signs And Notices
A. General: Permits as described in section 1.17 of
these regulations shall not be required for official signs and
notices.
1. An official sign or notice shall be erected only
after first securing written approval of the Department.
Requests for approval to erect such signs shall be made and
processed in the same manner as for directional signs, as
described in section 1.06 of these regulations.
B. Official signs and notices shall be limited to the
following:
1. Signs and notices erected and maintained by
public officers or public agencies within their territorial or
zoning jurisdiction and pursuant to and in accordance with
direction or authorization by Federal, State or local law for
the purposes of carrying out an official duty or
responsibility.
2. Historical markers authorized by State law and
erected by State or local government agencies or nonprofit
historical societies.
C. The following signs are prohibited:
1. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device; or to obstruct or interfere with
a driver's view of approaching, merging, or intersecting
traffic.
2. Signs which are erected or maintained upon
trees or utility poles, or are attached to or painted or drawn
upon rocks or other natural features.
3. Obsolete signs.
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1376 PROPOSED REGULATIONS
4. Signs which are structurally unsafe or in
disrepair.
D. Size
1. The following limits shall apply to official signs
and notices:
(a) Maximum area: 15 square feet
(b) Maximum height: 5 feet
(c) Maximum length: 5 feet
2. All dimensions shall include border and trim but
shall exclude supports.
E. Lighting
1. Official signs and notices may be illuminated,
subject to the following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent or moving light or
lights are prohibited, except those giving only public service
information.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
highway or any other State-maintained roadway, or which
are of such intensity or brilliance as to cause glare or to
impair the vision of the driver of a motor vehicle, or which
otherwise interfere with a driver's operation of a motor
vehicle, are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of, or obscure, an official traffic sign, device,
or signal, are prohibited.
F. Spacing
1. Each location of an official sign or notice must
be approved by the Department.
2. An official sign or notice, except when erected
by the Department, shall be located beyond 2,000 feet of an
interchange or intersection at grade along the Interstate
system or other freeways (measured along the interstate or
freeway from the nearest point of the beginning or ending of
pavement widening at the exit from or entrance to the main
traveled way).
3. An official sign or notice, except when erected
by the Department, shall be located beyond 2,000 feet of a
rest area, parkland, or scenic area (measured as for an
interchange or intersection at grade, as described above).
1.08 - Standards For Public Utility And Railroad Signs
A. General: The erection of a public utility or railroad
sign may be undertaken without Department approval.
1. Such signs will be limited to warning signs,
informational signs, and notices or markers which are
customarily erected and maintained by publicly or privately
owned public utilities or railroads as essential to their
operation.
B. Size
1. The following limits shall apply to public utility
and railroad signs:
(a) Maximum area: 4 square feet
(b) Maximum height: 4 feet
(c) Maximum length: 4 feet
2. All dimensions shall include border and trim but
shall exclude supports.
C. Lighting
1. Signs may be illuminated, subject to the
following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent or moving light or
lights are prohibited (except railroad crossing signals).
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
highway or any other State-maintained roadway, or which
are of such intensity or brilliance as to cause glare or to
impair the vision of the driver of a motor vehicle, or which
otherwise interfere with a driver's operation of a motor
vehicle, are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of, or obscure, an official traffic sign, device,
or signal, are prohibited.
D. Number and spacing
1. The number and spacing of public utility and
railroad signs shall be limited to those customarily erected
and maintained as essential to the operation of a particular
utility or railroad.
1.09 - Standards For Service Club And Religious Notices
A. General: Service club or religious notices shall be
erected or maintained only after first securing approval from
the Department.
1. Requests for permission must be made in writing
to the Department, directed to the attention of the Manager
of the Roadside Control Section. Applications will be
processed in accordance with procedures promulgated by the
Department.
B. Service club and religious notice signs shall be
limited to the following:
1. Signs and notices relating to meetings of
nonprofit service clubs.
2. Signs and notices of charitable associations.
3. Signs and notices stating place and time of
religious services.
C. The following service club and religious notice signs
are prohibited:
1. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or to obstruct or interfere with
a driver's view of approaching, merging, or intersecting
traffic.
2. Signs which are erected or maintained upon
trees or utility poles, or are attached to or painted or drawn
upon rocks or other natural features.
3. Obsolete signs.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1377
4. Signs which are structurally unsafe or in
disrepair.
5. Signs which move or have any animated or
moving parts.
6. Signs located in rest areas, parklands or scenic
areas.
D. Size
1. The following limits shall apply to service club
and religious notices:
(a) Maximum area: 4 square feet
(b) Maximum height: 2 feet
(c) Maximum length: 2 feet
E. Lighting
1. Illumination of service club and religious notices
is prohibited.
F. Spacing
1. A sign may be placed on a major route entering
the vicinity of the involved activity, but must be located
within one-half mile of the meeting place.
G. Number
1. Total number of service club and religious
notices about a particular locale shall not exceed two.
1.10 - Standards For Public Service Signs
A. General: Public service signs shall be erected or
maintained only after first securing approval from the
Department.
1. Requests for permission must be made in writing
to the Department, directed to the attention of the Manager
of the Roadside Control Section. Applications will be
processed in accordance with procedures promulgated by the
Department.
2. A certification by the Delaware State
Department of Education that each shelter on which signs
are or are to be erected is needed to provide shelter for
students at that location, shall accompany each application.
B. Public service signs shall be limited to the following:
1. Signs which identify the donor, sponsor, or
contributors of the shelter on which the sign is erected; and
2. Which contain safety slogans or messages which
shall occupy not less than 60 percent of the area of the sign;
and
3. Which contain no other message.
C. Size
1. Public service signs shall not exceed 32 square
feet in area.
D. Lighting
1. Illumination of public service signs is
prohibited.
E. Number and placement
1. Only two public service signs shall be permitted
at any one location. A sign or signs will only be approved for
a shelter if the shelter does not in any way obscure or
otherwise interfere with theeffectiveness of an official traffic
sign, signal, or device; obstruct or interfere with a driver's
view of approaching, merging, or intersecting traffic; or
interfere with the safe and free flow of traffic in any way.
1.11 - Standards For Signs Requiring A Letter Of Permission
From The State
A. General: Section 1114, Subchapter I, Chapter 11,
Title 17 of the Delaware Code exempts certain signs from all
provisions of Subchapter I, except that such signs shall be
subject to the regulations established by the Department as
required by Section 1103 of Subchapter I, Chapter 11 of
Title 17.
B. Eligibility
1. An outdoor advertising sign, display, or device
in a controlled area shall require a letter of permission from
the State, but shall not require a State outdoor advertising
permit, if:
(a) It is located on the same premises as the
activity or property advertised; and
(b) It has as its sole purpose the identification
of the activity conducted on the premises, or the
advertisement of the sale or lease of the property on which it
is located; and
(c) It meets the size requirements as specified
in Title 17 DE Code, Chapter 11, Subchapter I , Section
1114 (1) or (2); or
(d) It is a sign of one of the classes of signs
specified as excepted in Title 17 DE Code, Chapter 11,
Subchapter I , Section 1114 (3) through (7).
C. Premise test
1. As used in these regulations, the premises on
which an activity is conducted shall be the land occupied by
the building or other physical uses that are necessary or
customarily incident to the activity, including such open
spaces as are arranged and designed to be used in connection
with such buildings or uses.
2. The following will not be considered to be a part
of the premises on which an activity is conducted, and any
signs located on such land will be considered signs requiring
a State outdoor advertising permit:
(a) Any land not used as an integral part of the
principal activity; or
(b) Any land used for a separate purpose
unrelated to the advertised activity; or
(c) Any land at some distance from the
principal activity, and in closer proximity to the roadway
than the principal activity, and developed or used only in the
area of the sign site, or between the sign site and the
principal activity, and occupied solely by structures or uses
only incidental to the principal activity, and which serve no
reasonable purpose other than to qualify the land for signing
purposes; or
(d) Any configuration of land which is such
that it cannot be put to any reasonable use related to the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1378 PROPOSED REGULATIONS
principal activity other than for signing purposes; or
(e) Any land which is nonbuildable, such as
swamp, marsh or other wetland; or
(f) Any land which is common or private
roadway or held by easement or other lesser interest than the
premises where the advertised activity is located; or
(g) Any land in excess of 50 feet from the
principal activity or accessory uses (except that this
restriction shall not apply to agri-produce signs).
D. Purpose test
1. The following signs, displays, and devices shall
be considered as having as their purpose (1) the
identification of the activity located on the premises or its
products or services; or (2) the sale or lease of the property
on which the sign is located:
(a) Any sign which consists solely of the name
of the establishment.
(b) Any sign which identifies the
establishment's principal or accessory products or services
offered on the premises.
(c) Any sign which has no message content
other than "for sale" or "for lease."
2. Signs in the following categories shall be
considered as not fulfilling purpose requirements and shall
be deemed to be, and regulated as, signs requiring a State
outdoor advertising permit:
(a) A sign which brings rental income to the
property owner; or
(b) Which consists principally of brand or trade
name advertising; or
(c) Which advertises a product only incidental to
the principal activity; or
(d) Which advertises, in addition to the activities
conducted on the premises, activities not conducted on the
premises; or
(e) One which, in addition to the sale or lease
aspects of the property, advertises any product or service not
located upon, or unrelated to, the business of selling or
leasing the land on which the sign is located.
E. Applications
1. No sign, unless it is specifically exempted from
State regulation by DE Code or the terms of these
regulations, shall be erected before written approval is
secured from the Department.
2. Each application must be made in writing to the
Department, directed to the attention of the Manager of the
Roadside Control Section. Applications will be processed in
accordance with procedures promulgated by the Department.
F. The following are prohibited:
1. Signs advertising activities that are illegal under
Federal and State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with a
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon
trees or utility poles, or are attached to or painted or drawn
upon rocks or other natural features.
4. Obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs which move or have any animated or
moving parts.
7. Signs not in conformance with applicable wind
pressure requirements determined by adopted local building
code or 25 pounds per square foot, whichever is greater.
G. Size
1. In order not to require a State outdoor
advertising permit, a sign (either attached or free-standing)
erected or maintained upon property to identify a business
conducted thereon may not exceed 32 square feet in total
area (sum of all faces and / or panels).
2. A sign advertising the sale or lease of property
may not exceed 12 square feet (sum of all faces and / or
panels) for a residential zoned property and 32 square feet
for any other zoning.
3. All measurements shall include border and trim,
but shall exclude supports.
4. Signs exceeding these size limits shall be
considered as not fulfilling size requirements and shall be
deemed to be, and regulated as, signs requiring a State
outdoor advertising permit.
H. Lighting
1. Signs may be illuminated subject to the
following:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent, or, moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
highway or any other State-maintained roadway, or which
are of such intensity or brilliance as to cause glare or to
impair the vision of the driver of a motor vehicle, or which
otherwise interfere with a driver's operation of a motor
vehicle, are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of, or obscure, an official traffic sign, device,
or signal, are prohibited.
I. Spacing
1. Spacing requirements shall not apply except that
a maximum of 10 signs, with a combined total area of not
more than 500 square feet, shall be allowed at any one
location.
2. Free-standing signs shall be limited to two per
highway and shall be permitted only along the highway or
highways to which access is provided.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1379
3. "For-sale" or "for-lease" signs shall be limited to
a total of two for any one property.
J. Decorative subdivision entrance signs
1. Decorative subdivision entrance signs which
state the name of an individual suburban community are
allowable, provided:
(a) They are erected within the subdivision
limits.
(b) The sole intent is identification.
(c) They have received prior approval from the
Department.
(d) They meet all tests and requirements
established by this rule (1.11).
1.12 - Standards For Agri-produce Signs
A. General: Agri-produce signs may not be erected on
the Interstate system unless they meet fully the requirements
for signs requiring a letter of permission from the State, but
not a State outdoor advertising permit, as established in
section 1.11 of these regulations.
1. Each application must be made in writing to the
Department, directed to the attention of the Manager of the
Roadside Control Section. Applications will be processed in
accordance with procedures promulgated by the Department.
2. On other systems, agri-produce signs shall be
considered as signs requiring a letter of permission from the
State and shall be subject to the same requirements and
conditions as described for signs requiring a letter of
permission from the State, but not a State outdoor
advertising permit, in section 1.11 of these regulations, with
the following exceptions:
a) Free-standing agri-produce signs shall be
allowed to remain erected only during the seasonal period
from May 1 through September 30. During the off-season,
signs of this type shall be removed.
(b) Free-standing agri-produce signs may be
located more than 50 feet, but not more than 500 feet, from
the activity, and on the same property as the activity being
conducted.
B. The following signs are prohibited:
1. Signs advertising activities that are illegal under
Federal and State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with a
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon
trees or utility poles, or are attached to or painted or drawn
upon rocks or other natural features.
4. Obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs which move or have any animated or
moving parts.
7. Signs not in conformance with applicable wind
pressure requirements determined by adopted local building
code or 25 pounds per square foot, whichever is greater.
C. Size
1. The following limits shall apply to agri-produce
signs:
(a) Maximum area: 32 square feet
(b) Maximum height: 8 feet
(c) Maximum length: 8 feet
(d) Total sign area allowable per property: 100
square feet (maximum)
D. Lighting
1. Signs may be illuminated, subject to the
following:
(a) Signs which contain, include, or are illuminated
by any flashing, intermittent, or moving light or lights are
prohibited.
(b) Signs which are not effectively shielded so as to
prevent beams or rays of light from being directed at any
portion of the traveled way of an Interstate or pimary
highway or any other State-maintained roadway, or which
are of such intensity or brilliance as to cause glare or to
impair the vision of the driver of a motor vehicle, or which
otherwise interfere with a driver's operation of a motor
vehicle, are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of, or obscure, an official traffic sign, device,
or signal, are prohibited.
E. Spacing
1. Each location of an agri-produce sign must be
approved by the Department, and written approval must be
received prior to erection of any signs.
2. Each sign must be located within 500 feet of the
activity, on the same property and on the same side of the
roadway as the activity.
F. Number
1. Each location may have a variable number of
agri-produce signs, provided the total sign area allowable per
property is not exceeded.
G. Safety of the traveling public
1. At all times the Department must give prime
consideration to the safety of the traveling public and if at
any time an unsafe condition should arise, the Department
shall advise the location owner of certain positive steps
which must be undertaken within a specified duration of
time. Failure to comply with the required improvements will
result in suspension of the approval and removal of the sign
or signs until such time that corrective measures have been
implemented.
1.13 - Standards For Signs Requiring A State Outdoor
Advertising Permit
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1380 PROPOSED REGULATIONS
I. Static-message Signs
A. General: Except as otherwise provided in DE Code
and these regulations, no static-message outdoor advertising
signs, displays, or devices shall be permitted to be erected or
maintained except within controlled areas zoned as
commercial or industrial under authority of State law; or
pursuant to Title 17 DE Code, Chapter 11, Subchapter II,
Section 1121 (6).
1. Except as otherwise provided in DE Code and
these regulations, State outdoor advertising permits shall be
required for all such signs. Applications and permits shall be
processed in accordance with procedures promulgated by the
Department.
2. In zoned commercial and industrial areas where
the political subdivision has regulations governing the size,
spacing and lighting of outdoor advertising signs, such
regulations shall control and govern in political subdivisions
certified for the regulation of outdoor advertising by the
Secretary of Transportation of the United States. Absent
such certification, both local and State regulations shall
apply.
3. This category includes manually-changeablemessage
signs.
B. Order of consideration of applications
1. Applications for outdoor advertising permits
will be processed in the order that they are received by the
Department. Applications will be date-and-time-stamped
upon receipt by the Department.
2. If applications for State outdoor advertising
permits are received by the Department for two or more
signs in such proximity to each other, or to existing
permitted signs, or for any other reason such that only one of
them may receive a State outdoor advertising permit, they
will be considered in the order in which they are received by
the Department, and the first to be found to be eligible for a
state outdoor advertising permit shall be issued one.
3. An application rejected for incompleteness,
inaccuracy or other valid cause shall not retain its place
before other competing applications (if any), but, if
resubmitted, will be considered a new application as of the
date and time it is received.
C. The following static-message signs are prohibited:
1. Signs advertising activities that are illegal under
Federal or State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with a
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon
trees or utility poles, or are attached to or painted or drawn
upon rocks or other natural features.
4. Obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs not in conformance with applicable wind
pressure requirements determined by adopted local building
code, or 25 pounds per square foot, whichever is greater.
7. Signs which move or have any animated or
moving parts.
D. Size
1. The maximum area for any static-message
outdoor advertising sign facing shall be 1,200 square feet,
with a maximum height of 25 feet or a maximum length of
60 feet.
2. The area shall be measured by the smallest
square, rectangle, triangle, circle, or combination thereof
which will encompass the entire sign.
3. All dimensions shall include border and trim but
shall exclude supports.
4. A static-message sign structure may contain one
or two static-message sign panels per facing and two sign
facings may be placed back-to-back or V-type at one
location, but in no event shall the total area of any facing
exceed 1,200 square feet.
5. A static-message sign panel which exceeds 600
square feet in area may not be on the same sign facing with
any other panel.
E. Lighting
1. Static-message signs may be illuminated, subject
to the following restrictions:
(a) Signs which contain, include, or are
illuminated by any flashing, intermittent or moving light or
lights are prohibited.
(b) Signs which are not effectively shielded so
as to prevent beams or rays of light from being directed at
any portion of the traveled way of an Interstate or primary
highway or any other State-maintained roadway, or which
are of such intensity or brilliance as to cause glare or to
impair the vision of the driver of a motor vehicle, or which
otherwise interfere with a driver's operation of a motor
vehicle, are prohibited.
(c) Signs so illuminated as to interfere with the
effectiveness of, or obscure, an official traffic sign, device,
or signal, are prohibited.
(d) All such lighting shall be subject to any
other provisions relating to lighting of signs presently
applicable to all highways under the jurisdiction of the
Department.
F. Spacing
1. Within controlled areas of Interstate and other
State-maintained controlled-access highways, the structure
for any static-message outdoor advertising sign requiring a
State outdoor advertising permit shall be at least 500 feet
from any other such structure.
2. Within controlled areas of State-maintained noncontrolled-
access roadways outside of incorporated
municipalities, the structure for any static-message outdoor
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1381
advertising sign requiring a State outdoor advertising permit
shall be at least 300 feet from any other such structure.
3. Within controlled areas of State-maintained noncontrolled-
access roadways that are part of the federal-aid
primary system and are within the boundaries of
incorporated municipalities, the structure for any staticmessage
outdoor advertising sign requiring a State outdoor
advertising permit shall be at least 100 feet from any other
such structure.
4. When static-message outdoor advertising signs
requiring State outdoor advertising permits are separated by
buildings or other permanent obstructions in such a manner
that only one sign facing located within the above spacing
distances is visible from the roadway at one time, the above
spacing distances shall not apply.
5. The distances between static-message outdoor
advertising signs requiring State outdoor advertising permits
shall be measured along the nearest edge of the pavement
between points directly opposite the signs and shall apply
only to outdoor advertising structures located on the same
side of a roadway.
6. Outside of incorporated municipalities, any
outdoor advertising signs shall be located 500 feet
(minimum distance) from any interchange, intersection at
grade, safety rest area or information center on any Interstate
or primary roadway (as measured along the Interstate or
freeway from the beginning or ending of pavement widening
at the exit from or entrance to the main traveled way).
7. Except for a free-standing sign against the wall
of a building, no outdoor advertising sign shall be placed
within 35 feet of any highway rights-of-way at an
intersection where two or more converge, unless the bottom
of such a sign is at least 8 feet above ground level or road
grade, whichever is higher.
8. Signs not requiring State outdoor advertising
permits, as defined in these regulations, shall not be counted,
nor shall measurements be made from them, for purposes of
determining compliance with spacing requirements for signs
requiring State outdoor advertising permits.
9. Except for signs, displays or devices advertising
the sale or lease of, or activities conducted upon, the real
property where they are located, or any outdoor advertising
signs displayed on any school bus waiting shelter located
and approved by the State Department of Education, as
provided in 17 DE Code 11, Section 1108 (c), no outdoor
advertising sign, display or device requiring a State outdoor
advertising permit shall be erected within 25 feet of the
right-of-way line of any public highway if visible from any
portion of the same, as provided in 17 DE Code 11, section
1108 (a).
G. Non-conforming sign
1. A legally erected outdoor advertising sign
requiring a State outdoor advertising permit found not to be
in compliance with the spacing requirements of this section
shall be determined to be a non-conforming sign and shall be
purchased as provided by State law and in accordance with
policy and procedures developed and adopted by the
Department.
2. In any instance where it is found that two or
more outdoor advertising signs requiring State outdoor
advertising permits do not meet spacing requirements, the
date of the issuance of the original permit shall control, with
the older being allowed to remain and the newer being
determined to be a non-conforming sign (as above).
H. Control by political subdivisions
1. At any time that a political subdivision adopts
comprehensive zoning laws that provide for the regulation of
size, lighting and spacing of outdoor advertising signs in
commercial and industrial zones, and enforces such laws,
and applies for and is certified under the provisions of
section 1.18 of these regulations, control of outdoor
advertising and outdoor advertising signs located entirely
within such political subdivision shall pass to such political
subdivision.
II. Electro-mechanical Variable-message Signs
A. General: Except as otherwise provided in DE Code
and these regulations, no electro-mechanical variablemessage
outdoor advertising signs, displays, or devices shall
be permitted to be erected or maintained except within
controlled areas zoned as commercial or industrial under
authority of State law; or pursuant to Title 17 DE Code,
Chapter 11, Subchapter II, Section 1121 (6).
1. Except as otherwise provided in DE Code and
these regulations, State outdoor advertising permits shall be
required for all such signs. Applications and permits shall be
processed in accordance with procedures promulgated by the
Department.
2. In zoned commercial and industrial areas where
the political subdivision has regulations governing the size,
spacing and lighting of outdoor advertising signs, such
regulations shall control and govern in political subdivisions
certified for the regulation of outdoor advertising by the
Secretary of Transportation of the United States. Absent
such certification, both local and State regulations shall
apply.
B. Eligibility
1. An electro-mechanical variable-message
outdoor advertising sign, display or device shall be eligible
for a State outdoor advertising permit only if:
(a) It is located on the same property and
premises as the activity or property advertised; and
(b) It has as its purpose the identification of
the activity conducted on the premises, or advertises the sale
or lease of the property on which it is located; and
(c) It meets the size and other requirements as
specified in these regulations.
C. Premise Test
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1382 PROPOSED REGULATIONS
1. As used in these regulations, the premises on
which an activity is conducted shall be the land occupied by
the building or other physical uses that are necessary or
customarily incident to the activity, including such open
spaces as are arranged and designed to be used in connection
with such buildings or uses.
2. The following will not be considered to be a part
of the premises on which an activity is conducted:
(a) Any land not used as an integral part of the
principal activity; or
(b) Any land used for a separate purpose
unrelated to the advertised activity; or
(c) Any land at some distance from the
principal activity, and in closer proximity to the highway
than the principal activity, and developed or used only in the
area of the sign site, or between the sign site and the
principal activity, and occupied solely by structures or uses
only incidental to the principal activity, and which serve no
reasonable purpose other than to qualify the land for signing
purposes; or
(d) Any configuration of land which is such
that it cannot be put to any reasonable use related to the
principal activity other than for signing purposes; or
(e) Any land which is nonbuildable, such as
swamp, marsh or other wetland; or
(f) Any land which is common or private
roadway or held by easement or other lesser interest than the
premises where the advertised activity is located; or
(g) Any land in excess of 50 feet from the
principal activity or accessory uses.
D. Purpose test
1. The following signs, displays, and devices shall
be considered as having as their purpose (1) the
identification of the activity located on the premises or its
products or services; or (2) the sale or lease of the property
on which the sign is located:
(a) Any sign which consists solely of the name
of the establishment.
(b) Any sign which identifies the
establishment's principal or accessory products or services
offered on the premises.
(c) Any sign which has no message content
other than "for sale" or "for lease."
2. Signs in the following categories shall be
considered as not fulfilling purpose requirements:
(a) A sign which brings rental income to the
property owner; or
(b) Which consists principally of brand or
trade name advertising; or
(c) Which advertises a product only incidental
to the principal activity; or
(d) Which advertises, in addition to the
activities conducted on the premises, activities not
conducted on the premises; or
(e) One which, in addition to the sale or lease
aspects of the property, advertises any product or service not
located upon, or unrelated to, the business of selling or
leasing the land on which the sign is located.
E. Order of consideration of applications
1. Applications for outdoor advertising permits
will be processed in the order that they are received by the
Department. Applications will be date-and-time-stamped
upon receipt by the Department.
2. If applications for State outdoor advertising
permits are received by the Department for two or more
signs in such proximity to each other, or to existing
permitted signs, or for any other reason such that only one of
them may receive a State outdoor advertising permit, they
will be considered in the order in which they are received by
the Department, and the first to be found to be eligible for a
State outdoor advertising permit shall be issued one.
3. An application rejected for incompleteness,
inaccuracy or other valid cause shall not retain its place
before other competing applications (if any), but, if
resubmitted, will be considered a new application as of the
date and time it is received.
F. The following are prohibited:
1. Signs advertising activities that are illegal under
Federal and State laws or regulations in effect at the location
of those signs or at the location of the activity.
2. Signs located in such a manner as to obscure or
otherwise interfere with the effectiveness of an official
traffic sign, signal, or device, or obstruct or interfere with a
driver's view of approaching, merging, or intersecting traffic.
3. Signs which are erected or maintained upon
trees or utility poles or are attached to or painted or drawn
upon rocks or other natural features.
4. Obsolete signs.
5. Signs which are structurally unsafe or in
disrepair.
6. Signs which move or have any animated or
moving parts other than the electro-mechanical variablemessage
part.
7. Signs not in conformance with applicable wind
pressure requirements determined by adopted local building
code or 25 pounds per square foot, whichever is greater.
G. Size
1. The maximum area for any electro-mechanical
variable-message outdoor advertising sign facing shall be
150 square feet with a maximum height or length not to
exceed 15 feet.
2. The area shall be measured by the smallest
square, rectangle, triangle, circle, or combination thereof
which will encompass the entire sign.
3. All dimensions shall include border and trim, but
shall exclude supports.
4. Two electro-mechanical variable-message sign
facings may be placed back-to-back or in a V-type
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
PROPOSED REGULATIONS 1383
configuration, but in no event shall the total area of any
facing exceed 150 square feet.
H. Lighting
1. Electro-mechanical variable-message signs may
be illuminated, subject to the following restrictions:
(a) Electro-mechanical variable-message signs
shall have a time of message display for complete messages
of no less than 30 seconds and have a time interval between
messages of 2 seconds or less.
(b) Electro-mechanical variable-message signs
which are not effectively shielded as to prevent beams or
rays of light from being directed at any portion of the
traveled ways of any roadway, or which are of such intensity
or brilliance as to cause glare or to impair the vision of the
driver of a motor vehicle, or which otherwise interfere with a
driver's operation of a motor vehicle, are prohibited.
(c) Electro-mechanical variable-message signs
so illuminated as to interfere with the effectiveness of, or
obstruct, an official traffic sign, device, or signal, are
prohibited.
(d) All such lighting shall be subject to any
other provisions relating to lighting of signs presently
applicable to all highways under the jurisdiction of the
Department.
I. Spacing
1. Electro-mechanical variable-message outdoor
advertising signs within controlled areas of limited-access
highways must be at least 500 feet from any static-message
outdoor advertising signs requiring State outdoor advertising
permits.
2. Outside of the boundaries of incorporated
municipalities, electro-mechanical variable-message outdoor
advertising signs within controlled areas of non-limitedaccess
State-maintained roadways must be at least 300 feet
from any static-message outdoor advertising signs requiring
State outdoor advertising permits.
3. Within the boundaries of incorporated
municipalities, electro-mechanical variable-message outdoor
advertising signs within controlled areas of non-limitedaccess
State-maintained roadways that are part of the
federal-aid primary system must be at least 100 feet from
any static-message outdoor advertising signs requiring State
outdoor advertising permits.
4. When electro-mechanical variable-message
outdoor advertising sign structures are separated from any
static-message outdoor advertising sign requiring a State
outdoor advertising permit by buildings or other permanent
obstructions in such a manner that only one sign facing
located within the above spacing distances is visible from the
roadway at one time, the above spacing distances shall not
apply. This exception shall not be construed to mean that
electro-mechanical variable-message outdoor advertising
signs may be erected nearer to each other than specified in
paragraphs five and six (following) if only one of them could
be seen from the roadway at any one time due to an
intervening obstruction (as above).
5. An electro-mechanical variable-message
outdoor advertising sign that is within the controlled area of
any State-maintained roadway shall not be located less than
5,280 feet (one mile) from any other electro-mechanical
variable-message outdoor advertising sign that is within the
controlled area of the same roadway (whether on the same or
the opposite side of the roadway).
6. Where State-maintained roadways intersect, if
there is an electro-mechanical variable-message outdoor
advertising sign within the controlled area of one of them,
and the sign is within a mile of the intersection, no electromechanical
variable-message outdoor advertising signs may
be erected on the other roadway(s) within a mile of the
intersection.
7. The distances between electro-mechanical
variable-message outdoor advertising signs and staticmessage
signs requiring State outdoor advertising permits
shall be measured along the nearest edge of the pavement
between points directly opposite the signs and shall apply
only to outdoor advertising structures located on the same
side of a roadway.
8. The distances between electro-mechanical
variable-message outdoor advertising signs shall be
measured along the nearest edge of the pavement (or, if on
opposite sides of the controlling roadway, the edge nearest to
the existing or the oldest existing sign) between points
directly opposite the signs and shall apply to outdoor
advertising structures located on the same or opposite sides
of a roadway.
9. Outside of incorporated municipalities, any
outdoor advertising signs shall be located 500 feet
(minimum distance) from any interchange, intersection at
grade, safety rest area or information center on any Interstate
or primary roadway (as measured along the Interstate or
freeway from the beginning or ending of pavement widening
at the exit from or entrance to the main traveled way).
10. Except for a free-standing sign against the wall
of a building, no outdoor advertising sign shall be placed
within 35 feet of any highway rights-of-way at an
intersection where two or more converge, unless the bottom
of such a sign is at least 8 feet above ground level or road
grade, whichever is higher.
11. Signs not requiring State outdoor advertising
permits, as defined in these regulations, shall not be counted,
nor shall measurements be made from them, for purposes of
determining compliance with spacing requirements for signs
requiring State outdoor advertising permits.
J. Non-conforming signs
1. A legally erected outdoor advertising sign
requiring a State outdoor advertising permit found not to be
in compliance with the spacing requirements of this section
shall be determined to be a non-conforming sign and shall be
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1384 PROPOSED REGULATIONS
purchased as provided by State law and in accordance with
policy and procedures developed and adopted by the
Department.
2. In any instance where it is found that two or
more outdoor advertising signs requiring State outdoor
advertising permits do not meet spacing requirement, the
date of the issuance of the original permit shall control, with
the older being allowed to remain and the newer being
determined to be a non-conforming sign (as above).
K. Control by political subdivisions
1. At any time that a political subdivision adopts
comprehensive zoning laws that provide for the regulation of
size, lighting and spacing of outdoor advertising signs in
commercial and industrial zones, and enforces such laws,
and applies for and is certified under the provisions of
section 1.18 of these regulations, control of outdoor
advertising and outdoor advertising signs located entirely
within such political subdivision shall pass to such political
subdivision.
L. Number of panels
1. An electro-mechanical variable-message sign
facing may not contain more than one electro-mechanical
variable-mesage panel. A static message panel may be
affixed to the same sign facing as an electro-mechanical
variable-message panel, but the total square footage of the
facing may not exceed 150 square feet.
M. Message content
1. Every message displayed on an electromechanical
variable-message outdoor advertising sign must
be a complete message. No message or display on an electromechanical
variable-message outdoor advertising sign may
in any way entice or encourage a viewer to continue looking
at the sign after they have read its current message. The
viewer is not to be enticed or encouraged to desire to see
what message the electro-mechanical variable-message
outdoor advertising sign will display when it changes from
the message currently being displayed.
1.14 - Bonding Requirements
A. Any non-resident or foreign corporation engaged in
the business of outdoor advertising shall be granted a permit
for the posting or display of any advertisement; or the
erection, use or maintenance of any advertising structure;
only after such persons shall have furnished and filed with
the Roadside Control Section a bond payable to the State of
Delaware, with surety approved by the Department, and in
the sum of $5,000.00, conditioned that said individual
company or corporation fulfills all the requirements of law
and regulations and orders of the Department relating to the
display of advertisements or the erection of advertising
structures. Such bond shall remain in full force and effect
until such obligations of such licensee to the State are
satisfied.
1.15 - Maintenance Of Signs
A. General
1. All signs within the controlled areas shall be
maintained in a good state of repair at all times. When any
sign is damaged or falls into disrepair to the extent that
obvious repairs are needed, the owner shall be notified by
Certified Mail to make all necessary and allowable repairs. If
the sign is not repaired, rebuilt, or removed within six
months of said notification, the applicable sign permit shall
lapse and become null and void. In these cases where
permits are not required, such signs will be considered as
being abandoned and will be removed by the Department.
B. Alterations
1. The size and shape of signs may be altered
during repair, with the exception of non-conforming signs,
providing that:
(a) At least ten working days prior to
beginning of alterations, written notice is furnished to the
Department, fully defining the nature and extent of the
proposed alterations; and
(b) Alterations do not exceed permit limits;
and
(c) Other requirements of these regulations are
met.
C. Relocation of signs
1. With the exception of non-conforming signs,
signs may be relocated provided they meet all criteria and
requirements of these regulations. Any sign moved to a new
location will require a new permit and permit number, and
will be considered and processed as a new sign.
D. Maintenance of non-conforming signs
1. General
(a) Non-conforming signs may be maintained
or rebuilt when destroyed by vandalism or by Acts of God
providing they are rebuilt to be substantially the same as they
were in existence on June 30, 1970. Such signs may continue
as long as they are not abandoned, destroyed or
discontinued.
2. Discontinued signs
(a) A non-conforming sign which has
displayed obsolete or damaged advertising matter, or has not
displayed advertising matter for a period of six months
subsequent to receipt of written notice from the Department,
shall be considered as a discontinued sign and shall be
required to be removed by the owner without compensation.
3. Abandoned signs
(a) Non-conforming signs which are in need of
substantial repair either to the face or support structure, and
are not repaired within a period of six months after receipt of
written notice from the Department, shall be considered as
an abandoned sign and shall be required to be removed by
the owner without compensation.
4. Destroyed signs
(a) Non-conforming signs which have been
damaged, except by vandalism or by Acts of God, to the
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PROPOSED REGULATIONS 1385
extent that the cost of reconstructing the sign exceeds 50% of
the cost of the sign if it were constructed new, shall be
considered as being destroyed and shall be required to be
removed by the owner without compensation.
5. Owner's liability
(a) If any signs as described in subparagraphs
2, 3 and 4 of this paragraph are removed by Department
personnel, the sign owners shall be responsible for all costs
incurred.
1.16 - Destruction Of Trees
A. General
In no case will the destruction of trees or shrubs
within the right of way of any highway for the purpose of
increasing or enhancing the visibility of an outdoor
advertising sign be allowed.
B. Penalties
1. Persons who undertake such action shall:
(a) Be subject to possible criminal
prosecution; and
(b) Have the permit for the involved sign
revoked; and
(c) Be responsible for any corrective action
relative to the trees and shrubs deemed necessary by the
Department.
1.17 - Permits And Fees
A. General
1. Section 1104, Subchapter I, Chapter 11, Title 17
of the Delaware Code includes provisions for:
(a) The Department to issue and renew permits
for each sign for a period of at least one year for the erection
and maintenance of outdoor advertising signs, displays, and
devices; and
(b) The Department to establish and collect
fees for the issuance of permits and renewals thereof in an
amount deemed necessary to defray the costs of this
operation.
B. Duration of permits
1. Each permit shall be valid for the period
beginning January 1 and ending December 31 of each
calendar year.
2. Permits granted during any month of the year
shall expire on December 31 of the same calendar year.
C. Fees
1. Each calendar year the Department shall review
its administrative costs and the number of signs and
determine the adequacy of present permit fees to defray the
involved costs.
2. When a change in fee is necessary, the new fee
shall become effective for all new permits immediately upon
receipt of Department approval and for renewals on January
1 of the next calendar year following approval.
3. The fee for a portion of the calendar year will be
the same as determined necessary for the entire calendar
year.
4. The Department shall notify all interested parties
of any change in fee.
D. Non-payment of permit renewal fees
1. Failure to pay the full and correct annual outdoor
advertising sign permit renewal fee within 60 days of being
notified to do so by a second written notice (invoice) shall
cause the applicable permit(s) to lapse and become null and
void.
1.18 - Certification Of Political Subdivisions
A. General
1. Subsection (a) of Section 1110, Subchapter I,
Chapter 11, Title 17 of the Delaware Code provides for the
Department to certify a political subdivision as having
effective control when such political subdivision has
established and is enforcing regulations as to the size,
spacing, and lighting of outdoor advertising signs, displays
and devices in zoned commercial and industrial areas within
its zoning jurisdiction.
2. Until such time as a political subdivision has
been certified by the Department, full responsibility for the
control of outdoor advertising within the controlled area
shall remain with the Department. Upon certification, the
authority and responsibility for the control of outdoor
advertising shall pass to the political subdivision. A certified
political subdivision shall implement control and
surveillance procedures and maintain such records as may be
necessary to assure compliance with its regulations.
3. The Department shall have the right to inspect
any certified subdivision's procedures and records, and if it is
found that a subdivision's regulations are not being enforced,
shall, after 30 days written notice, resume full authority and
responsibility for control of outdoor advertising in the
controlled area.
4. Applications for certification shall be initiated
by political subdivisions and shall be in writing addressed to
the Secretary of the Department. Applications shall be
processed in accordance with procedures promulgated by the
Department.
5. The authority and responsibility for the control
and regulation of directional and official signs and notices as
described in these regulations shall remain with the
Department.
1.19 - Political Subdivision Regulations
A. A political subdivision of the State of Delaware may
establish and maintain standards which are more restrictive
with respect to certain signs than the standards in these
regulations.
1.20 - Penalties
A. Whoever violates the provisions of these regulations
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1386 PROPOSED REGULATIONS
shall be fined not less than $10.00 nor more than $50.00.
B. Each day that a violation is allowed to continue
beyond the legal notice shall be considered a separate
offense.
1.21 - Severability
A. The various paragraphs of these regulations are
declared to be severable and should any word, phrase,
sentence or portion be declared invalid, the remaining
portions shall not be affected, but shall remain in full force
and effect.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1387
Symbol Key
Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text
added at the time of the proposed action. Language which is stricken through indicates text being deleted. [Bracketed Bold
language] indicates text added at the time the final order was issued. [Bracketed stricken through] indicates language
deleted at the time the final order was issued.
Final Regulations
The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is published in
the Register of Regulations. At the conclusion of all hearings and after receipt within the time allowed of all written materials,
upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and
information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and
shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2)
A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being
adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be
supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted,
amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under
which the agency has authority to act; and (7) The signature of at least a quorum of the agency members.
The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the
date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations,
unless such adoption, amendment or repeal qualifies as an emergency under §10119.
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
24 DE Admin. Code 2900
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), (24 Del.C. §2905(a)(1))
Order Adopting Rules and Regulations
AND NOW, this 13th day of December, 2001, in
accordance with 29 Del. C. § 10118 and for the reasons
stated hereinafter, the Real Estate Commission of the State
of Delaware (hereinafter "the Commission") enters this
Order adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Commission's authority under 24 Del.
C. § 2905(a)(1), the Commission proposed to revise its
existing Rules and Regulations. Certain proposed revisions
relating to advertising and the maintenance of offices were
the subject of a public hearing held by the Commission on
August 9, 2001 at which the Commission received both oral
and written comments. Following the August 9, 2001
hearing, the Commission determined not to adopt the
proposed revisions as written and to make further revisions.
Thereafter, the Commission again proposed to revise its
existing Rules and Regulations. The proposed revisions
include changes to the existing rules and regulations relating
to advertising and the maintenance of offices reflecting
further revisions made following the August 9, 2001 public
hearing. In addition, the proposed revisions include, inter
alia, deleting the class size limit in real estate courses,
deleting Rule 4.1.3 relating to qualifications for licensure of
non-residents, and increasing the required period of retention
of documents demonstrating compliance with the continuing
education requirement for license renewal. Notice of the
public hearing to consider the proposed amendments to the
Rules and Regulations was published in the Delaware
Register of Regulations dated October 1, 2001, and two
Delaware newspapers of general circulation, in accordance
with 29 Del. C. § 10115. The public hearing was held on
November 8, 2001 at 9:00 a.m. in Dover, Delaware, as duly
noticed, and at which a quorum of the Commission was
present. The Commission deliberated and voted on the
proposed revisions to the Rules and Regulations. This is the
Commission's Decision and Order ADOPTING the
amendments to the Rules and Regulations as proposed.
II. Evidence and Information Submitted
The Commission received no written comments in
response to the notice of intention to adopt the proposed
revisions to the Rules and Regulations. No public comment
was received at the November 8, 2001 hearing regarding the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1388 FINAL REGULATIONS
proposed revisions.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Commission with
comments.
2. The proposed amendments to the Rules and
Regulations are necessary to clarify the existing rules
relating to advertising, the maintenance of offices,
requirements for non-resident licensure, and the required
time for retention of documents demonstrating compliance
with the continuing education requirement for renewal of
licenses. In addition, the proposed amendments will assist
licensees in understanding their responsibilities, and provide
protection to the public.
3. The Commission concludes that it has statutory
authority to promulgate rules and regulations pursuant to 24
Del. C. § 2905(a)(1).
4. For the foregoing reasons, the Commission
concludes that it is necessary to adopt amendments to its
Rules and Regulations, and that such amendments are in
furtherance of its objectives set forth in 24 Del. C. Chapter
29.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Commission, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del. C. §
10118(g).
By Order Of The Real Estate Commission
(As Authenticated By A Quorum Of The Commission)
Mary B. Parker, Chairperson, Public Member
Marvin R. Sachs, Vice Chairperson, Professional Member
Joseph P. Connor, Jr., Secretary, Professional Member
Ann K. Baker, Professional Member
Judy L. Bennett, Public Member
John R. Giles, Professional Member
James D. McGinnis, Professional Member
Marcia Shihadeh, Public Member
Real Estate Commission
Statutory Authority: 24 Del.C. 2905
1.0 Introduction
2.0 Requirements for Obtaining a Salesperson's
License
3.0 Requirements for Obtaining a Real Estate Broker's
License
4.0 Reciprocal Licenses
5.0 Escrow Accounts
6.0 Transfer of Broker or Salesperson
7.0 Business Transactions and Practices
8.0 Renewal of Licenses
9.0 Availability of Rules and Regulations
10.0 Disclosure
11.0 Hearings
12.0 Inducements
13.0 Necessity of License
14.0 Out of State Land Sales Applications
15.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
1.0 Introduction
1.1 Authority
1.1.1 Pursuant to 24 Del.C. §2905, the Delaware
Real Estate Commission is authorized and empowered and
hereby adopts the rules and regulations contained herein.
1.1.2 The Commission reserves the right to make
any amendments, modifications or additions hereto, that, in
its discretion are necessary or desirable.
1.1.3 The Commission reserves the right to grant
exceptions to the requirements of the rules and regulations
contained herein upon a showing of good cause by the party
requesting such exception, provided such exception is not
inconsistent with the requirements of 24 Del.C. Ch. 29.
1.2 Applicability
1.2.1 The rules and regulations contained herein,
and any amendments, modifications or additions hereto are
applicable to all persons presently licensed as real estate
brokers or real estate salespersons, and to all persons who
apply for such licenses.
1.3 Responsibility
1.3.1 It is the responsibility of the employing
broker to insure that the rules and regulations of the
Commission are complied with by licensees. Every broker is
responsible for making certain that all of his or her sales
agents are currently licensed, and that their agents make
timely application for license renewal. A broker's failure to
meet that responsibility may result in a civil fine against the
broker of up to $ 1,000.00 per agent.
1.3.2 Each office location shall be under the
direction of a broker of record, who shall provide complete
and adequate supervision of that office. A broker serving as
broker of record for more than one office location within the
State shall apply for and obtain an additional license in his
name at each branch office. The application for such
additional license shall state the location of the branch office
and the name of a real estate broker or salesperson licensed
in this State who shall be in charge of managing the branch
office on a full time basis.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1389
A broker shall not serve as broker of record unless
said broker has been actively engaged in the practice of real
estate, either as a licensed salesperson or a licensed broker,
for the preceding three (3) years.
Where an unforeseen event, such as a resignation or
termination from employment, death, emergency, illness,
call to military service or training, or a sanction imposed by
the Commission causes or necessitates the removal of the
sole licensed broker in an office, arrangements may be made
with the Commission for another broker to serve as broker of
record for said office on a temporary basis.
The employment of a sales manager, administrative
manager, trainer, or other similar administrator shall not
relieve the broker of record of the responsibilities contained
and defined herein.
1.1.3 The failure of any licensee to comply with the
Real Estate Licensing Act and the rules and regulations of
the Commission may result in disciplinary action in the form
of a reprimand, civil penalty, suspension or revocation of the
broker's and/or salesperson's license.
2.0 Requirements for Obtaining a Salesperson's License
The Commission shall consider any applicant who has
successfully completed the following:
2.1 Course
2.1.1 The Commission shall consider any applicant
who has successfully completed an accredited course in Real
Estate Practice.
2.1.2 Effective May 1, 1978, all real estate courses
shall be limited to thirty-five (35) students in each class. This
applies to both day and night courses. All other regulations
regarding real estate courses are issued under the
"Guidelines for Fulfilling the Delaware Real Estate
Education Requirements". The Commission reserves the
right to grant exception to this limitation.
2.2 Examination
2.2.1 Within twelve (12) months of completing an
accredited course, the applicant must make application to the
Commission by submitting a score report showing
successful completion of the examination required by the
Commission. The applicant must forward all necessary
documentation to the Commission to be considered for
licensure.
2.2.2 An applicant may sit for the examination a
maximum of three (3) times after successful completion of
an approved course in real estate practice. If an applicant
fails to pass the examination after three (3) attempts at such,
the applicant shall be required to retake and successfully
complete an approved course in real estate practice before
being permitted to sit for the examination again.
2.3 Ability to conduct business
2.3.1 The Commission reserves the right to reject
deny licensure to an applicant based on upon a determination
that the applicant is not competent to transact business of a
real estate salesperson his or her inability to transact real
estate business in a competent manner or if it determines that
the applicant lacks a reputation for honesty, truthfulness and
fair dealings.
2.3.2 The minimum age at which a salesperson's
license can be issued is eighteen (18).
2.4 Fees
The Commission shall not consider an application
for a salesperson's license unless such application is
submitted with evidence of payment of the following fees:
2.4.1 Salesperson's application fee established by
the Division of Professional Regulation pursuant to 29
Del.C. §8807(d).
3.0 Requirements for Obtaining a Real Estate Broker's
License
The Commission shall consider the application of any
person for a broker's license upon completion of the
following:
3.1 Course
3.1.1 The Commission shall consider the
application of any person for a license after said applicant
has successfully completed an accredited course.
3.1.2 Effective May 1, 1978, all courses shall be
limited to thirty-five (35) students in each class.
3.2 Experience
3.2.1 A salesperson must hold an active license in
the real estate profession for five (5) continuous years
immediately preceding application for a broker's license. If
the licensee fails to renew his or her license by the expiration
date but then makes an application for reinstatement within
sixty (60) days of the expiration of the license and the
Commission otherwise approves the application for
reinstatement, the five-years' continuity will not be broken.
See 4 DE Reg. 846 (11/01/00)
3.2.2 The applicant shall submit to the Commission
a list of at least thirty (30) sales or other qualified
transactions, showing dates, location, purchaser's name and
seller's name. These sales must have been made by the
applicant within the previous five (5) years through the
general brokerage business and not as a representative of a
builder, developer, and/or subdivider. Transactions
involving time-shares, leases, or property management are
not qualified transactions for purposes of obtaining a real
estate broker's license. The Commission reserves the right to
waive any of the above requirements, upon evidence that the
applicant possesses sufficient experience in the real estate
business or demonstrates collateral experience to the
Commission.
3.2.3 The list of thirty (30) sales or other qualified
transactions and/or the variety of the licensee's experience
must be approved by the Commission.
3.3 Examination
3.3.1 Within twelve (12) months of completing an
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1390 FINAL REGULATIONS
accredited course, the applicant must submit a score report
showing successful completion of the examination required
by the Commission and submit all necessary documentation
including the credit report required by Paragraph E of this
rule Rule 3.5.1 to the Commission to be considered for
licensure.
3.4 Ability to conduct business
3.4.1 The Commission reserves the right to reject
deny licensure to an applicant based upon a determination
tha the applicant is not competent to transact the business of
a real estate broker, including a determination that on his or
her ability to transact real estate business in a competent
manner or if it determines that the applicant lacks
experience. , a reputation for honesty, truthfulness and fair
dealings.
3.4.2 The minimum age at which a person can be
issued a broker's license is twenty-three (23).
3.5 Credit Report
3.5.1 Each applicant shall submit a credit report
from an approved credit reporting agency, which report shall
be made directly to the Commission.
3.6 Fees
The Commission shall not consider an application
for a broker's license unless such application is submitted
with evidence of payment of the following fees:
3.6.1 Broker's application fee established by the
Division of Professional Regulation pursuant to 29 Del.C.
§8807(d).
4.0 Reciprocal Licenses
4.1 Requirements
4.1.1 A non-resident of this State who is duly
licensed as a broker in another state and who is actually
engaged in the business of real estate in the other state may
be issued a nonresident broker's license under 24 Del.C.
§2909(a).
4.1.2 A non- resident salesperson who is duly
licensed as a salesperson in another state and who is actually
engaged in the business of real estate in the other state may
be issued a non-resident salesperson's license provided such
non-resident salesperson is employed by a broker holding a
broker's license issued by the Commission.
4.1.3 The Commission, at its discretion, may issue
a non-resident broker's or salesperson's license without the
course and examination required by Rules 2.2 or 3.3
provided the non-resident broker or salesperson passed an
equivalent course and examination in his/her resident state
and provided that such other state extends the same privilege
to Delaware real estate licensees.
5.0 Escrow Accounts
5.1 All moneys received by a broker as agent for his
principal in a real estate transaction shall be deposited within
three (3) banking days after a contract of sale or lease has
been signed by both parties, in a separate escrow account so
designated, and remain there until settlement or termination
of the transaction at which time the broker shall make a full
accounting thereof to his or her principal.
5.2 All moneys received by a salesperson in connection
with a real estate transaction shall be immediately delivered
to the appropriate broker. A licensee shall not accept, as a
good faith or earnest money deposit in connection with a real
estate transaction, a photocopy, facsimile, or other copy of a
personal check or draft, nor shall a licensee accept as a good
faith or earnest money deposit a check or draft that is
postdated.
See 4 DE Reg. 457 (9/1/00)
5.3 A broker shall not co-mingle money or any other
property entrusted to him with his money or property, except
that a broker may maintain up to $100.00 of his/her own
funds in the escrow account to cover bank service charges
and to maintain the minimum balance necessary to avoid the
account being closed.
5.4 A broker shall maintain in his office a complete
record of all moneys received or escrowed on real estate
transactions, including the sources of the money, the date of
receipt, depository, and date of deposit; and when a
transaction has been completed, the final disposition of the
moneys. The records shall clearly show the amount of the
broker's personal funds in escrow at all times.
5.5 An escrow account must be opened by the broker in
a bank with an office located in Delaware in order to receive,
maintain or renew a valid license.
5.6 The Commission may summarily suspend the
license of any broker who fails to comply with 5.4, who fails
to promptly account for any funds held in escrow, or who
fails to produce all records, books, and accounts of such
funds upon demand. The suspension shall continue until
such time as the licensee appears for a hearing and furnishes
evidence of compliance with the Rules and Regulations of
the Commission.
5.7 Interest accruing on money held in escrow belongs
to the owner of the funds unless otherwise stated in the
contract of sale or lease.
6.0 Transfer of Broker or Salesperson
6.1 All licensees who transfer to another office, or
brokers who open their own offices, but who were associated
previously with another broker or company, must present a
completed transfer form to the Commission signed by the
individual broker or company with whom they were
formerly associated, before the broker's or salesperson's
license will be transferred. In addition all brokers who are
non-resident licensees must also provide a current certificate
of licensure.
6.2 The Commission reserves the right to waive this
requirement upon a determination of good cause.
6.3 All brokers of record who move the physical
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1391
location of their office shall notify the Commission in
writing at least 30 days, or as soon as practical, prior to such
move by filing a new office application.
7.0 Business Transactions and Practices
7.1 Written Listing Agreements
7.1.1 Listing Agreements for the rental, sale, lease
or exchange of real property, whether exclusive, coexclusive
or open shall be in writing and shall be signed by
the seller or owner.
7.2 Copy of agreements
7.2.1 Every party to a listing agreement, agreement
of purchase and sale, or lease shall be furnished with an
executed copy of such contract or contracts. It shall be the
responsibility of the licensee to deliver an executed copy of
the agreements to the principals within a reasonable length
of time after execution.
7.3 Advertising
7.3.1 Any licensee who advertises, on signs,
newspapers or any other media, property personally owned
and/or property in which a licensee has any ownership
interest, and said property is not listed with a broker, must
include in the advertisement that he/she is the owner of said
property and that he/she is a real estate licensee. Any
licensee who advertises in newspapers, the Internet, or any
other media, real property personally owned or real property
in which the licensee has any ownership interest must
include in the advertisement that he or she is the owner of
said property, and that he or she is a real estate licensee.
This subsection does not apply to signs.
7.3.2 Any licensee who advertises in newspapers
or any other media, property personally owned and/or
property in which the licensee has any ownership interest,
and said property is listed with a broker, must include in the
advertisement the name of the -broker under whom he/she is
licensed, that he/she is the owner of said property, and that
he/she is a real estate licensee. This subsection does not
apply to signs. Any licensee who advertises on signs,
newspapers, the Internet, or any other media an offer to
purchase real property must include in the advertisement that
he or she is a real estate licensee.
7.3.3 Any licensee who advertises, by signs, or in
newspapers, the Internet, or any other media, any real
property for sale, lease, exchange, or transfer that is listed
with a broker must include in legible print in the
advertisement the complete business name that has been
registered with the Commission, and office phone number of
the broker registered by the broker of record with the
Commission for that office location. of record under whom
the licensee is licensed. Nothing contained herein shall
preclude the listing of additional phone numbers. All such
advertising shall also contain language or abbreviations that
clearly identify each phone number listed; examples include,
but are not limited to: "Office"; "Home"; "Res."; "Car"; and
"Cell".
7.3.4 All advertisements for personal promotion of
licensees must include the complete business name that has
been registered with the Commission, and office phone
number of the company registered by the broker of record
with the Commission for that office location. under whom
the licensee is licensed.
7.4 Separate Office
7.4.1 Each licensed broker who is a resident of this
State shall maintain an office in this State approved by the
Commission in which to transact real estate business.
Applicants for broker's licenses and those presently licensed
must maintain separate offices in which to conduct the real
estate business. No licensee shall transact real estate
business at any office location unless an office application
has been filed with and approved by the Commission.
Nothing contained herein, however, shall preclude said
persons from sharing facilities approved by the Commission
with such other businesses as insurance, banking, or others
that the Commission shall deem compatible.
7.4.2 If a broker maintains more than one place
of business within the State, the broker shall apply for and
obtain approval by the Commission for each office location.
7.4.2 7.4.3 Any Where the office is located in a private
home must be approved by the Commission and have , said
office must have a separate entrance and must be approved
by the Commission. The broker must place a permanent sign
indicating the name under which the office is licensed
registered with the Commission in a conspicuous location.
7.5 Compensation
7.5.1 Licensees shall not accept compensation
from more than one party to a transaction, even if permitted
by law, without timely disclosure to all parties to the
transaction.
7.5.2 When acting as agent, a licensee shall not
accept any commission, rebate, or profit on expenditures
made for his principal-owner without the principal's
knowledge and informed consent.
7.6 Duty to Cooperate
7.6.1 Brokers and salespersons shall cooperate
with all other brokers and salespersons involved in a
transaction except when cooperation is not in the client's best
interest. The obligation to cooperate does not include the
obligation to share commissions or to otherwise compensate
another broker or salesperson.
8.0 Renewal of Licenses
8.1 Renewal Required by Expiration Date on License
8.1.1 In order to qualify for license renewal as a
real estate salesperson or broker in Delaware, a licensee shall
have completed 15 hours of continuing education within the
two year period immediately preceding the renewal. The
broker of record for the licensee seeking renewal shall
certify to the Commission, on a form supplied by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1392 FINAL REGULATIONS
Commission, that the licensee has complied with the
necessary continuing education requirements. This
certification form shall be submitted by the licensee together
with his/her renewal application and renewal fee. The broker
of record shall retain for a period of one (1) year two (2)
years, the documents supporting his/her certification that the
licensee has complied with the continuing education
requirement. A licensee who has not paid the fees and/or met
the requirements for the renewal of his or her license by the
expiration date shown thereon, shall not list, sell, lease or
negotiate for others after such date.
8.2 Delinquency Fee
8.2.1 If a licensee fails to renew his or her license
prior to the expiration date shown thereon, he or she shall be
required to pay the full license fee and an additional
delinquency fee equal to one half of the license fee. If a
licensee fails to renew his or her license within 60 days of
the expiration date shown thereon, the license shall be
cancelled.
8.2.2 Failure to receive notice of renewal by a
licensee shall not constitute a reason for reinstatement.
8.3 Reinstatement of License
8.3.1 A cancelled license shall be reinstated only
after the licensee pays the necessary fees, including the
delinquency fee, and passes any examinations required by
the Commission. If the licensee fails to apply for renewal
within 6 months of the cancellation date, the licensee shall
be required to take the state portion of the examination. If the
licensee fails to apply for renewal before the next renewal
period commences (two years), the licensee shall be required
to pass both the state and the national portions of the
examination.
8.3.2 No person whose license has been revoked
will be considered for the issuance of a new license for a
period of at least two (2) years from the date of the
revocation of the license. Such person shall then fulfill the
following requirements: he or she shall attend and pass the
real estate course for salespersons; take and pass the
Commission's examination for salespersons; and any other
criteria established by the Commission. Nothing above shall
be construed to allow anyone to take the course for the
purpose of licensing until after the waiting period of two (2)
years. Nothing contained herein shall require the
Commission to issue a new license upon completion of the
above mentioned requirements, as the Commission retains
the right to deny any such application.
9.0 Availability of Rules and Regulations
9.1 Fee Charge for Primers
9.1.1 Since licensees are required to conform to the
Commission's Rules and Regulations and the Laws of the
State of Delaware, these Rules and Regulations shall be
made available to licensees without charge. However, in
order to help defray the cost of printing, students in the real
estate courses and other interested parties may be required to
pay such fee as stipulated by the Division of Professional
Regulation for the booklet or printed material.
10.0 Disclosure
10.1 A licensee who is the owner, the prospective
purchaser, lessor or lessee or who has any personal interest
in a transaction, must disclose his or her status as a licensee
to all persons with whom he or she is transacting such
business, prior to the execution of any agreements and shall
include on the agreement such status.
10.2 Any licensee advertising real estate for sale stating
in such advertisement, "If we cannot sell your home, we will
buy your home", or words to that effect, shall disclose in the
original listing contract at the time he or she obtains the
signature on the listing contract, the price he will pay for the
property if no sales contract is executed during the term of
the listing. Said licensee shall have no more than sixty (60)
days to purchase and settle for the subject property upon
expiration of the original listing or any extension thereof.
10.3 A licensee who has direct contact with a potential
purchaser or seller shall disclose in writing whom he/she
represents in any real estate negotiation or transaction. The
disclosure as to whom the licensee represents should be
made at the 1st substantive contact to each party to the
negotiation or transaction. In all cases such disclosure must
be made prior to the presentation of an offer to purchase. A
written confirmation of disclosure shall also be included in
the contract for the real estate transaction.
10.3.1 The written confirmation of disclosure in
the contract shall be worded as follows:
10.3.1.1 With respect to agent for seller: "This
broker, any cooperating broker, and any salesperson working
with either, are representing the seller's interest and have
fiduciary responsibilities to the seller, but are obligated to
treat all parties with honesty. The broker, any cooperating
broker, and any salesperson working with either, without
breaching the fiduciary responsibilities to the seller, may,
among other services, provide a potential purchaser with
information about the attributes of properties and available
financing, show properties, and assist in preparing an offer to
purchase. The broker, any cooperating broker, and any
salesperson working with either, also have the duty to
respond accurately and honestly to a potential purchaser's
questions and disclose material facts about properties,
submit promptly all offers to purchase and offer properties
without unlawful discrimination."
10.3.1.2 With respect to agent for buyer: "This
broker, and any salesperson working for this broker, is
representing the buyer's interests and has fiduciary
responsibilities to the buyer, but is obligated to treat all
parties with honesty. The broker, and any salesperson
working for the broker, without breaching the fiduciary
responsibilities to the buyer, may, among other services,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1393
provide a seller with information about the transaction. The
broker, and any salesperson working for the broker, also has
the duty to respond accurately and honestly to a seller's
questions and disclose material facts about the transaction,
submit promptly all offers to purchase through proper
procedures, and serve without unlawful discrimination."
10.3.1.3 In the case of a transaction involving
a lease in excess of 120 days, substitute the term "lessor" for
the term "seller", substitute the term "lessee" for the terms
"buyer" and "purchaser", and substitute the term "lease" for
"purchase" as they appear above.
10.4 If a property is the subject of an agreement of sale
but being left on the market for backup offers, or is the
subject of an agreement of sale which contains a right of first
refusal clause, the existence of such agreement must be
disclosed by the listing broker to any individual who makes
an appointment to see such property at the time such
appointment is made.
11.0 Hearings
11.1 When a complaint is filed with the Commission
against a licensee, the status of the broker of record in that
office shall not change.
11.2 There shall be a maximum of one (1)
postponement for each side allowed on any hearing which
has been scheduled by the Commission. If any of the parties
are absent from a scheduled hearing, the Commission
reserves the right to act based upon the evidence presented.
12.0 Inducements
12.1 Real Estate licensees cannot use commissions or
income received from commissions as rebates or
compensation paid to or given to Non-licensed Persons,
partnerships or corporations as inducements to do or secure
business, or as a finder's fee.
12.2 This Rule does not prohibit a real estate broker or
salesperson from giving a rebate or discount or any other
thing of value directly to the purchaser or seller of real
estate. The real estate broker or salesperson, however, must
be licensed as a resident or non-resident licensee by the
Commission under the laws of the State of Delaware.
12.3 A real estate broker or salesperson has an
affirmative obligation to make timely disclosure, in writing,
to his or her principal of any rebate or discount that may be
made to the buyer.
13.0 Necessity of License
13.1 For any property listed with a broker for sale, lease
or exchange, only a licensee shall be permitted to host or
staff an open house or otherwise show a listed property. That
licensee may be assisted by non-licensed persons provided a
licensee is on site. This subsection shall not prohibit a seller
from showing their own house.
13.2 For new construction, subdivision, or development
listed with a broker for sale, lease or exchange, a licensee
shall always be on site when the site is open to the general
public, except where a builder and/or developer has hired a
non-licensed person who is under the direct supervision of
said builder and/or developer for the purpose of staffing said
project.
14.0 Out of State Land Sales Applications
14.1 All applications for registration of an out of state
land sale must include the following:
14.1.1 A completed license application on the form
provided by the Commission.
14.1.2 A $100 filing fee made payable to the State
of Delaware.
14.1.3 A valid Business License issued by the State
of Delaware, Division of Revenue.
14.1.4 A signed Appointment and Agreement
designating the Delaware Secretary of State as the
applicant's registered agent for service of process. The form
of Appointment and Agreement shall be provided by the
Commission. In the case of an applicant which is a
Delaware corporation, the Commission may, in lieu of the
foregoing Appointment and Agreement, accept a current
certificate of good standing from the Delaware Secretary of
State and a letter identifying the applicant's registered agent
in the State of Delaware.
14.1.5 The name and address of the applicant's
resident broker in Delaware and a completed Consent of
Broker form provided by the Commission. Designation of a
resident broker is required for all registrations regardless of
whether sales will occur in Delaware.
14.1.6 A bond on the form provided by the
Commission in an amount equal to ten (10) times the amount
of the required deposit.
14.1.7 Copies of any agreements or contracts to be
utilized in transactions completed pursuant to the
registration.
14.2 Each registration of an out of state land sale must
be renewed on an annual basis. Each application for renewal
must include the items identified in sub-sections 14.1.2
through 14.1.4 of Rule 14.0 above and a statement
indicating whether there are any material changes to
information provided in the initial registration. Material
changes may include, but are not limited to, the change of
the applicant's resident broker in Delaware; any changes to
the partners, officers and directors' disclosure form included
with the initial application; and any changes in the condition
of title.
14.3 If, subsequent to the approval of an out of state
land sales registration, the applicant adds any new lots or
units or the like to the development, then the applicant must,
within thirty days, amend its registration to include this
material change. A new registration statement is not
required, and the amount of the bond will remain the same.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1394 FINAL REGULATIONS
15.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
15.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
15.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
15.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
15.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
15.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
15.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
15.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
15.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
15.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
15.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
15.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
15.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
15.6.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1395
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
15.6.8 The participating Board's chairperson, his/
her designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
15.6.9 If practice is restricted, the regulated
professional may apply for unrestricted licensure upon
completion of the program.
15.6.10 Failure to enter into such agreement or to
comply with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
15.6.11 Any person who reports pursuant to this
section in good faith and without malice shall be immune
from any civil, criminal or disciplinary liability arising from
such reports, and shall have his/her confidentiality protected
if the matter is handled in a nondisciplinary matter.
15.6.12 Any regulated professional who complies
with all of the terms and completes the Voluntary Treatment
Option shall have his/her confidentiality protected unless
otherwise specified in a participating Board's rules and
regulations. In such an instance, the written agreement with
the regulated professional shall include the potential for
disclosure and specify those to whom such information may
be disclosed.
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
REAL ESTATE COMMISSION EDUCATION
COMMITTEE
24 DE Admin. Code 2925
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), 2911(b)
(24 Del.C. §2905(a)(1), §2911(b))
Order Adopting Guidelines for Fulfilling The Delaware
Real Estate Education Requirements
AND NOW, this 13th day of December, 2001, in
accordance with 29 Del. C. § 10118 and for the reasons
stated hereinafter, the Real Estate Commission of the State
of Delaware (hereinafter "the Commission") enters this
Order adopting amendments to its Guidelines for Fulfilling
the Delaware Real Estate Education Requirements.
I. Nature of the Proceedings
Pursuant to the Commission's authority under 24 Del.
C. §§ 2905(a)(1), and 2911(b), the Commission proposed to
revise its existing Guidelines for Fulfilling the Delaware
Real Estate Education Requirements to insert a new
guideline relating to student requests for approval of an
educational activity. Notice of the public hearing to consider
the proposed amendments to the Guidelines for Fulfilling the
Delaware Real Estate Education Requirements was
published in the Delaware Register of Regulations dated
October 1, 2001, and two Delaware newspapers of general
circulation, in accordance with 29 Del. C. § 10115. The
public hearing was held on November 8, 2001 at 9:30 a.m. in
Dover, Delaware, as duly noticed, and at which a quorum of
the Commission was present. The Commission deliberated
and voted on the proposed revisions to the Guidelines for
Fulfilling the Delaware Real Estate Education
Requirements. This is the Commission's Decision and
Order ADOPTING the amendments to the Guidelines for
Fulfilling the Delaware Real Estate Education Requirements
as proposed.
II. Evidence and Information Submitted
The Commission received no written comments in
response to the notice of intention to adopt the proposed
revisions to the Guidelines for Fulfilling the Delaware Real
Estate Education Requirements. At the November 8, 2001
hearing, no public comment was received.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Guidelines for Fulfilling the Delaware
Real Estate Education Requirements and offered an adequate
opportunity to provide the Commission with comments.
2. The proposed amendments to the Guidelines for
Fulfilling the Delaware Real Estate Education Requirements
are necessary to establish a guideline relating to student
requests for approval of an educational activity. The
proposed amendments will assist licensees in understanding
the process by which such requests are handled.
3. The Commission concludes that it has statutory
authority to promulgate rules and regulations pursuant to 24
Del. C. § 2905(a)(1), and to publish guidelines as to
acceptable courses of instruction, seminars and lectures in
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1396 FINAL REGULATIONS
accordance with 24 Del. C. § 2911(b).
4. For the foregoing reasons, the Commission
concludes that it is necessary to adopt amendments to its
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements, and that such amendments are in furtherance
of its objectives set forth in 24 Del. C. Chapter 29.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Commission, IT IS ORDERED, that the Guidelines
for Fulfilling the Delaware Real Estate Education
Requirements are approved and adopted in the exact text as
set forth in Exhibit A attached hereto. The effective date of
this Order is ten (10) days from the date of its publication in
the Delaware Register of Regulations pursuant to 29 Del. C.
§ 10118(g).
By Order Of The Real Estate Commission
(As Authenticated By A Quorum Of The Commission)
Mary B. Parker, Chairperson, Public Member
Marvin R. Sachs, Vice Chairperson, Professional Member
Joseph P. Connor, Jr., Secretary, Professional Member
Ann K. Baker, Professional Member
Judy L. Bennett, Public Member
John R. Giles, Professional Member
James D. McGinnis, Professional Member
Marcia Shihadeh, Public Member
Real Estate Commission Education Committee
Statutory Authority: 24 Del.C. 2911(b)
1.0 Introduction
2.0 Objective
3.0 Administration
4.0 Education Committee
5.0 Course Approval
6.0 Program Criteria
7.0 Course Approval Process
8.0 Provider Responsibilities
9.0 Instructor Qualifications
10.0 Instructor Approval Process
Guidelines for Fulfilling the Delaware Real Estate
Education Requirements
1.0 Introduction -- Mandate for Continuing Education
1.1 24 Del.C. §2911(b) sets forth a requirement that
"...each Delaware Real Estate Certificate holder applying for
renewal shall be required to successfully complete in the two
year period prior to renewal, continuing education hours in
an amount to be prescribed by the Rules and Regulations of
the Commission. Each Delaware Real Estate Certificate
holder at the time of certificate renewal shall be required to
furnish to the Commission satisfactory evidence that they
have successfully completed the required number of hours in
approved courses......"
1.2 The continuing education requirements apply to all
licensees whether or not the certificate holder has been
officially active or inactive during the two year period prior
to expiration. The Delaware Real Estate Commission shall
be informed of the completion of the continuing education
requirement at the time of submission of the Real Estate
Certificate Renewal Application. In the case of an inactive
licensee proof of completion of the continuing education
requirement will be due upon reactivation of the license.
The number of continuing education credit hours required is
established within the Rules and Regulations of the
Commission. The number and content of mandated courses
may vary at the discretion of the Commission. The current
requirement for continuing education is included within
these guidelines. Updates may be obtained from the offices
of the Real Estate Commission or the Real Estate Education
Committee.
2.0 Objective
Through education, the licensee shall be reasonably
current in real estate knowledge and shall have improved
ability to provide greater protection and service to the real
estate consumer, thereby meeting the Delaware Real Estate
Commission's primary objective of protection of the public.
3.0 Administration
The Delaware Real Estate Commission has the
governing powers to approve or disapprove educational
course offerings and instructor certification and reserves the
right to suspend or revoke the privilege of conducting any
educational course to any course provider(s) or instructor(s)
who fail to adhere to the educational guidelines as
established by the Commission.
4.0 Education Committee
4.1 The Commission may utilize the services of a
committee, appointed by the Commission, to assist in the
educational objectives of the Commission.
4.2 Committee Structure - The Committee shall be
comprised of twelve (12) members, four (4) from each
county. Three (3) members shall be public members and the
remaining members shall hold a valid Delaware real estate
license.
4.3 Committee Officers - (Chairperson and Vice-
Chairperson) shall be elected from the Committee and shall
serve one year terms. Election of said officers will be held in
January.
4.4 Term of Office
4.4.1 Each appointment shall be for four (4) full
years. No person who has been appointed to the Committee
shall again be appointed to the Committee until an interim
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1397
period of at least one (1) year has passed since such person
last served.
4.4.2 A majority of members (7) shall constitute a
quorum; and no recommendation shall be effective without
the affirmative vote of a majority of the quorum. Any
member who fails to attend three (3) consecutive regular
business meetings without a valid excuse, or who fails to
attend at least half of all regular business meetings during
any calendar year, shall automatically upon such occurrence
be deemed to have resigned from office and a replacement
shall be appointed by the Commission.
4.4.3 Committee members shall be appointed by
the Commission. Applications for committee membership
will be received by the Commission, via a letter of intent and
a current resume 60 days prior to an anticipated vacancy.
Committee members may be removed by the Commission
for good cause. If an interim vacancy should occur, the
Commission shall appoint a person to fill the position for a
full four (4) year term commencing with the date of
appointment.
4.5 Committee Responsibilities
4.5.1 It shall be the duty of the Education
Committee to monitor the content and conduct of all prelicensing
courses for salesperson and broker as well as
continuing education programs offered to fulfill the
educational requirements for obtaining and maintaining
licensure in the State of Delaware.
4.5.2 The Education Committee shall have the
responsibility for reviewing all applications for pre-licensing
and continuing education credit as well as certification of
instructor applicants, to insure that all applications satisfy
the requirements.
4.5.3 After this review, the Education Committee
shall recommend that an application be approved or
disapproved by the Commission. If approval is
recommended with regard to continuing education, the
Committee shall indicate the number of full credit hours for
the course. In making its decisions, the Education
Committee shall follow the provisions contained in these
guidelines. Any recommendation for non-approval shall be
accompanied by a specific reason. Only the Delaware Real
Estate Commission shall have the power to approve or
disapprove the application for a course offering or instructor
certification.
4.5.4 The Education Committee shall undertake
such other duties and responsibilities as the Commission
shall direct from time to time.
4.5.5 Committee meeting times and places shall be
as necessary, but in all cases within two weeks prior to the
next regularly scheduled meeting of the Commission.
Committee meetings shall be conducted in accordance with
the Administrative Procedures Act.
5.0 Course Approval
5.1 General Requirements - An educational activity to
be approved as satisfying Delaware's real estate continuing
education requirements must be an organized real estate
related activity, offered under responsible sponsorship,
facilitated by an instructor certified by the Commission.
5.2 Organization - The sponsoring organization must
have a designated individual responsible for the
administration and coordination of the education program.
That designee shall be responsible to report to the
Commission and/or the Committee for the proper conduct of
each such program.
5.3 Facilities - The sponsoring organization must
provide or arrange for appropriate educational facilities, and
when necessary, library and reference materials and all
instructional aids and equipment consistent with the content,
format, and objective of each learning experience.
5.4 Performance - Attendance shall be used as the
minimum requirement for satisfactory completion, in
addition, alternative criteria for evaluating student
performance may be established by the sponsoring
organization or class instructor.
5.5 Maintenance and Availability of Records - An
individual record of participation must be maintained by the
sponsoring organization for a period of not less than three (3)
years from the date of the activity and upon request made
readily available as an official statement to each student of
his or her participation. Information which must be included
as part of this record is:
5.5.1 Name and address of the organization
offering the course.
5.5.2 Name of course topic.
5.5.3 Title of the course
5.5.4 Name, resume and certificate number of the
individual instructors.
5.5.5 Completion date of the course offering.
5.5.6 Number of hours of approved credit.
5.5.7 A detailed outline of the course.
5.5.8 A copy of the approval letter received from
the Commission
5.5.9 A copy of the individual instructor(s)
certification(s) letter(s) issued by the Commission.
5.5.10 A copy of the individual student evaluations
on forms provided by the Commission.
5.5.11 A list of the individual students attending
the course offering and their completion status, e.g.,
satisfactory or unsatisfactory.
5.6 Program Evaluation - Evaluation forms, approved
by the Real Estate Commission shall be used to measure the
effectiveness of the program design, operation and
effectiveness of the instructor(s). These forms must be
returned to the Education Committee for review within
fifteen (15) calendar days of completion of the program.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1398 FINAL REGULATIONS
6.0 Program Criteria
6.1 Areas of Concentration for Acceptable Courses
6.1.1 Courses of instruction and seminars, to be
considered eligible for continuing education credit approval
must be in a definable real estate topic area. Courses that
may be considered eligible must be in the following topic
areas:
6.1.1.1 Federal, State or Local Legislative
Issues (Legislative Update).
6.1.1.2 Fair Housing Law
6.1.1.3 Anti-Trust Law
6.1.1.4 Real Estate Ethics or Professional
Standards
6.1.1.5 Agency Relationships and
Responsibilities
6.1.1.6 Professional Enhancement for
Practicing Licensees
6.1.2 Courses of instruction which Are Not
acceptable for credit include, but are not limited to:
_ Any course given as part of a preparation for
examination.
_ Offerings in mechanical office and business
skills such as typing, business machines and computer
operations.
_ Personal development and/or enrichment
and motivational courses, speed reading memory
improvement, and language report writing.
_ Correspondence courses and program
learning courses not under the direct supervision of a
certified instructor.
_ General training or education required of
licensees to function in a representative capacity for an
employing broker except if said training or education
complies with the above stated topic areas, has been
approved by the Commission and is taught by a certified
instructor.
_ Meetings which are a normal part of inhouse
staff or licensee training, sales promotions or other
meetings held in connection with the general business of the
licensee and/or broker; any meetings that a licensee is
required to attend as a condition of continued employment,
whether imposed by rules of the employing broker or by a
contractual agreement between broker and franchiser, does
not qualify for continuing education credit. Work
experience does not qualify for continuing education credit.
_ Non-educational activities of associations,
trade organizations, and professional and occupational group
membership or certification are not considered accreditable
continuing education activities. Examples of such activities
are, but not limited to:
_ membership or service in a professional,
occupational or other society or organization;
_ attendance at annual, periodic or special
meetings, conventions, conferences, rallies and retreats;
_ writing or presentation of articles or
research papers;
_ a program or other type of
organizational assignment;
_ self-directed reading or study. As a
guiding principle "self-directed studies" and "individual
scholarship" are not considered accreditable educational
activities.
7.0 Course Approval Process
7.1 An application for course approval (on forms
approved by the Commission), course outline, all applicable
fees and any other documentation that may be required, must
be filed by the course sponsor or provider, with the Division
of Professional Regulation, Delaware Real Estate
Commission, Education Committee, 861 Silver Lake
Boulevard, Suite 203, Dover, Delaware 19904-2467, at least
sixty (60) days prior to the date that the course is to be
held. Failure to file within the appropriate time limit may be
cause for rejection. Recommendations of the Education
Committee shall be made to the Commission within thirty
(30) days after the Education Committee receives and
reviews the completed application. An application that is
incomplete when filed shall not be considered to have been
filed.
7.2 A course may be certified for a period of two (2)
calendar years, provided the course is conducted by the
sponsor or provider making application, the curriculum and
course length remains exactly as approved, and certified
instructors are utilized. The Education Committee may
recommend a shorter or probationary approval where good
cause for limited approval can be demonstrated. A sponsor
who receives approval to conduct a certified course or
activity, must notify the Commission in writing, of the intent
to hold such activity, at least seven (7) days in advance of the
start of the activity. Included in the letter of intent shall be
the course approval number, date(s) and time(s) and location
of the course, topic area, course name, instructor name(s)
and instructor certification number(s). Courses can not be
automatically renewed. Sponsors providers will need to
reapply by the course expiration date and before conducting
further courses. The Education Committee shall have the
right to recommend to the Commission that a provider's
privilege of conducting a certified course be revoked for the
remainder of the approval period, if the Education
Committee determines that the provider is not maintaining
7.3 An application for an individual student request for
approval of an educational activity (on forms approved by
the Commission), course outline, instructor resume of a
qualified instructor, and any other documentation that may
be required, may be filed by the individual student with the
Delaware Real Estate Commission, Real Estate Education
Committee within twelve (12) months. Recommendations of
the Education Committee shall be made to the Commission
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1399
within thirty (30) days after the Education Committee
receives and reviews the completed application. An
application that is incomplete when filed shall not be
considered to have been filed. The subject educational
activity must comply with Section 6.0 herein and any other
applicable Guidelines.
8.0 Provider Responsibilities
8.1 The organization receiving approval of a course or
program accepts the responsibility to maintain a permanent
record of the course activity for not less than three years
from the date of the course offering. The permanent record
shall include the documents as listed in "Maintenance and
Availability of Records".
8.2 The sponsor or provider of all continuing education
courses shall arrange for an on-site monitor in addition to the
certified instructor for each activity. The monitor shall be
responsible, at a minimum, for ensuring faithful and
complete attendance by students, as well as facilities
management. The monitor may be a student for educational
credit for that course or activity.
8.3 The course sponsor or provider, will supply to the
student at the completion of the course or program, a
certificate of completion. This certificate must contain, but
is not limited to, the following information:
_ Student Name
_ Sponsors Name
_ Topic Area Name
_ Course Title
_ Date course was completed
_ Number of Credit Hours
_ Course Approval Number
_ Instructor Name(s)
_ Instructor Certificate Number(s)
8.4 The organization offering the course, shall, within
fifteen (15) days after the completion of the activity, provide
a list of participants, their real estate license numbers (if
applicable) and a copy of each student's course and instructor
evaluation form and an evaluation summary report form to
the Commission's Office. The evaluation summary report
form shall be signed by any instructors who participated in
the delivery of the course thus indicating each has had the
opportunity to review the evaluation result. Failure of the
organization to provide this information may be grounds to
suspend the approval of that course or educational activity,
in the absence of a showing of good cause for that failure.
8.5 Where the provider is a prelicensing school, the
administrator thereof is responsible to apply to the Delaware
Department of Public Instruction for certification and to
maintain such certification. Proof of current certification
must be attached to the application for course approval
submitted to the Education Committee.
8.6 Prelicensing schools are to solicit the names of
students interested in being contacted by recruiters by the
second class meeting. Any students joining after the first
class must be informed of the opportunity to be a part of the
recruiting roster at the first class attended. Schools must
supply the recruiting roster within seven (7) days of
receiving a request from a broker.
8.7 Prelicensing schools will also furnish each student
with current information regarding the prelicensing
examination to include the "Real Estate Candidate
Handbook" which is available to prelicensing schools
through the testing service for this purpose.
8.8 Members of the Real Estate Commission or
Education Committee And/or Their Official Representatives
Shall Have the Right to Monitor Any Approved Course
Without Notice.
9.0 Instructor Qualifications
9.1 It is the stated policy of the Delaware Real Estate
Commission that qualified instructors must be directly
involved in presenting any professional educational activity.
Qualifications are determined by all or a combination of:
9.1.1 competence in the subject matter (may be
evidenced by experience in which command of subject
matter is recognized by the individual's peers, and/or by a
formal education or training, and/or by demonstrated
knowledge through publication in professional journals or
appropriate media);
9.1.2 ability to transmit the educational content to
the participants as determined by student evaluations and/or
test results from previous instructional assignments;
9.1.3 understanding of the program objectives; and
9.1.4 knowledge and skill in the instructional
methodology and learning processes to be employed.
9.2 The persons applying for instructor certification in
teaching a real estate related topic must have five (5) years of
full time experience in the trade, business, or profession that
relates to the topic of instruction to be taught, and meet at
least one (1) of the following sets of qualifications:
9.2.1 An approved instructor must meet two of the
following criteria:
9.2.1.1 a Bachelor's degree
9.2.1.2 a Broker's Certificate
9.2.13 a professional designation such as, but
not limited to; ALC (Accredited Land Consultant), CRS
(Certified Residential Specialist), CCIM (Certified
Commercial Investment Member) CPM (Certified Property
Manager), CRB (Certified Residential Broker), CRE
(Counselor Real Estate), MAI (Member Appraisal Institute),
SIOR (Society Industrial Office Realtors) SRA (Senior
Residential Appraiser), SRPA (Senior Real Property
Appraiser), but not including GRI (Graduate Realtor
Institute);
9.2.2 Possession of a valid teaching credential or
certificate issued in the State of Delaware (or any State with
qualifications that are equal to, or that exceed the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1400 FINAL REGULATIONS
qualification standards of the State of Delaware), and/or five
(5) years of teaching experience in an accredited public,
private, or parochial school; and/or five (5) years teaching
experience in an accredited junior college, college or
university.
9.2.3 A fully designated senior member of the Real
Estate Educators Association who has been issued the DREI
(Designated Real Estate Instructor) designation.
9.3 The Commission may waive the above
requirements contingent upon review of proof of collateral
experience in related fields of real estate. The Commission
reserves the right to exercise its discretion in denying an
applicant who has had a disciplinary action taken against
him/her.
9.4 In addition to the qualifications listed above, the
Commission shall take into consideration evaluations from
previous programs that the applicant has instructed. The
Commission will also take into consideration
recommendations or absence thereof of course providers,
course coordinators, administrators and institutions that have
employed the applicant.
9.5 The Education Committee may, at its discretion,
subject to Commission approval, require a potential
instructor to take a teaching methodology course (such as
those given by colleges and universities) and/or a teaching
methods seminar (such as currently given by the National
Association of Realtors or Real Estate Educator's
Association).
10.0 Instructor Approval Process
10.1 Applicants for instructor shall submit an
application (on forms approved by the Commission), resume
and any applicable fees to the Division of Professional
Regulation, Delaware Real Estate Commission, Education
Committee, 861 Silver Lake Boulevard, Suite 203, Dover,
DE 19904-2467, at least sixty (60) days prior to the
employment starting date. Failure to file within the
appropriate time limit may be cause for rejection.
Recommendations of the Education Committee shall be
made to the Commission within thirty (30) days after the
Education Committee receives and reviews the application.
An application that is incomplete when filed shall not be
considered to have been filed.
10.2 Upon approval, an instructor may be certified for a
period of two (2) calendar years. An instructor may be
certified in more than one subject or topic area, (e.g. prelicensing
math, pre-licensing law, fair housing, ethics, etc.).
An instructor may only teach courses as preapproved by the
Commission. Instructor certification can not be
automatically renewed. Instructors will need to reapply by
the certification expiration date and before teaching any
further courses or programs. Applications are available from
the Commission office.
10.4 An Instructor may receive credit for continuing
education hours towards the real estate license renewal
requirement in the same amount of hours as approved for
credit for the course/topic being taught. This is a one time
credit per licensure period, regardless of the number of times
that said course/topic is taught during said course or
instructor certification period.
10.5 The Education Committee shall have the right to
recommend to the Commission that a certified instructor lose
the privilege of certification for the remainder of the
certification period if the Education Committee determines
that the instructor is not maintaining the standards and/or
policies required in these guidelines.
10.6 It is the Stated Policy of the Delaware Real Estate
Commission That at No Time During Periods of Instruction
Shall Any Person Involved in Any Approved Real Estate
Educational Activity, Use, or Attempt to Use, the Position of
Instructor, Sponsor or Provider Etc., to Solicit Employees or
Sales Representatives.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF VETERINARY MEDICINE
24 DE Admin. Code 3300
Statutory Authority: 24 Delaware Code,
Section 3306(a)(1) (24 Del.C. 3306(a)(1))
Summary of the Evidence and Information Submitted
Written Comments
There were no written comments received addressing
the proposed rules and regulations.
Sworn Testimony
Dr. Bruce Damme testified that the Rules and
Regulations should establish a separate classification of
veterinary technicians. Dr. Damme testified that he believed
that the proposed Rules and Regulations should establish
veterinary technicians and that the Board would be following
the example of surrounding states by creating a classification
of veterinary technicians. Dr. Damme testified that there is
support for veterinary technicians in the Delaware veterinary
community. Dr. Damme testified that veterinary technicians
should be allowed to perform some of the tasks relegated to
support personnel in the proposed Rules and Regulations.
Dr . Damme testified that the proposed Rules and
Regulations were "too liberal" by allowing support
personnel to perform too many tasks. Dr. Damme further
testified that support personnel should not be allowed to
induce anesthesia but that veterinary technicians should be
allowed to induce anesthesia given their education.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1401
Dr. Paul Hanebutt testified and supported the comments
made by Dr. Damme concerning the establishment of
veterinary technicians. Dr. Hanebutt also testified
concerning the minimum number of years that records must
be kept pursuant to proposed Rule 2.1.7. According to Dr.
Hanebutt, the three (3) year requirement to keep veterinary
records was not long enough. Dr. Hanebutt related various
scenarios regarding the life expectancy of pets (especially
large animals), livestock feed miscalculations, the keeping of
radiographs (imaging technologies), and vaccine records to
illustrate the need to retain veterinary records for a longer
period of time. Dr. Hannebutt suggested that a longer time
frame, seven (7) to nine (9) years, would be more
appropriate regarding the retention of veterinary records.
Dr. Valerie Quillen, a resident veterinarian and
department chair for the veterinary technician program for
Delaware Technical and Community College, also testified
that veterinary technicians should be established in the
proposed Rules and Regulations. Dr. Quillen testified that
two types of supervision should be established - indirect
and direct supervision. According to Dr. Quillen, direct
supervision should require that the veterinarian be "on the
premises." Dr. Quillen suggested that indirect supervision
should require that the veterinarian should be available by
other means ( i.e. electronic means). Dr. Quillen stated that
the tasks of cystocentesis and urinary catheterization
placement should not be performed by support personnel as
stated in the proposed Rules and Regulations. Dr. Quillen
had previously suggested that these tasks be included in the
proposed Rules and Regulations so that her veterinary
technician students could gain these skills.
Findings of Fact
1. Pursuant to 24 Del. C. § 3306 (a) (1), the Board of
Veterinary Medicine of the State of Delaware (the "Board")
proposed to revise to its Rules and Regulations as more
specifically set forth in the Hearing Notice which is attached
hereto as Exhibit "A" and incorporated herein.
2. Pursuant to 29 Del. C. § 10115, notice was given to
the public that a hearing would be held on November 13,
2001, at 1:00 p.m. in the Second Floor Conference Room
"A" of the Cannon Building, 861 Silver Lake Boulevard,
Dover, Delaware to consider the proposed revision. Notice
was posted in two Delaware newspapers of general
circulation as more specifically set forth in the affidavits
which are attached hereto as Exhibits "B" and "C" and
incorporated herein.
3. The notice invited the public to submit written
comments regarding the proposed revision.
4. A hearing was held on November 13, 2001, at which
a quorum of the Board of Veterinary Medicine was present.
The hearing was in the Cannon Building in the Public
Service Commission Room on the 1st floor. Signs were
posted informing the public of the change in room
assignment and are attached hereto as Exhibit "D" and
incorporated herein.
5. The Board of Veterinary Medicine finds the
proposed revisions serve to implement or clarify specific
sections of 24 Del. C. Chapter 33.
6. The Board finds that the Rules and Regulations
cannot incorporate veterinary technicians because the Board
does not have the authority to do so under the current
practice act. The Board finds that the incorporation of
veterinary technicians as a separate classification must come
from a statutory change enacted by the General Assembly.
Significant issues, including the required qualifications for
veterinary technicians, the possibility of reciprocity with
other jurisdictions, the fate of current support personnel,
would more properly be addressed by the legislature. The
decision not to include veterinary technicians into the Rules
and Regulations does not in any way reflect an opposition by
the Board to the possible future inclusion of veterinary
technicians into Chapter 33 of the Delaware Code.
7. The Board finds that the induction of anesthesia by
support personnel is prohibited by 24 Del. C. § 3303 (a) (10).
8. The Board finds that its statute only allows for the
direct supervision of persons performing support activities
(support personnel) pursuant to 24 Del. C. § 3303 (a) (10).
The Board finds that its definition of direct supervision in its
Rules and Regulations to be sufficient to protect the public
while allowing support personnel to assist veterinarians.
The Board also finds that the Rules and Regulations are not
"too liberal" in the assignment of various tasks to support
personnel.
9. The Board finds that cystocentesis and urinary
catheterization are activities that may properly be performed
by support personnel under the direct supervision of a
licensed Delaware veterinarian.
Text and Citation
The text of the Rules and Regulations hereby
promulgated are as it appeared in the Delaware Register of
Regulations, Vol. 5, Issue 4 (October 1, 2001). The text is
attached hereto as Exhibit "E" with the changes noted.
Decision
NOW, THEREFORE, based on the Board of
Veterinary Medicine's authority to formulate rules and
regulations pursuant to 24 Del. C. § 3306 (a) (1), it is the
decision of the Board of Veterinary Medicine to adopt a
majority of the proposed revisions of its Rules and
Regulations. The Board has decided to strike proposed Rule
2.1.7 to further clarify the retention of veterinary records.
The proposed changes to Rule 2.1.7 will be published in the
Register of Regulations and the Board will proceed to a
public hearing in accordance with the Delaware
Administrative Procedures Act. The Board has also
decided to change the incorrect cited statutory reference for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1402 FINAL REGULATIONS
Rule 5.1.4 from 24 Del. C. § 3303 to 24 Del. C. § 3309. The
remainder of the Proposed Rules and Regulations have been
passed by the Board. A copy of the rules and regulations is
attached hereto as Exhibit "F" and incorporated herein. Such
regulations shall be effective ten days after the date this
Order is published in its final form in the Register of
Regulations.
IT IS SO ORDERED this 11th day of December , 2001.
Delaware State Board Of Veterinary Medicine
John T. Gooss, V.M.D., President
William Cross, Vice-President, Public Member
Caroline Hughes, V.M.D., Professional Member
Sharon Litttle, D.V.M., Professional Member
Peggy Swygert, Public Member
Board of Veterinary Medicine
Statutory Authority: 24 Del.C. 3306(a)(1)
1.0 Filing Date for Examinations
2.0 Qualification for Licensure by Examination as a
Veterinarian
3.0 Character of Examination - National Board
Examination and Clinical Competency Test
4.0 Licensure - Renewal
5.0 Licenses, Certifications and Registrations Display
6.0 Continuing Education
7.0 Reciprocity
8.0 Voluntary Treatment Option for Chemically Dependent
or Impaired Professionals
1.0 Filing Date for Examinations
1.1 An applicant taking examinations in the State of
Delaware must have the completed application filed with the
Board office nine weeks before the announced date of the
examination as established by the testing service.
1.2 The examination will be given at least once
annually on the date(s) established by the testing service.
See 1 DE Reg. 1573 (4/1/98)
2.0 Qualification for Licensure by Examination as a
Veterinarian
2.1 Applicant shall file the following documents:
2.1.1 Completed application form obtained from
the Board office.
2.1.2 Official transcript from an AVMA approved
veterinary college or university or its equivalent
(Educational Commission for Foreign Veterinary
Graduates).
2.1.3 Letters of good standing from any other
jurisdictions in which applicant is/or has been licensed.
2.1.4 Official National Board Examination (NBE)
and Clinical Competency Test (CCT) scores.
2.1.5 Check or money order payable to the "State
of Delaware" for the amount prescribed by the Division of
Professional Regulation
See 1 DE Reg. 1573 (4/1/98)
2.2 Only completed applications will be accepted. In
case of incomplete applications, omissions will be noted to
the applicant. Any information provided to the Board is
subject to verification.
See 1 DE Reg. 1573 (4/1/98)
3.0 Character of Examination - National Board
Examination and Clinical Competency Test
3.1 Examination for licensure to practice veterinary
medicine in the State of Delaware shall consist of the
National Board Examination ("NBE") and the Clinical
Competency Test ("CCT").
3.1.1 Passing scores for the NBE and CCT shall be
the score as recommended by the National Board
Examination Committee.
4.0 Licensure - Renewal
4.1 All licenses are renewed biennially (every 2 years).
A licensee may have his/her license renewed by submitting a
renewal application to the Board by the renewal date and
upon payment of the renewal fee prescribed by the Division
of Professional Regulation along with evidence of
completion of continuing education requirements. The
failure of the Board to give, or the failure of the licensee to
receive, notice of the expiration date of a license shall not
prevent the license from becoming invalid after its expiration
date.
4.2 All licensees must meet the continuing education
requirements of a total of twenty-four (24) hours for two (2)
years.
4.3 Any licensee who fails to renew his/her license by
the renewal date may still renew his/her license during the
one (1) year period immediately following the renewal date
provided the licensee pay a late fee established by the
Division of Professional Regulation in addition to the
prescribed renewal fee.
5.0 Licenses, Certifications and Registrations Display
Each licensed veterinarian shall have posted or
displayed at his/her office, in full view of clients, his/her
Delaware license to practice veterinary medicine.
6.0 Continuing Education
6.1 Any veterinarian (active or inactive) licensed to
practice in the State of Delaware shall meet the following
continuing education requirements to the satisfaction of the
Board.
6.1.1 Twenty-four (24) hours of approved certified
continuing education credits for the immediate two year
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1403
period preceding each biennial license renewal date.
6.1.2 The number of credit hours shall be
submitted to the Board with each biennial license renewal
application on the proper reporting form supplied by the
Board.
6.2 The Board may approve continuing education
courses or sponsors upon written application on Board
supplied forms. In addition, the Board may approve
continuing education courses or sponsors on its own motion.
6.3 The following organizations are approved for
formal continuing education activities.
6.3.1 AVMA
6.3.2 AVMA accredited schools
6.3.3 Federal/State/County Associations
6.3.4 Correspondence and In-House: Compendium
on continuing education for the practicing veterinarian;
Internet; NOAH; VIN. This may be used to satisfy 1/2 of the
continuing education requirement.
6.3.5 Other forms of CE as long as a Veterinary
Board Certified Diplomate or Veterinary Board Qualified
Presenter presents the activity and the activity is approved
by the Delaware Board of Veterinary Medicine. This may
be used to satisfy 1/2 of the continuing education requirement.
6.3.6 University course work consisting of postgraduate
credits, subject to Board approval.
6.4 Accreditation by the Board of continuing education
courses will be based upon program content. Continuing
education courses shall be directed toward improvement,
advancement, and extension of professional skill and
knowledge relating to the practice of veterinary medicine.
6.5 The Board may at any time re-evaluate an
accredited course or sponsor and withdraw its approval of a
previously accredited continuing education course or
sponsor.
See 1 DE Reg. 1573 (4/1/98)
7.0 Reciprocity
Applications for licensure by reciprocity shall be the
same application used for licensure by examination and be
subject to the same application requirements set forth in
Section 2.0
8.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
8.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
8.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
8.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency
or impairment due to addiction to drugs or alcohol may enter
into the Voluntary Treatment Option and continue to
practice, subject to any limitations on practice the
participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
8.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
8.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1404 FINAL REGULATIONS
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
8.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
8.6.5 Agreement by the regulated professional that
failure to satisfactorily progress in such treatment program
shall be reported to the participating Board's chairperson or
his/her designate or designates or to the Director of the
Division of Professional Regulation or his/ her designate by
the treating professional who shall be immune from any
liability for such reporting made in good faith and without
malice.
8.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
8.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public records
open to public inspection. However, the participating Board
may consider such records in setting a disciplinary sanction
in any future matter in which the regulated professional's
chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
8.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
8.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
8.11 Any person who reports pursuant to this section in
good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
1.0 Direct Supervision
2.0 Unprofessional Conduct
3.0 Privileged Communications
4.0 Veterinary Premises and Equipment
5.0 Qualification for Licensure by Examination as a
Veterinarian
6.0 Character of Examination - North American
Veterinary
Licensing Examination (NAVLE)
7.0 Reciprocity
8.0 Licensure - Renewal
9.0 Continuing Education
10.0 Voluntary Treatment Option
1.0 DIRECT SUPERVISION (24 Del. C. § 3303(10))
1.1 Direct Supervision - refers to the oversight of
any person performing support activities (support personnel)
by a licensed Delaware veterinarian. Oversight includes
control over the work schedule of the person performing
support activities and any remuneration the person receives
for performing such activities. Oversight does not include
remuneration paid directly to support personnel by the
public. The constant physical presence of the licensed
veterinarian on the premises is not required, however, if the
licensed veterinarian is accessible to support personnel by
electronic means or has arranged for another supervising
licensed veterinarian to be accessible by electronic means.
All acts by support personnel not prohibited by Rule 1.2
which constitute the practice of veterinary medicine under
24 Del.C. §3302 (6) must be performed under direct
supervision. Direct supervision of support personnel also
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1405
includes:
1.1.1 The initial examination of the animal by
the veterinarian prior to the delegation of work to be
performed by support personnel. The veterinarian may,
however, authorize support personnel to administer
emergency measures prior to the initial examination.
1.1.2 The development of a treatment plan by
the veterinarian that shall be referenced by support
personnel.
1.1.3 The authorization by the veterinarian of
the work to be performed by support personnel.
1.2 At no time may support personnel perform the
following activities (24 Del. C. § 3303(10)):
1.2.1 Diagnosing.
1.2.2 Prescribing.
1.2.3 Inducing Anesthesia.
1.2.4 Performing Surgery.
1.2.5 Administration of Rabies Vaccinations.
1.2.6 Operative dentistry and oral surgery.
1.2.7 Centesis of body structures (not to include
venipuncture and cystocentesis) in other than emergency
situations.
1.2.8 The placement of tubes into closed body
structures, such as chest tubes, in other than emergency
situations (not to include urinary or IV catheters).
1.2.9 Splinting or casting of broken bones in
other than emergency situations.
1.2.10 Euthanasia.
1.2.11 Issue health certificates.
1.2.12 Perform brucellosis, equine infectious
anemia and tuberculosis tests and other tests which are
regulated by federal and state guidelines.
2.0 UNPROFESSIONAL CONDUCT (24 Del.C.
§3313(a)(1))
2.1 Unprofessional conduct in the practice of
veterinary medicine shall include, but not be limited to, the
following;
2.1.1 Allowing support personnel to perform the
acts forbidden under Section 1.2 of the Rules and
Regulations.
2.1.2 Allowing support personnel to perform
tasks without the required direct supervision as specified in
Section 1.1 of the Rules & Regulations.
2.1.3 Representation of conflicting interests
except by express consent of all concerned. A licensee
represents conflicting interests if while employed by a buyer
to inspect an animal for soundness he or she accepts a fee
from the seller. Acceptance of a fee from both the buyer and
the seller is prima facie evidence of fraud.
2.1.4 Use by a veterinarian of any certificate,
college degree, license, or title to which he or she is not
entitled.
2.1.5 Intentionally performing or prescribing
treatment, which the veterinarian knows to be unnecessary,
for financial gain.
2.1.6 Placement of professional knowledge,
attainments, or services at the disposal of a lay body,
organization or group for the purpose of encouraging
unqualified groups or individuals to perform surgery upon
animals or to otherwise practice veterinary medicine on
animals that they do not own.
2.1.7 [Destruction of patient records
(including rabies records, radiographs and ultrasounds)
before three years have elapsed.][Intentionally left
blank]
2.1.8 Cruelty to animals. Cruelty to animals
includes, but is not limited to, any definition of cruelty to
animals under 11 Del.C. §1325.
2.1.8.1 Animal housing (such as cages,
shelters, pens and runs) should be designed with maintaining
the animal in a state of relative thermal neutrality, avoiding
unnecessary physical restraint, and providing convenient
access to appropriate food and water. If animals are group
housed, they should be maintained in compatible groups
without overcrowding.
2.1.8.2 Housing should be kept in good repair
to prevent injury to the animal.
2.1.8.3 Failure to take precautions to prevent
the spread of communicable diseases in housing animals.
2.1.9 Leaving an animal during the maintenance
stage of anesthesia.
2.1.10 Improper labeling of prescription drugs.
The package or label must contain:
2.1.10.1 Name, strength, and quantity of the
drug;
2.1.10.2 Usage directions.
2.1.11 Failure to make childproof packaging
available for prescription drugs upon the request of a client.
2.1.12 Misrepresenting continuing education
hours to the Board.
2.1.13 Failure to obey a disciplinary order of the
Board.
3.0 PRIVILEGED COMMUNICATIONS (24 Del.C.
§3313(a)(7))
3.1 Privileged Communications. Veterinarians
must protect the personal privacy of patients and clients by
not willfully revealing privileged communications regarding
the diagnosis and treatment of an animal. The following are
not considered privileged communications:
3.1.1 The sharing of veterinary medical
information regarding the diagnosis and treatment of an
animal when required by law, subpoena, or court order or
when it becomes necessary to protect the health and welfare
of other individuals or animals.
3.1.2 The sharing of veterinary medical
information between veterinarians or facilities for the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1406 FINAL REGULATIONS
purpose of diagnosis or treatment of animals.
3.1.3 The sharing of veterinary medical
information between veterinarians and peace officers,
humane society officers, or animal control officers who are
acting to protect the welfare of individuals or animals.
4.0 VETERINARY PREMISES & EQUIPMENT (24
Del.C. §3313 (9))
4.1 The animal facility shall be kept clean. A
regular schedule of sanitary maintenance is necessary,
including the elimination of wastes.
4.2 Animal rooms, corridors, storage areas, and
other parts of the animal facility shall be washed, scrubbed,
vacuumed, mopped, or swept as often as necessary, using
appropriate detergents and disinfectants to keep them free of
dirt, debris, and harmful contamination.
4.3 Animal cages, racks, and accessory equipment,
such as feeders and water utensils, shall be washed and
sanitized as often as necessary to keep them physically clean
and free from contamination. In addition, cages should
always be sanitized before new animals are placed in them.
Sanitizing may be accomplished either by washing all soiled
surfaces with a cleaning agent having an effective
bactericidal action or with live steam or the equivalent
thereof.
4.4 Cages or pens from which animal waste is
removed by hosing or flushing shall be cleaned and suitably
disinfected one or more times daily. Animals should be
removed from cages during servicing in order to keep the
animals dry.
4.5 If litter or bedding such as paper is used in
animal cages or pens, it shall be changed as often as
necessary to keep the animals clean.
4.6 Waste disposal must be carried out in
accordance with good public health practice and federal and
state regulations. Waste materials should be removed
regularly and frequently so that storage of waste does not
create a nuisance.
4.7 Biomedical waste such as culture plates, tubes,
contaminated sponges, swabs, biologicals, needles, syringes,
and blades, must be disposed of according to federal and
state guidelines. Before disposing of blood soiled articles,
they shall be placed in a leak-proof disposable container
such as a plastic sack or a plastic-lined bag.
4.8 Proper refrigeration and sterilization
equipment should be available.
4.9 Adequate safety precautions must be used in
disposing animal carcasses and tissue specimens. An animal
carcass shall be disposed of promptly according to federal
and state law and regulations. If prompt disposal of an
animal carcass is not possible, it shall be contained in a
freezer or stored in a sanitary, non-offensive manner until
such time as it can be disposed. Livestock shall be disposed
of by any acceptable agricultural method.
4.10 The elimination or effective control of vermin
shall be mandatory.
5.0 QUALIFICATION FOR LICENSURE BY
EXAMINATION AS A VETERINARIAN (24 Del.C.
§3307)
5.1 The applicant shall file the following
documents:
5.1.1 Completed application form obtained from
the Board office. The application fee shall be set by the
Division of Professional Regulation. The check for the
application fee should be made payable to the State of
Delaware.
5.1.2 Official transcript from an AVMA
approved veterinary college or university or its equivalent
(Educational Commission for Foreign Veterinary
Graduates).
5.1.3 Letters of good standing from any other
jurisdictions in which the applicant is/or has been licensed.
5.1.4 North American Veterinary Licensing
Examination (NAVLE) score or both the official National
Board Examination (NBE) and Clinical Competency Test
(CCT) scores, unless the applicant meets the statutory
exemptions in 24 Del. C. § [3303][3309].
5.1.5 Check or money order for the amount
established by the Division of Professional Regulation. The
license fee shall by set by the Division of Professional
Regulation. Fees should be made payable to the "State of
Delaware."
5.2 Only completed application forms will be
accepted. In the case of incomplete application forms,
omissions will be noted to the applicant. Any information
provided to the Board is subject to verification.
5.3 Applications for any licensure submitted by
final year veterinary students enrolled in an AVMA
accredited university for the purpose of taking the NAVLE
exam will be considered complete only upon proof of the
applicant's graduation. Such applicants must demonstrate
probability of graduation and will not be considered for any
licensure until proof of graduation is submitted to the Board.
6.0 CHARACTER OF EXAMINATION - NORTH
AMERICAN VETERINARY LICENSING
EXAMINATION (NAVLE) (24 Del.C. §3306)
6.1 Examination for licensure to practice
veterinary medicine in the State of Delaware shall consist of
the North American Veterinary Licensing Examination
(NAVLE) after November 2000 or its successor.
6.1.1 The passing score for the NAVLE shall be
the score as recommended by the National Board of
Veterinary Medical Examiners or its successor.
7.0 RECIPROCITY (24 Del.C. §3309)
Applications for licensure by reciprocity shall be the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1407
same application used for licensure by examination and be
subject to the same application requirements set forth in 24
Del.C. §3309.
8.0 LICENSURE - RENEWAL (24 Del.C. §3311)
8.1 All licenses are renewed biennially (every 2
years). A licensee may have his/her license renewed by
submitting a renewal application to the Board by the renewal
date and upon payment of the renewal fee prescribed by the
Division of Professional Regulation along with evidence of
completion of continuing education requirements.
Continuing education requirements for renewal are specified
in Section 9.0. The failure of the Board to give, or the failure
of the licensee to receive, notice of the expiration date of a
license shall not prevent the license from becoming invalid
after its expiration date.
8.2 Any licensee who fails to renew his/her license
by the renewal date may still renew his/her license during the
one (1) year period immediately following the renewal date
provided the licensee pay a late fee established by the
Division of Professional Regulation in addition to the
established renewal fee and submitting the continuing
education requirements for renewal as specified in Section
9.0.
9.0 CONTINUING EDUCATION (24 Del.C. §3311(b))
9.1 Any veterinarian actively licensed to practice
in the State of Delaware shall meet the following continuing
education requirements to the satisfaction of the Board.
9.1.1 Twenty-four (24) hours of approved
certified continuing education credits must be completed for
the immediate two year period preceding each biennial
license renewal date.
9.1.2 The number of credit hours shall be
submitted to the Board with each biennial license renewal
application on the proper reporting form supplied by the
Board. The continuing education credit hours shall be
submitted to the Board no later than 60 days prior to the
biennial license renewal date. The Board may audit the
continuing education credit hours submitted by a licensee.
9.1.3 A veterinarian may apply to the Board in
writing for an extension of the period of time needed to
complete the continuing education requirement for good
cause such as illness, extended absence from the country, or
unique personal hardship which is not the result of
professional negligence.
9.2 Continuing Education Requirements for
Reinstatement of Lapsed Licence
9.2.1 Any veterinarian whose license to practice
in the State of Delaware has lapsed and who has applied for
reinstatement shall meet the following continuing education
requirements to the satisfaction of the Board.
9.2.1.1 Lapse of 12 to 24 months. Twentyfour
(24) hours of continuing education credits must be
completed. The 24 hours of continuing education credits
must have been completed within 2 years prior to the request
for reinstatement.
9.2.1.2 Lapse of over 24 months. Thirty-six
(36) hours of continuing education credits must be
completed. The 36 hours of continuing education credits
must have been completed within 4 years prior to the request
for reinstatement.
9.3 Continuing Education Requirements for
Reinstatement of Inactive License
9.3.1 Twenty-four (24) hours of continuing
education credits must be submitted for licensees on the
inactive roster who wish to remove their license from
inactive status. The 24 hours of continuing education credits
must have been completed within 2 years prior to the request
for removal from inactive status.
9.4 The Board may approve continuing education
courses or sponsors upon written application on Board
supplied forms. In addition, the Board may approve
continuing education courses or sponsors on its own motion.
9.5 The following organizations are approved for
formal continuing education activities.
9.5.1 AVMA.
9.5.2 AVMA accredited schools.
9.5.3 Federal/State/County Veterinary
Associations & USDA.
9.5.4 Compendium on Continuing Education for
the Practicing Veterinarian; NOAH; VIN.
9.5.5 Registry of Approved Continuing
Education (RACE) courses.
9.6 Accreditation by the Board of continuing
education courses will be based upon program content.
Continuing education courses shall be directed toward
improvement, advancement, and extension of professional
skill and knowledge relating to the practice of veterinary
medicine.
9.6.1 University course work, subject to Board
approval.
9.6.2 Veterinary course work completed prior to
graduation may be approved for continuing education credit
for the first renewal period after graduation provided the
course work was completed no more that 2 1/2 years before
the renewal date.
9.6.3 Government Agencies.
9.6.4 Other forms of CE as long as and the
activity is approved by the Board.
9.7 The Board may at any time re-evaluate an
accredited course or sponsor and withdraw future approval
of a previously accredited continuing education course or
sponsor.
10.0 VOLUNTARY TREATMENT OPTION
10.1 If the report is received by the chairperson of
the regulatory Board, that chairperson shall immediately
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1408 FINAL REGULATIONS
notify the Director of Professional Regulation or his/her
designate of the report. If the Director of Professional
Regulation receives the report, he/she shall immediately
notify the chairperson of the regulatory Board, or that
chairperson's designate or designates.
10.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
10.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
10.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
10.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
10.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
10.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
10.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
10.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
10.6.4 Agreement by the regulated professional
to be personally responsible for all costs and charges
associated with the Voluntary Treatment Option and
treatment program(s). In addition, the Division of
Professional Regulation may assess a fee to be paid by the
regulated professional to cover administrative costs
associated with the Voluntary Treatment Option. The
amount of the fee imposed under this subparagraph shall
approximate and reasonably reflect the costs necessary to
defray the expenses of the participating Board, as well as the
proportional expenses incurred by the Division of
Professional Regulation in its services on behalf of the Board
in addition to the administrative costs associated with the
Voluntary Treatment Option.
10.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
10.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
10.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1409
issue.
10.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
10.9 If practice is restricted, the regulated
professional may apply for unrestricted licensure upon
completion of the program.
10.10 Failure to enter into such agreement or to
comply with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF MASSAGE & BODYWORK
24 DE Admin. Code 5300
Statutory Authority: 24 Delaware Code,
Section 5306(1) (24 Del.C. 5306(1))
Order Adopting Rules and Regulations
AND NOW, this 6th day of December, 2001, in
accordance with 29 Del. C. § 10118 and for the reasons
stated hereinafter, the Board of Massage and Bodywork of
the State of Delaware (hereinafter "the Board") enters this
Order adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Board's authority under 24 Del. C. §
5306(1) and 5306(7), the Board proposed to revise its
existing Rules and Regulations to clarify existing Rule 6.3.2,
popularly known as the "25% Rule," a rule regarding the
continuing education requirement for renewal of certificates
and licenses. Notice of the public hearing to consider the
proposed amendments to the Rules and Regulations was
published in the Delaware Register of Regulations dated
October 1, 2001, and two Delaware newspapers of general
circulation, in accordance with 29 Del. C. § 10115. The
public hearing was held on November 1, 2001 at 1:30 p.m. in
Dover, Delaware, as duly noticed, and at which a quorum of
the Board was present. The Board deliberated and voted on
the proposed revisions to the Rules and Regulations. This is
the Board's Decision and Order ADOPTING the
amendments to the Rules and Regulations as proposed.
II. Evidence and Information Submitted
The Board received no written comments in response to
the notice of intention to adopt the proposed revisions to the
Rules and Regulations. At the November 1, 2001 hearing,
although members of the public were present, the Board
received no public comment regarding the proposed
changes.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Board with comments.
2. The proposed amendments to the Rules and
Regulations are necessary to clarify Rule 6.3.2, and to assist
licensees in understanding that the application of this
continuing education rule results in a limitation of the total
number of continuing education hours that are permissible in
specified areas and methods during a licensure period.
3. The Board concludes that it has statutory authority to
promulgate rules and regulations pursuant to 24 Del. C. §
5306(1). The Board further concludes that it has statutory
authority to establish by rule or regulation continuing
education standards required for license and certificate
renewal in accordance with 24 Del. C. § 5306(7).
4. For the foregoing reasons, the Board concludes that it
is necessary to adopt amendments to its Rules and
Regulations, and that such amendments are in furtherance of
its objectives set forth in 24 Del. C. Chapter 53.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Board, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del. C. §
10118(g).
By Order Of The Board Massage And Bodywork
(As Authenticated By A Quorum Of The Board)
Allan Angel, President, Public Member
Phyllis E. Mikell, Vice President, Professional Member
Daniel Stokes, Secretary, Professional Member
Carla Arcaro, Professional Member
Patricia A. Beetschen, Professional Member
Vivian L. Cebrick, Public Member
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1410 FINAL REGULATIONS
Katherine J. Marshall, Public Member
Board of Massage and Bodywork
1.0 Definitions
2.0 Filing of Application for Licensure as
Massage/Bodywork Therapist
3.0 Examination
4.0 Application for Certification as Massage Technician.
5.0 Expired License or Certificate
6.0 Continuing Education
7.0 Scope of Practice
8.0 Voluntary Treatment Option for Chemically Dependent
or Impaired Professionals
1.0 Definitions and General Definitions
1.1 The term "500 hours of supervised in-class study"
as referenced in 24 Del.C. §5308(a)(1) shall mean that an
instructor has controlled and reviewed the applicant's
education on the premises of a school or approved program
of massage or bodywork therapy, and can document that the
applicant has successfully completed a curriculum that is
substantially the same as referenced in 24 Del.C. §
5308(a)(1) and which includes hands-on technique and
contraindications as they relate to massage and bodywork.
More than one school or approved program of massage or
bodywork therapy may be attended in order to accumulate
the total 500 hour requirement.
1.2 The term a "100-hour course of supervised in-class
study of massage" as referenced in 24 Del.C. §5309(a)(1)
shall mean that an instructor has controlled and reviewed the
applicant's education on the premises of a school or
approved program of massage or bodywork therapy, and can
document that the applicant has successfully completed a
100 hour course which includes hands-on technique and
theory, and anatomy, physiology, and contraindications as
they relate to massage and bodywork.
1.2.1 The 100 hour course must be a unified
introductory training program in massage and bodywork,
including training in the subjects set forth in Rule 1.2. The
entire 100 hour course must be taken at one school or
approved program. The Board may, upon request, waive the
"single school" requirement for good cause or hardship, such
as the closure of a school.
4 DE Reg. 1245 (2/1/01)
1.3 The "practice of massage and bodywork" includes,
but is not limited to, the following modalities:
Acupressure
Chair Massage
Craniosacral Therapy
Deep Tissue Massage Therapy
Healing Touch
Joint Mobilization
Lymph Drainage Therapy
Manual Lymphatic Drainage
Massage Therapy
Myofascial Release Therapy
Neuromuscular Therapy
Orthobionomy
Process Acupressure
Reflexology
Rolfing
Shiatsu
Swedish Massage Therapy
Trager
Visceral Manipulation
1.4 The practice of the following modalities does not
constitute the "practice of massage and bodywork":
Alexander Technique
Aroma therapy
Feldenkrais
Hellerwork
Polarity Therapy
Reiki
Shamanic Techniques
Therapeutic Touch
3 DE Reg. 1516 (5/1/00)
2.0 Filing of Application for Licensure as Massage/
Bodywork Therapist
2.1 A person seeking licensure as a massage/bodywork
therapist must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of a current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5308(3); and (2) payment
of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
2.2 In addition to the application and materials
described in 2.1 of this Rule, an applicant for licensure as a
massage/bodywork therapist shall have (1) each school or
approved program of massage or bodywork where the
applicant completed the hours of study required by 24 Del.C.
§5308(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed; and
(2) Assessment Systems, Incorporated or its predecessor,
submit to the Board verification of the applicant's score on
the written examination described in Rule 3.0 herein.
2.3 The Board shall not consider an application for
licensure as a massage/bodywork therapist until all items
specified in 2.1 and 2.2 of this Rule are submitted to the
Board's office.
2.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1411
is first reviewed by the Board, the Board will propose to
deny the application.
2.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
2.4 Renewal. Applicants for renewal of a massage/
bodywork therapist license shall submit a completed renewal
form, renewal fee, proof of continuing education pursuant to
Rule 6.0 and a copy of a current certificate from a State
certified cardiopulmonary resuscitation program. License
holders shall be required to maintain current CPR
certification throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
3.0 Examination
The Board designates the National Certification
Examination administered by the National Certification
Board for Therapeutic Massage and Bodywork
("NCBTMB") as the written examination to be taken by all
persons applying for licensure as a massage/bodywork
therapist. The Board will accept as a passing score on the
exam the passing score established by the NCBTMB.
4.0 Application for Certification as Massage Technician
4.1 A person seeking certification as a massage
technician must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5309(a)(2); and (2)
payment of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
4.2 In addition to the application and materials
described in 4.1 of this Rule, an applicant for certification as
a massage technician shall have the school or approved
program of massage or bodywork therapy where the
applicant completed the hours or study required by 24 Del.C.
§5309(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed.
4.3 The Board shall not consider an application for
certification as a massage technician until all items specified
in 4.1 and 4.2 of this Rule are submitted to the Board's
office.
3 DE Reg. 1516 (5/1/00)
4.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
is first reviewed by the Board, the Board will propose to
deny the application.
4.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
4.4 Renewal. Applicants for renewal of a massage
technician certificate shall submit a completed renewal form,
renewal fee, proof of continuing education pursuant to Rule
6.0 and a copy of a current certificate from a State certified
cardiopulmonary resuscitation program. Certificate holders
shall be required to maintain current CPR certification
throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
5.0 Expired License or Certificate
An expired license as a massage/bodywork therapist or
expired certificate as a massage technician may be reinstated
within one (1) year after expiration upon application and
payment of the renewal fee plus a late fee as set by the
Division of Professional Regulation, and submission of
documentation demonstrating compliance with the
continuing education requirements.
6.0 Continuing Education
6.1 Hours required. For license or certification periods
beginning September 1, 2000 and thereafter, each massage/
bodywork therapist shall complete twenty-four (24) hours of
acceptable continuing education during each biennial
licensing period, except as otherwise provided in these Rules
and Regulations. Each massage technician shall complete
twelve (12) hours of acceptable continuing education during
each biennial licensing period, except as otherwise provided
in these Rules and Regulations. Completion of the required
continuing education is a condition of renewing a license or
certificate. Hours earned in a biennial licensing period in
excess of those required for renewal may not be credited
towards the hours required for renewal in any other licensing
period.
6.1.1 Calculation of Hours. For academic course
work, correspondence courses or seminar/workshop
instruction, one (1) hour of acceptable continuing education
shall mean 50 minutes of actual instruction. One (1)
academic semester hour shall be equivalent to fifteen (15)
continuing education hours; one (1) academic quarter hour
shall be equivalent to ten (10) continuing education hours.
4 DE Reg. 1245 (2/1/01)
6.1.2 If during a licensing period an individual
certified by the Board as a massage technician is issued a
license as a massage and bodywork therapist, the continuing
education requirement for that licensing period is as follows:
6.1.2.1 If the license is issued more than
twelve (12) months prior to the next renewal date, the
licensee shall complete twenty-four (24) hours of acceptable
continuing education during the licensing period.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1412 FINAL REGULATIONS
6.1.2.2 If the license is issued less than twelve
(12) months prior to the next renewal date, the licensee shall
complete twelve (12) hours of acceptable continuing
education during the licensing period.
4 DE Reg. 1944 (6/1/01)
6.2 Proration. Candidates for renewal who were first
licensed or certified twelve (12) months or less before the
date of renewal are exempt from the continuing education
requirement for the period in which they were first licensed
or certified.
6.3 Content.
6.3.1 Except as provided in Rule 6.3.2, continuing
education hours must contribute to the professional
competency of the massage/bodywork therapist or massage
technician within modalities constituting the practice of
massage and bodywork. Continuing education hours must
maintain, improve or expand skills and knowledge obtained
prior to licensure or certification, or develop new and
relevant skills and knowledge.
6.3.2 No more than twenty-five percent (25%) of
the continuing education hours required in any licensing
period may be earned in any combination of the following
areas and methods described or listed in Rules 6.3.2.1
through 6.3.2.5. For example, a licensed massage therapist
licensed for the entire licensing period may obtain no more
than six (6) hours of the required twenty-four (24) hours in
any combination of the following areas and methods:
6.3.2.1 Courses in modalities other than
massage/bodywork therapy
6.3.2.2 Personal growth and self-improvement
courses
6.3.2.3 Business and management courses
6.3.2.4 Courses taught by correspondence or
mail
6.3.2.5 Courses taught by video,
teleconferencing, video conferencing or computer
6.4 Board approval.
6.4.1 "Acceptable continuing education" shall
include any continuing education programs meeting the
requirements of Rule 6.3 and offered or approved by the
following organizations:
6.4.1.1 NCBTMB
6.4.1.2 American Massage Therapy
Association
6.4.1.3 Association of Oriental Bodywork
Therapists of America
6.4.1.4 Association of Bodywork and Massage
Practitioners
6.4.1.5 Delaware Nurses Association
6.4.2 Other continuing education programs or
providers may apply for pre-approval of continuing
education hours by submitting a written request to the Board
which includes the program agenda, syllabus and time spent
on each topic, the names and resumes of the presenters and
the number of hours for which approval is requested. The
Board reserves the right to approve less than the number of
hours requested.
6.4.3 Self-directed activity: The Board may, upon
request, review and approve credit for self-directed
activities, including, but not limited to, teaching, research,
preparation and/or presentation of professional papers and
articles. A licensee must obtain pre-approval of the Board
prior to undertaking the self-directed activity in order to
assure continuing education credit for the activity. Any selfdirected
activity submitted for approval must include a
written proposal outlining the scope of the activity, the
number of continuing education hours requested, the
anticipated completion date(s), the role of the licensee in the
case of multiple participants (e.g. research) and whether any
part of the self-directed activity has ever been previously
approved or submitted for credit by the same licensee.
6.4.4 The Board may award additional continuing
education credits, on an hour for hour basis, to continuing
education instructors for the first-time preparation and
presentation of an approved continuing education course for
other practitioners, to a maximum of 6 additional hours. (e.g.
an instructor presenting a 8 hour course for the first time may
receive up to 6 additional credit hours for preparation of the
course ). This provision remains subject to the limitations
of Rule 6.3.2.
6.5 Reporting.
6.5.1 For license or certification periods beginning
September 1, 2000 and thereafter, each candidate for
renewal shall submit a summary of their continuing
education hours, along with any supporting documentation
requested by the Board, to the Board on or before May 31 of
the year the license or certification expires. No license or
certification shall be renewed until the Board has approved
the required continuing education hours or granted an
extension of time for reasons of hardship. The Board's
approval of a candidate's continuing education hours in a
particular modality does not constitute approval of the
candidate's competence in, or practice of, that modality.
6.5.2 If a continuing education program has
already been approved by the Board, the candidate for
renewal must demonstrate, at the Board's request, the actual
completion of the continuing education hours by giving the
Board a letter, certificate or other acceptable proof of
attendance provided by the program sponsor.
6.5.3 If a continuing education program has not
already been approved by the Board, the candidate for
renewal must give the Board, at the Board's request, all of
the materials required in Rule 6.4.2 and demonstrate the
actual completion of the continuing education hours by
giving the Board a letter, certificate or other acceptable proof
of attendance provided by the program sponsor.
6.6 Hardship. A candidate for renewal may be granted
an extension of time in which to complete continuing
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1413
education hours upon a showing of unusual hardship.
"Hardship" may include, but is not limited to, disability,
illness, extended absence from the jurisdiction and
exceptional family responsibilities. Requests for hardship
consideration must be submitted to the Board in writing prior
to the end of the licensing or certification period for which it
is made. If the Board does not have sufficient time to
consider and approve a request for hardship extension prior
to the expiration of the license, the license will lapse upon
the expiration date and be reinstated upon completion of
continuing education pursuant to the hardship exception.
The licensee may not practice until reinstatement of the
license.
3 DE Reg. 1516 (5/1/00)
7.0 Scope of Practice
Licensed massage/bodywork therapist and certified
massage technicians shall perform only the massage and
bodywork activities and techniques for which they have been
trained as stated in their certificates, diplomas or transcripts
from the school or program of massage therapy where
trained.
8.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
8.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
8.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
8.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency
or impairment due to addiction to drugs or alcohol may enter
into the Voluntary Treatment Option and continue to
practice, subject to any limitations on practice the
participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
8.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
8.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
8.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1414 FINAL REGULATIONS
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
8.6.5 Agreement by the regulated professional that
failure to satisfactorily progress in such treatment program
shall be reported to the participating Board's chairperson or
his/her designate or designates or to the Director of the
Division of Professional Regulation or his/ her designate by
the treating professional who shall be immune from any
liability for such reporting made in good faith and without
malice.
8.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
8.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public records
open to public inspection. However, the participating Board
may consider such records in setting a disciplinary sanction
in any future matter in which the regulated professional's
chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
8.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
8.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
8.11 Any person who reports pursuant to this section in
good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
PUBLIC SERVICE COMMISSION
Statutory Authority: 26 Delaware Code,
Section 211 (26 Del.C. §211)
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
Order No. 5847
AND NOW, to-wit, this 11th day of December, 2001,
the Commission having received and considered the
Findings and Recommendations of the Hearing Examiner,
previously designated in the above-captioned matter, which
was submitted after a duly publicized evidentiary hearing,
and having heard from all parties and the Commission Staff
that there are no exceptions to said Findings and
Recommendation;
AND WHEREAS, based upon the recommendations of
the Hearing Examiner, the Commission has determined that
the evidence of record supports approving the amendment to
Section 4.2.4 of the Minimum Standards Governing Service
Provided by Public Water Companies, as proposed by
Commission Staff;
Now, therefore, IT IS ORDERED:
1. That the Commission hereby adopts and approves in
its entirety the Findings and Recommendations of the
Hearing Examiner, which is attached hereto as Exhibit "A."
2. That the Commission adopts the proposed
amendment to Section 4.2.4 of the Minimum Standards
Governing Service Provided by Public Water Companies,
the exact text and citation of which are attached hereto as
Exhibit "B."
3. That the Secretary shall transmit this Order, together
with the exact text of Section 4.2.4 of the Minimum
Standards Governing Service Provided by Public Water
Companies to the Registrar of Regulations for publication on
January 1, 2002.
4. That the effective date of this Order shall be the later
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1415
of January 10, 2002, or ten days after the date of publication
in the Register of Regulations of this Order and the final text
of Section 4.2.4 of the Minimum Standards Governing
Service Provided by Public Water Companies.
5. The Commission reserves the jurisdiction and
authority to enter such further Orders in this matter as may
be deemed necessary or proper.
By Order Of The Commission:
Arnetta McRae, Chair
Joshua M. Twilley , Vice Chair
Jaymes B. Lester, Commissioner
Joann T. Conaway, Commissioner
Attest:
Karen J. Nickerson, Secretary
Exhibit "A"
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
Findings and Recommendations of the Hearing
Examiner
Dated: November 14, 2001
William F. O'Brien, Hearing Examiner
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
Findings and Recommendations of the Hearing
Examiner
William F. O'Brien, duly appointed Hearing Examiner
in this Docket pursuant to 26 Del. C. § 502 and 29 Del. C.
ch. 101, by Commission Order No. 5787, dated August 21,
2001, reports to the Commission as follows:
I. Appearances
On behalf of Commission Staff:
Murphy, Spadaro & Landon
By: Chase T. Brockstedt, Esquire
On behalf of the Division of the Public Advocate:
G. Arthur Padmore, Public Advocate
II. Background
1. In PSC Order No. 2076 (May 27, 1980), Regulation
Docket No. 13, the Commission originally adopted its
Minimum Standards Governing Service Provided by Public
Water Companies ("Minimum Standards").
2. On October 12, 2000, United Water Delaware, Inc.
("United") filed a request with the Commission for a waiver
of the meter testing procedures under Section 4.2.4 of the
Minimum Standards. Section 4.2.4 requires public water
utilities to ensure the accuracy of its meters by conducting
testing procedures on all meters in service on a specified
frequency keyed to the size of the meter. United sought to
test a statistical sampling of its 32,000 5/8" meters, rather
than all of the meters.
3. Based on United's submission, and in light of
improvements in the design and manufacturing of water
meters, Commission Staff reviewed the Minimum Standards
and proposed an amendment to Section 4.2.4. Under the
proposed amendment, a public water utility shall ensure the
accuracy of its meters by either: (1) conducting periodic tests
on meters under the presently mandated schedule; or (2)
conducting tests on a sampling of meters pursuant to a
statistical meter sampling program submitted by the water
utility and approved by the Commission.
4. On August 21, 2001, by PSC Order No. 5787, the
Commission reopened Regulation Docket No. 13 to consider
Staff's proposed amendment. The Commission directed
publication of notice of the proposed amendment, set a
deadline of October 31, 2001 for the filing of comments by
interested parties, and scheduled a public hearing for
November 7, 2001. United Water was the only company or
organization to file comments.
5. In accordance with PSC Order No. 5787, a duly
noticed1 public hearing was conducted at the
Commission's offices in Dover. Representatives of
Staff and the Public Advocate appeared at the hearing.
No member of the public appeared at or otherwise
participated in the proceeding.
1. See, Exhibit 1, which consists of the affidavits of
publication of notice.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1416 FINAL REGULATIONS
6. At the conclusion of the hearing, I closed the
evidentiary record, which consists of four exhibits and an
18-page verbatim transcript of the proceedings. Briefs were
deemed unnecessary. I have considered all of the record
evidence of this docket and, based thereon, I submit for the
Commission's consideration these Findings and
Recommendations.
II. The Proposed Amendment
7. The current Standard 4.2.4 requires periodic testing
of all meters on prescribed time intervals, which vary with
the size of the meter. The proposed Standard 4.2.4 requires a
utility to develop a testing program that consists of either the
existing testing schedule of all meters or:
[t]he periodic testing of a random sampling of particularlygrouped
meters under a meter testing plan submitted by the
utility and specifically approved by the Commission. Such a
plan may apply to the testing of all sizes of meters or meters
of a particular size. The sampling procedures in any such
plan shall be sufficient to ensure confidence in the accuracy
of the meters included in the group represented by the
sample. With such plan, the utility shall submit sufficient
information and data to establish the ability of the sampling
procedure to establish the accuracy of the utility's meters.
The results of testing under any such approved plan shall be
available to the Commission.
Exhibit 2.
III. Summary of Evidence
8. Connie McDowell, PSC Chief of Technical Services,
testified on behalf of Staff. Transcript, 7. Ms. McDowell
asserted that the Commission had granted a waiver of the
current testing requirement to United Water because the
testing of all of their 5/8 inch meters was costly and because
the sampling alternative United developed was reasonable.
She stated that Staff believed that other water companies
should have the same opportunity to test meters in
accordance with a statistical sampling program if such
meters did not require such stringent testing.
9. Ms. McDowell submitted a memorandum, written by
Commission Engineer Malak Michael, dated August 17,
2001, in which Mr. Michael supported United's waiver
request and recommended a rule change to Section 4.2.4.
Exhibit 4. Mr. Michael asserted that, from an engineering
standpoint, it was unnecessary to test 100% of United's 5/8
inch meters in accordance with the current schedule. In
addition, he noted that a statistical meter sampling program
would produce savings for United and for its customers.
10. Carla E. Hjelm, Corporate Attorney - Operations
and Corporate Secretary, submitted written comments on
behalf of United Water, dated October 30, 2001. Exhibit 3.
She supported the proposed amendment and asserted that
"appropriate statistical sampling programs benefit the public
interest and improve efficiency by determining which meters
may not be functioning properly, thereby eliminating
inaccurate meters from service, while at the same time
avoiding unnecessary and costly testing on accurate meters."
11. The Public Advocate expressed concerns about the
particulars of United Water's testing plan. Those concerns,
however, were addressed outside of this proceeding because
they relate to United's approved meter sampling program
rather than to Staff's proposed amendment to Standard 4.2.4.
IV. Findings and Recommendations
12. The Commission has the authority and jurisdiction
to promulgate and amend regulations under 26 Del. C. §
209(a) and 29 Del. C. § 10111 et seq. Pursuant to 26 Del. C.
§ 209(a), the Commission may fix "just and reasonable"
regulations governing any public utility.
13. Staff has shown that by allowing water companies
to propose statistical meter sampling programs as an
alternative to the current testing requirements, such
companies can reduce costs without unreasonably
diminishing the effectiveness of their meter testing process.
United Water and the Public Advocate -- the only other
participants in this docket -- each supported the proposed
amendment.
14. For these reasons, I recommend that the
Commission adopt, as just and reasonable, Staff's proposed
amendment to Section 4.2.4 of the Minimum Standards
(Exhibit No. 2). A proposed form of Order implementing
the above recommendation is appended, as Exhibit "A," for
the Commission's convenience.
Respectfully submitted,
William F. O'Brien, Hearing Examiner
Exhibit "B"
4.2.4 Meter Testing. Each utility shall make
periodic tests of meters to assure their accuracy. The
periodic test interval shall not be longer than provided in the
following schedule: Each utility shall have in place, and
implement, a program for the testing of its meters to ensure
their accuracy. Such program shall consist of either:
(a) The periodic testing of meters at intervals no
longer than provided in the following schedule:
(1) 5/8 inch and 3/4 inch:
Once every 15 years
(2) 1 inch and 1-1/2 inch:
Once every 10 years
(3) 2 inch, 3 inch, and 4 inch:
Once every 3 years
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1417
(4) 6 inches and larger: Once every year
or
(b) The periodic testing of a random sampling of
particularly-grouped meters under a meter testing plan
submitted by the utility and specifically approved by the
Commission. Such a plan may apply to the testing of all
sizes of meters or meters of a particular size. The sampling
procedures in any such plan shall be sufficient to ensure
confidence in the accuracy of the meters included in the
group represented by the sample. With such plan, the utility
shall submit sufficient information and data to establish the
ability of the sampling procedure to establish the accuracy of
the utility's meters. The results of testing under any such
approved plan shall be available to the Commission.
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
DELAWARE STATE LOTTERY OFFICE
Statutory Authority: 29 Delaware Code,
Section 4805(a) (29 Del.C. §4805(a))
Order
Pursuant to 29 Del. C. §10118 and 29 Del. C. §4805(a),
the Delaware Lottery Office hereby issues this Order
promulgating proposed amendments to the Video Lottery
Regulations. Following notice and a public hearing held on
November 26, 2001 on the proposed Video Lottery
Regulation amendment, the Lottery makes the following
findings and conclusions:
Summary of Evidence and Information Submitted
1. The Lottery posted public notice of the proposed rule
revisions in the November 1, 2001 Register of Regulations
and in the Delaware Capital Review and the Delaware State
News. The proposal contained proposed revision to Video
Lottery Regulation 5.1. The proposed Regulation change
would delete the restriction that no single technology
provider supply more than 65% of the total number of video
lottery machines at any video lottery agent_s premises.
2. The Lottery held a public hearing on November 26,
2001 and received no public comments. The Lottery
received no written comments from the public during the
month of November, 2001.
Findings of Fact and Conclusions
3. The public was given notice and an opportunity to
provide the Commission with comments in writing and by
testimony at the public hearing regarding the proposed rule
amendments.
4. The Lottery finds that the proposed amendment to
Video Lottery Regulation 5.1 is necessary for the agency to
achieve its statutory duty under 29 Del. C. §4805(a) to
maximize net revenues consonant with the dignity of the
State and general welfare of the people of Delaware. The
Lottery concludes that the proposed amendment to Video
Lottery Regulation 5.1 was promulgated by the Lottery in
accord with its statutory duties and authority as set forth in
29 Del. C. §4805(a). The Lottery concludes that the
proposed Video Lottery Regulation should be adopted in the
proposed form.
5. The effective date of this Order shall be ten (10) days
from the publication of this order in the Registrar of
Regulations on January 1, 2001. A copy of the enacted
Video Lottery Regulations is attached as Exhibit #1 to this
Order.
IT IS SO ORDERED this 7th day of December, 2001.
Wayne Lemons, Director
5.0 Technology Providers: Contracts; Requirements;
Duties
5.1 The Director shall, pursuant to the procedures set
forth in chapter 69 of title 29 of the Delaware Code, enter
into contracts with licensed technology providers as he or
she shall determine to be appropriate, pursuant to which the
technology providers shall furnish by sale or lease to the
State video lottery machines in such members and for such
video games as the Director shall approve from time to time
as necessary for the efficient and economical operation of
the lottery, or convenience of the players, and in accordance
with the agents business plans as approved and amended by
the Director. No single technology provider shall supply
more than 65% of the total number of video lottery machines
at the premises of any agent. No more than 1,000 video
lottery machines shall be located within the confines of an
agents premises unless the Director approves up to an
additional 1,000 machines or other number approved by the
Director as permitted by law.
5.2 All contracts with technology providers who are
video lottery machine manufacturers shall include without
limitation, provisions to the following effect:
5.2.1 The technology provider shall furnish a
person to work with the agency and its consultants to provide
assistance as needed in establishing, planning and executing
acceptance tests on the video lottery machines provided by
such technology provider. Technology provider assistance
shall be provided as requested by the agency in
troubleshooting communication and technical problems that
are discovered when video lottery machines are initially
placed at the agent's site;
5.2.2 The technology provider shall submit video
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1418 FINAL REGULATIONS
lottery machine illustrations, schematics, block diagrams,
circuit analysis, technical and operation manuals, program
source code and object code and any other information
requested by the Director for purposes of analyzing and
testing the video lottery machines. A maximum of Twenty
Five Dollars ($25) shall be permitted for wagering on a
single play of any video game;
5.2.3 For testing, examination and analysis
purposes, the technology provider shall furnish working
models of video lottery machines, associated equipment, and
documentation at locations designated by the Director. The
technology provider shall pay all costs of any testing,
examination, analysis and transportation of the video lottery
machines, which may include the entire dismantling of the
machines and some tests that may result in damage or
destruction to one or more electronic components of the
machines. The agency and its agents shall have no liability
for any damage or destruction. The agency may require that
the technology provider provide specialized equipment or
the agency may employ the services of an independent
technical laboratory expert to test the video lottery machine
at the technology provider's expense;
5.2.4 Technology providers shall submit all
hardware, software, and test equipment necessary for testing
of their video lottery machines, and shall provide the director
with keys and locks subject to the Director's specifications
for each approved video lottery machine;
5.2.5 The EPROMs of each video lottery machine
shall be certified to be in compliance with published
specifications;
5.2.6 No video lottery machine shall be put into use
prior to certification of its model by the Director;
5.3 All contracts with technology providers shall
include without limitation, provisions to the following
effect:
5.3.1 Technology providers shall agree to promptly
report any violation or any facts or circumstances that may
result in a violation of these rules; provide immediate access
to all its records and its physical premises for inspection at
the request of the Director; attend all trade shows or
conferences as required by the Director;
5.3.2 Technology providers shall agree to modify
their hardware and software as necessary to accommodate
video game changes directed by the agency from time to
time;
5.3.3 Technology providers shall provide such
bonds and provide evidence of such insurance as the
Director shall require from time to time and in such amounts
and issued by such companies as the Director shall approve;
and
5.3.4 Technology providers shall have a valid
license to conduct business in the State of Delaware, shall
comply with all applicable tax provisions, and shall in all
other respects be qualified to conduct business in Delaware.
5.4 Each video lottery machine certified by the Director
shall bear a decal and shall conform to the exact
specifications of the video lottery machine model tested and
certified by the Director.
5.5 No video lottery machine may be transported out of
the State until the decal has been removed and no decal shall
be removed from a video lottery machine without prior
agency approval.
5.6 Technology providers shall hold harmless the
agency, the State of Delaware, and their respective
employees for any claims, loss, cost, damage, liability or
expense, including, without limitation, legal expense arising
out of any hardware or software malfunction resulting in the
wrongful award or denial of credits or cash.
5.7 A technology provider shall not distribute a video
lottery machine for placement in the state unless the video
lottery machine has been approved by the agency. Only
licensed technology providers may apply for approval of a
video lottery machine or associated equipment. The
technology provider shall submit two copies of video lottery
machine illustrations, schematics, block diagrams, circuit
analysis, technical and operation manuals, program source
code and object code, and any other information requested
by the agency for purposes of analyzing and testing the video
lottery machine or associated equipment.
5.8 The agency may require that two working models of
a video lottery machine be transported to the location
designated by the agency for testing, examination, and
analysis. The technology provider shall pay all costs of
testing, examination, analysis and transportation of such
video lottery machine models, which may include the entire
dismantling of the video lottery machine and tests which
may result in damage or destruction to one or more
electronic components of such video lottery machine model.
The agency may require that the technology provider
provide specialized equipment or the services of an
independent technical expert in testing the terminal.
5.9 After each test has been completed, the agency shall
provide the video lottery machine technology provider with
a report that contains findings, conclusions, and pass/fail
results. Prior to approving a particular video lottery
machine model, the agency may require a trial period not in
excess of sixty (60) days for a licensed agent to test the video
lottery machine. During the trial period, the technology
provider may not make any modifications to the video
lottery machine model unless such modifications are
approved by the agency.
5.10 The technology provider is responsible for the
assembly and initial operation, in the manner approved and
licensed by the agency, of all its video lottery machines and
associated equipment. The technology provider may not
change the assembly or operational functions of any of its
video lottery machines approved for placement in Delaware
unless a "request for modification to an existing video lottery
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1419
machine prototype" is made to the agency, that request to
contain all appropriate information relating to the type of
change, reason for change, and all documentation required.
The agency must approve such request prior to any changes
being made, and the agency shall reserve the right to require
second testing of video lottery machines after modifications
have been made.
5.11 Each video lottery machine approved for
placement in a licensed agent's place of business shall
conform to the exact specifications of the video lottery
machine prototype tested and approved by the agency. Any
video lottery machine which does not so conform shall be
disconnected from the Delaware video lottery system until
compliance has been achieved. Each video lottery machine
shall at all times operate and be placed in accordance with
the provisions of these regulations.
5.12 The following duties are required of all licensed
technology providers, without limitation:
5.12.1 Manufacture terminals and associated
equipment for placement in Delaware in accordance with the
specifications of the agency.
5.12.2 Manufacture terminals and associated
equipment to ensure timely delivery to licensed Delaware
agents.
5.12.3 Maintain and provide an inventory of
associated equipment to assure the timely repair and
continued, approved operation and play of licensed video
lottery machines acquired under the contract for placement
in Delaware.
5.12.4 Provide an appropriate number of service
technicians with the appropriate technical knowledge and
training to provide for the service and repair of its licensed
video lottery machines and associated equipment so as to
assure the continued, approved operation and play of those
licensed video lottery machines acquired under contract for
placement in Delaware.
5.12.5 Obtain any certification of compliance
required under the applicable provisions of rules adopted by
the Federal Communications Commission.
5.12.6 Promptly report to the agency any violation
or any facts or circumstances that may result in a violation of
State or Federal law and/or any rules or regulations adopted
pursuant thereto.
5.12.7 Conduct video lottery operations in a
manner that does not pose a threat to the public health,
safety, or welfare of the citizens of Delaware, or reflect
adversely on the security or integrity of the video lottery.
5.12.8 Hold the agency and the State of Delaware
and its employees harmless from any and all claims that may
be made against the agency, the State of Delaware, or the
employees of either, arising from the technology provider's
participation in or the operation of a video lottery game.
5.12.9 Defend and pay for the defense of all claims
that may be made against the agency, the State of Delaware,
or the employees of either, arising from the technology
provider's participation in video lottery operations.
5.12.10 Maintain all required records.
5.12.11 Lease or sell only those licensed video
lottery machines, validation units and associated equipment
approved under these regulations.
5.12.12 It shall be the continuing duty of the
technology provider licensee to provide the Director with an
updated list of the names and addresses of all its employees
who are involved in the daily operation of the video lottery
machines. These employees will include individuals or their
supervisors involved with (1) the repair or maintenance of
the video lottery machines, or (2) positions that provide
direct access to the video lottery machines. It shall be the
continuing duty of the technology provider licensee to
provide for the bonding of each of these individuals to
ensure against financial loss resulting from wrongful acts on
their parts.
5.12.13 It shall be the ongoing duty of the
technology provider licensee to notify the Director of any
change in officers, partners, directors, key employees, video
lottery operations employees, or owners. These individuals
shall also be subject to a background investigation. The
failure of any of the above-mentioned individuals to satisfy a
background investigation may constitute "cause" for the
suspension or revocation of the technology provider's
license.
5.12.14 Provide the agents with the technical
ability to distribute the proceeds of the video lottery in
accordance with the requirements of these regulations and 29
Del.C. Ch. 48.
5.12.15 Supervise its employees and their activities
to ensure compliance with these rules.
5.12.16 Promptly report to the Lottery any violation
or any facts or circumstances that may result in a violation of
State or Federal law and/or any rules or regulations pursuant
thereto, excluding violations concerning motor vehicle laws.
5.12.17 Comply with such other requirements as
shall be specified by the Director.
2 DE Reg. 115 (7/1/98)
2 DE Reg. 779 (11/1/98)
3 DE Reg. 1082 (2/1/00)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1420 FINAL REGULATIONS
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Statutory Authority: 16 Delaware Code,
Sections 3001A-3006A (16 Del.C. §§3001A-
3006A)
Regulations for Training and Qualifications for Nursing
Assistants and Certified Nursing Assistants
Nature of the Proceedings:
The Department of Health and Social Services, Division
of Long Term Care Residents Protection (DLTCRP)
initiated proceedings in accordance with 29 Delaware Code,
Chapter 101 to adopt Regulations for Training and
Qualifications for Nursing Assistants and Certified Nursing
Assistants. On May 1, 2001, DLTCRP published proposed
regulations in the Register of Regulations and received
written and verbal comments at public hearings on May 31
and June 4.
The Department of Health and Social Services, Division
of Long Term Care Residents Protection revised the
proposed regulations in response to comments at the initial
public hearings and republished the revised regulations in
the October Register of Regulations. Public hearings were
held on November 6 and November 8, 2001 at which
additional written and verbal comments were received.
DLTCRP reviewed and evaluated all the comments. As
a result of that evaluation, proposed regulations 69.111,
69.301E, 69.301F, 69.303D5g, 69.303D6, 69.502A5 and
69.600B are not being promulgated as final regulations, and
will be the subject of a further public hearing. The
evaluation of those comments not pertaining to the specific
regulations cited above are in the accompanying Summary
of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that
the proposed regulations, as set forth in the attached copy
(with the regulations cited above deleted), should be adopted
as final regulations. Therefore, it is ordered that the
proposed Regulations for Training and Qualifications for
Nursing Assistants and Certified Nursing Assistants are
promulgated effective January 10, 2002.
Vincent P. Meconi, Secretary
12.14.2001
Summary of Evidence:
Comments on the proposed regulations have been
received and evaluated as follows:
One comment suggested that the composition of the
CNA Training Curriculum committee be spelled out in
regulation. Upon consideration, it was determined that the
regulation as promulgated satisfactorily indicates the criteria
to serve on the committee, and will enable the Division to
assemble appropriate individuals, who may or may not wish
to participate in a standing committee, when a curriculum is
submitted for approval.
Comments were received expressing concern that the
regulations require that the competency test for CNA
certification be taken within 30 days of training program
completion. Since the regulations do provide some
flexibility and since candidates have a maximum of 90 days
to achieve a passing score, it is important that the intent of
this regulation to assure that the testing process begins
promptly be retained. Candidates who do not achieve a
passing score within 90 days of program completion cannot
work as nursing assistants. The testing contractor is
committed to providing the necessary testing sites and to
meeting the time frame set out in these regulations.
One comment suggested that all candidates for
reciprocity be tested and that only those candidates who had
completed training equivalent to Delaware's new standard
be accepted. Such requirements would defeat the purpose of
reciprocity, particularly in view of the fact that Delaware
will now have one of the most extensive training
requirements in the nation.
A commenter questioned the deletion of a requirement
that CNAs be trained to prioritize patient care. That
requirement was deemed by earlier commenters to be the
responsibility of professional staff, not CNAs. The same
comment also questioned the deletion of a regulation
pertaining to the scope of duties of a CNA. That regulation
was deleted as duplicative.
A comment suggested that the Train-the-Trainer waiver
provision has been loosened beyond its original intent. The
provision has been loosened due to the few offerings of the
Train-the-Trainer program, and the negative impact the lack
of course availability has on potential instructors. The
regulation now recognizes that actual teaching experience is
much more valuable than the Train-the-Trainer program.
In another comment, it was suggested that augmentative
communication devices be required equipment for training
programs. However, the variety of such devices and the
ongoing technological changes in devices make such a
requirement impractical. It is preferable for CNAs to learn
on the job to assist specific residents with specific devices.
Also related to equipment, one commenter urged that
glass thermometers be deleted from the required equipment.
This requirement is being retained because some CNAs will
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1421
work in home health care where the CNA may be using
equipment belonging to the patient, including a glass
thermometer.
A comment found the requirement for recertification
due to lack of work experience to be confusing. Inasmuch as
the wording tracks the federal regulations, it is being
retained. The intent of the regulation is to permit
recertification by passing the competency test; if the
candidate can pass the test without retraining, he/she may do
so or the candidate may opt to retrain and then test.
One comment urged specific reference to persons with
acquired brain injury in the listing of populations being
served in nursing homes. The listing as written is not
intended to be all-inclusive; therefore, the reference to "other
related disorders" recognizes that additional populations
may be served in some facilities.
A comment made reference to the coding on the test
form. However, that form is not related to these regulations.
In another comment, it was suggested that nursing
assistants be counted toward staffing minimums depending
upon the number of skills acquired rather than training hours
completed. The requirements for counting staffing
minimums in these regulations reflect the statute, and the
regulation cannot alter the provisions of the law. Further,
this provision of the statute applies to "facility-sponsored"
training programs only.
Similarly, a comment questioned the requirement that a
nursing assistant be under visual observation during
orientation. The regulation reflects a statutory requirement.
One comment asked for a defined date for the
availability of a competency test for Voluntary Senior
Certified Nursing Assistant Certification. While such a
provision would not be a part of these regulations, the
Division is holding discussions on this issue.
A comment urged that definitions of "instructor(s), RN
instructor(s), primary instructor(s), trainer(s), direct
supervision and general supervision" be added to the
regulations. Such definitions are unnecessary because the
statute and these regulations require that all instructors be
RNs with the exception of the training program for
Voluntary Senior Certified Nursing Assistant Certification.
In that instance, the provisions for other participants in the
training are specified in these regulations. Similarly,
"supervision" is defined in these regulations.
One commenter expressed uncertainty about the
provision of the competency test. The test will continue to
be provided by a testing contractor.
Similarly, uncertainty was expressed as to how an
applicant who has not met the 64-hour work requirement
would become certified or would be scheduled to test to
become recertified. The same testing and certification
process would apply to these applicants as would apply to
others: the applicant must schedule and pass the competency
test.
Training and Qualifications for Nursing Assistants and
Certified Nursing Assistants
57.606 NURSE AIDE/NURSE ASSISTANT
REQUIREMENTS:
Each nurse aide/nurse assistant employed by any
nursing home either as contract/agency or facility staff as of
October 1, 1990 shall be required to meet the following:
A. Training/Testing
1. Nurse aide/nurse assistant shall complete a nurse
aide training course approved by the Delaware State Board
of Nursing and by the State Board of Health.
2. Nurse aide/nurse assistant is required to pass
competency evaluation test approved by the State of
Delaware.
3. Employees of Delaware nursing homes shall by duly
certified within 4 months of employment.
4. Contract aides must be certified prior to placement in
any nursing home.
B. A nurse aide/nurse assistant who has not performed
nursing related services for pay for a continuous 24 month
period after completion of a training and testing program,
must complete and pass a new training and competency
evaluation (testing) program.
C. A nurse aide/nurse assistant who has not been employed
in health care setting for three years will be required to meet
the requirements in Section (A) above.
D. A nurse aide/nurse assistant trained and certified outside
the State of Delaware may be deemed qualified to meet the
Board of Health requirements based on a case by case review
and approval.
E. Employees hired as nurse aide/nurse assistant who are
currently, enrolled in a nursing program and have
satisfactorily completed the fundamentals of nursing course
with a clinical component will be deemed to meet the
training and testing requirements. These individuals will be
approved with submittal of a letter from their school of
nursing attesting to current enrollment status and satisfactory
course completion as described.
57.607 NURSE AIDE TRAINING PROGRAM
CURRICULUM
The following material identifies the minimum
curriculum content for nurse aides/nursing assistants being
prepared to work in nursing home facilities either as direct or
contract staff.
The curriculum content for the nurse aide training
program . must include material which will provide a basic
level of both knowledge and demonstratable skills for each
individual completing the program. The program must be a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1422 FINAL REGULATIONS
minimum of 75 hours in length, divided equally between
skills training and classroom instruction. Additional hours
may be in either of these areas or both.
Programs may expand the curriculum content to provide
opportunities for nurse aides to be placed in settings where
nurse aides/nursing assistants are employed to perform basic
skills as.delegated by a licensed nurse in support of a
professional plan of care.
A. THE NURSE AIDE ROLE AND FUNCTION
Key Concepts:
Introduces the characteristics of an effective nurse aide:
. personal attributes, onthejob conduct, appearance,
grooming, health and ethical behavior. Also presented are
the responsibilities of the nurse aide as a member of the
patient care team. Legal aspects of patient care and patient
rights are presented. Relevant Federal and State statutes are
referenced.
Competencies:
A.1 Function as a nurse aide within the legal and ethical
standards setforth by the profession of nursing.
A.1.1 Define the role and functions of the nurse aide
and provide awareness of the legal limitations of being a
nurse aide.
A.1.2 Recognize the responsibilities of the nurse aide as
a member of the health care team.
A.1.3 Identify the "chain of command" in the
organizational structure of the health care agency.
A.1.4 Maintain acceptable.personal hygiene and exhibit
appropriate dress practices.
A.1.5 Recognize the importance of punctuality and
commitment on the job.
A.1.6 Differentiate between ethical and unethical
behavior on the job.
A.2 Demonstrate behavior which maintains resident's and/or
client's rights.
A.2.1 Provide privacy and maintenance of
confidentiality.
A.2.2 Promote the resident's right to make personal
choices to accommodate individual needs.
A.2.3 Give assistance in resolving grievances.
A.2.4 Provide needed assistance in giving to and
participating in resident and family groups and other
activities.
A.2.5 Maintain care and security of resident's personal
possessions.
A.2.6 Provide care which maintains the residents free
from abuse, mistreatment or neglect and report any instances
of such poor care to appropriate facility staff.
A.2.7 Maintain the resident's environment and care
through appropriate nurse aide behavior so as to minimize
the need for physical and chemical restraints.
B. Environmental Needs of the Patient
Key Concepts:Introduces the nurse aide to the need to
keep patients safe from injury and infection in the longterm
care setting. The nurse aide is taught why and how to use
infection control and isolation techniques. Safety through
prevention of fires and accidents, and emergency procedures
for fire and other disasters are presented.
Competencies:
B.1 Apply the basic principles of infection control.
B.1.1 Identify how diseases are transmitted.
B.1.2 Demonstrate handwashing technique.
B.1.3 Perform basic cleaning, disinfecting, and
sterilizing tasks.
B.1.4 Demonstrate proper isolation and safety
techniques in care of infectious resident.
B.2 Assist with basic emergency procedures.
B.2.1 Follow safety and emergency procedures.
B.2.2 Identify safety measures that prevent accidents to
residents.
B.2.3 Recognize signs, when a resident is choking or
may have an obstructed airway.
B.2.4 Assist with clearing obstructed airway.
B.2.5 Call for help when encountering convulsive
disorders, loss of consciousness, shock, hemorrhage,and
assist the resident until professional help arrives.
B.2.6 Follow disaster procedures.
B.2.7 Report emergencies accurately and immediately.
B.2.8 Identify potential fire hazards.
B.3 Provide a safe, clean environment.
B.3.1 Identify the resident's need for a clean and
comfortable environment.
B.3.2 Report unsafe conditions.
B.3.3 Report pests.
B.3.4 Report nonfunctioning equipment.
B.3.5 Prepare soiled linen for laundry.
B.3.6 Clean and disinfect unit for admission or
following discharge.
B.3.7 Arrange furniture and equipment for the
resident's convenience.
C. PSYCHOSOCIAL NEEDS OF THE PATIENT
Key Concepts:Focus is placed on the social, emotional,
recreational and religious needs of patients in a long term
care setting. It describes some of the physical, mental, and
emotional changes associated with aging and
institutionalization, and presents ways in which the nurse
aide may effectively communicate with patients and their
families.
Competencies:
C.1 Demonstrates appropriate and effective communication
skills.
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FINAL REGULATIONS 1423
C.1.1 Demonstrate effective verbal and nonverbal
communications in keeping with the nurse aide's role with
residents and their families.
C.1.2 Observe by using'the senses of sight, hearing,
touch and smell to report resident behavior to the licensed
nurse.
C.1.3 Document observations using appropriate terms.
C.1.4 Recognize the importance of maintaining the
patient's record.
C.1.5 Communicate with residents according to their
state of development.
C.2 Demonstrate basic skills by identifying the psychosocial
characteristics of the populations being served in the nursing
facility including persons with mental retardation, mental
illness and persons with dementia, Alzheimerfs disease and
related disorders.
C.2.1 Indicate the ways to meet the resident's basic
human needs for life and mental well being.
C.2.2 Modify his/her own behavior in response to
resident's behavior.
C.2.3 Identify developmental tasks associated with the
aging process.
C.2.4 Provide training in, and the opportunity for, self
care according to resident"s capabilities.
C.2.5 Demonstrate principles of behavior management
by reinforcing appropriate behavior and reducing or
eliminating inappropriate behavior.
C.2.6 Demonstrate skills supporting age appropriate
behavior by allowing the resident to make personal choices,
providing and reinforcing other behavior consistent with
resident's dignity.
C.2.7 Utilize resident's family as a source of emotional
support.
C.2.8 Recognize how age, illness and disability affect
sexuality.
D. PHYSICAL NEEDS OF THE PATIENT
Key ConceptsPresents the basic skills which nurse use
in the physical care of patients. nurse aide will learn basic
facts about systems and what is needed to promote
functioning. The nurse aide will lear provide physical care to
patients safe to keep the patient clean, dry comfortable. The
nurse aide will also learn to make observations regarding
patients and to record and/or report observations. The nurse
aide will learn to maintain range of motion while providing
physical care to patient. Introduction of the basics of range
of motion and its integration into routine personal care
activities.
Competencies:
D.1 Apply the principles of basic nutrition in the preparation
and serving of meals.
D.1.1 List general principles of basic nutrition.
D.1.2 Read the instructions for special diets.
D.1.3 Serve prepared foods as instructed.
D.1.4 Identify cultural variations in diet.
D.2 Recognize abnormal signs and symptoms of common
diseases and conditions. Examples are:
D.2.1 Upper respiratory infection - Report coughing,
sneezing, elevated temperatures, etc.
D.2.2 Diabetes Report excessive thirst, frequent
urination, change in urine output and drowsiness, excessive
perspiration and headache.
D.2.3 Urinary tract infection Report frequent urination,
burning or pain on urination, change in color of urine, blood
or sediment in urine and strong odors.
D.2.4 Cardiovascular conditions - Report shortness of
breath, chest pain, blue color to lips, indigestion, sweating,
change in pulse, etc
D.2.5 Cerebral vascular conditions - Report dizziness,
changes in vision such as seeing double, etc., change in
blood pressure, numbness in any part of the body, or
inability to move arm or leg, etc.
D. 2.6 Skin conditions Report break in skin,
discoloration such as redness, black and blue areas, rash,
itching, etc.
D.2.7 Gastrointestinal conditions - Report nausea,
vomiting, pain, inability to swallow, bowel movement
changes such as color, diarrhea, constipation. (Continue to
list common diseases and conditions based on the population
being served.)
D.3 Provide personal care and basic nursing skills as
directed by the licensed nurse.
D.3.1 Provide for resident's privacy when providing
personal care.
D.3.2 Assist the resident to dress and undress.
D.3.3 Assist the resident with bathing and personal
grooming.
D.3.4 Observe and report condition of the skin.
D.3.5 Assist the resident with oral hygiene.
D.3.6 Administer oral hygiene for the unconscious
resident.
D.3.7 Demonstrate measures to prevent decubitus,
ulcers, i.e., positioning, turning, and applying heel and elbow
protectors.
D.3.8 Assist the resident in using the bathroom.
D.3.9 Assist the resident in using a bedside commode,
urinal and bedpan.
D.3.10 Demonstrate proper bed making procedures.
D.3.11 Feed residents oral table foods in an appropriate
manner.
D.3.12 Distribute nourishment and water.
D.3.13 Accurately measure and record:
a. intake and output
b. height and weight
c. T,P,R
D.3.14 Assist the resident with.shaving.
D.3.15 Shampoo and groom hair.
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1424 FINAL REGULATIONS
D.3.16 Provide basic care of toenails and fingernails if
appropriate.
D.3.17 Assist with catheter care.
D.3.18 Assist the professional nurse with a physical
examination.
D.3.19 Apply a nonsterile dressing.
D.3.20 Apply nonsterile compresses and soaks.
D.3.21 Apply cold and/or heat applications.
D.4 Demonstrate skills which incorporate principles of
restorative care under the direction of a licensed nurse.
D.4.1 Assist the resident in bowel and bladder training.
D.4.2 Assist the resident in activities of daily living and
encourage self help activities.
D.4.3 Assist the resident with ambulation aids, i.e.,
cane, quadcane, walker, crutches, wheelchair and transfer
aids, i.e.1 hydraulic lifts.
D.4.4 Perform range of motion exercise as instructed by
the physical therapist or the professional nurse.
D.4.5 Assist in care and use of prosthetic devices.
D.4.6 Assist the resident in proper use of body
mechanics.
D.4.7 Assist the resident with dangling, standing and
walking.
D.4.8 Demonstrate proper turning and/or positioning
both in bed and in a chair.
D.4.9 Demonstrate proper technique of transferring
resident from bed to chair.
D.5 One man cardiopulmonary resuscitation (CPR) skills in
the checking of conscious and unconscious victims.
D.6 Provide care to resident when death is imminent.
D.6.1 Discuss own feelings and attitude about death.
D.6.2 Explain how culture and religion influence a
person's attitude toward death.
D.6.3 Discuss the stages of dying.
D.6.4 Recognize and report the common signs of
approaching death.
D.6.5 Provide care (if appropriate) to the resident's
body after death.
57.608INSTRUCTORS
A. Primary instructor As an individual responsible for
overall coordination and implementation of nurse aide
training program.
QUALIFICATIONS:
1. RN licensure in the State of Delaware.
2. Two (2) years nursing experience in caring for the
elderly and/or chronically ill of any age.
3. For instructors without prior teaching experience:
a. Successful completion of a "Train the Trainer"
program which provides preparation in teaching adult
learners principles of effective teaching and teaching
methodologies.
4. Waiver of the Train the Trainer requirement is made
for those nurses who demonstrate at least one (1) year of
continuous teaching experience at the nursing assistant or
LPN or RN program level.
B. Program Trainer (s) is the individual (s) who provide
assistance to primary instructors as resource personnel from
the health field.
QUALIFICATIONS:
1. Trainers may include: registered nurses, licensed
practical nurses, pharmacists, dietitians, social workers,
physical or occupational therapists, environmental health
specialists, etc.
2. One (1) year of current experience in caring for the
elderly and/or chronically ill of any age or have equivalent
experience.
3. Trainers are to be licensed, registered and/or certified
in their field, where
applicable.
57.609 TRAINING FOR PRIMARY INSTRUCTORS
The approved instructors will develop into competent
trainers, possessing the necessary skills to train nursing
assistants to meet the established certification criteria. The
trainers will understand the roles. and responsibilities
associated with training. They will be able to design and
implement a training program, assess its value, and modify it
as needed. They will recognize the characteristics of adult
learners and create a training environment conducive to
effective learning.
A. Training course outline shall include:
I. Role of trainer.
II. Communication techniques.
III. Demonstration skills.
IV. Teaching a process.
V. Teaching techniques.
VI. Training techniques.
VII. Developing a formal training plan.
B. Course Management Information
I. Training time will consist of sixteen minimum hours.
II. The instructor must have formal educational
preparation or experience with skills of adult learning.
SECTION 57.7 PERSONNEL/ADMINISTRATIVE
57.701 The administrator (s) shall be responsible for
complying with the regulations herein contained. In the
absence of the administrator, an employee shall be
authorized, in writing, to be in charge.
57.702 All administrators of nursing homes must be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1425
licensed by the Board of Examiners of Nursing Home
Administrators. Such administrators must be full time (40
hours per week) employees.
57.703 A staff of persons sufficient in number and
adequately trained to meet requirements for care shall be
employed. In addition to the staff engaged in the direct care
and treatment of patients, there must be sufficient personnel
to provide basic services; such as: food service, laundry,
housekeeping and plant maintenance.
57.704 No employee shall be less than sixteen (16)
years of age, unless they have been issued proper working
papers.
57.705 The institution shall have written personnel
policies and procedures that adequately support sound
patient care. Personnel records are to be kept current and
available for each employee, and contain sufficient
information to support placement in the positions to which
assigned.
57.706 Minimum requirements for employee physical
examination:
A. Each person, including volunteers, who is involved
in the care of patients shall have a screening test for
tuberculosis as a prerequisite to employment. Either a
negative intradermal skin test or a chest xray showing no
evidence of active tuberculosis shall satisfy this requirement.
B. A report of this test shall be on file at the facility of
employment.
57.707 No person having a communicable disease.
shall be permitted to give care or service. All reportable
communicable diseases shall be reported to the County
Health Officer.
SECTION 57.8 SERVICES TO PATIENTS
57.801 General Services:
A. The skilled care nursing facility shall provide to all
patients the care deemed necessary for their comfort, safety,
nutritional requirements and general wellbeing.
B. The skilled care nursing facility shall have in effect a
written transfer agreement with one (1) or more hospitals
which provides the basis for effective working arrangements
under which inpatient hospital care, or other hospital
services, are available promptly to the facility's patients,
when needed.
C. The skilled care nursing facility shall have a written
provision for promptly obtaining required laboratory, xray
and other diagnostic. services. These services may be
obtained from other facilities that are approved by the State
Board of Health.
57.802 Medical Services:
A. All persons admitted to an institution (skilled care
nursing home) shall be under the care of a licensed
physician.
B. All nursing homes shall arrange for one (1) or more
licensed physicians to be called in an emergency. Names and
phone numbers of these physicians must be posted at all
nurse's stations.
C. All orders for medications, treatments, diets,
diagnostic services, etc. shall be in writing and signed by the
attending physician.
D. All orders shall be renewed and signed by the
physician at least every thirty (30) days.
E. A progress note shall be written and signed by the
physician on each visit.
SECTION 69.100 - DEFINITIONS
69.101 Advanced Practice Nurse- shall mean an
individual whose education and licensure meet the criteria
outlined in 24 Del., C. Chapter 19 and who is certified in at
least one of the following specialty areas: (1) Adult nurse
practitioner; (2) Gerontological clinical nurse specialist; (3)
Gerontological nurse practitioner; (4) Psychiatric/mental
health clinical nurse specialist; (5) Family nurse practitioner.
69.102 Assisted Living Facility - Assisted living
facility is a residential arrangement for fee licensed pursuant
to 16 Del. C., Chapter 11.
69.103 Certified Nursing Assistant (CNA) - a duly
certified individual under the supervision of a licensed nurse,
who provides care which does not require the judgment and
skills of a licensed nurse. The care may include, but is not
limited to, the following: bathing, dressing, grooming,
toileting, ambulating, transferring and feeding, observing
and reporting the general well-being of the person(s) to
whom they are providing care.
69.104 Department - the Department of Health and
Social Services.
69.105 Division- the Division of Long Term Care
Residents Protection.
69.106 Intermediate Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for intermediate care beds.
69.107 Licensed Nurse - shall mean a licensed
practical nurse, registered nurse and/or advanced practice
nurse whose education and licensure meet the criteria in 24
Del. C., Chapter 19.
69.108 Licensed Practical Nurse (LPN) - a nurse who
is licensed as a practical nurse in Delaware or whose license
is recognized to practice in the State of Delaware, and who
may supervise LPN's, CNA's, NA's and other unlicensed
personnel.
69.109 Nursing Assistant (NA) - an individual who
has completed the requisite training to become a Certified
Nursing Assistant but is awaiting certification.
69.110 Nursing Services Direct Caregivers- those
individuals, as defined in 16 Del. C., Section 1161(e),
assigned to the direct care of nursing facility residents.
[69.111 Personal Care Services - those health-related
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1426 FINAL REGULATIONS
services that include general supervision of, and direct
assistance to, individuals in their activities of daily
living.]
69.112 Physician - a physician licensed to practice in
the State of Delaware.
69.113 Registered Nurse (RN) - a nurse who is a
graduate of an approved school of professional nursing and
who is licensed in Delaware or whose license is recognized
to practice in the State of Delaware.
69.114 Rehabilitation - the restoration or maintenance
of an ill or injured person to self-sufficiency at his or her
highest attainable level.
69.115 Resident - a person admitted to a nursing
facility or similar facility licensed pursuant to 16 Del. C.,
Chapter 11.
69.116 Restraint - "physical restraints" are defined as
any manual method or physical or mechanical device,
material or equipment attached or adjacent to the resident's
body that the individual cannot remove easily which restricts
freedom of movement or normal access to one's body.
"Chemical restraints" are defined as a psychopharmacologic
drug that is used for discipline or convenience and not
required to treat medical symptoms.
69.117 Senior Certified Nursing Assistant - a
Certified Nursing Assistant who has met the requirements
and training specified in Section 4 of these regulations.
69.118 Skilled Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for skilled care beds.
69.119 Student - a person enrolled in a course offering
certification as a CNA.
69.120 Supervision - direct oversight and inspection of
the act of accomplishing a function or activity.
SECTION 69.200 - GENERAL TRAINING
REQUIREMENTS AND COMPETENCY TEST
Each Nursing Assistant/Certified Nursing Assistant
employed by any nursing facility either as contract/agency or
facility staff shall be required to meet the following:
69.201 An individual shall complete a nursing
assistant training course approved by the Department on the
recommendation of the CNA Training Curriculum
Committee. The Committee shall consist of individuals with
experience in the knowledge and skills required of CNAs.
69.202 Nursing Assistants are required to pass a
competency test provided by the Department or by a
contractor approved by the Department.
69.203 Nursing Assistants shall take the competency
test within 30 days of completion of an approved program or
when the nearest testing location is available to the nursing
assistant, whichever is later. Nursing assistants who fail to
obtain a passing score may repeat the test two additional
times, but must obtain certification within 90 days of
program completion. Nursing assistants who fail to obtain a
passing score after testing three times must repeat the CNA
training program before retaking the test, or they cannot
continue to work as a nursing assistant.
69.204 A Certified Nursing Assistant must perform at
least 64 hours of nursing related services in a health care
setting during each 24-month certification period in order to
qualify for recertification. A certified nursing assistant who
does not perform at least 64 hours of nursing related services
in a certification period must complete and pass a new
training course and competency test, or competency test.
69.205 A Certified Nursing Assistant trained and
certified outside the State of Delaware shall be deemed
qualified to meet the Department's requirements based on a
current certificate from the jurisdiction where he/she
presently practices, documentation of the equivalent of one
year of full-time experience as a certified nursing assistant
and verification that he/she is in good standing on that
jurisdiction's Registry.
69.206 Employees hired as Nursing Assistants/
Certified Nursing Assistants who are currently enrolled in a
nursing program and have satisfactorily completed a
Fundamentals/Basic Nursing course with a clinical
component will be deemed to meet the training
requirements. These individuals will be approved to take the
competency test upon submission of a letter from their
school of nursing attesting to current enrollment status and
satisfactory course completion as described.
69.207 For the purpose of calculating minimum
staffing levels, any individual who has completed all of the
classroom training and half of the clinical training in a
facility sponsored training program may be considered as a
member of such facility's staff while undergoing the last
37.5 hours of clinical training at such facility.
SECTION 69.300 - CNA TRAINING PROGRAM
REQUIREMENTS
69.301 General
To obtain approval, the curriculum content for
the Certified Nursing Assistant training programs shall meet
each of the following requirements:
A. The curriculum shall include material that will
provide a basic level of both knowledge and demonstrable
skills for each individual completing the program.
B. The program shall be a minimum of 150 hours
in length, divided equally between clinical skills training and
classroom instruction. Additional hours may be in either of
these areas or both.
C. Classroom instruction and demonstrated
proficiency in each skill shall be completed prior to students'
performing direct resident care. Programs shall maintain
documentation of required skills that each student has
successfully demonstrated to the RN instructor.
D. Classroom ratios of student to RN instructor
shall not exceed 24:1. Clinical and laboratory ratios of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1427
student to instructor shall not exceed 8:1.
[E. The RN instructor shall directly supervise
students at all times during clinical instruction. Students
shall remain in visual contact with the RN instructor in
the clinical setting while performing any skills for which
they have not yet demonstrated and the program has
documented proficiency.
F. Programs must notify the State's
recertification agency in writing when changes to the
program or the program's personnel are made.]
69.302 Equipment
All programs shall have available at a
minimum the following equipment:
A. Audio/Visual (Overhead projector and/or TV
with VCR)
B. Teaching Mannequin, Adult, for catheter and
perineal care
C. Hospital Bed
D. Bedpan/Urinal
E. Bedside commode
F. Wheelchair
G. Scale
H. Overbed Table
I. Sphygmomanometer
J. Stethoscope
K. Resident Gowns
L. Thermometers, Glass and Electronic
M. Crutches
N. Canes (Variety)
O. Walker
P. Miscellaneous Supplies: i.e., Bandages,
Compresses, Heating Pad, Hearing Aid, Dentures,
Toothbrushes, Razors.
Q. Foley Catheter Drainage Bag
R. Hydraulic Lift
S. Adaptive eating utensils/equipment
69.303 Curriculum Content
The following material identifies the minimum
competencies that the curriculum content shall develop.
Nursing assistants being prepared to work in skilled,
intermediate, or assisted living facilities either as direct or
contract staff shall master each competency. All
demonstrable competencies for each student must be
documented as mastered by the RN instructor in order for a
student to qualify as successfully having completed that
section of programming.
A. THE NURSING ASSISTANT ROLE AND
FUNCTION
Introduces the characteristics of an effective
nursing assistant: personal attributes, on-the-job conduct,
appearance, grooming, health and ethical behavior. Also
presented are the responsibilities of the nursing assistant as a
member of the resident care team. Legal aspects of resident
care and resident rights are presented. Relevant Federal and
State statutes are also reviewed.
Competencies:
(1) Function as a nursing assistant within the
standards described below:
a. Define the role and functions of the
nursing assistant and provide awareness of the legal
limitations of being a nursing assistant.
b. Recognize the responsibilities of the
nursing assistant as a member of the health care team.
Understand the relevant State and Federal regulations for
long term care and legalities of reporting and documenting
incidents and accidents.
c. Understand the role of Long Term
Care advocates, investigators and surveyors.
d. Identify the "chain of command" in
the organizational structure of the health care agency.
e. Maintain personal hygiene and exhibit
dress practices which meet professional standards.
f. Recognize the importance of
punctuality and commitment to the job.
g. Differentiate between ethical and
unethical behavior on the job.
h. Understand the role, responsibility
and functional limitations of the nursing assistant.
(2) Demonstrate behavior that maintains
resident's rights.
a. Provide privacy and maintenance of
confidentiality.
b. Promote the resident's right to make
personal choices to accommodate individual needs.
c. Give assistance in resolving
grievances.
d. Provide needed assistance in going to
and participating in resident and family groups and other
activities.
e. Maintain care and security of
resident's personal possessions as per the resident's desires.
f. Provide care which ensures that the
residents are free from abuse, mistreatment, neglect or
financial exploitation and report any instances of such poor
care to the Division of Long Term Care Residents
Protection. Discuss the psychological impact of abuse,
neglect, mistreatment, misappropriation of property of
residents and/or financial exploitation.
g. Maintain the resident's environment
and care through appropriate nursing assistant behavior so as
to keep the resident free from physical and chemical
restraints.
h. Discuss the potential negative
outcomes of physical restraints, including side rails.
B. ENVIRONMENTAL NEEDS OF THE
RESIDENT
Key Concepts: Introduces the nursing assistant to
the need to keep residents safe from injury and infection in
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1428 FINAL REGULATIONS
the long-term care setting. The nursing assistant is taught
why and how to use infection control and isolation
techniques. Safety through prevention of fires and accidents,
and emergency procedures for fire and other disasters are
presented.
Competencies:
(1) Apply the basic principles of infection
control.
a. Identify how diseases are transmitted
and understand concepts of infection prevention.
b. Demonstrate proper hand washing
technique.
c. Demonstrate appropriate aseptic
techniques in the performance of normal duties and
understand the role of basic cleaning, disinfecting, and
sterilization tasks.
d. Demonstrate proper isolation and
safety techniques in the care of the infectious resident and
proper handling and disposal of contaminated materials.
(2) Assist with basic emergency procedures.
a. Follow safety and emergency
procedures.
b. Identify safety measures that prevent
accidents to residents.
c. Recognize signs when a resident is
choking or may have an obstructed airway.
d. Assist with clearing obstructed
airway.
e. Call for help when encountering
convulsive disorders, loss of consciousness, shock,
hemorrhage, and assist the resident until professional help
arrives.
f. Follow disaster procedures.
g. Report emergencies accurately and
immediately.
h. Identify potential fire hazards.
(3) Provide a safe, clean environment.
a. Identify the resident's need for a clean
and comfortable environment. Describe types of common
accidents in the nursing home and their preventive measures.
Be aware of the impact of environmental factors on the
resident in all areas including but not limited to light and
noise levels.
b. Report unsafe conditions to
appropriate supervisor. Use the nurse call system
effectively.
c. Report evidence of pests to
appropriate supervisory personnel.
d. Report nonfunctioning equipment to
appropriate supervisory/charge personnel.
e. Prepare soiled linen for laundry.
f. Make arrangement of furniture and
equipment for the resident's convenience and to keep
environment safe.
C. PSYCHOSOCIAL NEEDS OF THE
RESIDENT
Key Concepts: Focus is placed on the diverse
social, emotional, recreational and spiritual needs of
residents in a long term care setting. The curriculum shall
describe some of the physical, mental, and emotional
changes associated with aging and institutionalization, and
present ways in which the nursing assistant may effectively
communicate with residents and their families.
Competencies:
(1) Demonstrate basic skills by identifying the
psychosocial characteristics of the populations being served
in the nursing facility including persons with mental
retardation, mental illness and persons with dementia,
Alzheimer's disease, developmental disabilities and other
related disorders.
a. Indicate the ways to meet the
resident's basic human needs for life and mental well being.
b. Modify his/her own behavior in
response to resident's behavior. Respect the resident's
beliefs recognizing cultural differences in holidays,
spirituality, clothing, foods and medical treatments.
c. Identify methods to ensure that the
resident may fulfill his/her maximum potential within the
normal aging process.
d. Provide training in, and the
opportunity for, self-care according to the resident's
capabilities.
e. Demonstrate principles of behavior
management by reinforcing appropriate behavior and
reducing or eliminating inappropriate behavior.
f. Demonstrate skills which allow the
resident to make personal choices and promote the resident's
dignity.
g. Utilize resident's family as a source of
emotional support and recognize the family's need for
emotional support.
h. Recognize how age, illness and
disability affect memory, sexuality, mood and behavior,
including wandering.
i. Describe aggressive and wandering
behavior; recognize responsibility of staff related to
wanderers and aggressive residents.
j. Discuss how appropriate activities are
beneficial to residents with cognitive impairments.
k. Recognize and utilize augmentative
communication devices and methods of nonverbal
communication.
(2) Demonstrate appropriate and effective
communication skills.
a. Demonstrate effective verbal and
nonverbal communications in keeping with the nursing
assistant's role with residents, their families and staff.
b. Observe by using the senses of sight,
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FINAL REGULATIONS 1429
hearing, touch and smell to report resident behavior to the
licensed nurse.
c. Document observations using
appropriate terms and participate in the care planning
process.
d. Recognize the importance of
maintaining the resident's record accurately and completely.
e. Communicate with residents
according to their state of development. Identify barriers to
effective communication. Recognize the importance of
listening to residents.
f. Participate in sensitivity training in
order to understand needs of residents with physical or
cognitive impairments.
D. PHYSICAL NEEDS OF THE RESIDENT
Key Concepts: Presents the basic skills which
nursing assistants use in the physical care of residents. The
nursing assistant will learn basic facts about body systems
and what is needed to promote good functioning. The
nursing assistant will learn to provide physical care to
residents safely and to keep the resident nourished, hydrated,
clean, dry and comfortable. The nursing assistant will also
learn to make observations regarding residents and to record
and/or report observations. The nursing assistant will be
introduced to the basics of range of motion and learn to
integrate range of motion into routine personal care
activities.
Competencies:
(1) Apply the principles of basic nutrition in
the preparation and serving of meals.
a. Incorporate principles of nutrition and
hydration in assisting residents at meals.
b. Understand basic physiology of
nutrition and hydration.
c. Understand basic physiology of
malnutrition and dehydration.
d. Identify risk factors for poor
nutritional status in the elderly:
i. compromised skin integrity
ii. underweight or overweight
iii. therapeutic or mechanically
altered diet
iv. poor dental status
v. drug-nutrient interactions
vi. acute/chronic disease
vii. depression or confusion
viii. decreased appetite
e. Recognize how the aging process
affects digestion.
f. Accurately calculate and document
meal intake and report inadequate intake or changes in
normal intake.
g. Accurately calculate and document
fluid intake and report inadequate intake or changes in
normal intake.
h. Recognize and report signs and
symptoms of malnutrition and dehydration.
i. Understand concepts of therapeutic
diets including dysphagia diets and the related risks
associated with dysphagia including aspiration and
aspiration pneumonia.
j Incorporate food service principles
into meal delivery including:
i. distributing meals as quickly as
possible when they arrive from the kitchen to maintain food
temperature.
ii. assisting residents with meal setup
if needed (i.e., opening packets or cartons, buttering bread
if desired).
iii. serving meals to all residents
seated together at the same time.
iv. offering appropriate substitutions
if the residents don't like what they have received.
k. Utilize tray card or other mechanism
to ensure the resident is served his/her prescribed diet and
identify who to notify if a resident receives the wrong diet.
l. Demonstrate understanding of how to
read menus.
m. Assist residents who are unable to
feed themselves.
n. Demonstrate techniques for feeding
someone who:
i. bites down on utensils
ii. can't or won't chew
iii. holds food in mouth
iv. pockets food in cheek
v. has poor lip closure
vi. has missing or no teeth
vii. has ill fitting dentures
viii. has a protruding tongue or tongue
thrust
ix. will not open mouth
o. Demonstrate proper positioning of
residents at mealtime.
p. Demonstrate skills for feeding
residents who:
i. are cognitively impaired
ii. have swallowing difficulty
iii. have sensory problems
iv. have physical deformities
q. Demonstrate positioning techniques
for residents who:
i. have poor sitting balance
ii. must take meals in bed
iii. fall forward when seated
iv. lean to one side
v. have poor neck control
vi. have physical deformities
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1430 FINAL REGULATIONS
r. Demonstrate use of assistive devices.
s. Identify signs and symptoms that
require alerting a nurse, including:
i. difficulty swallowing or chewing
ii. coughing when swallowing
liquids
iii. refusal of meal
iv. choking on food or fluids
v. excessive drooling
vi. vomiting while eating
vii. significant change in vital signs
t. Incorporate principles of a pleasant
dining environment when assisting residents at mealtime
including ensuring adequate lighting and eliminating
background noise.
u. Demonstrate positive interaction with
residents recognizing individual resident needs.
v. Ensure residents are dressed
appropriately.
w. Allow residents to eat at their own
pace.
x. Encourage independence and assist as
needed.
y. Recognize and report as appropriate
the risk factors and signs and symptoms of malnutrition,
dehydration and fluid overload.
z. . Accurately calculate and document
intake and output including meal percentages and fluids.
(2) Demonstrate understanding of basic
anatomy and physiology in the following areas:
a. Respiratory system
b. Circulatory system
c. Digestive system
d. Urinary system
e. Musculoskeletal system
f. Endocrine system
g. Nervous system
h. Integumentary system
i. Sensory system
j. Reproductive system
(3) Recognize abnormal signs and symptoms
of common illness and conditions. Examples are:
a. Respiratory infection - Report
coughing, sneezing, elevated temperatures.
b. Diabetes - Report excessive thirst,
frequent urination, change in urine output, drowsiness,
excessive perspiration and headache. Understand the
healing process as it relates to diabetes.
c. Urinary tract infection - Report
frequent urination, burning or pain on urination, elevated
temperature, change in amount and color of urine, blood or
sediment in urine and strong odors.
d. Cardiovascular conditions - Report
shortness of breath, chest pain, blue color to lips, indigestion,
sweating, change in pulse, edema of the feet or legs.
e. Cerebral vascular conditions - Report
dizziness, changes in vision such as seeing double, change
in blood pressure, numbness in any part of the body, or
inability to move arm or leg.
f. Skin conditions - Report break in
skin, discoloration such as redness, black and blue areas,
rash, itching.
g. Gastrointestinal conditions - Report
nausea, vomiting, pain, inability to swallow, bowel
movement changes such as color, diarrhea, and constipation.
h. Infectious diseases.
(4) Provide personal care and basic nursing
skills as directed by the licensed nurse in the appropriate
licensed entity.
a. Provide for resident's privacy and
dignity when providing personal care.
b. Assist the resident to dress and
undress.
c. Assist the resident with bathing and
personal grooming.
d. Observe and report condition of the
skin.
e. Assist the resident with oral hygiene,
including prosthetic devices.
f. Administer oral hygiene for the
unconscious resident.
g. Demonstrate measures to prevent
decubitus ulcers, i.e., positioning, turning and applying heel
and elbow protectors.
h. Assist the resident in using the
bathroom. Understand consequences of not assisting
resident to the bathroom.
i. Assist the resident in using a bedside
commode, urinal and bedpan.
j. Demonstrate proper bed making
procedures for occupied and unoccupied beds.
k. Feed residents oral table foods in an
appropriate manner. Demonstrate proper positioning of
residents who receive tube feeding.
l. Distribute nourishment and water.
m. Accurately measure and record with a
variety of commonly used devices:
i. Blood pressure
ii. Height and weight
iii. Temperature, pulse, respiration
n. Assist the resident with shaving.
o. Shampoo and groom hair.
p. Provide basic care of toenails unless
medically contraindicated.
q. Provide basic care of fingernails
unless medically contraindicated.
r. Demonstrate proper catheter care.
s. Demonstrate proper perineal care.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1431
t. Assist the licensed nurse with a
physical examination.
u. Apply a non-sterile dressing properly.
v. Apply non-sterile compresses and
soaks properly and safely.
w. Apply cold and/or heat applications
properly and safely.
x. Demonstrate how to properly apply
elastic stockings.
y. Demonstrate proper application of
physical restraints including side rails.
(5) Demonstrate skills which incorporate
principles of restorative care under the direction of a licensed
nurse.
a. Assist the resident in bowel and
bladder training.
b. Provide enemas within the scope of
duties of the nurse assistant.
c. Assist the resident in activities of
daily living and encourage self-help activities.
d. Assist the resident with ambulation
aids, i.e., cane, quadcane, walker, crutches, wheelchair and
transfer aids, i.e., hydraulic lifts.
e. Perform range of motion exercise as
instructed by the physical therapist or the licensed nurse.
f. Assist in care and use of prosthetic
devices.
[g. Assist the resident in proper use of
body mechanics.]
h. Assist the resident with dangling,
standing and walking.
i. Demonstrate proper turning and/or
positioning both in bed and in a chair.
j. Demonstrate proper technique of
transferring resident from low and high bed to chair.
[(6) Demonstrate safety and emergency
procedures including proficiency in the Heimlich
maneuver.]
(7) Provide care to resident when death is
imminent.
a. Discuss own feelings and attitude
about death.
b. Explain how culture and religion
influence a person's attitude toward death.
c. Discuss the role of the CNA, the
resident's family and significant others involved in the dying
process.
d. Discuss the stages of death and dying
and the role of the nurse assistant.
e. Provide care, if appropriate, to the
resident's body after death.
SECTION 69.400 - MANDATORY ORIENTATION
PERIOD
69.401 - SKILLED AND INTERMEDIATE CARE
FACILITIES
A. GENERAL REQUIREMENTS
(1) All Nursing Assistants hired to work in a
skilled or intermediate care facility, after completing 150
hours of training, shall undergo a minimum of 80 hours of
orientation at least 40 of which shall be clinical. An
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training, sponsored by the
facility where the Nursing Assistant will be employed
immediately thereafter, shall only be required to complete
additional facility specific orientation of 40 hours in the
same facility.
(2) All Certified Nursing Assistants hired to
work in a skilled or intermediate care facility shall undergo a
minimum of 80 hours of orientation; at least 40 of which
shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
a facility employee for purposes of satisfying the minimum
facility staffing requirements.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication (including the facility
chain of command) and documentation requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including scales, lifts, special beds and tubs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
(a.) Role and function of the
CNA/NA
(b.) Resident rights/abuse
reporting
(c.) Safety and body mechanics:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1432 FINAL REGULATIONS
transfer techniques
(d.) Vital signs
(e.) Psychosocial needs
(f.) Facility policies and
procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care, including foot
and nail care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skills
69.402 - ASSISTED LIVING FACILITIES
A. GENERAL REQUIREMENTS
(1) Nursing Assistants hired to work in an
assisted living facility, after completing 150 hours of
instruction, shall undergo a minimum 64 hours of
orientation, at least 24 of which shall be clinical. An
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training in a training
program sponsored by the facility where the Nursing
Assistant will be employed immediately thereafter shall only
be required to complete an additional 32 hours of facility
specific orientation in the same facility.
(2) Certified Nursing Assistants hired to work
in an assisted living facility shall undergo a minimum of 64
hours of orientation at least 24 of which shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
a facility employee for purposes of satisfying the minimum
facility staffing requirements as set forth by the Department.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including but not limited to scales, lifts, and
wheelchairs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
h. Role and function of the CNA/NA
i. Resident rights/abuse reporting
j. Safety and body mechanics: transfer
techniques
k. Vital signs
l. Psychosocial needs
m. Facility policies and procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1433
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skill
69.403 - TEMPORARY AGENCIES
A. GENERAL REQUIREMENTS
(1) All Certified Nursing Assistants employed
by temporary agencies and placed in a facility in which they
have not worked within the previous six (6) months shall
undergo a minimum of two (2) hours of orientation prior to
beginning their first shift at the facility.
(2) Any Certified Nursing Assistant employed
by a temporary agency and undergoing orientation shall not
be considered a facility employee for purposes of satisfying
the minimum facility staffing requirements.
(3) Nursing Assistants employed by a
temporary agency must be certified prior to placement in any
nursing home.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory two-hour orientation
program shall include but is not limited to a review and
written instruction on the following material by a licensed
nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies including but not limited to scales, lifts, special beds
and tubs
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
SECTION 69.500 - VOLUNTARY SENIOR
CERTIFIED NURSING ASSISTANT
CERTIFICATION
69.501 - TRAINING REQUIREMENTS AND
COMPETENCY TEST
Any Certified Nursing Assistant may pursue
designation as a Senior Certified Nursing Assistant and shall
be so designated if such individual meets the following
minimum requirements:
A. Has been a Certified Nursing Assistant for
a minimum of three years, in good standing with no adverse
findings entered on the Nurse Aide Registry;
B. Has successfully completed an additional
50 hours of advanced training in a program approved by the
Department;
C. Has passed a competency test provided by
the Department or by a contractor approved by the
Department.
69.502 - VOLUNTARY SENIOR CNA
CURRICULUM
The Senior CNA program must meet the same
requirements as those specified in Section 2 of these
regulations in terms of classroom ratios of students to
instructors. The Senior CNA curriculum must meet the
following minimum course content, which will provide an
advanced level of knowledge and demonstrable skills. All
demonstrable competencies shall be documented by the RN
instructor.
A. LEADERSHIP TRAINING AND
MENTORING SKILLS
Key Concepts: Senior Certified Nursing Assistants
will learn how to teach new Nursing Assistants standards of
care. Senior CNAs will learn how to be a role model and
preceptor for new Nursing Assistants and CNAs. Senior
CNAs will learn how prepare assignments, conduct team
meetings and resolve conflicts.
Competencies: Function effectively as a team
leader and mentor/preceptor within the facility.
(1) Define the role and functions of an
effective team leader and mentor.
(2) Identify principles of adult learning.
(3) Recognize various learning styles and
communication barriers.
(4) Assess learner knowledge.
[(5) Supervise, evaluate and act as a
preceptor for the Nursing Assistant and Certified
Nursing Assistant during orientation.]
(6) Demonstrate effective communication
techniques.
(7) Recognize the importance of teamwork.
(8) Actively participate in resident care plan
and team meetings.
(9) Identify strategies for conflict
management.
(10) Learn how to prepare assignments, assist
with scheduling and other administrative duties.
B. DEMENTIA TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of Alzheimer's Disease and related dementias.
The senior CNA will gain the skills necessary to effectively
care for residents exhibiting signs and symptoms of
dementia. The senior CNA will act as a role model and
resource person for other CNAs.
Competencies: Demonstrate appropriate skills and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1434 FINAL REGULATIONS
techniques necessary to provide care to residents exhibiting
signs and symptoms of dementia.
(1) Recognize signs and symptoms of
Alzheimer's Disease and related disorders.
(2) Identify types of dementias.
(3) Discuss methods for managing difficult
behavior.
(4) Demonstrate effective communication
techniques.
(5) Recognize specific issues that arise in
providing care to persons with Alzheimer's Disease and
other memory loss conditions and appropriate interventions
for dealing with these problems including, but not limited to,
agitation, combativeness, sundown syndrome, wandering.
C. ADVANCED GERIATRIC NURSING
ASSISTANT TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of anatomy and physiology with emphasis on the
effects of aging. The senior CNA will effectively carry out
restorative nursing skills as specified in the resident's plan of
care.
Competencies:
(1) Verbalize understanding of anatomy,
physiology and pathophysiology of common disorders of the
elderly.
a. Describe the effects of aging on the
various organs and systems within the body.
b. Describe signs and symptoms of
common disorders.
c. Describe the pathophysiology of
common disorders.
d. Identify measures to assist residents
with common medical problems (e.g., promoting
oxygenation in residents with breathing problems).
e. Observe, report and document
condition changes using appropriate medical terminology.
f. Recognize basic medical emergencies
and how to respond appropriately.
(2) Maintain or improve resident mobility and
the resident's ability to perform activities of daily living.
Understand the reasons for rehabilitation (physiologically),
reasons for, and benefits of Restorative Nursing and be able
to demonstrate the same.
a. Assist the resident with exercise
routine as specified in his/her care plan.
b. Carry out special rehabilitation
procedures as ordered including working with the visually
impaired, special feeding skills/devices, splints, ambulatory
devices and prostheses.
c. Identify ways to prevent contractures.
d. Effectively communicate with the
Rehabilitation Department.
SECTION 69.600 - SENIOR CNA TRAINING
PROGRAM INSTRUCTORS
A. The Primary Instructor is an individual
responsible for the overall coordination and implementation
of the senior certified nursing assistant training program.
The primary instructor is present and available during
clinical training. The primary instructor and all who serve as
instructors in the program must meet the following
qualifications:
(1) RN licensure in the State of Delaware.
(2) Three (3) years nursing experience in
caring for the elderly or chronically ill of any age.
(3) Instructors shall demonstrate:
a. Successful completion of "Train-the-
Trainer" program which provides preparation in teaching
adult learners principles of effective teaching and teaching
methodologies or;
b. Successful completion of a college
level course of at least one semester in length, that was
related to education and the principles of adult learning.
(4) Waiver of the Train-the-Trainer and the
college level education course requirement is made for those
nurses who demonstrate at least one (1) year of continuous
teaching experience at the nursing assistant or LPN or RN
program level.
[B. Program Trainer(s) may provide assistance
to instructors as resource personnel from the health field.
They may provide limited assistance and instruction in
the senior certified nursing assistant program. Senior
CNAs are excluded from conducting training. Program
trainers shall meet the following qualifications:]
(1) Trainers shall be registered nurses,
licensed practical nurses, pharmacists, dietitians, social
workers, physical, speech or occupational therapists,
environmental/fire safety specialists, activity directors, or
other licensed health care professionals.
(2) One (1) year of current experience in
caring for the elderly or have equivalent experience.
(3) Trainers shall be licensed or certified in
their field, where applicable.
SECTION 69.700 - TRAIN-THE-TRAINER
PROGRAM REQUIREMENTS
Each train-the-trainer program shall ensure that an RN
designated as primary instructor meets the following
minimum requirements:
69.701 TRAINING COURSE CONTENT
A. Role of Trainer
B. Communication techniques
C. Demonstration skills
D. Teaching a process
E. Teaching techniques
F. Training techniques
G. Developing a formal training plan
69.702 COURSE MANAGEMENT
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1435
INFORMATION
A. Training time shall consist of sixteen minimum
hours.
B. The train-the-trainer instructor must have
formal educational preparation or experience with skills of
adult learning.
DIVISION OF PUBLIC HEALTH
Statutory Authority: 16 Delaware Code,
Section 9110 (16 Del.C. §9110)
State Of Delaware Rules And Regulations Pertaining To
The Application And Operation Of Managed Care
Organizations (MCO).
Nature of the Proceedings:
Delaware Health and Social Services ("DHSS") initiated
proceedings to adopt Rules and Regulations Governing the
Application and Operation of Managed Care Organizations.
The DHSS proceedings to adopt regulations were initiated
pursuant to 29 Delaware Code Chapter 101 and authority as
prescribed by 16 Delaware Code, Chapter 91, Section 9110.
On November 1, 2001 (Volume 5, Issue 5), 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 December 3, 2001, or
be presented at public hearings on November 26, 2001 and
November 29, 2001, after which time DHSS would review
information, factual evidence and public comment to the
said proposed regulations.
Verbal and written comments were received 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 modifications from
those published in the November 1, 2001, Register of
Regulations, based on comments received during the public
notice period. These modifications are deemed not to be
substantive in nature.
THEREFORE, IT IS ORDERED, that the proposed
Rules And Regulations Governing The Application and
Operation of Managed Care Organizations (MCO) are
adopted and shall become effective January 10, 2001, after
publication of the final regulation in the Delaware Register
of Regulations.
Vincent P. Meconi, Secretary
12.18.2001
Summary Of Evidence
State Of Delaware Rules And Regulations Governing
The Application And Operation Of Managed Care
Organizations (MCO)
Public hearings were held on November 26, 2001 at
10:00 a.m. in the third floor conference room, Jesse Cooper
Building, Federal Street and Water Streets, Dover, Delaware
19903 and 10:00 a.m. on November 29, 2001 in the first
floor conference room, Delaware Fire Service Center, 2307
MacArthur Road, New Castle, DE 19720 before David P.
Walton, Hearing Officer, to discuss the proposed Delaware
Health and Social Services (DHSS) Rules and Regulations
Governing the Application and Operation of Managed Care
Organizations (MCO). The announcement regarding the
public hearing was advertised in the Delaware State News,
the News Journal and the Delaware Register of Regulations
in accordance with Delaware Law. Ms. Mary Peterson from
the Office of Health Facilities Licensing and Certification
(OHFLC), Division of Public Health (DPH), made the
agency's presentation. Attendees were allowed and
encouraged to discuss and ask questions regarding all
sections of the proposed regulations. Public testimony was
given at the public hearing and ten letters were received
commenting on the proposed regulations during the
comment period. Those letters were from:
• The State Council for Persons with Disabilities (SCPD)
• AmeriHealth
• ReedSmith on behalf of the Health Insurance Association
of America (HIAA)
• Campbell Consulting, INC. on behalf of Coventry
Health Care and Mamsi
• Christiana Care Health Plans
• Governor's Advisory Council for Exceptional Citizens
• Medical Society of Delaware Health
• Delaware's American College of Emergency Physicians
• MAMSI
• Sussex Emergency Associates
All public comments and the DHSS (Agency) responses
are as follows:
• Regulation 69.402CIn paragraph 4.b of this section
there was a concern that the term "attending physician"
needed to more accurately reflect physician
making patient decisions in this paragraph. There
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1436 FINAL REGULATIONS
was also a concern that Level III trauma center was
not reflected in this paragraph.
Agency Response: Language was changed to "treating
physician" to be consistent with other statute language.
Reflecting Level III trauma center in this paragraph was not
deemed to be necessary due to medically necessary
emergency health services being a minimal coverage under
the definition of "Basic Health Services" (69.106).
• Regulation 69.402CIn paragraph 5 of this section
there was request that the regulation specify qualifications
of the MCO approval person and that the
person be a physician.
Agency Response: To require this would go beyond the
intent of the Patient's Bill of Rights Act and add to the
statutory language within that Act.
• Regulation 69.402CIn paragraph 5 of this section
concern was expressed about the requirement to
seek approval from the MCO for poststabilization
care and the short timeframe for the MCO response.
Agency Response: This paragraph cites the Patient's
Bill of Rights Act statute and requirements. Therefore there
is no regulatory authority to change it.
• Regulation 69.107 & 69.404Concern was expressed
about the Department's authority to utilize the definition
of "carrier" and regulate said entities in these
regulations.
Agency Response: The Department has been advised by
legal counsel that it has statutory authority to use such a
definition and regulate said entities.
• Regulation 69.110 (Clinical Trials)Concern was
expressed that parts D and E of this section are too
attenuated from stricter standards in parts A, B and
C, which require a direct link National Institutes of
Health, Department of Veteran's Affairs or the
Department of Defense.
Agency Response: This paragraph is in line with the
Patient's Bill of Rights Act statute and requirements set
therein. Therefore there is no regulatory authority to change
it.
• Regulation 69.141 (Standing Referral) Concerned
was expressed that the definition of standing referral
was too broad and could be interpreted to require
MCOs to allow standing referrals for any type of
condition.
Agency Response: In addition to the definition offered
in Section 69.141, the regulation cites additional rules in
regards to standing referrals in Section 69.504 as specified
by the Patient's Bill of Rights Act. To put limitations on or
extend the conditions for standing referrals as setforth in the
statute is beyond the regulatory authority.
• Regulation 69.402In A.2 of this section concern was
expressed about the wording, "within a reasonable
period of time" and who would determine that time,
the member, the provider, the MCO, the Department
or the courts.
Agency Response: In keeping with the intent of the
Patient's Bill of Rights Act, identical language, "within a
reasonable period of time" was used in paragraph 69.402A.2
of the regulations. Further definition of "within a reasonable
period of time" can only be done on a case-by-case basis
between requesting network provider and MCO.
• Regulation 69.402There was concern expressed
about the statements in this section requiring MCOs
to prohibit balance billing by nonparticipating or
non-network providers.
Agency Response: Legal counsel has advised the
Department that the requirements prohibiting balance billing
as set forth in these regulations are in accordance with the
Patient's Bill of Rights Act.
• Regulation 69.402There was a concern expressed
about paragraph C.2, of this section that provides if
an MCO and provider cannot agree upon an appropriate
charge, the provider may appeal to the Insurance
Commissioner for arbitration. A suggestion
that the Department require payment and acceptance
by non-network providers of emergency services
of the UCR (usual, customary and reasonable)
charge for these services.
Agency Response: Although this comment has merit, it
is beyond the scope of this regulation to alter what is
required by the Delaware Patient's Bill of Rights Act.
• Regulation 69.402In paragraph C.5. of this section,
concern was expressed that the one-hour standard is
neither reasonable nor in accordance with industry
practice, and could have the inadvertent result of an
increase of denials for continued coverage in the
non-network facility.
Agency Response: This one-hour timeframe was
established by the Delaware Patient's Bill of Rights Act.
The regulatory authority cannot deviate from this
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1437
requirement in these regulations.
• Regulation 69.106)In paragraph J.1 of this section, it
was noted that "covered person" was not included as
was included in the Patient's Bill of Rights Act.
Agency Response: The words "covered person" was
inserted into paragraph 69.106J.1 as suggested.
• Regulation 69.102A recommendation was made to
add the concept of denial of certification to the regulation
definition of "Appeal" in this section.
Agency Response: The concept of "denial of
certification" is not applicable to the definition of appeal as
used in these regulations. However, it is applicable to the
Department of Insurance as indicated in the Patient's Bill of
Rights Act.
• Regulation 69.107The suggestion was made to
include MCO under the definition of "carrier."
Agency Response: The definition of "carrier" as used in
the regulations is very broad. By stating, "any entity that
provides health insurance in this State," includes MCOs.
• Regulation 69.110BA concern was expressed that
this sentence under the "Clinic Trials" definition in
this section was omitted from the regulation: "This
includes but not limited to, the NCI Clinical Cooperative
Group and the NCI Community Clinical
Oncology program."
Agency Response: This sentence was inadvertently
omitted from this section and will be added back in to be in
line with the Patient's Bill of Rights Act.
• Regulation 69.402A suggestion was made to add the
words, "of an enrollee" to first sentence of paragraph
A.2., of this section.
Agency Response: This paragraph was a direct quote
from the Patient's Bill of Rights, thus to add information to
this paragraph is beyond the Department's regulatory
authority.
• Regulation 69.402In paragraph B.3 of this section, a
suggestion was made to add the words, "or within a
reasonable time" to the first sentence.
Agency Response: These words were actually added in
accordance with the Patient's Bill of Rights to paragraph
69.402A.2.
• Regulation 69.504BA comment was received alerting
us that within this section which describes standing
referrals, a sentence was omitted from the regulations
that was in the Patient's Bill of Rights. "Such
approval shall not be withheld absent a decision by a
qualified physician that the treatment sought in the
treatment plan is not reasonably related to the
appropriate treatment of the insured's condition."
Agency Response: It was determined that this sentence
was inadvertently omitted from the regulation, paragraph
69.504B and will be added back in to reflect wording in the
Patient's Bill of Rights Act.
• Regulation 69.107A concern was expressed that the
definition of "carrier" as used in the regulation be
amended to clearly exclude health service corporations
or Medicaid MCOs, such as Christiana Care's
health plan, First State plan. In the event the definition
cannot be amended, at a minimum, the internal
and external review requirements of both the MCO
regulations and the Department of Insurance Regulation
11 must be reconciled.
Agency Response: The definition of "carrier" used in
this regulation is in accordance with the Patient's Bill of
Rights. Any amendment to that definition is beyond the
Department's regulatory authority. DHSS has worked
closely and will continue to work closely on this dual
regulatory process.
• Regulation 69.404In reference to paragraph I of this
section, costs associated with an external IURO
review are to be borne by the carrier. The questions
asked were "What costs are included in the IURO
review and do these costs include legal counsel for
the covered person?"
Agency Response: The costs are the actual costs
charged by the IURO to do an external review.
• Regulation 69.404In accordance with paragraph
E.10., of this section, "the decision of the IURO is
binding upon the carrier." Questions were asked to
clarify this point and does this affect a carrier's right
to appeal to the Delaware Superior Court in accordance
with 16 Del.C., Section 9119(a)(3).
Agency Response: The decision is binding, meaning the
carrier must take action on the IURO decision. This in no
way impacts the right of the carrier to appeal to the Delaware
Superior Court.
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1438 FINAL REGULATIONS
• Regulation 69.106In reference to paragraph J.3.b),
of this section a suggestion was made to insert language
in this paragraph to clarify that coverage for
pharmacy services are also excluded when coverage
is not medically necessary.
Agency Response: Language used in paragraph
69.106J.3.b) came directly from the Patient's Bill of Rights
Act. It is beyond the regulatory authority to add to this
paragraph.
• Regulation 69.402A suggestion was made to strike
language in paragraph A.1c) of this section, that
refers to geographic distance or appointment times
as it was not provided for in the Patient's Bill of
Rights Act.
Agency Response: While the references to geographic
distances and appointment times in this section were not part
of the Patient's Bill of Rights, it was part of the original
regulatory language of that paragraph. The original
paragraph was re-structured to include provisions of the
Patient's Bill of Rights.
• Regulation 69.402A suggestion was received that
DHSS insert a clarifying statement in paragraph
A.1.c) of this section that states, "the MCO shall
cover nonparticipating providers for services covered
under the terms and conditions of the policy . .
." This will make it clear that MCOs are not
required to pay for nonparticipating providers for
services that would not have been covered if performed
by a network provider.
Agency Response: This is covered under the definition
of "Covered Health Services," Section 69.112.
• Regulation 69.402In reference to paragraph C.5 of
this section a suggestion was submitted to add to this
section a statement clarifying that this process is only
appropriate "if a network provider is not available
to provide the post-stabilization services."
Agency Response: The language used in paragraph
69.402C.5 was directly quoted from the Patient's Bill of
Rights Act. To alter that is beyond the Department's
regulatory authority.
• Regulation 69.402CIn reference to this section titled,
Emergency and Urgent Care Services, a general suggestion
was made to specifically define medical
screening examination and specifically clarify what
is to be covered.
Agency Response: To define medical screening in this
regulation would be too limiting, and needs to remain
flexible to accommodate the various illnesses, injuries, etc,
that are presented in an emergency room. This is more
appropriately determined by the treating physician.
• Regulation 69.106In reference to paragraph J.1.,
Pharmacy services, the question was asked, "What is
the meaning of chronic or disabling condition?"
Agency Response: While the Patient's Bill of Rights Act
provided details for this section of the regulation, it did not
provide a definition for chronic or disabling condition. It
would be limiting and inappropriate for the Department to
attempt to define each chronic or disabling condition in this
current regulation.
• Regulation 69.404In reference to prohibiting balance
billing the following comment was received: By taking
away the ability for the physician to bill for the
difference (balance bill), these regulations may actually
limit access to care. Out of network physicians,
who have already chosen not to contract with an
insurance company, will now be forced into the time
consuming negotiating process for each referral they
receive from a company with which they have no
contractual relationship. Inevitably, forcing delays
in receiving necessary medical care. In addition,
under the proposed regulations, insurance companies
will offer discounted network fees to out of network
physicians forcing many to turn referrals
away, thus restricting the access to care that would
otherwise make the comprehensive patient's right
legislation.
Agency Response: Legal counsel has advised the
Department that the Patient's Bill of Rights Act provides
authority to prohibit balance billing within these regulations.
While it is assumed the provisions of this Act will help
consumers, the Department acknowledges there may be
some negative effects.
• Regulation 69.106JA comment was received that
pointed out a conflict in this section titled, Pharmacy
services between paragraphs 1.b) and 3.a). Paragraph
1.b) refers to, "1. Coverage for any outpatient
drug prescribed to treat a covered chronic, disabling,
or life threatening illness provided that the
drug: b) is recognized for treatment of the indication
for which the drug is prescribed in an approved prescription
drug reference compendium approved by
the Commissioner or a substantially accepted peer
reviewed medical literature," and paragraph 3.a)
refers to, "3. Coverage does not include: a) experi-
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1439
mental drugs not otherwise approved for the proposed
use or indication by the Food and Drug
Administration."
Agency Response: After careful review, it was
determined that the language in the regulation is identical to
the Patient's Bill of Rights Act. The Department
acknowledges a potential conflict but has no authority to
change the law.
• Regulation 69.505AIn reference to Clinical Trials,
paragraph 2. of this section, specifically states, "2.
The trial must not be designed specifically to test toxicity
or disease pathophysiology." The comment
stated that this is in fact the typical intent of clinical
trials. At the same time, paragraph 5 states, "5. The
principal purpose of the trial is to test whether an
intervention potentially improves the participant's
health outcomes." This is in opposition to the fundamental
purpose of a clinical trial. Patients enter into
trials knowing that the main intent is not to treat
them, but future patients with similar disorders.
Agency Response: After careful review of this section it
was determined that the word "specifically" in paragraph
69.505A.2. should actually have been "exclusively" as
reflected in the Patient's Bill of Rights Act.
• A comment was received that recommended including
the definition of "Health plan" as reflected in the
Patient's Bill of Rights Act, in the final regulation.
This will make it clear that those specialty types of
insurance excluded from the definition of carrier by
the Patient's Bill of Rights Act's reference to 18
Del.C. 3343 (a)(2) are also excluded in any cases
where the definition of carrier is applicable.
Agency Response: The Department acknowledges this
omission and has included the definition of "Health plan" in
the final regulations.
• A general statement was received that asserted that
the statute may not be effectuated and enforced until
the regulations are finally adopted.
Agency Response: This comment is outside of the rulemaking
procedure, which is intended to gather comment in
the substance of the proposed regulations.
In addition to changes recommended in this Summary
of Evidence, minor grammatical corrections were made to
the draft regulations.
The public comment period was open from November
1, 2001 to December 3, 2001.
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.
PART ONE
SECTION 69.0 LEGAL AUTHORITY
These regulations are adopted under Part VIII, Title 16,
Delaware Code, Chapter 91, pursuant to delegation of
authority from the Secretary of the Department of Health and
Social Services (DHSS) to the Director of the Division of
Public Health (DPH).
SECTION 69.1 DEFINITIONS
69.101 "Administrator/Chief Executive Officer":
the individual employed to manage and direct the activities
of the MCO.
69.102 "Appeal": a request to reexamine or review an
adverse determination made by an MCO that denies, reduces
or terminates health care benefits.
69.103 "Appellant": an enrollee (69.119) or other
authorized representative (69.104) of the enrollee who may
appeal an MCO decision.
69.104 "Authorized Representative": an individual
who the appellant willingly acknowledges to represent her/
his interests during the appeal process. An MCO may
require the appellant to submit written verification of her/his
consent to be represented. If an enrollee has been
determined by a physician to be incapable of assigning the
right of representation, the appeal may be filed by a family
member or a legal representative.
69.105 "Balance Billing": a health care provider's
demand that a patient pay a greater amount for a given
service than the amount the individual's insurer, managed
care organization, or health service corporation has paid or
will pay for the service.
69.105 106 "Basic Health Services": a range of
services, including at least the following:
A. Physician services, including consultant and
referral services, by a physician licensed by the State of
Delaware.
B. At least three hundred sixty-five (365) days of
inpatient hospital services.
C. Medically necessary emergency health
services.
D. Initial diagnosis and acute medical treatment
(at least one (1) time) and responsibility for making initial
behavioral health referrals.
E. Diagnostic laboratory services.
F. Diagnostic and therapeutic radiological
services.
G. Preventive health services including at least the
provision of physical examinations, papanicolaou (PAP)
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1440 FINAL REGULATIONS
smears, immunizations, mammograms and childrens' eye
examinations (through age 17) conducted to determine the
need for vision correction and performed at a frequency
determined to be appropriate medical practice. Other
preventive services may be provided by the MCO as
contained in the Health Care Contract.
H. Health education services, including education
in the appropriate use of health services, and education in the
contribution each enrollee can make to the maintenance of
the enrollee's own health. This information shall be
understandable and not misleading.
I. Emergency out-of-area and out-of-network
coverage.
J. Pharmacy services:
1. Coverage for any outpatient drug
prescribed to treat a [covered person for a] covered chronic,
disabling, or life-threatening illness provided that the drug:
a) has been approved by the Food and
Drug Administration (FDA) for at least one indication; and,
b) is recognized for treatment of the
indication for which the drug is prescribed in an approved
prescription drug reference compendium approved by the
Commissioner or a substantially accepted peer reviewed
medical literature.
2. Coverage of a drug shall include coverage
of medically necessary services associated with the
administration of the drug.
3. Coverage does not include:
a) experimental drugs not otherwise
approved for the proposed use or indication by the Food and
Drug Administration, or
b) any disease, condition, service, or
treatment that is excluded from coverage under the policy.
69.107 "Carrier": any entity that provides health
insurance in this State. Carrier includes an insurance
company, health service corporation, health maintenance
organization and any other entity providing a plan of health
insurance or health benefits subject to state insurance
regulation
69.106 108 "Certificate of Authority": the
authorization by the Department of Health and Social
Services to operate the MCO. This certificate shall be
deemed to be a license to operate such an Organization.
69.107 109 "Certified Managed Care Organization":
a managed care organization which has been issued a
Certificate of Authority under 16 Del. C. and either a
Certificate of Authority from the Department of Insurance
(DOI) under the relevant provisions of Title 18 or a
statement from the DOI that the DOI Certificate of Authority
is not required.
69.110 "Clinical Trials": clinical trials that are
approved or funded by use of the following entities:
A. One of the National Institutes of Health (NIH);
B. An NIH Cooperative group [of][or] center
which is a formal network of facilities that collaborate
[or][on] research projects and have an established NIH
approval peer review program operating within the group[.
This includes, but is not limited to, the NCI Clinical
Cooperative Group and the NCI Community Clinical
Oncology program.];
C. The federal Departments of Veterans' Affairs
or Defense;
D. An institutional review board of an institution
in this State that has a multiple project assurance contract
approval by the office of protection for the Research Risks of
the NIH; and
E. A qualified research entity that meets the
criteria for NIH Center Support grant eligibility.
69.108 111 "Commissioner": the Insurance
Commissioner of Delaware.
69.109 112 "Covered Health Services": services that
are included in the enrollee's health care contract with the
insurer.
69.110 113 "Covered Person": see "Enrollee".
69.111 114 "Department": the Delaware Department
of Health and Social Services.
69.112 115 "Department of Insurance Certificate of
Authority": the authorization by the Insurance
Commissioner that the MCO has met the relevant provisions
of Title 18 of the Delaware Code.
69.113 116 "Disputable Need": an appeal
classification for adverse determinations that were made
based upon identification of treatment as cosmetic or
experimental.
69.114 117 "Emergency Care": health care items or
services furnished or required to evaluate or treat an
emergency medical condition.
69.115 118 "Emergency Medical Condition": a
medical or behavioral condition, the onset of which is
sudden, that manifest s ing itself by acute symptoms of
sufficient severity (including, but not limited to, severe
pain,) such that a prudent layperson, who possessesing an
average knowledge of health and medicine, could reasonably
expect the absence of immediate medical attention to result
in:
A. Placing the health of the individual afflicted
with such condition (or, with respect to a pregnant woman,
the health of the woman or her unborn child) in serious
jeopardy, or in the case of a behavioral condition, placing the
health of such person or others in serious jeopardy;
B. Serious impairment to bodily functions; or
C. Serious impairment or dysfunction of any
bodily organ or part; or.
D. Serious disfigurement of such person.
69.116 119 "Enrollee": an individual and/or family
who has entered into a contractual arrangement, or on whose
behalf a contractual arrangement has been entered into with
the MCO, under which the MCO assumes the responsibility
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1441
to provide to such person(s) coverage for basic health
services and such supplemental health services as are
enumerated in the Health Care Contract.
69.117 120 "Geographical area": the stated primary
geographical area served by an MCO. The primary area
served shall be a radius of not more than twenty (20) miles or
more than thirty (30) minutes driving time from a primary
care office operated or contracted by the MCO.
69.118 121 "Health Care Contract": any agreement
between an MCO and an enrollee or group plan which sets
forth the services to be supplied to the enrollee in exchange
for payments made by the enrollee or group plan.
69.119 122 "Health Care Professional": individuals
engaged in the delivery of health services as licensed or
certified by the State of Delaware.
69.120 123 "Health Care Services": any services
included in the furnishing to any individual of medical or
dental care, or hospitalization or incidental to the furnishing
of such care or hospitalization, as well as the furnishing to
any person of any and all other services for the purpose of
preventing, alleviating, curing or healing human illness,
injury or physical disability.
[69.124 "Health plan" shall have the same meaning
as 'health benefit plan' as defined in 18 Del.C.
§3343(a)(2).]
69.121 [124 125] "Independent Health Care Appeals
Program": a program within the Department of Health and
Social Services which establishes a final step in the appeal
process and provides for a review by an Independent
Utilization Review Organization (69.126).
69.122 [125 126] "Independent Practice Association"
(IPA): an arrangement in which health care professionals
provide their services through the association in accordance
with a mutually accepted compensation arrangement while
retaining their private practices.
69.123 [126 127] "Independent Utilization Review
Organization (IURO)": an entity that conducts
independent external reviews of an MCO's determinations
resulting in a denial, termination, or other limitation of
covered health care services.
69.124 [127 128] "Insurance Department": the
Delaware Department of Insurance.
69.125 [128 129] "Intermediary": a person authorized
to negotiate and execute provider contracts with MCOs on
behalf of health care providers or on behalf of a network.
69.126 [129 130] "Level 1 Trauma Center": a
regional resource trauma center that has the capability of
providing leadership and comprehensive, definitive care for
every aspect of injury from prevention through
rehabilitation.
69.127 [130 131] "Level 2 Trauma Center": a
regional trauma center with the capability to provide initial
care for all trauma patients. Most patients would continue to
be cared for in this center; there may be some complex cases
which would require transfer for the depth of services of a
regional Level 1 or specialty center.
69.128 [131 132] "Managed Care Organization
(MCO)": a public or private organization, organized under
the laws of any state, which:
A. Provides or otherwise makes available to
enrolled participants health care services, including at least
the basic health services defined in 69.106;
B. Is primarily compensated (except for co­payment)
for the provision of basic health care services to
the enrolled participants on a predetermined periodic rate
basis; and
C. Provides physician services directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual
physicians or one or more groups of physicians (organized
on a group practice or individual practice basis).
69.129 [132 133] "Medical Necessity": providing of
covered health services (69.112) or products that a prudent
physician would provide to a patient for the purpose of
diagnosing, or treating an illness, injury, disease or its
symptoms in a manner that is:
A. In accordance with generally accepted
standards of medical practice;
B. Consistent with the symptoms or treatment of
the condition; and
C. Not solely for anyone's convenience.
69.130 [133 134] "Network": the participating
providers delivering services to enrollees in a managed care
plan.
69.131 [134 135] "Office": any facility where enrollees
receive primary care or other health services.
69.132 [135 136] "Out of Area Coverage": health care
services provided outside the organization's geographic
service areas with appropriate limitations and guidelines
acceptable to the Department and the Commissioner. At a
minimum, such coverage must include emergency care.
69.133 [136 137] "Participating Provider": a provider
who, under a contract with the Organization or with its
contractor or subcontractor, has agreed to provide health
care services to enrollees with an expectation of receiving
payment, other than coinsurance, co-payments or
deductibles, directly or indirectly from the Organization.
69.134 [137 138] "Premium": payment(s) called for in
the health care contract which must be:
A. Paid or arranged for by, or on behalf of, the
enrollee before health care services are rendered by the
MCO;
B. Paid on a periodic basis without regard to the
date on which health services are rendered; and
C. With respect to an individual enrollee are fixed
without regard to frequency, extent or cost of health services
actually furnished.
69.135 [138 139] "Primary Care Physician (PCP)": a
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1442 FINAL REGULATIONS
participating health care physician chosen by the enrollee
and designated by the MCO to supervise, coordinate, or
provide initial care or continuing care to an enrollee, and
who may be required by the MCO to initiate a referral for
specialty care and maintain supervision of health care
services rendered to the enrollee.
69.136 [139 140] "Provider": a health care
professional or facility.
69.137 [140 141] "Staff Model MCO": an MCO in
which physicians are employed directly by the MCO or in
which the MCO directly operates facilities which provide
health care services to enrollees.
69.[141 142] "Standing Referral": a treatment period
during which a health care specialist shall be permitted to
treat an enrollee without further referral from the enrollee's
primary care physician and during which this specialist may
authorize further referrals, procedures, tests, and other
medical services which the enrollee's primary care physician
would otherwise be permitted to provide or authorize.
69.138 [142 143] "Supplemental Payment": any
payment not incorporated in the premium which is required
to be paid to the MCO or providers under contract to the
MCO by the enrollee.
69.139 [143 144] "Supplementary Health Services":
any health services other than basic health services which
may be provided by a MCO to its enrollees and/or for which
the enrollee may contract such as:
A. Long term care;
B. Vision care not included in basic health
services;
C. Dental services;
D. Behavioral health services;
E. Long term physical medicine or rehabilitative
services;
F. Additional pharmacy services;
G. Infertility services; and
H. Other services, such as occupational therapy,
nutritional, home health, homemaker, hospice and family
planning services.
69.140 [144 145] "Tertiary Services": health care
services provided for the intensive treatment of critically ill
patients who require extraordinary care on a concentrated
basis in special diagnostic categories (e.g. burns,
cardiovascular, neonatal, pediatric, oncology, transplants,
etc.).
69.141 [145 146] "Utilization Review": a set of formal
techniques designed to monitor the use of, or evaluate the
clinical necessity, efficacy, and/or efficiency of, health care
services, procedures or settings. Techniques may include
ambulatory review, prospective review, second opinion,
certification, concurrent review, case management,
discharge planning, or retrospective review.
PART TWO
SECTION 69.2 APPLICATION AND CERTIFICATE
OF AUTHORITY
69.201 No person shall establish or operate an MCO in
the State of Delaware or enter this State for purposes of
enrolling persons in an MCO without obtaining a
"Certificate of Authority" under Chapter 91 of Title 16 of the
Delaware Code. A foreign corporation shall not be eligible
to apply for such certificate unless it has first qualified to do
business in the State of Delaware as a foreign corporation
pursuant to 8 Del. C., §371.
69.202 Each application for a Certificate of Authority
shall be made in writing to the Department of Health and
Social Services, shall be certified by an officer or authorized
representative of the applicant, shall be in a form prescribed
by the Department (Appendix A) and shall set forth or be
accompanied by the following:
A. Organizational Information
1. Brief history and description of current
status of applicant, including an organization chart;
2. A copy of the basic organizational
documents such as the certificate of incorporation, articles of
association, or other appropriate documents and
amendments thereto;
3. A list of the names, addresses and official
positions of the persons who are to be responsible for the
conduct of the affairs of the applicant. Include all members
of the Board of Directors or other governing board, the
principal officers in the case of a corporation, and the
partners or members in the case of a partnership or
association; and
4. A list of positions and names for all
management personnel.
B. Health Services Delivery
1. A description of the plan of operation of
the MCO. Include the following items:
a) a listing of basic health services
(69.106) and supplementary health services (69.143) with
utilization projections; and
b) the arrangements for delivery of all
covered health services (including details as to whether
outpatient services are provided directly or through referrals/
purchase agreements with outside fee-for-service providers);
a description of service sites or facilities (specifying days
and hours of operation in the case of outpatient facilities);
and all special policies or provisions designed to improve
accessibility of services.
2. A sample of the contract, agreement or
arrangement between the MCO and providers, including
individual physicians, IPAs, group practices, hospitals,
laboratory services, nursing homes, home health agencies,
and other providers. Any contract, agreement or
arrangement which deviates substantially from the sample
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FINAL REGULATIONS 1443
must be submitted to the OHFLC as executed. In addition,
copies of executed contracts or letters of agreement between
an IPA or medical group and its member or non-member
physicians and other health professionals must be submitted;
3. A list of participating physicians by
specialty and by geographic area as well as a list of other
health care personnel providing services. Each physician
included on the list must be identified as accepting or not
accepting new patients and if there are any limitations on
that physician's accepting any enrollees as patients. Staffing
ratios shall be prepared for each geographic area in which
the MCO proposes to operate. Staffing ratios are the number
of physicians or providers by specialty per enrollee;
4. For staff model MCOs, a list of facilities
that show the capacity, square footage, and the legal
arrangements for use of the facility (leases, subleases,
contract of sale, etc.). Provide copies of leases, contracts of
sale, or other legal agreements relating to the facilities to be
operated by the MCO;
5. All of the applicant's utilization review
and utilization management, utilization control, quality
assurance mechanisms, policies, manuals, guidelines, and
materials;
6. The arrangements for assuring continuity
of care for all services provided to enrollees. Include
comments on policies related to the primary care physician's
responsibilities for coordination and oversight of the
enrollee's overall health care and the impact of the medical
record keeping system on continuity of care;
7. Procedures utilized by the applicant for
determining and ensuring network adequacy;
8. Procedures utilized by the applicant for the
credentialing of providers;
9. Procedures for addressing enrollee
grievances;
10. Any materials or procedures utilized by
the applicant for measuring or assessing the satisfaction of
enrollees; and,
11. Procedures for monitoring enrollee access
to participating providers including but not limited to:
a) appointment scheduling guidelines;
b) standards for office wait times; and
c) standards for provider response to
urgent and emergent issues during and after business hours.
C. Enrollment and Marketing
1. A description of the geographic area to be
served, with a map showing service area boundaries,
locations of the MCO's participating providers, PCPs,
institutional and ambulatory care facilities, and travel times
from various points in the service area to the nearest
ambulatory and institutional services;
2. Identification of all information to be
released to enrollees or prospective enrollees;
3. A description of the proposed marketing
techniques and sample copies of any advertising or
promotional materials to be used within Delaware or to
which Delaware citizens would be exposed;
4. Enrollee handbooks proposed for use. A
finalized enrollee handbook shall also be submitted upon
completion; and,
5. Procedures for notifying enrollees of plan
changes.
D. Financial
1. Financial information submitted to the
Department of Insurance shall be deemed to meet the
requirement of Delaware Code, Title 16, Part VIII, Chapter
91, Section 9104(4).
69.203 Within sixty (60) days after receipt of a complete
application for issuance of Certificate of Authority, the
Department shall determine whether the applicant, with
respect to health care services to be furnished, has:
A. Demonstrated the ability to provide such health
services in a manner assuring availability, accessibility and
continuity of services;
B. Made arrangements for an ongoing health care
quality assurance program;
C. The capability to comply with all applicable
rules and regulations promulgated by the Department;
D. The capability to provide or arrange for the
provision to its enrollees of basic health care services on a
prepaid basis through insurance or otherwise, except to the
extent of reasonable requirements of co-payments; and,
E. For staff model MCOs, the staff and facilities
to directly provide at least half of the outpatient medical care
costs of its anticipated enrollees on a prepaid basis.
69.204 The Department shall issue a Certificate of
Authority to any person filing an application under this
section upon demonstration of compliance with these rules
and regulations if:
A. The application contains all the information
required under 69.202 of this Part;
B. The Department has not made a negative
determination pursuant to 69.203 of this Part; and
C. Payment of the application fees prescribed in
16 Del. C. Chapter 91, has been made.
69.205 If within 60 days after a complete application for
a Certificate of Authority has been filed, the Department has
not issued such certificate, the Department shall immediately
notify the applicant, in writing, of the reasons why such
certificate has not been issued and the applicant shall be
entitled to request a hearing on the application. The hearing
shall be held within 60 days of receipt of written request
therefor. Proceedings in regard to such hearing shall be
conducted in accordance with provisions for case decisions
as set forth in the Administrative Procedures Act, Chapter
101 of Title 29, and in accordance with applicable rules and
regulations of the Department (63 Del. Laws, c.382, §1;66
Del. Laws, c. 124, §7.).
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1444 FINAL REGULATIONS
69.206 No Certificate of Authority shall be issued
without a Certificate of Authority from the DOI under the
relevant provisions of Title 18 or a statement from the DOI
that the DOI Certificate of Authority is not required.
If a deposit is required, it shall be continuously
maintained in trust. In case of a deficiency of deposit, the
Insurance Commissioner shall transmit notice thereof to both
the MCO and the Department. In case the deficiency is not
cured within the allowed time, the Commissioner shall give
notice thereof to the Department and the Department shall
revoke its Certificate of Authority to the MCO.
PART THREE
SECTION 69.3 GENERAL REQUIREMENTS
69.301 Every MCO operating in this State shall file with
the Department every manual concerning: enrollee services
rights and responsibilities; policies and procedures relating
to health plan coverage; complaint and appeal criteria; and,
any other manual upon request. Every filing shall indicate
the effective date thereof.
69.302 Annual reports shall be filed with the
Department by any MCO on or before June 1 covering the
preceding fiscal year. Such reports shall include any
changes in the information originally submitted or required
under 69.2, 69.404I, 69.405B and 69.705. Financial
information submitted to the Department of Insurance shall
be deemed to meet the requirement of Delaware Code, Title
16, Part VIII, Chapter 91, Section 9104(4)
69.303 Contract Provisions
A. Every contract between an MCO and a
participating provider shall contain the following language:
1. "Provider agrees that in no event,
including but not limited to nonpayment by the MCO or
intermediary, insolvency of the MCO or intermediary, or
breach of this agreement, shall the provider bill, charge,
collect a deposit from, seek compensation, remuneration or
reimbursement from, or have any recourse against an
enrollee or a person (other than the MCO or intermediary)
acting on behalf of the enrollee for services provided
pursuant to this agreement. This agreement does not
prohibit the provider from collecting coinsurance,
deductibles or co-payments, as specifically provided in the
evidence of coverage, or fees for uncovered services
delivered on a fee-for-service basis to enrollees."
2. "In the event of an MCO or intermediary
insolvency or other cessation of operations, covered services
to enrollees will continue through the period for which a
premium has been paid to the MCO on behalf of the enrollee
or until the enrollee's discharge from an inpatient facility,
whichever time is greater. Covered benefits to enrollees
confined in an inpatient facility on the date of insolvency or
other cessation of operations will continue until their
continued confinement in an inpatient facility is no longer
medically necessary."
3. The contract provisions that satisfy the
requirements of Subsections 1. and 2. above shall be
construed in favor of the enrollee, shall survive the
termination of the contract regardless of the reason for
termination, including the insolvency of the MCO, and shall
supersede any oral or written contrary agreement between a
provider and an enrollee or the representative of an enrollee
if the contrary agreement is inconsistent with the hold
harmless and continuation of covered services provisions
required by Subsections 1. and 2. above.
4. Every contract between an MCO and a
participating provider shall state that in no event shall a
participating provider collect or attempt to collect from an
enrollee any money owed to the provider by the MCO.
69.304 Amendments or Revisions of Contracts
Any significant amendment to or revision relating
to the text or subtext of an approved provider contract shall
be submitted to and approved by the Department prior to the
execution of an amended or revised contract with the
providers of an MCO.
69.305 The MCO shall establish a policy governing
termination of providers. The policy shall include at least:
A. Written notification to each enrollee six (6)
weeks prior to the termination or withdrawal from the
MCO's provider network of an enrollee's primary care
physician except in cases where termination was due to
unsafe health care practice; and,
B. Except in cases where termination was due to
unsafe health care practices that compromise the health or
safety of enrollees, assurance of continued coverage of
services at the contract price by a terminated provider for up
to 120 calendar days in cases where it is medically necessary
for the enrollee to continue treatment with the terminated
provider. In cases of the pregnancy of an enrollee, medical
necessity shall be deemed to have been demonstrated and
coverage shall continue to completion of postpartum care.
69.306 The Medical Director and physicians designated
to act on his behalf shall be Delaware licensed physicians.
69.307 Prohibited Practices
A. No MCO or representative may cause or permit
the use of advertising or solicitation which is untrue or
misleading.
B. No MCO may cancel or refuse to renew the
enrollment of an enrollee solely on the basis of her/his
health. This does not prevent the MCO from canceling the
enrollment of an enrollee if misstatements of her/his health
were made at the time of enrollment, or prevent the MCO
from canceling or refusing to renew enrollment for reasons
other than an enrollee's health including without limitation,
nonpayment of premiums or fraud by the enrollee.
C. An MCO contract shall contain no provision or
nondisclosure clause prohibiting physicians or other health
care providers from giving patients information regarding
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FINAL REGULATIONS 1445
diagnoses, prognoses and treatment options.
D. An MCO shall not deny, exclude or limit
benefits for a covered individual for losses due to a
preexisting condition where such were incurred more than
twelve (12) months following the date of enrollment in such
plan or, if earlier, the first day of the waiting period for such
enrollment.
E. An MCO shall not impose any preexisting
condition exclusion relating to pregnancy or in the case of a
child who is adopted or placed for adoption before attaining
eighteen (18) years of age and who, as of the last day of the
30-day period beginning on the date of the adoption or
placement for adoption, is covered under creditable
coverage. The previous sentence shall not apply to coverage
before the date of such adoption or placement for adoption.
F. An MCO shall not offer incentives to a
provider to provide less than medically necessary services to
an enrollee.
G. An MCO shall not penalize a provider because
the provider, in good faith, reports to state authorities any act
or practice by the MCO that jeopardizes patient health or
welfare.
H. A contract between an MCO and a provider
shall not contain definitions or other provisions that conflict
with the definitions or provisions contained in these
regulations.
69.308 An MCO shall establish a mechanism by which
the participating provider will be notified on an ongoing
basis of the specific covered health services for which the
provider will be responsible, including any limitations or
conditions on services.
69.309 An MCO shall notify participating providers of
the providers' responsibilities with respect to the MCO's
applicable administrative policies and programs, including
but not limited to payment terms, utilization review, quality
assessment and improvement programs, credentialing,
grievance procedures, data reporting requirements,
confidentiality requirements and any applicable federal or
state programs.
69.310 The rights and responsibilities under a contract
between an MCO and a participating provider shall not be
assigned or delegated by the provider without the prior
written consent of the MCO.
69.311 An MCO is responsible for ensuring that a
participating provider furnishes covered benefits to all
enrollees without regard to the enrollee's enrollment in the
plan as a private purchaser of the plan or as a participant in
publicly financed programs of health care services. This
requirement does not apply to circumstances when the
provider should not render services due to limitations arising
from lack of training, experience, skill or licensing
restrictions.
69.312 An MCO shall notify the participating providers
of their obligations, if any, to collect applicable coinsurance,
co-payments or deductibles from enrollees pursuant to the
evidence of coverage, or of the providers' obligations, if any,
to notify enrollees of their personal financial obligations for
non-covered services.
69.313 An MCO shall establish procedures for
resolution of administrative, payment or other disputes
between providers and the MCO.
69.314 Notice of Changes in MCO Operations
The MCO shall notify the Department in writing,
on an ongoing basis, of any substantial changes in
organization, bylaws, governing board, provider contracts or
agreements, marketing materials, grievance procedures,
enrollee handbooks, utilization management program, and
any change of inpatient acute care hospitals. The
Department shall be notified on at least a quarterly basis of
changes in the provider network.
69.315 Changes in Ownership Interests
Certificates of Authority shall not be assignable or
transferable in whole or in part. Accordingly, the holder of
record of any Certificate of Authority to operate in
Delaware, as a condition thereof, shall comply with all of the
following requirements regarding changes in ownership
interests. For the purposes of this section, changes in
ownership interests shall refer to changes in the ownership of
the holder of record of any Certificate of Authority and/or
changes in ownership of any individual, corporation or other
entity which, through the ownership of voting securities, by
contract or by any other means, has the authority to or does
in fact direct or cause the direction of the management and/
or the policies of the MCO which is the subject of the
Certificate of Authority at issue.
69.316 Examinations
A. The Department may make examinations
concerning the quality of health care services of any MCO.
The Department may make such examination as it deems
necessary for the protection of the interests of the enrollees
of the MCO, but not less frequently than every three (3)
years;
B. Every MCO shall submit its books and records
relating to health care services to such examinations. In the
course of such examinations, the Department may
administer oaths to and examine the officers and agents of
the MCO and of any health care providers with which it has
contracts, agreements or other arrangements. The MCO
shall require a provider to make health records available to
the Department employees involved in assessing the quality
of care or investigating the grievances or complaints of
enrollees, and to comply with the applicable laws related to
the confidentiality of medical or health records; and,
C. The reasonable expenses of examinations
under this section shall be assessed against the MCO being
examined and remitted to the Department.
69.317 Violations/Penalties
A. The Department may revoke or suspend a
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1446 FINAL REGULATIONS
Certificate of Authority issued to an MCO pursuant to 16
Del. C. Chapter 91, or may place the MCO on probation for
such period as it determines, or may publicly censure an
MCO if it determines, after a hearing, that:
1. The MCO is operating in a manner which
deviates substantially, in a manner detrimental to its
enrollees, from the plan of operation described by it in
securing its Certificate of Authority;
2. The MCO does not have in effect
arrangements to provide the quantity and quality of health
care services required by its enrollees;
3. The MCO is no longer in compliance with
the requirements of 16 Del. C. §9104(b); or,
4. The continued operation of the MCO
would be detrimental to the health or well being of its
enrollees needing services.
B. The Department may issue an order directing a
health carrier or a representative of a health carrier to cease
and desist from engaging in any act or practice in violation
of the provisions of this act. If the Secretary elects not to
issue a cease and desist order, or in the event of
noncompliance with a cease and desist order, the Secretary
may institute a proceeding to obtain injunctive relief.
1. Within twenty (20) calendar days after
service of the cease and desist order, the health carrier may
request a hearing on the question of whether acts or practices
in violation of this act have occurred. This appeal shall not
stay the cease and desist order.
C. Proceedings in regard to any hearing held
pursuant to this section shall be conducted in accordance
with provisions for case decisions as set forth in the
Administrative Procedures Act, 29 Del. C. §101, and any
applicable rules and regulations of the Department. Any
decision rendered following a hearing shall set forth the
findings of fact and conclusions of the Department as to any
violations of this Chapter, and shall also set forth the reasons
for the Department's choice of any sanction to be imposed.
The Department's choice of sanction shall not be disturbed
upon appeal, except for abuse of discretion.
D. Suspension of a Certificate of Authority
pursuant to this section shall not prevent the MCO from
continuing to serve all its enrollees as of the date the
Department issues a decision imposing suspension, nor shall
it preclude thereafter adding as enrollees newborn children
or other newly acquired dependents of existing enrollees.
Unless otherwise determined by the Department and set
forth in its decision, a suspension shall, during the period
when it is in effect, preclude all other new enrollments and
also all advertising or solicitation on behalf of the MCO
other than communication, approved by the Department,
which are intended to give information as to the effect of the
suspension.
E. In the event that the Department decides to
revoke the Certificate of Authority of an MCO the decision
so providing shall specify the time and manner in which its
business shall be concluded. If the Department determines it
is appropriate, it may refer the matter of conservation or
liquidation to the Insurance Commissioner, who shall then
proceed in accordance with 18 Del. C., Chapter 59. In any
case, after the Department has issued a decision revoking a
Certificate of Authority, unless stayed in connection with an
appeal, the MCO shall not conduct any further business
except as expressly permitted in the Department's decision
and it shall engage only in such activities as are directed by
the Department or are required to assist its enrollees in
securing continued health care coverage.
F. The Department may require a corrective
action plan from an MCO when the Department determines
that the MCO is not in compliance with any of the
regulations contained herein.
G. Civil Monetary Penalty (CMP)
1. A carrier that violates any provision of this
act shall be liable to a civil penalty of not less than two
hundred fifty dollars ($250.00) and not greater than ten
thousand dollars ($10,000.00) for each day that the carrier is
in violation of the act.
2. The Department shall give ten (10)
calendar days written notice to the health carrier of its intent
to levy such a penalty.
3. The health carrier may, within such 10-day
period, give written notice of their desire to have a hearing.
Proceedings in regard to such hearing shall be conducted in
accordance with provisions for case decisions as set forth in
the Administrative Procedures Act, Title 29, Chapter 101 of
the Delaware Code and in accordance with applicable rules
and regulations of the Department.
69.318 Fees
Every MCO shall pay the following fees in
accordance with 16 Del. C., Ch. 91, Sec. 9111. :
A. For filing an application for a Certificate of
Authority - three hundred and seventy-five dollars
($375.00).
B. For filing an annual report - two hundred and
fifty dollars ($250.00).
69.319 Confidentiality of Health Information
Any data or information pertaining to the diagnosis,
treatment or health of any enrollee or applicant obtained
from such person or from any health care provider by any
MCO shall be held in confidence and shall not be disclosed
to any person except upon the express consent of the enrollee
or applicant, or his physician, or pursuant to statute or court
order for the production of evidence or the discovery thereof,
or in the event of claim or litigation between such person and
the MCO wherein such data or information is pertinent or as
may be required by the Department in the course of their
examinations in accordance with 69.316. The
communication of such data or information from a health
care provider to a MCO shall not prevent such data or
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FINAL REGULATIONS 1447
information from being deemed confidential for purposes of
the Delaware Uniform Rules of Evidence.
69.320 The MCO is responsible for meeting each
requirement of these regulations. If the MCO chooses to
utilize contract support or to contract functions under these
regulations, the MCO retains responsibility for ensuring that
the requirements of this regulation are met.
69.321 Specific standards may be waived by the
Department provided that each of the following conditions
are met:
A. Strict enforcement of the standard would result
in unreasonable hardship on the MCO.
B. A waiver must not adversely affect the health,
safety, welfare, or rights of any enrollee of the MCO.
C. The request for a waiver must be made to the
Department, in writing, by the MCO with substantial detail
justifying the request.
D. Prior to filing a request for a waiver, the MCO
shall provide written notice of the request to each enrollee.
Prior to filing a request for a waiver, the MCO shall also
provide written notice of the request to the Department. The
notice shall state that the enrollee has the right to object to
the waiver request in writing to the Department.
Upon filing the request for a waiver, the MCO shall
submit to the Department a copy of the notice and a sworn
affidavit outlining the method by which the requirement was
met. The MCO shall maintain proof of the method by which
the requirement was met by the MCO for the duration of the
waiver and make such proof available upon the request of
the Department.
E. A waiver granted by the Department is not
transferable to another MCO in the event of a change of
ownership.
F. A waiver shall be granted for the term of the
license.
PART FOUR
SECTION 69.4 QUALITY ASSURANCE AND
OPERATIONS
69.401 Health Care Professional Credentialing
A. General Responsibilities, an MCO shall:
1. Establish written policies and procedures
for credentialing verification of all health care professionals
with whom the MCO contracts and apply these standards
consistently;
2. Verify the credentials of a health care
professional before entering into a contract with that health
care professional. The medical director of the MCO or other
designated health care professional shall have responsibility
for, and shall participate in, health care professional
credentialing verification;
3. Establish a credentialing verification
committee consisting of licensed physicians and other health
care professionals to review credentialing verification
information and supporting documents and make decisions
regarding credentialing verification;
4. Make available for review by the applying
health care professional upon written request all application
and credentialing verification policies and procedures;
5. Retain all records and documents relating
to a health care professionals credentialing verification
process for not less than four (4) years; and,
6. Keep confidential all information obtained
in the credentialing verification process, except as otherwise
provided by law.
B. Nothing in these regulations shall be construed
to require an MCO to select a provider as a participating
provider solely because the provider meets the MCO's
credentialing verification standards, or to prevent the MCO
from utilizing separate or additional criteria in selecting the
health care professionals with whom it contracts.
C. Selection standards for participating providers
shall be developed for primary care professionals and each
health care professional discipline. The standards shall be
used in determining the selection of health care professionals
by the MCO, its intermediaries and any provider networks
with which it contracts. The standards shall meet the
requirements of 69.401 A. and 69.401 D. Selection criteria
shall not be established in a manner:
1. That would allow an MCO to avoid highrisk
populations by excluding providers because they are
located in geographic areas that contain populations or
providers presenting a risk of higher than average claims,
losses or health services utilization; or,
2. That would exclude providers because
they treat or specialize in treating populations presenting a
risk of higher than average claims, losses or health services
utilization.
D. Qualifications of primary care providers
1. Physicians qualified to function as primary
care providers include: licensed physicians who have
successfully completed a residency program accredited by
the Accreditation Council for Graduate Medical Education
or approved by the American Osteopathic Association in
family practice, internal medicine, general practice,
pediatrics, obstetrics-gynecology or who are diplomats of
one of the above certifying boards approved by the
American Board of Medical Specialties or one of the
certifying boards of the American Osteopathic Association.
E. Verification Responsibilities, an MCO shall:
1. Obtain primary verification of at least the
following information about the applicant:
a) current license, certification, or
registration to render health care in Delaware and history of
same;
b) current level of professional liability
coverage, if applicable;
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1448 FINAL REGULATIONS
c) status of hospital privileges, if
applicable;
d) specialty board certification status, if
applicable; and,
e) current Drug Enforcement Agency
(DEA) registration certificate, if applicable.
2. Obtain, subject to either primary or
secondary verification:
a) the health care professional's record
from the National Practitioner Data Bank; and,
b) the health care professional's
malpractice history.
3. Not less than every three (3) years obtain
primary verification of a participating health care
professional's:
a) current license or certification to
render health care in Delaware;
b) current level of professional liability
coverage, if applicable;
c) status of hospital privileges, if
applicable;
d) current DEA registration certificate, if
applicable; and,
e) specialty board certification status, if
applicable.
4. Require all participating providers to
notify the MCO of changes in the status of any of the items
listed in this section at any time and identify for participating
providers the individual to whom they should report changes
in the status of an item listed in this section.
F. Health Care Professionals Right to Review
Credentialing Verification Information
1. An MCO shall provide a health care
professional the opportunity to review and correct
information submitted in support of that health care
professional's credentialing verification application as set
forth below.
a) each health care professional who is
subject to the credentialing verification process shall have
the right to review all information, including the source of
that information, obtained by the MCO to satisfy the
requirements of this section during the MCO's credentialing
process.
b) an MCO shall notify a health care
professional of any information obtained during the MCO's
credentialing verification process that does not meet the
MCO's credentialing verification standards or that varies
substantially from the information provided to the MCO by
the health care professional, except that the MCO shall not
be required to reveal the source of information if the
information is not obtained to meet this requirement, or if
disclosure is prohibited by law.
c) a health care professional shall have
the right to correct any erroneous information. The MCO
shall have a formal process by which a health care
professional may submit supplemental or corrected
information to the MCO's credentialing verification
committee and request a reconsideration of the health
professional's credentialing verification application if the
health care professional feels that the MCO's credentialing
verification committee has received information that is
incorrect or misleading. Supplemental information shall be
subject to confirmation by the MCO.
69.402 Provider Network Adequacy
A. Primary, Specialty and Ancillary Providers
1. The MCO shall maintain an adequate
network of primary care providers, specialists, and other
ancillary health care resources to serve the enrolled
population at all times. The MCO shall develop and submit
annually to the Department policies and procedures for
measuring and assessing the adequacy of the network. At a
minimum, the network of providers shall include:
a) a sufficient number of licensed
primary care providers under contract with the MCO to
provide basic health care services. All enrollees must have
immediate telephone access seven (7) days a week, twentyfour
(24) hours a day, to their primary care provider or his/
her authorized on-call back-up provider;
b) a sufficient number of licensed
medical specialists available to MCO enrollees to provide
medically necessary specialty care. The MCO must have a
policy assuring reasonable access to frequently used
specialists within each service area; and,
c) a sufficient number of other health
professional staff including but not limited to licensed nurses
and other professionals available to MCO enrollees to
provide basic health care services. The MCO shall cover
nonparticipating providers at no extra cost to the enrollee if a
plan has an insufficient number of providers within
reasonable geographic distances and appointment times to
meet the medical needs of the enrollee. If a plan has an
insufficient number of providers within reasonable
geographic distances and appointment times to meet the
medical needs of the enrollee, the MCO shall cover
nonparticipating providers, and shall prohibit balance
billing.
2. The MCO shall allow referral to a nonnetwork
provider, upon the request of a network provider,
when medically necessary covered services are not available
through network providers, or the network providers are not
available within a reasonable period of time. The MCO shall
make acceptable service arrangements with the provider and
enrollee, and shall prohibit balance billing.
B. Facility and Ancillary Health Care Services
1. The MCO shall maintain contracts or other
arrangements acceptable to the Department with institutional
providers which have the capability to meet the medical
needs of enrollees and are geographically accessible. The
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FINAL REGULATIONS 1449
network of providers shall include:
a) at least one licensed acute care
hospital including at least licensed medical-surgical,
pediatric, obstetrical, and critical care services in any service
area no greater than thirty (30) miles or forty (40) minutes
driving time from ninety percent (90%) of enrollees within
the service area.
b) surgical facilities including hospitals
licensed ambulatory surgical facilities, and/or physicians
surgical practices. Such services shall be available in each
service area no greater than thirty (30) miles or forty (40)
minutes driving time from ninety percent (90%) of enrollees
within the service area.
c) the MCO shall have a policy assuring
access to the following specialized services, as determined to
be medically necessary:
(1) at least one hospital providing
regional perinatal services;
(2) a hospital offering pediatric
intensive care services;
(3) a hospital offering neonatal
intensive care services;
(4) therapeutic radiation provider;
(5) magnetic resonance imaging
center;
(6) diagnostic radiology provider,
including X-ray, ultrasound, and CAT scan;
(7) emergency mental health service;
(8) diagnostic cardiac catheterization
services in a hospital;
(9) specialty pediatric outpatient
centers for conditions including sickle cell, hemophilia, cleft
lip and palate, and congenital anomalies;
(10) clinical Laboratory certified
under CLIA; and,
(11) certified renal dialysis provider.
Such services shall be reasonably
accessible. Evidence indicating such services shall include
contracts or other agreements acceptable to the Department.
2. If offered by the plan, the MCO shall have
a policy assuring access to the following specialized
services, as determined to be medically necessary:
a) a licensed long term care facility with
skilled nursing beds;
b) residential substance abuse treatment
center;
c) inpatient psychiatric services for
adults and children;
d) short term care facility for involuntary
psychiatric admissions;
e) outpatient therapy providers for
mental health and substance abuse conditions;
f) home health agency licensed by the
Department;
g) hospice program licensed by the
Department; and,
h) pharmacy services.
Such services shall be reasonably
accessible. Evidence indicating such services shall include
contracts or other agreements acceptable to the Department.
3. The MCO shall make acceptable service
arrangements with the provider and enrollee, at no extra cost
to the enrollee and shall prohibit balance billing, if the
appropriate level of service is not available within the
geographical service area. These services will not be limited
to the State of Delaware. These services could include but
are not limited to tertiary services, burn units and transplant
services.
C. Emergency and Urgent Care Services
1. The MCO shall establish written policies
and procedures governing the provision of emergency and
urgent care which shall be distributed to each enrollee at the
time of initial enrollment and after any revisions are made.
These policies shall be easily understood by a layperson.
2. When emergency care services are
performed by non-network providers, the MCO shall make
acceptable service arrangements with the provider and
enrollee, and shall prohibit balance billing. In those cases
where the MCO and the provider cannot agree upon the
appropriate charge, the provider may appeal to the
Commissioner for arbitration.
3. Enrollees shall have access to emergency
care (69.117) twenty-four (24) hours per day, seven (7) days
per week. The MCO shall cover emergency care necessary
to screen and stabilize an enrollee and shall not require prior
authorization of such services if a prudent lay person acting
reasonably would have believed that an emergency medical
condition (69.118) existed.
4. Emergency and urgent care services
shall include but are not limited to:
a) medical and psychiatric care, which
shall be available twenty-four (24) hours a day, seven (7)
days a week;
b) trauma services at any designated
Level I or II trauma center as medically necessary. Such
coverage shall continue at least until the enrollee is
medically stable, no longer requires critical care, and can be
safely transferred to another facility, in the judgment of the
[attending][treating] physician. If the MCO requests
transfer to a hospital participating in the MCO network, the
patient must be stabilized and the transfer effected in
accordance with federal regulations at 42 CFR 489.20 and
42 CFR 489.24;
c) out of area health care for urgent or
emergency conditions where the enrollee cannot reasonably
access in-network services;
d) hospital services for emergency care;
and,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1450 FINAL REGULATIONS
e) upon arrival in a hospital, a medical
screening examination, as required under federal law, as
necessary to determine whether an emergency medical
condition exists.
5. When an enrollee has received emergency
care from a non-network provider and is stabilized, the
enrollee or the provider must request approval from the
MCO for continued post-stabilization care by a non-network
provider. The MCO is required to approve or disapprove
coverage of post-stabilization care as requested by a treating
physician or provider within the time appropriate to the
circumstances relating to the delivery of services and the
condition of the enrollee, but in no case to exceed one hour
from the time of the request.
D. All enrollees shall be provided with an up-todate
and comprehensive list of the provider network upon
enrollment and upon request. Updates due to provider
changes must be provided at least quarterly.
69.403 Utilization Management
A. Utilization Management Functions
1. The MCO shall establish and implement a
comprehensive utilization management program to monitor
access to and appropriate utilization of health care and
services. The program shall be under the direction of a
designated physician and shall be based on a written plan
that is reviewed at least annually. The plan shall identify at
least:
a) scope of utilization management
activities;
b) procedures to evaluate clinical
necessity, access, appropriateness, and efficiency of
services;
c) mechanisms to detect under
utilization;
d) clinical review criteria and protocols
used in decision-making;
e) mechanisms to ensure consistent
application of review criteria and uniform decisions;
f) system for providers and enrollees to
appeal utilization management determinations in accordance
with the procedures set forth; and,
g) a mechanism to evaluate enrollee and
provider satisfaction with the complaint and appeals systems
set forth. Such evaluation shall be coordinated with the
performance monitoring activities conducted pursuant to the
continuous quality improvement program set forth.
2. Utilization management determinations
shall be based on written clinical criteria and protocols
reviewed and approved by practicing physicians and other
licensed health care providers within the network. These
criteria and protocols shall be periodically reviewed and
updated, and shall, with the exception of internal or
proprietary quantitative thresholds for utilization
management, be readily available, upon request, to affected
providers and enrollees. All materials including internal or
proprietary materials for utilization management shall be
available to the Department upon request.
3. Compensation to persons providing
utilization review services for an MCO shall not contain
incentives, direct or indirect, for these persons to make
inappropriate review decisions. Compensation to any such
persons may not be based, directly or indirectly, on the
quantity or type of adverse determinations rendered.
B. Utilization Management Staff Availability
1. At a minimum, appropriately qualified
staff shall be immediately available by telephone, during
routine provider work hours, to render utilization
management determinations for providers.
2. The MCO shall provide enrollees with a
toll free telephone number by which to contact customer
service staff on at least a five (5) day, forty (40) hours a
week basis.
3. The MCO shall supply providers with a
toll free telephone number by which to contact utilization
management staff on at least a five (5) day, forty (40) hours a
week basis.
4. The MCO must have policies and
procedures addressing response to inquiries concerning
emergency or urgent care when a PCP or her/his authorized
on call back up provider is unavailable.
C. Utilization Management Determinations
1. All determinations to authorize services
shall be rendered by appropriately qualified staff.
2. All determinations to deny or limit an
admission, service, procedure or extension of stay shall be
rendered by a physician. The physician shall be under the
clinical direction of the medical director responsible for
medical services provided to the MCO's Delaware enrollees.
Such determinations shall be made in accordance with
clinical and medical criteria and standards and shall take into
account the individualized needs of the enrollee for whom
the service, admission, procedure is requested.
3. All determinations shall be made on a
timely basis as required by the exigencies of the situation.
4. An MCO may not retroactively deny
reimbursement for a covered service provided to an enrollee
by a provider who relied upon the written or verbal
authorization of the MCO or its agents prior to providing the
service to the enrollee, except in cases where the MCO can
show that there was material misrepresentation, fraud or the
patient was found not to have coverage.
5. An enrollee must receive upon request a
written notice of all determinations to deny coverage or
authorization for services required and the basis for the
denial.
69.404 Appeal Procedure
A. Scope of Appeal
The following appeal procedure shall be
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FINAL REGULATIONS 1451
utilized when the subject of the appeal is based upon medical
necessity (69.132) or disputable need (69.116). For all other
appeals, the MCO carrier shall develop and implement
written policies and procedures that require a review process
and a written response to the appellant.
B. Appeal Procedure
1. Information Disclosure
An MCO carrier shall provide enrollees
with a written explanation of the appeal process upon
enrollment, annually, upon request and each time the appeal
process is substantially changed. An MCO carrier shall also
provide participating providers with a written explanation of
the appeal process, upon initial participation with the MCO's
carrier network, upon request and each time the appeal
process is substantially changed.
2. Stages of Appeal Process
a) an MCO carrier shall establish an
appeal process for appellants for review of coverage
determinations based on medical necessity (69.132) or
disputable need (69.116). The appeal process shall consist
of the following stages: an internal review by the MCO
carrier ("Stage 1 Appeal"), a second subsequent internal
review by the MCO carrier ("Stage 2 Appeal") and an
external review ("Stage 3 Appeal").
b) each stage of the appeal process shall
provide for expedited review that shall not exceed seventytwo
(72) hours.
(1) in the event that the subject of the
appeal concerns an imminent, emergent, or serious threat to
the appellant each stage (1, 2, and 3) of the appeal process
may take seventy-two (72) hours each.
(2) in the event that the subject of the
appeal concerns an emergency medical condition (69.118),
both stages of internal review (stage 1 and 2) must be
concluded within a total of seventy-two (72) hours. Stage 3
must be completed within an additional seventy-two (72)
hours.
3. Petition for External Review form
All MCOs carriers shall complete a DHSS
approved form and forward it to the Department to initiate
the Independent Health Care Appeals Program.
4. Waiver of Internal Review Process
In the event that the MCO carrier fails to comply with any of
the deadlines for completion of the Stage 1 or 2 appeals, or
in the event that the MCO carrier for any reason [expressly]
waives its rights to an internal review of any appeal, then the
appellant shall be relieved of her/his obligation to complete
the MCO carrier internal review process, and at the
appellant's option, may proceed directly to the Stage 3
appeal process.
5. Appellant Rights.
a) an MCO carrier shall not disenroll,
terminate or in any way penalize an enrollee who exercises
the right to appeal solely on the basis of filing the appeal.
b) MCO Carrier Assistance
(1) i. upon the initiation of an appeal,
an MCO carrier shall notify an appellant of the right to have
a staff member appointed to assist her/him with
understanding the appeal process. Such assistance shall be
available during the appeal process.
(2) ii. an appellant may request such
assistance at any stage of the appeal process.
(3) iii. upon such request, an MCO
carrier shall appoint a member of its staff who has had no
prior direct involvement in the case to assist the appellant.
c) after an adverse determination, an
appellant shall have the right to discuss a coverage
determination with the medical director, or physician
designee, of the MCO carrier who made the coverage
determination.
6. MCO Carrier Records
An MCO carrier shall maintain written or
electronic records to document all appeals received. For
each appeal an MCO carrier shall maintain, at a minimum,
the following information:
a) a general description of the reason for
the appeal;
b) date received;
c) date of each review;
d) resolution at each stage of appeal;
e) date of resolution at each stage; and,
f) name and plan identification number
of the appellant for whom the appeal was filed.
7. Reporting
An MCO carrier shall submit the
following information to the Department within thirty (30)
days after the close of each calendar quarter:
a) the total number appeals (69.102) filed.
b) the number of Stage 1 appeals. This
shall include only those appeals based upon medical
necessity (69.132) and/or disputable need (69.116).
c) the number of Stage 1 appeals upheld.
d) the number of Stage 1 appeals
overturned.
e) the number of Stage 2 appeals. This
shall include only those appeals based upon medical
necessity (69.132) and/or disputable need (69.116).
f) the number of Stage 2 appeals upheld.
g) the number of Stage 2 appeals
overturned.
h) the number of petitions made to the
Independent Health Care Appeals Program.
C. Stage 1 Appeal Procedure
1. Procedure
An MCO carrier shall establish and
maintain an internal appeal procedure in which an appellant,
who is dissatisfied with a coverage determination by the
MCO carrier, that is based on medical necessity or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1452 FINAL REGULATIONS
disputable need, shall have the opportunity to appeal the
determination. This appeal is made to the MCO carrier who
will then assign the medical director and/or a physician
designee, who has had no prior direct involvement with the
appellant's case, to conduct the review.
2. Timeframes
A Stage 1 appeal shall be concluded as
soon as possible in accordance with the medical exigencies
of the case but no more than five (5) business days after
receipt of the appeal. In no event shall appeals that involve
an imminent, emergent, or serious threat to the health of the
appellant exceed seventy-two (72) hours.
3. Notice of Determination
An MCO carrier shall provide notice of
the Stage 1 appeal determination to the appellant within five
business days of receipt of the appeal. If such notice is
provided verbally to the appellant, the MCO carrier shall
provide written notice of the determination to the appellant
within five (5) business days of the verbal notice. In the
event that the adverse determination is upheld, the written
notice shall include the reason for the determination, an
explanation of the appellant's right to proceed to a Stage 2
appeal and a review of the entire appeals process. This
information shall include specific contact information
(address and phone number) that is appropriate for each
appeal stage.
D. Stage 2 Appeal Procedure
1. An MCO carrier shall establish and
maintain an internal appeal procedure in which an appellant
who is dissatisfied with a Stage 1 appeal determination by an
MCO carrier shall have the opportunity to appeal the
determination to the MCO carrier. A panel, selected by the
MCO carrier, shall consist of at least two (2) physicians and/
or other health care professionals having no direct
involvement with the appellant's case prior to this review,
one of who should be in the same or similar specialty that
typically manages the care under review. If the same or
similar physician/health care professional is not a member of
the panel, such physician/health care professional must
consult on the health care service at issue and report such
consultation in writing to the panel for consideration.
2. Written Notice of Meeting
An MCO carrier shall acknowledge
receipt of all Stage 2 appeals in writing to the appellant.
This acknowledgement shall include the place, date and time
of the Stage 2 appeal meeting and shall give the appellant at
least fifteen (15) calendar days notice of the appeal meeting.
The appellant may request a change in the meeting schedule
to facilitate attendance.
3. Appeal Meeting
The MCO carrier shall hold the Stage 2
appeal meeting during regular business hours at a location
reasonably accessible to the appellant. If a face-to-face
meeting is not practical for geographic reasons, the MCO
carrier shall offer the appellant the opportunity to
communicate with the review panel, at the MCO's carrier's
expense, by conference call, video-conferencing, or other
appropriate technology. The MCO carrier shall not
unreasonably deny a request for postponement of the
meeting made by an appellant. The appellant's right to a fair
review shall not be conditional on the appellant's appearance
at the Stage 2 appeal meeting.
4. Appellant Rights
An appellant has the right to:
a) attend the Stage 2 appeal;
b) present his or her case to the
review panel;
c) submit supporting material both
before and at the appeal meeting;
d) ask questions of any
representative of the MCO carrier participating on the panel;
e) be accompanied and supported by
a person of her/his choice in addition to her/his
representative; and,
f) review all relevant information
that is not confidential, proprietary or privileged.
5. Timeframes
A Stage 2 appeal shall be concluded as
soon as possible in accordance with the medical exigencies
of the case but no more than thirty (30) calendar days after
receipt of the request for the Stage 2 appeal. In no event
shall a Stage 2 appeal involving an imminent, emergent or
serious threat to the health of the appellant exceed seventytwo
(72) hours.
6. Extensions
The MCO carrier may extend the Stage 2
appeal for up to an additional thirty (30) calendar days for
reasonable cause by submitting a written explanation for the
delay to the Department within the original thirty (30)
calendar day review period. An MCO carrier honoring an
appellant's request for extension for necessity or
convenience shall be deemed a reasonable cause. In no
event may an MCO carrier extend the review period for an
expedited appeal.
7. Written Notice of Determination
An MCO carrier shall provide written
notice of the Stage 2 appeal determination to the appellant
within five (5) business days of such determination. In the
event of an adverse determination, such notice shall include:
a) the qualifications of the members of
the Stage 2 appeal panel;
b) a statement of the panel's
understanding of the nature of the appeal and all pertinent
facts;
c) the rationale for the review panel's
determination;
d) reference to evidence or
documentation considered by the panel in making that
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FINAL REGULATIONS 1453
determination;
e) instructions for requesting a written
statement of the clinical rationale, including the clinical
review criteria used to make the determination; and,
f) the appellant's right to proceed to a
Stage 3 appeal.
E. Independent Health Care Appeals Program
(External Appeal Process/Stage 3)
1. Upon receipt of an adverse determination
at Stage 2, any appellant who is dissatisfied with the results,
shall have the opportunity to pursue her/his appeal before an
independent utilization review organization.
2. The appellant must file the request for
appeal with the MCO carrier within sixty (60) calendar days
of receipt of the adverse determination from the internal
review process.
3. Upon receipt of a request for external
review, the MCO carrier shall fax the Petition for External
Review form as soon as possible but within no more than
three (3) business days to the Department and shall send a
hard copy of the request to the Department by mail.
4. The Department shall assign an approved
IURO (69.126) to conduct the external review and shall
notify the MCO carrier.
5. The assigned IURO shall, within five (5)
calendar days of assignment, notify the appellant in writing
by certified or registered mail, that the appeal has been
accepted for external review. The notice shall include a
provision stating that the appellant may submit additional
written information and supporting documentation that the
IURO shall consider when conducting the external review.
Appellant shall submit such written documentation to the
IURO within seven (7) calendar days following the date of
receipt of the notice.
a) upon receipt of any information
submitted by the appellant, the assigned IURO shall as soon
as possible but within no greater than two (2) business days,
forward the information to the MCO carrier.
b) the IURO must accept additional
documentation submitted by the MCO carrier in response to
additional written information and supporting
documentation from the appellant.
6. Within seven (7) business days after the
receipt of the notification required in 69.404.E.4, the MCO
carrier shall provide to the assigned IURO, the documents
and any information considered in making the internal
appeal determination.
a) if the MCO carrier fails to submit
documentation and information or fails to participate within
the time specified, the assigned IURO may terminate the
external review and make a decision, with the approval of
the Department, to reverse the internal appeal determination.
7. The external review may be terminated if
the MCO carrier decides to reverse its adverse determination
and provide coverage or payment for the health care service
that is the subject of the appeal.
a) immediately upon making the
decision to reverse its adverse determination, the MCO
carrier shall notify the appellant, the assigned IURO, and the
Department in writing of its decision.
b) the assigned IURO shall terminate the
external review upon receipt of the written notice from the
MCO carrier.
8. Within forty-five (45) calendar days after
the receipt of the request for external review, the assigned
IURO shall provide written notice of its decision to uphold
or reverse the adverse determination to:
a) the appellant;
b) the MCO carrier; and,
c) the Department.
9. The IURO shall include the following
information in the notice sent pursuant to 69.404.E.8:
a) the qualifications of the members of
the review panel;
b) a general description of the reason for
the request for external review;
c) the date the IURO received the
assignment from the Department to conduct the external
review;
d) the date(s) the external review was
conducted;
e) the date of its decision;
f) the principal reason(s) for its decision;
and,
g) references to the evidence or
documentation, including practice guidelines and clinical
review criteria, considered in reaching its decision.
10. The decision of the IURO is binding upon
the MCO carrier.
F. Expedited External Utilization Appeal Process
1. An appellant may request an expedited
external review with the MCO carrier at the time the enrollee
receives a final adverse determination if the enrollee suffers
from a condition that poses an imminent, emergent or
serious threat or has an emergency medical condition.
2. At the time the MCO carrier receives a
request for an expedited external review, the MCO carrier
shall immediately fax the Petition for External Review form
to the Department and shall send a hard copy to the
Department by mail.
3. If the Department determines that the
review meets the criteria for expedited review, the
Department shall assign an approved IURO to conduct the
external review and shall notify the MCO carrier.
4. At the time the MCO carrier receives the
notification of the assigned IURO, the MCO carrier shall
provide or transmit all necessary documents and information
considered in making the final adverse determination to the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1454 FINAL REGULATIONS
assigned IURO electronically, by telephone, by facsimile or
any other available expeditious method.
5. As expeditiously as the enrollee's medical
condition permits or circumstances require, but in no event
more than seventy-two (72) hours after the date of the receipt
of the request for an expedited external review, the IURO
shall:
a) make a decision to uphold or reverse
the final adverse determination; and
b) immediately notify the appellant, the
MCO carrier, and the Department of the decision.
6. Within two (2) calendar days of the
immediate notification, the assigned IURO shall provide
written confirmation of the decision to the appellant, the
MCO carrier, and the Department
7. The decision of the IURO is binding upon
the MCO carrier.
G. Petition to DHSS
1. If an MCO carrier receives an appellant's
request for access to the IHCAP whose subject is a benefit
that is a written exclusion from the enrollee's benefit
package, the MCO carrier may make a written request to
have the appeal reviewed for appropriate inclusion in the
IHCAP by the Department. The request must be made in
writing at the time the Petition for External Review Form is
faxed to the Department and include any necessary
supporting documentation.
2. The Department shall review the petition
and may, in its discretion:
a) dismiss the appeal and notify the
appellant in writing that the appeal is inappropriate for the
IHCAP; or,
b) appoint an IURO to conduct a
preliminary review; or,
c) appoint an IURO to conduct a full
external review.
H. Preliminary External Review
1. If an MCO carrier receives an
appellant's request for access to the IHCAP for an appeal
that it believes is not appropriate for inclusion in the IHCAP,
the MCO carrier may file a motion to dimiss. The motion
must be made in writing at the time the Petition for External
Review Form is faxed to the Department and include any
necessary supporting documentation.
2. Upon the written request of an MCO
carrier, the Department shall review the petition and:
a) appoint an IURO to review the
details of the motion to determine if the appeal is appropriate
for inclusion in the IHCAP.
(1) i. appeals that are
inappropriate for inclusion are dismissed.
(2) ii. appeals that are appropriate
for inclusion are subject to a full external review.
b) appoint an IURO to conduct a
full external review.
I. All costs for external IURO review shall
be borne by the MCO carrier. The MCO carrier shall
reimburse the Department for the cost of the review within
ninety (90) calendar days of the receipt of the decision by the
IURO.
J. The Department shall approve IUROs
eligible to be assigned to conduct external reviews.
1. Any IURO wishing to be approved to
conduct external reviews shall submit an application form
(as developed by the Department) and include with the form,
all documentation and information necessary for the
Department to determine if the IURO satisfies minimum
qualifications
2. The Department shall maintain a
current list of approved IUROs.
69.405 Quality Assessment and Improvement
A. Continuous Quality Improvement
1. Under the direction of the Medical
Director or her/his designated physician, the MCO shall
have a system-wide continuous quality improvement
program to monitor the quality and appropriateness of care
and services provided to enrollees. This program shall be
based on a written plan which is reviewed at least semiannually
and revised as necessary. The plan shall describe at
least:
a) the scope and purpose of the program;
b) the organizational structure of quality
improvement activities;
c) duties and responsibilities of the
medical director and/or designated physician responsible for
continuous quality improvement activities;
d) contractual arrangements, where
appropriate, for delegation of quality improvement
activities;
e) confidentiality policies and
procedures;
f) specification of standards of care,
criteria and procedures for the assessment of the quality of
services provided and the adequacy and appropriateness of
health care resources utilized;
g) a system of ongoing evaluation
activities, including individual case reviews as well as
pattern analysis;
h) a system of focused evaluation
activities, particularly for frequently performed and/or
highly specialized procedures;
i) a system of monitoring enrollee
satisfaction and network provider's response and feedback
on MCO operations;
j) a system for verification of provider's
credentials, recertification, performance reviews and
obtaining information about any disciplinary action against
the provider available from the Delaware Board of Medical
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1455
Practice or any other state licensing board applicable to the
provider;
k) the procedures for conducting peer
review activities which shall include providers within the
same discipline and area of clinical practice; and,
l) a system for evaluation of the
effectiveness of the continuous quality improvement
program.
2. There shall be a multidisciplinary
continuous quality improvement committee responsible for
the implementation and operations of the program. The
structure of the committee shall include representation from
the medical, nursing and administrative staff, with
substantial involvement of the medical director of the MCO.
3. The MCO shall assure that participating
providers have the opportunity to participate in developing,
implementing and evaluating the quality improvement
system.
4. The MCO shall provide enrollees the
opportunity to comment on the quality improvement
process.
5. The program shall monitor the availability,
accessibility, continuity and quality of care on an ongoing
basis. Indicators of quality care for evaluating the health
care services provided by all participating providers shall be
identified and established and shall include at least:
a) a mechanism for monitoring enrollee
appointment and triage procedures including wait times to
get an appointment and wait times in the office;
b) a mechanism for monitoring enrollee
continuity of care and discharge planning for both inpatient
and outpatient services;
c) a mechanism for monitoring the
appropriateness of specific diagnostic and therapeutic
procedures as selected by the continuous quality
improvement program;
d) a mechanism for evaluating all
providers of care that is supplemental to each provider's
quality improvement system;
e) a mechanism for monitoring network
adequacy and accessibility to assure the network services the
needs of their diverse enrolled population; and,
f) a system to monitor provider and
enrollee access to utilization management services including
at least waiting times to respond to telephone requests for
service authorization, enrollee urgent care inquiries, and
other services required.
6. The MCO shall develop a performance
and outcome measurement system for monitoring and
evaluating the quality of care provided to MCO enrollees.
The performance and outcome measures shall include
population-based and patient-centered indicators of quality
of care, appropriateness, access, utilization, and satisfaction.
Data for these performance measures shall include but not be
limited to the following:
a) indicator data collected by MCOs
from chart reviews and administrative databases;
b) enrollee satisfaction surveys;
c) provider surveys;
d) annual reports submitted by MCOs to
the Department; and,
e) computerized health care encounter
data.
7. The MCO shall follow-up on findings
from the program to assure that effective corrective actions
have been taken, including at least policy revisions,
procedural changes and implementation of educational
activities for enrollees and providers.
8. Continuous quality improvement activities
shall be coordinated with other performance monitoring
activities including utilization management and monitoring
of enrollee and provider complaints.
9. The MCO shall maintain documentation
of the quality improvement program in a confidential
manner. This documentation shall be available to the
Department and shall include:
a) minutes of quality improvement
committee meetings; and,
b) records of evaluation activities,
performance measures, quality indicators and corrective
plans and their results or outcomes.
B. External Quality Audit
1. Each MCO shall submit, as a part of its
annual report due June 1, evidence of its most recent external
quality audit that has been conducted or of acceptable
accreditation status. External quality audits must be
completed no less frequently than once every three (3) years.
Such audit shall be performed by a nationally known
accreditation organization or an independent quality review
organization acceptable to the Department.
a) MCOs must submit the following
information to the Department in order to receive approval
for the nationally known accreditation organization or
independent quality review organization that will conduct
the triennial reviews or perform accreditation for the MCO:
(1) i. evidence that the nationally
known accreditation organization or independent quality
review organization has experience performing external
quality audits or accreditation of MCOs; and,
(2) ii. the current standards for
independent quality reviews or accreditations of MCOs as
established and maintained by the accrediting entity.
2. The report must describe in detail the
MCO's conformance to performance standards and the rules
within these regulations. The report shall also describe in
detail any corrective actions proposed and/or undertaken by
the MCO.
3. In lieu of the external quality audit, the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1456 FINAL REGULATIONS
Department may accept evidence that each MCO has
received and has maintained the appropriate accreditation
from a nationally known accreditation organization or
independent quality review organization.
C. Reporting and Disclosure Requirements
1. The Board of Directors of the MCO shall
be kept apprised of continuous quality improvement
activities and be provided at least annually with regular
written reports from the program delineating quality
improvements, performance measures used and their results,
and demonstrated improvements in clinical and service
quality.
2. An MCO shall document and
communicate information about its quality assessment
program and its quality improvement program, and shall:
a) include a summary of its quality
assessment and quality improvement programs in marketing
materials;
b) include a description of its quality
assessment and quality improvement programs and a
statement of enrollee rights and responsibilities with respect
to those programs in the materials or handbook provided to
enrollees; and,
c) make available annually to providers
and enrollees findings from its quality assessment and
quality improvement programs and information about its
progress in meeting internal goals and external standards,
where available. The reports shall include a description of
the methods used to assess each specific area and an
explanation of how any assumptions affect the findings.
3. MCOs shall submit such performance and
outcome data as the Department may request.
PART FIVE
SECTION 69.5 ENROLLEE RIGHTS AND
RESPONSIBILITIES
69.501 The MCO shall establish and implement written
policies and procedures regarding the rights of enrollees and
the implementation of these rights.
69.502 In the case of nonpayment by the MCO to a
provider for a covered service in accordance with the
enrollee's health care contract, the provider may not bill the
enrollee. This does not prohibit the provider from collecting
coinsurance, deductibles or co-payments as determined by
the MCO. This does not prohibit the provider and enrollee
from agreeing to continue services solely at the expense of
the enrollee, as long as the provider clearly informs the
enrollee that the MCO will not cover these services.
69.503 The MCO shall permit enrollees to choose their
own primary care physician from the MCO network. This
choice may be more flexible, depending on the type of health
plan purchased by the enrollee. When MCOs maintain a list
of health care professionals within the plan, this list shall be
updated as health care professionals are added or removed
and shall include:
A. A sufficient number of primary care physicians
who are accepting new enrollees; and,
B. A sufficient number of primary care physicians
that reflects a diversity that is adequate to meet the diverse
needs of the enrolled populations' varied characteristics
including age, gender, language, race and health status.
69.504 The MCO shall establish and implement a
procedure, for those plans which do not allow direct access
to a health care specialist, by which enrollees can obtain a
standing referral (69.141) to a health care specialist. This
procedure:
A. Shall provide for a standing referral to a
specialist if the enrollee's network provider determines that
the enrollee needs continuing care from a specialist;
B. May require the MCO's approval of an initial
treatment plan designed by the specialist which may limit the
number of visits to the specialist, limit the duration of the
standing referral, or require updates on the enrollee's
condition[. Such approval shall not be withheld absent a
decision by a qualified physician that the treatment
sought in the treatment plan is not reasonably related to
the appropriate treatment of the insured's condition];
C. May require that referrals, procedures, tests,
and other medical services be provided by network providers
unless such services are not available through network
providers or are not available within a reasonable period of
time. The MCO shall make acceptable service arrangements
with non-network providers and the enrollee, and shall
prohibit balance billing.
69.505 The MCO shall provide coverage of routine
patient care costs (those normally covered under an
enrollee's health plan) for enrollees engaging in clinical
trials for treatment of life-threatening diseases.
A. Clinical trials must meet the following
requirements:
1. The subject or purpose of the trial must be
the evaluation of an item or service that falls within the
covered benefits of the enrollee health plan and is not
specifically excluded from coverage;
2. The trial must not be designed
[specifically][exclusively] to test toxicity or disease
pathophysiology;
3. The trial must have therapeutic intent;
4. Trials of therapeutic interventions must
enroll patients with diagnosed disease;
5. The principal purpose of the trial is to test
whether the intervention potentially improves the
participant's health outcomes;
6. The trial is well-supported by available
scientific and medical information or it is intended to clarify
or establish the health outcomes of interventions already in
common clinical use;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1457
7. The trial does not unjustifiably duplicate
existing studies; and,
8. The trial is in compliance with Federal
regulations relating to the protection of human subjects.
B. Routine patient care costs include all items and
services that are otherwise generally available to a qualified
individual that are provided in the clinical trial with the
exception of:
1. The investigational items or service itself;
2. Items and services provided solely to
satisfy data collection and analysis needs and that are not
used in the direct clinical management of the enrollees; and,
3. Items and services customarily provided
by the research sponsors free of charge for any enrollee in
the trial.
69.504 506 The MCO shall provide each enrollee with
an enrollee's benefit handbook which includes a complete
statement of the enrollee's rights, a description of all
complaint and appeal procedures, a clear and complete
summary of the evidence of coverage, and notification of
their personal financial obligations for non- covered
services. The statement of the enrollee's rights shall include
at least the right:
A. To available and accessible services when
medically necessary, including availability of care twentyfour
(24) hours a day, seven (7) days a week for urgent or
emergency conditions;
B. To be treated with courtesy and consideration,
and with respect for the enrollee's dignity and need for
privacy;
C. To be provided with information concerning
the MCO's policies and procedures regarding products,
services, providers, appeal procedures and other information
about the organization and the care provided;
D. To choose a primary care provider within the
limits of the covered benefits and plan network, including
the right to refuse care of specific practitioners;
E. To receive from the enrollee's physician(s) or
provider, in terms that the enrollee understands, an
explanation of her/his complete medical condition,
recommended treatment, risk(s) of the treatment, expected
results and reasonable medical alternatives. If the enrollee is
not capable of understanding the information, the
explanation shall be provided to her/his next of kin or
guardian and documented in the enrollee's medical record;
F. To formulate advance directives;
G. To all the rights afforded by law or regulation
as a patient in a licensed health care facility, including the
right to refuse medication and treatment after possible
consequences of this decision have been explained in
language the enrollee understands;
H. To prompt notification, as required in these
rules, of termination or changes in benefits, services or
provider network;
I. To file a complaint or appeal with the MCO
and to receive an answer to those complaints within a
reasonable period of time; and,
J. To file a complaint with the Department or the
Commissioner.
69.505 507 The MCO shall establish and implement
written policies and procedures regarding the responsibilities
of enrollees. A complete statement of these responsibilities
shall be included in the enrollee's benefit handbook.
69.506 508 The MCO shall disclose to each new
enrollee, and any enrollee upon request, in a format and
language understandable to a layperson, the following
minimum information:
A. Benefits covered and limitations;
B. Out of pocket costs to the enrollee;
C. Lists of participating providers;
D. Policies on the use of primary care physicians,
referrals, use of out of network providers, and out of area
services;
E. Written explanation of the appeals process;
F. A description of and findings from the quality
assurance and improvement programs;
G. The patterns of utilization of services; and,
H. For staff model MCOs, the location and hours
of its inpatient and outpatient health services.
69.507 509 The MCO shall provide culturally
competent services to the greatest extent possible.
PART SIX
SECTION 69.6 REQUIREMENTS FOR STAFF
MODEL MCOs
In addition to all other requirements of these
regulations, staff model MCOs shall meet the requirements
of this section.
69.601 Environmental Health and Safety
A. Office premises and other structures operated
by the MCO must have appropriate safeguards for patients.
B. All buildings shall conform to all State and
medical codes and all regulations applicable to services
being offered. These codes shall include but are not limited
to:
1. State Plumbing Code.
2. Waste Disposal Regulations.
3. Public Water Supply Regulations.
4. Food Service Requirements.
5. Radiation Control Regulations.
6. Hazardous Waste Regulations.
7. Air and Water Pollution Regulations.
8. Hand washing facilities shall be installed in
accordance with applicable State and local regulations and
conveniently located.
9. Toilet facilities shall meet appropriate
State and local regulations.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1458 FINAL REGULATIONS
10. State Fire Code requirements.
C. The buildings must be architecturally
accessible to handicapped individuals and comply with the
Americans with Disabilities Act.
D. Measures must be taken to insure that facilities
are guarded against insects and rodents.
E. Housekeeping
1. A housekeeping procedures manual shall
be written and followed. Special emphasis shall be given to
procedures applying to infectious diseases or suspect areas.
2. All premises shall be kept neat, clean, and
free of litter and rubbish.
3. Walls and ceilings shall be maintained free
of cracks and falling plaster and shall be cleaned and painted
regularly.
4. Floors shall be cleaned regularly and in
such a manner that it will minimize the spread of pathogenic
organisms in the atmosphere; dry dusting and sweeping shall
be prohibited.
5. Suitable equipment and supplies shall be
provided for cleaning all surfaces.
6. Solutions, cleaning compounds and
hazardous substances shall be properly labeled and stored in
safe places.
69.602 Emergency Utilities or Facilities
A. The MCO shall be equipped to handle
emergencies due to equipment failures. Emergency
electrical service for lighting and power for equipment
essential to life safety shall be provided in accordance with
hospital regulations where appropriate. (Minimum
Requirements for Construction of Hospital and Health Care
Facilities, Section 7.32H.)
B. In facilities which provide hospital services,
the emergency electrical system shall be so controlled that
the auxiliary power is brought to full voltage and frequency
and can be connected within ten (10) seconds.
C. Emergency utilities for MCOs and contract
providers must be supplied according to procedures
performed on the premises.
69.603 Construction
A. New construction or substantial modifications
on an existing facility shall conform to applicable State,
county and local codes, including the National Fire
Protection Association Publication No. 101 - Life Safety
Code, latest edition adopted by the State Fire Prevention
Board.
B. Radiation requirements of the Authority on
Radiation Protection shall be met.
C. Facility plans or modifications shall be
submitted to the Department for review and approval prior to
any work being begun.
69.604 Personnel
A. The office shall be staffed by appropriately
trained personnel. Appropriate manuals shall be developed
to serve as guidelines and set standards for patient care
provided by nonprofessional personnel.
B. Offices with five (5) or more physicians shall
have at least one (1) full time registered nurse (RN).
C. Nonprofessional personnel shall have
appropriate in-service education on clinical operations and
procedures. The in-service training program must be
conducted at least annually.
D. Primary physician. There shall be at least one
(1) full time or full time equivalent (F.T.E.) physician
available on contract. There shall be at least one (1) F.T.E.
primary physician for every 1,000 enrollees.
E. Medical Specialties. There shall be either full
time or part-time physicians, other appropriate professional
specialists, or written agreements adequate to ensure access
to all needed services for enrollees.
69.605 Equipment
Each office operated by the MCO must have the
necessary equipment and instruments to provide the required
services. Equipment and instruments for services, when
covered by written contract with medical specialists or other
providers outside of the office, need not be present in the
MCO's office. Where emergency services are provided in
the office, equipment such as a defibrillator, laryngoscope
and other similar equipment must be present.
69.606 Specialized Services
A. The MCO shall provide special services
necessary for diagnosis and treatment such as ultra sound.
Where it is not feasible to provide these services in the
office, there shall be a written agreement for these services
in a nearby location except for isolated rural areas where
arrangements for these services shall be subject to review
and approval by the Department.
1. The MCO's radiology services shall be
supervised and conducted by a qualified radiologist, either
full time or part-time; or, when radiology services are
supervised and conducted by a physician who is not a
qualified radiologist, the MCO shall provide for regular
consultation by a qualified radiologist, who is under contract
with the MCO and is responsible for reviewing all X-rays
and procedures. The number of qualified radiological
technologists employed shall be sufficient to meet the
MCO's requirements. If the MCO operates a radiology
service and provides emergency services, at least one (1)
qualified technologist shall be on duty or on call at all times.
2. Pharmaceutical services, when provided
by the MCO, must be under the direct supervision of a
registered pharmacist who is responsible to the
administrative staff for developing, coordinating and
supervising all pharmaceutical services; or, in the case of
dispensing of pharmaceuticals by a physician, such
dispensing shall not violate the requirements of State law.
MCOs with a licensed pharmacy shall have a Pharmacy and
Therapeutics Committee. Pharmaceutical services may be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1459
provided on the premises of the MCO or by contract with an
independent licensed provider. The contract shall be
available for inspection by the Department at all times.
3. When the MCO provides its own
emergency services, facilities must be provided to ensure
prompt diagnosis and emergency treatment including
adequate Emergency Room space, separate from major
surgical suites. In Emergency Room facilities provided for
or arranged for by the MCO there shall be as a minimum:
adequate oxygen, suction, CPR, diagnostic equipment, as
well as standard emergency drugs, parenteral fluids, blood or
plasma substitutes and surgical supplies. Radiology
facilities, clinical laboratory facilities and current toxicology
including antidotes shall be available at all times.
4. Personnel shall be trained and approved by
an appropriate professional organization in the operation and
procedures of emergency equipment.
69.607 Central Sterilizing and Supply
Autoclaves or other acceptable sterilization
equipment shall be provided of a type capable of meeting the
needs of the MCO and of a recognized type with approved
controls and safety features. Bacteriological culture tests
shall be conducted at least monthly. The maintenance
program of the sterilization system shall be under the
supervision of competent trained personnel.
PART SEVEN
SECTION 69.7 ADMINISTRATIVE
REQUIREMENTS
69.701 Administration
The MCO shall designate an appropriate person or
persons to handle the administrative functions of the MCO.
These functions shall include the following responsibilities:
interpretation, implementation and application of policies
and programs established by the MCO's governing
authority; establishment of safe, effective and efficient
administrative management; control and operation of the
services provided; authority to monitor or supervise the
operation and in accordance with acceptable medical
standards; and such other duties, responsibilities and tasks as
the governing body or other designated authority may
empower such individual(s).
69.702 Qualifications
Persons appointed to administrative positions in the
MCO shall have the necessary current training and
experience in the field of health care as appropriate to carry
out the functions of their job descriptions.
69.703 Medical Privileges
Participating physicians shall have hospital
privileges commensurate with their contractual obligations.
Physicians must be licensed in Delaware.
69.704 Medical Records
The MCO must maintain or provide for the
maintenance of a medical records system which meets the
accepted standards of the health care industry and the
regulations of the Department.
A. These records shall include the following
information: name, identification number, age, sex,
residence, employment, patient history, physical
examination, laboratory data, diagnosis, treatment
prescribed and drugs administered.
B. The medical record should also contain an
abstract summary of any inpatient hospital care or referred
treatment.
C. Regulatory agencies shall have access to
medical records for purposes of monitoring and review of
MCO practices.
D. Enrollees' records shall be filed for five (5)
years following active status before being destroyed.
69.705 Reporting Requirements and Statistics
The MCO shall submit reports as required by these
regulations.
A. The MCO shall disclose to its enrollees the
following information:
1. the patterns of utilization of its services
based on the information in 69.405.A.6; and,
2. the location and hours of its inpatient and
outpatient health services.
B. The following information is required to be
submitted to the Department on an annual basis:
1. Physician visits per enrollee per year.
2. Hospital admissions per year and per 1,000
enrollees per year.
3. Hospital days per year and per 1,000
enrollees per year.
4. Average length of stay per hospital
confinement.
5. Outside consultations per year and per 1,000
enrollees per year.
6. Emergency Room visits per year and per
1,000 enrollees per year.
7. Laboratory procedures per year and per
1,000 enrollees per year.
8. X-ray procedures per year and per 1,000
enrollees per year.
9. Total number of enrollees at the end of the
year.
10. Total number of enrollees enrolled during
the year.
11. Total number of enrollees terminated
during the year.
12. Cost of operation.
13. Current provider directory including
PCPs, specialists, facilities and ancillary health care
services.
14. A statistical summary evaluating the
network adequacy and accessibility to the enrolled
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1460 FINAL REGULATIONS
population.
15. Annual appeal report of medical necessity
and disputable need to include:
a) Number of appeals at each level of
appeal;
b) A compilation of causes underlying
the appeals;
c) Resolution of the appeals; and,
d) Number of appeals terminated during
the external review as described by 69.404E7.
16. Annual appeal report of all other appeals
(not medical necessity or disputable need) to include:
a) Number of appeals at each level of
appeal;
b) A compilation of causes underlying
the appeals; and,
c) Resolution of the appeals.
C. The following administrative reports are
required by the Department whenever there is a change:
1. Full name of the Chief Executive Officer.
2. Full name of the Medical Director.
3. Address(es) of the office(s) in operation.
4. Name(s) of the hospital(s) used by the MCO
DIVISION OF PUBLIC HEALTH
HEALTH SYSTEMS PROTECTION SECTION
Statutory Authority 16 Delaware Code,
Section 4711(1) (16 Del.C. 4711(1))
Nature of the Proceedings:
The Department of Health and Social Services
("DHSS") initiated proceedings to adopt amendments to the
State of Delaware Uniform Controlled Substances Act
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
47, Section 4731.
On October 1, 2001 (Volume 5, Issue 4), DHSS
published in the Delaware Register of Regulations its notice
of proposed amendments to the 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 November 1,
2001, or be presented at a public hearing on October 31,
2001, after which time DHSS would review information,
factual evidence and public comment to the said proposed
regulations.
No verbal comments were received during the public
hearing. One written comment was received during the
official public comment period and is discussed in the
attached 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.
THEREFORE, IT IS ORDERED, that the State of
Delaware proposed Uniform Controlled Substances Act
Regulations are adopted and shall become effective January
11, 2002, after publication of the final regulation in the
Delaware Register of Regulations.
Vincent P. Meconi, Secretary
12.14.2001
Summary of Evidence
State of Delaware Uniform Controlled Substances Act
Regulations
A public hearing was held on October 31, 2001, at 10:00
AM, in the 3rd Floor Conference Room of the Jesse Cooper
Building, located on Federal and Water Streets, Dover,
Delaware, before David P. Walton, Hearing Officer, to
discuss proposed amendments to the Department of Health
and Social Services (DHSS), Uniform Controlled
Substances Act Regulations. The announcement regarding
the public hearing was advertised in the Delaware State
News, the News Journal and the Delaware Register of
Regulations in accordance with Delaware Law. Mr. David
W. Dryden, Drug Control Administrator of the Office of
Narcotics and Dangerous Drugs (ONDD), Health Systems
Protection Section, Division of Public Health, made the
agency's presentation. There were no attendees at the public
hearing. A written comment was received during the official
public comment period (October 1, 2001 through November
1, 2001). The written comment and the DHSS (Agency)
response is as follows:
• An individual submitted a letter telling of a negative
personal experience with a prescribed medication and
wanted his personal experience (letter) to be part of the
official record.
Agency Response: Although this comment is not
directly related to the amendment proposed, due to the desire
of the individual this letter is attached to the Hearing
Officer's record. No changes were made to the proposed
regulations as a result of this comment.
The public comment period was open from October 1,
2001 to November 1, 2001.
Verifying documents are attached to the Hearing
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1461
Officer's record. This regulation has been approved by the
Delaware Attorney General's office.
Uniform Controlled Substances Act
Regulations
(Adopted by the Secretary of Health and Social Services
pursuant to 16 Del. C. § 4731 effective February, 1973
amended July 8, 1974, May 27, October 30, 1975,
September 27, 1976, February 1, 1983, July 1, 1985, January
28, 1987, March 5, 1992, and August 29, 1995.)
1. Adoption of Federal Regulations
To the extent consistent with 16 Del. C. Ch. 47,
regulations promulgated by the Federal Government
pursuant to the Federal Comprehensive Drug Abuse
Prevention and Control Act of 1970, and in effect as of this
date, are adopted as a part of these regulations.
Readopted October 30, 1975.
2. Requirements
a. Requirements
Registration shall be on a biennial basis upon forms
supplied by the Secretary for that purpose. The registration
fee for prescribers, dispensers, researchers and laboratories
will be $40. The registration fee for manufacturers or
distributors will be $100. A separate registration is required
at each principal place of business or professional practice
where controlled substances are manufactured, distributed,
dispensed, or kept for research substances are manufactured,
distributed, dispensed, or kept for research or analysis.
b. Revocation and Suspension
1) Revocation of registration by the Federal
Government will result in automatic revocation of the State
registration.
2) Proceedings for denying, suspending or
revoking a Legislation shall be informal in nature. Persons
complained against may appear personally or by counsel,
and may produce any competent evidence in their behalf in
answer to the alleged violation. Such proceedings shall be
tape recorded.
3) Whenever a registration is denied, suspended,
or revoked, the Secretary or his designee will reduce in
writing his findings and rulings, and the reasons therefore,
and forward them to the persons complained against within
15 days. This provision shall in no way stay any such denial,
suspension, or revocation.
3. Records and Inventory
a. Requirements
1) Practitioners authorized to prescribe or
dispense controlled substance shall maintain a record with
the following information:
(a) Name and address of patient
(b) Date prescribed
(c) Name, strength and amount of medication.
2) Other records required by 21 CFR 1300 to end
of 1316. The information for prescribed controlled
substances may be kept either in a log or on patient records
provided such records or logs are made available for
inspection. The information for dispensed controlled
substances must be maintained in a separate log at least 8 by
11 inches in dimension. Entries must include the date
dispensed, name and address of the patient, name and
strength of medication, and amount dispensed.
3) Other persons registered to manufacture,
distribute, or dispense controlled substances shall maintain a
record with the following information:
(a) Amount received or distributed.
(b) Names, addresses and dates regarding
these transactions.
(c) Other records required by 21 CFR 1300 to
the end of 1316.
b. Accountability Audits
1) Pharmacies - Accountability audits in
pharmacies will be accomplished through a review of
invoices, prescription files, other records required by 21
CFR 1300 to the end of 1316.
2) Medical, dental an veterinary - Accountability
audits of medical, dental and veterinary practitioners will be
accomplished through a review of records to be kept by
paragraph (a) of this section.
3) Manufacturers and distributors -
Accountability audits of manufacturers and distributors
(including wholesalers) will be accomplished through a
review of invoices received and distributed and other records
required by 21 CFR 1300 to the end of 1316.
c. Final inventory
1) Pharmacies
Whenever the pharmacist in charge of a
pharmacy in the State of Delaware leaves his position, a
complete inventory of all medication covered by 16 Del. C.,
Ch. 47 will be taken by the present and prospective
pharmacist-in-charge. A copy of such inventory will be sent
to the Office of Narcotics and Dangerous Drugs and another
copy retained on the premises. For the purpose of this
regulation, the "pharmacist-in-charge" is a pharmacist
registered with the State Board of pharmacy and who is
responsible for the prescription department of the registrant.
2) Medical, dental and veterinary
Medical, dental and veterinary practitioners
who cease legal existence or discontinue business or
professional practice shall notify the Office of Narcotics and
Dangerous Drugs promptly of such fact, and shall provide
the Office with an inventory off controlled substance on
hand.
d. Retention of Records
All records required by this Regulation must be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1462 FINAL REGULATIONS
retained for a period of at least two (2) years.
4. Prescriptions
a. Definitions
As used in this section:
1) The term "Act" means the Controlled
Substance Act, 16 Del. C., Ch. 47.
2) The term "individual practitioner" means
physician, dentist, veterinarian, or other individual, licensed,
registered, or otherwise permitted, by the United States or
the State of Delaware to dispense a controlled substance in
the course of professional practice but does not include a
pharmacist, a pharmacy, or an institutional practitioner.
3) The term "pharmacist" means any pharmacist
licensed by the State of Delaware to dispense controlled
substances and shall include any other person (e.g.
pharmacist intern) authorized by the State of Delaware to
dispense controlled substances under the supervision of a
pharmacist licensed by this State.
4) The term "prescription" means an order for
medication which is dispensed to or for an ultimate user but
does not include an order for medication which is dispensed
for immediate administration to the ultimate user. (e.g, an
order to dispense a drug to a bed patient for immediate
administration in a hospital is not a prescription.)
5) The terms "register" and "registered" refer to
registration required by 16 Del. C., §4732.
b. Persons Entitled to Issue Prescriptions
1) A Prescription for a controlled substance may
be issued only by an individual practitioner who is:
(a) Authorized to prescribe controlled
substances by the jurisdiction in which he is licensed to
practice his profession; and
(b) Either registered or exempt from
registration pursuant to 16 Del. C. § 4732.
2) A verbal prescription for a controlled substance
may only be communicated to a pharmacist by the
prescriber. Prescriptions for controlled substances
communicated by an employee or agent of the prescriber are
not valid.
3) Written prescriptions for controlled substances
may be transmitted via facsimile by a practitioner or by the
practitioner's authorized agent to a pharmacy only when the
transmission complies with 21 CFR 1306.11, 1306.21 and
1306.31.
c. Purposes of Issue of Prescription
1) A prescription for a controlled substance to be
effective, must be issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his
professional practice. The responsibility for proper
prescribing and dispensing of controlled substances is upon
the prescribing practitioner, but a corresponding
responsibility rests with the pharmacist who fills the
prescription. An order purporting to be a prescription not
issued in the usual course of professional treatment or in
legitimate and authorized research is not a prescription
within the meaning and intent of §4738 of the Act and the
person knowingly filling such a purported prescription, as
well as the person issuing it shall be subject to the penalties
provided for violation of the provisions of law relating to
controlled substances.
2) A prescription may not be issued in order for
an individual practitioner to obtain controlled substances for
supplying the individual practitioner for the purpose of
general dispensing to patients.
3) A prescription may not be issued for the
dispensing of narcotic drugs listed in any schedule to a
narcotic drug dependent person for the purpose of continuing
his dependence upon such drugs, unless otherwise
authorized by law.
d. Manner of Issuance of Prescriptions
1) All prescriptions for controlled substances
shall be dated and signed on the day when issued and shall
bear the full name and address of the patient, and the name,
address and registration number of the practitioner. A
practitioner may sign a prescription in the same manner as he
would sign a check or legal document (e.g. J.H. Smith or
John H. Smith). When an oral order is not permitted,
prescriptions shall be written with ink or indelible pencil or
typewriter and shall be manually signed by the practitioner.
The prescriptions may be prepared by a secretary or agent
for the signature of a practitioner but the prescribing
practitioner is responsible where the prescription does not
conform in all essential respects to the law and regulations.
A corresponding liability rests upon the pharmacist who fills
a prescription not prepared in the form prescribed by these
regulations. Each written prescription shall have the name
of the practitioner stamped, typed, or hand-printed on it, as
well as the signature of the practitioner.
e. Persons Entitled to fill Prescriptions
A prescription for controlled substances may only
be filled by a pharmacist acting in the usual course of his
professional practice and either registered individually or
employed in a registered pharmacy or by a registered
institutional practitioner.
f. Dispensing Narcotic Drugs for Maintenance
Purposes
No person shall administer or dispense narcotic
drugs listed in any schedule to a narcotic drug dependent
person for the purpose of continuing his dependence except
in compliance with and as authorized by Federal law and
regulation.
g. Emergency Dispensing of Schedule II Substances
In an emergency situation a pharmacist may
dispense controlled substances listed in Schedule II upon
receiving oral authorization of a prescribing individual
practitioner, provided that the procedures comply with
Federal law and regulation.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1463
h. Expiration of Prescription
Prescriptions for controlled substances in Schedules
II and III will become void unless dispensed within seven (7)
days of the original date of the prescription or if the original
prescriber authorizes the prescription past the seven (7) days
period. Such prescriptions cannot be written nor dispensed
for more than 100 dosage units nor can more than 100
dosage units be dispensed or a 31 day supply whatever is the
greater at one time. As an exception to dosage limitations
set forth in this subparagraph, and in accordance with 21
C.F.R. Section 1306.1(b), prescriptions for controlled
substances in Schedule II for patients either having a
medically documented terminal illness or patients in Long
Term Facilities (LTCF), may be filled in partial quantities, to
include individual dosage units. For each partial filling, the
dispensing pharmacist shall record on the back of the
prescription (or another appropriate record, uniformly
maintained, and readily retrievable) the date of the partial
filling, quantity dispensed, remaining quantity authorized to
be dispensed and the identification of the dispensing
pharmacist. The total quantity of Schedule II controlled
substances dispensed in all partial fillings must not exceed
the total quantity prescribed. Schedule II prescriptions for
terminally ill or LTCF patients, shall be valid for a period
not to exceed 60 days from the issue date unless sooner
terminated by the discontinuance of the medication.
i. Mail Order Prescription
Before dispensing prescriptions for Schedules II,
III, IV, V controlled substances by mail, the registrant and/or
the pharmacist-in-charge must assure that the prescription is
valid and written by a prescriber properly registered with the
Federal Government. Such verification may be made either
in writing or orally.
j. Pursuant to authority granted by 16 Del. C. §4732
the Secretary finds that waiver of the registration
requirements contained in that section as to non-resident
physicians or dentists is consistent with the public health and
safety subject to the conditions contained in this regulation.
Pharmacists may dispense controlled substances pursuant to
a prescription written by a non-resident physician or dentist
(who is not registered under 16 Del. C., Ch. 47) provided
that:
1) The pharmacist must establish that the nonresident
physician or dentist is properly registered to
prescribe controlled substances under Federal Law. The
pharmacist may keep a record which contains the name and
address of the non-resident physician or dentist, his Federal
registration number, and the name and address of the source
of the registration data.
2) The pharmacist must verify the identification
of the bearer of the prescription by reference to a driver's
license or some other identification which contains the
bearer's photograph, and must keep a record of such person.
3) The pharmacist must establish that the name of
the non-resident physician or dentist does not appear on the
list kept by the Office of Narcotics and Dangerous Drugs of
the Division of Public Health of those non-resident
physicians and dentists to whom the waiver granted by this
regulation does not apply.
The waiver of the registration requirement
provided by the registration shall not apply to non-resident
physicians and dentists determined by the Office of
Narcotics and Dangerous Drugs of the Division of Public
Health to have acted in a manner inconsistent with the Public
Health and Safety, and Safety, and the Office of Narcotics
and Dangerous Drugs shall maintain a list of those nonresident
physicians and dentists found by them to have so
acted. Pharmacists shall not honor the prescriptions of nonresident
physicians and dentists whose names appear on that
list unless such non-resident physicians and dentists have
registered pursuant to the provisions of 16 Del. C. § 4732.
k. Except when dispensed directly by a practitioner
other than a pharmacy to an ultimate user, no Schedule V
cough preparation containing codeine, dilaudid or any other
narcotic cough preparation may be dispensed without the
written or oral prescription of a practitioner - effective date
January 1, 1974.
l. The pharmacist or an employee under his/her
supervision must verify the identity of the person receiving a
dispensed controlled substance at the time it is transferred to
that person. A driver's license or a similar document
containing a photograph and the name and address of the
person is an acceptable document. The name and address of
the person should be recorded on either the prescription or
patient's profile. The pharmacist or employee is not required
to follow this procedure for each transaction if the identify of
the person is clearly established by visual recognition. In
those cases, the information shall be recorded at least once.
5. Security and Disposal
a. Security
1) Schedule II Substances Storage
(a) Pharmacies and medical, dental and
veterinary practitioners must store Schedule II controlled
substances in a burglar resistant type safe or GSA Class 5
grade steel cabinet or their equivalent. If the safe weighs
less than 750 pounds, it must be bolted, cemented, or secured
to the wall or floor in such a way that it cannot be readily
removed. Other types of substantially construed, securely
locked cabinets or drawers are acceptable provided that the
room, storage area or areas shall be provided with electronic
intrusion detection equipment to all sections of the said area
or areas where Schedule II controlled substances are stored,
so as to detect four-step movement (as defined in Section
12.8 of U.L. Standards 681). The aforementioned electronic
intrusion detection equipment shall be installed using
equipment that must be U.L. approved and listed. The said
system must be capable of transmitting a local alarm to an
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1464 FINAL REGULATIONS
outside audible device that shall comply with U.L. Standard
4.64. A local alarm connection shall not be permitted if the
controlled substance premise is located more than 400 feet
from a public roadway. If said controlled substances
premise is more than 400 feet from public roadway or found
to be within a location where such an alarm would not be
effective, then the alarm system on said controlled
substances premises shall transmit an alarm signal to a
certified station or directly into a law enforcement agency
that has 24-hour monitoring capabilities. The Secretary may
require additional security requirements if he deems it
necessary as a result of excessive diversion of controlled
substances. DEFINITIONS: Four-step movement - 12.8 -
The system shall respond to the movement of a Four-step
person walking not more than four consecutive steps at a rate
of one step per second. Such Four-step movement shall
constitute a "trial", and a sufficient number of detection units
shall be installed so that, upon test, an alarm will be initiated
in at least three out of every four consecutive "trials" made
moving progressively through the protective area.
(b) Safes, cabinets or drawers containing
Schedule II controlled substances must be kept locked at all
times. They may be opened only by the practitioner or by
the pharmacist-in charge or other designees, who must be
licensed medical professionals.
(c) Practitioners who store no more than 400
total dosage units of Schedule II substances are not required
to comply with the safe or alarm requirements of the
Regulation. However, their Schedule II controlled
substances must be stored in securely locked, substantially
constructed cabinets.
(d) Controlled substances listed in Schedules
III, IV and V shall be stored in a securely locked,
substantially constructed cabinet. Pharmacies may disperse
such substances in Schedule III, IV and V throughout the
stock of non-controlled substances in such a manner as to
obstruct the theft or diversion of the controlled substances.
The immediate area in a pharmacy containing dispersed,
controlled drugs must be secured in a manner approved by
the Office of Narcotics and Dangerous Drugs which will
prevent entry by unauthorized persons. The keys to such
area shall at all times be carried by a pharmacist. The doors
shall be locked whenever the area is not directly under the
supervision of a pharmacist or a responsible person
designated by the pharmacist.
2) Pharmacies
Schedule II controlled substances kept in areas
other than prescription areas in pharmacies must be placed in
safes, cabinets or drawers of the type described above.
These must be kept locked at all times and may be opened
only by the pharmacist-in-charge or his designee, who must
also be a registered pharmacist. Schedule III through V
controlled substances kept in areas other than prescription
areas in pharmacies must be kept in adequately locked
enclosures. They may be opened only by the pharmacist-incharge,
or his designees, who must be licensed pharmacists.
3) Report of Loss or Theft
Registrants shall notify the Office of Narcotics
and Dangerous Drugs, Division of Public Health, of any
theft or significant loss of any controlled substances, or of
any prescription blanks, upon the discovery of such loss or
theft. In addition, registrants shall complete the Federal
forms regarding such loss or theft, one copy of which must
be filed with the Office of Narcotics and Dangerous Drugs.
4) Hypodermic syringes and needles must be
secured in an area only accessible to personnel authorized
under 16 Del. C., Ch. 47 to dispense such items.
b. Disposal
1) Controlled Substances
Any registrant in possession of any controlled
substances and desiring or required to dispose of such
substance or substances shall contact the Office of Narcotics
and Dangerous Drugs of the Division of Public Health for
proper instructions regarding disposal.
2) Hypodermic Syringe or Needle
Hypodermic syringes or needles shall be
destroyed before disposal in such a manner as will render it
impossible to adapt them for the use of narcotic drugs by
subcutaneous injections.
6. Procedures for Adoption of Regulations
a. Notice
Prior to the adoption, amendment or repeal of any
of these controlled substances regulations, the Secretary will
give at least twenty (20) days notice of the intended action.
The notice will include a statement of either the terms of
substance of the intended action or a description of the
subjects and issues involved, and the time when , the place
where present their views thereon. The notice will be mailed
to persons who have made timely request of the Office of
Narcotics and Dangerous Drugs for advance notice of such
rule-making proceedings and shall be published in a
newspaper of general circulation in this State.
b. Hearing
The Secretary will afford all interested persons a
reasonable opportunity to submit data, views or arguments,
orally or in writing. He may appoint subordinates to preside
over such hearings.
c. Emergency Regulations
If the Secretary finds that an imminent peril to the
public health, safety or welfare requires adoption of a
regulation upon fewer then twenty (20) days notice and
states in writing his reasons for that finding, he may proceed
without prior notice or hearing or upon any abbreviated
notice and hearing he finds practicable, to adopt an
emergency regulation. Such rules will be effective for a
period not longer than 120 days, but the adoption of an
identical rule under the procedures discussed above is not
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1465
precluded.
d. Finding and Availability
The Secretary will file any adoption, amendment or
repeal of these regulations with the Secretary of State.
Regulations will become effective upon such filing. In
addition, copies of these regulations will be available for
public inspection at the Office of Narcotics and Dangerous
Drugs of the Division of Public Health, Jesse S. Cooper
Building, Dover, Delaware, 19901.
7. Severability
If any provision of these regulations is held invalid the
invalidity does not effect other provisions of the regulations
which can be given effect without the invalid provisions or
application, and to this end the provisions of the regulation
are severable. Pursuant to 16 Del. C. §4718 (f) and 16 Del.
C. §4720 (c) the Secretary finds that the compounds,
mixtures or preparations listed in 21 CFR 1301.21, 21 CFR
1308.24 contain one or more active medical ingredients not
having a stimulant or depressant effect on the central
nervous system and that the admixtures included therein are
in combinations, quantities, proportions, or concentrations
that vitiate the potential for abuse of the substances which
have a stimulant or depressant effect on the central nervous
system, and therefore: The Secretary, as authorized by 16
Del. C. §4718 (f) and 16 Del. C. §4720 (c), does hereby
except by rule the substances listed in 21 CFR 130.21, CFR
1308.24 and 21 CFR 1308.32 from Schedules III and IV of
the Uniform Controlled Substances Act, 16 Del. C., Chapter
47.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services / Food
Stamp Program initiated proceedings to amend policies to
implement policy changes to the above-referenced section of
the Division of Social Services Manual. Changes are being
made in the Food Stamp Program Policies as a result of the
following rule: Food Stamp Program: Noncitizen
Eligibility, and Certification Provisions of PL 104-193, as
amended by PL 104-208, 105-33 and 105-185, Final Rule.
This rule implements several provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) and amended by the Omnibus
Consolidated Appropriations Act of 1997 (OCAA), the
Balanced Budget Act of 1997 (BBA), and the Agricultural
Research, Extension and Education Reform Act of 1998
(AREERA).
Summary of Changes
• Includes cooling costs in the heating standard utility
allowance that creates a heating and cooling allowance.
• Requires a household to have two, non-heat or cooling,
utility expenses to use the low utility standard.
• Allows a household living in a public housing unit or
other rental housing unit which has central utility meters
and charges the household only for excess heating or
cooling costs to receive the LUA (limited utility allowance)
provided the household has another utility like a
phone or gas cooking.
• Allows a household to claim the shelter costs of the
home if not occupied by the household because of training
away from home.
The Department's proceedings to amend its regulations
were initiated pursuant to 29 Delaware Code Section 10114
and its authority as prescribed by 31 Delaware Code Section
512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the November, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by November 30, 2001 at which time the
Department would receive information, factual evidence and
public comment to the said proposed changes to the
regulations.
One comment was received relating to this proposed
rule.
Summary of Information Submitted:
The State Council for Persons with Disabilities (SCPD)
provided the following comment on the proposed regulation:
"SCPD endorses the latest version and has the following
observations. First, they expand the authorization for
deduction of air conditioning expenses (Section 9060F.3).
This affects persons with asthma, allergies, and pulmonary
function deficits. Second, they authorize continued
deduction of shelter costs of a home if the resident is away
due to participation in training (Section 9060F.4). This may
help support Ticket to Work legislation. An SSI or SSDI
recipient could attend non-local training without losing this
deduction."
Findings of Fact:
The Department finds that the proposed changes as set
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1466 FINAL REGULATIONS
forth in the November, 2001 Register of Regulations should
be adopted, as herein revised.
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Food Stamp Program are adopted, as
herein revised, and shall be final effective January 10, 2002.
Vincent P. Meconi, Secretary, DHSS
12.14.2001
DSSM 9060 Income Deductions
F. Shelter Costs - Monthly shelter costs in excess of 50% of
the household's income after all other deductions in A, B,
and C above have been allowed. The shelter deduction must
not exceed the maximum excess shelter deduction limit.
(Refer to the current October Cost-of-Living Adjustment
Administrative Notice for the maximum excess shelter
deduction.) This is applicable unless the household contains
a member who is age sixty (60) or over, or disabled per
DSSM 9013.1. Such households will receive an excess
shelter deduction for the monthly costs that exceeds 50% of
the household's monthly income after all other applicable
deductions.
Shelter costs will include only the following:
1) Continuing charges for the shelter occupied by the
household, including rent, mortgages, condo and association
fees, or other continuing charges leading to the ownership of
the shelter such as loan repayments for the purchase of a
mobile home, including interest on such payments. A
mortgage is defined as any loan that uses the house as
collateral.
Households required to pay the "last month's rent" along
with the first month's rent before they can move into the
dwelling can claim both amounts in the month that the
household is billed.
For example, a client rents an apartment in January and
must pay January's and the next December's rent in January.
Both rental amounts can be used for January's food stamp
budget. A rent deduction would not be allowed in December
since it was paid in January.
Households required to pay a security deposit before
they move into a dwelling cannot claim the deposit as a
shelter cost.
For example, a client rents a home and must pay a $450
security deposit and the first month's rent before she moves
in. The security deposit will be refunded when she moves
out if the home is in good condition. She cannot claim the
deposit as a shelter cost for food stamp purposes.
2) Property taxes, State and local assessments and
insurance on the structure itself, but not separate costs for
insuring furniture or personal belongings. If separate
insurance costs for furniture or personal belongings are not
identified, use the total.
3) The costs of:
• fuel for heating or air conditioning costs for
cooling;
• electricity or fuel used for purposes other than
heating or cooling;
• water;
• sewerage;
• well installation and maintenance;
• septic tank system installation and maintenance;
• garbage and trash collection;
• all service fees for one telephone, including, but not
limited to basic service fees, subscriber line
charges, relay center surcharges, 911 fees, and
taxes; and
• fees charged by the utility provider for initial
installation of the utility.
One time deposits cannot be included.
4) There are two standard utility allowances. The
standard heating allowance will be available only to
households which incur heating costs separately and apart
from their rent or mortgage including residents of rental
housing who are billed on a monthly basis by their landlords
for actual usage as determined through individual metering.
The standard heat allowance is available to households
receiving indirect energy assistance payments.
A household living in a public housing unit or other
rental housing unit which has central utility meters and
charges the household only for excess utility costs is not
permitted to use either standard allowance. Such households
may claim the actual verified utility expenses, which it does
pay separately. Households should be advised of this option
at each (re) certification.
The two annualized utility allowances are offered
available:
The limited utility basic allowance (LUA) is
available to households that do not pay for heat or air
conditioning cooling, but incur costs that include electricity
and fuel for purposes other than heating or cooling, water,
sewerage, well and septic tank installation and maintenance,
telephone, and garbage or trash collection. To get the LUA,
the household must incur expenses for at least two utilities,
like phone and electric, phone and water, gas cooking and
non-heat or cooling electric, or water and trash collection. A
household living in a public housing unit or other rental
housing unit which has central utility meters and charges the
household only for excess heating or cooling costs can
receive the LUA provided the household has another utility
like a phone or gas cooking.
The heating and cooling utility allowance
(HCSUA) is available to households with heating or air
conditioning cooling costs separate from their rent or
mortgage. Other households eligible for the HCSUA
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1467
include:
• Residents of private rental housing who are billed
on a monthly basis by their landlords for actual
usage as determined through individual usage or
who are charged a flat rate;
• Households receiving energy payments under the
Low Income Home Energy Assistance (LIHEA);
• Households receiving direct or indirect energy
assistance payments, other than LIHEA, that is
excluded as income and who continue to incur any
out-of-pocket heating or cooling expenses during
any month in the certification period.
Heating costs must be verified to use the HCSUA. For
cooling costs, you must verify the utility, like electricity, that
provides the air conditioning. Accept the household's
statement that they pay for cooling unless it is questionable.
(Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the standard utility
allowances.)
Households may choose between a standard or verified
actual utility costs at initial certification, recertification, or
when a household moves.
Permit households to switch between their actual utility
costs and the appropriate utility standard at the time of
recertification. Qualifying households not opting to itemize
actual utility costs will be assigned the appropriate standard
utility allowance.
If the household is billed separately for only telephone,
water, sewer, or garbage collection fees (any one or more of
these), the household is not entitled to claim either standard
utility allowance. If one of these households is billed for a
telephone, The standard telephone allowance will be used
(for these households billed only for a telephone, and
regardless of their actual cost). In addition, these households
may claim the actual utility expenses (water, sewer, or
garbage) for which they are billed separately from rent or
mortgage payments. (Refer to the current October Cost-of-
Living Adjustment Administrative Notice for the telephone
allowance.)
If a household is billed only for one utility, not heating/
cooling or telephone, the household is allowed the actual
cost for that utility.
Prorating the SUA
When households live with and share utility expenses
with other individuals or households, whether they are
participating in the Food Stamp Program or not, the agency
will prorate the standard utility allowances based on the
number of households sharing the utility costs.
The following are examples of prorating the SUA:
Two (2) households share a residence. They both
contribute towards the utility costs. The food stamp
household pays $50 towards the costs each month. The food
stamp household is entitled to one-half of the SUA.
A food stamp household shares an apartment and
utilities with another individual. The food stamp household
pays two-thirds of the utility costs. The household is entitled
to one-half of the SUA.
Three (3) households share a residence and utility
expenses. The food stamp household pays a different amount
each month based on the amount of the costs. The food
stamp household is entitled to a one-third proration of the
SUA.
4) The shelter costs of the home if not occupied by the
household because of employment or training away from
home, illness or abandonment caused by a natural disaster or
casualty loss. For costs of a home vacated by the household
to be included in the household's shelter costs, the household
must intend to return to the home; the current occupants of
the home, if any must not be claiming the shelter costs for
food stamp purposes; and the home must not be leased or
rented during the absence of the household.
A household that has both an occupied home and an
unoccupied home is only entitled to one standard utility
allowance.
5) Charges for the repair of the home that was
substantially damaged or destroyed due to a natural disaster
such as a fire or flood. Shelter costs will not include charges
for repair of the home that have been or will be reimbursed
by private or public relief agencies, insurance companies, or
from any other source. Repairs, other than those due to
natural disasters, do not count as a deduction, even when
tenants must pay for them or be evicted.
DIVISION OF SOCIAL SERVICES
Statutory Authority 31 Delaware Code,
Section 505 (31 Del.C. 505)
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services
initiated proceedings to amend policies to implement
changes to the Division of Social Services Manual (DSSM),
Section 11004.7, clarifying when the child care fee will be
waived. The Department's proceedings to amend its
regulations were initiated pursuant to 29 Delaware Code
Section 10114 and its authority as prescribed by 31
Delaware Code Section 512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the October, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1468 FINAL REGULATIONS
from the public concerning the proposed regulations to be
produced by October 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
Summary of Proposed Regulation
Provides for situations where parent fees can be waived
when paying the parent fee would create an excessive
financial burden for certain families. The revised policy
would define excessive financial burden as situations where
the family's disposable income after deductions result in the
family having income below 75% of the Federal Poverty
Level. Deductions are limited to:
• Rent, mortgage, lot rent;
• Any mandatory expense required by the landlord or
mortgage holder
• (e.g., homeowner's insurance, property taxes, school
taxes);
• Actual utility expenses (e.g., electric, gas, water, sewer).
Summary of Comments Received
Two comments were received relating to this proposed
rule.
The State Council for Persons with Disabilities (SCPD)
and the Governor's Advisory Council for Exceptional
Citizens (GACEC) provided the following similar comments
and recommendations:
The new regulations delete an authorization to waive
fees if "a family has extensive medical expenses for which
there are no payments through Medicaid or other insurance
carriers". DSS authorizes four (4) grounds/conditions for
waiving fees. The third ground/condition is based on low
income and allows deductions for certain expenses exclusive
of high unreimbursed medical costs. The fourth ground/
condition is a "catch-all" waiver justification for families
where the need for services is based on the special needs of
the child or caretaker.
Both Councils have the same two recommendations:
First, under the third ground/condition, it would be
preferable to authorize a deduction for unreimbursed
medical costs.
DSS Response: DSS will consider unremibursed
medical costs as part of the deductions to determine
excessive financial burden. However, before considering
these medical costs as deductions, families not already
receiving Medicaid or on the Delaware Healthy Children
Program (DHCP), must first apply for either Medicaid or
DHCP. Any unreimbursed medical costs not covered by
Medicaid or HCP will be considered as a deduction to help
determine the family's income for excessive financial
burden.
Second, it would be preferable to clarify in the fourth
ground/condition that "special needs" includes, but is not
limited to, the disability of the child or caretaker. For
example, the sentence could be amended to read "...the
special needs, including, but not limited to disability, of the
child or caretaker" or "...the special needs (e.g. disability) of
the child or caretaker".
DSS Response: Special needs child and special needs
adult are defined in section DSSM 11002.9.
Findings of Fact:
The Department finds that the proposed changes as set
forth in the October, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
Division of Social Services regulation related to the child
care fee waiver policy is adopted and shall be final effective
January 10, 2002.
Vincent P. Meconi, Secretary, DHSS
12.14.2001
11004.7 Determination Of The Child Care Fee & Fee
Waiving
Under regulations, families are required to contribute to
the cost of child care services based upon their ability to pay.
Families contribute to the cost of care by paying a child care
fee. DSS, however, provides child care services to certain
families at no cost. Part of the process, therefore, of
determining fees includes not only the decision of how much
parent/caretakers should pay for the cost of care, but also
which families should receive services at no cost.
Parent/caretakers who have a need for service or who
receive child care services in Categories 11 and 12 receive
service at no cost. In addition, Caretakers in Category 31,
who have a need for services and who are the caretakers of
children who receive ABC or GA assistance, will receive
service at no cost. Also, parent/caretakers in Category 31
who are in need of protective services will receive service at
no cost, unless the Division of Family Services specifically
requests that a parent/caretaker pay a fee.
NOTE: the CCMIS is designed so that if Category 11 or
12 is entered as the child care category, the child care fee is
waived automatically.
Parent/Caretakers in Categories 13, 21, and 31 are to
pay a child care fee, unless the fee is waived.
In categories other than 13 where parent/caretakers are
to pay a child care fee, the fee may be still be waived under
the following circumstances:
A. a family has extensive medical expenses for which
there are no payments through Medicaid or other insurance
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1469
carriers;
B. a family_s shelter costs exceed 30 percent of
household expenses;
C. a family's utility costs, exclusive of telephone,
exceed 15 percent of household income;
D. a family has additional food expenses resulting
from diets prescribed by a physician;
E. a family has additional transportation costs due to
lack of public transportation in rural areas;
F. a family is homeless;
G. a family has a special need and this need poses a
financial hardship; or
H. other situations of hardship exist (multiple children
in care, household crisis, etc.).
Document the decision to waive the fee as well as obtain
supervisory approval before doing so. The CCMIS User
Manual contains the appropriate waiver codes for waiving
fees in the CCMIS.
All child care fees will be waived if the family meets
one of the four (4) conditions below.
1. For all families in Category 31 active with the
Division of Family Services (DFS) including foster care
families.
2. For all families in Delaware_s A Better Chance
Welfare Reform Program (DABC) in Categories 11 and 12,
General Assistance (GA) families, and caretakers in
Category 31 caring for children who receive DABC or GA
assistance where the adult requesting the child care is not the
child's natural or adoptive parent (for example,
grandparents, aunts, uncles, etc.).
3. When paying the fee creates an excessive financial
burden (as defined below). Excessive financial burden is
defined as situations where the family_s disposable income,
after deductions listed below, result in the family having
income below 75% of the federal poverty level. Deductions
are limited to:
• rent, mortgage, lot rent;
• any mandatory expense required by the landlord or
mortgage holder (e.g., homeowners insurance,
property taxes, school taxes);
• actual utility expenses (e.g., electric, gas, water,
sewer);
• [unreimbursed medical costs; Before considering
these medical costs as deductions, families not
already receiving Medicaid or on the Delaware
Healthy Children Program (DHCP), must first apply
for either Medicaid or the DHCP. Any unreimbursed
medical costs not covered by Medicaid or the
DHCP will be considered as a deduction to determine
the family's income for excessive financial burden.]
4. Families where the need for service is based on the
special needs of the child or the caretaker.
All requests to waive the fee must be documented in the
case file and be approved by the unit supervisor. Requests to
waive the fee for Division of Social Service (DSS)
employees (seasonal, merit system) or temporary employees
working for DSS must be approved by the Operations
Administrator, as well as the unit supervisor.
As is the case with income, a person who acts as a
child's caretaker, as defined in Section 11002.9, pays a child
care fee based only upon income attributable to the child,
unless the family meets one of the waived fee conditions
above.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services /
Medicaid/Medical Assistance Program initiated proceedings
to amend policies to implement a policy change to Section
20620.1 of the Division of Social Services Manual. Effective
October 1, 2001, this change, approved and funded by the
State Legislature, increased the amount of funds that can be
protected in a personal needs account for individuals
residing in nursing facilities from $42 per month to $44 per
month. The Department's proceedings to amend its
regulations were initiated pursuant to 29 Delaware Code
Section 10114 and its authority as prescribed by 31
Delaware Code Section 512.
The Department published its notice of proposed
regulation changes pursuant to 29 Delaware Code Section
10115 in the November, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by November 30, 2001 at which time the
Department would receive information, factual evidence and
public comment to the said proposed changes to the
regulations.
No written or verbal comments were received relating to
this proposed rule.
Findings of Fact:
The Department finds that the proposed changes as set
forth in the November, 2001 Register of Regulations should
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1470 FINAL REGULATIONS
be adopted, as herein revised. DEPARTMENT OF INSURANCE
THEREFORE, IT IS ORDERED, that the proposed
regulation of the Medicaid/Medical Assistance Program
regarding Personal Needs Allowance is adopted, as herein
revised, and shall be final effective January 10, 2002.
Vincent P. Meconi, Secretary, DHSS
12.14.2001
20620.1 Personal Needs
$42.00 $44.00 per month of available income is to be
protected for the recipients direct personal needs.
If the recipient receives a reduced VA Improved
Pension (not to exceed $90) the personal needs amount will
be $90 or the amount of personal needs allowance in the
state plan, whichever is greater.
If the recipient regularly attends a rehab/educational
program off the grounds of his nursing facility, including
employment for the purpose of rehabilitation in a sheltered
workshop off the grounds of the facility, $50.00 per month
(rather than $42 $44) will be protected.
For nursing home residents who are participating in
substantial gainful activity (SGA) (20 CFR 416.971), the
following amounts, not to exceed the Adult Foster Care rate
will be deducted from gross earned income:
• Mandatory payroll deductions that are a condition
of employment including, but not limited to:
Federal, State and Local Taxes
FICA
Union Dues
Insurance premiums
Pension contributions
Transportation costs as paid to & from work
Clothing and personal needs allowance of $75/
month.
If earnings average more than $700 a month in a
calendar year, this is considered SGA and DSS can allow a
personal needs allowance of up to the AFC rate. If earnings
average less than $300 a month in a calendar year, this is not
ordinarily considered SGA and DSS can allow the $42 $44
or $50 personal needs allowance. If average earnings are
between $300 and $700, DSS must consider other factors to
determine whether or not the work constitutes SGA. Other
factors include considering if the work is comparable to
unimpaired people in the community performing similar
jobs.
Statutory Authority:18 Delaware Code,
Sections 312, 1113(h)(18 Del. C. §§ 312, 1113(h))
Order
A public hearing was held on November 27, 2001, to
receive comments on proposed Regulation 85 relating to
select mortality factors and rules for their use, rules
concerning a minimum standard for the valuation of plans
with non-level premiums or benefits, and rules concerning a
minimum standard for the valuation of plans with secondary
guarantees. By my order of October 3, 2001, F.L. Peter
Stone, Esquire, was appointed hearing officer to receive
comments and testimony on the proposed regulation. Public
notice of the hearing and publication of Proposed Regulation
85 in the Register of Regulations was in conformity with
Delaware law.
Summary Of The Evidence And The Information
Submitted
The summary of the evidence and the information
submitted as set forth in the FINDINGS, CONCLUSIONS
AND RECOMMENDED DECISION of the hearing officer
is incorporated into this Order.
Public comment supportive of the proposed regulation,
in both written and oral form, was received from the
American Council of Life Insurers and from Michael J. Rich,
Deputy Attorney General, on behalf of the Delaware
Insurance Department. There was no opposition to the
proposed regulation. Upon recommendation of Mr. Rich,
two non-substantive changes to the proposed regulation were
recommended: (1) 18 Del. C. § 1113 is being substituted in
Section 2 for the reference to 18 Del. C. Chapter 11 as
authority for the regulation, and (2) Section 8 is being
changed to reflect an effective date of January 15, 2002.
Findings Of Fact With Respect To The Evidence And
Information
1. I find that the hearing officer's recommendation to
modify Section 2 with respect to the authority for the
regulation and Section 8 with respect to the effective date to
be technical changes which does not substantively change
the regulation or enlarge the class of entities subject to the
provisions thereof.
2. I adopt the findings of fact and recommendations of
F.L. Peter Stone, the hearing officer and incorporate them by
reference.
Decision And Effective Date
I hereby adopt Regulation 85 as modified by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1471
changes herein to be effective on January 15, 2001.
Text And Citation
The text of Regulation 85 appears in the Register of
Regulations Vol. 5, Issue 5, pages 1049-1056, November 1,
2001 subject to the modifications approved hereby.
Donna Lee H. Williams, Insurance Commissioner
Dated: December 4, 2001
Regulation 85
Valuation of Life Insurance Policies
Sections
1. Purpose
2. Authority
3. Applicability
4. Definitions
5. General Calculation Requirements for Basic Reserves
and Premium Deficiency Reserves
6. Calculation of Minimum Valuation Standard for
Policies with Guaranteed Non-level Gross Premiums or
Guaranteed Non-level Benefits (Other Than Universal
Life Policies)
7. Calculation of Minimum Valuation Standard for
Flexible Premium and Fixed Premium Universal Life
Insurance Policies That Contain Provisions Resulting in
the Ability of a Policy Owner to Keep a Policy in Force
Over a Secondary Guarantee Period
8. Effective Date
Appendix.
Section 1. Purpose
A. The purpose of this regulation is to provide:
(1) Tables of select mortality factors and rules for
their use;
(2) Rules concerning a minimum standard for the
valuation of plans with non-level premiums or benefits; and
(3) Rules concerning a minimum standard for the
valuation of plans with secondary guarantees.
B. The method for calculating basic reserves defined in
this regulation will constitute the Commissioners' Reserve
Valuation Method for policies to which this regulation is
applicable.
Section 2. Authority
This regulation is issued under the authority of [18 Del.
C. §312, 18 Del. C. Chapter 11][18 Del.C. §§312, 1113]
and 29 Del. C. Chapter 101.
Section 3. Applicability
This regulation shall apply to all life insurance policies,
with or without nonforfeiture values, issued on or after
January 1, 2002, subject to the following exceptions and
conditions.
A. Exceptions
(1) This regulation shall not apply to any individual
life insurance policy issued on or after January 1, 2002 if the
policy is issued in accordance with and as a result of the
exercise of a reentry provision contained in the original life
insurance policy of the same or greater face amount, issued
before January 1, 2002, that guarantees the premium rates of
the new policy. This regulation also shall not apply to
subsequent policies issued as a result of the exercise of such
a provision, or a derivation of the provision, in the new
policy.
(2) This regulation shall not apply to any universal
life policy that meets all the following requirements:
(a) Secondary guarantee period, if any, is five
(5) years or less;
(b) Specified premium for the secondary
guarantee period is not less than the net level reserve
premium for the secondary guarantee period based on the
CSO valuation tables as defined in Section 4F and the
applicable valuation interest rate; and
(c) The initial surrender charge is not less than
100 percent of the first year annualized specified premium
for the secondary guarantee period.
(3) This regulation shall not apply to any variable
life insurance policy that provides for life insurance, the
amount or duration of which varies according to the
investment experience of any separate account or accounts.
(4) This regulation shall not apply to any variable
universal life insurance policy that provides for life
insurance, the amount or duration of which varies according
to the investment experience of any separate account or
accounts.
(5) This regulation shall not apply to a group life
insurance certificate unless the certificate provides for a
stated or implied schedule of maximum gross premiums
required in order to continue coverage in force for a period in
excess of one year.
B. Conditions
(1) Calculation of the minimum valuation standard
for policies with guaranteed non-level gross premiums or
guaranteed non-level benefits (other than universal life
policies), or both, shall be in accordance with the provisions
of Section 6.
(2) Calculation of the minimum valuation standard
for flexible premium and fixed premium universal life
insurance policies, that contain provisions resulting in the
ability of a policyholder to keep a policy in force over a
secondary guarantee period shall be in accordance with the
provisions of Section 7.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1472 FINAL REGULATIONS
Section 4. Definitions
For purposes of this regulation:
A. "Basic reserves" means reserves calculated in
accordance with 18 Del. C. 1113(c).
B. "Contract segmentation method" means the
method of dividing the period from issue to mandatory
expiration of a policy into successive segments, with the
length of each segment being defined as the period from the
end of the prior segment (from policy inception, for the first
segment) to the end of the latest policy year as determined
below. All calculations are made using the 1980 CSO
valuation tables, as defined in Subsection F of this section,
(or any other valuation mortality table adopted by the
National Association of Insurance Commissioners (NAIC)
after the effective date of this regulation and promulgated by
regulation by the commissioner for this purpose), and, if
elected, the optional minimum mortality standard for
deficiency reserves stipulated in Section 5B of this
regulation.
The length of a particular contract segment shall be set
equal to the minimum of the value t for which Gt is greater
than Rt (if Gt never exceeds Rt the segment length is deemed
to be the number of years from the beginning of the segment
to the mandatory expiration date of the policy), where Gt and
Rt are defined as follows:
GPx+k+t
Gt = __________
GPx+k+t-1
where:
x = original issue age;
k = the number of years from the date of issue to
the beginning of the segment;
t = 1, 2, ...; t is reset to 1 at the beginning of each
segment;
GPx+k+t-1 =Guaranteed gross premium per thousand of
face amount for year t of the segment, ignoring policy fees
only if level for the premium paying period of the policy.
qx+k+t
Rt =__________,However, Rt may be increased or
qx+k+t-1 decreased by one percent in any
policy year, at the company's
option, but Rt shall not be less than
one;
where:
x, k and t are as defined above, and
qx+k+t-1 = valuation mortality rate for
deficiency reserves in policy year k+t but using the mortality
of Section 5B(2) if Section 5B(3) is elected for deficiency
reserves.
However, if GPx+k+t is greater than 0 and
GPx+k+t-1 is equal to 0, Gt shall be deemed to be 1000. If
GPx+k+t and GPx+k+t-1 are both equal to 0, Gt shall be
deemed to be 0.
C. "Deficiency reserves" means the excess, if greater
than zero, of
(1) Minimum reserves calculated in accordance
with 18 Del. C. 1113(g) over
(2) Basic reserves.
D. "Guaranteed gross premiums" means the
premiums under a policy of life insurance that are
guaranteed and determined at issue.
E. "Maximum valuation interest rates" means the
interest rates defined in 18 Del. C. 1113(b)(3) (Computation
of Minimum Standard by Calendar Year of Issue) that are to
be used in determining the minimum standard for the
valuation of life insurance policies.
F. "1980 CSO valuation tables" means the
Commissioners' 1980 Standard Ordinary Mortality Table
(1980 CSO Table) without ten-year selection factors,
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law, and variations of the 1980 CSO
Table approved by the NAIC, such as the smoker and
nonsmoker versions approved in December 1983.
G. "Scheduled gross premium" means the smallest
illustrated gross premium at issue for other than universal
life insurance policies. For universal life insurance policies,
scheduled gross premium means the smallest specified
premium described in Section 7A(3), if any, or else the
minimum premium described in Section 7A(4).
H.(1) "Segmented reserves" means reserves,
calculated using segments produced by the contract
segmentation method, equal to the present value of all future
guaranteed benefits less the present value of all future net
premiums to the mandatory expiration of a policy, where the
net premiums within each segment are a uniform percentage
of the respective guaranteed gross premiums within the
segment. The uniform percentage for each segment is such
that, at the beginning of the segment, the present value of the
net premiums within the segment equals:
(a) The present value of the death benefits within
the segment, plus
(b) The present value of any unusual guaranteed
cash value (see Section 6D) occurring at the end of the
segment, less
(c) Any unusual guaranteed cash value occurring at
the start of the segment, plus
(d) For the first segment only, the excess of the
Item (i) over Item (ii), as follows:
(i) A net level annual premium equal to the
present value, at the date of issue, of the benefits provided
for in the first segment after the first policy year, divided by
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1473
the present value, at the date of issue, of an annuity of one
per year payable on the first and each subsequent
anniversary within the first segment on which a premium
falls due. However, the net level annual premium shall not
exceed the net level annual premium on the nineteen-year
premium whole life plan of insurance of the same renewal
year equivalent level amount at an age one year higher than
the age at issue of the policy.
(ii) A net one year term premium for the
benefits provided for in the first policy year.
(2) The length of each segment is determined by
the "contract segmentation method," as defined in this
section.
(3) The interest rates used in the present value
calculations for any policy may not exceed the maximum
valuation interest rate, determined with a guarantee duration
equal to the sum of the lengths of all segments of the policy.
(4) For both basic reserves and deficiency reserves
computed by the segmented method, present values shall
include future benefits and net premiums in the current
segment and in all subsequent segments.
I. "Tabular cost of insurance" means the net single
premium at the beginning of a policy year for one-year term
insurance in the amount of the guaranteed death benefit in
that policy year.
J. "Ten-year select factors" means the select factors
adopted with the 1980 amendments to the NAIC Standard
Valuation Law.
K. (1) "Unitary reserves" means the present value of
all future guaranteed benefits less the present value of all
future modified net premiums, where:
(a) Guaranteed benefits and modified net
premiums are considered to the mandatory expiration of the
policy; and
(b) Modified net premiums are a uniform
percentage of the respective guaranteed gross premiums,
where the uniform percentage is such that, at issue, the
present value of the net premiums equals the present value of
all death benefits and pure endowments, plus the excess of
Item (i) over Item (ii), as follows
(i) A net level annual premium equal to the
present value, at the date of issue, of the benefits provided
for after the first policy year, divided by the present value, at
the date of issue, of an annuity of one per year payable on the
first and each subsequent anniversary of the policy on which
a premium falls due. However, the net level annual premium
shall not exceed the net level annual premium on the
nineteen-year premium whole life plan of insurance of the
same renewal year equivalent level amount at an age one
year higher than the age at issue of the policy.
(ii) A net one year term premium for the
benefits provided for in the first policy year.
(2) The interest rates used in the present value
calculations for any policy may not exceed the maximum
valuation interest rate, determined with a guarantee duration
equal to the length from issue to the mandatory expiration of
the policy.
L. "Universal life insurance policy" means any
individual life insurance policy under the provisions of
which separately identified interest credits (other than in
connection with dividend accumulations, premium deposit
funds, or other supplementary accounts) and mortality or
expense charges are made to the policy.
Section 5. General Calculation Requirements for Basic
Reserves and Premium Deficiency Reserves
A. At the election of the company for any one or more
specified plans of life insurance, the minimum mortality
standard for basic reserves may be calculated using the 1980
CSO valuation tables with select mortality factors (or any
other valuation mortality table adopted by the NAIC after the
effective date of this regulation and promulgated by
regulation by the commissioner for this purpose). If select
mortality factors are elected, they may be:
(1) The ten-year select mortality factors
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law;
(2) The select mortality factors in the Appendix; or
(3) Any other table of select mortality factors
adopted by the NAIC after the effective date of this
regulation and promulgated by regulation by the
commissioner for the purpose of calculating basic reserves.
B. Deficiency reserves, if any, are calculated for each
policy as the excess, if greater than zero, of the quantity A
over the basic reserve. The quantity A is obtained by
recalculating the basic reserve for the policy using
guaranteed gross premiums instead of net premiums when
the guaranteed gross premiums are less than the
corresponding net premiums. At the election of the
company for any one or more specified plans of insurance,
the quantity A and the corresponding net premiums used in
the determination of quantity A may be based upon the 1980
CSO valuation tables with select mortality factors (or any
other valuation mortality table adopted by the NAIC after the
effective date of this regulation and promulgated by
regulation by the commissioner). If select mortality factors
are elected, they may be:
(1) The ten-year select mortality factors
incorporated into the 1980 amendments to the NAIC
Standard Valuation Law;
(2) The select mortality factors in the Appendix of
this regulation;
(3) For durations in the first segment, X percent of
the select mortality factors in the Appendix , subject to the
following:
(a) X may vary by policy year, policy form,
underwriting classification, issue age, or any other policy
factor expected to affect mortality experience;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1474 FINAL REGULATIONS
(b) X shall not be less than twenty percent
(20%);
(c) X shall not decrease in any successive
policy years;
(d) X is such that, when using the valuation
interest rate used for basic reserves, Item (i) is greater than or
equal to Item (ii);
(i) The actuarial present value of future
death benefits, calculated using the mortality rates resulting
from the application of X;
(ii) The actuarial present value of future
death benefits calculated using anticipated mortality
experience without recognition of mortality improvement
beyond the valuation date;
(e) X is such that the mortality rates resulting
from the application of X are at least as great as the
anticipated mortality experience, without recognition of
mortality improvement beyond the valuation date, in each of
the first five (5) years after the valuation date;
(f) The appointed actuary shall increase X at
any valuation date where it is necessary to continue to meet
all the requirements of Subsection B(3);
(g) The appointed actuary may decrease X at
any valuation date as long as X does not decrease in any
successive policy years and as long as it continues to meet all
the requirements of Subsection B(3); and
(h) The appointed actuary shall specifically
take into account the adverse effect on expected mortality
and lapsation of any anticipated or actual increase in gross
premiums.
(i) If X is less than 100 percent at any duration
for any policy, the following requirements shall be met:
(i) The appointed actuary shall annually
prepare an actuarial opinion and memorandum for the
company in conformance with the requirements of 18 Del.
C. §1111(c); and
(ii) The appointed actuary shall annually
opine for all policies subject to this regulation as to whether
the mortality rates resulting from the application of X meet
the requirements of Subsection B(3). This opinion shall be
supported by an actuarial report, subject to appropriate
Actuarial Standards of Practice promulgated by the Actuarial
Standards Board of the American Academy of Actuaries.
The X factors shall reflect anticipated future mortality,
without recognition of mortality improvement beyond the
valuation date, taking into account relevant emerging
experience.
(4) Any other table of select mortality factors
adopted by the NAIC after the effective date of this
regulation and promulgated by regulation by the
commissioner for the purpose of calculating deficiency
reserves.
C. This subsection applies to both basic reserves and
deficiency reserves. Any set of select mortality factors may
be used only for the first segment. However, if the first
segment is less than ten (10) years, the appropriate ten-year
select mortality factors incorporated into the 1980
amendments to the NAIC Standard Valuation Law may be
used thereafter through the tenth policy year from the date of
issue.
D. In determining basic reserves or deficiency reserves,
guaranteed gross premiums without policy fees may be used
where the calculation involves the guaranteed gross
premium but only if the policy fee is a level dollar amount
after the first policy year. In determining deficiency
reserves, policy fees may be included in guaranteed gross
premiums, even if not included in the actual calculation of
basic reserves.
E. Reserves for policies that have changes to
guaranteed gross premiums, guaranteed benefits, guaranteed
charges, or guaranteed credits that are unilaterally made by
the insurer after issue and that are effective for more than
one year after the date of the change shall be the greatest of
the following: (1) reserves calculated ignoring the guarantee,
(2) reserves assuming the guarantee was made at issue, and
(3) reserves assuming that the policy was issued on the date
of the guarantee.
F. The commissioner may require that the company
document the extent of the adequacy of reserves for
specified blocks, including but not limited to policies issued
prior to the effective date of this regulation. This
documentation may include a demonstration of the extent to
which aggregation with other non-specified blocks of
business is relied upon in the formation of the appointed
actuary opinion pursuant to and consistent with the
requirements of 18 Del. C. §1111(c).
Section 6. Calculation of Minimum Valuation Standard
for Policies with Guaranteed Non-level Gross Premiums
or Guaranteed Non-level Benefits (Other than Universal
Life Policies)
A. Basic Reserves
Basic reserves shall be calculated as the greater of
the segmented reserves and the unitary reserves. Both the
segmented reserves and the unitary reserves for any policy
shall use the same valuation mortality table and selection
factors. At the option of the insurer, in calculating
segmented reserves and net premiums, either of the
adjustments described in Paragraph (1) or (2) below may be
made:
(1) Treat the unitary reserve, if greater than zero,
applicable at the end of each segment as a pure endowment
and subtract the unitary reserve, if greater than zero,
applicable at the beginning of each segment from the present
value of guaranteed life insurance and endowment benefits
for each segment.
(2) Treat the guaranteed cash surrender value, if
greater than zero, applicable at the end of each segment as a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1475
pure endowment; and subtract the guaranteed cash surrender
value, if greater than zero, applicable at the beginning of
each segment from the present value of guaranteed life
insurance and endowment benefits for each segment.
B. Deficiency Reserves
(1) The deficiency reserve at any duration shall be
calculated:
(a) On a unitary basis if the corresponding
basic reserve determined by Subsection A is unitary;
(b) On a segmented basis if the corresponding
basic reserve determined by Subsection A is segmented; or
(c) On the segmented basis if the
corresponding basic reserve determined by Subsection A is
equal to both the segmented reserve and the unitary reserve.
(2) This subsection shall apply to any policy for
which the guaranteed gross premium at any duration is less
than the corresponding modified net premium calculated by
the method used in determining the basic reserves, but using
the minimum valuation standards of mortality (specified in
Section 5B) and rate of interest.
(3) Deficiency reserves, if any, shall be calculated
for each policy as the excess if greater than zero, for the
current and all remaining periods, of the quantity A over the
basic reserve, where A is obtained as indicated in Section
5B.
(4) For deficiency reserves determined on a
segmented basis, the quantity A is determined using segment
lengths equal to those determined for segmented basic
reserves.
C. Minimum Value
Basic reserves may not be less than the tabular cost
of insurance for the balance of the policy year, if mean
reserves are used. Basic reserves may not be less than the
tabular cost of insurance for the balance of the current modal
period or to the paid-to-date, if later, but not beyond the next
policy anniversary, if mid-terminal reserves are used. The
tabular cost of insurance shall use the same valuation
mortality table and interest rates as that used for the
calculation of the segmented reserves. However, if select
mortality factors are used, they shall be the ten-year select
factors incorporated into the 1980 amendments of the NAIC
Standard Valuation Law. In no case may total reserves
(including basic reserves, deficiency reserves and any
reserves held for supplemental benefits that would expire
upon contract termination) be less than the amount that the
policy owner would receive (including the cash surrender
value of the supplemental benefits, if any, referred to above),
exclusive of any deduction for policy loans, upon
termination of the policy.
D. Unusual Pattern of Guaranteed Cash Surrender
Values
(1) For any policy with an unusual pattern of
guaranteed cash surrender values, the reserves actually held
prior to the first unusual guaranteed cash surrender value
shall not be less than the reserves calculated by treating the
first unusual guaranteed cash surrender value as a pure
endowment and treating the policy as an n year policy
providing term insurance plus a pure endowment equal to the
unusual cash surrender value, where n is the number of years
from the date of issue to the date the unusual cash surrender
value is scheduled.
(2) The reserves actually held subsequent to any
unusual guaranteed cash surrender value shall not be less
than the reserves calculated by treating the policy as an n
year policy providing term insurance plus a pure endowment
equal to the next unusual guaranteed cash surrender value,
and treating any unusual guaranteed cash surrender value at
the end of the prior segment as a net single premium, where
(a) n is the number of years from the date of
the last unusual guaranteed cash surrender value prior to the
valuation date to the earlier of:
(i) The date of the next unusual
guaranteed cash surrender value, if any, that is scheduled
after the valuation date; or
(ii) The mandatory expiration date of the
policy; and
(b) The net premium for a given year during
the n year period is equal to the product of the net to gross
ratio and the respective gross premium; and
(c) The net to gross ratio is equal to Item (i)
divided by Item (ii) as follows:
(i) The present value, at the beginning of
the n year period, of death benefits payable during the n year
period plus the present value, at the beginning of the n year
period, of the next unusual guaranteed cash surrender value,
if any, minus the amount of the last unusual guaranteed cash
surrender value, if any, scheduled at the beginning of the n
year period.
(ii) The present value, at the beginning of
the n year period, of the scheduled gross premiums payable
during the n year period.
(3) For purposes of this subsection, a policy is
considered to have an unusual pattern of guaranteed cash
surrender values if any future guaranteed cash surrender
value exceeds the prior year's guaranteed cash surrender
value by more than the sum of:
(a) One hundred ten percent (110%) of the
scheduled gross premium for that year;
(b) One hundred ten percent (110%) of one
year's accrued interest on the sum of the prior year's
guaranteed cash surrender value and the scheduled gross
premium using the nonforfeiture interest rate used for
calculating policy guaranteed cash surrender values; and
(c) Five percent (5%) of the first policy year
surrender charge, if any.
E. Optional Exemption for Yearly Renewable Term
Reinsurance. At the option of the company, the following
approach for reserves on YRT reinsurance may be used:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1476 FINAL REGULATIONS
(1) Calculate the valuation net premium for each
future policy year as the tabular cost of insurance for that
future year.
(2) Basic reserves shall never be less than the
tabular cost of insurance for the appropriate period, as
defined in Subsection C.
(3) Deficiency reserves.
(a) For each policy year, calculate the excess,
if greater than zero, of the valuation net premium over the
respective maximum guaranteed gross premium.
(b) Deficiency reserves shall never be less than
the sum of the present values, at the date of valuation, of the
excesses determined in accordance with Subparagraph (a)
above.
(4) For purposes of this subsection, the calculations
use the maximum valuation interest rate and the 1980 CSO
mortality tables with or without ten-year select mortality
factors, or any other table adopted after the effective date of
this regulation by the NAIC and promulgated by regulation
by the commissioner for this purpose.
(5) A reinsurance agreement shall be considered
YRT reinsurance for purposes of this subsection if only the
mortality risk is reinsured.
(6) If the assuming company chooses this optional
exemption, the ceding company's reinsurance reserve credit
shall be limited to the amount of reserve held by the
assuming company for the affected policies.
F. Optional Exemption for Attained-Age-Based Yearly
Renewable Term Life Insurance Policies. At the option of
the company, the following approach for reserves for
attained-age-based YRT life insurance policies may be used:
(1) Calculate the valuation net premium for each
future policy year as the tabular cost of insurance for that
future year.
(2) Basic reserves shall never be less than the
tabular cost of insurance for the appropriate period, as
defined in Subsection 6C.
(3) Deficiency reserves.
(a) For each policy year, calculate the excess,
if greater than zero, of the valuation net premium over the
respective maximum guaranteed gross premium.
(b) Deficiency reserves shall never be less than
the sum of the present values, at the date of valuation, of the
excesses determined in accordance with Subparagraph (a)
above.
(4) For purposes of this subsection, the calculations
use the maximum valuation interest rate and the 1980 CSO
valuation tables with or without ten-year select mortality
factors, or any other table adopted after the effective date of
this regulation by the NAIC and promulgated by regulation
by the commissioner for this purpose.
(5) A policy shall be considered an
attained-age-based YRT life insurance policy for purposes of
this subsection if:
(a) The premium rates (on both the initial
current premium scale and the guaranteed maximum
premium scale) are based upon the attained age of the
insured such that the rate for any given policy at a given
attained age of the insured is independent of the year the
policy was issued; and
(b) The premium rates (on both the initial
current premium scale and the guaranteed maximum
premium scale) are the same as the premium rates for
policies covering all insureds of the same sex, risk class, plan
of insurance and attained age.
(6) For policies that become attained-age-based
YRT policies after an initial period of coverage, the
approach of this subsection may be used after the initial
period if:
(a) The initial period is constant for all
insureds of the same sex, risk class and plan of insurance; or
(b) The initial period runs to a common
attained age for all insureds of the same sex, risk class and
plan of insurance; and
(c) After the initial period of coverage, the
policy meets the conditions of Paragraph (5) above.
(7) If this election is made, this approach shall be
applied in determining reserves for all attained-age-based
YRT life insurance policies issued on or after the effective
date of this regulation.
G. Exemption from Unitary Reserves for Certain
n-Year Renewable Term Life Insurance Polices. Unitary
basic reserves and unitary deficiency reserves need not be
calculated for a policy if the following conditions are met:
(1) The policy consists of a series of n-year
periods, including the first period and all renewal periods,
where n is the same for each period, except that for the final
renewal period, n may be truncated or extended to reach the
expiry age, provided that this final renewal period is less
than 10 years and less than twice the size of the earlier n-year
periods, and for each period, the premium rates on both the
initial current premium scale and the guaranteed maximum
premium scale are level;
(2) The guaranteed gross premiums in all n-year
periods are not less than the corresponding net premiums
based upon the 1980 CSO Table with or without the ten-year
select mortality factors; and
(3) There are no cash surrender values in any policy year.
H. Exemption from Unitary Reserves for Certain
Juvenile Policies
Unitary basic reserves and unitary deficiency
reserves need not be calculated for a policy if the following
conditions are met, based upon the initial current premium
scale at issue:
(1) At issue, the insured is age twenty-four (24) or
younger;
(2) Until the insured reaches the end of the juvenile
period, which shall occur at or before age twenty-five (25),
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1477
the gross premiums and death benefits are level, and there
are no cash surrender values; and
(3) After the end of the juvenile period, gross
premiums are level for the remainder of the premium paying
period, and death benefits are level for the remainder of the
life of the policy.
Section 7. Calculation of Minimum Valuation Standard
for Flexible Premium and Fixed Premium Universal Life
Insurance Policies That Contain Provisions Resulting in
the Ability of a Policy owner to Keep a Policy in Force
Over a Secondary Guarantee Period
A. General
(1) Policies with a secondary guarantee include:
(a) A policy with a guarantee that the policy
will remain in force at the original schedule of benefits,
subject only to the payment of specified premiums;
(b) A policy in which the minimum premium
at any duration is less than the corresponding one year
valuation premium, calculated using the maximum valuation
interest rate and the 1980 CSO valuation tables with or
without ten-year select mortality factors, or any other table
adopted after the effective date of this regulation by the
NAIC and promulgated by regulation by the commissioner
for this purpose; or
(c) A policy with any combination of
Subparagraph (a) and (b).
(2) A secondary guarantee period is the period for
which the policy is guaranteed to remain in force subject
only to a secondary guarantee. When a policy contains more
than one secondary guarantee, the minimum reserve shall be
the greatest of the respective minimum reserves at that
valuation date of each unexpired secondary guarantee,
ignoring all other secondary guarantees. Secondary
guarantees that are unilaterally changed by the insurer after
issue shall be considered to have been made at issue.
Reserves described in Subsections B and C below shall be
recalculated from issue to reflect these changes.
(3) Specified premiums mean the premiums
specified in the policy, the payment of which guarantees that
the policy will remain in force at the original schedule of
benefits, but which otherwise would be insufficient to keep
the policy in force in the absence of the guarantee if
maximum mortality and expense charges and minimum
interest credits were made and any applicable surrender
charges were assessed.
(4) For purposes of this section, the minimum
premium for any policy year is the premium that, when paid
into a policy with a zero account value at the beginning of
the policy year, produces a zero account value at the end of
the policy year. The minimum premium calculation shall
use the policy cost factors (including mortality charges,
loads and expense charges) and the interest crediting rate,
which are all guaranteed at issue.
(5) The one-year valuation premium means the net
one-year premium based upon the original schedule of
benefits for a given policy year. The one-year valuation
premiums for all policy years are calculated at issue. The
select mortality factors defined in Section 5B(2), (3), and (4)
may not be used to calculate the one-year valuation
premiums.
(6) The one-year valuation premium should reflect
the frequency of fund processing, as well as the distribution
of deaths assumption employed in the calculation of the
monthly mortality charges to the fund.
B. Basic reserves for the secondary guarantees shall be the
segmented reserves for the secondary guarantee period. In
calculating the segments and the segmented reserves, the
gross premiums shall be set equal to the specified premiums,
if any, or otherwise to the minimum premiums, that keep the
policy in force and the segments will be determined
according to the contract segmentation method as defined in
Section 4B.
C. Deficiency reserves, if any, for the secondary
guarantees shall be calculated for the secondary guarantee
period in the same manner as described in Section 6B with
gross premiums set equal to the specified premiums, if any,
or otherwise to the minimum premiums that keep the policy
in force.
D. The minimum reserves during the secondary
guarantee period are the greater of:
(1) The basic reserves for the secondary guarantee
plus the deficiency reserve, if any, for the secondary
guarantees; or
(2) The minimum reserves required by other rules
or regulations governing universal life plans.
Section 8. Effective Date
This regulation shall become [effective ten days after
publication in the Register of Regulations.][on January
15, 2002]
* PLEASE NOTE: DUE TO SPACE CONSTRAINTS THE
TABLES IN APPENDIX A ARE NOT BEING REPRODUCED
HERE. THEY ARE AVAILABLE UPON REQUEST FROM THE
REGISTRAR'S OFFICE.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1478 FINAL REGULATIONS
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Air Quality Management Section
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-0048
RE:Regulation 24 Proposals:
Amendment to Section 2 - Definitions
Amendment to Section 26 - Stage I Vapor Recovery
Amendment to Section 36 - Stage II Vapor Recovery
Date of Issuance: November 30, 2001
Effective Date of the Amendment: January 11, 2002
I. Background
On Monday, September 24, 2001, a public hearing was
held in the Richardson and Robbins Building Auditorium of
DNREC in Dover to receive comment on the proposed
adoption of the following sections of Regulation 24 (Control
of Volatile Organic Compounds Emissions): Section 2 -
Definitions; Section 26 - Stage I vapor Recovery; and
Section 36 - Stage II Vapor Recovery. The Department is
proposing these regulations to aid Delaware in attaining
compliance with the ground-level ozone standard set by the
Environmental Protection Agency (EPA).
No one from the public attended this public hearing,
however, there were written comments received by the
Department prior to the close of the public record from
Frederick M. Anderson, Issues Advisor at ExxonMobil
Refining and Supply, regarding the proposed adoption of
Regulation 24 - Section 36. The Department provided a
formal response document to the Hearing Officer with
respect to Mr. Anderson's written comments in this matter.
No other comments were received by the Department with
respect to the proposed amendments to either Section 2 or
Section 26 of Regulation No. 24. Proper notice of the
hearing was provided as required by law.
After the hearing, the Department performed an evaluation
of the evidence entered into the record in this matter.
Thereafter, the Hearing Officer prepared his report and
recommendation in the form of a Hearing Officer's Report to
the Secretary dated November 27, 2001, and that report is
expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed adoption of Regulation No. 24, Sections 2, 26 and
36, and has given careful and serious consideration to the
written comments provided by ExxonMobil with respect to
this issue.
III. Order
It is hereby ordered that the proposed adoption of
Regulation No. 24, Sections 2, 26, and 36, be promulgated in
final form in accordance with the customary and established
rule-making procedure required by law.
IV. Reasons
The adoption of Regulation 24, Sections 2, 26, and 36,
will aid the State of Delaware in attaining compliance with
the ground-level ozone standard set by the Environmental
Protection Agency (EPA), and will assist the Department in
furtherance of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
REGULATION 24
CONTROL OF VOLATILE ORGANIC COMPOUND
EMISSIONS
Section 2 - Definitions.
[xx/xx/01][1/11/02]
For the purpose of this regulation, the following definitions
apply:
a. "Actual emissions" means the quantity VOCs
emitted from a source during a particular time period.
b. "As applied" means including any dilution
solvents added before application of the coating.
c. "Basecoat" means a pigmented topcoat that is the
first coat applied as part of a multistage topcoat system.
d. "Bulk gasoline plant" means a gasoline storage
and distribution facility with an average daily throughput of
76,000 liters (L) (20,000 gallons [gal]) of gasoline or less on
a monthly average.
e. "Bulk gasoline terminal" means a gasoline
storage facility that receives gasoline from refineries,
delivers gasoline to bulk gasoline plants or to commercial or
retail accounts, and has a daily throughput of more than
76,000 L (20,000 gal) of gasoline on a monthly average.
f. "Capture efficiency" means the weight per unit
time of VOC entering a capture system and delivered to a
control device divided by the weight per unit time of total
VOC generated by a source of VOC, expressed as a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1479
percentage.
g. "Capture system" means all equipment (including,
but not limited to, hoods, ducts, fans, booths, ovens, dryers,
etc.) that contains, collects, and transports an air pollutant to
a control device.
h. "Carbon absorber" means an add-on control
device that uses activated carbon to absorb VOCs from a gas
stream.
i. "Carbon adsorption system" means a carbon
adsorber with an inlet and outlet for exhaust gases and a
system to regenerate the saturated adsorbent.
j. "Clearcoat" means a topcoat that contains no
pigments or only transparent pigments and that is the final
coat applied as part of a multistage topcoat system.
k. "Coating" means a material applied onto or
impregnated into a substrate for protective, decorative, or
functional purposes. Such materials include, but are not
limited to, paints, varnishes, sealants, adhesives, inks,
maskants, and temporary protective coatings.
l. "Coating unit" means a series of one or more
coating applicators and any associated drying area and/or
oven wherein a coating is applied, dried, and/or cured. A
coating unit ends at the point where the coating is dried or
cured, or prior to any subsequent application of a different
coating. It is not necessary to have an oven or a flashoff area
in order to be included in this definition.
m. "Continuous vapor control system" means a
vapor control system that treats vapors displaced from tanks
during filling on a demand basis without intermediate
accumulation.
n. "Control device" means equipment (such as an
incinerator or carbon adsorber) used to reduce, by
destruction or removal, the amount of air pollutant(s) in an
air stream prior to discharge to the ambient air.
o. "Control system" means a combination of one or
more capture system(s) and control device(s) working in
concert to reduce discharges of pollutants to the ambient air.
p. "Day" means a period of 24 consecutive hours
beginning at midnight local time, or beginning at a time
consistent with a facility's operating schedule.
q. "Destruction or removal efficiency" means the
amount of VOC destroyed or removed by a control device
expressed as a percent of the total amount of VOC entering
the device.
r. "Double block-and-bleed system" means two
block valves connected in series with a bleed valve or line
that can vent the line between the two block valves.
s. "Exempt compounds," means any of the
compounds listed in Regulation 1, Section 2 - Definitions,
"Volatile Organic Compounds," which have been
determined to have negligible photochemical reactivity.
For determining compliance with emission limits,
VOCs will be measured according to the procedures in
Methods 25 and 25A of Appendix A of 40 CFR, Part 60, and
the procedures and equations in '60.755. Where such a
method also measures compounds with negligible
photochemical reactivity, an owner or operator may exclude
these negligibly-reactive compounds when determining
compliance with an emission standard. However, the
Department may require such owner or operator, as a
precondition to excluding these compounds for purposes of
determining compliance, to provide monitoring methods and
monitoring results demonstrating, to the satisfaction of the
Department, the amount of negligibly-reactive compounds
in the sources emissions.
In addition to the procedures for requesting a
satisfactory compliance determination, where the
Department proposes to allow the use of a test method for
excluding negligibly-reactive compounds that is different or
not specified in the approved SIP, such change shall be
submitted to the U.S. EPA for approval as part of a SIP
revision.
t. "External floating roof" means a cover over an
open-top storage tank consisting of a double deck or pontoon
single deck that rests upon and is supported by the volatile
organic liquid being contained and is equipped with a
closure seal or seals to close the space between the roof edge
and tank shell.
u. "Facility" means all of the pollutant-emitting
activities, excluding pollutant-emitting activities from
mobile sources, that are located on one (1) or more
contiguous or adjacent properties, and are under the control
of the same person (or person under common control).
v. "First attempt at repair" means to take rapid
action for the purpose of stopping or reducing leakage of
organic material to the atmosphere using best practices.
w. "Flashoff area" means the space between the
coating application area and the oven.
x. "Gasoline tank truck" means a delivery tank truck
used at bulk gasoline plants, bulk gasoline terminals, or
gasoline dispensing facilities that is loading or unloading
gasoline or that has loaded or unloaded gasoline on the
immediately previous load.
y. "Gloss flattener" means a low-gloss coating that is
formulated to eliminate glare on the interior surfaces of a
vehicle for safety purposes, as specified under the U.S.
Department of Transportation Motor Vehicle Safety
Standards.
z. "Heavy-duty truck" means any motor vehicle
rated at greater than 3,864 kg (8,500 lb) gross weight
designed primarily to transport property.
aa. "Incinerator" means a combustion apparatus in
which solid, semisolid, liquid, or gaseous combustible
wastes are ignited and burned and from which the solid and
gaseous residues contain little or no combustible material.
bb. "Intermittent vapor control system" means a
vapor control system that employs an intermediate vapor
holder to accumulate vapors displaced from tanks during
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1480 FINAL REGULATIONS
filling. The control device treats the accumulated vapors
only during automatically controlled cycles.
cc. "Internal Floating Roof" means a cover or roof in
a fixed-roof tank that rests upon or is floated upon, the liquid
being contained, and is equipped with a closure seal or seals
to close the space between the roof edge and the tank shell.
dd. "Knife coating" means the application of a coating
material to a substrate by means of drawing the substrate
beneath a knife that spreads the coating evenly over the full
width of the substrate.
ee. "Leak" means a VOC emission indicated by an
instrument calibrated according to Method 21 of 40 CFR,
Part 60, Appendix A, using zero air (less than 10 parts per
million [ppm] of hydrocarbon in air) and a mixture of
methane or n-hexane and air at a concentration of about, but
less than, 10,000 ppm methane or n-hexane.
ff. "Lease custody transfer" means the transfer of
produced crude oil or condensate, after processing and/or
treating in the producing operations, from storage tanks or
automatic transfer facilities to pipelines or any other forms
of transportation.
gg. "Liquid-mounted seal" means a primary seal
mounted in continuous contact with the liquid between the
tank wall and the floating roof around the circumference of
the tank.
hh. "Loading rack" means an aggregation or
combination of gasoline loading equipment arranged so that
all loading outlets in the combination can be connected to a
tank truck or trailer parked in a specified loading space.
ii. "Lower explosive limit" (LEL) means the
concentration of a compound in air below which a flame will
not propagate if the mixture is ignited.
jj. "Maximum theoretical emissions" means the
quantity of VOC that theoretically could be emitted by a
source without control devices based on the design capacity
or maximum production capacity of the source and 8,760
hours of operation per year. The design capacity or
maximum production capacity includes use of coatings and
inks with the highest VOC content used in practice by the
source for the 2 preceding years.
kk. "Maximum true vapor pressure" means the
equilibrium partial pressure exerted by a stored liquid at the
temperature equal to:
1. for liquids stored above or below the ambient
temperature, the highest calendar-month average of the
liquid storage temperature, or,
2. for liquids stored at the ambient temperature,
the local maximum monthly average temperature as reported
by the National Weather Service. This pressure shall be
determined by one of the following:
i. In accordance with methods described in
American Petroleum Institute Bulletin 2517, "Evaporation
Loss From External Floating Roof Tanks."
ii. By using standard reference texts.
iii. By ASTM D2879-83.
iv. By any other method approved by the
Department as part of the State Implementation Plan (SIP)
Revision.
ll. "Multicomponent coating" means a coating
which is packaged in two or more parts, which parts are
combined before application, and where a coreactant from
one part of the coating chemically reacts, at ambient
conditions, with a coreactant from another part of the
coating.
mm."Open-ended valve or line" means any valve,
except safety relief valves, having one side of the valve seat
in contact with process fluid and one side open to the
atmosphere, either directly or through open piping.
nn. "Organic compound" means any carboncontaining
chemical compound excluding carbon monoxide,
carbon dioxide, carbonic acid, metallic carbides or
carbonates, and ammonium carbonate.
oo. "Oven" means a chamber which is used to bake,
cure, polymerize, and/or dry a coating.
pp. "Overall emission reduction efficiency" means
the weight per unit time of VOC removed or destroyed by a
control device divided by the weight per unit time of VOC
generated by a source, expressed as a percentage. The
overall emission reduction efficiency can also be calculated
as the product of the capture efficiency and the control
device destruction or removal efficiency.
qq. "Owner or Operator" means any person who
owns, leases, controls, operates or supervises a facility, a
source, or air pollution control or monitoring equipment.
rr. "Person" means any individual, partnership,
copartnership, firm, company, corporation, association, joint
stock company, trust, estate, political subdivision, or any
other legal entity, or their legal representative, agent, or
assigns.
ss. "Petroleum" means the crude oil removed from
the earth and the oils derived from tar sands, shale and coal.
tt. "Petroleum Liquid" means petroleum condensate,
and any finished or intermediate products manufactured in a
petroleum refinery.
uu. "Plastisol" means a coating made of a mixture of
finely divided resin and a plasticizer. Plastisol is applied as a
thick gel that solidifies when heated.
vv. "Press-Ready Ink" means the ink, as applied to
the substrate, after all solvents and diluents have been added.
ww. "Pressure release" means the emission of
materials resulting from system pressure being greater than
set pressure of the pressure relief device.
xx. "Primer" means any coating applied prior to the
application of a topcoat or color coat for the purposes of
surface preparation, corrosion resistance, adhesion, and
color uniformity.
yy. "Process unit shutdown" means a work practice
or operational procedure that stops production from a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1481
process unit or part of a process unit. An unscheduled work
practice or operational procedure that stops production from
a process unit or part of a process unit for less than 24 hours
is not a process unit shutdown. The use of spare equipment
and technically feasible bypassing of equipment without
stopping production are not process unit shutdowns.
zz. "Reid vapor pressure" means the absolute vapor
pressure of volatile crude oil and volatile nonviscous
petroleum liquids, except liquified petroleum gases, as
determined by ASTM D323-82.
aaa. "Repaired" means that equipment is adjusted,
or otherwise altered, in order to eliminate a leak as indicated
by one of the following: an instrument reading of 10,000
ppm or greater, indication of liquids dripping, or indication
by a sensor that a seal or barrier fluid system has failed.
bbb. "Roll coating" means the application of a
coating material to a moving substrate by means of hard
rubber, elastomeric, or metal rolls.
ccc. "Rotogravure coating" means the application
of a coating material to a substrate by means of a roll coating
technique in which the pattern to be applied is recessed
relative to the non-image area, and the coating material is
picked up in these recessed areas and is transferred to the
substrate.
ddd. "Shutdown" means the cessation of operation
of a facility or of its emission control or emission monitoring
equipment.
eee. "Source" means any building, structure,
equipment (excluding mobile equipment temporarily in
place), or installation that directly or indirectly releases or
discharges, or has the potential to release or discharge,
VOCs into the atmosphere.
fff. "Stage I Vapor Recovery System" means the
control of gasoline vapor from any delivery vessel into any
stationary storage vessel, where the vapor displaced by the
liquid gasoline is returned to the delivery vessel and
transported to the refinery.
ggg. "Stage II Vapor Recovery System" means
the a system that controls the emissions of gasoline vapor at
the vehicle fill-pipe, where the vapor is captured and
returned to a vapor-tight storage tank, or is destroyed; which
achieves an overall control efficiency of at least 95% by
incineration.
hhh. "Standard conditions" means a temperature
of 20 C (68 F) and pressure of 760 mm Hg (29.92 in. Hg).
iii. "Startup" means the setting in operation of a
source or of its emission control or emission monitoring
equipment.
jjj. "Storage Vessel" means each tank, reservoir or
container used for the storage of Volatile Organic Liquids,
but does not include:
1. Frames, housing, auxiliary supports or other
components that are not directly involved in the containment
of liquids or vapors; or
2. Subsurface caverns or porous rock reservoirs.
kkk. "Submerged fill" means the method of filling
a delivery vessel or storage vessel where product enters
within 150 millimeters (mm) (5.9 inches [in.]) of the bottom
of the delivery or storage vessel. Bottom filling of delivery
and storage vessels is included in this definition.
lll. "Substrate" means the surface onto which a
coating is applied or into which a coating is impregnated.
mmm. "Throughput" means the amount of gasoline
dispensed at a gasoline dispensing facility during a calendar
month after November 15, 1990.
mmm. nnn. "Transfer efficiency" means the ratio of
the amount of coating solids adhering to the object being
coated to the total amount of coating solids used in the
application process, expressed as a percentage.
nnn. ooo. "Vapor collection system" means all
piping, seals, hoses, connections, pressure-vacuum vents,
and other equipment between the gasoline tank truck and the
vapor processing unit and/or the storage tanks and vapor
holder.
ooo. ppp. "Vapor control system" means a system
that limits or prevents release to the atmosphere of organic
compounds in the vapors displaced from a tank during the
transfer of gasoline.
ppp. qqq. "Vapor-mounted seal" means a primary
seal mounted so there is an annular vapor space underneath
the seal. The annular vapor space is bounded by the bottom
of the primary seal, the tank wall, the liquid surface and the
floating roof.
qqq. rrr. "Vapor recovery system" means a vaporgathering
system capable of collecting VOC vapors and
gases emitted during the operation of any transfer, storage,
or process equipment.
rrr. sss. "Vapor-tight" means equipment that allows no loss
of vapors. Compliance with vapor-tight requirements can be
determined by checking to ensure that the concentration at a
potential leak source is not equal to or greater than 100 percent of
the LEL when measured with a combustible gas detector,
calibrated with propane, at a distance of 2.54 centimeters
(cm) (1 in.)from the source.
sss. ttt. "Vapor-tight gasoline tank truck" means a
gasoline tank truck that has demonstrated within the 12
preceding months that its product delivery tank will sustain a
pressure change of not more than 75 mm (3.0 in.) of water
within 5 minutes (min) after it is pressurized to 450 mm (18
in.) of water; or when evacuated to 150 mm (5.9 in.) of
water, the same tank will sustain a pressure change of not
more than 75 mm (3.0 in.) of water within 5 min. This
capability is to be demonstrated using the test procedures
specified in Method 27 of Appendix A of 40 CFR, Part 60
(July 1, 1992).
ttt. uuu. "Volatile Organic Liquid" (VOL) means any
organic liquid which can emit any Volatile Organic
Compound into the atmosphere (see definition of "Volatile
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1482 FINAL REGULATIONS
Organic Compound").
uuu. vvv. "Volatile Organic Compound" (VOC)
means any carbon-containing compound excluding carbon
monoxide, carbon dioxide, carbonic acid, metallic carbides
or carbonates and ammonium carbonate, which participates
in atmospheric photochemical reactions. This includes any
organic compounds other than those defined as "Exempt
Compounds", which have been determined to have
negligible photochemical reactivity (see definition of
"Exempt Compounds"). In addition to the procedures for
requesting a satisfactory compliance demonstration, where
the Department proposes to allow the use of a test method
for excluding negligibly reactive compounds that is different
from or not specified in the approved SIP, such change shall
be submitted to the Environmental Protection Agency (U.S.
EPA) for approval as part of a SIP Revision.
vvv. www. "Web coating line" means all of the
coating applicator(s), drying area(s), or oven(s), located
between an unwind station and a rewind station, that are
used to apply coating onto a continuous strip of substrate
(the web). A web coating line need not have a drying oven.
Section 26 - Gasoline Dispensing Facility
Stage I Vapor Recovery
1/11/93
[xx/xx/01][1/11/02]
a. Applicability.
1. This Section applies to the control of gasoline
vapors at a gasoline dispensing facility from any delivery
vessel into any stationary storage vessel, where the vapors
displaced by the liquid gasoline are retrieved to the delivery
vessel and transported back to the refinery. This will include
all three (3) counties.
2. The following are subject only to paragraph
(c)(1)(i) of this Section:
i. Any transfer made to a gasoline dispensing
facility storage tank that is equipped with a floating roof or
its equivalent that has been approved by the Administrator of
the U.S. EPA as part of a State Implementation Plan (SIP) or
Federal Implementation Plan (FIP) revision.
ii. Any stationary gasoline storage tank with a
capacity that is less than 2,080 liters (L) (550 gallons [gal])
that is used exclusively for the fueling of implements of
husbandry.
iii. Any stationary gasoline storage tank with a
capacity of less than 7,600 L (2,000 gal) that was constructed
prior to January 1, 1979.
iv. Any stationary gasoline storage tank with a
capacity of less than 950 L (250 gal) that was constructed
after December 31, 1978.
3. Any gasoline dispensing facility having a monthly
throughput of less than 38,000 L (10,000 gallons) is subject
only to the provisions of paragraphs (c)(1)(i) and (d) of this
Section. Any gasoline dispensing facility that ever exceeds
this applicability threshold for any calendar month shall be
subject to all of the provisions of this Section, and shall
remain subject to these provisions even if its throughput later
falls below the threshold.
b. Compliance Schedule.
1. Facilities for which construction begins after
November 15, 1990 shall be in compliance no later than May
15, 1993.
2. Facilities installed before November 15, 1990 and
having a monthly throughput of at least 100,000 gallons in
any calendar month shall be in compliance no later than
November 15, 1993.
3. Facilities installed before November 15, 1990 and
having a monthly throughput of greater than 10,000 gallons
but less than 100,000 gallons in any calendar month shall be
in compliance no later than November 15, 1994.
c. Standards.
1. The owner or operator of each gasoline dispensing
facility subject to this Section shall comply with the
following requirements:
i. All gasoline storage tanks at gasoline
dispensing facilities shall be loaded by submerged fill.
ii. All gasoline vapor lines on the storage tank
shall be equipped with closures that seal upon disconnect.
iii. A vapor balance system shall be installed with
a vapor-tight line from the gasoline storage tank to the
gasoline tank truck. The system shall be designed such that
the gauge pressure in the gasoline tank truck does not exceed
450 millimeters (mm) (18 inches [in.]) of water pressure or
150 mm (5.9 in.) of water vacuum during product transfer.
iv. If a gauge well separate from the fill tube is
used, it shall be provided with a submerged drop tube that
extends to within 150 mm (5.9 in.) of the gasoline storage
vessel bottom of the tank.
v. Liquid fill connections for all systems shall be
equipped with vapor tight caps.
2. The owner or operator of a gasoline tank truck shall
not unload gasoline to a gasoline storage tank at a gasoline
dispensing facility subject to this Section unless the
following conditions are met:
i. All hoses in the vapor balance system are
properly connected.
ii. The adapters or couplers that attach to the
vapor line on the underground storage vessel have closures
that seal upon disconnect.
iii. All vapor return hoses, couplers, and adapters
used in the gasoline delivery are vapor-tight.
iv. All tank truck vapor return equipment is
compatible with the vapor balance equipment installed on
the gasoline dispensing facility storage tank.
v. All hatches on the gasoline tank truck are
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1483
closed and securely fastened.
vi. The filling of storage tanks at gasoline
dispensing facilities is limited to unloading by vapor-tight
gasoline tank trucks. Documentation that the gasoline tank
truck has met the specifications of Method 27 of 40 CFR,
Part 60, Appendix A (July 1, 1992), shall be carried on the
tank truck. This documentation shall include all of the
information required under 40 CFR 60.505 (July 1, 1992). In
addition, test results shall be included for both the pressure
and vacuum tests.
d. Recordkeeping. The owner or operator of each gasoline
dispensing facility subject to this Section shall maintain
daily records showing the quantity of all gasoline delivered
to the site. These records shall be retained for at least 5 years
in a readily accessible location and shall be made available
to the Department immediately upon verbal or written
request.
e. Reporting. The owner or operator of any facility
containing sources subject to this Section shall comply with
the requirements in Section 5 of this regulation.
a. Applicability.
1. This Section applies to any stationary gasoline
storage tank located at any gasoline dispensing facility in the
State of Delaware, except:
i. The following storage tanks shall be subject
only to the requirements of paragraph (c)(1)(i) of this
Section:
A. Any stationary gasoline storage tank that
is equipped with a floating roof or its equivalent that has
been approved by the Administrator of the U.S. EPA as part
of a State Implementation Plan (SIP) or Federal
Implementation Plan (FIP) revision.
B. Any stationary gasoline storage tank with
a capacity of less than 550 gallons [gal] used exclusively for
the fueling of farm equipment.
C. Any stationary gasoline storage tank with
a capacity of less than 2,000 gal that was constructed prior to
January 1, 1979.
D. Any stationary gasoline storage tank with
a capacity of less than 250 gal that was constructed after
December 31, 1978.
ii. The storage tank(s) at any gasoline dispensing
facility, which never has a throughput of greater than 10,000
gallons of gasoline, shall be subject only to the requirements
of paragraphs (c)(1)(i) and (d) of this Section. The storage
tank(s) at any gasoline dispensing facility that ever exceeds
this applicability threshold shall be subject to all of the
requirements of this Section, and shall remain subject to
these requirements even if its throughput later falls below the
exemption throughput.
2. The requirements of this Section are in addition to all
other State and Federal requirements, to include the permitting
requirements of Regulation No. 2 of the State of Delaware
"Regulations Governing the Control of Air Pollution". Any
gasoline dispensing facility that is currently subject to any state or
federal rule promulgated pursuant to the Clean Air Act
Amendments of 1977 by exceeding an applicability threshold is and
shall remain subject to those provisions.
3. Compliance Schedule
Any stationary gasoline storage tank subject to the
requirements of this Section shall be in compliance as
follows:
i. Storage tanks located at any facility that first
commences operations:
A. Before November 15, 1990 and having
any throughput of at least 100,000 gallons: no later than
November 15, 1993.
B. Before November 15, 1990 and having
any throughput of greater than 10,000 gallons but less than
100,000 gallons: no later than November 15, 1994.
C. On or after November 15, 1990 and before
May 15, 1993: no later than May 15, 1993.
D. On or after May 15, 1993: upon
commencement of operations.
ii. The requirements of paragraph(c)(1)(ii)(E) are
effective on and after May 1, 2003.
b. Reserved.
c. Standards.
1. The owner and/or operator of any stationary storage
tank that is subject to the requirements of this Section shall:
i. Load the stationary gasoline storage tank(s)by
submerged fill using a drop tube that extends to within 150
mm (5.9 in.) from the bottom of the tank.
ii. Design, install, operate, and maintain a Stage I
Vapor Recovery System that operates such that the vapors
displaced by the liquid gasoline are returned to the delivery
vessel and transported back to the bulk plant or terminal.
A. All hoses in the Stage I Vapor Recovery
system shall be properly connected.
B. All vapor lines, couplers, and adapters
used in the gasoline delivery shall be vapor-tight.
C. All adapters and couplers that attach to
any vapor line on the storage vessel shall have closures that
seal upon disconnect.
D. Reserved.
E. All Stage I systems shall utilize dual point
vapor connections to return vapors from the storage tank to
the delivery truck.
2. The filling of storage tanks subject to the
requirements of this Section shall be limited to unloading by
vapor-tight gasoline tank trucks or delivery trucks which:
i. meet all of the requirements of Section 27 of
this regulation; and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1484 FINAL REGULATIONS
ii. are equipped with vapor return equipment that
is compatible with the Stage I Vapor Recovery System
installed on the storage tank.
d. Recordkeeping. The owner and/or operator of any
stationary gasoline storage tank exempted from the
requirements of this Section pursuant to paragraph (a)(1)(ii)
of this section shall keep on the facility premises and in a
form acceptable to the Department, records showing
monthly throughput. These records shall be retained for at
least 5 years from the date of record, and shall be made
immediately available to the Department upon request.
e. Reporting. The owner and/or operator of any facility
containing sources subject to this Section shall comply with
the requirements of Section 5 of this regulation.
Section 36 - Stage II Vapor Recovery.
1/11/93
[xx/xx/01][1/11/02]
a. Applicability. This section applies to the control of
gasoline vapors at the vehicle fill-pipe during refueling
operations, and at a gasoline dispensing facility. The vapors
are captured and returned to a vapor-tight underground
storage tank, or destroyed. These systems must be installed
at affected facilities in all three Delaware counties: New
Castle, Kent, and Sussex. Refer to the compliance schedule
in part d. for county-specific schedules. All applicable
facilities shall comply with the operation, maintenance and
testing requirements of this Section, and with Appendix "J"
and its subparts.
b. Definitions
"Stage II Vapor Recovery System" means the control of
gasoline vapor at the vehicle fill-pipe, where the vapors are
captured and returned to a vapor-tight underground storage
tank, or destroyed.
"Throughput" means the amount of gasoline dispensed
at a gasoline dispensing facility during a calendar month
after November 15, 1990.
"Certified STAGE II Vapor Recovery System" means
any system certified by the California Air Resources Board
as having a vapor recovery or removal efficiency of at least
95%, and approved by the Department.
"Defective Equipment" means any absence,
disconnection, or malfunctioning of a Stage II vapor
recovery system component which is required by this rule
including, but not limited to, the following:
1. A vapor return line that is crimped, flattened,
blocked, or that has any hole or slit that allows vapors to leak
out.
2. A nozzle bellows that has any hole large
enough to allow a 1/4 inch diameter cylindrical rod to pass
through it or any slit one inch or more in length.
3. A nozzle faceplate or cone that is torn or
missing over 25% of its surface.
4. A nozzle with no automatic overfill control
mechanism or an inoperable overfill control mechanism.
5. An inoperable or malfunctioning vapor
processing unit, vacuum generating device, pressure or
vacuum relief valve, vapor check valve or any other
equipment normally used to dispense gasoline, or that is
required by this rule.
6. Failure to meet the requirements of Appendix
"J".
c. Stage II Requirements
No person shall transfer or permit the transfer of
gasoline into the fuel tank of any motor vehicle at any
applicable facility unless:
1. The transfer is made using a Certified Stage II
vapor recovery system that is designed, operated, and
maintained such that the vapor recovery system removes,
destroys, or prevents the discharge into the atmosphere of at
least 95% by weight of Volatile Organic Compound (VOC)
emissions.
2. All installed Stage II vapor recovery systems must
be certified by the California Air Resource Board (CARB).
d. Compliance Schedule
Affected gasoline facilities shall be in compliance with
the following schedule:
1. Facilities for which construction began after
November 15, 1990: by May 15, 1993 for facilities located
in New Castle and Kent Counties, and by May 15, 1995 for
facilities located in Sussex County.
2. Facilities installed before November 15, 1990 and
having any single monthly throughput of at least 100,000
gallons per month: by November 15, 1993 for facilities
located in New Castle and Kent Counties, and by November
15, 1995 for facilities located in Sussex County.
3. Facilities installed before November 15, 1990 and
having any single monthly throughput of greater than 10,000
gallons but less than 100,000 gallons: by November 15, 1994
for facilities located in New Castle and Kent Counties, and
by November 15, 1996 for facilities located in Sussex.
4. Stage II vapor recovery systems installed prior to
November 15, 1992, which are designed for dual vapor
recovery hoses (not coaxial) shall be retrofitted with coaxial
hoses no later than January 1, 1994, or upon any vapor
system modification, whichever is first. In addition, remote
vapor check valves in balance type systems installed prior to
November 15, 1992, shall be retrofitted with check valves
located in the nozzle no later than January 1, 1994, or upon
any vapor system modification, whichever is first.
5. New systems installed after November 15, 1992
will not be permitted to have dual vapor recovery hoses or
remote check valves for balance type systems.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1485
6. Any gasoline dispensing facility that ever exceeds
the exemption throughput specified in Section e of this
subpart shall be subject to all of the provisions of this
Section, and shall remain subject to these provisions even if
its throughput later falls below the exemption throughput.
a. Exemptions
The burden of proof of eligibility for exemption from
this rule is on the applicant. Persons seeking such an
exemption shall maintain adequate records of monthly
throughput, and furnish these records to the Department
upon request. These records shall be maintained on file for
three years. The provisions of Section 36c shall not apply to
the following facilities:
1. Gasoline facilities, which never dispense
greater than 10,000 gallons of gasoline in any, single
calendar month.
2. Gasoline dispensing facilities that are used
exclusively for refueling marine vehicles, aircraft, farm
equipment, and emergency vehicles.
b. Requirements
1. All applicable gasoline-dispensing facilities subject
to the provisions of this Section and Section 26 of this
Regulation shall perform the following tests in accordance
with the test methods and procedures in Appendix "J" or as
otherwise approved by the Department in accordance with
Appendix "J", subsection b.1., and within the context of the
provisions of subsection c. The tests shall be carried-out at
the completion of the installation, and as per the schedule
listed below:
i. A Pressure Decay/Leak Test every five- (5)
years.
ii. A Dynamic Backpressure (Dry) Test annually.
A Department representative shall be present at least once
every three- (3) years.
iii. A Vapor Space Tie Test shall be performed
only at the time of he time of installation; this test verifies
proper installation of the underground piping (See Appendix
"J2", step d.10.).
iv. A Liquid Blockage (Wet) Test, only after
installation.
v. Test to ensue proper functioning of nozzle
automatic shut-off mechanisms and flow prohibiting
mechanisms, where applicable.
2. The Department may require that all of the above
tests shall be required if there are any modifications or
repairs.
3. The Department reserves the right to perform
compliance inspections and testing at any time.
c. Performance Testing Notification
1. The Department shall receive written notification
10 working days prior to any test operation, unless
permission is granted to the contrary.
2. The owner and operator and the test contractor shall
report all test failures to the Department within twenty-four
(24) hours of the failure.
d. Operating Instructions/Postings
The owner and/or operator of the facility shall
conspicuously post operating instructions for the vapor
recovery system on the front of each gasoline dispenser to
include the following:
1. A clear description of how to correctly dispense
gasoline with the vapor recovery nozzles.
2. A warning that repeated attempts to continue
dispensing gasoline, after the system has indicated that the
vehicle fuel tank is full (by automatically shutting off), may
result in spillage or recirculation of gasoline.
3. A telephone number to report problems
experienced with the vapor recovery system to the
Department. This number may be posted in the store so long
as it is conspicuously displayed.
e. Other General Requirements
1. Conspicuously post "Out of Order" signs on any
nozzle associated with any aboveground part of the vapor
recovery system which is defective until said system has
been repaired in accordance with Appendix "J".
2. Provide adequate training and written instructions
to the operator of the affected facility to assure proper
operation of the vapor recovery system in accordance with
Appendix "J".
3. The owner and/or operator of the facility shall
perform routine maintenance inspections of the Stage II
Vapor Recovery System on a daily basis, in accordance with
Appendix "J".
f. Recordkeeping and Reporting
Stage II system owners and operators shall maintain
various types of compliance and testing records as listed in
Section f. of Appendices "J", "J2" and "J3".
a. Applicability.
1. This Section applies to any gasoline dispensing
facility located in the State of Delaware, except:
i. Any gasoline dispensing facility, which never
has a throughput of greater than 10,000 gallons of gasoline,
shall be subject only to the requirements of paragraph (e)(2)
of this Section. Any gasoline dispensing facility that ever
exceeds this throughput shall be subject to all of the
requirements of this Section, and shall remain subject to
these requirements even if its throughput later falls below the
exemption throughput.
ii. Any gasoline dispensing facility that is used
exclusively for refueling marine vehicles, aircraft, farm
equipment, and/or emergency vehicles.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1486 FINAL REGULATIONS
2. On and after May 1, 2003, the requirements of
paragraph (f) of this Section apply to any owner and/or
operator of any company that performs compliance testing of
Stage II Systems within the State of Delaware.
3. The requirements of this Section are in addition to
all other State and Federal requirements, to include the
permitting requirements of Regulation No. 2 of the State of
Delaware "Regulations Governing the Control of Air
Pollution." Any gasoline dispensing facility that is currently
subject to any state or federal rule promulgated pursuant to
the Clean Air Act Amendments of 1977 by exceeding an
applicability threshold is and shall remain subject to those
provisions.
4. Compliance Schedule
Any gasoline dispensing facility subject to the
requirements of this Section shall be in compliance as
follows: Any facility that first commences operations:
i. Before November 15, 1990 and that has any
throughput of greater than 10,000 gallons but less than
100,000 gallons: by November 15, 1994 for facilities located
in New Castle and Kent Counties, and by November 15,
1996 for facilities located in Sussex.
ii. Before November 15, 1990 and that has any
throughput of at least 100,000 gallons: by November 15,
1993 for facilities located in New Castle and Kent Counties,
and by November 15, 1995 for facilities located in Sussex
County.
iii. On or after November 15, 1990 and before
January 11, 1993: by May 15, 1993 for facilities located in
New Castle and Kent Counties, and by May 15, 1995 for
facilities located in Sussex County.
iv. On or after January 11, 1993: upon
commencement of operations.
5. Any Stage II vapor recovery system installed prior
to November 15, 1992, and using dual vapor recovery hoses
(not coaxial) shall be retrofitted with coaxial hoses no later
than January 1, 1994, or upon any vapor system
modification, whichever is first. Any system installed after
November 15, 1992 shall be equipped with coaxial hoses.
6. Remote vapor check valves in balance type systems
installed prior to November 15, 1992, shall be retrofitted
with check valves located in the nozzle no later than January
1, 1994, or upon any vapor system modification, whichever
is first. Any system installed after November 15, 1992 shall
be equipped with remote check valves located in the nozzle.
b. Definitions
"Assist System" means a system that creates a vacuum
to assist the movement of vapors back into the storage tank.
"Balance System" means a system where pressure
develops in the vehicle tank during fueling operations, and
vacuum in the storage tank created when the fuel is removed,
forces displaced vapors out the vehicle tank and back into
the storage tank.
c. Standards
1. The owner and/or operator of any gasoline
dispensing facility subject to the requirements of this Section
shall:
i. Design, install, operate, and maintain one of
the Stage II Vapor Recovery Systems identified in paragraph
(g) of this section.
ii. For systems with manifolded vapor lines, the
liquid shall return into the lowest octane tank. For nonmanifolded
systems with separate vapor lines, the liquid
shall return to the tank that has the same product as is
dispensed at the nozzle where the liquid was introduced into
the vapor lines.
iii. On and after May 1, 2003, install and maintain
a vapor shear valve that functions similarly to the product
shear valve.
iv. Conspicuously post "Operating Instructions"
on both sides of each gasoline dispenser. Such instructions
shall include:
A. A clear description of how to correctly
dispense gasoline.
B. A warning that repeated attempts to
continue dispensing gasoline, after the system has indicated
that the vehicle fuel tank is full (by automatically shutting
off), may result in spillage or recirculation of gasoline.
C. A toll-free telephone number to report
problems experienced with the vapor recovery system to the
Department.
2. At least one representative (an owner, facility
manager, or designated employee) from each facility, or
facilities under common ownership, shall attend a training
program on the operation and maintenance requirements of
the Stage II equipment that is selected for installation and/or
installed on their facility premises. Acceptable forms of
training include equipment manufacturer's seminars, classes
or workshops, or any other training approved by the
Department.
i. Verification, such as a certificate of attendance
from the training program, shall be obtained by the attendee
within three (3) months of the installation of the Stage II
system. The certificate shall display the name of the person
who completed the training program.
ii. The representative that completed the training
program is then responsible for informing all facility
employees about conducting routine maintenance pursuant
to paragraph (c)(3) of this section and about the operation
and maintenance of the Stage II system. The representative
shall maintain proof of training for all employees who will
be conducting daily inspections. If such representative
leaves that facility, or the company owning several facilities,
another representative shall take and successfully complete
the training within three (3) months.
iii. Training shall include, but not be limited to,
the following subjects:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1487
A. Purposes and effects of the Stage II Vapor
Control Program.
B. Equipment operation and function specific
to their facility's equipment.
C. Maintenance schedules and requirements
for the facility's equipment.
D. Equipment warranties.
E. Equipment manufacturer contracts
(names, addresses, and phone numbers) for parts and
service.
3. Each day personnel trained pursuant to paragraph
(c)(2) of this Section shall perform routine maintenance
inspections and record the inspection results.
i. Such inspections shall consist of, but not
limited to, inspection of the Stage II system for the following
defects:
A. A faceplate or face cone of a balance or
assist system nozzle that does not make a good seal with a
vehicle fill tube, or the accumulated damage to the faceplate
or face cone is over 25% of its' surface.
B. A vapor assist system nozzle fitted with an
efficiency compliance device that is damaged over 25% of
its' surface.
C. A nozzle bellows with a triangular tear
measuring 1/2 inch or more to a side, a hole measuring 1/2 inch
or more in diameter, or a slit or tear measuring one inch or
more in length.
D. A nozzle bellows or efficiency compliance
device that is loosely attached to the nozzle body, not
attached by a manufacturer approved method, or a vapor
check valve frozen in the open position.
E. A nozzle liquid shutoff mechanism that
malfunctions in any manner, where the spring or latching
knurl is damaged or missing.
F. A nozzle with a vapor check valve that is
defective, or a hose with a disconnected or damaged
breakaway.
G. A vapor assist system nozzle spout that is
damaged and the vapor collection holes are obstructed.
H. A dispenser mounted vacuum pump that is
not functioning.
I. A vacuum assist system with a central
vacuum unit or vapor processing unit that is inoperative.
J. A hose retractor that does not fully retract.
K. Any other component required by the
Department for use in the system that is missing,
disconnected, or malfunctioning.
ii. The owner and/or operator shall post "Out of
Order" signs and "Bag-out" the nozzle associated with any
part of the defective vapor recovery system until said system
has been repaired or replaced.
d. Testing Requirements
1. Any gasoline dispensing facility subject to the
requirements of paragraph (c)(1)(i) of this Section shall
perform and pass the following tests in accordance with the
test methods and procedures stated, or as otherwise approved
by the Department and the Administrator of the EPA.
[Where any of the following test methods and
procedures, in the opinion of the Department, conflict
and/or are redundant with those specified in any CARB
Executive Order adopted by reference in paragraph (g)
of this Section, the following test methods and
procedures shall apply.]
i. The following tests shall be performed and
passed within ten (10) days of installation of the Stage II
vapor recovery system:
A. A Pressure Decay/Leak Test, conducted in
accordance with Test Procedure TP-96-1 of the San Diego
Protocol, Revision III dated 3-1-96. This test procedure is
hereby incorporated by reference.
B. A Dynamic Backpressure and Liquid
Blockage Test, conducted in accordance with the procedures
in "Recommended Practices for Installation and Testing of
Vapor Recovery Systems at Vehicle Fueling Sites, PEI/
RP300-97", Chapter 8. This test procedure is hereby
incorporated by reference.
C. For assist systems, an Air to Liquid
Volume Ratio Test conducted in accordance with the
procedures in "Recommended Practices for Installation and
Testing of Vapor Recovery Systems at Vehicle Fueling
Sites, PEI/RP300-97", Chapter 9. This test procedure is
hereby incorporated by reference.
D. A Vapor Tie Test, conducted in
accordance with Test Procedure TP-96-1 of the San Diego
Protocol, Revision III dated 3-1-96. This test procedure is
hereby incorporated by reference.
ii. The following tests shall be performed and
passed annually for each Stage II vapor recovery system
according to the test procedures stated in paragraph (d)(1)(i)
of this Section:
A. A Pressure Decay/Leak Test.
B. For Balance Systems, A Dynamic
Backpressure and Liquid Blockage Test.
C. For Assist Systems, An Air to Liquid
Volume Ratio Test.
iii. Any additional testing(s) required by the
Department or the manufacturer shall be carried out
according to the schedule stated in any permit issued
pursuant to Regulation No. 2.
2. The Department may require the performance of
any of the tests identified in paragraph (d)(1) of this Section
at anytime at the owner's expense.
3. Written notification shall be submitted to the
Department not less than ten (10) working days prior to the
performance of any compliance test, unless approval by the
Department is granted to the contrary.
4. The owner and/or operator and test contractor shall
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1488 FINAL REGULATIONS
report all test failures to the Department within twenty-four
(24) hours of the failure.
5. The owner and/or operator shall submit the
following to the Department within thirty (30) days of the
test date:
i. the actual test date; and
ii. the installing and/or testing companies'
name(s), address (es), and phone number(s); and
iii. if any corrective action was performed
pursuant to paragraph (f)(4)(ii) then submit all information
specified in (f)(4).
e. Recordkeeping and Reporting
1. The owner and/or operator of a gasoline dispensing
facility subject to the requirements of this Section shall keep
on the facility premises and in a form acceptable to the
Department, all of the following information. This
information shall be retained for at least three (3) years from
the date of record and shall be made immediately available
to the Department upon request.
i. Permits and Applications. Copies of the Stage
I and Stage II System permit applications and the current
Construction/Operation Permits shall be permanently
maintained.
ii. Installation and Testing Results. The test
results shall be dated, and shall note the installing and test
companies' names, addresses, and phone numbers. These
records shall be kept on file until they are replaced with new
test results verifying proper functioning of the Stage II
system.
iii. Maintenance Records. Any maintenance
conducted on any part of the Stage II vapor recovery system
shall be logged on a maintenance record. This maintenance
record shall include a general part description, the date
repaired or replaced, the replacement part manufacturer's
information, and a description of the problem and solution.
iv. Inspection Records. A file shall be maintained
of all daily inspection reports including records of daily selfinspections,
and any third party inspection records.
v. Compliance Records. A file shall be
maintained of all compliance records. This record shall
include:
A. Any warning letters and notices of
violations issued by the Department to the facility.
B. Proof of attendance and completion of a
training program for each person trained in accordance with
paragraph (c)(2)(ii). This does not apply to the records of an
employee who is no longer in service for at least one (1)
year.
2. Any gasoline dispensing facility exempted from the
requirements of this Section pursuant to paragraph (a)(1)(i)
of this Section shall maintain records of monthly throughput,
and shall furnish these records to the Department upon
request. These records shall be maintained on file for a
minimum of three years from the date of record.
3. The owner and/or operator of any facility
containing sources subject to this Section shall comply with
the requirements of Section 5 of this regulation.
f. Compliance Testing Company Requirements
1. Any owner and/or operator of any company that
performs Stage II compliance testing within the State of
Delaware shall submit all of the following information to the
Department, prior to performing any Stage II compliance
testing within the State of Delaware:
i. The name and business mailing address of the
Stage II compliance testing company owner and/or operator;
ii. The address and telephone number of the
facility (ies) from which the daily compliance testing
activities of the compliance testing company originate;
iii. A written description of the employee training
systems in place at the compliance testing company to
ensure required compliance tests are performed in
accordance with applicable protocols and procedures.
iv. Certification by an individual who is a
responsible and trained representative of the compliance
testing company containing the following language
verbatim:
A. I certify that I personally examined and am
familiar with the information contained in this document and
all the attachments and that, based on my inquiry of those
persons immediately responsible for obtaining the
information, I believe that the information is true, accurate
and complete. I am aware that there are significant penalties
for submitting false information, including possible fines
and imprisonment; and
B. Employee training systems are in place at
the company to ensure Stage II compliance tests are
performed in accordance with all applicable protocols and
procedures; and
C. I am fully authorized to make this
attestation on behalf of this Stage II Compliance Testing
Company.
2. Any company subject to the requirements of
paragraph (f) of this section shall notify the Department in
writing of any change to any information submitted to the
Department within 14 days of the effective date of such
change.
3. No person subject to the requirements of paragraph
(f) of this Section shall perform any Stage II compliance test
unless said person has first been trained in accordance to
applicable compliance test protocols and procedures.
4. Any person subject to paragraph (f) of this Section
shall certify to the owner and/or operator of the gasoline
dispensing facility that each compliance test performed to
meet the requirements of this section was performed in
accordance with paragraph (d) of this Section. Certification
shall include:
i. The date each compliance test was first
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1489
performed and the test results; and
ii. An itemized list of all corrective action
performed on the Stage II system. This list shall include, but
not be limited to, component re-installation, tightening,
repair or replacement, as necessary, for the system to pass
the applicable test(s); and
iii. The date each compliance test was performed
and passed; and
iv. Certification by a responsible and trained
representative(s) of the compliance testing company
containing the following language verbatim:
A. I certify that I personally examined and am
familiar with the information contained in this document and
all the attachments and that, based on my inquiry of those
persons immediately responsible for obtaining the
information, I believe that the information is true, accurate
and complete. I am aware that there are significant penalties
for submitting false information, including possible fines
and imprisonment; and
B. I am fully authorized to make this
attestation on behalf of this Stage II Compliance Testing
Company.
g. Approved Stage II Vapor Recovery Systems
The following California Air Resources Board (CARB)
executive orders are hereby adopted by reference.
Number
Date
Description
G-70-7-AD
(03/22/93)
Certification of the Hasstech Model VCP-2 and VCP 2A Phase II
Vapor Recovery System.
G-70-14-AA
(02/08/83)
Recertification of Red Jacket Aspirator Assist Phase II Vapor
Recovery System.
G-70-17-AD
(05/06/93)
Modification of Certification of the Emco Wheaton Balance Phase II
Vapor Recovery System.
G-70-18-C
(08/28/79)
Modification of Certification of the Shell Model 75B1 and 75B1-R3
Service Station Phase II Vapor Recovery System.
G-70-23-AC
(04/29/96)
Recertification of the Exxon Balance Phase II Vapor Recovery System.
G-70-25-AA
(02/08/83)
Recertification of the Atlantic Richfield Balance Phase II Vapor
Recovery System.
G-70-33-AB
(03/09/84)
Certification of the Modified Hirt VCS-200 Vacuum Assist Phase II
Vapor Recovery System.
G-70-36-AD
(09/18/92)
Modification of Certification of the OPW Balance Phase II Vapor
Recovery System.
G-70-37-B
(01/22/80)
Modification of the Certification of the Chevron Balance Phase II
Vapor Recovery System with OPW nozzles for Service.
G-70-38-AB
(12/19/90)
Recertification of the Texaco Balance Phase II Vapor Recovery
System.
G-70-48-AA
(02/08/83)
Recertification of the Mobil Oil Balance Phase II Vapor Recovery
System.
G-70-49-AA
(02/08/83)
Recertification of the Union Balance Phase II Vapor Recovery System.
G-70-52-AM
(10/04/91)
Certification of Components for Red Jacket, Hirt and Balance Phase II
Vapor Recovery System.
G-70-53-AA
(02/08/83)
Recertification of the Chevron Balance Phase II Vapor Recovery
System.
G-70-70-AC
(06/23/92)
Certification of the Healy Phase II Vapor Recovery System of Service
Stations.
&
G-70-77
(09/15/82)
Certification of the OPW Repair/Replacement Parts and Modification
of the Certification of the OPW Balance Phase II Vapor Recovery
System.
Number
Date
Description
G-70-78
(05/20/83)
Certification of the E-Z Flo Nozzle Company Rebuilt Vapor Recovery
Nozzles and Vapor Recovery Components.
G-70-101-B
(11/15/85)
Certification of the E-Z Flo Model 3006 and 3007 Vapor Recovery
Nozzles and Use of E-Z Flo Components with OPW Models 11VC and
11 VE Vapor Recovery Nozzles.
G-70-107
(05/15/86)
Certification of Rainbow Petroleum Products Model RA3003,
RA3005, RA3006 and RA3007 Vapor Recovery Nozzles and Vapor
Recovery Components.
G-70-110
(01/20/87)
Certification of Stage I and II Vapor Recovery Systems for Methanol
Fueling Facilities.
G-70-118-
AB
(03/31/95)
Certification of Amoco V-1 Vapor Recovery System.
G-70-125-
AA
(03/16/93)
Modification of the Certification of the Husky Model V Phase II
Balance Vapor Recovery Nozzle.
G-70-127
(08/16/90)
Certification of the OPW Model 111-V Phase Vapor Recovery Nozzle.
G-70-134
(12/21/90)
Certification of the EZ Flo Rebuilt A-4000 Series and 11V-Series
Vapor Recovery System.
G-70-139
(03/17/92)
Addition to the Certification of the Hirt Model VCS-200 Phase II
Vapor Recovery System.
G-70-150-
AE
(07/12/00)
Modification of the Certification of the Gilbarco VaporVac Phase II
Vapor Recovery System.
G-70-153-
AD
(04/03/00)
Modification to the Certification of the Dresser/Wayne WayneVac
Phase II Vapor Recovery System.
G-70-154-
AA
(06/10/97)
Modification to the Certification of the Tokheim MaxVac Phase II
Vapor Recovery System.
G-70-159-
AB
(07/17/95)
Modifiaction of the Certification of the Saber Nozzle for Use with the
Gilbarco VaporVac Phase II Vapor Recovery System.
G-70-163-
AA
(09/04/96)
Certification of the OPW VaporEZ Phase II Vapor Recovery System.
G-70-164-
AA
(12/10/96)
Modification to the Certification of the Hasstech VCP-3A Vacuum
Assist Phase II Vapor Recovery System.
G-70-165
(04/20/95)
Healy Vacuum Assist Phase II Vapor Recovery System.
G-70-169-
AA
(08/11/97)
Modification to the Certification of the Franklin Electric
INTELLIVAC Phase II Vapor Recovery System.
G-70-170
(02/22/96)
Certification of the EZ-flo Rebuilt 5005 and 5015 for use with the
Balance Phase II Vapor Recovery System.
G-70-177-
AA
(06/22/00)
Certification of the VCS400-7 Vacuum Assist Phase II Vapor
Recovery System.
G-70-179
(07/02/97)
Certification of the Catlow ICVN-V1 Vacuum Assist Phase II Vapor
Recovery System.
G-70-180
(04/17/97)
Order Revoking Certification of the Healy Phase II Vapor Recovery
Systems for Gasoline Dispensing Systems.
G-70-183
(03/04/98)
Certification of the Healy/Franklin Vacuum Assist Phase II Vapor
Recovery System.
G-70-186
(10/26/98)
Certification of the Healy Model 400 ORVR Vapor Recovery System.
G-70-188
(05/18/99)
Certification of the Catlow ICVN Vapor Recovery Nozzle System for
use with the Gilbarco VaporVac Vapor Recovery System.
G-70-191
(08/08/99)
Healy/Franklin VP-1000 Vapor Pump Phase II Vapor Recovery
System (Healy ORVR Phase II Vapor Recovery System).
G-70-196
(12/30/00)
Certification of the Saber Technologies, LLC SaberVac VR Phase II
Vapor Recovery System.
&
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1490 FINAL REGULATIONS
APPENDIX "J"
Procedures for Implementation of Regulations Covering
Stage II Vapor Recovery Systems for
Gasoline Dispensing Facilities
a. PURPOSE.
The purpose of this document is to prescribe the
procedures for training, systems approval, maintenance,
operation, testing, inspection, recordkeeping, and reporting
for Gasoline Dispensing Facilities required to be equipped
with Stage II vapor recovery systems.
b. BACKGROUND.
1. The implementation procedures outlined in this
document are based on those specified in the U.S.
Environmental Protection Agency (EPA) Office of Air
Quality Planning and Standards and Office of Air and
Radiation Guideline Series documents. In cases where the
definitions, standards, and other provisions of the EPA
guideline documents differ from this document or
Regulation No. 24, "Control of Volatile Organic
Compound Emissions" [hereinafter called "the
regulation"], this document and the regulation shall take
precedence. The use of test methods and procedures not
specified in this document is acceptable if approved by the
Department within the context of the provisions of
subsection c., below.
2. In order for the State of Delaware to fulfill its
obligations under the Federal Clean Air Act, state
regulations are required to be approved by the EPA.
3. Where state regulations specify that procedures or
methods shall be approved by, acceptable to or determined
by the Department, or specifically provide for decisions to
be made by the Department, or other similar phrasing, it may
be necessary to have such actions (approvals,
determinations, exemptions, exclusions, or decisions)
reviewed and confirmed as acceptable or approved by EPA
in order to make them federally enforceable.
4. It has been determined, in accordance with EPA
regulations and policy, that this document is to be submitted
to EPA and, upon approval, become part of the State
Implementation Plan. Accordingly, any amendments to this
document shall be approved through the same administrative
process.
c. GENERAL REFERENCES.
1. Regulation No. 24, "Control of Volatile Organic
Compound Emissions".
2. "Technical Guidance - Stage II Vapor Recovery
Systems for Control of Vehicle Refueling Emissions at
Gasoline Dispensing Facilities", EPA-450/3-91-022a and b,
November, 1991.
3. "Enforcement Guidance for Stage II Vehicle
Refueling Control Programs", U.S. Environmental
Protection Agency, Office of Air and Radiation, October,
1991.
4. "Gasoline Facilities Phase I and II Technical
Manual", Appendix D, CARB Compliance Division,
Revised April, 1992.
d. LOCATION OF REFERENCED DOCUMENTS. The
documents referenced above and any others that may be
referenced throughout this document are available from the
Department. A nominal fee is required.
e. RECISION. This document supersedes any previously
issued documents relative to this matter, except for
regulations.
f. INSTRUCTIONS.
1. Applicability. This document contains procedures
to be used to comply with the regulations requiring Stage II
vapor recovery system operator training, equipment
approval, testing, inspection, maintenance, and all associated
recordkeeping and reporting. The owner of the Stage II
vapor recovery system (hereinafter called a "Stage II
system"), installed at a gasoline dispensing facility
(hereinafter called a "facility"), as required by Regulation
No. 24 and Regulation No. 2, has the ultimate responsibility
for compliance with the requirements of subsection f.2.,
below. Stage II systems must be installed at applicable
facilities in all three counties in the State of Delaware: New
Castle, Kent and Sussex.
2. Procedures.
i. Stage II System Operation and Maintenance
Training.
A. At least one representative (an owner,
facility manager, or designated employee) from each facility,
or facilities under common ownership, shall attend a training
program on the operation and maintenance requirements of
the Stage II equipment that is selected for installation on
their facility premises. Verification, such as a certificate of
attendance from the training program, shall be obtained by
the attendee within three (3) months of the installation of the
Stage II system. The representative that completed the
training is then responsible for informing all facility
employees about the operation and maintenance of the Stage
II system. If the representative who received the initial
training/certificate leaves that facility, or the company
owning several facilities, another representative shall take
and successfully complete the training within three (3)
months.
B. Training shall include, but need not be
limited to, the following subjects:
1. Purposes and effects of the Stage II
vapor control program.
2. Equipment operation and function
specific to their facility's equipment.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1491
3. Maintenance schedules and
requirements for the facility's equipment.
4. Equipment warranties.
5. Equipment manufacturer contracts
(names, addresses, and phone numbers) for parts and
service.
C. Acceptable forms of training can include
equipment manufacturer's seminars, classes or workshops
offered by accredited institutions, or any other training
approved by the Department. Facility owners are encouraged
to request and solicit by contract training from the
manufacturer or the contractor who will install the Stage II
system at their facility.
ii. Facility Permitting and Stage II System
Approval.
A. Owners of Stage II vapor recovery
systems shall submit to the Department, no later than 60
days prior to installation, a Stage II Permit application, in
accordance with Regulation No. 2. Only those system
configurations as approved in accordance with the
provisions of Appendix "J1", will be approved. The Permit
shall be placed in the facility file and kept on the premises of
the facility at all times.
B. Other Requirements: Applicable facilities
shall be in compliance with any other regulations,
guidelines, or requirements, which affect the regulated
facility's operations, including Stage I requirements.
iii. Stage II Requirements for Installation and
Testing
A. Owners of Stage II vapor recovery
systems shall verify proper installation and function of the
entire Stage II vapor recovery system when it is fully
installed and ready for operation, by performing the tests
listed below:
1. Pressure Decay/Leak Test, with a
Vapor Space Tie Test, where applicable (see Appendices
"J2" and "J3").
2. Dynamic Backpressure (Dry) Test/
Liquid Blockage (Wet) Test (see Appendix "J3").
3. Testing to ensure proper functioning
of nozzle automatic shut off mechanisms and flow
prohibiting mechanisms, where applicable.
4. Other applicable tests specific to a
Stage II system, when approved by the Department.
The Stage II system shall be tested and verified
as functioning properly before it is made available to the
public or to facility personnel for use. The owner of the
Stage II system shall notify the Department at least ten (10)
days prior to the testing of the Stage II system unless
permission is granted to the contrary. It is recommended, for
the protection of the facility owner, that appropriate testing
be performed to verify proper installation of the underground
piping before the aboveground equipment is installed.
B. The owner of the Stage II system shall
submit a copy of all Stage II system test failures, as required
in subsection A, above, to the Department no later than ten
(10) days after the tests have been performed. The test
results shall be dated and shall note the installing and test
companies' names, addresses, and phone numbers.
C. The owner of a Stage II system shall
perform once every five (5) years a Pressure Decay/Leak
Test and a Dynamic Backpressure (Dry) Test annually on the
entire Vapor Recovery System (according to the procedures
in Appendices "J2" and "J3"). Any or all test(s) may be
required after a major system replacement or modification,
or upon request of the Department after a malfunction of the
Stage II system has been identified. The owner of the Stage
II system shall notify the Department at least ten (10) days
prior to the testing of the Stage II system unless permission
is granted to the contrary. Test failures shall be reported to
the Department within twenty-four (24) hours.
iv. Replacement Parts for Stage II Systems. Only
those rebuilt or aftermarket parts as listed in Appendix "J1"
(except for remote check valves and dual vapor recovery
hoses) shall be used as replacement parts on Stage II vapor
recovery systems, such that the system's original efficiency
or durability is not degraded.
v. Maintenance Inspections of Stage II Systems.
A. The Stage II system owner and operator
shall perform routine maintenance inspections of the Stage II
system on a daily basis, and record the inspection results.
Daily inspections shall consist of, but not be limited to,
inspection of the Stage II system for the equipment defects
as listed below. The presence of any equipment defect and
the corrective action taken shall also be recorded in the
maintenance record as specified below in subsection f.2.vii.
of this document.
1. A vapor return line that is crimped,
flattened, blocked, or that has any hole or slit that allows
vapors to leak out.
2. A nozzle bellows that has any hole
large enough to allow a 1/4 inch diameter cylindrical rod to
pass through it, or any slit one inch or more in length.
3. A nozzle faceplate or facecone that is
torn or missing over 25% of its surface.
4. A nozzle with no automatic overfill
control mechanism, or an inoperable overfill control
mechanism.
5. An inoperable or malfunctioning
vapor processing unit. Defects of the process unit include,
but are not limited to, leaking return lines, intermittent
process interruptions, and low return pressure.
B. The Stage II system owner and operator
shall conspicuously post an "Out of Order" sign on any
nozzle associated with any aboveground part of the Stage II
system which is found to be defective. The defective
equipment shall be taken out of service until it has been
repaired or replaced.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1492 FINAL REGULATIONS
vi. Operating Instructions for Users of Stage II
Systems
A. The facility owner and operator shall
conspicuously post operating instructions for the vapor
recovery system in the gasoline dispensing area, which
include the following:
1. A clear description of how to
correctly dispense gasoline with the vapor recovery nozzles.
2. A warning that repeated attempts to
continue dispensing gasoline after the system has indicated
that the vehicle fuel tank is full (by automatically shutting
off) may result in spillage or recirculation of gasoline.
3. A telephone number to report
problems experienced with the vapor recovery system to the
Department. This number may be posted in the store so long
as it is conspicuously displayed.
B. The format and content of the instructions
shall be approved by the Department. The Department also
reserves the right to supply instructional signs, at a nominal
cost to the facility owner, for placement in the gasoline
dispensing areas at each facility.
vii. Verification of Facility Compliance Through
Recordkeeping. Stage II system owners and operators shall
maintain various types of compliance records as listed below
in subsections A through F. Records shall be kept in a form and
manner acceptable to the Department, unless forms are supplied by
the Department for a specific purpose. The records shall be kept
updated and maintained on the facility premises in an easily
accessible location for review by the Department. The Stage II
system owner has the ultimate responsibility to ensure that the
appropriate records are accurately maintained.
A. Station Permitting/Stage II System
Approval. A copy of the Stage II System application form
and permit shall be maintained permanently on the facility
premises in the facility file.
B. Stage II System Installation and Testing
Results. The Stage II system shall meet or exceed the
requirements of the tests discussed in subsection f.2.iii.,
above. The test results shall be dated, and shall note the
installing and test companies' names, addresses, and phone
numbers. These records shall be kept on file until they are
replaced with new test results verifying proper functioning
of the Stage II system.
C. Stage II System Maintenance Records.
Any maintenance conducted on any part of a regulated
facility's system shall be required to be logged on a
maintenance record. This maintenance record shall include a
general part description, the date repaired or replaced, the
replacement part manufacturer's information, and a
description of the problem and solution. These records shall
be kept on file for at least three (3) years.
D. Inspection Records. A file shall be
maintained of all inspection reports issued by the
Department, records of daily self-inspections, and records of
monthly self-inspections. The inspection records shall be
kept on file for at least three (3) years, and be organized
chronologically.
E. Compliance Records. A file shall be
maintained of all compliance records including warning,
notices of violations, and other compliance records issued by
the Department to the facility. The compliance file shall be
maintained separate from the inspection file. The
compliance records shall be kept on file for at least three (3)
years, and be organized chronologically.
F. Training Certification. Proof of attendance
and completion of a training program as specified in
subsection f.2.i.A. of this document shall be maintained and
filed in the compliance records file specified in subsection
f.2.vii.E. This does not apply to the records of an employee
who is no longer in service for at least one (1) year.
SUB-APPENDICES
J1 Certified Stage II Vapor Recovery Systems
J2 Pressure Decay/Leak Test Procedure
J3 Dynamic Backpressure (Dry) Test/Liquid Blockage
(Wet) Test Procedure.
APPENDIX "J1"
Certified Stage II Vapor Recovery Systems
A Stage II system will be an approved system if it is
certified by the California Air Resources Board (CARB) and
utilizes coaxial hoses (instead of dual vapor recovery hoses)
and check valves in the nozzle for balance type systems
(instead of remote check valves). If a Stage II system is
certified by CARB, an Executive Order is written for that
system. The order specifies the conditions, which must be
met by any Stage II system installed under that certification.
The specifications may include the plumbing system, an
equipment list, the vapor hose configuration, and the
maximum allowable pressure drop through the system.
The list of CARB certified Stage II systems and
replacement parts is continually being updated; therefore,
facilities are directed to may obtain the most recent copy of
the list from the Department before purchasing Stage II
vapor recovery equipment. A nominal fee shall be required.
APPENDIX "J2"
Pressure Decay/Leak Test Procedure for Verification of
Proper Functioning of Stage I & Stage II Vapor Recovery
Equipment
a. INTRODUCTION. This procedure is applicable to
facilities that are required to recover vapors emitted during
the transfer of gasoline by installing and operating Stage I
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1493
and Stage II vapor recovery equipment. It is used to
determine compliance with Stage I and Stage II of the
Regulations for the Control of Volatile Organic Compound
Emissions. Section 26 requires vapor recovery during the
truck delivery of fuel to stationary storage tanks (Stage I
vapor control). Air aspirated into the fuel during Stage I
deliveries prevents compliance with Section 26 of the
regulations. Vapor leakage from adjacent tanks with a vapor
manifold to the tank receiving fuel also precludes
compliance. This will not happen if the system is leak tight.
Section 36 requires that Stage II vapor recovery systems are
at least 95% effective in recovering gasoline vapors, and
requires the vapor recovery nozzle backpressure shut-off
mechanisms not malfunction in any way. This procedure is
used to check for the proper functioning of the Stage II
system and shut-off mechanisms, and is also used to identify
equipment defects which are listed in Appendix "J".
b. PREREQUISITES TO TESTING. The following
requirements must be met before a valid test may be
performed:
1. The Department Must Be Notified - The
appropriate office of the Department must be contacted at
least two working days prior to the testing of the stage II
vapor recovery system. Tests may or may not be witnessed
by a Department personnel, however, if the Department is
not notified of this test or any of the other required tests, then
this test or any other required test may be declared invalid, in
which case a retest will be required.
2. Minimum Tank Ullage - The ullage (vapor space)
in each tank being tested must be at least 10% of the tank's
capacity, but in no case less than 300 gallons per tank. If the
tanks are manifolded, each tank must meet the minimum
ullage requirements described above.
3. Maximum Tank Ullage - There is no maximum
tank ullage requirement. However, since the required test
duration is directly proportional to the amount of tank ullage,
it is recommended that the total tank ullage be kept as close
as possible to the minimum tank ullage requirements to
preclude excessively long tests.
4. Condition of the Vapor Recovery System - The
complete vapor recovery system must be installed and intact
during the test. If the installation includes a Stage II vapor
recovery system, all hoses, nozzles, fittings, valves, and
other system components must be installed as if the system
were to be placed into service. All system components must
be free of all visible defects such as torn or punctured
bellows, loose or torn faceplates, or defective check valves.
Plugging the vapor return plumbing where a leaking vapor
recovery nozzle or remote check valve has been discovered
is not allowed.
5. Restrictions On Gasoline Transfer Operations -
Transfers of gasoline into the storage tanks within one (1)
hour prior to the test are prohibited. In addition, dispensing
of gasoline is not allowed during the test.
c. EQUIPMENT. The following equipment will be needed
to perform this test. (Refer to the schematic presented in
Figure 1 for a typical set-up).
1. A bottle of compressed gaseous nitrogen and
pressure regulators capable of regulating final downstream
pressure to 1.0 pound per square inch gauge (psig) is
required. Use assorted valves, fittings, and pressure tubing as
necessary. A means of providing a grounding path from the
bottle of compressed nitrogen is required. The bottle shall be
grounded for safety. It is recommended that the tubing be
flexible metal tubing or non-metal tubing that incorporates a
grounding path throughout its length. A pressure relief
device must also be installed prior to testing. The pressure
relief device must be adjusted to vent at one pound per
square inch gauge (27.7 inches water column gauge).
WARNINGS:
i. Attempting the pressure decay test without a
pressure relief device may result in over-pressurizing the
system, which may create a hazardous condition and may
cause damage to the underground storage tanks, associated
piping, and other system components.
ii. The nitrogen bottle must be securely
fastened to a large, stationary object at all times. A
compressed gas cylinder which falls and is damaged can
easily become a lethal projectile.
2. An accurate device for measuring pressure, such as
a water manometer (preferable) or a Magnehelic gauge (or
equivalent) is required to measure the system pressure. This
device must be graduated in increments of one-tenth (0.1) of
an inch of water column pressure.
3. A stopwatch accurate to within 1 second.
d. TEST PROCEDURE
1. Determine the ullage of the underground storage
tank (or tanks, if manifolded). Measure the gasoline
gallonage in the underground storage tank(s). Calculate the
ullage space for the storage tank(s) by subtracting the
gasoline gallonage present from the tank capacity(ies). Note
the ullage and actual tank ullage must meet the minimum
tank ullage criteria specified above in Section b.2.
2. Calculate the required test duration by multiplying
the total ullage (in thousand gallons) by 5.0. Record the
resulting required test time (in minutes) on a data form
acceptable to the Department.
3. Install the pressure relief device, grounding wire,
fittings, tubing, and equipment needed to pressurize and to
monitor the system vapor space (see Figure 1). Nitrogen can
be introduced into the system through the storage tank vent
pipe or through the vapor return piping.
4. For manifolded systems, install the pressure relief
safety valve, set at one psig (27.7 inches of water), over the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1494 FINAL REGULATIONS
opening of the storage tank vents and cap the remaining
storage tank vents. (Manifolding the vent line is prohibited
since this interferes with the check of underground vapor
manifolds). For non-manifolded systems, test each product
vapor recovery system separately with the pressure relief
safety valve installed on the vent of the storage tank being
tested.(Alternative setups may be used as long as they do not
interfere with the objectives of the test and have prior
Department approval.)
5. Remove the Stage I adapter cap(s) on the vapor
return drybreak valve(s) of the underground storage tank(s).
The system must pass the Pressure Decay/Leak Test with the
drybreak cap(s) removed. It is permissible for the tank fill
cap(s) to be in place on the fill adapter(s) during the test.
6. With no dispensing taking place, begin pressurizing
the vapor system (or subsystem for individual vapor return
line systems) to 11 inches water column gauge (inches wcg).
Let the system sit for fifteen minutes to allow vapor pressure
stabilization in the tank(s). Check the vent cap
assembly(ies), nitrogen connector assembly, nozzles, vapor
return adapter(s), and all accessible vapor connections using
leak detecting solution to verify that the test equipment is
leak tight. If after fifteen minutes the ullage pressure is still
about 10 inches wcg, reduce the system pressure to 10.0
inches wcg. If the ullage pressure is below 10 inches wcg,
then again pressurize the vapor system to 10.0 inches wcg.
7. With the system pressurized to 10.0 inches wcg,
begin the test. Start the stopwatch and record the time the
test began on a data form acceptable to the Department.
8. Intermediate readings may be taken to monitor the
performance of the system, but the final system pressure
reading must be taken at the end of the required test duration
calculated above in Step d.2., and recorded on a data form
acceptable to the Department. Refer to the test standards
specified below in Section e. to determine the acceptability
of the final system pressure result.
9. While the system is still pressurized, check the
integrity of the automatic backpressure relief device on each
nozzle connected to the vapor recovery system being tested
by pulling on the nozzle's trigger. The backpressure relief
device is acceptable if there is not resistance when the
nozzle's trigger is pulled. Nozzles with defective
backpressure relief devices shall be replaced.
10. At the time of installation, following the Pressure
Decay/Leak Test and with the tank(s) still pressurized,
complete the following Vapor SpaceTie Test:
i. For systems with vapor manifolded tanks,
depress the Stage I drybreak valve of each tank to see if
gases are released under pressure. (A tank where gases are
not released under pressure is not manifolded to the Stage II
vapor piping as required by Department regulations).
ii. For non-manifolded systems, depress the
drybreak valve of each tank to see if the product in the
storage tank matches the product dispensed by the nozzles
where checks were made of the backpressure shut-off
mechanisms. This is a check to see if the underground vapor
piping is crossed and goes to the wrong storage tanks. If
crossed piping is indicated, verify by sending five (5) gallons
of liquid down the Stage II piping while a second person
listens for splashing at the tank with the drybreak open (see
Liquid Blockage (Wet) Test Procedure which follows this
procedure).
iii. Remove the caps of the fill risers of the storage
tanks. If it appears that any gasket is damaged or missing, it
must be replaced and the fill adapter tightened.
11. If the system failed to meet the criteria for passage
set forth below in Section e., repressurize the system and
check all accessible vapor connections using leak detecting
solution. If vapor leaks in the system are encountered, repair
or replace the defective component(s) and repeat the
Pressure Decay/Leak Test (Steps d.6. through d.8.).
12. Depressurize the system by carefully removing the
vent cap assembly(ies). Allow any remaining pressure to be
relieved through the vent pipes(s).
13. If the vapor recovery system utilizes individual
vapor return lines for each gasoline product or each
underground storage tank, repeat the entire Pressure Decay/
Leak Test for each vapor return system (Steps d.1. through
d.12.).
e. TEST STANDARDS. The minimum allowable pressure
decay time from 10.0 to 9.0 inches wcg shall be 5.0 minutes
per 1000 gallons ullage. This means that from an initial
pressure of 10.0 inches wcg, if the system pressure reading at
the end of the required test duration (as calculated using the
methodology specified in Section d.2.) is less than 9.0 inches
wcg, the system fails.
f. REPORTING REQUIREMENTS. The test results of
the Pressure Decay/Leak Test procedure must be submitted
to the appropriate office of the Department within ten (10)
days of the day the tests were performed. It is the ultimate
responsibility of the owner of the facility to make sure that
the necessary documentation is submitted to the Department;
however, the Department will accept test documentation
directly from the contractor performing the tests. It is also
the owner's responsibility to see that the test results are
maintained in a file at the gasoline dispensing facility.
APPENDIX "J3"
Dynamic Backpressure (Dry) Test and Liquid Blockage
(Wet) Test Procedure for Verification of Proper Functioning
of Stage II Vapor Balance Recovery Systems
a. INTRODUCTION. This procedure is used to determine
compliance with the emission standard in Section 36 of the
Regulations for the Control of Volatile Organic Compound
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1495
Emissions. Backpressures due to flow resistances in the
vapor return nozzles, hoses, dispensers, and piping are often
found to be the primary cause of vapor losses from the
balance vapor recovery systems. All the applicable
California Air Resources Board (CARB) Executive Orders
specify specific flow resistance limitations that are included
in this procedure. Failure of a Stage II system to meet the
flow resistance limitations is a violation of Section 36 of the
regulations which requires that only certified systems be
installed. Furthermore, this procedure is used to detect
prohibited equipment defects listed in Appendix "J"
entitled, "Procedures for Implementation of Regulations
Covering Stage II Vapor Recovery Systems for Gasoline
Dispensing Facilities", and determine if the underground
vapor piping configuration complies with the applicable
CARB Executive Orders as required by Section 36 and as
referenced in Appendix "J". The Liquid Blockage (Wet)
Test described in this test procedure is also applicable for
aspirator-assist Stage II vapor recovery systems.
This procedure consists of two separate tests, which
must be conducted, sequentially in the order indicated
below:
1. Dynamic Backpressure (Dry) Test: This test is used
to determine the pressure drop (flow resistance) through
balance Stage II vapor recovery systems (including nozzles,
vapor hose, swivels, dispenser piping, and underground
piping) at prescribed flow rates. The test method consists of
flowing gaseous nitrogen through a calibrated test panel into
the vapor recovery system at various flow rates to simulate
the backpressure created during vehicle refueling. The
resulting backpressures are measured near the nozzle
faceplate using a pressure gauge and compared with CARB
certification criteria.
2. Liquid Blockage (Wet) Test: This test is used to
determine if the piping configuration is correct and to detect
low points in the piping where the accumulation of liquid
condensate may cause blockages which restrict the flow of
vapors and thus decrease the system's vapor collection
efficiency. The test method consists of introducing gasoline
into the vapor piping at the dispenser. When the gasoline can
be heard dropping into the appropriate tank, enough gasoline
is deemed to have been added to create a blockage should a
low point or other restriction be present. Gaseous nitrogen is
introduced into the vapor piping at a rate of 60 standard
cubic feet per hour (SCFH). A liquid blockage is indicated
either by the needle pegging on the pressure gauge and/or
wild pulsing of the needle, or a reading in excess of 0.45
inches of water gauge (inches wcg) backpressure at a flow of
60 SCFH of nitrogen.
This test is required to be performed after the entire
Stage II system has been installed. Nevertheless, it is
recommended for new construction that the contractor
conduct this blockage test both before and after the vapor
recovery piping is covered to minimize the extensive effort
and cost associated with repairing the piping system should
the vapor recovery system fail the test.
b. PREREQUISITES TO TESTING. The following
requirements must be met before a valid test can be
performed:
1. The Department Must Be Notified - The
Department must be contacted at least two working days
prior to the testing of the Stage II system. The test may or
may not be witnessed by a Department personnel; however,
if the Department is not notified of this test or any other
required test, then this test or other required tests may be
declared invalid.
2. Condition Of The Vapor Recovery System - The
vapor recovery system must be proven leak tight with the
Pressure Decay/Leak Test required by the provisions of
Section 36 of the regulations, and described in this
Appendix, prior to conducting this test. There can be no
alteration of the vapor recovery system between the time the
Pressure Decay/Leak Test is conducted and the Dynamic
Backpressure (Dry) and Liquid Blockage (Wet) Tests are
run.
3. Restriction Of Gasoline Dispensing Operations -
During testing of a given product, no dispensing of that
product will be allowed. If the vapor spaces of the
underground storage tanks are manifolded, dispensing of
gasoline from the entire station shall be prohibited during
testing.
c. EQUIPMENT. The following equipment will be needed
to perform the Dynamic Backpressure (Dry) Test and the
Liquid Blockage (Wet) Test:
1. A bottle of gaseous nitrogen and pressure regulators
capable of regulating final downstream pressure to 5.0
pounds per square inch gauge (psig) are required. Use
assorted valves, fittings, and pressure tubing as necessary. A
means of providing a grounding path from the bottle of
compressed nitrogen must be employed. The bottle shall be
grounded for safety. It is recommended that the tubing be
flexible metal tubing or non-metallic tubing that incorporates
a grounding path throughout its length.
A pressure relief valve must be installed prior to
testing. Attach it to the vapor piping or a storage tank vent
within the piping system. The pressure relief valve must be
adjusted to release at one psig (27.7 inches of water column
gauge). (The diaphragms in balance system nozzles are not
designed to withstand pressures exceeding one psig and may
be accidentally ruptured if this procedure is not followed.)
WARNING - The nitrogen bottle must be securely
fastened to a large, stationary object at all times. A
compressed gas cylinder, which falls and is damaged, can
easily become a lethal projectile.
2. A flow regulator is required that is capable of
delivering nitrogen at very low pressure and at measured
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1496 FINAL REGULATIONS
flow rates of 20, 60, and 100 SCFH.
3. A test panel as shown in Figure 2 must be used for
testing balance system vapor flow restrictions. The panel
consists of a section of vehicle fillpipe, attached pressure
gauges, a drain to drain off gasoline liquid that spills into
fillpipe from the nozzle fill spout, a plug in the back through
which nitrogen enters the fill neck, a flow gauge to adjust
nitrogen flow control valves and attachments to connect the
nitrogen bottle. The pressure drop through the Stage II
system is determined using a gauge capable of accurately
measuring pressures from 0 to 1 inch of water column gauge
(inches wcg) and readable in increments of 0.01 inches wcg.
The gauge is used to measure backpressure before
and after the gasoline is introduced. Pressure is to be sensed
through a port, perpendicular to the direction of flow, located
as close as possible to the vapor piping. An additional
simultaneous-reading gauge with a 0 to 10 inches wcg range
is desirable to quantify excessive flow resistance.
d. TEST PROCEDURES
1. Dynamic Backpressure (Dry) Test: The farthest
dispensing nozzle from the underground tanks for each
product grade shall be tested using the following procedure
unless otherwise instructed by the Department.
i. Prop open only the Stage I drybreak valve at
the tank with the same product as the nozzle being tested.
(The pressure drop is measured through the nozzle, vapor
hoses, dispenser, vapor piping, and through the tank to the
Stage I drybreak. This comes close to duplicating the actual
flow resistances that occur during normal operations.) Set up
traffic barriers in the vicinity of the drybreak valve to
preclude the approach of potential ignition sources.
ii. For manifold systems, install the pressure relief
safety valve, set at one psig (27.7 inches of water), over the
opening of one of the storage tank vents and cap the
remaining storage tank vents. (Manifolding the tank vent
lines is prohibited.) For non-manifolded systems, test each
product vapor recovery system separately with the pressure
relief safety valve installed on the vent of the storage tank
being tested. (Alternative setups may be used as long as they
do not interfere with the objectives of the test and have prior
Department approval.) (NOTE: The tank vents are closed
because it was discovered that wind flowing over open vents
12 feet high can interfere with the pressure measurements,
even with the drybreaks open. Since the Pressure Decay/
Leak Test must be conducted first, the caps and relief valve
are usually already in place.)
iii. If there is no remote check valve in the
dispenser, proceed to Step d.1.iv., below. If the Stage II
balance system employs a remote vapor check valve that can
be disabled by removing the poppet on the fuel side,
carefully open the fuel side of the remote vapor check valve
and remove the poppet. Replace the threaded plug on the
fuel side of the valve.
iv. Connect the pressure drop test device to the
vapor return piping and the regulated nitrogen source. If the
nitrogen is introduced through the vapor recovery nozzle,
apply a film of lubricant to the faceplate of the nozzle to be
tested and insert the nozzle into the fillpipes simulator of the
test device. The nozzle must fit tightly.
v. Zero the pressure gauges.
vi. Adjust the pressure regulators and the pressure
drop panel flow control valve to produce a nitrogen flow rate
of 20 SCFH. Record the backpressure (balance system
pressure drop) measured immediately upstream of the vapor
piping, i.e., at the entrance to the nozzle, on a data form
acceptable to the Department.
vii. Repeat Step d.1.vi., above, with flow rates of
60 SCFH and 100 SCFH.
viii. If the system failed to meet the criteria for
passage set forth below in Section e.1., make necessary
replacements of or adjustment to the nozzles, vapor hoses,
swivels, dispenser piping, or underground piping to bring the
measured pressure drops within the appropriate standard.
ix. After completion of the Dynamic Backpressure
(Dry) Test, close and cap the underground storage tank
vapor drybreak valves and remove the closures from the tank
vent pipes.
x. For Stage II balance systems with remote vapor
check valves, carefully reassemble the remote vapor check
valve by removing the plug on the fuel side and reinserting
the fuel poppet. Replace the threaded fuel plug.
2. Liquid Blockage (Wet) Test: Each dispensing
nozzle/vapor return piping inlet shall be tested using the
following procedure unless otherwise instructed by the
Department. Testing shall be done starting with the farthest
dispensing nozzle from the underground storage tanks for
each product.
i. Prop open only the vapor drybreak valve at the
tank with the same product as the nozzle being tested. Set up
traffic barriers in the vicinity of the drybreak valve to
preclude the approach of potential ignition sources.
ii. Install a pressure relief safety valve set at a
maximum cracking pressure of one pound per square inch
gauge (27.7 inches wcg) at the vent of one of the storage
tanks. If the system has manifolded vapor piping, cap the
vents of the other storage tanks. If the system has nonmanifolded
piping, be sure the pressure relief valve is on the
tank that has the same product as that which is dispensed at
the location where liquid is introduced to the vapor piping.
iii. For each nozzle, introduce gasoline into the
vapor piping inlet located at or in each dispenser. (Don't
introduce gasoline through the vapor return nozzle and vapor
hose.) Have someone listening at the open Stage I drybreaks
to identify the tank where liquid splashing is heard. For
systems with manifolded underground vapor piping, the
liquid must drop into the leaded product tank, or the lowest
octane unleaded tank if there is no leaded product. For non-
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1497
manifolded systems with separate underground vapor
piping, the liquid shall return to the tank that has the same
product as is dispensed at the nozzle where the liquid was
introduced into the vapor piping. If the product at the nozzle
does not match the product in the tank, the underground
piping is crossed and the system fails the test. For both
manifolded and non-manifolded systems, the piping must be
the same as the configuration approved in the CARB
Executive Orders (see Appendix "J") or the facility fails the
test.
iv. Restore the dispensing/vapor return system to
its normal balance system configuration.
v. If there is no remote check valve in the
dispenser, proceed to Step d.2.vi., below. If the Stage II
balance system employs a remote vapor check valve that can
be disabled by removing the poppet on the fuel side,
carefully open the fuel side of the remote vapor check valve
and remove the fuel poppet. Replace the threaded plug on
the fuel side of the valve.
vi. Connect the pressure drop test device to the
vapor return piping and the regulated nitrogen source. If the
nitrogen is introduced through the vapor recovery nozzle,
apply a file of lubricant to the faceplate of the nozzle to be
tested and insert the nozzle into the fillpipe simulator of the
test device. The nozzle must fit tightly.
vii. Zero the pressure gauges.
viii. Adjust the pressure regulators and the pressure
drop panel flow control valve to produce a nitrogen flow rate
of 60 SCFH. Note the response and reading of the pressure
gauge immediately upstream of the vapor piping, i.e., at the
entrance to the nozzle. Record the backpressure reading on a
data form acceptable to the Department.
ix. If during the "Wet Test" the backpressure
gauge pegs at full scale or continuously fluctuates, note this
in the "Comments" section for the nozzle being tested.
x. If the system failed to meet the criteria for
passage set forth below in Section e.2., make necessary
repairs or adjustments to the tested piping to eliminate the
blockage.
xi. For Stage II balance systems with remote vapor
check valves, carefully reassemble the remote vapor check
valve by removing the plug on the fuel side and reinserting
the fuel poppet. Replace the threaded fuel plug.
xii. Repeat Steps d.2.1. through d.2.xi. for each
nozzle/vapor return piping inlet associated with the vapor
return line being tested.
xiii. After completion of the Liquid Blockage (Wet)
Test for all nozzles connected to the vapor return line, close
and cap the underground storage tank vapor drybreak valves
and remove the closures from the tank vent pipes.
e. TEST STANDARDS
1. Dynamic Backpressure (Dry) Test: The system
passes the Dynamic Backpressure (Dry) Test if at the
nitrogen flow rates of 20, 60, and 100 SCFH, the flow
resistance measured does not exceed the following pressure
limits:
i. 0.15 inches of water gauge at 20 SCFH
ii. 0.45 inches of water gauge at 60 SCFH
iii. 0.95 inches of water gauge at 100 SCFH
2. Liquid Blockage (Wet) Test: The system fails if the
backpressure gauge pegs at full scale or continuously
fluctuates during the "Wet Test", or if the "Wet Test"
backpressure reading at 60 SCFH flow rate exceeds the
maximum standard of 0.45 inches of water gauge prescribed
in the applicable CARB Executive Orders.
f. REPORTING REQUIREMENTS. The owner shall
submit a copy of the results of all test failures to the
Department within ten (10) working days of the test. It is the
ultimate responsibility of the owner of the facility to make
sure that the necessary documentation is submitted to the
Department; however, the Department will accept test
documentation directly from the contractor performing the
tests. It is also the owner's responsibility to see that test
results are maintained in a file at the gasoline dispensing
facility. Material in this Appendix has been derived from
guidance in Chapter 3 2 and Appendix C of EPA's draft CTG
for Batch Processes (EPA-453/R-93-017).
DIVISION OF AIR & WASTE MANAGEMENT
Air Quality Management Section
Statutory Authority: 7 Delaware Code,
Chapters 60, (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-0049
RE:Consumer Products Rulemaking to Reduce VOC's
(Reguluation No. 41, Section 2)
Date of Issuance: December 10, 2001
Effective Date of the Amendment: January 11, 2002
I. Background:
A public hearing for Regulation No. 41, "Limiting
Emissions of Volatile Organic Compounds From Consumer
and Commercial Products", Section 2, "Consumer
Products", was held starting at 6:00 p.m. on Thursday,
September 27, 2001, in the auditorium of the DNREC
Richardson and Robbins building in Dover.
Based on Start Action Notice 2001-02, the Department
proposes to adopt a new regulation for certain consumer
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1498 FINAL REGULATIONS
products using as a template the model rule developed earlier
this year by the Ozone Transport Commission (OTC). This
regulation is more stringent than the Federal rule (40 CFR
59, Subpart C, published 09/11/98), and has 89 categories of
regulated products as compared to 42 in the Federal rule.
This regulation is one of several to be adopted this year,
which will reduce volatile organic compound (VOC) and
NOx emissions, thus reducing ground-level ozone
concentrations such that Delaware may attain the 1-hour
National Ambient Air Quality Standard (NAAQS) for
ozone.
The OTC model rule was prepared by the
representatives of the environmental control groups of states
that make up the OTC. These are: Connecticut, Delaware,
District of Columbia, Maryland, Massachusetts, Maine, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, Virginia and Vermont. Most have a similar problem
meeting the EPA ground-level ozone NAAQS and plan to
adopt the consumer products model rule in the near future.
Delaware is the first of the OTC states to propose a rule for
adoption. All the OTC states signed a Memorandum of
Understanding (MOU-01-1, Public Record Document
Number 16) pledging to propose, unchanged, the model rule
VOC contents. A guiding principle in developing the
Delaware version of the OTC model rule was to maintain
conformity, where possible, with the model rule.
II. Findings & Recommendations:
The discussions surrounding each comment as set forth
in the Response Document are well-reasoned and thorough
and lead the author to reach conclusions on each point.
These conclusions either agree with the commenter and
propose a minor change to address the concern, or they
demonstrate how the proposed rule already accomplishes the
intended purpose. In a few situations, such as the
"Innovative Products Exemption", the Department proposes
revisions to allow for acceptance in Delaware of an IPE from
another OTC state, but proposes adding language that would
allow Delaware to reject an IPE for cause so that this agency
does not merely "rubber stamp" such decisions from
elsewhere. In short, Air Quality Management (AQM) has
developed reasoned responses based on the record, and,
where possible, has accommodated industry concerns while
preserving the essence of the OTC regional effort.
In view of the above, it is hereby ordered that the proposed
rule be revised, consistent with AQM's suggestions, and
promulgated in the customary manner, and that the
following findings be made:
1. Proper notice of the hearing was provided as
required by law.
2. The conclusions reached by AQM in its
Response Document reflect a reasoned analysis of each issue
based on the record, and represent sound findings which may
be relied on in fashioning an appropriate Order.
Accordingly, those responses and conclusions constitute
specific findings and are hereby incorporated into the
Secretary's Order as such.
3. The recommendations in the Response
Document further the policies and purposes of 7 Del.C. Ch.
60 by achieving necessary VOC reductions to improve air
quality, while at the same time providing flexibility to
industry where appropriate.
III. Order
In view of the above findings, it is hereby ordered that
the proposed Consumer Products regulation be revised in
accordance with suggestions in AQM's Response Document
and further that it then be promulgated in the customary
manner.
IV. Reasons
This rulemaking meets Delaware's requirements for
VOC emission reductions while taking into account
industry's needs for flexibility and regional uniformity, in
furtherance of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale, Secretary
REGULATION NO. 41
LIMITING EMISSIONS OF VOLATILE ORGANIC
COMPOUNDS FROM CONSUMER
AND COMMERCIAL PRODUCTS
Section 2 - Consumer Products
[11/11/01 (This is the likely adoption date)]
a. Applicability
1. Except as provided in (a)(2) [, and (a)(3),] Section
2 shall apply to any person who sells, supplies, offers for
sale, or manufactures consumer products on and after
January 1, 2005 for use in the State of Delaware.
2. The provisions of Section 2 shall not apply to a
manufacturer or distributor who sells, supplies, or offers for
sale in the State of Delaware, a consumer product that does
not comply with the VOC standards specified in (c)(1), as
long as the manufacturer or distributor can demonstrate both
that the consumer product is intended for shipment and use
outside of the State of Delaware, and that the manufacturer
or distributor has taken reasonable prudent precautions to
assure that the consumer product is not distributed to the
State of Delaware. This does not apply to consumer
products that are sold, supplied, or offered for sale by any
person to retail outlets in the State of Delaware.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1499
3. The provisions of Section 2 shall not apply to a
retailer who sells, supplies or offers for sale in the State of
Delaware, a particular consumer product that does not
comply with the VOC standards specified in (c)(1), provided
that retailer demonstrates to the satisfaction of the
Department that the manufacturer or distributor of that
product mislead that retailer into believing that the product
did comply with the VOC standards specified in (c)(1).
b. Definitions
Terms used but not defined in Section 2 shall have the
meaning given them in Regulation No.1 or the CAA in that
order of priority.
1. "ACP (alternative control plan)" means an
emissions averaging program, established and managed by a
responsible ACP party which allows manufacturers to sell
ACP products in the State of Delaware pursuant to the
requirements of Section 2.
2. "ACP emissions" means the sum of the VOC
emissions from every ACP product subject to an ACP,
during the compliance period specified in the ACP,
expressed to the nearest pound of VOC and calculated
according to the following equation:
ACP Emissions ??(Emissions)1 ??(Emissions)2 ??... ??(Emissions) N
Emissions ??
(VOC Content) x (Enforceable Sales)
100
where,
For all products except for charcoal lighter material
products:
?
VOC Contents ??
[( B C) x 100]
A
where,
A = net weight of unit (excluding container
and packaging)
B = total weight of all VOCs per unit
C = total weight of all exempted VOCs per
unit, as specified in (c)(7) through (c)(12)
For charcoal lighter material products only:
VOC Content ??
(CertifiedEmissions x 100)
Certified Use Rate
where,
Certified Emissions= emissions level for products
specified (c)(4)(i)
Certified Use Rate = see (b)(33)
3. "ACP limit" means the maximum allowable ACP
emissions during the compliance period specified in an ACP,
expressed to the nearest pound of VOC and calculated
according to the following equation:
ACP Limit ???( Limit)1 ???( Limit)2 ??... ???( Limit) N
Limit ??
( APC Standard ) x (Enforceable Sales)
100
where,
Enforceable Sales=see (b)(54)
ACP Standard= see (b)(6)
1,2,...N = each product in an ACP up to the
maximum N.
4. "ACP product" means any consumer product
subject to the VOC standards specified in (c)(1), except
those products that have been exempted under (c), or
exempted as innovative products under (d) and is covered by
an ACP established by the responsible ACP party.
5. "ACP reformulation or ACP reformulated"
means the process of reducing the VOC content of an ACP
product, within the period that an ACP is in effect, to a level
which is less than the current VOC content of the product.
6. "ACP standard" means either the ACP product's
pre-ACP VOC content or the applicable VOC standard
specified in (c)(1), whichever is the lesser of the two.
7. "ACP VOC standard" means the maximum
allowable VOC content for an ACP product, determined as
follows:
i. the applicable VOC standard specified in (c)(1)
for all ACP products except for charcoal lighter material;
ii. for charcoal lighter material products only, the
VOC standard for the purposes of Section 2 shall be
calculated according to the following equation:
VOC Standard ??
(0.020 pound CH2 per start x 100)
Certified Use Rate
where,
0.020 = the certification emissions level
as specified in (c)(1).
Certified Use Rate = see (b)(33)
8. "Adhesive" means any product that is applied for
the purpose of bonding two surfaces together other than by
mechanical means. "Adhesive" does not include products
used on humans and animals, adhesive tape, contact paper,
wallpaper, shelf liners, or any other product with an adhesive
incorporated onto or in an inert substrate.
9. "Adhesive remover" means a product designed
exclusively for the removal of adhesives, caulk and other
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1500 FINAL REGULATIONS
bonding materials from a specific or a variety of substrates.
10. "Aerosol adhesive" means an aerosol product in
which the spray mechanism is permanently housed in a nonrefillable
can designed for hand-held application without the
need for ancillary hoses or spray equipment.
11. "Aerosol cooking spray" means any aerosol
product designed either to reduce sticking on cooking and
baking surfaces or to be applied on food, or both.
12. "Aerosol product" means a pressurized spray
system that dispenses product ingredients by means of a
propellant or mechanically induced force. "Aerosol
product" does not include pump sprays.
13. "Agricultural use" means the use of any pesticide
or method or device for the control of pests in connection
with the commercial production, storage or processing of
any animal or plant crop. "Agricultural use" does not include
the sale or use of pesticides in properly labeled packages or
containers which are intended for: (and defined for the
purposes of this definition only):
(i). home use which means use in a household or
its immediate environment,
(ii) structural pest control which means a use
requiring a license under Title 3 Chapter 12 of the Delaware
Code,
(iii) industrial use which means use for or in a
manufacturing, mining, or chemical process or use in the
operation of factories, processing plants, and similar sites,
and
(iv) institutional use which means use within the
lines of, or on property necessary for the operation of
buildings such as hospitals, schools, libraries, auditoriums,
and office complexes.
14. "Air freshener" means any consumer product
including, but not limited to, sprays, wicks, powders, and
crystals, designed for the purpose of masking odors, or
freshening, cleaning, scenting, or deodorizing the air. "Air
freshener" does not include products that are used on the
human body, products that function primarily as cleaning
products, disinfectant products claiming to deodorize by
killing germs on surfaces, or institutional/industrial
disinfectants when offered for sale solely through
institutional and industrial channels of distribution. "Air
freshener" does include spray disinfectants and other
products that are expressly represented for use as air
fresheners, except institutional and industrial disinfectants
when offered for sale through institutional and industrial
channels of distribution. To determine whether a product is
an air freshener, all verbal and visual representations
regarding product use on the label or packaging and in the
product's literature and advertising may be considered. The
presence of, and representations about, a product's fragrance
and ability to deodorize (resulting from surface application)
shall not constitute a claim of air freshening.
15. "All other carbon-containing compounds"
means all other compounds which contain at least one
carbon atom and are not exempt compounds or "LVPVOC's."
16. "All other forms" means all consumer product
forms for which no form-specific VOC standard is specified.
Unless specified otherwise by the applicable VOC standard,
"All other forms" include, but are not limited to, solids,
liquids, wicks, powders, crystals, and cloth or paper wipes
(towelettes).
17. "Anti-microbial hand or body cleaner or soap"
means a cleaner or soap designed to reduce the level of
microorganisms on the skin through germicidal activity.
"Anti-microbial hand or body cleaner or soap" includes, but
is not limited to, anti-microbial hand or body washes/
cleaners, food-handler hand washes, healthcare personnel
hand washes, pre-operative skin preparations and surgical
scrubs. "Anti-microbial hand or body cleaner or soap" does
not include prescription drug products, antiperspirants,
astringent/toner, deodorant, facial cleaner or soap, generaluse
hand or body cleaner or soap, hand dishwashing
detergent (including anti-microbial), heavy-duty hand
cleaner or soap, medicated astringent/medicated toner, and
rubbing alcohol.
18. "Antiperspirant" means any product including,
but not limited to, aerosols, roll-ons, sticks, pumps, pads,
creams, and squeeze-bottles, that is intended by the
manufacturer to be used to reduce perspiration in the human
axilla by at least 20 percent in at least 50 percent of a target
population.
19. "Architectural coating" means a coating applied
to stationary structures and their appurtenances, to mobile
homes, to pavements, or to curbs.
20. "ASTM" means the American Society for Testing
and Materials.
21. "Astringent/toner" means any product not
regulated as a drug by the United States Food and Drug
Administration (FDA) which is applied to the skin for the
purpose of cleaning or tightening pores. This category also
includes clarifiers and substrate-impregnated products. This
category does not include any hand, face, or body cleaner or
soap product, medicated astringent/medicated toner, cold
cream, lotion, or antiperspirant.
22. "Automotive brake cleaner" means a cleaning
product designed to remove oil, grease, brake fluid, brake
pad material or dirt from motor vehicle brake mechanisms.
23. "Automotive hard paste wax" means a motor
vehicle wax or polish which is:
(i) designed to protect and improve the
appearance of motor vehicle painted surfaces;
(ii) a solid at room temperature; and
(iii) contains 0% water by formulation.
24. "Automotive instant detailer" means a product
designed for use in a pump spray that is applied to motor
vehicle painted surfaces and wiped off prior to being allowed
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FINAL REGULATIONS 1501
to dry.
25. "Automotive rubbing or polishing compound"
means a product designed primarily to remove oxidation, old
paint, scratches or "swirl marks", and other defects from
motor vehicle painted surfaces without leaving a protective
barrier.
26. "Automotive wax, polish, sealant or glaze"
means a product designed to seal out moisture, increase
gloss, or otherwise enhance motor vehicle painted surfaces.
"Automotive wax, polish, sealant or glaze" includes, but is
not limited to, products designed for use in auto body repair
shops and drive-through car washes, as well as products
designed for the general public. "Automotive wax, polish,
sealant or glaze" does not include automotive rubbing or
polishing compounds, automotive wash and wax products,
surfactant-containing car wash products, and products
designed for use on unpainted surfaces such as bare metal,
chrome, glass, or plastic.
27. "Automotive windshield washer fluid" means
any liquid designed for use in a motor vehicle windshield
washer system either as an antifreeze or for the purpose of
cleaning, washing, or wetting the windshield. "Automotive
windshield washer fluid" does not include fluids placed by
the manufacturer in a new vehicle.
28. "Bathroom and tile cleaner" means a product
designed to clean tile or surfaces in bathrooms. "Bathroom
and tile cleaner" does not include products specifically
designed to clean toilet bowls or toilet tanks.
29. "Bug and tar remover" means a product designed
to remove either or both of the following from painted motor
vehicle surfaces without causing damage to the finish:
(i) biological-type residues such as insect
carcasses and tree sap and,
(ii) road grime, such as road tar, roadway paint
markings, and asphalt.
30. "CARB" means the California Air Resources
Board.
31. "Carburetor or fuel-injection air intake
cleaners" means a product designed to remove fuel deposits,
dirt, or other contaminants from a carburetor, choke, throttle
body of a fuel-injection system, or associated linkages.
"Carburetor or fuel-injection air intake cleaners" does not
include products designed exclusively to be introduced
directly into the fuel lines or fuel storage tank prior to
introduction into the carburetor or fuel injectors.
32. "Carpet and upholstery cleaner" means a
cleaning product designed for the purpose of eliminating dirt
and stains on rugs, carpeting, and the interior of motor
vehicles and/or on household furniture or objects
upholstered or covered with fabrics such as wool, cotton,
nylon or other synthetic fabrics. "Carpet and upholstery
cleaner" includes, but is not limited to, products that make
fabric protectant claims. "Carpet and upholstery cleaner"
does not include general purpose cleaners, spot removers,
vinyl or leather cleaners, dry cleaning fluids, or products
designed exclusively for use at industrial facilities engaged
in furniture or carpet manufacturing.
33. "Certified use rate" means the usage level for
charcoal lighter materials specified under (c)(4), expressed
to the nearest 0.001 pound of charcoal lighter materials used
per start.
34. "Charcoal lighter material" means any
combustible material designed to be applied on, incorporated
in, added to, or used with charcoal to enhance ignition.
"Charcoal lighter material" does not include any of the
following: electrical starters and probes; metallic cylinders
using paper tinder; natural gas; propane; and fat wood.
35. "Colorant" means any pigment or coloring
material used in a consumer product for an aesthetic effect,
or to dramatize an ingredient.
36. "Compliance period" means the period of time,
not to exceed one year, for which the ACP limit and ACP
emissions are calculated and for which compliance with the
ACP limit is determined, as specified in the ACP.
37. "Construction, panel, and floor covering
adhesive" means any one-component adhesive that is
designed exclusively for the installation, remodeling,
maintenance, or repair of:
(i) structural and building components that
include, but are not limited to, beams, trusses, studs,
paneling [drywall or drywall laminates, fiberglass reinforced
plastic (FRP), plywood, particle board, insulation board,
pre-decorated hardboard or tileboard, etc.], ceiling and
acoustical tile, molding, fixtures, countertops or countertop
laminates, cove or wall bases, and flooring or subflooring; or
(ii) floor or wall coverings that include, but are not
limited to, wood or simulated wood covering, carpet, carpet
pad or cushion, vinyl-backed carpet, flexible flooring
material, non-resilient flooring material, mirror tiles and
other types of tiles, and artificial grass.
"Construction, panel, and floor covering
adhesive" does not include floor seam sealer.
38. "Consumer" means any person who purchases, or
acquires any consumer product for personal, family,
household, or institutional use. Persons acquiring a
consumer product for resale are not consumers for that
product.
39. "Consumer product" means a chemically
formulated product used by household and institutional
consumers including, but not limited to: [antiperspirants;]
detergents; [deodorants;] cleaning compounds; polishes;
floor finishes; cosmetics; personal care products; home,
lawn, and garden products; disinfectants; sanitizers; aerosol
paints; and automotive specialty products, but does not
include other paint products, furniture coatings, or
architectural coatings.
40. "Contact adhesive" means an adhesive that:
(i) is designed for application to both surfaces to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1502 FINAL REGULATIONS
be bonded together;
(ii) is allowed to dry before the two surfaces are
placed in contact with each other;
(iii) forms an immediate bond that is impossible, or
difficult, to reposition after both adhesive-coated surfaces
are placed in contact with each other; and
(iv) does not need sustained pressure or clamping
of surfaces after the adhesive-coated surfaces have been
brought together using sufficient momentary pressure to
establish full contact between both surfaces.
"Contact adhesive" does not include rubber
cements that are primarily intended for use on paper
substrates.
41. "Container/packaging" means the part or parts of
the consumer or institutional product which serve only to
contain, enclose, incorporate, deliver, dispense, wrap or
store the chemically formulated substance or mixture of
substances which is solely responsible for accomplishing the
purposes for which the product was designed or intended.
"Container/packaging" includes any article onto or into
which the principal display panel and other accompanying
literature or graphics are incorporated, etched, printed or
attached.
42. "Contact person" means a representative(s) that
has been designated by the responsible ACP party for the
purpose of reporting or maintaining any information
specified in the ACP.
43. "Crawling bug insecticide" means any insecticide
product that is designed for use against ants, cockroaches, or
other household crawling arthropods, including, but not
limited to, mites, silverfish or spiders. "Crawling bug
insecticide" does not include products designed to be used
exclusively on humans or animals, or any house dust mite
product. For the purposes of this definition only:
(i) house dust mite product means a product
whose label, packaging or accompanying literature states
that the product is suitable for use against house dust mites,
but does not indicate that the product is suitable for use
against ants, cockroaches, or other household crawling
arthropods, and
(ii) house dust mite means mites which feed
primarily on skin cells shed in the home by humans and pets
and which belong to the phylum Arthropoda, the subphylum
Chelicerata, the class Arachnida, the subclass Acari, the
order Astigmata, and the family Pyroglyphidae.
44. "Date-code" means the day, month and year on
which the consumer product was manufactured, filled, or
packaged, or a code indicating such a date.
45. "Delaware sales" means the sales (net pounds of
product, less packaging and container, per year) in Delaware
for a specified calendar year. If direct sales data for the State
of Delaware are not available, sales may be estimated by
prorating national or regional sales data by population.
46. "Deodorant" means any product including, but
not limited to, aerosols, roll-ons, sticks, pumps, pads,
creams, and squeeze-bottles, that is intended by the
manufacturer to be used to minimize odor in the human
axilla by retarding the growth of bacteria which cause the
decomposition of perspiration.
47. "Device" means any instrument or contrivance
(other than a firearm) which is designed for trapping,
destroying, repelling, or mitigating any pest or any other
form of plant or animal life (other than man and other than
bacteria, virus, or other microorganism on or in living man
or other living animals); but not including equipment used
for the application of pesticides when sold separately
therefrom.
48. "Disinfectant" means any product intended to
destroy or irreversibly inactivate infectious or other
undesirable bacteria, pathogenic fungi, or viruses on surfaces
or inanimate objects and whose label is registered under the
Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA, 7 U.S.C. 136, et seq.) and Title 3 Chapter 12 of the
Delaware Code. "Disinfectant" does not include any of the
following:
(i) products designed solely for use on human or
animals;
(ii) products designed for agricultural use;
(iii) products designed solely for use in swimming
pools, therapeutic tubs, or hot tubs;
(iv) products which, as indicated on the principal
display panel or label, are designed primarily for use as
bathroom and tile cleaners, glass cleaners, general purpose
cleaners, toilet bowl cleaners, or metal polishes.
49. "Distributor" means any person to whom a
consumer product is sold or supplied for the purposes of
resale or distribution in commerce, except that
manufacturers, retailers, and consumers are not distributors.
50. "Double-phase aerosol air freshener" means an
aerosol air freshener with the liquid contents in two or more
distinct phases that requires the product container be shaken
before use to mix the phases, producing an emulsion.
51. "Dry cleaning fluid" means any non-aqueous
liquid product designed and labeled exclusively for use on:
fabrics which are labeled "for dry clean only", such as
clothing or drapery; or S-coded fabrics. "Dry cleaning fluid"
includes, but is not limited to, those products used by
commercial dry cleaners and commercial businesses that
clean fabrics such as draperies at the customer's residence or
work place. "Dry cleaning fluid" does not include spot
remover or carpet and upholstery cleaner. For the purposes
of this definition, S-coded fabric means an upholstery fabric
designed to be cleaned only with water-free spot cleaning
products as specified by the Joint Industry Fabric Standards
Committee.
52. "Dusting aid" means a product designed to assist
in removing dust and other soils from floors and other
surfaces without leaving a wax or silicone based coating.
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FINAL REGULATIONS 1503
"Dusting aid" does not include products which consist
entirely of compressed gases for use in electronic or other
specialty areas.
53. "Electronic cleaner" means a product designed
specifically for the removal of dirt, grease or grime from
electrical equipment such as electric motors, circuit boards,
electricity panels, and generators.
54. "Enforceable sales" means the total amount of an
ACP product sold for use in the State of Delaware, during
the applicable compliance period specified in the ACP, as
determined through enforceable sales records (expressed to
the nearest pound, excluding product container and
packaging).
55. "Enforceable sales record" means a written,
point-of-sale record or any other Department-approved
system of documentation from which the mass, in pounds
(less product container and packaging), of an ACP product
sold to the end user in the State of Delaware during the
applicable compliance period can be accurately documented.
For the purposes of Section 2, "Enforceable sales records"
include, but are not limited to, the following types of
records:
(i) accurate records of direct retail or other outlet
sales to the end user during the applicable compliance
period;
(ii) accurate compilations, made by independent
market surveying services, of direct retail or other outlet
sales to the end users for the applicable compliance period,
provided that a detailed method which can be used to verify
any data comprising such summaries is recorded by the
responsible ACP party;
(iii) any other accurate product sales records
approved by the Department as meeting the criteria specified
in (b)(55).
56. "Engine degreaser" means a cleaning product
designed to remove grease, grime, oil and other
contaminants from the external surfaces of engines and other
mechanical parts.
57. "Exempt compound" means any carboncontaining
compound listed as an exception to the definition
of VOC's in Regulation No. 1.
58. "Fabric protectant" means a product designed to
be applied to fabric substrates to protect the surface from
soiling from dirt and other impurities or to reduce absorption
of liquid into the fabric's fibers. "Fabric protectant" does not
include waterproofers, products designed for use solely on
leather, or products designed for use solely on fabrics which
are labeled "for dry clean only" and sold in containers of 10
fluid ounces or less.
59. "Facial cleaner or soap" means a cleaner or soap
designed primarily to clean the face. "Facial cleaner or
soap" includes, but is not limited to, facial cleansing creams,
gels, liquids, lotions, and substrate-impregnated forms.
"Facial cleaner or soap" does not include prescription drug
products, antimicrobial hand or body cleaner or soap,
astringent/toner, general-use hand or body cleaner or soap,
medicated astringent/medicated toner, or rubbing alcohol.
60. "Fat wood" means pieces of wood kindling with
high naturally-occurring levels of sap or resin which enhance
ignition of the kindling. "Fat wood" does not include any
kindling with substances added to enhance flammability,
such as wax-covered or wax-impregnated wood-based
products.
61. "Flea and tick insecticide" means any insecticide
product that is designed for use against fleas, ticks, their
larvae, or their eggs. "Flea and tick insecticide" does not
include products that are designed to be used exclusively on
humans or animals and their bedding.
62. "Flexible flooring material" means asphalt, cork,
linoleum, no-wax, rubber, seamless vinyl and vinyl
composite flooring.
63. "Floor polish or wax" means a wax, polish, or any
other product designed to polish, protect, or enhance floor
surfaces by leaving a protective coating that is designed to be
periodically replenished. "Floor polish or wax" does not
include spray buff products, products designed solely for the
purpose of cleaning floors, floor finish strippers, products
designed for unfinished wood floors, and coatings subject to
architectural coatings regulations.
64. "Floor seam sealer" means any product designed
and labeled exclusively for bonding, fusing, or sealing
(coating) seams between adjoining rolls of installed flexible
sheet flooring.
65. "Floor wax stripper" means a product designed to
remove natural or synthetic floor polishes or waxes through
breakdown of the polish or wax polymers, or by dissolving
or emulsifying the polish or wax. "Floor wax stripper" does
not include aerosol floor wax strippers or products designed
to remove floor wax solely through abrasion.
66. "Flying bug insecticide" means any insecticide
product that is designed for use against flying insects or
other flying arthropods, including but not limited to flies,
mosquitoes, moths, or gnats. "Flying bug insecticide" does
not include wasp and hornet insecticide, products that are
designed to be used exclusively on humans or animals, or
any moth-proofing product. For the purposes of this
definition only, moth-proofing product means a product
whose label, packaging, or accompanying literature indicates
that the product is designed to protect fabrics from damage
by moths, but does not indicate that the product is suitable
for use against flying insects or other flying arthropods.
67. "Fragrance" means a substance or complex
mixture of aroma chemicals, natural essential oils, and other
functional components, the sole purpose of which is to
impart an odor or scent, or to counteract a malodor.
68. "Furniture maintenance product" means a wax,
polish, conditioner, or any other product designed for the
purpose of polishing, protecting or enhancing finished wood
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1504 FINAL REGULATIONS
surfaces other than floors. "Furniture maintenance product"
does not include dusting aids, products designed solely for
the purpose of cleaning, and products designed to leave a
permanent finish such as stains, sanding sealers and
lacquers.
69. "Furniture coating" means any paint designed for
application to room furnishings including, but not limited to,
cabinets (kitchen, bath and vanity), tables, chairs, beds, and
sofas.
70. "Gel" means a colloid in which the disperse phase
has combined with the continuous phase to produce a
semisolid material, such as jelly.
71. "General purpose adhesive" means any nonaerosol
adhesive designed for use on a variety of substrates.
"General purpose adhesive" does not include:
(i) contact adhesives;
(ii) construction, panel, and floor covering
adhesives;
(iii) adhesives designed exclusively for application
on one specific category of substrates (i.e., substrates that are
composed of similar materials, such as different types of
metals, paper products, ceramics, plastics, rubbers, or
vinyls); or
(iv) adhesives designed exclusively for use on one
specific category of articles (i.e., articles that may be
composed of different materials but perform a specific
function, such as gaskets, automotive trim, weatherstripping,
or carpets).
72. "General purpose cleaner" means a product
designed for general all-purpose cleaning, in contrast to
cleaning products designed to clean specific substrates in
certain situations. "General purpose cleaner" includes
products designed for general floor cleaning, kitchen or
countertop cleaning, and cleaners designed to be used on a
variety of hard surfaces and does not include general purpose
degreasers and electronic cleaners.
73. "General purpose degreaser" means any product
designed to remove or dissolve grease, grime, oil and other
oil-based contaminants from a variety of substrates,
including automotive or miscellaneous metallic parts.
"General purpose degreaser" does not include engine
degreaser, general purpose cleaner, adhesive remover,
electronic cleaner, metal polish/cleanser, products used
exclusively in solvent cleaning tanks or related equipment,
or products that are:
(i) sold exclusively to establishments which
manufacture or construct goods or commodities; and
(ii) labeled "not for retail sale".
Solvent cleaning tanks or related equipment
includes, but is not limited to, cold cleaners, vapor
degreasers, conveyorized degreasers, film cleaning
machines, or products designed to clean miscellaneous
metallic parts by immersion in a container.
74. "General-use hand or body cleaner or soap"
means a cleaner or soap designed to be used routinely on the
skin to clean or remove typical or common dirt and soils.
"General-use hand or body cleaner or soap" includes, but is
not limited to, hand or body washes, dual-purpose shampoobody
cleaners, shower or bath gels, and moisturizing
cleaners or soaps. "General-use hand or body cleaner or
soap" does not include prescription drug products, antimicrobial
hand or body cleaner or soap, astringent/toner,
facial cleaner or soap, hand dishwashing detergent
(including anti-microbial), heavy-duty hand cleaner or soap,
medicated astringent/medicated toner, or rubbing alcohol.
75. "Glass cleaner" means a cleaning product
designed primarily for cleaning surfaces made of glass.
"Glass cleaner" does not include products designed solely
for the purpose of cleaning optical materials used in
eyeglasses, photographic equipment, scientific equipment
and photocopying machines.
76. "Gross Delaware sales" means the estimated total
State of Delaware sales of an ACP product during a specific
compliance period (expressed to the nearest pound), based
on either of the following methods, whichever the
responsible ACP party determines will provide an accurate
State of Delaware sales estimate:
(i) apportionment of national or regional sales of
the ACP product to State of Delaware sales, determined by
multiplying the average national or regional sales of the
product by the fraction of the national or regional
population, respectively, that is represented by the State of
Delaware's current population; or
(ii) any other documented method which provides
an accurate estimate of the total current State of Delaware
sales of the ACP product.
77. "Hair mousse" means a hairstyling foam designed
to facilitate styling of a coiffure and provide limited holding
power.
78. "Hair shine" means any product designed for the
primary purpose of creating a shine when applied to the hair.
"Hair shine" includes, but is not limited to, dual-use products
designed primarily to impart a sheen to the hair. "Hair
shine" does not include hair spray, hair mousse, hair styling
gel or spray gel, or products whose primary purpose is to
condition or hold the hair.
79. "Hair styling gel" means a high viscosity, often
gelatinous, product that contains a resin and is designed for
application to hair to aid in styling and sculpting of the hair
coiffure.
80. "Hair spray" means a consumer product designed
primarily for the purpose of dispensing droplets of a resin on
and into a hair coiffure which will impart sufficient rigidity
to the coiffure to establish or retain the style for a period of
time.
81. "Heavy-duty hand cleaner or soap" means a
product designed to clean or remove difficult dirt and soils
such as oil, grease, grime, tar, shellac, putty, printer's ink,
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FINAL REGULATIONS 1505
paint, graphite, cement, carbon, asphalt, or adhesives from
the hand with or without the use of water. "Heavy-duty hand
cleaner or soap" does not include prescription drug products,
anti-microbial hand or body cleaner or soap, astringent/
toner, facial cleaner or soap, general-use hand or body
cleaner or soap, medicated astringent/medicated toner or
rubbing alcohol.
82. "Herbicide" means a pesticide product designed
to kill or retard a plant's growth, but excludes products that
are; for agricultural use, or restricted materials that require a
permit for use and possession.
83. "High volatility organic compound (HVOC)"
means any volatile organic compound that exerts a vapor
pressure greater than 80 mm Hg when measured at 20oC.
84. "Household product" means any consumer
product that is primarily designed to be used inside or
outside of living quarters or residences that are occupied or
intended for occupation by individuals, including the
immediate surroundings.
85. "Insecticide" means a pesticide product that is
designed for use against insects or other arthropods, but
excluding products that are:
(i) for agricultural use;
(ii) for a use which requires a structural pest
control license under Title 3 Chapter 12 of the Delaware
Code; or
(iii) restricted materials that require a permit for use
and possession.
86. "Insecticide fogger" means any insecticide
product designed to release all or most of its content, as a fog
or mist, into indoor areas during a single application.
87. "Institutional product" or "Industrial and
institutional (I&I) product" means a consumer product that is
designed for use in the maintenance or operation of an
establishment that:
(i) manufactures, transports, or sells goods or
commodities, or provides services for profit; or
(ii) is engaged in the nonprofit promotion of a
particular public, educational, or charitable cause.
Establishments include, but are not limited to,
government agencies, factories, schools, hospitals,
sanitariums, prisons, restaurants, hotels, stores, automobile
service and parts centers, health clubs, theaters, or
transportation companies. "Institutional product" does not
include household products and products that are
incorporated into or used exclusively in the manufacture or
construction of the goods or commodities at the site of the
establishment.
88. "Label" means any written, printed, or graphic
matter affixed to, applied to, attached to, blown into, formed,
molded into, embossed on, or appearing upon any consumer
product or consumer product package, for purposes of
branding, identifying, or giving information with respect to
the product or to the contents of the package.
89. "Laundry prewash" means a product that is
designed for application to a fabric prior to laundering and
that supplements and contributes to the effectiveness of
laundry detergents and/or provides specialized performance.
90. "Laundry starch product" means a product that
is designed for application to a fabric, either during or after
laundering, to impart and prolong a crisp, fresh look and may
also act to help ease ironing of the fabric. "Laundry starch
product" includes, but is not limited to, fabric finish, sizing,
and starch.
91. "Lawn and garden insecticide" means an
insecticide product designed primarily to be used in
household lawn and garden areas to protect plants from
insects or other arthropods.
92. "Liquid" means a substance or mixture of
substances which is capable of a visually detectable flow as
determined under ASTM D-4359-90, incorporated by
reference in (h)(3). "Liquid" does not include powders or
other materials that are composed entirely of solid particles.
93. "Lubricant" means a product designed to reduce
friction, heat, noise, or wear between moving parts, or to
loosen rusted or immovable parts or mechanisms.
"Lubricant" does not include:
(i) automotive power steering fluids;
(ii) products for use inside power generating
motors, engines, and turbines, and their associated powertransfer
gearboxes;
(iii) two cycle oils or other products designed to be
added to fuels;
(iv) products for use on the human body or animals;
or products that are
(a) sold exclusively to establishments which
manufacture or construct goods or commodities, and
(b) labeled "not for retail sale".
94. "LVP content" means the total weight, in pounds,
of LVP-VOC compounds in an ACP product multiplied by
100 and divided by the product's total net weight, in pounds,
excluding container and packaging, expressed to the nearest
0.1 percent.
95. "LVP-VOC" means a low vapor pressure
chemical compound or mixture that contains at least one
carbon atom and meets one of the following:
(i) has a vapor pressure less than 0.1 mm Hg at
20oC, as determined by CARB Method 310, incorporated by
reference in (h)(1); or
(ii) is a chemical "compound" with more than 12
carbon atoms, or a chemical "mixture" comprised solely of
"compounds" with more than 12 carbon atoms, and the
vapor pressure is unknown; or
(iii) is a chemical "compound" with a boiling point
greater than 216oC, as determined by CARB Method 310,
incorporated by reference in (h)(1); or
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(iv) is the weight percent of a chemical "mixture"
that boils above 216o C, as determined by CARB Method
310, incorporated by reference in (h)(1).
For the purposes of the definition of LVP-VOC,
chemical compound means a molecule of definite chemical
formula and isomeric structure, and chemical mixture means
a substrate comprised of two or more chemical compounds.
96. "Manufacturer" means any person who imports,
manufactures, assembles, produces, packages, repackages,
or relabels a consumer product.
97. "Medicated astringent/medicated toner" means
any product regulated as a drug by the FDA which is applied
to the skin for the purpose of cleaning or tightening pores.
"Medicated astringent/medicated toner" includes, but is not
limited to, clarifiers and substrate-impregnated products.
"Medicated astringent/medicated toner" does not include
hand, face, or body cleaner or soap products, astringent/
toner, cold cream, lotion, antiperspirants, or products that
must be purchased with a doctor's prescription.
98. "Medium volatility organic compound
(MVOC)" means any volatile organic compound that exerts
a vapor pressure greater than 2 mm Hg and less than or equal
to 80 mm Hg when measured at 20oC.
99. "Metal polish/cleanser" means any product
designed primarily to improve the appearance of finished
metal, metallic, or metallized surfaces by physical or
chemical action. To improve the appearance means to
remove or reduce stains, impurities, or oxidation from
surfaces or to make surfaces smooth and shiny. "Metal
polish/cleanser" includes, but is not limited to, metal
polishes used on brass, silver, chrome, copper, stainless steel
and other ornamental metals. "Metal polish/cleanser" does
not include: automotive wax, polish, sealant or glaze; wheel
cleaner; paint remover or stripper; products designed and
labeled exclusively for automotive and marine detailing; or,
products designed for use in degreasing tanks.
100. "Missing data days" means the number of days in
a compliance period for which the responsible ACP party
has failed to record the required enforceable sales or VOC
content data, as specified in the ACP.
101. "Mist spray adhesive" means any aerosol which
is not a special purpose spray adhesive and which delivers a
particle or mist spray, resulting in the formation of fine,
discrete particles that yield a generally uniform and smooth
application of adhesive to the substrate.
102. "Multi-purpose dry lubricant" means any
lubricant which is:
(i) designed and labeled to provide lubricity by
depositing a thin film of graphite, molybdenum disulfide
("moly"), or polytetrafluoroethylene or closely related
fluoropolymer ("Teflon") on surfaces; and
(ii) designed for general purpose lubrication, or for
use in a wide variety of applications.
103. "Multi-purpose lubricant" means any lubricant
designed for general purpose lubrication, or for use in a wide
variety of applications. "Multi-purpose lubricant" does not
include: multi-purpose dry lubricants; penetrants; or,
silicone-based multi-purpose lubricants.
104. "Multi-purpose solvent" means any organic
liquid designed to be used for a variety of purposes,
including cleaning or degreasing of a variety of substrates, or
thinning, dispersing or dissolving other organic materials.
"Multi-purpose solvent" includes solvents used in
institutional facilities, except for laboratory reagents used in
analytical, educational, research, scientific or other
laboratories. "Multi-purpose solvent" does not include
solvents used in cold cleaners, vapor degreasers,
conveyorized degreasers or film cleaning machines, or
solvents that are incorporated into, or used exclusively in the
manufacture or construction of, the goods or commodities at
the site of the establishment.
105. "Nail polish" means any clear or colored coating
designed for application to the fingernails or toenails and
including but not limited to, lacquers, enamels, acrylics, base
coats and top coats.
106. "Nail polish remover" means a product designed
to remove nail polish and coatings from fingernails or
toenails.
107. "Non-aerosol product" means any consumer
product that is not dispensed by a pressurized spray system.
108. "Non-carbon containing compound" means any
compound which does not contain carbon atoms.
109. "Non-resilient flooring" means flooring of a
mineral content which is not flexible. "Non-resilient
flooring" includes terrazzo, marble, slate, granite, brick,
stone, ceramic tile and concrete.
110. "Non-selective terrestrial herbicide" means a
terrestrial herbicide product that is toxic to plants without
regard to species.
111. "One-product business" means a responsible
ACP party which sells, supplies, offers for sale, or
manufactures for use in the State of Delaware:
(i) only one distinct ACP product, sold under one
product brand name, which is subject to the requirements of
(c); or
(ii) only one distinct ACP product line subject to
the requirements of (c), in which all the ACP products
belong to the same product category(ies) and the VOC
contents in the products are within 98.0% and 102.0% of the
arithmetic mean of the VOC contents over the entire product
line.
[112. "OTC state" means any of the following,
considered to be in the Ozone Transport Region as
defined in the CAA and members of the Ozone
Transport Commission (OTC): Connecticut, Delaware,
District of Columbia, Maryland, Massachusetts, Maine,
New Hampshire, New Jersey, New York, Pennsylvania,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1507
Rhode Island, Virginia and Vermont.]
[112 113]. "Oven cleaner" means any cleaning product
designed to clean and to remove dried food deposits from
oven interiors.
[113 114.] "Paint" means any pigmented liquid,
liquefiable, or mastic composition designed for application
to a substrate in a thin layer which is converted to an opaque
solid film after application and is used for protection,
decoration or identification, or to serve some functional
purpose such as the filling or concealing of surface
irregularities or the modification of light and heat radiation
characteristics.
[114 115]. "Paint remover or stripper" means any
product designed to strip or remove paints or other related
coatings, by chemical action, from a substrate without
markedly affecting the substrate. "Paint remover or stripper"
does not include:
(i) multi-purpose solvents;
(ii) paint brush cleaners;
(iii) products designed and labeled exclusively to
remove graffiti; and
(iv) hand cleaner products that claim to remove
paints and other related coatings from skin.
[115 116]. "Penetrant" means a lubricant designed and
labeled primarily to loosen metal parts that have bonded
together due to rusting, oxidation, or other causes.
"Penetrant" does not include multi-purpose lubricants that
claim to have penetrating qualities, but are not labeled
primarily to loosen bonded parts.
[116 117]. "Pesticide" means any substance or mixture
of substances labeled, designed, or intended for use in
preventing, destroying, repelling or mitigating any pest, or
any substance or mixture of substances labeled, designed, or
intended for use as a defoliant, desiccant, or plant regulator,
provided that the term "pesticide" will not include any
substance, mixture of substances, or device which the United
States Environmental Protection Agency does not consider a
pesticide. (EPA Office of Pesticide Programs or see http://
www.epa.gov/opppmsd1/PPISdata/index.html.)
[117 118] "Pre-ACP VOC content" means the lowest
VOC content of an ACP product between January 1, 1990
and the date on which the ACP was established by the
manufacturer, based on available Delaware sales records, or
other accurate records, whichever yields the lowest VOC
content for the product. If a valid ACP is in force in another
state, product data from that state may be used if it yields the
lowest VOC content for the product.
[118 119]. "Principal display panel or panels" means
that part, or those parts of a label that are so designed as to
most likely be displayed, presented, shown or examined
under normal and customary conditions of display or
purchase. Whenever a principal display panel appears more
than once, all requirements pertaining to the "Principal
display panel" shall pertain to all such "Principal display
panels".
[119 120]. "Product brand name" means the name of
the product exactly as it appears on the principal display
panel of the product.
[120 121]. "Product category" means the applicable
category which best describes the product as listed in (b).
[122. "Product form" means the form that most
accurately describes the products' dispensing form
including aerosols, gels, solids liquids and pump sprays.]
[121 123]. "Product line" means a group of products of
identical form and function belonging to the same product
category(ies).
[122 124]. "Propellant" means a liquefied or
compressed gas that is used in whole or in part, such as a cosolvent,
to expel a liquid or any other material from the same
self-pressurized container or from a separate container.
[123 125]. "Pump spray" means a packaging system in
which the product ingredients within the container are not
under pressure and in which the product is expelled only
while a pumping action is applied to a button, trigger or
other actuator.
[124 126]. "Reconcile or reconciliation" means to
provide sufficient VOC emission reductions to completely
offset any shortfalls generated under the ACP during an
applicable compliance period.
[125 127]. "Reconciliation of shortfalls plan" means
the plan to be implemented by the responsible ACP party
when shortfalls have occurred, pursuant to (j)(2)(vii)(j).
[126 128]. "Responsible party" means the company,
firm or establishment which is listed on the product's label.
If the label lists two companies, firms or establishments, the
responsible party is the party which the product was
"manufactured for" or "distributed by", as noted on the label.
[127 129]. "Responsible ACP party" means the
company, firm or establishment which is listed on the ACP
product's label. If the label lists two or more companies,
firms, or establishments, the "Responsible ACP party" is the
party which the ACP product was "manufactured for" or
"distributed by", as noted on the label.
[128 130]. "Restricted materials" means pesticides
established as restricted materials under Title 3 Chapter 12
of the Delaware Code or under the Federal Insecticide,
Fungicide and Rodenticide Act (7 U. S. C. Section 136 et
seq.)
[129 131] "Retailer" means any person who sells,
supplies, or offers consumer products for sale directly to
consumers.
[130 132]. "Retail outlet" means any establishment at
which consumer products are sold, supplied, or offered for
sale directly to consumers.
[131 133]. 'Roll-on product" means any antiperspirant
or deodorant that dispenses active ingredients by rolling a
wetted ball or wetted cylinder on the affected area.
[132 134] "Rubber and vinyl protectant" means any
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1508 FINAL REGULATIONS
product designed to protect, preserve or renew vinyl, rubber,
and plastic on vehicles, tires, luggage, furniture, and
household products such as vinyl covers, clothing, and
accessories. "Rubber and vinyl protectant" does not include
products primarily designed to clean the wheel rim, such as
aluminum or magnesium wheel cleaners, and tire cleaners
that do not leave an appearance-enhancing or protective
substance on the tire.
[133 135]. "Rubbing alcohol" means any product
containing isopropyl alcohol (also called isopropanol) or
denatured ethanol and labeled for topical use, usually to
decrease germs in minor cuts and scrapes, to relieve minor
muscle aches, as a rubefacient, and for massage.
[134 136]. "SCAQMD" means the South Coast Air
Quality Management District, a part of the California Air
Resources Board which is responsible for regulation of air
quality in the State of California.
[135 137]. "Sealant and caulking compound" means
any product with adhesive properties that is designed to fill,
seal, waterproof, or weatherproof gaps or joints between two
surfaces. "Sealant and caulking compound" does not
include:
(i) roof cements and roof sealants;
(ii) insulating foams;
(iii) removable caulking compounds;
(iv) clear/paintable/water resistant caulking
compounds;
(v) floor seam sealers;
(vi) products designed exclusively for automotive
uses; or
(vii)sealers that are applied as continuous coatings.
For the purposes of this definition only, removable
caulking compound means a compound which temporarily
seals windows or doors for three to six month time intervals,
and clear/paintable/water resistant caulking compounds
means a compound which contains no appreciable level of
opaque fillers or pigments; transmits most or all visible light
through the caulk when cured; is paintable; and is
immediately resistant to precipitation upon application.
[136 138]. "Semisolid" means a product that, at room
temperature, will not pour, but will spread or deform easily,
including gels, pastes, and greases.
[137 139]. "Shaving cream" means an aerosol product
which dispenses a foam lather intended to be used with a
blade or cartridge razor, or other wet-shaving system, in the
removal of facial or other bodily hair.
[138 140]. "Shortfall" means the ACP emissions minus
the ACP limit when the ACP emissions were greater than the
ACP limit during a specified compliance period, expressed
to the nearest pound of VOC. "Shortfall" does not include
emissions occurring prior to the date the ACP was
established.
[139 141]. "Silicone-based multi-purpose lubricant"
means any lubricant which is: (i) designed and labeled to
provide lubricity primarily through the use of silicone
compounds including, but not limited to,
polydimethylsiloxane, and (ii) designed and labeled for
general purpose lubrication, or for use in a wide variety of
applications. "Silicone-based multi-purpose lubricant" does
not include products designed and labeled exclusively to
release manufactured products from molds.
[140 142]. "Single-phase aerosol air freshener"
means an aerosol air freshener with the liquid contents in a
single homogeneous phase and which does not require that
the product container be shaken before use.
[141 143]. "Small business" means an independently
owned and operated business with less than 100 employees
as defined by the Administrator of the federal Small
Business Administration pursuant to U. S. Public Law 85-
536.
[142 144] "Solid" means a substance or mixture of
substances which, either whole or subdivided (such as the
particles comprising a powder), is not capable of visually
detectable flow as determined under ASTM D-4359-90,
incorporated by reference in (h)(3).
[143 145]. "Special purpose spray adhesive" means
an aerosol adhesive that meets any of the following
definitions:
(i) "mounting adhesive" means an aerosol
adhesive designed to permanently mount photographs,
artwork, and any other drawn or printed media to a backing
(paper, board, cloth, etc.) without causing discoloration to
the artwork.
(ii) "automotive engine compartment adhesive"
means an aerosol adhesive designed for use in motor vehicle
under-the-hood applications which require oil and plasticizer
resistance, as well as high shear strength, at temperatures of
200 to 275 degrees F.
(iii) "flexible vinyl adhesive" means an aerosol
adhesive designed to bond flexible vinyl to substrates.
Flexible vinyl means a nonrigid polyvinyl chloride plastic
with at least five percent, by weight, of plasticizer content.
A plasticizer is a material, such as a high boiling point
organic solvent, that is incorporated into a plastic to increase
its flexibility, workability, or distensibility, and may be
determined using ASTM Method E260-96, incorporated by
reference in (h)(5), or from product formulation data.
(iv) "polystyrene foam adhesive" means an aerosol
adhesive designed to bond polystyrene foam to substrates.
(v) "automotive headliner adhesive" means an
aerosol adhesive designed to bond together layers in motor
vehicle headliners.
(vi) "polyolefin adhesive" means an aerosol
adhesive designed to bond polyolefins to substrates.
(vii)"laminate repair/edgebanding adhesive" means
an aerosol adhesive designed for:
(a) touch-up or repair of items laminated with
high pressure laminates (e.g., lifted edges, delaminates,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1509
etc.);or,
(b) for touch-up, repair, or attachment of
edgebanding materials, including but not limited to, other
laminates, synthetic marble, veneers, wood molding, and
decorative metals.
For the purposes of this definition "high pressure
laminate" means sheet materials which consist of paper,
fabric, or other core material that have been laminated at
temperatures exceeding 265 degrees F, and at pressures
between 1,000 and 1,400 psi.
[144 146]. "Spot remover" means any product
designed to clean localized areas, or remove localized spots
or stains on cloth or fabric such as drapes, carpets,
upholstery, and clothing, that does not require subsequent
laundering to achieve stain removal. "Spot remover" does
not include dry cleaning fluid, laundry pre-wash, carpet and
upholstery cleaner, or multi-purpose solvent.
[145 147]. "Spray buff product" means a product
designed to restore a worn floor finish in conjunction with a
floor buffing machine and special pad.
[146 148]. "Stick product" means any antiperspirant or
deodorant that contains active ingredients in a solid matrix
form, and that dispenses the active ingredients by frictional
action on the affected area.
[147 149] "Structural waterproof adhesive" means an
adhesive whose bond lines are resistant to conditions of
continuous immersion in fresh or salt water, and that
conforms with Federal Specification MMM-A-181 (Type 1,
Grade A), and MIL-A-4605 (Type A, Grade A and Grade
C).
[148 150]. "Surplus reduction" means the ACP limit
minus the ACP emissions when the ACP limit was greater
than the ACP emissions during a given compliance period,
expressed to the nearest pound of VOC. Except as provided
in (j) (6)(iii), "Surplus reduction" does not include emissions
occurring prior to the date the ACP was established by the
manufacturer.
[149 151]. "Surplus trading" means the buying,
selling, or transfer of surplus reductions between responsible
ACP parties.
[150 152]. "Terrestrial" means to live on or grow
from land.
[151 153]. "Tire sealant and inflators" means any
pressurized product that is designed to temporarily inflate
and seal a leaking tire.
[152 154]. "Total maximum historical emissions
(TMHE)" means the total VOC emissions from all ACP
products for which the responsible ACP party has failed to
record the required VOC content or enforceable sales
records. The TMHE shall be calculated for each ACP
product during each portion of a compliance period for
which the responsible ACP party has failed to record the
required VOC content or enforceable sales records. The
TMHE shall be expressed to the nearest pound and
calculated according to the following calculation:
TMHE ??( MHE )1 ??( MHE ) 2 ??... ??( MHE ) N
MHE ??(
Highest VOC Content x Highest Sales
) x Missing Data Days
100 x 365
where,
Highest
VOC Content = the maximum VOC content
which the ACP product has
contained in the previous 5 years,
if the responsible ACP party has
failed to meet the requirements
for recording VOC content data
(for any portion of the
compliance period), as specified
in the ACP, or the current actual
VOC content, if the responsible
ACP party has recorded all
required VOC content data (for
the entire compliance period), as
specified in the ACP.
Highest Sales = the maximum one-year gross
State of Delaware sales of the
ACP product in the previous 5
years, if the responsible ACP
party has failed to meet the
requirements for recording
enforceable sales records (for any
portion of the compliance
period), as specified in the ACP,
or the current actual one-year
enforceable sales for the product,
if the responsible ACP party has
recorded all required enforceable
sales records (for the entire
compliance period), as specified
in the ACP.
Missing Data = see (b)(100)
Days
1, 2, ..., N = each product in an ACP, up to the
maximum N, for which the
responsible ACP party has failed
to record the required enforceable
sales or VOC content data as
specified in the ACP.
[153 155]. "Type A propellant" means a compressed
gas such as CO2, N2, N2O, or compressed air which is used
as a propellant, and is either incorporated with the product or
contained in a separate chamber within the product's
packaging.
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1510 FINAL REGULATIONS
[154 156]. "Type B propellant" means any halocarbon
which is used as a propellant including chlorofluorocarbons
(CFCs), hydrochlorofluorocarbons (HCFCs), and
hydrofluorocarbons (HFCs).
[155 157]. "Type C propellant" means any propellant
which is not a Type A or Type B propellant, including
propane, isobutane, n-butane, and dimethyl ether (also
known as dimethyl oxide).
[156 158]. "Undercoating" means any aerosol product
designed to impart a protective, non-paint layer to the
undercarriage, trunk interior, and/or firewall of motor
vehicles to prevent the formation of rust or to deaden sound.
"Undercoating" includes, but is not limited to, rubberized,
mastic, or asphaltic products.
[157 159]. "Usage directions" means the text or
graphics on the product's principal display panel, label, or
accompanying literature which describes to the end user how
and in what quantity the product is to be used.
[158 160]. "VOC content" means, except for charcoal
lighter products, the total weight of VOC in a product
expressed as a percentage of the product weight (exclusive
of the container or packaging), as determined pursuant to
(h)(1) and (h)(2).
For charcoal lighter material products only,
VOC Content ??
(Certified Emissions x 100)
Certified Use Rate
where,
Certified
Emissions = emissions level for products
specified in (c)(4)
Certified
Use Rate = usage level for products specified
in (c)(4)
[159 161]. "Wasp and hornet insecticide" means any
insecticide product that is designed for use against wasps,
hornets, yellow jackets or bees by allowing the user to spray
from a distance a directed stream or burst at the intended
insects, or their hiding place.
[160 162] "Waterproofer" means a product designed
and labeled exclusively to repel water from fabric or leather
substrates. "Waterproofer" does not include fabric
protectants.
[161 163]. "Wax" means a material or synthetic
thermoplastic substance generally composed of high
molecular weight hydrocarbons or high molecular weight
esters of fatty acids or alcohols, except glycerol and high
polymers (plastics). "Wax" includes, but is not limited to,
substances derived from the secretions of plants and animals
such as carnuba wax and beeswax, substances of a mineral
origin such as ozocerite and paraffin, and synthetic polymers
such as polyethylene.
[162 164]. "Web spray adhesive" means any aerosol
adhesive which is not a mist spray or special purpose spray
adhesive.
[163 165] "Wood floor wax" means wax-based
products for use solely on wood floors.
[164 166]. "Working day" means any day between
Monday through Friday, inclusive, except for days that are
federal holidays.
c. Standards [and Exemptions]
1. Except as provided in (a) (Applicability ), (d)
(Innovative Products), (g) (Variances), and (j) (Alternative
Control Plan),
(i) no person shall sell, supply, or offer for sale in
the State of Delaware any consumer product manufactured
on [or and] after January 1, 2005 which contains VOC's in
excess of the limits shown in Table 1 and
(ii) no person shall manufacture any consumer
product on [or and] after January 1, 2005 for use in the State
of Delaware which contains volatile organic compounds in
excess of the limits shown in Table 1.
2. For products that are diluted prior to use, the
following shall apply:
(i) The limits specified in Table 1 shall apply to
consumer products for which the label, packaging, or
accompanying literature specifically states that the product
should be diluted with water or non-VOC solvent prior to
use, only after the minimum recommended dilution has
taken place. Minimum recommended dilution, for the
purposes of (c)(2)(i), shall not include recommendations for
incidental use of a concentrated product to deal with limited
special applications such as hard-to-remove soils or stains.
(ii) The limits specified in Table 1 shall apply to
consumer products for which the label, packaging, or
accompanying literature states that the product should be
diluted with any VOC solvent prior to use only after the
maximum recommended dilution has taken place.
3. The effective date of the VOC standards specified
in Table 1, for those consumer products that are registered
under the Federal Insecticide, Fungicide, and Rodenticide
Act, (FIFRA; 7 U.S.C. Section 136 et seq.), is January 1,
2006. Such products also must be registered under Title 3
Chapter 12 of the Delaware Code.
4. The following requirements shall apply to all
charcoal lighter material products as defined in (b)(34):
(i) Regulatory standards.
No person shall sell, supply, or offer for sale on
[or and] after January 1, 2005 any charcoal lighter material
product unless at the time of the transaction:
(a) the manufacturer or distributor of the
charcoal lighter material has performed the requisite testing
to demonstrate that VOC emissions from ignition of charcoal
with the charcoal lighter material are less than or equal to
0.020 pound of VOC per start ("certified emissions"), using
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1511
the procedures specified in the South Coast Air Quality
Management District Rule 1174 Ignition Method
Compliance Certification Protocol, dated February 27, 1991
(the "SCAQMD Rule 1174 Testing Protocol"), incorporated
by reference in (h)(4)(i). The provisions relating to LVPVOC
in (b)(95) and (c)(10) shall not apply to any charcoal
lighter material subject to the requirements of (c)(1) and
(c)(4). The Department may approve alternative test
procedures which are shown to provide equivalent results to
those obtained using the SCAQMD Rule 1174 Testing
Protocol (h)(4).
(b) The charcoal lighter material meets the
formulation criteria and other conditions specified in an
applicable ACP.
(ii) The Department may, at any time, request a
manufacturer to submit information concerning the charcoal
lighter material manufactured for use in the State of
Delaware. The manufacturer shall respond within 30 days, in
writing, and shall include, at a minimum, the following:
(a) The results of testing conducted pursuant
to the procedures specified in SCAQMD Rule 1174 Testing
Protocol (h)(4).
(b) The exact text and/or graphics that appear
on the charcoal lighter material's principal display panel,
label, and any accompanying literature. The provided
material shall clearly show the usage directions for the
product. These directions shall accurately reflect the
quantity of charcoal lighter material per pound of charcoal
that was used in the SCAQMD Rule 1174 Testing Protocol
(h)(4) for that product, unless:
1) the charcoal lighter material is
intended to be used in fixed amounts independent of the
amount of charcoal used, such as certain paraffin cubes, or
2) the charcoal lighter material is already
incorporated into the charcoal, such as certain "bag light,"
"instant light" or "match light" products.
(c) For a charcoal lighter material which
meets the criteria specified in (c)(4)(ii)(b)(i), the usage
instructions shall accurately reflect the quantity of charcoal
lighter material used in the SCAQMD Rule 1174 Testing
Protocol (h)(4) for that product.
(d) Any physical property data, formulation
data, or other information required by the Department for
use in determining when a product modification has
occurred and for use in determining compliance with the
conditions specified an ACP.
(e) Possession of a currently effective
certification by the CARB under the Consumer Products
provisions of Title 17 of the California Code of Regulations,
Division 3, Chapter 1, Subchapter 8.5, Article 2, Section
94509(h), or from a state with a similar certification
procedure, should be noted and a copy of the applicable
certification decision (i.e., the Executive Order) should be
included.
5. The following requirements for aerosol adhesives
shall apply:
(i) In order to qualify as a special purpose spray
adhesive the product must meet one or more of the
definitions specified in (b)[(143) (145)], but if the product
label indicates that the product is suitable for use on any
substrate or application not listed in (b) [(143) (145)], then
the product shall be classified as either a web spray adhesive
or a mist spray adhesive.
(ii) If a product meets more than one of the
definitions specified in (b)[(143) (145)] for special purpose
spray adhesive, and is not classified as a web spray adhesive
or mist spray adhesive, the VOC limit for the product shall
be the lowest applicable VOC limit specified in Table 1.
6. No person shall sell, supply, offer for sale, or
manufacture for use in the State of Delaware any floor wax
stripper unless the following requirements are met:
(i) The label of each non-aerosol floor wax
stripper must specify a dilution ratio for light or medium
build-up of polish that results in an as-used VOC
concentration of 3 percent by weight or less.
(ii) If a non-aerosol floor wax stripper is also
intended to be used for removal of heavy build-up of polish,
the label of that floor wax stripper must specify a dilution
ratio for heavy build-up of polish that results in an as-used
VOC concentration of 12 percent by weight or less.
(iii) The terms "light build-up", "medium build-up"
or "heavy build-up" are not specifically required, as long as
comparable terminology is used.
[Note: Items (C)(7) Through (C)(15) Constitute
Miscellaneous Exemptions]
7. The medium volatility organic compound (MVOC)
content standards specified in (c)(1) for antiperspirants or
deodorants, shall not apply to ethanol.
8. The VOC limits specified in (c)(1) shall not apply
to fragrances up to a combined level of 2 percent by weight
contained in any consumer product and shall not apply to
colorants up to a combined level of 2 percent by weight
contained in any antiperspirant or deodorant.
9. The requirements of (c)(1) for antiperspirants or
deodorants shall not apply to those volatile organic
compounds that contain more than 10 carbon atoms per
molecule and for which the vapor pressure is unknown, or
that have a vapor pressure of 2 mm Hg or less at 20oC.
10. The VOC limits specified in (c)(1) shall not apply
to any LVP-VOC.
11. The VOC limits specified in (c)(1) shall not apply
to air fresheners that are comprised entirely of fragrance, less
compounds not defined as VOCs under Regulation No. 1 or
exempted under (c)(10).
12. The VOC limits specified in (c)(1) shall not apply
to air fresheners and insecticides containing at least 98%
paradichlorobenzene.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1512 FINAL REGULATIONS
13. VOC limits specified in (c)(1) shall not apply to
adhesives sold in containers of 1 fluid ounce or less.
The VOC limits specified in (c)(1) for contact
adhesive [, construction, panel and floor covering
adhesive and general purpose adhesive,] do not apply to
units of product, less packaging, which consist of more than
one gallon. [The VOC limits specified in (c)(1) for
construction, panel and floor covering adhesive and for
general purpose adhesive do not apply to units of
product, less packaging, which consist of more than one
pound and more than 16 fluid ounces.]
14. The VOC limits specified in (c)(1) shall not apply
to bait station insecticides. For the purpose of Section 2, bait
station insecticides are containers enclosing an insecticidal
bait that is not more than 0.5 ounce by weight, where the bait
is designed to be ingested by insects and is composed of
solid material feeding stimulants with less than 5 percent
active ingredients.
15. Section 2 does not apply to sealant and caulking
compound in units of product, less packaging, which weigh
more than one pound and consist of more than 16 fluid
ounces.
[16. The requirements of (e)(1) shall not apply to
consumer products registered under the Federal
Insecticide, Fungicide, and Rodenticide Act, (FIFRA; 7
U.S.C. Section 136 et seq) or Title 3 Chapter 12 of the
Delaware Code.]
d. Innovative Products
1. Any manufacturer of consumer products granted an
Innovative Product [e][E]xemption [(IPE) by the CARB
under the Innovative Products provisions in Subchapter
8.5, Article 2, Section 94511, or Subchapter 8.5 Article 1,
Section 94503.5 of Title 17 of the California Code of
Regulations, or granted an IPE by any OTC state,] shall
be exempt from the standards in (c)(1) (Table 1)[. for the
period of time that said IPE remains in effect, provided
that all consumer products within said IPE are contained
in (c)(1) Table 1 of this Section. Any manufacturer
claiming an exemption on this basis shall submit to the
Department a copy of the IPE decision (i.e., the Executive
Order or other comparable state action) including all
conditions applicable to the exemption. The Department
reserves the right to refuse to honor, revoke or otherwise
cancel an IPE which it believes has been misrepresented
or does not meet the criteria for establishing or
maintaining an IPE. Only the following provisions of
(d)(2) shall apply to IPE's exempted under (d)(1): (vii),
(viii) and (ix).]
2. Manufacturers of consumer products may seek an
[Innovative Products exemption][IPE] in accordance with
the following criteria:
(i) The Department shall exempt a consumer
product from the VOC limits specified in (c)(1) if a
manufacturer demonstrates by clear and convincing
evidence that, due to some characteristic of the product
formulation, design, delivery systems or other factors, the
use of the product will result in less VOC emissions as
compared to:
(a) the VOC emissions from a representative
consumer product which complies with the VOC limits
specified in (c)(1); or,
(b) the calculated VOC emissions from a noncomplying
representative product, if the product had been
reformulated to comply with the VOC limits specified in
(c)(1). VOC emissions shall be calculated using the
following equation:
ER ??
E NC x V OCSTD
VOCNC
where:
ER = The VOC emissions from the noncomplying
representative product,
had it been reformulated.
ENC = The VOC emissions from the noncomplying
representative product in
its current formulation.
VOCSTD = the VOC limit specified in (c)(1)
(Table 1).
VOCNC = the VOC content of the nonvomplying
product in its current
formulation.
If a manufacturer demonstrates that this equation
yields inaccurate results due to some characteristic of the
product formulation or other factors, an alternative method
which accurately calculates emissions may be used upon
approval of the Department.
(ii) For the purposes (d)(2)(i), representative
consumer product means a consumer product which meets
all of the following criteria:
(a) The representative consumer product shall
be subject to the same VOC limit in (c)(1) as the innovative
product.
(b) The representative consumer product shall
be of the same product form as the innovative product,
unless the innovative product uses a new form which does
not exist in the product category at the time the application is
made.
(c) The representative consumer product shall
have at least similar efficacy as other consumer products in
the same product category based on tests generally accepted
for that product category by the consumer products industry.
(iii) A manufacturer shall apply in writing to the
Department for any exemption claimed under (d)(2)(i). The
application shall include supporting documentation that
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1513
demonstrates the emissions from the innovative product,
including the actual physical test methods used to generate
the data and, if necessary, the consumer testing undertaken
to document product usage.
In addition, the applicant must provide any
information necessary to enable the Department to establish
enforceable conditions for granting the exemption including
the VOC content for the innovative product and test methods
for determining the VOC content.[ Some information may
be kept confidential.] All information submitted to the
Department is subject to public review under terms of the
Freedom of Information Act (FOIA) (to be found at 29 Del.
C. Chapter 100), unless deemed to be confidential by the
Secretary in accordance with the procedures outlined in the
FOIA regulation and codified at 29 Del. C 10002(d). The
procedure an applicant must follow in order to have
information classified as confidential is reviewed in the
[DNREC] FOIA regulation which can be obtained from the
Department.
If a manufacturer has [a currently effective
Innovative Product exemption, granted by the CARB, or
granted by another state with similar Innovative
Products exemption rules, the exemption decision (i.e.
Executive Order) should be included in the Delaware
application.] [been refused an IPE or had an IPE
revoked by the CARB or any OTC state, details shall be
included in the application.]
(iv) Within 30 days of receipt of the exemption
application the Department shall determine whether an
application is complete.
(v) Within 90 days after an application has been
deemed complete, the Department shall determine whether,
under what conditions, and to what extent, an exemption
from the requirements of (c)(1) will be permitted. The
applicant and the Department may mutually agree to a longer
time period for reaching a decision, and additional
supporting documentation may be submitted by the applicant
before a decision has been reached. The Department shall
notify the applicant of the decision in writing and specify
such terms and conditions as are necessary to insure that
emissions from the product will meet the emissions
reductions specified in (d)(2)(i), and that such emissions
reductions can be enforced.
(vi) In granting an exemption for a product the
Department shall establish conditions that are enforceable.
These conditions shall include the VOC content of the
innovative product, dispensing rates, application rates and
any other parameters determined by the Department to be
necessary. The Department also shall specify the test
methods for determining conformance to the conditions
established. The test methods shall include criteria for
reproducibility, accuracy, sampling and laboratory
procedures.
(vii)For any product for which an exemption has
been granted pursuant to [(d)(1) or] (d)(2), the manufacturer
shall notify the Department in writing within 30 days of any
change in the product formulation or recommended product
usage directions, and shall also notify the Department within
30 days if the manufacturer learns of any information which
would alter the emissions estimates submitted to the
Department in support of the exemption application.
(viii) If the VOC limits specified in (c)(1) are
lowered for a product category through any subsequent rule
making, all innovative product exemptions granted for
products in the product category, except as provided in
(d)(2)(viii), shall have no force and effect as of the effective
date of the modified VOC standard. This shall not apply to
those innovative products which have VOC emissions less
than the applicable lowered VOC limit and for which a
written notification of the product's emissions status versus
the lowered VOC limit has been submitted to and approved
by the Department at least 60 days before the effective date
of such limits.
(xi) If the Department believes that a consumer
product for which an exemption has been granted no longer
meets the criteria for an innovative product specified in
(d)(2)(i), the Department may modify or revoke the
exemption as necessary to assure that the product will meet
these criteria. The Department shall not modify or revoke an
exemption without first affording the applicant an
opportunity to appeal the Department's decision to the
Secretary, in writing.
e. Administrative Requirements
1. Each manufacturer of a consumer product subject
to Section 2 shall clearly display on each consumer product
container or package, the day, month, and year when the
product was manufactured, or a code indicating such date.
The date or date-code information shall be located on the
container or inside the cover/cap so that it is readily
observable or obtainable (by simply removing the cover/cap)
without disassembling any part of the container or
packaging. This date or code shall be displayed on each
consumer product container or package no later than twelve
months prior to the effective date of the applicable standard
specified in (c)(1). No person shall erase, alter, deface or
otherwise remove or make illegible any date or date-code
from any regulated product container. The requirements of
this provision shall not apply to products containing VOCs at
0.10% by weight or less. [The requirements of (e)(1) shall
not apply to consumer products registered under the
Federal Insecticide, Fungicide and Rodenticide Act
[FIFRA; 7 U.S.C. Section 136 (et seq.), or Title 3 Chapter
12 of the Delaware Code.]
2. If a manufacturer uses a code indicating the date of
manufacture, for any consumer product subject to (c)(1), an
explanation of the code must be filed with the Department no
later than twelve months prior to the effective date of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1514 FINAL REGULATIONS
applicable standard specified in (c)(1).
3. Notwithstanding the definition of product category
in (b), if anywhere on the principal display panel of any
consumer product, any representation is made that the
product may be used as, or is suitable for use as a consumer
product for which a lower VOC limit is specified in (c)(1),
then the lowest VOC limit shall apply. This requirement
does not apply to general purpose cleaners and
antiperspirant/deodorant products.
4. Additional Labeling Requirements for Aerosol
Adhesives.
(i) In addition to the requirements specified in
(e)(1), (e)(2), and (e)(3), both the manufacturer and
responsible party for each aerosol adhesive product subject
to Section 2 shall ensure that all products clearly display the
following information on each product container which is
manufactured on or after January 1, 2005.
(a) The aerosol adhesive category as specified
in (c)(1) (Table 1) or an abbreviation of the category shall be
displayed.
(b) The applicable VOC standard for the
product that is specified in (c)(1) (Table 1), expressed as a
percentage by weight, shall be displayed unless the product
is included in an ACP, as provided in (j) and the product
exceeds the applicable VOC standard.
If the product is included in an ACP, and
the product exceeds the applicable VOC standard specified
in (c)(1) (Table 1), the product shall be labeled with the term
ACP or ACP product.
(c) If the product is classified as a special
purpose spray adhesive, the applicable substrate and/or
application or an abbreviation of the substrate/application
that qualifies the product as special purpose shall be
displayed.
(d) If the manufacturer or responsible party
uses an abbreviation as allowed by (e)(4)(a), an explanation
of the abbreviation must be filed with the Department before
the abbreviation is used.
(ii) The information required in (e)(4)(i), shall be
displayed on the product container such that it is readily
observable without removing or disassembling any portion
of the product container or packaging. For the purposes of
(e)(4)(ii), information may be displayed on the bottom of a
container as long as it is clearly legible without removing
any product packaging.
f. Reporting Requirements
1. Upon 90 days written notice, the Department may
require any responsible party to report information for any
consumer product or products the Department may specify
including, but not limited to, all or part of the following
information:
(i) the name of the responsible party and the
party's address, telephone number, and designated contact
person;
(ii) any claim of confidentiality which shall be
handled as specified in (j)[(11) (12)];
(iii) the product brand name for each consumer
product and upon request by the Department, the product
label;
(iv) the product category to which the consumer
product belongs;
(v) the applicable product form(s) listed
separately;
(vi) an identification of each product brand name
and form as a household product, I&I product, or both;
(vii) separate Delaware sales in pounds per year, to
the nearest pound, and the method used to calculate
Delaware sales for each product form;
(viii) for reports submitted by two companies, an
identification of the company which is submitting relevant
data separate from that submitted by the responsible party.
All information from both companies shall be submitted by
the date specified in (f)(1);
(ix) for each product brand name and form, the net
percent by weight of the total product, less container and
packaging, comprised of the following, rounded to the
nearest one-tenth of a percent (0.1%):
(a) Total exempt compounds
(b) Total LVP-VOCs that are not fragrances
(c) Total all other carbon-containing
compounds that are not fragrances
(d) Total all non-carbon-containing
compounds
(e) Total fragrance
(f) For products containing greater than two
percent by weight fragrance:
1) the percent of fragrance that are LVPVOCs,
and
2) the percent of fragrance that are all
other carbon-containing compounds
(g) Total paradichlorobenzene;
(x) for each product brand name and form, the
identity, including the specific chemical name and
associated Chemical Abstract Services (CAS) number, of the
following:
(a) Each exempt compound
(b) Each LVP-VOC that is not a fragrance;
(xi) if applicable, the weight percent comprised of
propellant for each product; and
(xii) if applicable, an identification of the type of
propellant (Type A, Type B, Type C, or a blend of the
different types).
2. All information submitted by responsible parties
pursuant to (f) shall be handled in accordance with
confidentiality procedures which are specified in (j)[(11)
(12)].
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1515
g. Variances
1. Any person who cannot comply with the
requirements set forth in (c), because of extraordinary
reasons beyond the person's reasonable control, may apply in
writing to the Department for a variance. The variance
application shall set forth:
(i) the specific grounds upon which the variance is
sought;
(ii) the proposed date(s) by which compliance with
the provisions of (c) will be achieved; and
(iii) a compliance report reasonably detailing the
method(s) by which compliance will be achieved.
2. Upon receipt of a variance application containing
the information required in (g)(1),the Department shall hold
a public hearing to determine whether, under what
conditions, and to what extent, a variance from the
requirements in (c) is necessary and will be permitted.
Notice of the time and place of the hearing shall be sent to
the applicant by certified mail not less than 20 days prior to
the hearing. Notice of the hearing also shall be submitted for
publication in the Delaware Register and sent to every
person who requests such notice, not less than 30 days prior
to the hearing. The notice shall state that the parties may, but
need not be, represented by counsel at the hearing. At least
30 days prior to the hearing, the variance application shall be
made available to the public for inspection. Interested
members of the public shall be allowed a reasonable
opportunity to testify at the hearing and their testimony shall
be considered.
The applicant may wish to have some information
treated as confidential. Procedures for establishing
confidentiality are specified in (j)[(11) (12)]. The
Department may consider such confidential information in
reaching a decision on a variance application.
3. No variance shall be granted unless all of the
following findings are made:
(i) that, because of reasons beyond the reasonable
control of the applicant, requiring compliance with (c) would
result in extraordinary economic hardship;
(ii) that the public interest in mitigating the
extraordinary hardship to the applicant by issuing the
variance outweighs the public interest in avoiding any
increased emissions of air contaminants which would result
from issuing the variance; and
(iii) that the compliance report proposed by the
applicant can reasonably be implemented, and will achieve
compliance as expeditiously as possible.
4. Any variance order shall specify a final compliance
date by which the requirements of (c) will be achieved. Any
variance order shall contain a condition that specifies
increments of progress necessary to assure timely
compliance, and such other conditions that the Department,
in consideration of the testimony received at the hearing,
finds necessary to carry out the purposes of the State of
Delaware's environmental regulations .
5. A variance shall cease to be effective upon failure
of the party to whom the variance was granted to comply
with any term or condition of the variance.
6. Upon the application of any person, the Department
may review, and for good cause, modify or revoke a variance
from requirements of (c) after holding a public hearing in
accordance with [the] provisions [of] the Delaware Code.
h. Test Methods
1. Testing to determine compliance with the
requirements of Section 2, shall be performed using CARB
Method 310, "Determination of Volatile Organic Compound
(VOC) in Consumer Products", adopted September 25,
1997, and amended on September 3, 1999, which is
incorporated herein by reference. This method includes a
number of ASTM methods.
Alternative methods which are shown to accurately
determine the concentration of VOCs in a subject product or
its emissions may be used upon approval by the Department.
2. VOC content determinations using product
formulation and records. Testing to determine compliance
with the requirements of Section 2 [also] may [also] be
demonstrated through calculation of the VOC content from
records of the amounts of constituents used to make the
product pursuant to the following criteria:
(i) Compliance determinations based on these
records may not be used unless the manufacturer of a
consumer product keeps accurate records for each day of
production of the amount and chemical composition of the
individual product constituents. These records must be kept
for at least three years.
(ii) For the purposes of (h)(2), the VOC content
shall be calculated according to the following equation:
VOC Content ??[( B ??C) / A] x 100
where,
A = total net weight of unit (excluding
container and packaging)
B = total weight of all VOCs per unit
C = total weight of VOCs exempted under
(c), per unit
(iii) If product records appear to demonstrate
compliance with [the] VOC limits, but these records are
contradicted by product testing performed using CARB
Method 310, the results of CARB Method 310 shall take
precedence over [the] product records and may be used to
establish a violation of the requirements of Section 2.
3. Determination of liquid or solid. Testing to
determine whether a product is a liquid or solid shall be
performed using ASTM D4359-90 (reapproved June,2000),
"Standard Test Method for Determining Whether a Material
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1516 FINAL REGULATIONS
is a Liquid or a Solid"[, which is] incorporated by reference
herein [see (b)(92) and (b)[(142) (144)]].
4. Compliance determinations for charcoal lighter
material products.
(i) Testing to determine compliance with [the]
certification requirements for charcoal material shall be
performed using [the] procedures specified in the South
Coast Air Quality Management District Rule 1174 Ignition
Method Compliance Certification Protocol (February 28,
1991), [which is] incorporated by reference herein.
(ii) Testing to determine distillation points of
petroleum distillate-based charcoal lighter materials shall be
performed using ASTM D86-00a (August 10, 2000), "
Standard Test Method for Distillation of Petroleum Products
at Atmospheric Pressure" [which is] incorporated by
reference in (h)(1).
5. Testing to determine plasticizer in flexible vinyl
adhesive [see (b)[(143) (145)](iii)] shall be performed using
ASTM E260-96 (reapproved 2001) "Standard Practice for
Packed Column Gas Chromatography", incorporated herein
by reference.
6. No person shall create, alter, falsify, or otherwise
modify records in such a way that the records do not
accurately reflect the constituents used to manufacture a
product, the chemical composition of the individual product,
and any other test, processes, or records used in connection
with product manufacture.
7. Test Method Availability.
(i) CARB Method 310 is available on the web at
http://www.arb.ca.gov/testmeth/cptm/cptm.htm
(ii) ASTM methods can be purchased from
American Society for Testing and Materials (ASTM), 100
Barr Harbor Drive, West Conshohocken, Pennsylvania
19428-2959. Telephone (610) 832-9585. Fax (610) 832-
9555.
(iii) SCAQMD methods can be purchased from
South Coast Air Quality Management District, 21865 East
Copley Drive, Diamond Bar, California 91765-0934.
Telephone (909) 396-2162.
i. Servability
Each part of Section 2 shall be deemed severable, and in
the event that any part of Section 2 is held to be invalid, the
remainder of Section 2 shall continue in full force and effect.
j. Alternative Control Plan
The purpose of (j) is to provide an alternative method
[an alternative control plan (ACP)] to comply with the Table
1 limits specified in (c)(1). This alternative is provided by
allowing responsible ACP parties the option of voluntarily
entering into separate alternative control plans for consumer
products, as specified herein. Only responsible ACP parties
for consumer products may establish an ACP.
[1. Except as provided in (j)(2), any manufacturer
of consumer products, granted an ACP agreement by the
CARB under provisions in Subchapter 8.5, Article 4,
Sections 94540-94555, of Title 17 of the California Code
of Regulations, or granted an ACP agreement by any
OTC state, shall be exempt from the Table 1 limits
specified in (c) for the period of time that said ACP
agreement remains in effect, provided that all ACP
products within said ACP agreement are contained in
Table 1. Any manufacturer claiming such an ACP
agreement shall submit to the Department a copy of the
ACP decision (i.e., the Executive Order or other
comparable state action), including all conditions
applicable to the exemption. The Department reserves
the right to refuse to honor, revoke or otherwise cancel
an ACP which it believes has been misrepresented or
does not meet the criteria for establishing or maintaining
an ACP. Holders of other state ACP agreements,
operating in Delaware, shall be subject to all the
provisions of (j)(3) through (j)(13).]
[1 2] Manufacturers of consumer products[ granted an
ACP under the ACP provision in Subchapter 8.5, Article
4, Sections 9450-94555, of Title 17 of the California Code
of Regulations, based on California specific data, or that
have been granted an ACP agreement by any OTC state
based on state specific data, or that have not been
granted an ACP agreement by the CARB or any OTC
state] may establish an ACP in accordance with (j)[(1) (2)]
through (j)[(12) (13)]. It is not necessary to apply to the
Department for authorization. The manufacturer shall submit
the information requested in (j)[(4) (5)](i) upon establishing
the ACP and from time to time, the Department may require
additional reporting as specified in (j)[(4) (5)]. [The
Department reserves the right to refuse to honor, revoke
or otherwise cancel an ACP established under (j)(2)
which it believes has been misrepresented or does not
meet the criteria for establishing or maintaining an ACP.
Manufacturers of consumer products whose application
to CARB or any OTC state for an ACP was refused or
whose ACP agreement was revoked, cancelled or
otherwise terminated prior to the specified termination
date, shall notify the Department of the circumstances
before establishing an ACP for Delaware sales. Decisions
by CARB or any OTC state to not approve an ACP
application or to cancel or terminate an ACP prior to the
specified termination date will be considered in taking
any action in Delaware.]
[1 3] Requirements of an ACP.
To establish an ACP the responsible ACP party
shall develop a file of information containing all of the
following, which shall be kept current and available to the
Department upon request as specified in (j)[(3) (4)](ii) and
maintained for at least three years after such records are
generated:
(i) an identification of the contact persons, phone
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1517
numbers, names and addresses of the responsible ACP party;
(ii) a statement of whether the responsible ACP
party is a one-product business, as defined in (b)(111) or a
small business as defined in (b)[(141) (143)];
(iii) a listing of the exact product brand name, form,
available variations (flavors, scents, colors, sizes, etc.), and
applicable product category(ies) for each distinct ACP
product that is proposed for inclusion in the ACP;
(iv) for each proposed ACP product identified in
(j)[(2) (3)](iii) a supported statement that the enforceable
sales records to be used by the responsible ACP party for
tracking product sales meet the minimum criteria specified
in (j)[(2) (3)](iv)(e). To support this statement, the
responsible ACP party shall include all of the following in
the file:
(a) the contact persons, phone numbers,
names, street and mail addresses of all persons and
businesses who will provide information that will be used to
determine the enforceable sales;
(b) the enforceable sales of each product using
enforceable sales records as defined in (b)(55);
(c) support the validity of the enforceable
sales with enforceable sales records provided by the contact
persons or the responsible ACP party;
(d) calculate the percentage of the gross
Delaware sales, as defined in (b)(76) which is comprised of
enforceable sales;
(e) determine which ACP products have
enforceable sales which are 75.0% or more of the gross
Delaware sales. Only ACP products meeting this criteria
shall be allowed to be sold in the State of Delaware under an
ACP.
(v) for each of the ACP products identified in
(j)[(2) (3)](iv)(e), the inclusion of the following:
(a) legible copies of the existing labels for
each product;
(b) the VOC content and LVP content for
each product reported for two different periods, as follows:
1) the VOC and LVP contents of the
product at the time the ACP is established, and
2) any VOC and LVP contents of the
product, which have occurred at any time within the four
years prior to the date of establishing the ACP, if either the
VOC or LVP contents have varied by more than plus/minus
ten percent (+ 10.0%) of the VOC or LVP contents reported
in (j)[(2) (3)](v)(b)(1);
(vi) a written commitment obligating the
responsible ACP party to date-code every unit of each ACP
product included in the ACP. The commitment shall require
the responsible ACP party to display the date-code on each
ACP product container or package no later than 5 working
days after the date an ACP was established.
(vii) an operational plan covering all the products
identified under (j)[(2) (3)](iv)(e) for each compliance
period that the ACP will be in effect. The operational plan
shall contain all of the following:
(a) an identification of the compliance periods
and dates for the responsible ACP party to summarize the
information required by the Department in an ACP. The
length of the compliance period shall be chosen by the
responsible ACP party provided, however, that no
compliance period shall be longer than 365 days. The
responsible ACP party also shall choose the dates for
summarizing information such that all required VOC content
and enforceable sales data for all ACP products shall be
summarized at the same time and at the same frequency;
(b) an identification of specific enforceable
sales records summarized in the operational plan for the
compliance period dates specified in (j)[(2) (3)](vii)(a);
(c) for a small business or a one-product
business which will be relying to some extent on surplus
trading to meet its ACP limits, a written commitment from
the responsible ACP party(ies) that they will transfer the
surplus reductions to the small business or one-product
business upon adoption of the ACP;
(d) for each ACP product, all VOC content
levels which will be applicable for the ACP product during
each compliance period. The plan shall also identify the
specific method(s) by which the VOC content will be
determined and the statistical accuracy and precision
(repeatability and reproducibility) calculated for each
specified method.
(e) the projected enforceable sales for each
ACP product at each different VOC content for every
compliance period that the ACP will be in effect;
(f) a detailed write-up showing the
combination of specific ACP reformulations or surplus
trading (if applicable) that is sufficient to ensure that the
ACP emissions will not exceed the ACP limit for each
compliance period that the ACP will be in effect, the
approximate date within each compliance period that such
reformulations or surplus trading are expected to occur, and
the extent to which the VOC contents of the ACP products
will be reduced (i.e., by ACP reformulation). This write-up
shall use the equations specified in (b)(2) and (b)(3) for
projecting the ACP emissions and ACP limits during each
compliance period. It shall also include all VOC content
levels and projected enforceable sales for all ACP products
to be sold in the State of Delaware during each compliance
period;
(g) a certification that all reductions in the
VOC content of a product will be real, actual reductions that
do not result from changing product names
mischaracterizing ACP product reformulations that have
occurred in the past, or any other attempts to circumvent the
provisions of Section 2;
(h) written explanations of the date-codes that
will be displayed on each ACP product's container or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1518 FINAL REGULATIONS
packaging;
(i) a statement of the approximate dates by
which the responsible ACP party plans to meet the
applicable ACP VOC standards for each product in the ACP;
(j) a reconciliation of shortfalls plan which
commits the responsible ACP party to completely reconcile
any shortfalls in any and all cases, even, to the extent
permitted by law, if the responsible ACP party files for
bankruptcy protection. The plan for reconciliation of
shortfalls shall contain all of the following:
1) a clear and convincing demonstration
of how shortfalls of up to 5%, 10%, 15%, 25%, 50%, 75%,
and 100% of the applicable ACP limit will be completely
reconciled within 90 working days from the date the shortfall
is determined;
2) a listing of the specific records and
other information that will be necessary to verify that the
shortfalls were reconciled as specified in (j)(2)(vii)(j); and
3) a commitment to provide any record
or information requested by the Department to verify that the
shortfalls have been completely reconciled.
(k) a declaration, signed by a legal
representative for the responsible ACP party which states
that all information and plans included in the ACP are true
and correct.
[3 4].Record Keeping and Availability of Requested
Information.
(i) All information specified in an ACP shall be
maintained by the responsible ACP party for a minimum of
three years after [ such records are generated the ACP is
cancelled or expires]. Such records shall be clearly legible
and maintained in good condition during this period.
(ii) The records specified in (j)[(4) (5)](i) shall be
made available to the Department or an authorized
representative:
(a) immediately upon request, during an onsite
visit to a responsible ACP party; or
(b) within five working days after receipt of a
written request from the Department; or
(c) within a time period mutually agreed upon
by the Department and the responsible ACP party.
[4 5].Reporting
(i) Upon establishing an ACP, the responsible
ACP party shall notify the Department, in writing, that an
ACP has been established and shall submit to the
Department all of the information specified in (j)[(2) (3)].
(ii) At any time that the information specified in
(j)[(2) (3)] is modified for any reason, the Department shall
be promptly notified of the change.
(iii) When a shortfall occurs, the responsible ACP
party shall promptly notify the Department. When the
shortfall is reconciled, the responsible ACP party will notify
the Department.
(iv) When a VOC exceedance occurs, the
responsible ACP party shall promptly notify the Department
of the exceedance and plans for correction. Any exceedance
is a violation of Section 2 and may result in penalties.
5. Violations.
(i) Any person who commits a violation of
Section 2 may be subject to the penalties specified in
applicable Delaware laws and regulations. Failure to meet
any requirement of Section 2 or any condition of an ACP
shall constitute a single, separate violation of Section 2 for
each day until such requirement or condition is satisfied,
except as otherwise provided in (j)(5)(ii) through (j)(5)(viii).
(ii) False reporting of any information contained in
an ACP, or any supporting documentation or amendments
thereto, shall constitute a single, separate violation of the
requirements of Section 2 for each day that the ACP is in
effect.
(iii) Any exceedance during the applicable
compliance period of the VOC content specified for an ACP
product in the ACP shall constitute a single, separate
violation of the requirements of Section 2 for each ACP
product which exceeds the specified VOC content that is
sold, supplied, offered for sale, or manufactured for use in
the State of Delaware.
(iv) Any of the following actions shall each
constitute a single, separate violation of the requirements of
Section 2 for each day after the applicable deadline until the
requirement is satisfied:
(a) Failure to record data (i.e., "missing data")
or failure to record data accurately (i.e., "inaccurate data") in
writing to the Department regarding the VOC content, LVP
content, enforceable sales, or any other information required
by any deadline specified by the Department;
(b) False reporting of any information
submitted to the Department for determining compliance
with the ACP requirements;
(c) Failure to completely implement the
reconciliation of shortfalls plan that is set forth in the ACP,
within 30 working days from the date of written notification
of a shortfall;
(d) Failure to completely reconcile the
shortfall as specified in the ACP, within 90 working days
from the date of written notification of a shortfall.
(v) False reporting or failure to report any of the
information specified in (j)[(6) (7)](ii)(i), or the sale or
transfer of invalid surplus reductions, shall constitute a
single, separate violation of the requirements of Section 2 for
each day during the time period for which the surplus
reductions are claimed to be valid.
(vi) Except as provided in (j)[(6) (7)], any
exceedance of the ACP limit for any compliance period that
the ACP is in effect shall constitute a single, separate
violation of the requirements of Section 2 for each day of the
applicable compliance period. The responsible ACP party
shall determine whether an exceedance of the ACP limit has
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1519
occurred as follows and promptly report the results to the
Department:
(a) If the responsible ACP party has recorded
all required information for the applicable compliance period
specified in an ACP, then the manufacturer shall determine
whether an exceedance has occurred using the enforceable
sales records and VOC content for each ACP product, as
reported by the responsible ACP party for the applicable
compliance period;
(b) If the responsible ACP party has failed to
provide all the required information specified in the ACP for
an applicable compliance period, determining whether an
exceedance of the ACP limit has occurred shall be done as
follows:
1) for the missing data days, calculate
the total maximum historical emissions, as specified
(b)[(152) (154)];
2) for the remaining portion of the
compliance period which are not missing data days,
calculate the emissions for each ACP product using the
enforceable sales records and VOC content that were
reported for that portion of the applicable compliance period;
3) the ACP emissions for the entire
compliance period shall be the sum of the total maximum
historical emissions, determined pursuant to (j)[(5)
(6)](vi)(b)(1), and the emissions determined pursuant to
(j)[(5) (6)](vi)(b)(2);
(c) calculate the ACP limit for the entire
compliance period using ACP standards applicable to each
ACP product and enforceable sales records specified in
(j)[(5) (6)](vi)(b)(2). Enforceable sales for each ACP
product during missing data days, as specified in (j)[(5)
(6)](vi)(b)(1), shall be zero (0).
(d) an exceedance of the ACP limit has
occurred when the ACP emissions, determined pursuant to
(j)[(5) (6)](vi)(b)(3), exceeds the ACP limit, determined
pursuant to (j)[(5) (6)](vi)(b)(4).
(vii) If a violation specified in (j)[(5) (6)](vi)
occurs, the responsible ACP party may, pursuant to this
paragraph, establish the number of violations as calculated
according to the following equation:
NEV ??( ACP Emissions ???ACP Limit ) x 1Violation / 40 Pounds
where,
NEV = number of ACP limit
violations
ACP emissions = the ACP emissions for
the compliance period
ACP limit = the ACP limit for the
compliance period
The responsible ACP party may determine
the number of ACP limit violations pursuant to this
paragraph only if it has provided all required information for
the applicable compliance period, as specified in the ACP.
By choosing this option, the responsible ACP party waives
any and all legal objections to the calculation of the ACP
limit violations pursuant to (j)[(5) (6)](vii).
(viii) In assessing the amount of penalties for any
violation occurring pursuant to (j)[(5) (6)](i) through (j)[(5)
(6)](vii), circumstances covered in applicable laws and
regulations of the State of Delaware shall be taken into
consideration.
(ix) A cause of action against a responsible ACP
party under (j)[(5) (6)] shall be deemed to accrue on the
date(s) when the records establishing a violation are received
by the Department.
(x) The responsible ACP party is fully liable for
compliance with the requirements of Section 2, even if the
responsible ACP party contracts with or otherwise relies on
another person to carry out some or all of the requirements of
Section 2.
[6 7].Surplus Reductions and Surplus Trading.
(i) Any surplus reductions of VOC achieved by a
responsible ACP party operating under an ACP may be
represented in the form of certificates which can be bought
from, sold to, or transferred to a responsible ACP party
operating under an ACP, as provided in (j)[(6) (7)](ii). All
surplus reductions shall be calculated at the end of each
compliance period within the time specified in the
established ACP. Surplus reduction certificates shall not
constitute instruments, securities, or any other form of
property.
(ii) The issuance, use, and trading of all surplus
reductions shall be subject to the following provisions:
(a) For the purposes of Section 2, VOC
reductions from sources of VOC other than consumer
products subject to the VOC standards specified in (c)(1)
may not be used to generate Surplus reductions;
(b) Surplus reductions are valid only when
generated by a responsible ACP party, and only while that
responsible ACP party is operating under a prior established
ACP;
(c) Surplus reductions may be used by the
responsible ACP party who generated the surplus until the
reductions expire, are traded, or until the ACP is canceled
pursuant to (j)[(10) (11)];
(d) Surplus reductions cannot be applied
retroactively to any compliance period prior to the
compliance period in which the reductions were generated;
(e) Except as provided in (j)[(6) (7)](ii)(f)(2),
only small or one-product businesses selling products under
an established ACP may purchase surplus reductions. An
increase in the size of a small business or one-product
business shall have no effect on surplus reductions
purchased by that business prior to the date of the increase.
(f) While valid, surplus reductions can be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1520 FINAL REGULATIONS
used only for the following purposes:
1) to adjust either the ACP emissions of
either the responsible ACP party who generated the
reductions or the responsible ACP party to which the
reductions were traded, provided the surplus reductions are
not used by any responsible ACP party to further lower its
ACP emissions when its ACP emissions are equal to or less
than the ACP limit during the applicable compliance period;
or
2) to be traded for the purpose of
reconciling another responsible ACP party's shortfalls,
provided such reconciliation is part of the reconciliation of
shortfall plan pursuant to (j)[(2) (3)](vii)(j).
(g) A valid surplus reduction shall be in effect
starting five (5) days after the date of identification by the
responsible ACP party, for a continuous period equal to the
number of days in the compliance period during which the
surplus reduction was generated. The surplus reduction shall
then expire at the end of its effective period.
(h) At least five (5) working days prior to the
effective date of transfer of surplus reductions, both the
responsible ACP party which is selling surplus reductions
and the responsible ACP party which is buying the surplus
reductions shall, either together or separately, notify the
Department in writing of the transfer. The notification shall
include all of the following:
1) the date the transfer is to become
effective;
2) the date the surplus reductions being
traded are due to expire;
3) the amount (in pounds of VOCs) of
surplus reductions that are being transferred;
4) the total purchase price paid by the
buyer for the surplus reductions;
5) the contact persons, names of the
companies, street and mail addresses, and phone numbers of
the responsible ACP parties involved in the trading of the
surplus reductions;
6) a copy of the surplus reductions
certificate issued by the responsible ACP party, signed by
the seller and buyer of the certificate, showing transfer of all
or a specified portion of the surplus reductions. The copy
shall show the amount of any remaining non traded surplus
reductions, if applicable, and shall show their expiration
date. The copy shall indicate limitations placed upon the
transfer of the surplus reductions and accept full
responsibility for the appropriate use of such surplus
reductions as provided in (j)[(6) (7)].
(i) Surplus reduction credits shall only be
traded between ACP product(s) for consumer products.
[7 8].Reconciliation of Shortfalls.
(i) At the end of each compliance period, the
responsible ACP party shall make an initial calculation of
any shortfalls occurring in that compliance period. Upon
receipt of this information, the Department shall determine
the amount of any shortfall that has occurred during the
compliance period, and shall notify the responsible ACP
party of this determination.
(ii) The responsible ACP party shall implement the
reconciliation of shortfalls plan as specified in the ACP,
within 30 working days from the date of written notification
of a shortfall by the Department.
(iii) All shortfalls shall be completely reconciled
within 90 working days from the date of written notification
of a shortfall by the Department, by implementing the
reconciliation of shortfalls plan specified in the ACP.
(iv) All requirements specified in the ACP,
including all applicable ACP limits, shall remain in effect
while any shortfalls are in the process of being reconciled.
[8 9].Notification of Modifications to an ACP by the
Responsible ACP Party.
(i) The responsible ACP party shall notify the
Department, in writing, of any change in an ACP product's:
(a) product name,
(b) product formulation,
(c) product form,
(d) product function,
(e) applicable product category(ies),
(f) VOC content,
(g) LVP content,
(h) date-codes, or
(i) recommended product usage directions, no
later than 15 working days from the date such a change
occurs.
For each modification, the notification shall
fully explain the following:
(a) the nature of the modification;
(b) the extent to which the ACP product
formulation, VOC content, LVP content, or recommended
usage directions will be changed;
(c) the extent to which the ACP emissions and
ACP limit specified in the ACP will be changed for the
applicable compliance period; and
(d) the effective date and corresponding datecodes
for the modification.
(ii) Except as otherwise provided in (j)[(6) (7)](ii),
the responsible ACP party shall notify the Department, in
writing, of any information learned of by the responsible
ACP party which may alter any of the information submitted
pursuant to the requirements of (j)[(2) (3)]. The responsible
ACP party shall provide such notification to the Department
no later than 15 working days from the date such information
is known to the responsible ACP party.
[9 10].Modification of an ACP by the Department
(i) If the Department determines that:
(a) the enforceable sales for an ACP product
are no longer at least 75.0% of the gross Delaware sales for
that product, or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1521
(b) the information submitted pursuant to a
request is no longer valid, or
(c) the ACP emissions are exceeding the ACP
limit specified in the ACP,
then the Department shall modify the ACP
as necessary to ensure that the ACP meets all requirements
of Section 2 and that the ACP emissions will not exceed the
ACP limit.
The Department shall not modify the ACP
without first affording the responsible ACP party an
opportunity for a public hearing to determine if the ACP
should be modified.
(ii) If any applicable VOC standards specified in
(c)(1) are modified in a future rule making, the responsible
ACP party shall modify the ACP limit specified in the ACP
to reflect the modified ACP VOC standards as of their
effective dates.
[10 11]. Cancellation of an ACP
(i) An ACP shall remain in effect until:
(a) the ACP reaches the specified expiration
date;
(b) the ACP is modified by the responsible
ACP party;
(c) the ACP is modified by the Department, as
provided in (j)[(9) (10)];
(d) the ACP includes a product for which the
VOC standard specified in (c)(1) is modified by the
Department in a future rule making, and the responsible
ACP party informs the Department in writing that the ACP
will terminate on the effective date(s) of the modified
standard;
(e) the ACP is cancelled pursuant to (j)[(10)
(11)](ii).
(ii) The Department shall cancel an ACP if any of
the following circumstances occur:
(a) the responsible ACP party demonstrates to
the satisfaction of the Department that the continuation of
the ACP will result in an extraordinary economic hardship;
(b) the responsible ACP party violates the
requirements of the ACP, and the violation(s) results in a
shortfall that is 20.0% or more of the applicable ACP limit
(i.e., the ACP emissions exceed the ACP limit by 20.0% or
more );
(c) the responsible ACP party fails to meet the
requirements of (j)[(7) (8)] (Reconciliation of Shortfalls)
within the time periods specified in (j)[(7) (8)]; or
(d) the responsible ACP party has
demonstrated a recurring pattern of violations and has
consistently failed to take the necessary steps to correct those
violations.
(iii) The Department shall not cancel an ACP
pursuant to (j)[(10) (11)](ii) without first affording the
responsible ACP party an opportunity for a public hearing to
determine if the ACP should be canceled.
(iv) The responsible ACP party for an ACP which
is canceled pursuant to (j)[(10) (11)](ii) and who does not
have a valid ACP to immediately replace the canceled ACP
shall meet all of the following requirements:
(a) all remaining shortfalls in effect at the
time of ACP cancellation shall be reconciled in accordance
with the requirements of (j)[(7) (8)], and
(b) all ACP products subject to the ACP shall
be in compliance with the applicable VOC standards in
(c)(1) immediately upon the effective date of ACP
cancellation.
(v) Any violations incurred pursuant to (j)[(5) (6)]
shall not be cancelled or in any way affected by the
subsequent cancellation or modification of an ACP pursuant
to [(j)(8)], (j)(9), [or] (j)(10) [,or (j)(11)].
[11 12].Treatment of Information
The information required by (j)[(2) (3)](i), (j)[(2)
(3)](ii), and (j)(6)(ii)(h) is public information which may not
be claimed as confidential. All information submitted to the
Department is subject to public review under terms of the
Freedom of Information Act (FOIA) (to be found at 29 Del.
C. Chapter 100), unless deemed to be confidential by the
Secretary in accordance with the procedures outlined in the
FOIA regulation and codified at 29 Del. C 10002(d). The
procedure an applicant must follow in order to have
information classified as confidential is reviewed in the
FOIA regulation which can be obtained from the
Department.
[12 13].Other Applicable Requirements.
A responsible ACP party may transfer an ACP to
another responsible ACP party, provided that all of the
following conditions are met:
(i) The Department shall be notified, in writing,
by both responsible ACP parties participating in the transfer
of the ACP. The written notifications shall be postmarked at
least five (5) working days prior to the effective date of the
transfer and shall be signed and submitted separately by both
responsible parties. The written notifications shall clearly
identify the contact persons, business names, mail and street
addresses, and phone numbers of the responsible parties
involved in the transfer.
(ii) The responsible ACP party to which the ACP
is being transferred shall provide a written declaration
stating that the transferee shall fully comply with all
requirements of the ACP and Section 2.
[k. Related Delaware Rules
The following Delaware rules are referred to in Section 2
and are required to fully understand the provisions of
Section 2. Copies of these related rules may be obtained
through the State of Delaware web site http://
www.delaware.gov, by writing to State of Delaware,
Department of Natural Resources and Environmental
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1522 FINAL REGULATIONS
Control, Division of Air and Waste Management, 715
Grantham Lane, New Castle, Delaware 19720 or by
calling 302-323-4542.
1. Some definitions are in "Regulations Governing the
Control of Air Pollution", Air Quality Management
Section, Division of Air and Waste Management,
"Regulation No. 1, Definitions and Administrative
Principles". This regulation also is available on the
Department of Natural Resources and Environmental
Control (DNREC)web site http://www.dnrec.state.de.us/
DNREC2000.
2. The state pesticide law, "State of Delaware Code Title
3, Part II, Chapter 12" also can be obtained by writing
the State of Delaware, Department of Agriculture, 2320
South Dupont Highway, Dover, Delaware 19901 or by
calling 302-739-4811. The pesticide law also can be
found on the following web site, http://www.mitchie.com.
3. The Freedom of Information Act (FOIA), 29 Delaware
Code, Chapter 100, Section 10002(d) also is available on
the following web site http://www.mitchie.com. The
DNREC FOIA regulation also is available at http://
www.dnrec.state.de.us/DNREC2000.
4. The Delaware code relating to public hearings for
environmental matters, Title 7, Chapter 60, Section 6006
also can be found on the following web site, http://
www.mitchie.com.
5. The Delaware Code relating to penalties for violations
of environmental regulations, Title 7, Chapter 60,
Sections 6005 and 6013 also can be found at the following
web site http://www.mitchie.com.]
TABLE 1
VOC CONTENT LIMITS FOR CONSUMER
PRODUCTS
(percent volatile organic compounds by weight)
PRODUCT CATEGORY VOC CONTENT
LIMIT
Adhesives
Aerosol
Mist Spray 65
Web Spray 55
Special Purpose
(mounting, auto engine compartment &
flexible vinyl) 70
(polystyrene foam & automotive
headliner) 65
(polyolefin & laminate repair/
edgebonding) 60
Contact 80 *
Construction, Panel, and Floor Covering 15
General Purpose 10 *
Structural Waterproof 15 *
Aerosol Cooking Spray 18 *
Air Fresheners
Double-Phase Aerosols 25
Liquids[/Pump Sprays] 18 *
[Pump Sprays] [18*]
Single-Phase Aerosols 30
Solids[/Gels] 3 *
[Gels] [3 *]
Antiperspirants
Aerosol (% HVOC) 40
(% MVOC) 10
Non-Aerosol (% HVOC) 0
(% MVOC) 0
Automotive Brake Cleaners 45
Automotive Rubbing or Polishing Compound 17
Automotive Wax, Polish, Sealant or Glaze
Hard Paste Waxes 45
Instant Detailers 3
All Other Forms 15
Automotive Windshield Washers35 *
Bathroom and Tile Cleaners
Aerosols 7 *
All Other Forms 5 *
Bug and Tar Remover 40
Carburetor or Fuel-Injection Air Intake Cleaners 45
Carpet and Upholstery Cleaners
Aerosols 7
Non-Aerosols (dilutables) 0.1
Non-Aerosols (ready to use) 3
Charcoal Lighter Material see (c)(4) *
Deodorants
Aerosol (% HVOC) 0
(% MVOC) 10
Non-Aerosol (% HVOC) 0
(% MVOC) 0
Dusting Aids
Aerosols 25
All Other Forms 7 *
Engine Degreasers
Aerosol 35
Non-Aerosol 5
Fabric Protectants 60
Floor Polishes and Waxes
Products for Flexible Flooring Materials 7 *
Products for Non-Resilient Flooring 10 *
Wood Flooring 90 *
Floor Wax Strippers (non-aerosols) see (c)(6)
Furniture Maintenance Products
Aerosols 17
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1523
All Other Forms (except solid or paste) 7
General Purpose Cleaners
Aerosols 10
Non-Aerosols 4
General Purpose Degreasers
Aerosols 50
Non-Aerosols 4
Glass Cleaners
Aerosols 12 *
Non-Aerosols 4
Hair Mousses 6
Hairshines 55
Hairsprays 55
Hair Styling Gels 6 *
Heavy Duty Hand Cleaner Soap 8
Insecticides
Crawling Bug (aerosol) 15
Crawling Bug (all other forms) 20
Flea and Tick 25 *
Flying Bug (aerosol) 25
Flying Bug (all other forms) 35
Foggers 45 *
Lawn and Garden (non-aerosol) 3
Lawn and Garden (all other forms) 20
Wasp and Hornet 40
Laundry Prewash
Aerosols/Solids 22 *
All other forms 5 *
Laundry Starch Products 5 *
Metal Polishes/Cleaners 30
Multi-Purpose Lubricant (excluding solid
or semi-solid products) 50
Nail Polish Remover 75
Non-Selective Terrestrial Herbicide (non-aerosol) 3
Oven Cleaners
Aerosols & Pump sprays 8 *
Liquids 5 *
Paint Removers and Strippers 50
Penetrants 50
Rubber and Vinyl Protectants
Aerosols 10
Non-Aerosols 3
Sealants and Caulking Compounds 4
Shaving Creams 5 *
Silicone-Based Multi-Purpose Lubricants
(excluding solid or semi-solid products) 60
Spot Removers
Aerosols 25
Non-Aerosols 8
Tire Sealants and Inflators 20
Undercoatings (aerosols) 40
* Limits and definition unchanged from EPA rule at
40CFR59 Subpart C, "National Volatile Organic Compound
Emission Standards for Consumer Products", which remains
in force.
DEPARTMENT OF PUBLIC SAFETY
DIVISION OF STATE POLICE
Statutory Authority: 24 Delaware Code,
Section 5404(a) (24 Del.C. §5404(a))
Summary Of Evidence
A properly notice public hearing was scheduled on
November 29, 2001 pursuant to 24 Del. C. sec. 5404(a) and
29 Del. C. ch. 101 in the second floor conference room,
Public Safety Building, Dover, Delaware to receive public
comment on the proposed Bounty Hunter/Bail Enforcement
Agents Regulations ("the Regulations"). The attendance
sheet and recording of public comments are attached to this
order.
Testimony was given by Lt. Charles Rynkowski of the
Delaware State Police stating that the Regulations were
based on similar regulations for security guards and private
detectives. The Regulations concern the licensing of both
the agency and the individual. The age for any agency
license is twenty-five and an individual license may be
obtained at age twenty-one. The number of hours for
training was eliminated and some areas of training were
eliminated. He added that a clarification of the Regulations
concerning training allows for in-house training.
Lorrin Jones objected to the Regulation's excluding
felons from the business, the age requirement of twenty-one
years for a license, the insurance requirement of $1,000,000
for liability, the prohibition against licensing of personnel of
a law enforcement agency and reciprocity.
There were other comments on requiring a new license
if you change employer, the prohibition against the use of
dogs, the omission of a .45 caliber handguns, shotguns and
rifles from the list of permissible weapons.
The Secretary received written comments from Kevin P.
O'Neill, Esquire on behalf of bail enforcement agents in
Delaware.
Further comments concerned the requirement for
reporting arrests and the cost of training.
Findings Of Fact
Based on the evidence received the Department of
Public Safety finds the following facts supported by the
record:
1. The Regulations will promote, preserve and protect
the public health, safety and welfare by regulating fugitive
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1524 FINAL REGULATIONS
recovery.
2. The Regulations benefited from experience with the
regulations for private detectives and security guard.
3. Convicted felons are excluded from licensure as a
bounty hunter/bail enforcement agent because of the close
relationship of this work with the work of courts and law
enforcement.
4. The age requirement for individual licensure is
twenty-one years of age because this is the minimum age at
which a person may carry a firearm.
5. The proposed Regulation requiring liability
insurance in the amount of $1,000,000 is deleted because of
the lack of availability of such insurance for licensees.
6. Law enforcement personnel are excluded from
licensure as bounty hunters/bail enforcement agent because
of their access to restricted information regarding arrested or
convicted individuals.
7. The prohibition against the use of animals is based
on the potential liability of using and housing the animal.
The prohibition is consistent with the regulation for security
guards.
8. No licensing reciprocity will occur until there is
licensure in most jurisdictions based on national standards.
The statute in sec. 5403 prohibits a non-licensed person from
apprehending, detaining or arresting a suspected fugitive on
behalf of another, and this prohibition applies to both
residents of this State and non-residents. Out of state
licensees or non-licensed persons will have to work with a
Delaware licensee who will apprehend, detain or arrest a
fugitive in Delaware. The Secretary believes that this
provision will help to prevent unqualified individuals from
endangering the public.
9. The Regulations are amended to allow the use of a
.45 caliber handgun.
10. Regulation 6.6 is clarified to state that before the
Detective Licensing Section will approve a shotgun, rifle,
any type of weapon or apprehension device, the licensee
must provide proof of training with this weapon or device to
the Section for approval.
11. The training requirements concerns area of the law
relevant to the work of a licensee, and the cost provision and
multiple methods of obtaining training should facilitate the
licensees becoming qualified.
12. The regulations are clarified to indicate that a
pre-decision hearing will precede any suspension or
revocation of a licensee, and action will normally wait until
the criminal process issues a conviction. Also the licensee
will have 30 days to request a hearing before the Secretary of
Public Safety.
13. The list of criminal charges in Regulation 1.1.2 are
those crimes relevant to the activity being licensed. The
question of whether Regulation 1.1.3 is "to expansive" is
answered in its application. Regulation 1.1.2 and 2.1.2 are
changed to delete moral turpitude and require a conviction of
any two of the specified misdemeanors within the prior
seven years.
14. The language of Regulation 1.3 is clarified and
refers to the various legal entities that may seek an agency
license. If a bail bondsmen intends to operate as a licensed
agency, he/she would need to apply for an agency license. A
bail bondsman is not excluded from the definition of bounty
hunter/bail enforcement agent in sec. 5402, and is included
in the prohibition of sec. 5403 i.e. "No person, . . . . including
a principal on a bond, wherever issued, etc."
15. The statute, sec. 5404(a) and (b), authorizes a
licensing fee of up to $500 a year and establishes a Bail
Enforcement Regulatory Fund. In view of these provisions,
the Secretary does not find the amount of the licensing fee of
$180 a year to be excessive.
16. The provisions of proposed Regulation 2.5 and 2.6
are deleted and new Regulation 2.5 is reworded to be
consistent with these deletions.
Regulation 4.2 is clarified to advise that review and
approval of advertisements and publications are subsequent
to use by the licensee and limited to the issue of
misrepresentation.
18. Regulation 7.0 is altered to require training and
proof of training but delete the requirement for a certified
instructor representing the manufacturer.
The Law
The Secretary of the Department of Public Safety's
rulemaking authority is provide by 24 Del. C. sec. 5404(a)
that states:
(a) The Secretary of the Department of Public Safety is
hereby authorized and directed to promulgate
regulations in accordance with Chapter 101 of the
Title 29 as are necessary to implement the
provisions of this chapter regarding the licensure
and registration of bounty hunters and bail
enforcement agents, which may include the term of
a license or registration, reciprocity and the
qualifications of a licensee, and may charge a fee
not to exceed $500 for each application for
licensure and each renewal of an existing license.
(b) The Department of Public Safety shall, by its rules
and regulations, determine all fees to be assessed
under this chapter, including application and
renewal fees not to exceed the maximum fee
permitted in subsection (a) hereof. Each fee
collected shall be deposited into the Bail
Enforcement Regulatory Fund, which fund shall be
a revolving fund and monies into the fund shall not
revert to the State General Fund. The Department
shall use the fund to defray all expenses incurred in
its administration of this chapter, including, but not
limited to, background investigations, criminal
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1525
history investigations, and fingerprinting of an
applicant and any investigation of any charge made
against a licensee.
Decision
The Secretary hereby adopts the Regulations as
proposed with the alterations, deletions and clarifications
noted in this Order and a copy of the Regulations as adopted
is attached to this Order. The Secretary relies upon the
provisions of the statute, his experience with police agencies,
private detectives and security guards and the comments
received from the public in promulgating these Regulations.
IT IS SO ORDERED this 17th day of December, 2001.
Honorable James L. Ford, Jr.
*Please note due to vast number of changes between the
proposed regulations and the final set, the proposed
version is shown here in bold strike-out and the final
version is shown in bold.
Bounty Hunter/Bail Enforcement Agents
[Preamble
These Rules & Regulations are promulgated pursuant to
24 Del C Section 5404(a) and the Secretary of Public
Safety delegates his regulatory authority granted by
Chapter 54 to the Division of State Police.
1.0 Agency Licensing
1.1 Any and all persons, cooperative of persons,
partnership, or corporation applying for an agency
license under Title 24 Chapter 54 must meet and
maintain the following qualifications:
1.1.1 Must not be convicted of any felony;
1.1.2 Must not have been convicted of any
misdemeanor involving theft, drug offenses, offensive
touching, assault III, or moral turpitude within the last
seven (7) years;
1.1.3 Must not have been convicted of any
charge that, in the discretion of the Detective Licensing
Section, bears such a relationship to the performance of
the bounty hunter/bail enforcement agent (bounty
hunter); and
1.1.4 Must not have been, as a juvenile,
adjudicated as delinquent for conduct which, if
committed by an adult, would constitute a felony, unless
and until that person has reached their 25th birthday.
1.2 An agency license will not be issued if any and all
persons, cooperative of persons, partnership, or
corporation has a pending charge as listed in Section 1.1.
1.3 The qualifying individual (license holder) of a
cooperative of persons, partnership, or corporation
applying for an agency license under Title 24 Chapter 54
must also meet the following qualifications;
1.3.1 Must be at least 25 years of age;
1.3.2 Must have at least five (5) years of
experience as a bounty hunter; and
1.3.3 Provide five (5) letters of reference
attesting to their good character.
1.4 The person, cooperative of persons, partnership,
or corporation applying for an agency license under Title
24 Chapter 54 must submit, to the Detective Licensing
Section, the following for licensure:
1.4.1 A fee or pro-rated fee of $360 for a two (2)
year license and will expire on June 30th of even years;
1.4.2 A $10,000 surety bond;
1.4.3 Liability Insurance in the amount of
$1,000,000;
1.4.4 Any and all applications required by the
Detective Licensing Section; and
1.4.5 Submit two (2) sets of fingerprints for a
Delaware (CHRI) and Federal (FBI) criminal history
record check. The Director of the State Bureau of
Identification (SBI) determines the fee for this process.
1.5 Any and all persons, cooperative of persons,
partnership, or corporate officer must not be a member
or employee of any Delaware Law Enforcement
Organization, as defined by the Council on Police
Training, or a member or employee of a law enforcement
organization of any other local, state or federal
jurisdiction.
1.6 The license issued to the agency shall be posted
upon the premises of business and shall not be altered or
defaced.
1.7 After issuance of an agency license, the license
holder must obtain a State of Delaware business license
from the Division of Revenue.
1.8 It will be the license holders' responsibility to
provide to the Detective Licensing Section:
1.8.1 Any change of address, phone number,
status of cooperative of persons, partnership, or
corporation, in writing, within five (5) days, to the
Detective Licensing Section;
1.8.2 A list of all employees by the tenth (10th)
of each month as explained in Section 3.0; and
1.8.3 A list of the previous months
apprehensions by the tenth (10th) of each month as
explained in Section 3.0.
1.9 There will be no reciprocity with any other state
regarding the licensure of a bounty hunter/bail
bondsman agency.
2.0 Employee Licensing
2.1 Any individual applying for a bounty hunter ID
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1526 FINAL REGULATIONS
card under Title 24 Chapter 54, to work for a license
holder, must meet and maintain the following
qualifications:
2.1.1 Must not be convicted of any felony:
2.1.2 Must not have been convicted of any
misdemeanor involving theft, any drug offenses,
offensive touching, assault III, or moral turpitude within
the last seven (7) years;
2.1.3 Must not have been convicted of any
charge that, in the discretion of the Detective Licensing
Section, bears such a relationship to the performance of
the bounty hunter; and
2.1.4 Must not have been, as a juvenile,
adjudicated as delinquent for conduct which, if
committed by an adult, would constitute a felony, unless
and until that person has reached their 25th birthday.
2.2 An individual bounty hunter ID card will not be
issued if there is a pending charge as listed in Section 2.1.
2.3 The individual bounty hunter applying for an ID
card under Title 24 Chapter 54 must also meet the follow
qualifications:
2.3.1 Must be at least 21 years of age;
2.3.2 Must complete the training qualifications
set forth in Section 8.0; and/or
2.3.3 If carrying a weapon, must meet and
maintain the qualifications set forth in Section 6.0.
2.4 The individual bounty hunter applying for an ID
card under Title 24 Chapter 54 must submit the
following for approval:
2.4.1 A fee of $25 for a one (1) year ID card to
expire on the birthday of the individual;
2.4.2 Any and all applications required by the
Detective Licensing Section; and
2.4.3 Submit two (2) sets of fingerprints for a
Delaware (CHRI) and Federal (FBI) criminal history
record check. The Director of the State Bureau of
Identification (SBI) determines the fee for this process.
2.5 If the individual bounty hunter leaves one
agency's employ and is employed by another, that
individual must turn in the ID card and re-apply for
approval through the Detective Licensing Section, with
the requirements from Section 2.4.1 and Section 2.4.2.
2.5.1 The ID cards are the property of the
Delaware State Police and must be returned to the
Detective Licensing Section upon leaving the employ of
an agency, upon expiration of the ID card, or at the
request of the Detective Licensing Section.
2.6 An individual that has a bounty hunter ID card
issued through Title 24 Chapter 54 shall work for no
more that two (2) licensed agencies at a time.
2.7 A bounty hunter that has been issued an ID card
by the Detective Licensing Section shall be required to
have such card in their possession while in the
performance of his or her duties.
2.8 A bounty hunter must not be a member or
employee of any Delaware Law Enforcement
Organization, as defined by the Council on Police
Training, or a member or employee of a law enforcement
organization of any other local, state or federal
jurisdiction.
2.9 There will be no reciprocity with any other state
regarding the issuing of an ID card to a bounty hunter.
3.0 Personnel Rosters and Apprehnsion Lists
3.1 An agency licensed under Title 24 Chapter 54
shall submit an alphabetical personnel roster and a list of
the previous months apprehensions to the Detective
Licensing Section by the tenth (10th) of every month.
3.1.1 Alphabetical personnel rosters shall
include any and all persons, cooperative of persons,
partners, corporate officers, and individual bounty
hunters. The rosters shall include the full name, DOB,
sex, and expiration date. For example: Mark A. Smith
01/25/60 M 01/25/02
3.1.2 The apprehension lists shall include the
name, date of birth, date, time, and address of attempted
or successful apprehension. For example:
John F. Henry (Apprehended) or (Attempted
Apprehension)
DOB: 05/23/48
09/23/01 9:35pm
689 Old Berry Lane
Marydel, DE
4.0 Badges, Patches, Advertisements
4.1 No person, cooperative of persons, partnership,
or corporation licensed under Title 24 Chapter 54 shall
use any type of uniform or other clothing items
displaying logos, badges, patches, or any other type of
writing without first being approved by the Detective
Licensing Section. Under no circumstances shall any
item contain the seal or crest of the State of Delaware,
any state of the United States, the seal or crest of any
county or local sub division, or any facsimile
of the aforementioned seals or crests.
4.2 All advertisements or other forms of publication
are subject to review and approval by the Detective
Licensing Section.
4.3 The use of auxiliary lights, sirens, or any
markings on vehicles is prohibited.
5.0 Use of Animals
5.1 The use of animals is prohibited in the
performance of any bounty hunter activity.
6.0 Firearms Policy
6.1 No person licensed under Title 24 Chapter 54
shall carry a firearm unless that person has first obtained
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1527
a Carrying Concealed Deadly Weapon (CCDW) permit
for the State of Delaware.
6.2 In addition to possessing a CCDW permit, the
individual must complete, and pass, an approved 40-hour
firearm course, instructed by a certified firearm
instructor, recognized by the Detective Licensing Section.
6.3 All persons licensed to carry a firearm under this
chapter must be re-certified yearly by shooting a
minimum of three (3) qualifying shoots a year. The
shoots must be scheduled on at least two (2) separate
days, with a recommended 90 days between scheduled
shoots. Of the three (3) shoots, there will be one
mandatory "low light" shoot. Simulation is permitted
and it may be combined with a daylight shoot. All
individuals must qualify with the same type of weapon
that he/she will carry. The minimum passing score is
75%.
6.4 All handguns must be either a revolver or
semi-automatic and be maintained to factory
specifications. Only the handguns with the following
calibers are permitted:
6.4.1 9mm
6.4.2 .357
6.4.3 .38
6.4.4 .40
6.5 All ammunition will be factory fresh (no
re-loads).
6.6 The carrying of any shotguns, rifles or any type
of weapon that is not specifically approved by the
Detective Licensing Section is PROHIBITED.
7.0 Nightstick, Pr24, Mace, Peppergas, Chemical Spray,
and Handcuffs
7.1 To carry the above weapons/items a bounty
hunter must have completed a training program on each
and every weapon/item carried, taught by a certified
instructor representing the manufacturer of the weapon/
item. Proof of these certifications must be provided to
the Detective Licensing Section. Under no circumstances
would a person be permitted to carry any other type
weapon/item, unless first approved by the Detective
Licensing Section.
8.0 Training
8.1 All bounty hunters licensed under Title 24
Chapter 54 must complete a minimum, but not limited
to, 21 hours of training, which must be approved by the
Detective Licensing Section. The training will include,
but not limited to, the following courses: Constitution/
Bill of Rights, Laws of Arrest, Laws of Search & Seizure
of Persons Wanted, Police Jurisdiction, Rules &
Regulations of Bounty Hunters, Use of Deadly Force,
Officer Survival, and Weaponless Defense.
8.2 This training will be waived for the initial
licensing, but must be completed by January 19, 2003.
Thereafter, the training must be completed prior to
obtaining a license.
9.0 Notification of Apprehensions
9.1 All bounty hunters licensed under Title 24
Chapter 54 are required to notify the police emergency
911 dispatch center (i.e., Recom, Kentcom, Suscom) of
the appropriate police agency in which the apprehension
will be attempted.
10.0 Notification of Arrest
10.1 Anyone licensed under Title 24 Chapter 54
shall, excluding weekends and State holidays, notify the
Detective Licensing Section within 24 hours of being
arrested if that arrest could result in a misdemeanor or
felony conviction. Failure to do so may result in the
suspension or revocation of an agency license or
individual ID card.
11.0 Suspensions and Revocations
11.1 The Detective Licensing Section shall have the
power to suspend or revoke any agency or individual,
licensed under Title 24 Chapter 54, that violates the
Chapter or the promulgated Rules & Regulations.
11.2 The Detective Licensing Section may suspend
or revoke any agency or individual, licensed under Title
24 Chapter 54, that has been arrested and that arrest
could result in the conviction of any misdemeanor or
felony as described in Sections 1.0 or 2.0.
11.3 Anyone whose license has been suspended,
revoked, rejected, or denied is entitled to a hearing
before the Secretary of Public Safety.
11.3.1 Anyone requesting a hearing shall notify
the Detective Licensing Section, in writing, within five (5)
days from the suspension, revocation, rejection, or denial
and the hearing shall be scheduled at the earliest possible
time.]
Bounty Hunter/Bail Enforcement Agents
[Preamble
These Rules & Regulations are promulgated pursuant to
24 Del.C. Section 5404(a) and the Secretary of Public
Safety delegates his regulatory authority granted by
Chapter 54 to the Division of State Police.
1.0 Licensing
1.1 Any individual applying for a bail enforcement
agent ID card under Title 24 Chapter 54 must meet and
maintain the following qualifications:
1.1.1 Must not be convicted of any felony; and
1.1.2 Must not have been convicted, within the
last seven (7) years, of any two (2) of the following
misdemeanors: theft, drug offenses, offensive touching,
or assault III; and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1528 FINAL REGULATIONS
1.1.3 Must not have been convicted of any
charge that bears a relationship to the performance of
the bounty hunter as determined by the Detective
Licensing Section; and
1.1.4 Must not have been, as a juvenile,
adjudicated as delinquent for conduct which, if
committed by an adult, would constitute a felony, unless
and until that person has reached their 25th birthday.
1.2 An individual bail enforcement agent ID card
will not be issued if there is a pending charge as listed in
Section 1.1.1 or a pending charge as listed in Section 1.1.2
for an applicant with one (1) conviction of specified
misdemeanor listed in Section 1.1.2.
1.3 The individual bail enforcement agent applying
for an ID card under Title 24 Chapter 54 must also meet
the following qualifications:
1.3.1 Must be at least 21 years of age; and
1.3.2 Must complete the training qualifications
set forth in Section 6.0; and
1.3.3 If carrying a weapon, must meet and
maintain the qualifications set forth in Section 4.0.
1.4 The individual bail enforcement agent applying
for an ID card under Title 24 Chapter 54 must submit
the following for approval:
1.4.1 A fee of $25 for a four (4) year ID card
which shall expire and be renewable on the 4th
anniversary date of the birth of the applicant next
following the date of its issuance unless the birth date is
February 29, in which event the license shall expire and
be renewable on February 28 every 4th year; and
1.4.2 Any and all applications required by the
Detective Licensing Section; and
1.4.3 Submit two (2) sets of fingerprints for a
Delaware (CHRI) and Federal (FBI) criminal history
record check. The Director of the State Bureau of
Identification (SBI) determines the fee for this process.
This subsection 1.4.3 does not apply to the renewal of ID
cards, unless required by the Director of Detective
Licensing.
1.5 The ID cards are the property of the Delaware
State Police and must be returned to the Detective
Licensing Section upon expiration of the ID card or at
the request of the Detective Licensing Section.
1.6 A bail enforcement agent that has been issued an
ID card by the Detective Licensing Section shall be
required to have such card in their possession while in
the performance of his or her duties.
1.7 A bail enforcement agent must not be a member
or employee of any Delaware Law Enforcement
Organization, as defined by the Council on Police
Training, or a member or employee of a law enforcement
organization of any other local, state or federal
jurisdiction.
1.8 There will be no reciprocity with any other state
regarding the issuing of an ID card to a bail enforcement
agent.
2.0 Badges, Patches, Advertisements
2.1 No individual licensed under Title 24 Chapter 54
shall use any type of uniform or other clothing items
displaying logos, badges, patches, or any other type of
writing without first being approved by the Detective
Licensing Section. Under no circumstances shall any
item contain the seal or crest of the State of Delaware,
any state of the United States, the seal or crest of any
county or local sub division, or any facsimile of the
aforementioned seals or crests.
2.2 All advertisements or other forms of publication,
subsequent to their use, are subject to review by the
Detective Licensing Section for potential
misrepresentation. If the Detective Licensing Section
does not approve the advertisement or publication, it will
forward its concerns to the licensee. Failure to correct
the advertisement or publication will be considered a
violation of these Rules & Regulations.
2.3 The use of auxiliary lights, sirens, or any
markings on vehicles is prohibited.
3.0 Use Of Animals
3.1 The use of animals is prohibited in the
performance of any bail enforcement agent activity.
4.0 Firearms Policy
4.1 No person shall carry a firearm under this
chapter unless the individual first completed and passed
an approved 40-hour firearm course, instructed by a
certified firearm instructor, recognized by the Detective
Licensing Section.
4.2 All persons licensed to carry a firearm under this
chapter must be re-certified yearly, by an instructor as
described in Section 4.1, by shooting a minimum of three
(3) qualifying shoots a year. The shoots must be
scheduled on at least two (2) separate days, with a
recommended 90 days between scheduled shoots. Of the
three (3) shoots, there will be one mandatory "low light"
shoot. Simulation is permitted and it may be combined
with a daylight shoot. All individuals must qualify with
the same type of weapon that he/she will carry. The
minimum passing score is 75%.
4.3 All handguns must be either a revolver or semiautomatic
and be maintained to factory specifications.
Only the handguns with the following calibers are
permitted:
4.3.1 9mm
4.3.2 .357
4.3.3 .38
4.3.4 .40
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1529
4.4.5 .45
4.4 All ammunition will be factory fresh (no reloads).
4.5 Any person requesting to carry any shotgun,
rifle, any type of weapon or apprehension device must
first provide proof of training to the Detective Licensing
Section for approval.
5.0 Nightstick, PR24, Mace, Peppergas, Chemical Spray,
And Handcuffs
5.1 To carry the above weapons/items a bail
enforcement agent must have completed training on each
and every weapon/item carried. Proof of training must
be provided to the Detective Licensing Section. Under no
circumstances would a person be permitted to carry any
other type weapon/item, unless first approved by the
Detective Licensing Section.
6.0 Training
6.1 All bail enforcement agents licensed under Title
24 Chapter 54 must complete training in the following
courses: Constitution/Bill of Rights, Laws of Arrest,
Laws of Search & Seizure of Persons Wanted, Police
Jurisdiction, Use of Deadly Force, and the Rules &
Regulations of Bounty Hunters/Bail Enforcement
Agents.
6.2 This training will be waived for the initial
licensing, but must be completed by January 19, 2003.
Thereafter, the training must be completed prior to
obtaining a license.
7.0 Notification Of Apprehensions
7.1 All bail enforcement agents licensed under Title
24 Chapter 54 are required to notify the police
emergency 911 dispatch center (i.e., Recom, Kentcom,
Suscom) of the appropriate police agency in which the
apprehension will be attempted.
8.0 Notification Of Arrest
8.1 Anyone licensed under Title 24 Chapter 54 shall,
excluding weekends and State holidays, notify the
Detective Licensing Section within five (5) days of being
arrested for a misdemeanor or felony crime. Failure to
do so may result in the suspension or revocation of any
individual.
9.0 Suspensions And Revocations
9.1 The Detective Licensing Section shall have the
power to suspend or revoke any individual, licensed
under Title 24 Chapter 54, that violates the Chapter or
the promulgated Rules & Regulations.
9.2 The Detective Licensing Section may suspend or
revoke any individual, licensed under Title 24 Chapter
54, that has been arrested and that arrest could result in
the conviction of any misdemeanor or felony as described
in Section 1.0.
9.3 Anyone whose license has been suspended,
revoked, rejected, or denied is entitled to a hearing
before the Secretary of Public Safety.
9.3.1 Anyone requesting a hearing shall notify
the Detective Licensing Section, in writing, within 30
days from the suspension, revocation, rejection, or denial
and the hearing shall be scheduled at the earliest possible
time.]
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Statutory Authority: 29 Delaware Code,
Section 5005(11) (29 Del. C. § 5005(11)) and
26 Delaware Code, Section 1014(a)
(26 Del. C. §1014(a))
Title Of Regulation
Energy Alternatives Program Regulation.
Order Adopting And Promulgating Regulation
AND NOW, this 13 day of December, 2001, John D.
Wik, as Director ("Director") of the Delaware Economic
Development Office ("DEDO"), in accordance with 29
Delaware Code §§ 5005(11), and 10118(b), for the reasons
stated below enters this ORDER adopting and promulgating
the Energy Alternatives Program Regulation (the
"Regulation")
Nature Of Proceedings; Synopsis Of The Subject And
Substance Of The Proposed Regulation
In accordance with procedures set forth in 29 Del. C.
Ch. 11, Subch. III and 29 Del. C. Ch. 101, the Director of
DEDO proposed to adopt the Regulation for the
administration and operation of the Energy Alternatives
Program established in 26 Del. C. § 1014(a) as part of The
Electric Utility Restructuring Act of 1999, 72 Del. Laws, c.
10 (March 31, 1999) (the "Act"). The Energy Alternatives
Program is designed to introduce renewable energy
technologies into the Delaware market by reducing the net
system costs through the use of rebates. The Regulation sets
forth the definition of certain terms used in the Energy
Alternatives Program and describes (i) the eligibility
requirements for persons desiring to receive a rebate
designed to defray a part of certain purchase and installation
costs of certain solar photovoltaic electricity generating
systems, certain solar water heating systems, certain
geothermal heat pump systems, and certain wind turbine
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1530 FINAL REGULATIONS
systems (ii) the photovoltaic electricity generating, solar hot
water heating, geothermal, and wind turbine systems that
now qualify for rebates, (iii) how to request a rebate, (iv)
how rebate requests will be evaluated and processed and the
rebates disbursed, and (v) other administrative features of
the Energy Alternatives Program.
Notice of the public hearing to consider the proposed
amendments and the text of the amendments appeared in the
November 1, 2001 issue of the Delaware Register of
Regulations, 5 Del. R. 989-1175 (November 1, 2001), and in
Delaware newspapers of general circulation on November 6,
2001, November 7, 2001and November 12, 2001in
accordance with 29 Del. C. §10115(b). An employee of
DEDO designated by the Director of DEDO in accordance
with 29 Del. C. §§ 5005(10) and 10117(1) held a public
hearing for the purpose of receiving comments on the
Regulation on December 6, 2001 from 5:00 until 7:00 p.m.
in Conference Room 398 of the Carvel State Office
Building, 820 N. French Street, Wilmington, DE, 19801.
This is the order of the Director of DEDO adopting the
Regulation.
Summary Of Evidence And Information Submitted
Following enactment of the Act, DEDO, the Delaware
Energy Office and the Division of the Public Advocate
began to consult on the design and implementation of the
Energy Alternatives Program required to be created under
the Act. To assist the agencies, DEDO engaged a consultant.
Because 29 Del. C. § 1014(a) is very general, the working
group drew specific guidance as to some aspects of the
program from Senate Resolution 30 (140th General
Assembly). The group also surveyed similar programs
established by the states of New Jersey, Pennsylvania,
Wisconsin and California to gain an understanding of the
types of technologies being funded elsewhere and the level
of funding used to promote more widespread use of energy
conservation technologies.
The working group initially focused on three
technologies that used renewable resources, e.g.,
photovoltaic and wind turbine powered electricity generation
and solar hot water heating. The working group had
information that each of these technologies has a proven
track record. The focus of the Act was not, however, limited
to renewable resource technologies. Accordingly, the group
broadened the scope of technologies included in the program
to include geothermal heat pump technology. The working
group included this technology because it produces large
heating and cooling efficiencies in both residential and
nonresidential applications with a relatively short payback
period.
The working group concluded that the adoption of a few
technologies with proven track records would provide early
success to the Energy Alternatives Program. The group also
believed that this strategy would make it easier to administer
the program in the short-run, and increase public acceptance
of additional energy conservation technologies and
initiatives that might be adopted at a later date. This
approach was based upon the belief that it is better to start
small and build upon early successes.
The working group intended that the selected
technologies should be used in both residential and
nonresidential settings. Accordingly, it divided the
Environmental Incentive Fund into a Nonresidential Pool
and a Residential Pool, based on an allocation ratio of 60%
to the Nonresidential Pool and 40% to the Residential Pool.
Data available to the working group suggested that this
allocation approximated the ratio of electricity payments by
nonresidential consumers to payments by residential
consumers.
The working group incorporated technical and
engineering standards and a 5-year warranty requirement for
the various types of Qualifying Systems into the Regulation
to ensure that consumers received systems that were
warranted against defects, manufactured according to
industry standards and properly installed. The working
group had information that the technical and engineering
standards and the warranty requirement all are currently
reflected in industry best practices. Similarly, in order to
protect consumers from price gouging by manufacturers or
installers of Qualifying Systems, the working group
incorporated certain cost limitations based on the appropriate
unit of energy generated by the type of Qualifying System.
The working group had information that these limitations
were reasonable, based on the current costs associated with
the purchase and installation of Qualifying Systems.
The working group also concluded that the Delaware
Energy Office's core competencies would better enable that
agency to evaluate applications for Energy Alternatives
Rebates than DEDO could.
DEDO received written comments from W.L. Gore &
Associates, Inc. ("Gore") and oral testimony from
representatives of McConnell Development, AstroPower,
Rockford Construction & Design and Gore.
In its written and oral comments, Gore provided
information about the history of fuel cell technology, the
various types of existing technology and current applications
of the technology and urged its inclusion in the Energy
Alternatives Program. It also suggested that the Regulation
include provisions (i) "to ensure a balance of rebate
investments across the identified qualified technologies," (ii)
to specify mechanisms for reviewing effectiveness of the
program or benchmarks for reviewing its effectiveness, and
(iii) to identify qualifications for additional future
technologies for inclusion in the program. Gore also
questioned the reasonability of the requirement in Section
3.1.2 of the Regulation that Qualifying Systems have a full
5-year warranty, as described in the Regulation.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1531
DEDO declined to include fuel cell technology in the
Energy Alternatives Program, at least at the outset of the
program, based on information that it developed through the
working group. First, fuel cell technology is still very
expensive, when compared to the other technologies selected
for the program. The cost of existing technologies is
important for the adequate proliferation in both the
commercial and residential marketplace. Funds available in
the Environmental Incentive Fund are limited, and DEDO
believed that it was important to use the available funds for
the largest number of projects in order to launch the program
successfully. Second, cost effective applications for fuel cell
technology are still in their infancy, and at this time, the
available fuel cell technologies are in their embryonic stages,
when compared with the other technologies adopted into the
Energy Alternatives Program. Future development of fuel
cell technology and the cost of implementing it may warrant
a re-evaluation of this decision. DEDO intends to monitor
new and developing technologies for promoting energy
efficiency and conservation and it believed that the best
approach to determining whether new technologies would be
incorporated would be to be flexible. Accordingly, DEDO
has not followed Gore's suggestion to incorporate
benchmarks for the inclusion of new technologies in the
program. If DEDO determines that it is appropriate, such
technologies may be added by amendment to the Regulation.
DEDO considered incorporating some allocation mechanism
among the included technologies but decided instead to let
the demand of rebate users determine the allocation. The
Energy Alternatives Program is designed to benefit
electricity consumers and encourage energy conservation
and efficiency, not to serve as an economic benefit tool for
the primary benefit of the producers or vendors of included
technologies. DEDO intends to monitor the program for
effectiveness and the tools by which it measures
effectiveness may change over time; accordingly, it has not
followed Gore's suggestion that such benchmarks be
included in the Regulation.
The representative of McConnell Development
expressed support for the program and stated that McConnell
Development was a developer of residential, commercial
and industrial real estate. He stated that McConnell
Development had already constructed a 25 kW system was
in the process of designing and installing one large industrial
project and one large office project using technologies
covered by the Regulation
The representative of AstroPower stated that
AstroPower was the largest independent manufacturer of
solar electric products, expressed support for the program
and stated that AstroPower was in the process of expanding
its headquarters in Newark, Delaware to include the largest
building integrated photovoltaic system in the United States.
He stated that AstroPower desired a rebate under the Energy
Alternatives Program for this system.
The representative of Rockford Construction & Design
explained that his employer is an installer for AstroPower
and expressed support for the program.
Findings Of Fact And Conclusions Of Director
1. As part of the Act, the Delaware General Assembly
provided for the establishment of the Environmental
Incentive Fund and the Energy Alternatives Program to be
administered by DEDO in consultation with the Delaware
Energy Office and the Division of the Public Advocate for
the purpose of funding environmental incentive programs for
conservation and energy efficiency within the DP&L Service
Territory. DEDO, in consultation with the Delaware Energy
Office and the Division of the Public Advocate, determined
that it would be necessary to promulgate the Regulation in
order to set forth the definition of certain terms used in the
Energy Alternatives Program and describe (i) the eligibility
requirements for persons desiring to receive a rebate
designed to defray a part of certain purchase and installation
costs of certain solar photovoltaic electricity generating
systems, certain solar water heating systems, certain
geothermal heat pump systems, and certain wind turbine
systems (ii) the photovoltaic electricity generating, solar hot
water heating, geothermal, and wind turbine systems that
now qualify for rebates, (iii) how to request a rebate, (iv)
how rebate requests will be evaluated and processed and the
rebates disbursed, and (v) other administrative features of
the Energy Alternatives Program.
2. Photovoltaic, Solar Water Heating, Geothermal
Heat Pump and Wind Turbine technologies are proven
technologies that either use renewable resources or offer
large heating and cooling efficiencies at a relatively low
cost. All of these technologies can be used in residential and
nonresidential applications. Fuel cell technology is, at this
time, relatively expensive when compared to other
technologies and does not yet enjoy cost effective and
widely developed applications. Thus, inclusion of fuel cell
technology in the Energy Alternatives Program at this time is
not consistent with the goals of the program.
3. In order to to ensure that consumers receive
systems that are warranted against defects, manufactured
according to industry standards, properly installed and
appropriately priced, it is necessary to incorporate technical
and engineering standards and a 5-year warranty
requirement for Qualifying Systems and to impose certain
cost limitations based on the appropriate unit of energy
generated by the type of Qualifying System.
4. To ensure that the selected technologies are used in
both residential and nonresidential applications, the
Environmental Incentive Fund should be divided into a
Residential Pool and a Nonresidential Pool in the same
approximate proportion that residential and nonresidential
electric customers pay for electricity, i.e., 40% of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1532 FINAL REGULATIONS
Environmental Incentive Fund should be allocated to the
Residential Pool and 60% to the Nonresidential Pool. The
demand by Residential and Nonresidential consumers
seeking rebates should determine the amount or percentage
of funds within each pool used for Energy Alternatives
Rebates with respect to the various included technologies.
Rather than a fixed allocation among such funds.
5. It is undesirable to include in the Regulation rigid
benchmarks for evaluating the success of the Energy
Alternatives Program or for the inclusion of new
technologies, because DEDO, in consultation with the
Delaware Energy Office and the Division of the Public
Advocate will continually evaluate the program and the
development of other technologies that might be included in
the program. Because of the rapid pace of change in
technology, a more flexible approach to these evaluations
will better serve the program than the incorporation of rigid
benchmarks.
6. Certain extra verbiage and mispunctuation
appeared in the Regulation, as proposed and published in the
Delaware Register of Regulations, 5 Del. R. 989-1175
(November 1, 2001), and that excess verbiage is excluded
and the mispunctuation is corrected in the Regulation as
finally promulgated and set forth below. The exclusion of
such verbiage and the correction of such mispunctuation do
not constitute "substantive" changes within the meaning of
29 Del. C. § 10118(c).
7. The Director of DEDO has statutory authority to
promulgate regulations pursuant to 29 Del. C. § 5005(11).
Decision And Order Concerning Amendments To The
Regulation
NOW THEREFORE, under the statutory authority and
for the reasons set forth above, the Director of DEDO
ORDERS that the Regulation be, and it hereby is, adopted
and promulgated as set forth below. The effective date of
this Order is ten days from the date of its publication in the
Delaware Register of Regulations, in accordance with 29
Del. C. § 10118(g).
John D. Wik, Director
Delaware Economic Development Office
Energy Alternatives Program Regulation
1.0 Introduction
This regulation is promulgated under the authority
granted to the Director of the Delaware Economic
Development Office ("DEDO") by 29 Del. C. § 5005(11) to
make regulations for the administration and operation of
DEDO. One of the programs administered by DEDO is the
Energy Alternatives Program established in 26 Del. C.
§ 1014(a) as part of The Electric Utility Restructuring Act of
1999. The Energy Alternatives Program is designed to
introduce renewable energy technologies into the Delaware
market by reducing the net system costs through the use of
rebates. This regulation sets forth the definition of certain
terms used in the Energy Alternatives Program and describes
(i) the eligibility requirements for persons desiring to
participate in the program, (ii) the systems that now qualify
for rebates, (iii) how to apply for a rebate, (iv) how rebate
requests will be evaluated and processed and the rebates
disbursed, and (v) other administrative features of the
Energy Alternatives Program.
2.0 Definitions.
For purposes of this regulation, the following initially
capitalized words and phrases shall have the meanings set
forth below.
"DEDO" has the meaning set forth in Section 1.0
hereof.
"DP&L Service Territory" means the service territory
of Delmarva Power and Light Company, doing business as
Conectiv Power Delivery, or its successor, as such territory
is reflected in the electric service territory maps maintained
by the Delaware Public Service Commission under the
authority of 26 Del. C. § 203B.
"Conectiv Power Delivery" means the trade name used
by Delmarva Power and Light Company.
"Eligible Qualifying Geothermal Heat Pump System
Costs" has the meaning set forth in Section 3.4.3 hereof.
"Eligible Qualifying Photovoltaic System Costs" has
the meaning set forth in Section 3.2.4 hereof.
"Eligible Qualifying Solar Water Heating Costs" has
the meaning set forth in Section 3.3.4 hereof.
"Eligible Qualifying Wind Turbine System Costs"
has the meaning set forth in Section 3.5.4 hereof.
"Energy Alternatives Program" has the meaning set
forth in Section 1.0 hereof.
"Energy Alternatives Program Manager" means the
State Energy Office employee whose duties include
consultation with DEDO in the management and
administration of the Environmental Incentive Fund, and the
Energy Alternatives Program.
"Energy Alternatives Rebate" for Photovoltaic, Solar
Water Heating and Wind Turbine systems means, except as
provided hereafter, 35% of Eligible Qualifying Photovoltaic
System Costs, Eligible Qualifying Solar Water Heating
System Costs, or Eligible Qualifying Wind Turbine System
Costs, as the case may be, [is] subject to the following
limitations: if the Qualifying System is to be used by a
Nonresidential Purchaser, an Energy Alternatives Rebate
shall not exceed $250,000; if the Qualifying System is a
Photovoltaic system to be used by a Residential Purchaser,
an Energy Alternatives Rebate shall not exceed $10,500 per
Residential Dwelling Unit; if the Qualifying System is to be
used by a Residential Purchaser for Solar Water Heating, an
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1533
Energy Alternatives Rebate shall not exceed $1,500 per
Residential Dwelling Unit; if the Qualifying System is to be
used by a Residential Purchaser for a Wind Turbine System,
an Energy Alternatives Rebate shall not exceed $5,000 per
Residential Dwelling Unit. Energy Alternative[s] Rebate for
a Geothermal Heat Pump system means the lesser of 35% of
the Eligible Qualifying Geothermal Heat Pump System
Costs [difference between the installed cost of the
Geothermal Heat Pump System and a conventional
heating/air-conditioning alternative (air-source heat
pump, air-cooled or water-cooled unitary airconditioning
equipment and/or gas- or oil-fired heating
equipment) of equal heating and cooling capacity] , or
$500 per Ton of Capacity. An Energy Alternative Rebate
for a Nonresidential Geothermal Heat Pump system shall not
exceed $25,000. An Energy Alternative[s] Rebate for a
Residential Geothermal Heat Pump system shall not exceed
$2,500.
"Environmental Incentive Fund" means the fund
established by 26 Del. C. § 1014(a) and administered by the
Delaware Economic Development Office, in consultation
with the State Energy Office and the Division of Public
Advocate.
"Fiscal Year" means the budget and accounting year of
the State beginning on July 1 and ending on June 30.
Reference to a Fiscal Year by year number means the Fiscal
Year ending on June 30 of the named year. For example, a
reference to Fiscal Year 2001 means the period beginning on
July 1, 2000 and ending on June 30, 2001.
"Freeze Tolerance Limit" means the temperature
below which a Qualifying System for Solar Water Heating
might suffer damage attributable to freezing.
"Geothermal Heat Pump" means - either an open or
closed loop system, or direct expansion system that uses the
thermal energy of the ground or groundwater as the heat
source and heat sink for residential or non-residential space
heating and/or cooling. It may provide both space heating
and cooling, cooling only or heating only functions. A closed
loop system consists of a ground heat exchanger in which the
heat transfer fluid is permanently contained in a closed
system. An open loop system consists of a ground heat
exchanger in which the heat transfer fluid is part of a larger
environment. A direct expansion system consists of a
geothermal heat pump system in which the refrigerant is
circulated in pipes buried in the ground, rather than using a
heat transfer fluid, such as water or antifreeze solution in a
separate closed loop, and fluid to refrigerant heat exchanger.
"Grid-connected", "Grid-tied" or "Interconnected"
means a condition in which a Qualifying System that is an
electrical generating system serves and is electrically
connected to an electrical load that is also connected to and
served by the local utility electrical grid. The delivery, or
ability to deliver, any portion of the generating capacity into
the utility electrical grid is not required, nor must the loads
served be only alternating current loads. The Photovoltaic or
Wind Turbine system need only to be capable of serving
electrical loads that would otherwise be served by the local
utility.
"Kilowatt" means 1,000 Watts.
"Kilowatt-hour" means the basic unit of electric
energy equal to one Kilowatt of power supplied to or taken
from an electric circuit steadily for one hour. One-Kilowatt
hour equals 1,000 Watt-hours. Electric energy is commonly
sold by the Kilowatt-hour.
"Nonresidential" means all classes of customer
purchasing electric power for uses other than for individual
households. These groups of customers generally purchase
electric power for commercial and industrial purposes.
When used as an adjective with respect to Qualified Systems
or Energy Alternatives Rebates, such term refers to systems
owned by, or leased to, or rebates granted to Nonresidential
persons.
"Nonresidential List" has the meaning set forth in
Section 4.2.2 hereof.
"Nonresidential Pool" has the meaning set forth in
Section 4.1.1.3 hereof.
"Photovoltaic" means a nonmechanical semiconductor
device, most commonly made of silicon, that produces direct
current (dc) electricity.
"Placed in Service" means installed, operational and
producing output.
"Program Documentation Checklist" means the
"Energy Alternatives Program Documentation Checklist
(EO-1000)" or other form prescribed by the State Energy
Office for the same purpose.
"Purchaser" means the purchaser or lessee of a
Qualifying System.
"Qualifying System" has the meaning set forth in
Section 3.0 hereof.
"Rebate Confirmation and Claim Form" means the
"Energy Alternatives Program Rebate Confirmation and
Claim Form (EO-1002)" or other form prescribed by the
State Energy Office for the same purposes.
"Rebate Reservation" means the reservation of the
amount of a requested Energy Alternatives Rebate against
the previously unreserved funds within the Nonresidential
Pool or the Residential Pool of the Environmental Incentive
Fund available for Energy Alternatives Rebates in
accordance with Section 4.2.3 hereof.
"Rebate Reservation Number" has the meaning set
forth in Section 4.2.2 hereof.
"Rebate Reservation Request" means the request of a
Purchaser for the reservation of an Energy Alternatives
Rebate made in accordance with the procedures specified in
Section 4.2 hereof.
"Rebate Reservation Request Form" means the
"Energy Alternatives Program Rebate Reservation Request
Form -- Photovoltaic (EO 1001PV)", the "Energy
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1534 FINAL REGULATIONS
Alternatives Program Rebate Reservation Request Form -
Solar Water Heating (EO 1001SWH)", the "Energy
Alternatives Program Rebate Reservation Request Form --
Geothermal (EO 1001GEO)" the "Energy Alternatives
Program Rebate Reservation Request Form -- Wind Turbine
(EO 1001WT)", or such other form prescribed by the State
Energy Office for making a Rebate Reservation Request
pursuant to Section 4.2 hereof.
"Residential" means the class or classes of customers
purchasing electric power for household uses. When used as
an adjective with respect to Qualified Systems or Energy
Alternatives Rebates, such term refers to systems owned by,
or leased to, or rebates granted to Residential persons.
"Residential Dwelling Unit" means a single-family
house, whether free-standing or attached to one or more
other houses, or an apartment. A Residential Dwelling Unit
must be separately metered for purposes of measuring
electricity consumption.
"Residential List" has the meaning set forth in Section
4.2.2 hereof.
"Residential Pool" has the meaning set forth in Section
4.1.1.3 hereof.
"Retailer" means the vendor or lessor of a Qualifying
System.
"Solar Water Heating" means the heating of water by
use of the sun's energy rather than electricity or gas.
"State" means the State of Delaware.
"Ton of Capacity" means 12,000 British Thermal
Units (BTU) per hour of capacity.
"Vendor Data Form" means the "Energy Alternatives
Program Vendor Data Form" or other form prescribed by the
State Energy Office for the same purpose.
"Watt" means the basic unit of measure of real electric
power, or rate of doing work.
"Watt-hour" means the basic unit of measure of
electric energy consumption. The total amount of energy
used in one hour by a device that requires one Watt of power
for contnuous operation.
"Wind Turbine" means a mechanical/electrical system
that converts the kinetic energy of blowing wind into electric
power.
3.0 Qualifying System
3.1 In General. A Qualifying System must be located
within the DP&L Service Territory, and the Purchaser must
be a customer of Conectiv Power Delivery. Only
Photovoltaic, Solar Water Heating, Geothermal Heat Pump
and Wind Turbine systems may constitute Qualifying
Systems.
3.1.1 Code Compliance; Contractor Licensing. All
Qualifying Systems must be installed in accordance with
standards and specifications of the manufacturers of the
components in such systems and in compliance with all
applicable electrical, plumbing and building codes.
3.1.2 Warranties. All Qualifying Systems must
have a full 5-year warranty against component failure,
malfunction and premature output degradation. The
warranty must cover all components for which the Energy
Alternatives Rebate is granted and cover the full cost of
repair and replacement of all components of the system. For
professionally installed systems, the warranty must cover the
labor to remove and replace defective components and
systems.
3.2 Photovoltaic Systems.
3.2.1 Capacity. In order to be a Qualifying System,
Photovoltaic systems must have an expected annual system
output that does not exceed the historic or current electricity
needs of the Purchaser at the installation site. Qualifying
Systems must produce at least 300 Watts. For Qualifying
Systems producing more than 10,000 Watts (i.e.,10
Kilowatts), the Energy Alternatives Program Manager may
require additional evidence of feasibility with the Rebate
Reservation Request Form. If the installation site is new
construction, the expected annual system output must not
exceed the estimated building electrical needs, as set forth in
the Conectiv Power Delivery service request with respect to
the installation site submitted by the Purchaser.
3.2.2 Technical Standards. All photovoltaic
modules must be certified by a nationally recognized testing
laboratory as meeting the requirements of the Underwriters
Laboratory Standard 1703. All qualifying grid-connected
systems must comply with [and] the Institute of Electrical
and Electronic Engineers Standards Board (IEEE) 929,
Recommended Practice for Utility Interface of Photovoltaic
(PV) Systems and the appropriate generation interconnection
arrangements of Conectiv Power Delivery's, Technical
Considerations Covering Parallel Operations of Customer
Owned Generation of Less than 1 Megawatt and
Interconnected with the Conectiv Power Delivery System.
Conectiv's generation interconnection documents are
available on the Division of the Public Advocate's web site
at www.state.de.us/publicadvocate. All inverters must be
certified by a nationally recognized testing laboratory for
safe operation as well as be certified as meeting the
requirements of Underwriters Laboratory Standards 1741-
1999, Standard for Static Inverters and Charge Controllers
for Use in Photovoltaic Power Systems.
3.2.3 Cost Limitations. A Photovoltaic system
may not have Eligible Qualifying Photovoltaic System Costs
in excess of $12 per Watt.
3.2.4 Eligible Qualifying Photovoltaic System
Costs. "Eligible Photovoltaic Qualifying System Costs"
means (i) the sum of costs of the components of a Qualifying
System that are used to convert sunlight to electricity, the
labor costs for the installation of such components, the cost
of required permits and fees for the construction or
installation of a Qualifying System and, in the case of a
Qualifying System to be used by a Nonresidential Purchaser,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1535
engineering costs associated with such system not to exceed
10% of the total cost of such system; minus, (ii) all other
incentives associated with such Qualifying System and
received by the Purchaser, including grants, rebates, buy
downs[,] cost sharing or any similar form of financial
incentive other than a federal income tax credit. In order to
be counted toward Eligible Qualifying System Costs,
components of a Qualifying System must be new and
previously unused. Examples of the components of a
Qualifying System that is Photovoltaic, the costs of which
may be counted toward Eligible Qualifying System Costs,
are the photovoltaic module, the foundation for such
photovoltaic module, mounting or tracking structures and
wiring, inverters and utility interconnection equipment.
Components that are energy storage equipment may not be
counted toward Eligible Qualifying System Costs.
3.3 Solar Water Heating
3.3.1 Capacity. In order to be a Qualifying System
a Solar Water Heating system must have a minimum
combined tank capacity of 80 gallons. A Solar Water
Heating system must be designed to reduce or eliminate the
need for electric or gas-heated hot water.
3.3.2 Technical Standards. All Qualifying Systems
that are Residential Solar Water Heating systems must be
certified to meet the Solar Rating and Certification
Corporation's (SRCC) OG- 300, Operating Guidelines and
Minimum Standards for Certifying Solar Water Heating
Systems: An Optional Solar Water Heating System
Certification and Rating Program and have a Freeze
Tolerance Limit of minus 21 degrees Fahrenheit without
electrical power. All Qualifying Systems that are
Nonresidential Solar Water Heating systems must utilize
collectors certified to meet the Solar Rating and Certification
Corporation's (SRCC) OG-100, Operating Guidelines for
Certifying Solar Collectors.
3.3.3 Cost Limitations. A Solar Water Heating
system may not have Eligible Qualifying Solar Water
Heating System Costs in excess of $2.50 per Kilowatt-Hour
of annual energy savings, as estimated by the Solar Rating
and Certification Corporation's (SRCC) OG-300 Estimated
Annual Performance document.
3.3.4 Eligible Qualifying Solar Water Heating
System Costs. "Eligible Qualifying Solar Water Heating
System Costs" means (i) the sum of costs of the components
of a Qualifying System that are used to convert sunlight to
heated water, the labor costs for the installation of such
components, the cost of required permits and fees for the
construction or installation of a Qualifying System and, in
the case of a Qualifying System to be used by a
Nonresidential Purchaser, engineering costs associated with
such system not to exceed 10% of the total cost of such
system; minus, (ii) all other incentives associated with such
Qualifying System and received by the Purchaser, including
grants, rebates, buy downs cost sharing or any similar form
of financial incentive other than a federal income tax credit.
In order to be counted toward Eligible Qualifying System
Costs, components of a Qualifying System must be new and
previously unused. Examples of the components of a
Qualifying System for Solar Water Heating, the costs of
which may be counted toward Eligible Qualifying System
Costs, are collectors, mounting components, storage tanks,
circulators, controllers, timers, heat exchangers, expansion
tanks, piping and insulation. Components that are point of
use heating devices or solar pool heating equipment may not
be counted toward Eligible Qualifying System Costs .
3.4 Geothermal Heat Pump
3.4.1 Capacity. In order to be a Qualifying System
a Geothermal Heat Pump must be sized in accordance with
good heating, ventilation and air conditioning design
practices for the occupancy and location. Vendor shall
provide a Manual J calculation, or other equivalent
calculation, to determine proper size of equipment.
3.4.2 Technical Standards. All Qualifying Systems
must have a warranty for protection of the integrity and
performance of the ground heat exchanger for at least five
years. All Qualifying Systems must meet the following:
• Closed loop systems shall qualify under rating
conditions in accordance with ISO 13256-1.
• Open loop systems shall qualify under rating
conditions in accordance with ISO 13256-1.
• DX systems shall qualify under rating conditions in
accordance with ARI 870.
3.4.3 Eligible Qualifying Geothermal Heat Pump
System Costs. "Eligible Qualifying Geothermal Heat Pump
System Costs" means (i) the sum of costs of the components
of a Qualifying System that are used to collect and/or reject
heat to the ground or groundwater, the labor costs for the
installation of such components, the cost of required permits
and fees for the construction or installation of a Qualifying
System and, in the case of a Qualifying System to be used by
a Nonresidential Purchaser, engineering costs associated
with such system not to exceed 10% of the total cost of such
system; minus, (ii) all other incentives associated with such
Qualifying System and received by the Purchaser, including
grants, rebates, buy downs[,] cost sharing or any similar
form of financial incentive other than a federal income tax
credit. In order to be counted toward Eligible Qualifying
System Costs, components of a Qualifying System must be
new and previously unused. Examples of the components of
a Qualifying System for Geothermal Heat Pump systems, the
costs of which may be counted toward Eligible Qualifying
System Costs, are wells and well drilling, in-ground piping
and heat exchanger loops and excavation for such piping and
loops, circulating pumps, controllers, timers, heat
exchangers, expansion tanks, piping and insulation. Vaporcompression
heat pump units, air handling units, fans,
ductwork, filter systems, and other fluid and air handling
system components are excluded.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1536 FINAL REGULATIONS
3.5 Wind Turbine
3.5.1 Capacity. In order to be a Qualifying System,
Wind Turbine systems must [not] have an expected annual
system output that does not exceed the historic or current
electricity needs of the Purchaser at the installation site. The
Energy Alternatives Program Manager may require
additional evidence of feasibility with the Rebate
Reservation Request Form. The Energy Alternatives
Program Manager may also reject applications if the location
of the proposed Wind Turbine System has an inadequate
wind resource for reasonable utilization of the equipment. If
the installation site is new construction, the expected annual
system output must not exceed the estimated building
electrical needs, as set forth in the Conectiv Power Delivery
service request with respect to the installation site submitted
by the Purchaser.
3.5.2 Technical Standards. All qualifying gridconnected
systems must comply with the Institute of
Electrical and Electronic Engineers Standards Board (IEEE)
929, Recommended Practice for Utility Interface of
Photovoltaic (PV) Systems and the appropriate generation
interconnection arrangements of Conectiv Power Delivery's,
Technical Considerations Covering Parallel Operations of
Customer Owned Generation of Less than 1 Megawatt and
Interconnected with the Conectiv Power Delivery System.
Conectiv's generation interconnection documents are
available on the Division of the Public Advocate's web site
at www.state.de.us/publicadvocate. All inverters must be
certified by a nationally recognized testing laboratory for
safe operation as well as be certified as meeting the
requirements of Underwriters Laboratory Standards 1741-
1999, Standard for Static Inverters and Charge Controllers
for Use in Photovoltaic Power Systems.
3.5.3 Cost Limitations. A Wind Turbine system
may not have Eligible Qualifying Wind Turbine System
Costs in excess of $5.00 per Watt.
3.5.4 Eligible Qualifying Wind Turbine System
Costs. "Eligible Qualifying Wind Turbine Systems Costs "
means (i) the sum of costs of the components of a Qualifying
System that are used to convert wind energy to electricity,
the labor costs for the installation of such components, the
cost of required permits and fees for the construction or
installation of a Qualifying System and, in the case of a
Qualifying System to be used by a Nonresidential Purchaser,
engineering costs associated with such system not to exceed
10% of the total cost of such system; minus, (ii) all other
incentives associated with such Qualifying System and
received by the Purchaser, including grants, rebates, buy
downs cost sharing or any similar form of financial incentive
other than a federal income tax credit. In order to be counted
toward Eligible Qualifying System Costs, components of a
Qualifying System must be new and previously unused.
Examples of the Wind Turbine System components of a
Qualifying System, the costs of which may be counted
toward Eligible Qualifying System Costs, are the wind
turbine-generator assembly, tower, tower foundations, other
support structure components, wiring, inverters and utility
interconnection equipment. Components that are energy
storage equipment may not be counted toward Eligible
Qualifying System Costs.
4.0 Energy Alternatives Rebate Reservation and
Payment Procedure
4.1 Availability of Funds; Duration of Program.
4.1.1 In General.
4.1.1.1 Program Duration. Energy
Alternatives Rebates will be available on the effective date
of this regulation. DEDO may, however, modify or suspend
the Energy Alternatives Program and the criteria for, or
availability of Energy Alternatives Rebates. Such action
shall be taken in consultation with the State Energy Office
and the Division of the Public Advocate.
4.1.1.2 Funds Available. The availability of
any amount for Energy Alternatives Rebates will depend
entirely upon whether sufficient unencumbered funds are
available in the Environmental Incentive Fund at the
beginning of a Fiscal Year, or are deposited pursuant to 26
Del.C. § 1014(a) into the Environmental Incentive Fund
pursuant to Section 4.1.1.5 hereof during such Fiscal Year.
DEDO can give no assurance that any funds will be available
for Energy Alternatives Rebates.
4.1.1.3 Allocation of Environmental Incentive
Fund for Nonresidential and Residential Energy Alternatives
Rebates. On the effective date of this regulation, DEDO will
allocate sixty percent (60%) of the Environmental Incentive
Fund for the funding of Nonresidential Energy Alternatives
Rebates (the "Nonresidential Pool") and forty percent (40%)
of the Environmental Incentive Fund for the funding of
Residential Energy Alternatives Rebates (the "Residential
Pool"). DEDO will allocate all funds received in the
Environmental Incentive Fund after the effective date of this
regulation in the same proportion into the Nonresidential
Pool or the Residential Pool.
4.1.1.4 Carryforwards. At the end of each
Fiscal Year amounts in the Nonresidential Pool and the
Residential Pool shall carry forward into the next Fiscal Year
within the same pool.
4.1.1.5 Waiting List. If, at any time, the State
Energy Office has made Rebate Reservations within the
Nonresidential Pool or the Residential Pool of all funds in
such pool, the State Energy Office will not disburse further
Energy Alternatives Rebates from such pool, unless and
until additional funds become available in such pool;
however, it will continue to accept, evaluate and classify
Rebate Reservation Request Forms and will continue to
assign Rebate Reservation Numbers to Rebate Reservation
Requests in accordance with Section 4.2.2. If additional
funds become available within a pool for Energy
Alternatives Rebates, the State Energy Office will process
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
FINAL REGULATIONS 1537
such rebates in the order of the Rebate Reservation Numbers
in either the Nonresidential List or the Residential List, as
the case may be, assigned to Rebate Reservation Requests.
There can be no assurance that additional funds for Energy
Alternatives Rebates will become available. Rebate
Reservation Requests that have been assigned Rebate
Reservation Numbers, but for which funds are unavailable at
any time at which the Director of DEDO decides to suspend
the Energy Alternatives Program shall lapse, and the persons
who submitted such Rebate Reservation Requests shall have
no right to receive any funds from the State with respect to
their Rebate Reservation Requests.
4.1.2 Special Rule for Qualifying Systems Placed
in Service during Fiscal Year 2001. Purchasers of
Qualifying Systems Placed in Service during Fiscal Year
2001 may apply for an Energy Alternatives Rebate even
though they were unable to submit Rebate Reservation
Request Forms until after the end of Fiscal Year 2001.
4.2 Rebate Reservation Procedure.
4.2.1 Submission of Rebate Reservation Request
Form. Purchasers or Retailers may submit a Rebate
Reservation Request Form to the State Energy Office at the
address set forth hereafter. The Rebate Reservation Request
Form (i) must be on the appropriate Rebate Reservation
Request Form for the type of Qualifying System being
installed, (ii) must provide all requested information, (iii)
must be accompanied by all required accompanying
documentation specified in the Program Documentation
Checklist, and (iv) must be signed by the Purchaser. A
Nonresidential Purchaser who proposes to construct either ae
Qualifying Photovoltaic System or a Qualifying Wind
Turbine System with a capacity exceeding 10 Kilowatts, or a
Qualifying Geothermal Heat Pump System, and who intends
to request a 12-month Rebate Reservation in accordance
with Section 4.2.3 hereof shall also submit preliminary plans
and a project schedule so that the State Energy Office can
determine the feasibility of the system. It is the
responsibility of the Purchaser to ensure that a Rebate
Reservation Request Form is accurate, complete and
contains all required accompanying documentation. Rebate
Reservation Request Forms and accompanying
documentation shall be submitted to the following address:
State Energy Office
Attention: Energy Alternatives Program Manager
149 Transportation Circle
Dover, DE 19901
4.2.2 State Energy Office Processing of Rebate
Reservation Request Form; Assignment of Rebate
Reservation Numbers within Nonresidential Pool or
Residential Pool. The State Energy Office will review and
evaluate the Rebate Reservation Request Form and the
accompanying documentation for accuracy, completeness
(including all required accompanying documentation) and
eligibility of the proposed project as a Qualifying System. In
making its evaluation of the Rebate Reservation Request
Form and accompanying documentation and in determining
whether the proposed project is a Qualifying System, the
State Energy Office may request further information, or
inspect the site of the proposed project. The State Energy
Office shall reject any Rebate Reservation Request, if the
Rebate Reservation Request Form is not accurate or
complete (including all required accompanying
documentation), or if the proposed project is not a
Qualifying System, and shall notify the Purchaser of such
rejection in writing. After the State Energy Office completes
its review of a Rebate Reservation Request Form and all
required accompanying documentation and if it determines
(i) that such submitted forms are accurate and complete
(including all required accompanying documentation) and
(ii) that the project being proposed is a Qualifying System,
the State Energy Office shall take the following actions:
First, it will classify each Rebate Reservation Request as a
request to be reserved against the Nonresidential Pool or the
Residential Pool, depending on whether the Rebate
Reservation Request describes a Nonresidential or a
Residential Qualifying System and assign such Rebate
Reservation Request to a list of Nonresidential Rebate
Reservation Requests (the "Nonresidential List") or a list of
Residential Rebate Reservation Requests (the "Residential
List"). Second, it will assign a unique consecutive number
to each such Rebate Reservation Request within either the
Nonresidential List or the Residential List based on the
chronological order of the date on which such form was
submitted in complete form (a "Rebate Reservation
Number").
4.2.3 Reservation of Energy Alternatives Rebate.
When the State Energy Office assigns a Rebate Reservation
Number to a Rebate Reservation Request, provided that
sufficient previously unreserved funds are available for
Energy Alternatives Rebates in the Nonresidential Pool (in
the case of Nonresidential Rebate Reservation Requests) or
the Residential Pool (in the case of Residential Rebate
Reservation Requests), the State Energy Office shall reserve
the amount of the Energy Alternatives Rebate so requested
(subject to the applicable limitations) against the funds in the
Nonresidential Pool (in the case of Nonresidential Rebate
Reservation Requests) or the Residential Pool (in the case of
Residential Rebate Reservation Requests) (a "Rebate
Reservation"). A Rebate Reservation shall be valid for six
months from the date on which the State Energy Office
makes such Rebate Reservation. If the Purchaser with
respect to a Nonresidential Photovoltaic Qualifying System,
or a Nonresidential Wind Turbine Qualifying System with a
capacity exceeding 10 Kilowatts, or a Nonresidential
Geothermal Heat Pump Qualifying System makes a written
request therefor, the State Energy Office may, after such
further investigation of the proposed project as it deems
necessary, extend the validity of the Rebate Reservation to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1538 FINAL REGULATIONS
twelve months from the date on which the State Energy
Office made such Rebate Reservation. When a Rebate
Reservation expires, it shall be of no further effect and the
Rebate Reservation Request with respect to which it was
made shall be deemed to have been rejected as of such
expiration date. If the State Energy Office has assigned a
Rebate Reservation Number to a Rebate Reservation
Request but was unable to make a Rebate Reservation
because of the unavailability of funds for such purpose
within the Nonresidential Pool (in the case of Nonresidential
Rebate Reservation Requests) or the Residential Pool (in the
case of Residential Rebate Reservation Requests), and if
funds within the applicable pool sufficient to make such
Rebate Reservation subsequently become available, the
State Energy Office shall make the Rebate Reservation when
such funds become available. Promptly after making a
Rebate Reservation, the State Energy Office shall inform the
Purchaser who made the Rebate Reservation Request of the
amount of the Rebate Reservation and the date on which
such Rebate Reservation expires by mailing a Rebate
Confirmation and Claim Form to the Purchaser.
4.2.4 Modification of Rebate Reservation Request.
A Purchaser may request in writing a modification of a
Rebate Reservation Request at any time prior to the
disbursement of the Energy Alternatives Rebate requested.
A request for a modification of a Rebate Reservation
Request, other than a minor modification, will be treated as a
new Rebate Reservation Request, and the State Energy
Office will evaluate the request for modification as such.
The State Energy Office will exercise its discretion in
determining whether a requested modification is considered
"minor." Upon receipt of a request for modification of a
Rebate Reservation Request that the State Energy Office
does not consider minor, any prior Rebate Reservation made
by the State Energy Office with respect to the Rebate
Reservation Request sought to be modified will expire. The
State Energy Office will evaluate the modified request. If it
determines (i) that the modified Rebate Reservation Request
Form and any accompanying documentation are accurate
and (ii) that the modified project being proposed is a
Qualifying System, the State Energy Office shall assign a
new Rebate Reservation Number to the modified Rebate
Reservation Request and proceed in accordance with Section
4.2.3.
4.3. Claim for and Disbursement of Energy
Alternatives Rebate. If the State Energy Office makes a
Rebate Reservation with respect to a Rebate Reservation
Request Form, after the Qualifying System described in such
Rebate Reservation Request Form has been Placed in
Service and prior to the expiration date of such Rebate
Reservation, the Purchaser may request disbursement of the
Energy Alternatives Rebate that was the subject of the
Rebate Reservation by submitting to the State Energy Office
at the address set forth in Section 4.2.1 a copy of the Rebate
Confirmation and Claim Form that the State Energy Office
sent to the Purchaser after assigning a Rebate Reservation
Number. The Purchaser must complete the section of the
Rebate Confirmation and Claim Form entitled "Rebate
Claim Form" together with all documentation required by
the Program Documentation Checklist to accompany such
Rebate Confirmation and Claim Form. The State Energy
Office must receive the Rebate Confirmation and Claim
Form and all accompanying documentation prior to the
expiration date of the Rebate Reservation specified in the
Rebate Confirmation and Claim Form. The State Energy
Office will evaluate the Rebate Confirmation and Claim
Form and the required accompanying documentation. In
performing such evaluation, the State Energy Office may
make an inspection of the installed system. If there are only
minor modifications to the Rebate Reservation Request or
the Qualifying System, as Placed in Service, that are
described in the Rebate Confirmation and Claim Form, the
State Energy Office will process payment of the Energy
Alternatives Rebate within 30 days of receipt of the Rebate
Confirmation and Claim Form. The State Energy Office will
ordinarily request DEDO to pay the Energy Alternatives
Rebate to the Purchaser; however, if the Purchaser so
requests in writing, the State Energy Office will request
DEDO to pay the Energy Alternatives Rebate to the Retailer.
If modifications to the Rebate Reservation Request or the
Qualifying System, as Placed in Service, that are described
in the Rebate Confirmation and Claim Form are deemed by
the State Energy Office to be other than minor, the Rebate
Confirmation and Claim Form will be treated as a request for
modification of the original Rebate Reservation Request and
processed in accordance with Section 4.2.3 and 4.2.4.
4.4 Maintenance of Balances of Nonresidential Pool
and Residential Pool within the Environmental Incentive
Fund Available for Energy Alternatives Rebates. When the
State Energy Office makes a Rebate Reservation pursuant to
Section 4.2.3 hereof, the funds within either the
Nonresidential Pool or the Residential Pool (as the case may
be) of the Environmental Incentive Fund that have been set
aside for Energy Alternatives Rebates shall be reduced by
the amount of such Rebate Reservation. Whenever a Rebate
Reservation expires in accordance with Section 4.2.3 or
Section 4.2.4 hereof without the corresponding Energy
Alternatives Rebate's having been disbursed in accordance
with Section 4.3 hereof, the funds within either the
Nonresidential Pool or the Residential Pool of the
Environmental Incentive Fund that have been set aside as
available for Energy Alternatives Rebates shall be increased
by the amount of such expired undisbursed Rebate
Reservation.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
GOVERNOR'S APPOINTMENTS 1539
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Authority on Radiation Protection
Board of Architects
Board of Professional Counselors of
Mental Health
Charitable Campaign Steering Committee
Child Placement Review Board Executive
Committee
Commission on Uniform State Laws
Committee on Employment of People
with Disabilities
Committee on Massage/Bodywork Practitioners
Council on Aging and Adults with
Physical Disabilities
Council on Alcoholism, Drug Abuse and
Mental Health
Dr. Robert N. Arm 7/01/04
Mr. Michael L.Clerkin 7/01/04
Ms. Robin L. Elliott 7/01/04
Mr. Norman W. Henry, III 7/01/04
Mr. David H. Irwin 7/01/04
Mr. Costas S. Krikelis 7/01/04
Dr. Stephen J. Lawless 7/01/04
Mr. Goodwin K. Cobb, III 12/06/04
Ms. Dawn S. Brown 11/27/04
Mr. David M. Ciamaricone 11/27/04
Ms. Helen J. Kruger Pleasure of the
Governor
Ms. Shirley Ann Cupery Pleasure of the
Governor
Ms. Judith N.Renzulli Pleasure of the
Governor
Ms. Carol E. Barnett 12/06/04
Mr. Griff Campbell 12/06/04
Mr. Mark A. Chamberlin 12/06/04
Mr. Bruce C. Crouch 12/06/04
Ms. Maureen B. Gleckner 12/06/04
Ms. Regina Greenwald 12/06/04
Ms. Ann Stewart 12/06/04
Ms. Celeste W. Williams 12/06/04
Ms. Jaclynn W. Stuart-Cordrey 12/06/04
Ms. C. Regina Byers 11/27/04
Mr. Edward N. Cahill 11/27/04
Mr. Keith Campbell 11/27/04
Ms. Lucien Ferguson 11/27/04
Mr. John E. Jefferson 11/27/04
Mr. Albert W. Madora 11/27/04
Ms. Lelia D. Perkins 11/27/04
Ms. Mary A. Teller 11/27/04
Mr. David B. Webb 11/27/04
Ms. Karen W. Wood 11/27/04
Mr. Franklin Woodruff, Jr. 11/27/04
Mr. Joseph P. Connor, Jr. 11/27/04
Dr. Terry L. Horton 11/27/04
Mr. Richard E. Patterson 11/27/04
Ms. Sandra Payne 11/27/04
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1540 GOVERNOR'S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Council on Apprenticeship and Training
Council on Development Finance
Council on Hispanic Affairs
Developmental Disabilities Planning Council
Governor's Advisory Council for Exceptional
Citizens
Governor's Council on Agriculture
Real Estate Commission of Delaware
SCR 5 Task Force
State Board of Electrical Examiners
State Board of Pharmacy
State Board of Registration for Land Surveyors
Mr. B. Eugene Battaglia 11/27/04
Mr. Edward J. Brady 11/27/04
Mr. Donato R. Buccini 11/27/04
Mr. R. Jerald Craig 11/27/04
Ms. Patricia D Creedon 11/27/04
Mr. George W. Forbes, III 11/27/04
Mr. Andrew M. Lubin 11/27/04
Mr. Fred C. Sears, II 11/27/04
Mr. Harry J. Sanchez 11/28/04
Mr. Raymond P. Beaudry 12/06/04
Ms. Percila A. Bell 12/06/04
Ms. Nancy J. Cordrey Pleasure of the
Governor
Ms. Andrea Guest Pleasure of the
Governor
Mr. David L. Hosier, II Pleasure of the
Governor
Ms. Brenda S. Kramer Pleasure of the
Governor
Mr. Christoper O. Laniyan Pleasure of the
Governor
Ms. Deborah L. Pote Pleasure of the
Governor
Mr. Dennis L. Rubino Pleasure of the
Governor
Ms. Kristin R. Wilson Pleasure of the
Governor
Mr. Douglas Corey Pleasure of the
Governor
Mr. Dale J. Ockels 7/30/02
Mr. Harry Kreger 11/27/04
Ms. Mary B. Parker 11/27/04
Mr. David Weldin 11/27/04
Ms. Deborah C. Barnes 11/28/04
Ms. Crystal M. Webb 11/28/04
Mr. James T. Anderson 12/06/04
Mr. Edward A. Muir 12/06/04
Ms. Carolyn Calio 11/27/04
Mr. Roy B. Kemp, III 11/27/04
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
GOVERNOR'S APPOINTMENTS 1541
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Mr. Elton M. Murray 11/27/04
State Committee of Dietetics/Nutritionists Ms. T. Genelda Cornwell 12/06/04
Mr. Clayton C. Yocum 12/06/04
State Examining Board of Physical Therapists Mr. Patrick A. McKenzie 12/06/04
Ms. Ruth Ann Messick 12/06/04
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
1542 CALENDAR OF EVENTS/HEARING NOTICES
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF PROFESSIONAL COUNSELORS OF
MENTAL HEALTH
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 3006(a)(1), the Delaware
Board of Professional Counselors of Mental Health proposes
to revise its Rules and Regulations. The proposed revisions
delete the International Christian Institute Certification
Board and Commission on Rehabilitation Counselor
Certification Board as national mental health specialty
certifying organizations automatically considered acceptable
by the Board for purposes of initial licensure and renewal of
licenses. Substantive changes include inserting a new rule
that permits licensees to maintain membership in the
certifying organization acceptable to the Board at the time of
their initial licensure for purposes of renewal of their license
notwithstanding that such organization is no longer deemed
acceptable by the Board for failing to meet certain criteria.
A public hearing will be held on the proposed Rules and
Regulations on Friday, February 1, 2002 at 3:30 p.m., in the
Second Floor Conference Room A of the Cannon Building,
861 Silver Lake Boulevard, Dover, Delaware, 19904. The
Board will receive and consider input in writing from any
person on the proposed Rules and Regulations. Any written
comments should be submitted to the Board in care of Gayle
Franzolino at the above address. The final date to submit
written comments shall be at the above scheduled public
hearing. Anyone wishing to obtain a copy of the proposed
Rules and Regulations or to make comments at the public
hearing should notify Gayle Franzolino at the above address
by calling (302) 744-4520.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DEPARTMENT OF AGRICULTURE
FOOD PRODUCTS INSPECTION SECTION
NOTICE
The Delaware Department of Agriculture, Food
Products Inspection Section is proposing to amend its
regulations concerning the rules of practice that apply to
agency enforcement actions by bringing them into the
conformity with federal law. The Department is proposing
to define each type of enforcement action that it may take,
the conditions under which it likely to take each of these
actions, and the procedures it will follow in doing so.
These proposed amendments are part of the
Department's ongoing effort to consolidate, streamline, and
clarify the meat and poultry product inspection regulations.
To that end, the Department is proposing to adopt by
reference, in their entirety, the federal regulations published
in the Federal Register at Volume 64, Number 228, dated
November 29, 1999, amending the Code of Federal
Regulations at 9 CFR Sections 304, 305, 327, 335, 381 and
adding a new Part 500 which became effective January 25,
2000.
The proposed amendments to the regulations will be
considered at a public hearing scheduled for February 15,
2002 at 1:00 p.m. at the Department of Agriculture Building
in Conference Room 1, located at 2320 South DuPont
Highway, Dover, Delaware. Interested persons are invited
to attend and make comments. Comments concerning the
proposed amendments to the regulations can be submitted in
writing to H. D. Shockley for consideration by the
Department at the public hearing.
Copies of the relevant portions of the Code of Federal
Regulations and the Federal Register may be obtained by
contacting the Superintendent of Documents, U. S.
Government Printing Office, Washington, D. C. 20402-
9328. For more information, or to request accommodations
for disabilities, contact Debbie Whitmore by calling (302)
698-4505.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Public Notice
The Department of Health and Social Services (DHSS),
Division of Long Term Care Residents Protection, has
prepared six (6) revised draft regulations governing training
and qualifications for nursing assistants and certified nursing
assistants as required in 16 Del. C., Chapter 30A. The
remainder of the regulations addressing certified nursing
assistant training, the composition of the certified nursing
assistant training course and curriculum, the mandatory
orientation period and senior certified nursing assistant
certification appear as final regulations in the January 1,
2002 Register of Regulations. The following six (6) draft
regulations, revised after the November 8 public hearing,
will be the subject of a further public hearing: Regulations
69.111, 69.301E, 69.301F, 69.303D5g, 69.303D6, 69.600B.
Regulation 69.502A5 is deleted.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
CALENDAR OF EVENTS/HEARING NOTICES 1543
Invitation For Public Comment
A Public Hearing Will Be Held As Follows:
Wednesday, February 6, 2002
9:00 AM
Room 301, Main Building
Herman Holloway Campus
1901 N. DuPont Highway
New Castle
For clarification or directions, please call Gina
Loughery at 302-577-6661.
Written comments are also invited on these proposed
revised regulations and should be sent to the following
address:
Elise MacEwen
Division of Long Term Care Residents Protection
3 Mill Road, Suite 308
Wilmington, DE 19806
The last time to submit written comments will be at the
public hearing February 6, 2002.
The Regulations currently in place are being replaced in
their entirety by the final regulations printed in the January
Register of Regulations and the six (6) revised draft
regulations being submitted for publication on January 1,
2002.
DIVISION OF SOCIAL SERVICES
Public Notice
Division of Social Services
Food Stamp Program
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services / Food Stamp
Program is proposing to implement a policy change to the
Division of Social Services Manual, Section 9085. This
change is based on the option and waiver of 7 CFR
273.12(a)(1)(i) through (vi).
Summary of Change
• The option allows DSS to require households with
earned income to only report a change of income
when the total monthly gross income exceeds 130%
of the Federal Poverty Level (FPL) during a sixmonth
certification period.
• The waiver allows DSS to make changes on all
reported changes, not just those that increase the
benefits.
• The six-month reporting option in strongly being
encouraged by Food and Nutrition Service (FNS).
The waiver approval will allow DSS to take the
option.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed new regulations must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by January 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
DEPARTMENT OF
TRANSPORTATION
Regulations for Outdoor Advertising
Nature of the Proceedings:
The Department of Transportation initiated proceedings
to update its "Delaware Department of Transportation Rules
and Regulations of Outdoor Advertising" as issued in 1975.
The proposed re-written regulations were published in the
August 1, 2001 issue of the Delaware Register of
Regulations. Written comments were requested and
accepted through October 1, 2001.
The Department received and evaluated nine letters that
set out a wide range of comments. The results of the
evaluation are summarized below. The Department revised
the draft regulations as a result of the comments received and
is presenting the revised draft here, along with the original
1975 regulations for comparison. The Department invites
written comments on the current draft until February 1,
2002. Comments should be sent to:
William F. Smith, III
Department of Transportation
Field Services
P.O. Box 778
Dover, DE 19903
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 7, TUESDAY, JANUARY 1, 2002
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